Thomas v. Astrue

Filing 43

MEMORANDUM OPINION re 37 MOTION to Dismiss the Third Amended Complaint and Motion to Amend Caption. Signed by Judge Richard G. Andrews on 11/20/2013. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MICHELLE THOMAS,
Plaintiff,
Civil Action No. 11-449-RGA

V.

CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Defendant.

MEMORANDUM OPINION

David L. Rose, Esq., Washington DC, Attorney for Plaintiff
Lauren Paxton, Assistant U.S. Attorney, Wilmington, Delaware, Attorney for Defendant

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November
2013
Wilmington, Delaware

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Before the Court is Defendant's Partial Motion to Dismiss the Third Amended Complaint
and Motion to Amend Caption. (D .I. 3 7). Defendant seeks dismissal of allegations of a driving
impairment and claims relating to cancer or abnormal cell growth. Defendant also seeks to

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amend the caption to replace Michael J. Astrue with Carolyn W. Colvin as the Commissioner of
Social Security. In considering this motion, I take as true the Plaintiff's factual allegations in her
Third Amended Complaint.

BACKGROUND
Plaintiff suffers from double vision, vertigo, cancer, and chronic lumbar pain. Plaintiff's

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disabilities impair her major life activities of seeing, concentrating, and working. Plaintiff has
been employed by the Social Security Administration since 1990. She originally worked in New

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York City. In 2000, Plaintiff moved to Dover, Delaware because of her vertigo and double
vision and her mother's cancer treatment. In 2001, Plaintiff sought a hardship transfer to any
Social Security office in Delaware because of her mother's cancer treatment. Plaintiff's request

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was denied.

In February 2006, Plaintiff was transferred to the Social Security Administration office in
Philadelphia, Pennsylvania. At the time, Plaintiff was living in Dover, Delaware.

In March 2009, the Assistant Regional Commissioner of the Program Services Center

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met with Plaintiff and a union representative. After that meeting, Plaintiff was given a temporary
reasonable accommodation due to her disabilities. Plaintiff was detailed to the Social Security

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Administration's Georgetown, Delaware office from April1, 2009 through September 30, 2009.
The temporary transfer was granted due to Plaintiffs vertigo, double vision, and operation
necessary to remove cancer cells. During her time in the Georgetown office, Plaintiff was
granted an award for her successful job performance.
After the period of her temporary reasonable accommodation ended, Plaintiff returned to
work in the Philadelphia office. In December 2009, Plaintiff sought a continuation of her detail
at the Georgetown office, which was denied.
In February 2010, Plaintiff applied for six vacant Claims Representative positions.

Plaintiff was not selected for any position although she was qualified for those positions.
In June 2010, Plaintiff requested a reasonable accommodation and a hardship transfer to

the Dover, Delaware office. Both requests were denied.
On February 22,2011, the Social Security Administration issued its Final Agency
Decision ("FAD"). The FAD addressed Plaintiffs claims that she was not selected for vacant
positions, granted a hardship transfer, or granted a reasonable accommodation based on her
physical disabilities of paroxysmal vertigo and chronic lumbar pain. The FAD stated that
management articulated legitimate, nondiscriminatory reasons for its actions.
Plaintiffs Third Amended Complaint states one cause of action. Plaintiff alleges a claim
under the Rehabilitation Act of 1973. A claim under the Rehabilitation Act requires four
allegations: "(1) that the employee is subject to the statute under which the claim is brought, (2)
that she is an individual with a disability within the meaning of the statute in question, (3) that,
with or without reasonable accommodation, she could perform the essential functions of her job,
and (4) that the employer had notice of the plaintiffs disability and failed to provide such
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accommodation." Lyons v. Legal Aid Society, 68 F.3d 1512, 1515 (2d Cir. 1995).
Plaintiffhas "alleged that she is an individual with a disability within the meaning of the
statute." Defendant, however, argues that some of the allegations should be dismissed ..

DISCUSSION
I. Driving Impairment
Defendant moves to dismiss the Third Amended Complaint to the extent that it alleges a
driving impairment. It is not clear that Plaintiffs Third Amended Complaint alleges a driving
impairment at all. To the extent that it may, the Defendant has failed to identify where or how
such allegation is set forth in the Complaint. The Court is not required to parse out what the
Defendant seeks to dismiss. Further, there is no reason to dismiss a complaint solely because of
surplusage. For these reasons, Defendant's Motion to Dismiss Count One of the Third Amended
Complaint to the extent that it alleges a driving impairment is denied.

II. Impairment to Normal Cell Growth
Defendant moves to dismiss Count One of the Third Amended Complaint to the extent
that it continues to include allegations regarding cancer and an impairment to normal cell growth.
Defendant states that Plaintiffhas not exhausted her administrative remedies in regards to her
condition of fibroid cystic. (D.I. 37). "The purpose of requiring exhaustion is to afford the
EEOC the opportunity to settle disputes through conference, conciliation, and persuasion,
avoiding unnecessary action in the court." Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996).
Plaintiff alleges that she exhausted her administrative remedies. (D.I. 36, ~ 64).
However, multiple documents of record, submitted by Plaintiff, demonstrate that she has not
exhausted her administrative remedies in regards to impairment of normal cell growth.

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Plaintiff's May 1, 201 0 request for reasonable accommodation failed to include abnormal
cell growth. (D.I. 7). Instead, Plaintiff cited paroxysmal vertigo and chronic lumbar back pain as
her disabling conditions. Based on the medical documentation Plaintiff submitted, the Social
Security Administration's office of the Chief Medical Officer determined that Plaintiff may be
considered disabled for the major life function of normal cell growth, but that Plaintiff did not
submit sufficient information regarding that condition. The letter stated that Plaintiff could
submit additional information for reassessment. The record does not indicate that Plaintiff
submitted such additional information regarding her abnormal cell growth.
Defendant's Final Agency Decision ("FAD") states that Plaintiff requested assignment to
Dover, Delaware from April 2009 through September 2009 for cancer treatment for a finite
period. (D.I. 2). Due to the finite period of treatment, Plaintiffs detail in Dover was temporary.
The FAD also described how Plaintiffs May 1, 201 0 request for reasonable accommodation
failed to include abnormal cell growth.
No new facts have been added to the record suggesting that Plaintiffhas taken steps to
exhaust her administrative remedies between the date of this Court's memorandum opinion on
November 30, 2012 and the filing ofthe Third Amended Complaint on July 7, 2013.
Defendant's Motion to Dismiss Count One of the Third Amended Complaint to the extent that it
continues to include allegations regarding cancer and an impairment to normal cell growth is
granted.

III. Amendment of Caption
Carolyn W. Colvin is the successor to Michael J. Astrue as Acting Commissioner of
Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin's name

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shall be substituted as the appropriate party going forward. Defendant's Motion to Amend the
Caption is granted.

CONCLUSION
For the reasons discussed above, the Defendant's Motion to Dismiss the Third Amended
Complaint is granted in regards to impairment of normal cell growth and denied in regards to an
alleged driving impairment. The Defendant's Motion to Amend Caption is granted. An order
consistent with this opinion will be issued.

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