SNEED v ESPER
Filing
13
ORDER granting 7 Motion to Dismiss Complaint Ordered by US DISTRICT JUDGE CLAY D LAND on 10/19/2018 (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
LAKEISHA M. SNEED,
*
Plaintiff,
*
vs.
*
MARK T. ESPER, Secretary,
Department of the Army, United
States of America,
*
Defendant.
CASE NO. 4:17-CV-232 (CDL)
*
*
O R D E R
Plaintiff Lakeisha Sneed is a former civilian employee of
the U.S. Army.
Sneed claims that she was subjected to racial
discrimination, racial harassment, retaliation, and constructive
discharge.
Sneed brought this action under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to
2000e-17, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and Title I of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 to
12117.
She also asserts claims for intentional infliction of
emotional
distress
and
negligent
supervision.
Defendant
Secretary of the Army Mark Esper moved to dismiss all of Sneed’s
claims (ECF No. 7).
In response, Sneed agreed that she cannot
bring claims against Defendant under the ADA, § 1981, or § 1983.
Defendant’s motion to dismiss those claims is therefore granted.
And, for the reasons set forth below, Defendant’s motion to
dismiss Sneed’s other claims is also granted.
MOTION TO DISMISS STANDARD
“To survive a motion to dismiss” under Federal Rule of
Civil Procedure 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
The complaint must include sufficient factual
allegations “to raise a right to relief above the speculative
level.”
Twombly, 550 U.S. at 555.
In other words, the factual
allegations must “raise a reasonable expectation that discovery
will reveal evidence of” the plaintiff’s claims.
Id. at 556.
But “Rule 12(b)(6) does not permit dismissal of a well-pleaded
complaint simply because ‘it strikes a savvy judge that actual
proof
of
those
facts
is
improbable.’”
Watts
v.
Fla.
Int’l
Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly,
550 U.S. at 556).
FACTUAL BACKGROUND
Sneed alleges the following facts in support of her claims.
The Court must accept these allegations as true for purposes of
the pending motion.
Sneed is an African American woman.
In December 2011, the
Army hired her as an inpatient psychiatric unit nurse.
2
Sneed
asserts that she has a disability because she suffers from post
traumatic stress disorder, major depressive disorder, anxiety
disorder, and unresolved grief due to an assault that occurred
at a prior place of employment (collectively, “disorders”).
In
April 2012, Sneed “was left on her unit without a male employee
on her shift.”
Compl. ¶ 16, ECF No. 1. After that incident, she
requested an accommodation, although it is not clear from the
Complaint what accommodation she requested.
In September 2012,
another employee was assaulted by a patient in Sneed’s presence,
which triggered her disorders and caused her to have a panic
attack that left her unable to work for a month and a half.
While Sneed was on medical leave, her psychologist asked that
Sneed be transferred to a non-inpatient clinic position without
a salary change, but the request was denied.
In October 2013, Sneed had an altercation with a co-worker
after she had a PTSD flashback.
Sneed
was
placed
on
post
As a result of the incident,
restriction,
which
restricted
her
access to Fort Benning for a year.
In May 2014, a patient who had assaulted Sneed when she
worked at a different facility was admitted to Sneed’s inpatient
unit.
Sneed informed her supervisors of the issue and left the
hospital;
Sneed’s
she
took
leave
until
the
psychologist
again
asked
that
3
patient
Sneed
be
was
released.
removed
from
inpatient to an outpatient position without a salary change.
The request was denied.
In July 2014, the Army reassigned Sneed to an outpatient
position, which resulted in a pay decrease and a schedule change
that made it difficult for her to go to doctor’s appointments
without taking leave.
In September 2014, the Army reassigned
Sneed to the neurology clinic, and Sneed lost her student loan
reimbursement.
On March 5, 2015, Sneed filed an administrative complaint
with the Army’s Equal Employment Opportunity Office (“EEOO”).1
In the administrative complaint, Sneed complained that she had
been
subjected
disability
to
race
discrimination,
discrimination,
hostile
sex
work
discrimination,
environment,
and
retaliation when (1) she was denied a reasonable accommodation
in April 2012, (2) she was verbally counseled in June 2014, (3)
her post restriction was extended in January 2015, and (4) she
was
demoted
in
January
2014.
The
1
Army
dismissed
Sneed’s
In her Complaint, Sneed does not make any specific allegations about
her exhaustion of administrative remedies. She alleges that she filed
a charge of discrimination with the EEOC and received a right-to-sue
letter, and she states that those documents are attached to the
Complaint.
Compl. ¶ 7.
They are not.
Defendant attached to his
motion to dismiss copies of two final agency decisions regarding an
administrative complaint Sneed filed in March 2015, and Sneed does not
challenge the authenticity of those documents.
Therefore, the Court
may consider them in ruling on the present motion.
See Horsley v.
Feldt, 304 F.3d 1125, 1134 (stating that a document attached to a
motion to dismiss may be considered by the court without converting
the motion into one for summary judgment “if the attached document is:
(1) central to the plaintiff's claim; and (2) undisputed” in terms of
its authenticity).
4
administrative
complaint,
and
Sneed
appealed
to
the
Equal
Employment Opportunity Commission’s (“EEOC”) Office of Federal
Operations.
The
EEOC
reversed
the
Army’s
decision
and
in
September 2015 remanded the matter back to the Army for further
processing.
In
October
assignments
in
2015,
the
the
inpatient
Army
asked
and
Sneed
outpatient
to
return
clinics.
to
Sneed
requested a safety plan, but it was not provided and Sneed’s
PTSD symptoms were exacerbated.
Sneed requested extended sick
leave and to be placed on a leave donation program.
Sneed
worked for the Army until March 2016; she alleges that she was
constructively discharged.
an
administrative
Sneed does not assert that she filed
complaint
based
on
alleged
constructive
discharge.
On March 3, 2017, the EEOC docketed a petition to enforce
its September 2015 remand order.
On March 31, 2017, the Army
issued a Final Agency Decision based on its investigation of
Sneed’s March 2015 administrative complaint.
that
the
record
did
not
support
Sneed’s
The Army concluded
claim
that
she
was
subjected to disparate treatment or a hostile work environment
because of any protected trait and also did not support Sneed’s
claim that she was subjected to retaliation.
But the Army did
find that the Army’s delay in addressing Sneed’s request for a
reasonable accommodation violated the Rehabilitation Act, and
5
the Army directed Plaintiff to submit documentation in support
of her claim for compensatory damages.
Sneed did not appeal the
Army’s findings on her discrimination and retaliation claims,
but
she
did
submit
documentation
in
support
Rehabilitation Act claim for compensatory damages.
submitted
her
documentation,
the
Army
issued
a
of
her
After Sneed
second
Final
Agency Decision on July 6, 2017, concluding that Sneed had not
submitted
evidence
to
establish
that
she
was
entitled
to
compensatory damages caused by the Army’s delay in accommodating
her accommodation requests.
Sneed appealed that decision to the
EEOC on July 28, 2017, and that appeal is still pending.
On
August 29, 2017, the EEOC concluded that its petition to enforce
the September 2015 remand order was moot based on the Army’s
issuance of the March 31, 2017 final agency decision.
filed
this
Defendant,
action
on
motivated
discrimination,
November
by
denied
her
27,
race
her
2017.
and
Sneed
complaints
requests
for
Sneed
claims
of
that
racial
disability
accommodations and subjected her to a hostile work environment
that culminated in constructive discharge.
DISCUSSION
I.
Title VII Discrimination,
Retaliation Claims
Hostile
Work
Environment,
and
Defendant asserts that Sneed’s Title VII discrimination,
hostile
work
environment,
and
retaliation
6
claims
should
be
dismissed because she did not file this action within ninety
days after she received the Army’s March 31, 2017 final agency
decision.
did
not
That final agency decision concluded that the record
support
Sneed’s
claim
that
she
was
subjected
to
disparate treatment or a hostile work environment because of any
protected trait and also did not support Sneed’s claim that she
was subjected to retaliation.
Title VII provides a right of action for federal employees
claiming
unlawful
employment
practices
and
waives
immunity for such claims. See 42 U.S.C. § 2000e-16(c).
sovereign
Before a
federal employee may bring a Title VII suit, the employee must
“initiate administrative review of any alleged discriminatory or
retaliatory conduct.” Shiver v. Chertoff, 549 F.3d 1342, 1344
(11th
Cir.
2008)
§ 1614.105(a)(1).
(per
curiam);
accord
29
C.F.R.
Once an agency renders a final action on a
federal employee’s administrative complaint, the employee may
appeal that action to the EEOC within thirty days of receiving
notice
of
the
final
action.
29 C.F.R. §§ 1614.401(a)
&
1614.402(a).
Or, if the employee does not appeal to the EEOC,
the
may
employee
receiving
file
notice
a
civil
of
the
42 U.S.C. § 2000e-16(c);
action
within
agency’s
ninety
final
29 C.F.R. § 1614.407(a).
days
of
action.
The
Army’s
March 31, 2017 final decision informed Sneed of these deadlines.
7
Sometime before July 6, 2017, Sneed received the March 31,
2017 final decision and complied with its directive to submit
evidence in support of her claim for compensatory damages.
But
she did not appeal the Army’s March 31, 2017 final decision.
And,
she
did
not
file
this
action
within
receiving notice of that final decision.
ninety
days
after
Sneed argues that the
March 3, 2017 petition to enforce the EEOC’s September 2015
remand order stayed her administrative complaint before the Army
until
August
29,
2017,
when
the
EEOC
determined
that
the
petition to enforce was moot based on the Army’s March 31, 2017
final agency decision.
support
petitions
of
this
for
Sneed did not cite any authority in
position.
enforcement,
provide for a stay.
The
29
regulation
C.F.R. §
providing
1614.503,
does
for
not
It also does not suggest that the EEOC’s
decision on a petition for enforcement restarts the clock for an
employee
to
appeal
or
file
suit
following
a
final
agency
decision that is entered in response to the filing of a petition
for enforcement.
Furthermore, Sneed appears to have understood
that the Army’s March 31, 2017 final decision was not stayed
because she complied with its directive to submit evidence in
support of her claim for compensatory damages.
In summary, Sneed’s Title VII discrimination, hostile work
environment, and retaliation claims are dismissed because she
8
did not file this action within ninety days after she received
the Army’s March 31, 2017 final agency decision.
II.
Constructive Discharge Claim
Defendant
argues
that
Sneed’s
Title
VII
constructive
discharge claim should be dismissed because she did not present
it to the Army’s EEOO for investigation.
Sneed did not respond
to this argument.
Again, before a federal employee may bring a Title VII
suit, the employee must “initiate administrative review of any
alleged
discriminatory
or
retaliatory
conduct
with
the
appropriate agency within 45 days of the alleged discriminatory
act.”
Shiver,
549
§ 1614.105(a)(1).
F.3d
at
“Generally,
1344;
when
accord
the
29
claimant
C.F.R.
does
not
initiate contact within the 45-day charging period, the claim is
barred for failure to exhaust administrative remedies.”
549 F.3d at 1344.
a
hostile
work
Shiver,
Here, Sneed claims that she was subjected to
environment
that
culminated
in
constructive
discharge in March 2016.
Although
Sneed’s
March
2015
administrative
complaint
alleges that she was subjected to a hostile work environment, it
does not allege constructive discharge.
Sneed does not assert
that she filed another administrative complaint based on alleged
constructive discharge.
Therefore, her constructive discharge
claim is barred for failure to exhaust administrative remedies.
9
Furthermore, even if the Court found that Sneed’s constructive
discharge was within the scope of her March 2015 administrative
complaint because the claim grew out of the conduct underlying
her
hostile
work
environment
claim
and
the
Army
had
an
opportunity to investigate this claim because it did not issue a
final
agency
until
a
decision
year
after
on
the
Sneed
hostile
alleges
work
she
environment
was
claim
constructively
discharged, Sneed’s constructive discharge claim would be barred
for failure to file this action within ninety days of receiving
notice of the final agency decision, as discussed supra § I.
III. Claims for Intentional Infliction of Emotional Distress and
Negligent Supervision
Defendant
infliction
should
be
of
contends
that
emotional
dismissed
Sneed’s
distress
because
claims
and
Sneed
for
intentional
negligent
supervision
did
not
exhaust
her
administrative remedies as required by Federal Tort Claims Act,
28 U.S.C. § 2675(a).
Sneed did not respond to this argument.
Sneed’s exclusive remedy for personal injury arising from
an
alleged
tort
committed
by
an
employee
of
the
federal
government is an action against the United States pursuant to
the
Federal
Tort
Claims
Act.
28
U.S.C. §
2679(b).
Before
filing suit under the Federal Tort Claims Act, a plaintiff must
first present her claim to the appropriate federal agency, and
that
claim
must
“have
been
finally
10
denied
by
the
agency.”
28 U.S.C. § 2675(a).
Sneed does not allege that she submitted
an administrative claim against the Army under the Federal Tort
Claims Act regarding her claims for intentional infliction of
emotional distress and negligent supervision.
Sneed also did
not respond to Defendant’s assertion that she failed to do so.
For
these
reasons,
the
intentional
infliction
supervision
should
be
Court
of
finds
that
emotional
dismissed
Sneed’s
distress
for
claims
and
failure
to
for
negligent
exhaust
administrative remedies.
CONCLUSION
As discussed above, Defendant’s motion to dismiss (ECF No.
7) is granted.
IT IS SO ORDERED, this 19th day of October, 2018.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
11
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