Miller v. Donahoe

Filing 14

ORDER: the Court ADOPTS in part and REJECTS in part the 11 Non-Final Report and Recommendation. The Court GRANTS Defendant's Motion to Dismiss 9 to the extent that Plaintiff's claims under the Americans with Disabilities Act and theReha bilitation Act are hereby DISMISSED, and the Court DENIES Defendant'sMotion to Dismiss 9 to the extent that all other claims shall be permittedto proceed as set forth in the R&R. Defendant's earlier-filed Motion to Dismiss 7 is hereby DENIED as moot. Signed by Judge Clarence Cooper on 3/30/16. (bjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
OSCAR WAYNE MILLER,
Plaintiff,
vs.
MEGAN J. BRENNAN,
POSTMASTER GENERAL, UNITED
STATES POSTAL SERVICE,
Defendant.

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CIVIL ACTION NO.
1:15-CV-0079-CC

OPINION AND ORDER
This case is before the Court on the Non-Final Report and Recommendation
[Doc. No. 11] (the “R&R”) issued by Magistrate Judge Justin S. Anand on November
3, 2015. For the reasons set forth below, the R&R is ADOPTED in part and rejected
in part.
I.

BACKGROUND
Plaintiff Oscar Wayne Miller (“Plaintiff”), who is proceeding pro se and has

filed both a Complaint [Doc. No. 4] and an Amended Complaint [Doc. No. 8],
brings claims in this action against Megan J. Brennan,1 Postmaster General for the
United States Postal Service (“Defendant”). Plaintiff asserts or has previously
asserted in this action that he has been discriminated against based on his race, sex,
age, and disability and that he has been retaliated against for having made
complaints about the alleged discrimination. The statutes pursuant to which
Plaintiff seeks or earlier sought to bring his claims include the American with
Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq., Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e, et seq., Section 501 of the Rehabilitation Act of 1973, 29
While Plaintiff originally brought this action against Patrick R. Donahoe,
Megan J. Brennan is the current Postmaster General for the United States Postal Service and
is automatically substituted as the Defendant in this case. See Fed. R. Civ. P. 25(d).
Therefore, the Court DIRECTS the Clerk of Court to amend the style of the case
accordingly.
1

U.S.C. §§ 791, et seq., and the Age Discrimination in Employment Act of 1967, 29
U.S.C. §§ 627, et seq.
Defendant has moved to dismiss both the Complaint and Amended
Complaint. (See Doc. Nos. 7, 9.) Magistrate Judge Anand recommends that
Defendant’s Motion to Dismiss the original Complaint be denied as moot and that
Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint (the “Motion to
Dismiss”) be granted in part and denied in part. Specifically, Magistrate Judge
Anand recommends that the Motion to Dismiss be granted as to Plaintiff’s claims
under the Americans with Disabilities Act and that the Motion to Dismiss be denied
as to Plaintiff’s other claims but only to the limited extent set forth in the R&R. On
November 17, 2015, Defendant filed objections to the R&R. (See Doc. No. 13.) The
R&R and Defendant’s objections are now ripe for the Court’s review.
II.

STANDARD OF REVIEW
After reviewing a magistrate judge’s findings and recommendations, a district

judge may accept, reject, or modify the findings or recommendations. 28 U.S.C. §
636(b)(1). A party challenging a report and recommendation must “file . . . written
objections which shall specifically identify the portions of the proposed findings and
recommendation to which objection is made and the specific basis for objection.”
Macort v. Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (citation and internal
quotation marks omitted); see also Fed. R. Civ. P. 72(b)(2). A district judge “shall
make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” Jeffrey S. v. State Bd. of
Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (citation omitted). The district judge
must “give fresh consideration to those issues to which specific objection has been
made by a party.” Id. “Frivolous, conclusive, or general objections need not be
considered by the district court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir.
1988) (citation omitted). Those portions of a report and recommendation to which
an objection has not been made are reviewed for plain error. United States v. Slay,
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714 F.2d 1093, 1095 (11th Cir. 1983).
III.

DISCUSSION
A.

Leave Without Pay

The primary issue impacting the viability of several of Plaintiff’s claims is
whether Plaintiff has alleged a cognizable adverse employment action, which would
permit Plaintiff’s employment discrimination and retaliation claims to proceed.
Magistrate Judge Anand determined that all but one of the adverse employment
actions about which Plaintiff complains failed to rise to the level of “[a] tangible
employment action constitu[ing] a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Davis v.
Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis in original).
The employment action that Magistrate Judge Anand found to be materially adverse
was Plaintiff’s being forced to take leave without pay for nearly an entire day of
work that he was scheduled, ready, willing, and able to perform. (See R&R at 17-20.)
In the objections to the R&R, Defendant urges the Court to consider new
arguments and evidence relevant to this adverse employment action, which
Defendant did not present to Magistrate Judge Anand. While district courts may
consider new evidence and arguments raised for the first time in an objection to a
recommendation, they are not obligated to do so. Williams v. McNeil, 557 F.3d 1287,
1292 (11th Cir. 2009) (“a district court has discretion to decline to consider a party’s
argument when that argument was not first presented to the magistrate judge”).
This Court declines to consider Defendant’s new arguments and evidence, which
Defendant easily could have presented when Defendant first filed the Motion to
Dismiss Plaintiff’s Amended Complaint.
Based on a de novo review of the record, as it existed at the time that
Magistrate Judge Anand considered Defendant’s Motion to Dismiss Plaintiff’s
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Amended Complaint, the Court agrees with Magistrate Judge Anand’s analysis and
conclusion that Plaintiff’s allegations concerning his being forced to take leave
without pay are sufficient at the motion to dismiss stage to establish a materially
adverse employment action.

In Defendant’s Memorandum in Support of

Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint, Defendant only
generally addressed the issue of whether being forced to take leave without pay
constitutes an adverse employment action and argued, without citing any legal
authority, that it did not.2 (See Mem. Supp. of Def.’s Mot. to Dismiss Pl.’s Am.
Compl. [Doc. No. 9-1] at 12.) However, several courts have concluded that forcing
an employee to take leave without pay may constitute an adverse employment
action because it directly affects the employee’s compensation. Franklin v. Potter,
600 F. Supp. 2d 38, 72 (D.D.C. 2009) (“[B]eing sent home without pay, as was the
case here, would satisfy a prima facie case for a materially adverse action.”); Johnson
v. Alice Ind. School Dist., No. C-12-170, 2012 WL 4068678, at *3 (S.D. Tex. Sept. 14,
2012) (“While administrative leave, by itself, may not constitute an adverse
employment action, being placed on administrative leave without pay does.”);
Morales v. Ga. Dep’t of Human Res., No. 7:08-156 (HL), 2010 WL 4639279, at *13
(M.D. Ga. Nov. 8, 2010) (collecting cases holding that requiring an employee to take
leave without pay could be considered an adverse employment action); Wingfield
v. S. Univ. of Fla., Inc., No. 8:09-cv-01090-T-24-TBM, 2010 WL 2465189, at *13 (M.D.
Fla. June 15, 2010) (holding that forcing an employee to take leave without pay alters
the employee’s compensation and the terms, conditions, and privileges of the
employee’s employment); White v. Potter, No. 1:06-CV-1759-TWT, 2007 WL
1330378, at *11 (N.D. Ga. Apr. 30, 2007) (concluding that the defendant’s
requirement that the plaintiff take leave without pay constituted a materially
Most of Defendant’s analysis and cited legal authorities focused on whether
an employee’s placement on or being charged with AWOL status constitutes an adverse
employment action.
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adverse action under the circumstances); Kinsey v. City of Jacksonville, No. 3:01 CV
785, 2005 WL 3307211, at *8 (M.D. Fla. Dec. 6, 2005) (“Requiring an employee to take
leave without pay could be considered an adverse employment action as it directly
affects the employee’s compensation.”), aff’d 189 F. App’x 860 (11th Cir. 2006).
Therefore, at this stage of the litigation, the allegations that Plaintiff had to take leave
without pay when he was present and ready to work are sufficient to constitute an
adverse employment action supporting a prima facie case of discrimination and
retaliation.3
B.

Rehabilitation Act Claims

Defendant next objects to Magistrate Judge Anand’s recommendation that the
Court permit claims under the Rehabilitation Act to proceed. Defendant argues that
Plaintiff did not allege any such claims in Plaintiff’s Amended Complaint. The
Court agrees with Defendant and sustains this objection.

In the Amended

Complaint, Plaintiff makes no mention of the Rehabilitation Act or any claims based
on an alleged disability. As acknowledged in the R&R, “an Amended Complaint
completely supersedes the original and becomes the operative pleading.” (R&R at
9 (citing Lowery v. Ala. Power Co., 483 F.3d 1184, 1219, (11th Cir. 2007)). Therefore,
to the extent that Plaintiff has not withdrawn his Rehabilitation Act claims, those
claims are due to be dismissed.
IV.

CONCLUSION
In sum, except for the Magistrate Judge’s intimation that Plaintiff’s

Rehabilitation Act claims should survive Defendant’s Motion to Dismiss, the Court
finds that the R&R is correct both in fact and in law. Therefore, based on the

The Court infers that Plaintiff was present at his scheduled time for work and
that the facility opened late, since Defendant allegedly compensated Plaintiff for the
inconvenience of wait time. These allegations and inferences ultimately may be disproved,
but they are sufficient at this juncture to permit Plaintiff’s claims to survive Defendant’s
Motion to Dismiss.
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information and arguments that were presented to the Magistrate Judge, the Court
ADOPTS in part and REJECTS in part the R&R.
The Court GRANTS Defendant’s Motion to Dismiss [Doc. No. 9] to the extent
that Plaintiff’s claims under the Americans with Disabilities Act and the
Rehabilitation Act are hereby DISMISSED, and the Court DENIES Defendant’s
Motion to Dismiss [Doc. No. 9] to the extent that all other claims shall be permitted
to proceed as set forth in the R&R.
Defendant’s earlier-filed Motion to Dismiss [Doc. No. 7] is hereby DENIED
as moot.
SO ORDERED this 30th day of March, 2016.

s/ CLARENCE COOPER
CLARENCE COOPER
SENIOR UNITED STATES DISTRICT JUDGE

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