Moseley v. Lynch

Filing 36

ORDER granting Defendant's 20 Motion to Dismiss, and Plaintiff's claims are dismissed. Signed by Judge Lisa G. Wood on 11/17/2017. (ca)

3n tbt Oatttteli Stated Idisttdct Cimtt
for tl^e ^ont^em Biittrfct of ^eorgfa
Pnttnifoftk IStfifOioit
GARY G. MOSELEY, JR,

Plaintiff,
V.

CV 216-153

JEFF SESSIONS,

attorney general, U.S.

Department of Justice
Defendants.
ORDER

This

matter

comes before

the

Court

on

Defendant's

Rule

12(b)(6) Motion to Dismiss for failure to state a claim upon

which relief may be granted.

Dkt. No. 20.

fully briefed and is ripe for review.

This Motion has been

For the reasons stated

below, the Motion is (SLANTED.
BJUaCGROUND

At this stage of the case, the allegations of the complaint
are accepted as true pursuant to Federal Rule of Civil Procedure
12(b)(6).
on

Plaintiff Gary Moseley, Jr. sued the Attorney General

November

16, 2016, for

violations of the /Americans

Disabilities Act (^^ADA"), 42 U.S.C. § 12112 to 12117.

1.

with

Dkt. No.

Because the ADA does not apply to employment by the federal

government or its agencies, and Plaintiff's claims are against a
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federal employer—the Bureau of Prisons/ and consequently/ the

Department

of

Justice-his

claims

are

governed

Rehabilitation Act/ 29 U.S.C. §701/ et seq.

by

the

See Spence

Straw, 54 F.3d 196/ 202 (3d Cir. 1995) (^MT]he Rehabilitation

Act provides the exclusive means by which a litigant may raise
claims of discrimination on the basis of handicap by federal

agencies.").

Specifically/

Moseley has brought claims for

termination/ failure to accommodate, retaliation, and hostile
work

environment

from

his

employment

Correctional Institute in Jesup, Georgia.

with

the

Federal

Dkt. No. 1, III.A,

III.C.

Moseley alleges that he was injured in October 2012 and
suffered the permanent injury of nerve damage to the left
dominant arm in March 2013.

Id. at III.E 25 1-2.

Moseley

further alleges that after he was sent for a functional capacity
evaluation in August 2013, he was denied an accommodation and
filed a grievance.
not

^^fit

for

employment.
help

with

letter."

He was then told in October 2013 that he was

duty"

and

Id. 5^1 4-6.
stress,

and

Id. 52 7-8.

could

not

work

at

his

place

of

That same month, he contacted EAP for
the

union

stopped

his

^^eight

point

After that, he was placed in a mental

hospital due to stress and diagnosed with Post Traumatic Stress
Disorder

{^'PTSD") and *^major depressive disorder."

Id. 5 9.

While there, the prison decided he could return to work **full
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duty."

SI 10.

But when he left the hospital, DR^ said he

could no longer work at his employment.

Id. SI 11.

a worker's compensation claim, which was denied.

So he filed
Id.

At this

point, Moseley was told he could not file an EEO claim for an
accommodation.

Id. SI 12.

He ran out of leave, and was approved

for eighty hours. Id. SI 13.

Upon request, he delivered a leave

without pay memorandum to the prison.

the

prison,

Moseley

requested

Id. SI 14.

his

On a call from

retirement

benefits,

explaining that he needed more money after the denial of his
worker's compensation claim.
approved in November 2014.

Id. SI 15.

His retirement was

Id. SI 16.

Meanwhile, Moseley received a bill from the prison for

approximately $3,100 for unpaid insurance premiums while on
leave without pay.

Id. SI 17.

Moseley now seeks the "same

retirement as Suzanne Hastings retroactive to retirement date,"
and to have his student loans paid off and his child's college
paid for.

Dkt. No. 1-3, V.
LEGAL STANDARD

Federal

Rule

of

Civil

Procedure

8(a)

requires

that

a

plaintiff's complaint contain "a short and plain statement of the
claim showing that the pleader is entitled to relief."

Fed. R.

Civ.

brought

P.

8(a).

When

ruling

on

a

motion

to

dismiss

pursuant to Rule 12(b)(6), a district court must accept as true
^ The Complaint does not further identify who DR is.
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the facts set forth in the complaint and draw all reasonable

inferences in the plaintiff's favor.

Randall v. Scott/ 610 F.3d

701, 705 (11th Cir. 2010). Although a complaint need not contain
detailed factual allegations, it must contain ''enough facts to
state a claim to relief that is plausible on its face."

BqH

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

"A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference

that

alleged."

the

defendant

is

liable

for

the

misconduct

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The

Court accepts the allegations in the complaint as true and draws
all reasonable inferences in favor of the plaintiff.

Ray v.

Spirit Airlines, Inc., 836 F.3d 1340, 1347 (11th Cir. 2016).

However, the Court does not accept as true threadbare recitations
of the elements of the claim and disregards legal conclusions

unsupported by factual allegations.
At a minimum,
inferential

Igbal, 556 U.S. at 678-79.

a complaint should "contain either direct or

allegations

respecting

all

the

material elements

necessary to sustain a recovery under some viable legal theory."
Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-

83 (11th Cir. 2007) (per curiam) (quoting Roe v. Aware Woman Ctr.
for Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)).

"Pro se pleadings are held to a less stringent standard than

pleadings drafted by attorneys."
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Boxer X v. Harris, 437 F.3d

1107, 1110 (11th Cir. 2006) (emphasis in original) (quoting
Hughes v. Lott, 350 F.Sd 1157, 1160 (11th Cir. 2003)).
DISCOSSION

Defendant filed a Motion to Dismiss Plaintiff's complaint
for failure to state a claim.

Defendant argues that Plaintiff's

claims are barred because he failed to exhaust his administrative

remedies.

It further argues that even if Plaintiff sufficiently

exhausted

his

administrative

remedies,

his

claims

should

be

dismissed for failure to state claims upon which relief may be
granted.
I.

Esdiaustion of Adzninistra'tive Remedies

Before a plaintiff may file a suit for discrimination in
federal court, he must exhaust his administrative remedies.

In

fact, administrative exhaustion is a jurisdictional prerequisite
to discrimination cases.

1326 (11th Cir. 1999).

Crawford v. Babbitt, 186 F.3d 1322,

Specifically, three requirements must be

met: (1) the plaintiff must contact an agency's Equal Employment

Opportunity ("EEC") counselor
discrimination;

(2) he

within

must file

a

45 days of the alleged

complaint

with

the

agency

within 15 days of the notice of his right to do so; and (3) he
must sue within 90 days of the agency's final decision or after
180 days have elapsed from the filing of his complaint with the
EEOC if no final action has been taken.

42 U.S.C. § 2000e-16(c);

29 C.F.R. §§ 1614.105(a)(1), 1614.106(b), 1614.407.

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Indeed, a plaintiff must administratively exhaust each and
every claim be brings in federal court. It is not enough that he
raised one of the claims with the agency.

Each claim brought in

federal court must have been brought before the agency.

See

Thompson v. West, 883 F. Supp. 1502, 1507 (M.D. Ala. 1995).

And,

^'a plaintiff's judicial complaint is limited by the scope of the
EEOC investigation which can reasonably be expected to grow out

of the charge of discrimination."

Gregory v. Ga. Dep't of Human

Resources, 355 F.3d 1277, 1280 (11th Cir. 2004).

In conducting this analysis, dates matter. The 45 day clock
starts running from the date of the alleged discrimination.
Therefore, the Court must ascertain the alleged date of the

alleged discrimination for each of Moseley's four claims.

The

operative date for discrete acts of discrimination is the date a

plaintiff learns of the discrete act, if it is later than the
date the act was taken.

See Shiver v. Chertoff, 549 F.3d 1342

(11th Cir. 2008) (holding timely the administrative complaint of

a plaintiff who had contacted EEO counselor within 45 days of the
date on which he learned his demotion was effective)
.

For his termination claim, the 45-day clock starts running

on Moseley's last day of employment.

For the claim of failure to

accommodate, the clock starts when he learned that his request
for an accommodation was denied.

For his retaliation claim, the

clock starts when the prison took a tangible employment action
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against him in retaliation of his engaging in a protected
activity.

The date of alleged discrimination in a hostile work

environment claim is less straightforward.

It involves the

continuing violations doctrine—that iS/ the clock starts on the

day of the last event contributing to a hostile work environment.
Smiley v. Ala. Dep^t of Transp.r 778 F. Supp. 2d 1283, 1295 (M.D.

Ala.

2011).

Still,

the

events

supporting

a

hostile

work

environment claim cannot arise after the last day of employment.

Here, Plaintiff claims that the prison discriminated against
him until his retirement.^

Dkt. No. 8-3, II.2.

His last day of

employment serves as the operative date for his termination,

retaliation,

and

hostile

work

environment

claims.^

Unfortunately, his complaint does not clearly identify what this
date

was.

The

retirement in

complaint states that

November 2014.^

he

was

approved for

Dkt, No. 1-3 51 16.

Because

^ Defendant argues that the "Pre-Exit Clearance Form" attached to Plaintiff's
complaint makes clear that he separated from employment with the prison on
November 1, 2014. While the form suggests as much, by its own name, it is
forward-looking to the date of retirement rather than backward looking. In
light of this equivocation in the form itself and the Court's obligation to
draw all reasonable inferences in favor of Plaintiff, the Court cannot reach

the same conclusion as the one made by Defendant at the motion to dismiss
stage.

^ Indeed, it is possible that the alleged discrimination occurred much earlier
for the retaliation and hostile work environment claims.

The problem with

assessing these claims is that the complaint does not clearly identify the
alleged discriminatory conduct for these claims. At bottom, though, the
discrimination would have to have occurred during Moseley's employment.

'' Plaintiff s responsive brief explains that while he was approved for
retirement in November 2014, his actual retirement date was much earlierDecember 29, 2013. Dkt. No. 25, E.l. On a motion to dismiss, the Court is

instructed to use only the allegations in the complaint itself. It is also
required to draw all reasonable inferences in Plaintiff's favor. Randall v.
Scott, 610 F.Sd at 705.

Because of these two requirements, the Court will

Moseley does not allege a specific date in November and the Court
must draw all reasonable inferences in Moseley's favor at this

stage of the case, the Court will treat this as an allegation
that Moseley retired on the last day of November: November 30,
2014.

45 days from November 30, 2014 is January 14, 2015.

This

is the date, at the very latest, by which Moseley needed to

initiate

counseling

environment,

and

discrimination

can

for

his

retaliation
occur

termination,

claims

after

an

hostile

because

no

employee's

work

employment

last

day

of

employment.

The exhibits to the complaint show that he requested an EEC

counselor on January 22, 2015.

Dkt. No. 8-3, p. 2.

after the deadline required by EEOC regulations.

Moseley

failed

to

administratively

exhaust

his

This was
Therefore,

claims

for

termination, retaliation, and hostile work environment.

The claim of failure to accommodate presents a different

analysis.

The only action taken by the prison against Moseley

that may fall within the 45-day time limit is the bill from the
prison for unpaid insurance premiums while on leave without pay.
The complaint does not clearly state what date Moseley received
this bill.

The bill itself is dated November 16, 2014 with a due

date of December 10, 2014, and Moseley acknowledged receipt of it
on

December 31, 2014.

Dkt. No. 8-30, p. 4-5. In any event,

disregard the December 29, 2013-more harmful to Plaintiff—date in assessing
the timeline for administrative exhaustion.

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Moseley followed it up with a request for an itemized statement
and copies of his time and attendance records, dated December 31,
2014.

Dkt. No. 8-30, p. 3.

He alleges that he did not receive a

response with notice of a denial of that request until January

26, 2015.

Dkt. No. 8-3, p.4.

If true, and using this denial as

the denial of a request for an accommodation, then Plaintiff met

the first requirement for exhaustion of remedies for his claim of
failure to accommodate.

Next, a notice of his right to file a formal complaint was
sent on February 23, 2015.

Dkt. No. 8-2.

He then filed the

complaint with the agency within 15 days, on March 4, 2015.
No. 8-3.

The second requirement is met.

The Department of

Justice issued a final action order on October 31, 2016.

No. 1-1, p. 1.

Dkt.

Dkt.

While Plaintiff has not attached the Notice of

the Right to Sue letter from the Equal Employment Opportunity
Commission, he alleges that he received it on November 7, 2016.
Dkt.

No.

1-3,

IV.B.

Plaintiff filed

the

November 16, 2016, well within ninety days.

present action on
Dkt. No. 1.

The

third requirement is met, and the Court finds that Plaintiff
exhausted his administrative remedies.

II.

Moseley's failure to aooonmodate olaim

To state a prima facie claim of failure to accommodate a
plaintiff must allege (1) that he is disabled; (2) that he is a

qualified individual; and (3) that he experienced discrimination

through

the

defendant's

accommodation.

failure

to

provide

a

reasonable

McKane v. UBS Fin. Servs., Inc./ 363 Fed. Appx.

679, 681 (11th Cir. 2010).

*^The plaintiff bears the burden of

demonstrating that the accommodation allows him to perform the

job's essential functions." Id. (quoting Lucas v. W.W. Grainqer,
Inc., 257 F.3d 1249, 1255-56 (11th Cir. 2001)).

Here, Moseley has not alleged that he was discriminated

against by way of the defendant's failure to provide a reasonable
accommodation.

Even assuming that he has sufficiently alleged

that he was disabled and that he was qualified, he has not shown
a reasonable accommodation that would have enabled him to perform

his job.

He simply alleges that he was told he couldn't file ^^an

EEO on accommodation" (Dkt. No. 1-1 f 12) without stating what

accommodation he sought, the manner in which he requested it,
facts showing that it was reasonable, or that Defendant denied
him that reasonable accommodation.

Nor does Moseley allege that

any accommodation he could have received would allow him to
''return to work full duty."

Id. S 10.

Drawing all reasonable

inferences in favor of the plaintiff, the only way that Moseley's
complaint suggests that Defendant failed to accommodate him is by
billing him for unpaid insurance premiums while on leave without
pay.

Id. 5 17.

And this is the only discrete act alleged to be

taken against him of which he timely complained.
statute,

regulations,

or

case

law

10

suggests

Nothing in the

that

billing

an

employee for medical services amounts to a failure to provide a
reasonable

accommodation.

In

fact,

the

allegations

of the

complaint themselves show that he was not denied any medical
leave that he requested.

Specifically, after he ran out of

leave, he was approved for 80 hours.

Id. !I 13.

requested leave without pay through a memo.

And then he

Id. 5 14.

complaint does not allege that such leave was denied.

The

Therefore,

even if Moseley properly exhausted his administrative remedies,
his cause of action fails for failing to state facts supporting
an essential element of a claim for failure to accommodate.
CONCLUSION

For these reasons. Defendant's Motion to Dismiss (Dkt. No.

20), is hereby GRANTED, and Plaintiff's claims are dismissed.

SO ORDERED, this 17th day of November, 2017.

HON. «:iSA'GODBEYlWOOD
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

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