Phillipson v. Jeh Charles Johnson, Secretary U.S. Department of Homeland Security

Filing 38

MEMORANDUM Opinion and Order signed by the Honorable Andrea R. Wood on 3/24/2017. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ERIC PHILLIPSON,
Plaintiff,
v.
JOHN F. KELLY, Secretary of U.S.
Department of Homeland Security,
Defendant.

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No. 14-cv-08138
Judge Andrea R. Wood

MEMORANDUM OPINION AND ORDER
Plaintiff Eric Phillipson has sued Defendant John F. Kelly, in his official capacity as
Secretary of the Department of Homeland Security (“DOHS”), for age discrimination. 1
Phillipson works for the Federal Emergency Management Agency (“FEMA”), which is a
division of DOHS. According to Phillipson’s First Amended Complaint, DOHS discriminated
against him, retaliated against him for his grievance about the discrimination, and subjected him
to a hostile work environment. In particular, Phillipson claims that due to his age DOHS
wrongfully disciplined him, evaluated his job performance as poor, denied him sick leave, and
solicited co-worker complaints about his behavior, all in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Before the Court is Defendant’s motion to
dismiss several of Phillipson’s claims. (Dkt. No. 19.) Phillipson, in turn, has filed a motion
seeking leave to file a second amended complaint. (Dkt. No. 28.) For the reasons that follow, the
Court grants Defendant’s motion to dismiss in part and denies it in part, and also grants
Phillipson’s motion for leave to file a second amended complaint.

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Phillipson’s complaint names as the defendant Jeh Charles Johnson, who was Secretary of DOHS at the
time. John F. Kelly is now Secretary of DOHS. Pursuant to Federal Rule of Civil Procedure 25(d), Kelly
is properly substituted for Johnson as the defendant in this suit.

BACKGROUND
Phillipson is a 49-year-old program analyst for FEMA. (First Am. Compl. ¶ 7, Dkt. No.
18.) He is a member of the bargaining unit subject to FEMA’s collective bargaining agreement
(“CBA”) with the American Federation of Government Employees (“AFGE”). (Id. ¶ 8.) In his
First Amended Complaint, Phillipson describes the following eight discriminatory or retaliatory
incidents that he has suffered while working for FEMA. (Id. ¶ 11.)2
Incident A: On March 18, 2013, Phillipson’s supervisor, Operational Plans Section Chief
Gustav Wulfkuhle, wrote an official reprimand intended for Phillipson’s personnel folder.
(Id. ¶ 11(a); see also Grievance Filing (Apr. 24, 2013) at 1, Ex. 2 of Dkt. No. 20-1 at 69
of 135.) According to the letter, Phillipson was counseled in October 2012 “concerning
[his] manner of dealing with Denise Dukes,” which was characterized as “aggressive,”
“belligerent,” “unacceptable,” and constituting “misconduct.” But Phillipson alleges that
“there was no such counseling in October of 2012.” (Grievance Filing (Apr. 24, 2013) at
1, Ex. 2 of Dkt. No. 20-1 at 69 of 135.)
Incident B: On April 5, 2013, Wulfkuhle wrote an Official Notice of Proposed
Suspension. (First Am. Compl. ¶ 11(b), Dkt. No. 18.) That Notice charged that Phillipson
had been “60 days past due on [his] government issued travel card” as of April 9, 2012.
(Grievance Filing (Apr. 24, 2013) at 1, Ex. 2 of Dkt. No. 20-1 at 69 of 135.) Phillipson
denies that this was true. (Id.)
Incident C: On April 15, 2013, Wulfkuhle evaluated Phillipson’s performance in four job
categories as “Less Than Expected” (“LTE”) because Phillipson failed to complete an
2

Phillipson labels the eight alleged discriminatory or retaliatory incidents with the letters A–H and
Defendant has adopted that convention in the briefing. For ease of reference, this Court does the same. In
addition, for purposes of this discussion, the factual allegations in the First Amended Complaint regarding
the eight incidents have been supplemented with information from Phillipson’s grievance filing and an
Equal Employment Opportunity Commission (“EEOC”) Counselor’s report documenting his informal
EEOC complaint. Although Phillipson did not attach these documents to his First Amended Complaint,
Phillipson references the grievance filing and the “informal EEO complaint” in the First Amended
Complaint, (see First Am. Compl. ¶¶ 23, 33, Dkt. No. 18). The Court adds relevant facts from these
documents for exposition and may consider these facts in ruling on Defendant’s motion to dismiss. Meer
v. Graham, 524 F. Supp. 2d 1044, 1048 (N.D. Ill. 2007) (ruling that district court may consider
documents attached to defendant’s 12(b)(6) motion to dismiss that are referenced in complaint and central
to plaintiff’s claims (citing Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir.
1993)); Leveski v. ITT Educ. Servs., Inc., 719 F.3d 818, 828 (7th Cir. 2013) (stating that district court may
look beyond the allegations of the complaint at submitted evidence in relation to defendant’s 12(b)(1)
motion to dismiss).

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Individual Development Plan (“IDP”). Phillipson alleges that he had completed that IDP.
(First Am. Compl. ¶ 11(c), Dkt. No. 18; see also Grievance Filing (Apr. 24, 2013) at 2,
Ex. 2 of Dkt. No. 20-1 at 69 of 135.)3 After Phillipson received notice that DOHS
proposed to suspend him, Phillipson or his union submitted a response. (First Am.
Compl. ¶ 13, Dkt. No. 18.)
Incident D: On June 21, 2013, Phillipson felt ill at about 9 a.m. and requested sick leave.
After six hours passed without Wulfkuhle’s response, Phillipson notified the only
supervisor present in the office that he intended to leave and then did so. Five days later,
Wulfkuhle instructed Phillipson to carry the sick leave time used as away without leave.
(Id. ¶ 11(d); EEO Counselor’s Rpt. at 4 (Aug. 22, 2013), Ex. 9 of Dkt. No. 20-1 at 120 of
135.)
Incident E: On July 8, 2013, Phillipson learned that FEMA leadership had directed its
Regional Security Officer to call Phillipson’s coworkers to ask if he had been “hostile”
towards them. (First Am. Compl. ¶ 11(e), Dkt. No. 18; see also EEO Counselor’s Rpt. at
2 (Aug. 22, 2013), Ex. 9 of Dkt. No. 20-1 at 120 of 135.)
Incident F: On September 6, 2013, Wulfkuhle again issued Phillipson a Performance
Expectation Letter citing his performance as LTE. (First Am. Compl. ¶ 11(f), Dkt. No.
18.)
Incident G: On September 11, 2013, Wulfkhule attempted to deliver Phillipson’s Second
Quarter Performance Evaluation to him with ratings of LTE in several areas. (Id.
¶ 11(g).)
Incident H: Finally, On September 24, 2013, Wulfkhule denied Phillipson’s request for
sick leave. (Id. ¶ 11(h).)
On April 24, 2013, in response to Incidents A, B, and C, Phillipson sent a letter to Paul
Preusse, the Director of FEMA’s Response Division, to provide “official notice” that he desired
to file a grievance against Wulkuhle because of “a series of incidents that have occurred between
January 28th and April 24th, 2013.” (Grievance Filing (Apr. 24, 2013) at 1, Ex. 2 of Dkt. No. 201 at 69 of 135.) The grievance letter complains that Wulfkuhle made false official statements
about Phillipson as described in Incidents A and B above, and that Wulfkuhle subjected
Phillipson to disparate treatment on account of his age at various times, such as in Incident C.
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According to Wulfkuhle’s response to the EEO Counselor’s inquiry, Wulfkuhle “initially rated Mr.
Phillipson’s performance in the critical areas of ‘Completing Tasks,’ and ‘Quality of Work,’ and in the
areas of ‘Coordination,’ and ‘Team Work’ with a ‘Less than Expected’ (LTE) rating for the second
quarter.” (EEO Counselor’s Rpt. at 10 (Aug. 22, 2013), Ex. 9 of Dkt. No. 20-1 at 120 of 135.)

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Defendant has moved to dismiss Phillipson’s claims based on Incidents A, B, and C for
lack of subject-matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1).
Defendant also has moved to dismiss the claims arising out of Incidents E, F, and G for failure to
state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6).4 Notably, Defendant has not
moved to dismiss Phillipson’s claims based on Incidents D or H, which concern the alleged
denials of sick leave.
DISCUSSION
I.

Rule 12(b)(1) Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Defendant argues that, because Phillipson’s April 24, 2013 grievance letter complained

about his age discrimination claims arising out of Incidents A, B, and C pursuant to the CBA,
this Court lacks subject-matter jurisdiction over any age discrimination claims arising out of
those incidents.
This Court has federal question jurisdiction over age-discrimination claims brought under
the ADEA. See 28 U.S.C. § 1331. But employees in certain bargaining units are entitled to relief
from age discrimination pursuant to not only the ADEA but also grievance procedures negotiated
and included in a CBA. Such employees may “raise the matter [either] under a statutory
procedure or the negotiated procedure, but not both.” 5 U.S.C. § 7121(d) (emphasis added).
Such an employee “shall be deemed to have . . . raised the matter under . . . the negotiated
procedure . . . at such time as the employee . . . timely files” a written grievance in accordance
with the parties’ negotiated procedure. Id. In the present case, Defendant argues that Phillipson is
such an employee and, when he filed his grievance letter on April 24, 2013, he elected to raise

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Defendant also moved to dismiss claims arising out of Incidents A, B, and C as time-barred and
otherwise failing to state a claim. Because this Court finds that it does not have subject-matter jurisdiction
over those claims, it does not consider the alternative arguments here.

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the matter under the CBA rather than the ADEA. Phillipson responds by arguing that he grieved
not pursuant to the CBA’s procedure but instead pursuant to a separate administrative procedure.
As a general rule, a district court reviewing a Rule 12(b)(6) motion to dismiss must
“accept well-pled factual allegations as true and draw all reasonable inferences in the plaintiffs’
favor.” Echevarria v. Chicago Title & Trust Co., 256 F.3d 623, 625 (7th Cir. 2001). But when a
defendant contends “that there is in fact no subject matter jurisdiction,” Apex Digital v. Sears,
Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009), the Court is “not bound to accept as true the
allegations of the complaint which tend to establish jurisdiction. Instead, [it] may properly look
beyond the jurisdictional allegations of the complaint and view whatever evidence has been
submitted on the issue . . . .” Leveski v. ITT Educ. Servs., Inc., 719 F.3d 818, 828 (7th Cir. 2013)
(internal quotation marks and citation omitted). In this case, the evidence submitted on the
jurisdictional issue includes the FEMA manual explaining the administrative grievance
procedure, AFGE’s CBA, and Phillipson’s grievance letter.
Phillipson claims that he tried to file his grievance letter through what the FEMA Manual
describes as “the Administrative Grievance System.” (Ex. 3 to Pl.’s Memo. in Opp. to Def.’s
Mot. to Dismiss, FEMA Manual 3300.1 (Sep. 29, 1992) at 1-1 ¶ 1-1, Dkt. No. 21-3.) But
“[w]hen there is a grievance system in effect which has been negotiated with a labor
organization, an employee who is a part of the bargaining unit must use the negotiated grievance
system,” and not the administrative system, because “[t]he provisions of the Agency’s
Administrative Grievance System do not apply to . . . [a]ny issue covered by a Negotiated
Grievance Procedure contained in an agreement with an exclusively recognized labor

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organization, when the grievant is included within the coverage of the agreement . . . .” (Id. at 51 ¶ 5-4, 2-2 ¶ 2-2(b)(14).) 5
A grievance system that had been negotiated with a labor union was in effect at the time
Phillipson sent the April 24, 2013 letter. AFGE’s CBA provides a procedure through which
covered employees may grieve “[a]ny matter involving the interpretation and application of the
Employer’s policies, regulations, and practices related to conditions of employment . . . .” (CBA
at art. 27 § 6(B), Dkt. No. 20-1.) Phillipson’s grievance letter alleges “disparate treatment in the
terms and conditions of my employment.” (Grievance Filing (Apr. 24, 2013) at 1, Ex. 2 of Dkt.
No. 20-1 at 69 of 135.) This complaint in the grievance letter plainly involves the interpretation
and application of FEMA’s policies, regulations, and practices related to the conditions of his
employment. That subject matter is covered by the CBA and so, under the terms of the CBA and
his own grievance letter, only the negotiated system—and not the administrative procedure—was
available to Phillipson.
Phillipson argues that he “was attempting to file his grievance under [the administrative]
process” and therefore “did not file a grievance under the union-negotiated grievance
procedure.” (Pl.’s Mem. in Opp. to Def.’s Mot. to Dismiss at 5, Dkt. No. 21.) The Court
disagrees. Phillipson primarily argues that had he been “pursuing his grievance under the CBA,
he would have had to initiate the grievance by addressing it to his immediate supervisor, not a
director.” (Id. at 7.) But the fact that Phillipson addressed the letter to his director rather than his

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See also Ex. 3 to Pl.’s Memo. in Opp. to Def.’s Mot. to Dismiss, FEMA Manual 3300.1 (Sep. 29, 1992)
1-1 ¶ 1-2(a), Dkt. No. 21-3 (observing that “[t]he provisions of this Administrative Grievance System
may be preempted by a negotiated grievance procedure for employees within the bargaining unit”). In
addition, although “[t]he provisions of the Agency’s Administrative Grievance System apply to any issue
of employee concern . . . which is subject to the control of FEMA management, or any matter in which an
employee alleges that . . . retaliation has been practiced,” it does not apply to “[a] performance evaluation
given under FEMA’s performance appraisal system,” such as Incidents A and C, or to “[p]reliminary
warning or notice,” such as Incident B. (Id. at 2-1 ¶ 2-2(a); 2-2 ¶ 2-2(b)(7); 2-2 ¶ 2-2(b)(11).)

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immediate supervisor amounts either to a mistaken address or a deliberate attempt to appear to
use a procedure to which he was not entitled. In either case, it does not suffice to remove
Phillipson’s grievance from the purview of the CBA’s grievance procedure. Phillipson attempted
to avail himself of the grievance process available to him and the only grievance procedure
available to Phillipson was the negotiated system. Thus, when Phillipson filed a grievance, that
grievance had to be under the negotiated system in practice, even if not in Phillipson’s mind.
Phillipson’s grievance covered issues identical to those that he has now raised before this
Court in Incidents A, B, and C. As Congress has determined that federal employees who have
adjudicated such claims under a negotiated procedure may not use the federal courts to re-litigate
them, this Court grants Defendant’s motion to dismiss Phillipson’s complaint for lack of
jurisdiction to the extent his claims depend on Incidents A, B, and C. Those claims are dismissed
with prejudice.
II.

Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
Defendant moves to dismiss Phillipson’s claims based on Incidents E, F, and G for failure

to state a claim. A plaintiff’s complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must “‘give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right
to relief above the speculative level . . . .” Id.; see also Brooks v. Ross, 578 F.3d 574, 581 (7th
Cir. 2009) (plausibility requirement “‘simply calls for enough facts to raise a reasonable
expectation that discovery will reveal evidence’ supporting the plaintiff's allegations” (quoting
Twombly, 550 U.S. at 556)). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements” do not satisfy this standard. Aschroft v. Iqbal, 556 U.S. 662, 678

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(2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550
U.S. at 556). When analyzing a complaint for whether it states a claim, the Court “must construe
it in the light most favorable to the plaintiff, accept well-pleaded facts as true, and draw all
inferences in the plaintiff’s favor.” Carlson v. CSX Transp., Inc., 758 F.3d 819, 826–27 (7th Cir.
2014) (internal citations omitted).
Acknowledging that a complaint must contain “something more than a general recitation
of the elements of the claim,” the Seventh Circuit has held that the “pleading standard for simple
claims of [employment] discrimination [is] minimal.” Tamayo v. Blagojevich, 526 F.3d 1074,
1084 (7th Cir. 2008). “[L]ittle information is required to put [an] employer on notice of” claims
of employment discrimination because employers “are familiar with discrimination claims and
know how to investigate them . . . .” Carlson, 758 F.3d at 827 (citing EEOC v. Concentra Health
Servs., Inc., 496 F.3d 773, 781–82 (7th Cir. 2007)).
A.

Phillipson’s Discrimination Claims

To establish an ADEA violation, a plaintiff must first show that he suffered an adverse
employment action. Van Antwerp v. City of Peoria, Ill., 627 F.3d 295, 297 (7th Cir. 2010). “For
an employment action to be actionable, it must be a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different responsibility,
or a decision causing a significant change in benefits.” Lewis v. City of Chicago, 496 F.3d 645,
653 (7th Cir. 2007) (concerning claims under Title VII). Then the plaintiff must demonstrate that
age played a role in the employer’s decision-making process in levying that adverse employment
action and that it had a determinative influence on the outcome. Van Antwerp, 627 F.3d at 297;
Cole v. Ill. Tool Works, Inc., 924 F. Supp. 2d 978, 987 (N.D. Ill. 2013). However, at the pleading

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stage, to survive a motion to dismiss under Rule 12(b)(6), a complaint “merely needs to give the
defendant sufficient notice to enable him to begin to investigate and prepare a defense.” Tamayo,
526 F.3d at 1085.
Phillipson alleges that FEMA incorrectly rated his performance as poor and solicited his
coworkers to lodge complaints of hostility. Based on these allegations, in the light most favor to
Phillipson, one could reasonably conclude that DOHS’s actions substantially worsened
Phillipson’s conditions of employment, and thus the First Amended Complaint plausibly alleges
that Phillipson suffered an adverse employment action. Moreover, Phillipson’s First Amended
Complaint further alleges the type of discrimination that occurred (age), by whom (FEMA
generally and Wulfkhule in particular), and when (in July and September 2013, while he was
employed at FEMA). These factual allegations are sufficient to put Defendant on notice of
Phillipson’s claim, and thus Phillipson’s age discrimination claims pass Rule 8 muster. See
Vindel v. Medline Indus., Inc., 2010 WL 4625478, at *4 (N.D. Ill. Nov. 4, 2010) (ruling that such
detail sufficed to satisfy pleading standards).
B.

Phillipson’s Retaliation Claims

Phillipson claims that Incidents E, F, and G constituted retaliation for his filing of a
grievance against Wulfkhule. To state a retaliation claim, a plaintiff must allege that he engaged
in a protected action and that he suffered an adverse action as a result. Silk v. Bd. of Trustees,
Moraine Valley C.C., Dist. No. 524, 795 F.3d 698, 710 (7th Cir. 2015). Filing a grievance is a
protected activity. And an action is “materially adverse” if it “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Lapka v. Chertoff,
517 F.3d 974, 985–86 (7th Cir. 2008); see also Herrnreiter v. Chicago Hous. Auth., 315 F.3d
742, 744 (7th Cir. 2002) (collecting cases). The Court cannot say that, as a matter of law, the

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actions about which Phillipson complains in Incidents E, F, and G would not have dissuaded a
reasonable worker from grieving alleged discrimination. That question is for a fact-finder to
decide, especially because in determining whether an action is adverse, “[c]ontext matters.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2009). And for similar reasons as
discussed above, Phillipson’s complaint provides sufficient facts to plausibly allege these actions
were taken because he filed a grievance against Wulfkhule.
C.

Phillipson’s Hostile Work Environment Claim

Phillipson does not set forth an independent hostile work environment claim, but he does
allege that he was “subjected . . . to a hostile environment.” (First Am. Compl. ¶ 8, Dkt. No. 18.)
Insofar as Phillipson is asserting an independent hostile work environment claim, the Court finds
that this claim must be dismissed without prejudice. A work environment is hostile if it subjects
an employee to harassment “so severe and pervasive as to alter the conditions of the victim’s
employment and [to] create an abusive working environment.” Faragher v. City of Boca Raton,
524 U.S. 775, 786 (1998) (internal citations and quotation marks omitted).
The Court notes that the Seventh Circuit has assumed without deciding that plaintiffs
may bring a claim of a hostile work environment under the ADEA. See, e.g., Racicot v. Wal–
Mart Stores, Inc., 414 F.3d 675, 678 (7th Cir. 2005); Bennington v. Caterpillar, Inc., 275 F.3d
654, 660 (7th Cir. 2001). Here, the Court need not determine whether Phillipson can bring a
hostile work environment claim under the ADEA because, even if he can, the allegations in his
First Amended Complaint fail to meet the pleading standard for such a claim.
A plaintiff making a hostile work environment claim must plausibly allege that his work
environment was offensive both objective and subjectively; the harassment was based on the
employee’s membership in a protected class; the conduct was severe or pervasive; and that there

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is a basis for employer liability. See Scruggs v. Garst Seed Co., 587 F.3d 832, 840 (7th Cir.
2009) (discussing elements necessary to prove for hostile work environment claim under Title
VII); Silic v. BBS Trucking, Inc., 2013 WL 942207, at *3–4 (N.D. Ill. Mar. 11, 2013) (applying
Scruggs to the ADEA context). Phillipson has alleged that his work environment was
subjectively hostile, that he was harassed because of his age, and that Defendant is liable. The
remaining elements are whether Phillipson has plausibly alleged that the environment was
objectively offensive and that the conduct was severe or pervasive—two elements that run
together. A work environment is objectively offensive if a reasonable person would find the
environment hostile. See King v. Acosta Sales and Mktg., Inc., 678 F.3d 470, 472 (7th Cir. 2012)
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). To determine objective hostility, this
Court must consider “the frequency of the discriminatory conduct; its severity; whether it was
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interfere[d] with an employee’s work performance.” Harris, 510 U.S. at 21; see also Silk v. City
of Chicago, 194 F.3d 788, 804 (7th Cir. 1999) (quoting Harris, 510 U.S. at 21)).
Phillipson recounts three allegedly discriminatory actions over the course of a couple of
months, none of which were, as an objective matter, physically threatening or humiliating. Even
assuming that those allegations are true, the Court cannot plausibly infer from this objective
hostility or severity or pervasiveness sufficient to sustain such a claim for hostile work
environment. As a result, insofar as Phillipson is asserting a hostile work environment claim, this
claim is dismissed without prejudice.

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III.

Phillipson’s Motion for Leave to File Second Amended Complaint
The proposed second amended complaint alleged four more retaliatory actions that

“created a retaliatory work environment.” (Pl.’s Second Am. Compl. at 6, Dkt. No. 28-1.)6 Those
actions include a wrongfully-issued suspension letter, a request to invalidate Phillipson’s time
card, a false accusation of failure to complete edits concerning a document that Phillipson had
written, and rejection of requests for travel reimbursement. (Id.) Because the Court should “give
plaintiffs a chance to amend a complaint to provide more factual detail,” Olso v. Champaign
Cty., Ill., 784 F.3d 1093, 1099 (7th Cir. 2015), the Court grants Phillipson’s motion for leave to
file a second amended complaint. Phillipson may submit the proposed second amended
complaint attached to his motion; however, Phillipson may find it beneficial to submit a revised
second amended complaint that takes into account the Court’s ruling herein. The Court will
allow time for Phillipson to choose which option to pursue.
CONCLUSION
For the foregoing reasons, Defendant’s motion to dismiss (Dkt. No. 19) is granted in part
and denied in part. Specifically, the Court grants Defendant’s motion to dismiss Phillipson’s
claims insofar as they are dependent on Incidents A, B, and C; those claims are dismissed with
prejudice for lack of subject-matter jurisdiction. The Court also grants Defendant’s motion to
dismiss Phillipson’s hostile work environment claim for failure to state a claim; that claim is
dismissed without prejudice. The Court denies Defendant’s motion to dismiss Phillipson’s
discrimination and retaliation claims. Finally, the Court grants Phillipson’s motion for leave to
file a second amended complaint. (Dkt. No. 28.) As Phillipson now has the benefit of the Court’s

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Although Phillipson titled the proposed complaint that he most recently sought leave to file “First
Amended Complaint” (Dkt. No. 28-1), the Court construes that proposed complaint as the proposed
second amended complaint, in accord with his Motion for Leave to File Second Amended Complaint
(Dkt. No. 28).

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ruling, hemay submit the proposed second amended complaint attached to his motion or he may
file a revised version. In either case, Phillipson has 14 days to complete his submission.
ENTERED:

Dated: March 24, 2017

________________________________
Andrea R. Wood
United States District Judge

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