Johnson v. McDonald
Filing
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MEMORANDUM AND ORDER -....IT IS HEREBY ORDERED that defendant Robert McDonald's motion to dismiss plaintiff's Amended Complaint for failure to the Rehabilitation Act is GRANTED. [Doc. 25] An Order of Dismissal will accompany this Memorandum and Order. Signed by District Judge Charles A. Shaw on 10/7/2016. (MRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EARLENE JOHNSON,
Plaintiff,
v.
ROBERT MCDONALD SECRETARY
DEPARTMENT OF VETERANS AFFAIR,
Defendant.
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No. 4:15-CV-1869 CAS
MEMORANDUM AND ORDER
This matter is before the Court on defendant Robert McDonald’s motion to dismiss
plaintiff’s Amended Complaint under Rule 12(b)(6), Federal Rules of Civil Procedure, for failure
to state a claim upon which relief can be granted. Pro se plaintiff Earlene Johnson has not responded
to the motion to dismiss and the time to do so has long passed. For the following reasons, the Court
will grant the motion to dismiss.
I. Background
In December 2008, plaintiff was hired by the Department of Veterans Affairs Medical Center
(“VA”) at Jefferson Barracks in St. Louis, Missouri, on a Career-Conditional Appointment as a
Medical Supply Technician, subject to completion of a one-year probationary period. Beginning
in April 2009, plaintiff was placed on a series of light-duty assignments as a result of an April 1,
2009 injury to her left arm that required plaintiff to wear a hand brace. Plaintiff received two
satisfactory job evaluations but was notified on November 10, 2009 that she was being terminated
from her probationary employment for unprofessional conduct.
Plaintiff filed an EEOC appeal of her termination, alleging that the VA subjected her to
unlawful discrimination, retaliated against her, and subjected her to a hostile work environment by
(1) reassigning her to the laundry room on September 8, 2009, and (2) issuing her a notice of
termination on November 10, 2009 during her probationary period. In its final decision, the VA
found no discrimination. On appeal, the EEOC affirmed the VA’s final decision, finding that
plaintiff failed to show she was subjected to unlawful discrimination, reprisal, or to actionable
harassment.
Plaintiff’s request for reconsideration was denied, and she has exhausted her
administrative remedies. Plaintiff filed this action in December 2015.
On July 26, 2016, the Court granted defendant’s motion to dismiss plaintiff’s original
complaint but granted plaintiff leave to file an amended complaint under the Rehabilitation Act of
1973, as amended, 29 U.S.C. §§ 701, et seq. (“Rehabilitation Act”), with the following directions:
Plaintiff should use the Court’s employment discrimination complaint form, but must
include the necessary factual allegations discussed above to support her
Rehabilitation Act claims. Plaintiff may file exhibits to the amended complaint, but
she must state the factual basis for her Rehabilitation Act claims in the amended
complaint itself and may not simply refer to attached documents. Plaintiff may not
incorporate by reference into the amended complaint the original complaint or her
Response to the motion to dismiss, and instead must set forth all of her factual
allegations in the amended complaint itself.
Mem. and Order of July 26, 2016 at 14 (Doc. 22).
Plaintiff filed a seven-page Amended Complaint on a Court-provided form with sixty-five
pages of exhibits attached. (Doc. 24.) The Amended Complaint alleges that defendant wrongfully
terminated her employment, failed to accommodate her disability although it accommodated other
employees, retaliated against her, and subjected her to harassment. (Id. at 4.) The Amended
Complaint states that plaintiff’s claims under the Rehabilitation Act are based on the following facts:
1. On February 26, 2009, management, Joyce Richardson (JR) failed to take
appropriate action when the Complainant notified Human resources that DH was
“pulling on a male coworker[’]s private parts on a daily basis.”
2. On March 10, 2009, JR threatened the Complainant that she could have her
removed/terminated from her probationary position.
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5. [sic] On May 7, 2009, a coworker (DH), refused to allow the Complainant to use
a computer and then told her that she could “do whatever the f— she wanted to do.”
6. On June 12, 2009, DH intentionally “brushed up” against the Complainant and
then said “hit me – what are you going to do.”
8. [sic] On August 24, 2009, JR changed the Complainant’s duty hours from 7:00
a.m. through 3:30 p.m. to 3:30 p.m. through midnight. Additionally, JR threatened
to terminate her and then “taunted” her.
10. [sic] On September 8, 2009, JR reassigned the Complainant to the laundry.
13. [sic] On November 6, 2009, JR again reassigned the Complainant to the laundry.
14. On November 9, 2009, JR reassigned the Complainant back to the “P & D
Department” and confronted her about her hand brace.
15. On or about November 10, 2009, the Complainant received written notification
that effective November 24, 2009, she was being terminated for “unprofessional
conduct” from her probationary position as a Medical Supply Technician, GS-62206. [sic] The Complainant alleges that she was unaware of the “unprofessional
conduct” until after her termination.
Am. Complaint at 5-6.
Despite the Court’s specific direction that the factual basis for plaintiff’s claims must be set
forth in the amended complaint itself and not by reference to exhibits, plaintiff included an eightpage narrative as one of the exhibits to the Amended Complaint, which sets out additional facts and
arguments concerning her claims. (Doc. 24-1 at 6-13.) The Court will consider this exhibit on the
motion to dismiss.
Defendant moves to dismiss the Amended Complaint for failure to state a claim upon which
relief can be granted. Defendant asserts that plaintiff fails to state a prima facie case of disability
discrimination, of retaliation, or of harassment based on disability.
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II. Legal Standard
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency
of the complaint. To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted, “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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff “must
include sufficient factual information to provide the ‘grounds’ on which the claim rests, and to raise
a right to relief above a speculative level.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549
(8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation requires plaintiffs to plead
“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
On a motion to dismiss, the Court accepts as true all of the factual allegations contained in
the complaint, even if it appears that “actual proof of those facts is improbable,” id. at 556, and
reviews the complaint to determine whether its allegations show that the pleader is entitled to relief.
Id. at 555-56; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true all of the
allegations contained in a complaint does not apply to legal conclusions, however. Iqbal, 556 U.S.
at 678 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice”). To survive a motion to dismiss, “a civil rights complaint must contain
facts which state a claim as a matter of law and must not be conclusory.” Gregory v. Dillard’s, Inc.,
565 F.3d 464, 473 (8th Cir. 2009) (en banc) (quotation marks and citation omitted).
“While courts primarily consider the allegations in the complaint in determining whether to
grant a Rule 12(b)(6) motion, courts additionally consider ‘matters incorporated by reference or
integral to the claim, items subject to judicial notice, matters of public record, orders, items
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appearing in the record of the case, and exhibits attached to the complaint whose authenticity is
unquestioned;’ without converting the motion into one for summary judgment.” Miller v. Redwood
Toxicology Lab, Inc., 688 F.3d 928, 931 & n.3 (8th Cir. 2012) (quoting 5B Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2004)).
III. Discussion
A. Plaintiff Fails to State a Prima Facie Claim of Disability Discrimination
The Rehabilitation Act (the “Act”) prohibits discrimination against an “otherwise qualified
individual with a disability . . . , solely by reason of her or his disability.” 29 U.S.C. § 794; Hill v.
Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). The Act incorporates the standards of the Americans
with Disabilities Act (“ADA”) to determine whether a violation has occurred. 29 U.S.C. § 794(d);
Peebles v. Potter, 354 F.3d 761, 765 (8th Cir. 2004). Decisions under the Rehabilitation Act or the
ADA “are applicable and ‘interchangeable’ to claims under each statute.” Hill, 737 F.3d at 1216.
“Discrimination under . . . the Rehabilitation Act encompasses both disparate treatment
because of a disability and failure to provide reasonable accommodations to a qualified individual’s
known disability.” Withers v. Johnson, 763 F.3d 998, 1003 (8th Cir. 2014) (citing Hill, 737 F.3d
at 1216-17). “In disparate treatment cases, a similarly situated disabled individual is treated
differently because of his disability than less- or non-disabled individuals.” Peebles, 354 F.3d at
766. In reasonable accommodation cases, an employer violates the Act if it does not “make
reasonable accommodation to the known physical or mental limitations of an otherwise qualified
applicant or employee with a disability, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of its business.” Id. (quoting 29
C.F.R. § 1630.9(a)).
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The threshold question in a disability discrimination case is whether the plaintiff is
“disabled” within the meaning of the ADA. Heisler v. Metropolitan Council, 339 F.3d 622, 627 (8th
Cir. 2003) A plaintiff therefore “must first make a facial showing that [s]he has an ADA disability.”
Fenney v. Dakota, Minnesota & Eastern R. Co., 327 F.3d 707, 712 (8th Cir. 2003); see, e.g., Brunko
v. Mercy Hosp., 260 F.3d 939, 942 (8th Cir. 2001) (“Because [plaintiff] has not met the first element
of actual or perceived disability of a prima facie case under the ADA, she is not entitled to protection
under the ADA.”).
Defendant asserts that plaintiff fails to properly plead a prima facie case of either disparate
treatment based on disability or a failure to accommodate her disability. Defendant states that while
plaintiff repeatedly refers to an unspecified “disability” and mentions use of a hand brace, she does
not identify a specific disability from which she suffered or the accommodation she sought, and does
not allege that her disability substantially limited one or more of her major life activities. Defendant
asserts that without any factual allegations to establish that plaintiff was “disabled” within the
meaning of the Rehabilitation Act, the Amended Complaint fails to state a claim upon which relief
can be granted.
The Rehabilitation Act uses the same definition as the ADA for an individual with a
disability. 29 U.S.C. § 705(20)(B). The term “disability” is defined as: “(A) a physical or mental
impairment that substantially limits one of more of the major life activities of such individual; (B)
a record of such an impairment; or (C) being regarded as having such an impairment[.]” 42 U.S.C.
§ 12102(2)(A)-(C); Canny v. Dr. Pepper/Seven-Up Bottling Group, Inc., 439 F.3d 894, 900 (8th Cir.
2006). Major life activities include but are not limited to “caring for oneself, performing manual
tasks, walking, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
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breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).
Plaintiff’s Amended Complaint does not contain sufficient factual allegations to provide the
grounds for a Rehabilitation Act claim that is plausible on its face. The Amended Complaint
contains labels and conclusory allegations of disability, from which the Court cannot reasonably
draw an inference that plaintiff had a physical impairment that substantially limited one or more of
her major life activities. As such, the Amended Complaint does not “raise a right to relief above a
speculative level.” Schaaf, 517 F.3d at 549. Because plaintiff fails to identify her disability or
otherwise allege facts from which the Court can draw the reasonable inference that she was
“disabled” within the meaning of the Rehabilitation Act, see Iqbal, 556 U.S. at 678, plaintiff fails
to state a claim of disability discrimination upon which relief can be granted as to both disparate
treatment and wrongful termination. See Walz v. Ameriprise Fin., Inc., 779 F.3d 842, 845 (8th Cir.
2015) (ADA case; stating elements of prima facie case of wrongful termination).
To support her failure to accommodate claim, plaintiff “must establish both a prima facie
case of discrimination based on her disability and a failure to accommodate it.” Schaffhauser v.
United Parcel Serv., Inc., 794 F.3d 899, 905 (8th Cir. 2015). Where, as here, an employee fails to
show she is a qualified individual with a disability, she cannot state a valid claim for failure to
accommodate. Kirkeberg v. Canadian Pacific Railway, 619 F.3d 898, 906 n.4 (8th Cir. 2010).
B. Plaintiff Fails to State a Prima Facie Claim of Retaliation
Defendant also moves to dismiss plaintiff’s claim of retaliation. The Eighth Circuit has
recognized a cause of action for retaliation under the Rehabilitation Act, and retaliation claims under
the Act and the ADA are treated interchangeably. Hill, 737 F.3d at 1218. To establish unlawful
retaliation under the Rehabilitation Act, a plaintiff “must show that (1) she engaged in a statutorily
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protected activity, (2) the employer took an adverse action against her, and (3) there was a causal
connection between the adverse action and the protected activity.” Id.
Plaintiff’s Amended Complaint alleges that she reported a co-worker’s inappropriate sexual
conduct to her supervisor and to Human Resources on February 26, 2009, but no appropriate action
was taken. Plaintiff then alleges that her supervisor, Joyce Richardson, took the following actions:
On March 10, 2009, Richardson threatened that she could have plaintiff removed from her
probationary position; on August 24, 2009, Richardson changed plaintiff’s duty hours and threatened
to terminate her; on September 8, 2009, Richardson reassigned plaintiff to the laundry; on November
6, 2009, Richardson again reassigned plaintiff to the laundry; on November 9, Richardson
reassigned plaintiff to the “P & D Department” and “confronted her about her hand brace”; and on
November 10, 2009, plaintiff was notified of her termination.
Defendant concedes for purposes of its motion to dismiss that plaintiff has sufficiently
alleged she engaged in statutorily protected activity and that her termination constituted an adverse
employment action, but asserts that plaintiff fails to allege a causal connection between her report
to Human Resources and her termination nine months later.
Defendant is correct. Plaintiff does not allege anywhere in the Amended Complaint that she
was terminated in retaliation for, or as a result of, reporting her co-worker’s inappropriate sexual
conduct to Human Resources. Nor does plaintiff allege that her supervisor Richardson’s actions
were taken in retaliation for the report to Human Resources. In the absence of any factual
allegations related to the element of causation, plaintiff fails to state a claim for retaliation
discrimination. See Hill, 737 F.3d at 1218. Further, because a period of nine months elapsed
between plaintiff’s protected activity and her termination, the temporal connection is far too remote
to suggest causation. See Sisk v. Picture People, Inc., 669 F.3d 896, 901 (8th Cir. 2012) (in a
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retaliation case, “More than two months is too long to support a finding of causation without
something more.”).
C. Plaintiff Fails to State a Prima Facie Claim of Hostile Work Environment
Defendant also moves to dismiss plaintiff’s claim of hostile work environment based on
disability. “[T]o establish a hostile work environment based on disability, plaintiff must show that
(1) she is a member of the class of people protected by the statute, (2) she was subject to unwelcome
harassment, (3) the harassment resulted from her membership in the protected class, and (4) the
harassment was severe enough to affect the terms, conditions or privileges of her employment.”
Sellers v. Deere & Co., 791 F.3d 938, 945 (8th Cir. 2015).
As to the fourth element, “In order to be actionable, harassment must be both subjectively
hostile or abusive to the victim and ‘severe and pervasive enough to create an objectively hostile or
abusive work environment—an environment that a reasonable person would find hostile or
abusive.’” Shaver v. Independent Stave Co., 350 F.3d 716, 721 (8th Cir. 2003) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). Anti-discrimination laws do not establish codes of
civility in the workplace and “[c]onduct that is merely rude, abrasive, unkind, or insensitive does
not come within the scope of the law.” Id. To determine whether the harassment affected a term,
condition or privilege of employment, courts must “consider the totality of the circumstances,
including the frequency and severity of the conduct, whether it is physically threatening or
humiliating, and whether it unreasonably interferes with [plaintiff’s] job performance.” Sellers, 791
F.3d at 945 (quoted case omitted).
Because plaintiff does not allege any facts to show that she is disabled, she cannot state a
claim for hostile work environment based on her disability. See Sellers, id. Defendant’s motion to
dismiss the hostile environment claim should therefore be granted.
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Further, even if plaintiff had alleged that she was disabled, the complaint does not contain
any factual allegations to show plaintiff was subjected to harassment because of her disability. See
Wallin v. Minnesota Dep’t of Corrs., 153 F.3d 681, 688 (8th Cir. 1998) (although plaintiff identified
“numerous incidents of friction between himself and his coworkers,” his hostile work environment
claim failed because he provided no evidence that the workplace friction was due to his disabilities).
Finally, the conduct plaintiff complains of does not rise to the level of actionable harassment.
In her Amended Complaint, plaintiff alleges that her supervisor Richardson threatened that she could
have her removed or terminated; a coworker refused to allow plaintiff to use a computer and told
plaintiff that she could “do whatever the f--- she wanted to do;” the same coworker intentionally
“brushed up” against plaintiff and said “hit me --- what are you going to do;” and Richardson
changed plaintiff’s work hours, taunted her, and reassigned plaintiff on three occasions, and
confronted plaintiff about her hand brace. While this conduct may have been rude, abrasive and
unpleasant, there are no facts from which it can be reasonably inferred that the conduct was severe
and pervasive enough to create an objectively hostile or abusive work environment, or that it
affected a term, condition or privilege of plaintiff’s employment.
IV. Conclusion
For the foregoing reasons, the Court will grant defendant Robert McDonald’s motion to
dismiss plaintiff’s Amended Complaint under the Rehabilitation Act for failure to state a claim upon
which relief can be granted.
Accordingly,
IT IS HEREBY ORDERED that defendant Robert McDonald’s motion to dismiss
plaintiff’s Amended Complaint for failure to state a claim upon which relief can be granted under
the Rehabilitation Act is GRANTED. [Doc. 25]
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An Order of Dismissal will accompany this Memorandum and Order.
__________________________________
CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 7th day of October, 2016.
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