Childers v. Brennan

Filing 52

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR ADR EXTENSION: IT IS HEREBY ORDERED that the motion of defendants to dismiss (Doc. 42 ) plaintiff's disparate treatment claim is sustained. IT IS FURTH ER ORDERED that the motion of defendants to dismiss (Doc. 42 ) is denied as to plaintiff's claims of hostile work environment and retaliation. IT IS FURTHER ORDERED that the motion of defendants to dismiss (Doc. 42 ) is sustained as to Counts IV and V and all claims against defendants Theodore Nappier and Gary Barnes in their official and individual capacities. IT IS FURTHER ORDERED that the unopposed motion of plaintiff for an extension of the deadline for the parties to designate an A DR neutral (Doc. 51 ) is sustained. The parties may select an ADR neutral not later than September 8, 2017, and conclude the ADR proceedings not later than November 1, 2017. ( ADR Completion Deadline due by 11/1/2017., ADR Compliance Report Deadline due by 11/15/2017., Designation of Neutral/Conference Report due by 9/8/2017.) Signed by Magistrate Judge David D. Noce on 8/10/17. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DAVID CHILDERS,
Plaintiff,
v.
MEGAN BRENNAN, Postmaster
General; THEODORE NAPPIER;
and GARY BARNES,
Defendants.

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No. 4:16 CV 873 DDN

MEMORANDUM AND ORDER ON
DEFENDANTS’ MOTION TO DISMISS
AND PLAINTIFF'S MOTION FOR ADR EXTENSION
This action is before the court on the motion of defendants Megan Brennan,
Theodore Nappier, and Gary Barnes to dismiss plaintiff David Childers’ First Amended
Complaint (Doc. 26) in its entirety. (Doc. 42). Plaintiff opposes the dismissal of Counts
I through III. (Doc. 46). After hearing oral arguments from the parties on July 28, 2017,
the court grants defendants’ motion in part and otherwise denies it.

I.

BACKGROUND

Plaintiff is an automotive technician employed by the United States Postal Service
(“USPS”) facility in St. Louis, Missouri. (Doc. 26, ¶ 10). He alleges he is disabled due
to impairments that specifically include permanent nerve damage impairing his left arm
and right shoulder, dyslexia, a hearing impairment, and limited mobility in his right ankle
and knee.

(Doc. 26, ¶ 11).

In 2013 and 2014, he filed three formal charges of

discrimination with the USPS Equal Employment Opportunity Office (“EEO”). (Doc.
26, at 3, 4, and 7).

On June 16, 2016, plaintiff commenced this judicial action by filing his complaint
against defendant Megan Brennan, the Postmaster General of the United States. This
court determined on January 12, 2017, that the judicial complaint was timely filed due to
equitable tolling. (Doc. 23).
On January 18, 2017, plaintiff filed the currently pending first amended complaint.
(Doc. 26).

In it he added two defendants in their personal and official capacities:

Theodore Nappier, who was formerly plaintiff’s direct supervisor and the manager of the
USPS vehicle maintenance facility in St. Louis, Missouri, and Gary Barnes, who was at
relevant times the USPS Supervisor of Vehicle Maintenance in St. Louis, Missouri.
(Doc. 26, ¶¶ 6-7).
Plaintiff's amended complaint is organized in 5 Counts. Counts I, II, and III
variously bear captions of discrimination based on disability and retaliation, and
respectively refer to his three administrative charges by EEO agency case number. Count
IV is captioned as retaliation based on disability and cites 42 U.S.C. § 1981, and Count V
is captioned as a constitutional violation under the First and Fourteenth Amendments and
cites 42 U.S.C. § 1983. (Doc. 26).
In response to the pending motion to dismiss, plaintiff agrees that defendants
Nappier and Barnes and Counts IV and V should be dismissed for the reasons set forth in
the motion to dismiss. (Doc. 46, at 1).
The court discerns from the facts alleged in the remaining Counts I-III alleged
claims against defendant Brennan in her official capacity of unlawful discrimination
under the Rehabilitation Act of 1973 ("Act"), 29 U.S.C. § 794, due to alleged disparate
treatment, a hostile work environment, and retaliation.

II.

FACTUAL ALLEGATIONS

Plaintiff alleges the following in his amended complaint. On February 5, 2013,
defendants Brennan and Nappier denied plaintiff’s request for a change in work schedule.
(Doc. 26, ¶ 13).

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Plaintiff complained about this decision between February 5 and July 1, 2013. (Id.
at ¶ 14). On July 1, 2013, plaintiff’s manager threatened to fire him and asked in a loud
voice why he was “just standing around,” when he was performing his normal job duties.
(Id. at ¶ 15). On July 31, 2013, plaintiff’s manager instructed him to use his left arm to
complete a task, in violation of his medical restrictions. (Id. at ¶ 16). Plaintiff was
threatened with a disciplinary Letter of Warning. Id.
Plaintiff alleges that on January 14, 2014, the Vehicle Maintenance Manager
ordered the lead mechanic to assign plaintiff the “hardest and nastiest jobs.” (Id. at ¶ 25).
On several occasions, defendants’ agents did not permit plaintiff to perform all of the
jobs in his modified job assignment. (Id. at ¶ 26). On January 21, 2014, plaintiff
discovered that his toolbox, which weighs approximately 1,000 pounds, had been moved
at defendants’ direction, and that he had been assigned a specific work area far away
from his toolbox, making it more difficult for him to fulfill his job duties. (Id. at ¶ 27).
On January 22, 2014, defendants Nappier or Barnes instructed, encouraged, or permitted
plaintiff’s co-worker to throw an oil filter at plaintiff and curse at him. On January 23,
2014, defendants Nappier or Barnes instructed, encouraged, or permitted plaintiff’s coworker to curse at him and to make obscene gestures toward him. On January 24, 2014,
defendants Nappier or Barnes instructed, encouraged, or permitted plaintiff’s co-worker
to throw a ball joint removal tool toward him. On January 27, 2014, defendants Nappier
or Barnes instructed, encouraged, or permitted "someone" to place a copy of the Postal
Zero Tolerance Policy in plaintiff’s toolbox. On January 28, 2014, defendants Nappier or
Barnes instructed, encouraged, or permitted plaintiff’s co-worker to throw an EGR valve
toward him. On January 29, 2014, defendants Nappier or Barnes instructed, encouraged,
or permitted plaintiff’s co-worker to throw a box of maxi pads at him. (Id. at ¶¶ 28-33).
Although plaintiff complained to management and despite defendants’ knowledge of
these actions, management took no action. Id.
Plaintiff alleges that on July 15, 2014, defendants informed him that his e-travel
request would not be processed, which delayed his reimbursement for job-required travel

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costs and denied overtime pay altogether. (Id. at ¶ 42). On August 29, 2014, defendants
instructed plaintiff to report for a threat assessment.
Plaintiff alleges that on at least one occasion, defendants Nappier or Barnes
instructed, encouraged, or permitted a co-worker to throw and strike plaintiff with an oil
filter. (Id. at ¶ 44). Despite defendants’ knowledge of this occurrence, they failed to
discipline the employee or take any action to deter such occurrences. (Id.).

II.

MOTION TO DISMISS

Defendants move to dismiss the entirety of the complaint. Plaintiff opposes the
motion.

A.

Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss part

or all of a case for the claimant's failure to state a claim upon which relief can be granted.
Fed. R. Civ. Pro. 12(b)(6). A complaint “must include enough facts to state a claim to
relief that is plausible on its face,” providing more than just labels and conclusions. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Such a complaint will “allow[] the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and will state a claim for relief that
rises above mere speculation. Twombly, 550 U.S. at 555.
“[A] court may dismiss a complaint only if it is clear that no relief could be
granted under any set of facts that could be proved consistent with the allegations.”
Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002) (quoting Hishon v. King v.
Spalding, 467 U.S. 69, 73 (1984)). A complaint must not only give a defendant fair
notice of the basis for its claims, it must also state claims upon which relief could be
granted under the employment discrimination statute. See id. Although a plaintiff is not
required to set forth “a detailed evidentiary proffer” in his complaint, “elements of the
prima facie case are not irrelevant to a plausibility determination in a discrimination suit.”

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Blomker v. Jewell, 831 F.3d 1051, 1056 (8th Cir. 2016) (quoting Swierkiewicz v. Sorema
N. A., 534 U.S. at 512).
In reviewing the pleadings under this standard, the court accepts all of the
plaintiff’s factual allegations as true and draws all inferences in the plaintiff’s favor, but
the court is not required to accept the legal conclusions the plaintiff draws from the facts
alleged. Retro Television Network, Inc. v. Luken Comm., LLC, 696 F.3d 766, 768-69 (8th
Cir. 2012). The court additionally “is not required to divine the litigant’s intent and
create claims that are not clearly raised, . . . and it need not conjure up unpled allegations
to save a complaint.” Gregory v. Dillard’s, Inc., 565 F.3d 464, 473 (8th Cir. 2009) (en
banc) (citations omitted).

B.

Disparate Treatment Claim
Defendant asserts that plaintiff has failed to allege he was subject to an adverse

employment action for purposes of a disparate treatment claim. (Doc. 48). Defendant
also argues that plaintiff has failed to allege that his disability was the “sole impetus” for
the adverse employment action taken against him. Wojewski v. Rapid City Reg’l Hosp.,
Inc., 450 F.3d 338, 344 (8th Cir. 2006) (citing Amir v. St. Louis Univ., 184 F.3d 1017,
1029 n. 5 (8th Cir. 1999)).
To establish disparate treatment discrimination under the Rehabilitation Act of
1973, a plaintiff must show that (1) he was disabled; (2) he was qualified to perform the
essential functions of his job with or without reasonable accommodation; and (3) because
of his disability, he suffered an adverse employment action. Dick v. Dickinson State
University, 826 F.3d 1054, 1060 (8th Cir. 2016); EEOC v. Wal–Mart Stores, Inc., 477
F.3d 561, 568 (8th Cir. 2007). An adverse employment action under the Rehabilitation
Act is a “tangible change in working conditions that produces a material employment
disadvantage.” Dick v. Dickinson State Univ., 826 F.3d at 1060. These include such
actions as “termination, cuts in pay or benefits, and changes that affect an employee’s
future career prospects.” Id. Furthermore, a claim for disparate treatment on the basis of

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disability must allege that other, similarly-situated employees who were not disabled
were treated differently than plaintiff. Id.
Although plaintiff alleges general “discrimination” in each of his counts, he only
alleges that defendants treated similarly-situated, non-disabled employees differently
with regard to a single event: when defendant denied him a single request for a change in
his work schedule on February 5, 2013. (Doc. 26, ¶¶ 13-14). Plaintiff alleges that
defendants routinely grant these requests to employees who are not disabled. (Id.).
However, even if true, the denial of a single scheduling request by itself is insufficient as
a matter of law to constitute an adverse employment action. Plaintiff has not alleged
facts from which the court can infer that this would affect his future career prospects. See
Dick, 826 F.3d at 1059. The cases plaintiff cites to support his argument involve multiple
schedule changes or permanent transfers materially changing the terms and conditions of
the plaintiffs’ employment. See Spees v. James Marine, Inc., 617 F.3d 380, 391-92 (6th
Cir. 2010) (when employer learned plaintiff was pregnant, she was transferred from a
welding position to a “tool-room” position, which significantly diminished her
responsibilities and did not allow her to use her advanced skills); Ginger v. D.C., 527
F.3d 1340, 1344 (D.C. Cir. 2008) (employer reassigned employees from permanent
midnight shift to shifts that rotated from day to night every four weeks, which severely
disrupted their sleeping schedules, caused them to lose a four percent pay differential,
and interfered with their abilities to work overtime and part-time day jobs); E.E.O.C. v.
Wyeth, 302 F. Supp. 2d 1041, 1071 (N.D. Iowa 2004) (employer’s approval of
widespread scheduling requests to avoid working with plaintiff resulted in plaintiff being
required to perform her duties without assistance from her coworkers and to perform
additional work).
A “mere inconvenience or an alteration of job responsibilities is not sufficient to
constitute an adverse employment action.” Spees, 617 F.3d at 391 (quoting White v.
Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 795 (6th Cir. 2004)). The alleged
denial of a single request by plaintiff for a schedule change, even when non-disabled

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employees’ requests are routinely granted, does not constitute an adverse employment
action for purposes of a disparate treatment claim under the Rehabilitation Act.
For these reasons, plaintiff’s disparate treatment claim due to the denial of a
change in work schedule is dismissed.

C.

Hostile Work Environment Claim
Defendant argues that the frequency and amount of harassment plaintiff alleges do

not rise to the level of creating a hostile environment. Plaintiff argues that he has alleged
sufficient facts to put defendant on notice of his claim.

While plaintiff must give

defendants fair notice of his claim, his complaint must also state a plausible claim upon
which relief could be granted under the employment discrimination statute, by alleging
facts capable of supporting an inference of hostile work environment. See Twombly, 550
U.S. at 570; Swierkiewicz, 534 U.S. at 507.
To establish a hostile work environment based on disability under the
Rehabilitation Act of 1973, plaintiff must show that (1) he is a member of a class
protected by the statute, (2) he was subject to an unwelcome hostile work environment,
(3) the hostile work environment occurred because of his membership in the protected
class, and (4) the hostile work environment affected the terms, conditions or privileges of
his employment because of its severity. Sellers v. Deer & Co., 791 F.3d 938, 945 (8th
Cir. 2015).
In assessing whether the severity of alleged hostile work environment conduct
meets the necessary threshold, courts consider the totality of all the circumstances
presented. Id. This includes how often the conduct occurred, whether it was physically
threatening or humiliating, and whether it unreasonably interfered with the plaintiff’s
performance on the job. Id. (citations omitted). Rude, abrasive, insensitive, or unkind
conduct is insufficient alone to constitute harassment or a hostile work environment
actionable under the Act. Id. The alleged conduct must be “objectively so severe or
pervasive as to alter the conditions of plaintiff’s work environment.” Stipe v. Shinseki,
690 F. Supp. 2d 850, 884 (E.D. Mo. 2010).
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Conduct can constitute unwelcome hostility or harassment and yet not affect the
terms, conditions, or privileges of a plaintiff’s employment. Ryan v. Capital Contractors,
Inc., 679 F.3d 772, 779 (8th Cir. 2012) (finding that physical harassment did not reach
the level of creating a hostile work environment when the plaintiff was able to perform
his duties at work despite the offensive conduct); Stuart v. Gen. Motors Corp., 217 F.3d
621, 633 (8th Cir. 2000) (holding that plaintiff was unable to demonstrate a hostile work
environment because she was able to perform her duties at work unimpeded by the
harassment and declined a transfer to a different location). For the alleged frequency and
type of conduct to meet this standard, “[m]ore than a few isolated incidents are required,
and the alleged harassment must be so intimidating, offensive, or hostile that it poisoned
the work environment.” Blomker v. Jewell, 831 F.3d 1051, 1056–57 (8th Cir. 2016)
(citations omitted). “[S]imple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions
of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).1
Defendant argues that the alleged incidents were isolated events and therefore fail
to state a claim for hostile work environment. One event is alleged to have occurred in
July 2013 (Doc. 26, ¶ 13), a cluster of events occurred six months later in January 2014
(id., ¶¶ 24-33), and one event was undated (id., ¶ 44). There are no allegations in the
complaint of more frequent conduct.
Considering the entirety of plaintiff’s amended complaint, a factfinder can
reasonably infer that plaintiff was subject to an unwelcome hostile work environment
actionable under the Act. The alleged conduct was at times physically threatening –
when objects were thrown at plaintiff or when he was instructed to perform tasks
inconsistent with his medical restrictions – and often humiliating. Even though these
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While some of the cases cited in this section involve claims for hostile work
environment under the Americans with Disabilities Act (“ADA”) or under Title VII,
cases interpreting the ADA and the Rehabilitation Act are interchangeable, because “the
same basic standards and definitions are used under [both].” Ballard v. Rubin, 284 F.3d
957, 960 (8th Cir. 2002). The Eighth Circuit construes the phrase “terms, conditions, or
privileges of employment” with reference to Title VII jurisprudence. Ryan, 679 F.3d at
779.
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alleged incidents were somewhat isolated, they are sufficiently extreme to support an
inference that they affected the conditions of plaintiff’s employment, in that he had to
work in apprehension of being struck by thrown objects, was given assignments outside
of his physical capacity, and had his 1,000 pound toolbox moved to a place where he
could not access it easily to perform his duties.
Accordingly, the motion to dismiss the hostile work environment claim is denied.

D.

Retaliation Claim
Finally, defendant argues that plaintiff’s allegations fail to state a claim for

retaliation and should be dismissed.

The elements of a retaliation claim under the

Rehabilitation Act are that (1) plaintiff participated in activity protected by statute; (2) he
suffered an adverse employment action; and (3) there is a causal connection between the
activity and the adverse action. Turner v. Mull, 784 F.3d 485, 493 (8th Cir. 2015). Like
the disparate treatment claim, an adverse employment action in this context is a “tangible
change in working conditions that produces a material employment disadvantage.” Dick
v. Dickinson State Univ., 826 F.3d 1054, at 1059 (explaining that “termination, cuts in
pay or benefits, and changes that affect an employee’s future career prospects” are
adverse employment actions).
Plaintiff has alleged he participated in statutorily protected activity by filing EEO
charges of discrimination. (Doc. 26, at 3, 4, 7). He has alleged that filing these charges
caused retaliatory conduct: defendants failed to approve an e-travel request that resulted
in the loss of overtime pay, approved of demeaning coworker behavior, and created a
hostile work environment.
Defendants argue that these allegations, even if true, do not rise to the level of
adverse employment actions. They assert that the behavior of plaintiff’s coworkers was
not a “tangible change in working conditions” sufficient to produce a “material
employment disadvantage,” such as termination, a reduction in pay or benefits, or a
change affecting plaintiff’s future career prospects. (Doc. 48 at 6-7) (citing Dick, 826
F.3d at 1059).
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As to plaintiff’s allegation that defendants did not process his e-travel request,
which caused him not to receive overtime pay, defendant argues that plaintiff has not
alleged this claim was justified or that he was properly entitled to this overtime pay, nor
does he allege that his request was properly completed without errors. Defendants also
argue that even if plaintiff was entitled to this pay and it was denied, this occurred a
single time, and this is not sufficient to constitute a tangible change in working conditions
that is required to show an adverse employment action.
Plaintiff has sufficiently pled facts from which a factfinder can reasonably infer
that he experienced an adverse employment action actionable under the Act. Retaliation
claims under Title VII can be based on a hostile work environment and not solely on
discrete adverse employment actions. Burlington N. & Sante Fe Ry. Co. v. White, 548
U.S. 53, 60-70 (2006). The Eighth Circuit has applied this standard to claims under the
ADA, Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1042-46 (8th Cir. 2007), and
to retaliation claims under the Rehabilitation Act. Ballard v. Rubin, 284 F.3d 957, 960
(8th Cir. 2002). Adverse employment actions are those that “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination.” Id. (quoting
Burlington N., 548 U.S. at 68). The court may examine the cumulative effect of allegedly
retaliatory actions; it is not required to determine that each individual action alone was
sufficiently adverse. Kim v. Nash Finch Co., 123 F.3d 1046, 1060 (8th Cir. 1997).
Plaintiff has pled sufficient facts for the court to infer that he endured a hostile
work environment. Although the e-travel denial only occurred a single time and does not
by itself constitute a material employment disadvantage, it can be considered in
conjunction with the other hostile work environment allegations for the positive inference
that plaintiff suffered adverse employment action as a result of his participation in
statutorily-protected activity.
Accordingly, defendant’s motion to dismiss is denied as to the retaliation claim.

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III.

ORDER

For the above reasons,
IT IS HEREBY ORDERED that the motion of defendants to dismiss (Doc. 42)
plaintiff's disparate treatment claim is sustained.
IT IS FURTHER ORDERED that the motion of defendants to dismiss (Doc. 42)
is denied as to plaintiff's claims of hostile work environment and retaliation.
IT IS FURTHER ORDERED that the motion of defendants to dismiss (Doc. 42)
is sustained as to Counts IV and V and all claims against defendants Theodore Nappier
and Gary Barnes in their official and individual capacities.
IT IS FURTHER ORDERED that the unopposed motion of plaintiff for an
extension of the deadline for the parties to designate an ADR neutral (Doc. 51) is
sustained. The parties may select an ADR neutral not later than September 8, 2017,
and conclude the ADR proceedings not later than November 1, 2017.

/s/ David D. Noce
k
UNITED STATES MAGISTRATE JUDGE
Signed on August 10, 2017.

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