Moore v. Vilsack
Filing
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ORDER granting 7 Motion for Judgment on the Pleadings. Signed by Senior Judge W. Earl Britt on 12/16/2016. Order to plaintiff via US Mail at 3617 Carlow Court, Raleigh, NC 27612. (Marsh, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO: 5:16-CV-290-BR
WARTE T. MOORE,
Plaintiff,
v.
TOM J. VILSACK, SECRETARY, UNITED
STATES DEPARTMENT OF
AGRICULTURE,
Defendant.
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ORDER
This matter is before the court on defendant United States Department of Agriculture’s
(“USDA” or “defendant”) motion to dismiss or, alternatively, motion for judgment on the
pleadings. (DE # 7.) Plaintiff has not filed a response to the motion, and the time within which
to do so has expired. This matter is ripe for disposition.
I. BACKGROUND
Plaintiff, who suffers from dyslexia, worked as a Risk Management Specialist with the
Risk Management Agency of the USDA from 1 October 2006 until 24 September 2012.
(Compl., DE # 1-1, ¶¶ 3-5.) At the beginning of his employment, plaintiff informed his
supervisors of his dyslexia, “which causes him to have difficulty reading and digesting materials
at as fast a pace as those not so impaired,” and “requested reasonable accommodation.” (Id. ¶ 5.)
In January 2011, plaintiff filed an Equal Employment Opportunity (“EEO”) complaint
alleging discrimination due to his disability, which defendant settled on 18 June 2011. (Id. ¶ 6.)
Plaintiff was promoted as a result of the settlement. (See id.)
In September 2011, after a folder containing work from one of plaintiff’s assignments
went missing from his desk, plaintiff’s supervisors gave him four days to reconstruct the folder.
(Id. ¶ 7.) In November 2011, plaintiff filed a second EEO complaint. (Id. ¶ 9; see also Def.’s
Mem., Ex.1, DE # 8-1, at 12-17.) This complaint was investigated, referred for hearing to an
Administrative Judge, and then plaintiff withdrew his request for a hearing. (Compl., DE # 1-1,
¶ 9; Answer, Ex. 2, DE # 5-2, at 2.) On 26 June 2013, the USDA issued a Final Agency
Decision concluding that the Agency did not discriminate against plaintiff based on his
disability; did not deny him a reasonable accommodation; did not subject him to a hostile work
environment; and did not retaliate against him for filing the initial EEO complaint in January
2011. (Def.’s Mem., Ex. 3, DE # 5-3.) On 15 July 2015, the EEO Commission affirmed the
USDA’s decision. (Answer, Ex. 2, DE # 5-2 at 2.) On 3 February 2016, the Commission denied
plaintiff’s request for reconsideration. (Compl., DE # 1-1, ¶ 13; Def,’s Mem., Ex 4, DE # 5-4.)
On 29 April 2016 plaintiff filed the instant complaint in North Carolina state court. He
alleges “that th[e] short, four-day reconstruction period was intentionally and unreasonably short
and reprisal for his filling a successful EEO complaint.” (Compl., DE # 1-1, ¶ 7.) He also
alleges that he was subjected to a hostile work environment, (see id. ¶¶ 15, 17), and that there
was a “failure to accommodate his work place needs due to his disability,” (id. ¶ 16). He asserts
claims pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) , 42 U.S.C. § 2000e et
seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; the Rehabilitation
Act, 29 U.S.C. § 791 et seq.; and the North Carolina Persons with Disabilities Protection Act
(“NCPDPA”), N.C. Gen. Stat. §§ 168A-1 et seq. (Compl., DE # 1-1, ¶¶ 14-22.) Defendant
removed the action to this court on 26 May 2016. (DE # 1.)
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Defendant answered plaintiff’s complaint on 5 July 2016. (DE # 5.) On 19 August 2016,
defendant filed the instant motion to dismiss for failure to state a claim upon which relief can be
granted pursuant to Federal Rule of Civil Procedure 12(b)(6) or, alternatively, for judgment on
the pleadings pursuant to Rule 12(c), among other grounds. (DE # 7.)
II. DISCUSSION
A Rule 12(c) motion for judgment on the pleadings based on failure to state a claim for
relief is reviewed under the same standard as a motion to dismiss under Rule 12(b)(6). Massey
v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014). To survive dismissal, a party must allege in his
complaint “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 548 (2007). The plausibility standard is met “when the plaintiff pleads
factual content that allows 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). However, a complaint
that proffers only “a formulaic recitation of the elements of a cause of action,” Twombly, 550
U.S. at 555, with no “further factual enhancement” is insufficient, id. at 557. In determining
whether a plaintiff has sufficiently alleged his claims, the court must accept as true all of the
plaintiff’s well-pleaded allegations and must draw all reasonable factual inferences in favor of
the plaintiff. Massey, 759 F.3d at 353. Additionally, the court may consider documents that the
parties attached as exhibits to their pleadings, Occupy Columbia v. Haley, 738 F.3d 107, 116
(4th Cir. 2013), and those that are attached to the motion which are “clearly integral to, and []
relied upon in, [the] complaint” and whose authenticity is not questioned, Blankenship v.
Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006).
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In his complaint, plaintiff appears to attempt to assert claims for retaliation based on the
short file reconstruction period, hostile work environment, and failure to accommodate. The
court will discuss these claims under each alleged basis for liability.
A.
Title VII and ADA Claims
Title VII does not protect an employee from discrimination based on disability, see
Schmidt v. Town of Cheverly, Md., No. GJH-13-3282, 2016 WL 4544003, at *5 (D. Md. Aug.
30, 2016) (“Disability is not a protected class under Title VII, which only protects employment
discrimination based on ‘race, color, religion, sex, or national origin[.]’” (citing 42 U.S.C. §
2000e-2)), or “from retaliation where the protected activity involves an alleged disability,”
Dones v. Donahue, 987 F. Supp. 2d 659, 671 n.4 (D. Md. 2013). Although the ADA protects
against disability-based discrimination and retaliation, it does not apply when the federal
government is the employer, 42 U.S.C. § 12111(5)(B); Cassity v. Geren, 749 F. Supp. 2d 380,
384 (D.S.C. 2010). Accordingly, plaintiff, as a former federal employee, suing based on an
alleged disability cannot state a claim under either of these statutes.
B.
Rehabilitation Act Claims
While Title VII and the ADA do not apply under the facts alleged here, the Rehabilitation
Act does. Section 501 of the Rehabilitation Act “provide[s] for employment of disabled
individuals by federal departments, agencies, and instrumentalities and the formation of
affirmative action plans in federal employment.” Jones v. Am. Postal Workers Union, Nat’l, 192
F.3d 417, 428 (4th Cir. 1999); see also 29 U.S.C. § 791. It “prohibits discrimination on the basis
of disability in employment decisions by the Federal Government.” Lane v. Pena, 518 U.S. 187,
193 (1996); see also Dank v. Shinseki, 374 F. App'x 396, 398 n.2 (4th Cir. 2010). The Act also
bars retaliation “against any individual because such individual has opposed any act or practice
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made unlawful by [the ADA or the Rehabilitation Act] or because such individual made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under [the ADA or Rehabilitation Act].” 42 U.S.C. § 12203(a); see also 29 U.S.C. §
791(f) (Rehabilitation Act’s incorporation of the ADA’s standards); Hooven-Lewis v. Caldera,
249 F.3d 259, 272 (4th Cir. 2001) (recognizing that the Rehabilitation Act incorporates the
ADA’s anti-retaliation provision).
As recognized previously, plaintiff appears to attempt to assert three different claims: (1)
retaliation based on the short file reconstruction period; (2) hostile work environment; and (3)
failure to accommodate. The court examines each of these claims under the Rehabilitation Act.
1.
Retaliation Based on Short File Reconstruction Period
To allege a plausible retaliation claim under the Rehabilitation Act, a plaintiff must
provide sufficient facts which demonstrate “(1) that he engaged in protected conduct; (2)
suffered an adverse action; and (3) that a causal link exists between the protected conduct and the
adverse action.” Stokes v. Benham, No. 3:14-CV-536-JAG, 2015 WL 4139274, at *6 (E.D. Va.
July 8, 2015) (alteration removed) (citing A Society Without a Name v. Virginia, 655 F.3d 342,
350 (4th Cir. 2011); Hooven–Lewis, 249 F.3d at 272)), aff'd, 626 F. App'x 431 (4th Cir. 2015),
cert. denied, No. 16-5626, 2016 WL 4399690 (U.S. Oct. 17, 2016). Plaintiff’s filing of his initial
EEO complaint in January 2011 constitutes a protected activity, see id., and the court will
assume without deciding that defendant’s imposition of a four-day file reconstruction period is
an adverse employment action. Therefore, the remaining issue is whether plaintiff has
sufficiently alleged causation.
While temporal proximity may sometimes be sufficient to support causation, the seven
months between plaintiff’s filing of his initial EEO complaint and defendant’s imposition of the
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short reconstruction period is not sufficiently close so as to show a causal connection between
the two events. See Perry v. Kappos, 489 F. App'x 637, 643 (4th Cir. 2012) (“Although neither
we nor the Supreme Court have adopted a bright temporal line, we have held that a three- or
four-month lapse between the protected activities and discharge was ‘too long to establish a
causal connection by temporal proximity alone[.]’” (citing Pascual v. Lowe's Home Ctrs., Inc.,
193 F. App’x 229, 233 (4th Cir. 2006)). Even when that time is coupled with the allegation that
defendant had not previously imposed a “short assignment completion date,” (Compl., DE # 1-1,
¶ 8), plaintiff has failed to provide sufficient facts to state a claim for retaliation based on the
short file construction period.
2.
Hostile Work Environment
In order to establish a hostile work environment claim under the Rehabilitation Act, a
claimant must demonstrate that he “(1) is a qualified individual with a disability; (2) was subject
to unwelcome harassment; (3) the harassment was based on h[is] disability; (4) the harassment
was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and
(5) some factual basis for imputing liability to the employer.” Edmonson v. Potter, 118 F. App'x
726, 730 (4th Cir. 2004) (citing Fox v. GMC, 247 F.3d 169, 177 (4th Cir. 2001)).
The
employer’s conduct must be “objectively hostile, such that a reasonable person would so
perceive it as such.” Id. (citing Fox, 247 F.3d at 178). “Factors to be considered in analyzing
th[is] objective component include the frequency and severity of the discriminatory conduct,
whether it is physically threatening or humiliating rather than being a mere offensive utterance,
and whether it unreasonably interferes with an employee's work performance.” Id. (citing Fox,
247 F.3d at 178).
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From the allegations in the complaint, it is not clear what acts plaintiff contends
constitute harassment. He alleges that “the Report of Investigation provided evidentiary
submissions and numerous examples of comments, harassment, and actions which constituted a
hostile work environment . . . .” (Compl., DE # 1-1, ¶ 15; see also id. ¶ 16 (“Plaintiff also
provided, to the EEO investigator, the dates and details of his harassment . . . .”).) The Report
of Investigation, citing plaintiff’s affidavit, notes that plaintiff “asserts hostile work environment
because he believed the work folder was removed from his desk to sabotage his work efforts.”
(DE # 8-1, at 6.) As further support for his claim of hostile work environment, the Report notes
plaintiff also complains about being denied extended due dates on an unspecified number of
assignments, which made him feel his work was being scrutinized. (Id. at 8.) Another incident
of purported harassment was plaintiff’s supervisor’s failure to respond to plaintiff’s email
volunteering to serve as a trainer, which made plaintiff “feel that his willingness to contribute
was not valued.” (Id. at 9.) Finally, plaintiff complained that a failure with his email
notification caused him to miss deadlines for two assignments and caused him to become upset.
(Id. at 10.)
The court assumes these incidents are the bases for plaintiff’s hostile work environment
claim. Even if these allegations were in plaintiff’s complaint, he still has not sufficiently alleged
a hostile work environment claim. While no doubt the incidents were subjectively unwelcome to
plaintiff, see Fox, 247 F.3d at 178 (recognizing that to establish a hostile work environment
claim the plaintiff must have “subjectively perceived his workplace as hostile”), they are not
sufficiently severe or pervasive to be actionable. They appear to be isolated, having occurred in
2011 over a period of months. The incidents were not physically threatening or humiliating.
While some may have arguably interfered with his ability to timely complete his work, there is
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nothing to indicate that they unreasonably did so. As such, the court concludes that plaintiff has
not sufficiently alleged that defendant’s conduct was severe or pervasive so as to constitute a
hostile work environment.
3.
Failure to Accommodate
The elements of a failure to accommodate claim under the Rehabilitation Act are “(1)
[plaintiff] was an individual with a disability in the name of the ADA; (2) the [agency] had
notice of h[is] disability; (3) with reasonable accommodation, [plaintiff] could perform the
essential functions of the position; and (4) the [agency] refused to make such accommodation.”
Works v. Colvin, 519 F. App'x 176, 186 (4th Cir. 2013) (citing Rhoads v. FDIC, 257 F.3d 373,
387 n.11 (4th Cir. 2001)). “A reasonable accommodation is one that is feasible or plausible.”
Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 414 (4th Cir. 2015) (citation omitted).
“An employer may reasonably accommodate an employee without providing the exact
accommodation that the employee requested. Rather, the employer may provide an alternative
reasonable accommodation.” Id. at 415 (citation omitted). Reasonableness is gauged
objectively. Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 350 (4th Cir. 1996).
In his complaint, plaintiff alleges that he “informed his supervisors of his impairment,
due to disability, and requested reasonable accommodation, for the same, at the very beginning
when he started working at USDA, Risk Management Agency, since the year 2006.” (Compl.,
DE # 1-1, ¶ 5.) He further alleges that he provided the EEO investigator the details related to
defendant’s “failure to accommodate his work place needs due to his disability.” (Id. ¶ 16.)
Plaintiff does not allege any specific facts regarding defendant’s purported failure to
accommodate his disability.
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In the Report of Investigation, the EEO investigator noted that, because of his disability,
plaintiff contends he needs additional time to complete assignments, and when he requested
extensions of due dates on assignments, his supervisor accommodated the request on some
assignments and denied it for other assignments. (DE # 8-1, at 8.) The Report goes on to state
that the deadlines that were not extended were mandatory and set by federal regulation. (Id.)
With such assignments, plaintiff received assistance from other staff to enable their timely
completion. (Id. at 8-9.) The court assumes plaintiff’s failure to accommodate claim is based on
defendant’s refusal to grant extensions of time on these assignments.
Under the circumstances here, plaintiff’s requested accommodation in the form of
extending a deadline set by federal regulation was not feasible. However, he received a
reasonable accommodation. Although plaintiff did not receive the accommodation he requested,
he did receive assistance to complete those deadlines which could not be extended by law. That
assistance was a reasonable, alternative accommodation. As such, plaintiff cannot state a failure
to accommodate claim.
C.
NCPDPA Claim
Under the NCPDPA, “[o]nce a qualified person with a disability has requested an
accommodation, . . . an employer, employment agency, labor organization, place of public
accommodation, or covered governmental entity shall investigate whether there are reasonable
accommodations that can be made and make reasonable accommodations . . . .” N.C. Gen. Stat.
§ 168A-4(b). “‘Employer’ means any person employing 15 or more full-time employees within
the State . . . .” Id. § 168A-3(2). “‘Person’ includes any individual, partnership, association,
corporation, labor organization, legal representative, trustee, receiver, and the State and its
departments, agencies, and political subdivisions.” Id. § 168A-3(7). A “covered governmental
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entity” is “any State department, institution, agency, or any political subdivision of the State or
any person that contracts with a State department, institution, agency, or political subdivision of
the State for the delivery of public services, including, but not limited to, education, health,
social services, recreation, and rehabilitation.” Id. § 168A-3(1).
The federal government does not qualify under the NCPDPA as an employer, covered
governmental entity, or person who contracts with the State and therefore is not subject to the
Act’s requirements to accommodate its employees with disabilities. Furthermore, even if the
NCPDPA applied to the federal government, plaintiff’s claims would still be dismissed for the
reasons stated previously. See Mayfield v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 713 F.
Supp. 2d 527, 541 n.5 (W.D.N.C. 2010) (“North Carolina courts ‘look to federal decisions for
guidance in establishing evidentiary standards and principles of law to be applied in
discrimination cases.’ N.C. Dep't of Corr. v. Gibson, 308 N.C. 131, 137, 301 S.E.2d 78 (1983);
see also Johnson v. Bd. of Trs. of Durham Tech. Comm. College, 157 N.C.App. 38, 46, 577
S.E.2d 670 (2003) (stating that the [NC]PDPA ‘is the North Carolina equivalent of the ADA,
sharing the common purpose of providing against disability discrimination’)”), aff’d, 674 F.3d
369 (4th Cir. 2012).
III. CONCLUSION
For the reasons set forth above, defendant’s motion for judgment on the pleadings is
GRANTED, and plaintiff’s claims are DISMISSED WITHOUT PREJUDICE for failure to state
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a claim. The Clerk is DIRECTED to enter judgment and close this case.
This 16 December 2016.
__________________________________
W. Earl Britt
Senior U.S. District Judge
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