Byerly v. Lew

Filing 12

ORDER granting in part and denying in part 5 Defendant's Motion to Dismiss. Signed by Honorable Robin J. Cauthron on 9/29/15. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
PHYLLIS F. BYERLY,
Plaintiff,
v.
JACOB J. LEW, SECRETARY, U.S.
DEPARTMENT OF THE TREASURY
(INTERNAL REVENUE SERVICE),
Defendant.

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Case No. CIV-15-630-C

MEMORANDUM OPINION AND ORDER
Plaintiff, an employee of Defendant, alleges she has been subject to improper
employment actions. Plaintiff’s explanation of the wrongdoing is as follows: She filed an
EEOC complaint raising a number of claims. While this charge was pending, Plaintiff filed
a second EEOC complaint alleging discrimination based on disability, age, hostile work
environment, and reprisal. The Administrative Law Judge (“ALJ”) determined that the
second EEOC complaint set forth the same claims as the first, and therefore dismissed the
second EEOC complaint. Plaintiff appealed that decision and the EEOC Office of Federal
Operations affirmed the dismissal. Plaintiff then brought this action, raising claims under
the Fifth and Fourteenth Amendments to the United States Constitution, the Age
Discrimination in Employment Act (“ADEA”), and the Rehabilitation Act of 1973
(“Rehabilitation Act”). Defendant filed a Motion to Dismiss challenging certain portions
of Plaintiff’s claim.

First, as to the due process claim, Defendant argues that claim is barred by
Fed. R. Civ. P. 12(b)(1) or Fed. R. Civ. P. 12(b)(6). According to Defendant, Plaintiff has
failed to demonstrate a waiver of sovereign immunity which would permit her to bring her
due process claim against Defendant. Therefore, Defendant argues, the Court lacks subject
matter jurisdiction in the case, and that portion of the case should be dismissed.
Alternatively, Defendant argues that Plaintiff’s due process claim fails because any
decisions of the EEOC are non-binding and subject to de novo review. Consequently,
Plaintiff cannot establish that she has failed to receive an appropriate level of process on
this claim. In response, Plaintiff argues that because the statutes governing Defendant give
it the authority to sue and be sued, that statute is sufficient to waive sovereign immunity
and that she has stated a claim for relief.
In order to proceed on her due process claim, Plaintiff bears the burden of
establishing a waiver of sovereign immunity that would allow her to recover monetary
damages for the alleged constitutional violation. As Defendant notes, Plaintiff has failed
to meet this burden. In essence, what Plaintiff seeks to pursue is a claim pursuant to Bivens
v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Bivens permitted an individual injured by a federal agent to raise a violation of the Fourth
Amendment and seek monetary damages against the agent. However, since that case, the
Supreme Court has noted the narrow scope of Bivens claims. Decisive here is the fact that,
rather than naming the individual employee, Plaintiff has brought her action against the

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agency. As Bivens made clear, a direct action against a governmental agency is not
available under that theory. Bivens, 403 U.S. at 410, Harlan, J. concurring in the judgment.
See also FDIC v. Meyer, 510 U.S. 471, 485 (1994). Accordingly, Plaintiff has failed to
meet her burden of demonstrating a waiver of Defendant’s sovereign immunity which
would entitle her to pursue her due process claim. Therefore, that claim will be dismissed
without prejudice.
Defendant next challenges Plaintiff’s ADEA claim, arguing that she has failed to
plead facts to establish a plausible disparate treatment claim.

Paragraph 22 of

Plaintiff’s Complaint offers eight subparagraphs in support of her claim of age
discrimination. Defendant argues that these paragraphs are conclusory and fail to provide
sufficient factual support to state a claim for relief. After review, the Court finds that
Plaintiff’s paragraphs are sufficient to raise a right to relief that is above the speculative
level and the allegations state a claim of violation of the ADEA that is plausible on its face.
Whether ultimately Plaintiff’s ADEA claim comes as a hostile work environment or a
disparate treatment claim need not be resolved at this stage. Rather, Defendant has been
made aware of the acts which Plaintiff alleges violated her rights under that statute.
Therefore, Defendant’s Motion to Dismiss the ADEA claim for failure to state a claim will
be denied.
Defendant challenges Plaintiff’s claims under the Rehabilitation Act, arguing she
has failed to set forth any factual basis on which a perceived disability or actual disability

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could be determined. Defendant’s argument places too high a burden on Plaintiff at this
stage of the proceedings.
A prima facie case of ADA discrimination consists of three elements: the
plaintiff (1) is a disabled person as defined by the ADA; (2) is qualified, with
or without reasonable accommodation, to perform the essential functions of
the job held or desired; and (3) suffered discrimination by an employer or
prospective employer because of that disability.
Zwygart v. Board of County Comm’rs of Jefferson Cnty., Kan., 483 F.3d 1086, 1090-91
(10th Cir. 2007) (citing MacKenzie v. City & County of Denver, 414 F.3d 1266, 1274 (10th
Cir. 2005)).* Although the factual support is sparse, Plaintiff has satisfied these elements.
Accordingly, Defendant’s challenge to Plaintiff’s claims under the Rehabilitation Act will
be denied.
Finally, Defendant challenges Plaintiff’s request for compensatory damages under
the ADEA. In support, Defendant notes that the United States has not waived its sovereign
immunity for compensatory damages claims under the ADEA, relying on Villescas v.
Abraham, 311 F.3d 1253, 1261 (10th Cir. 2002). In her Complaint Plaintiff seeks medical
costs incurred and emotional distress damages. Neither of those categories of damages are
permissible against a federal entity under the ADEA. Id. Rather, it is only lost wages that
may be claimed as damages. Smith v. Office of Personnel Mgmt., 778 F.2d 258, 261 (5th
Cir. 1985) (“We conclude that a government employee’s damages are limited to lost wages

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Plaintiff proceeds under the Rehabilitation Act. The Court uses the ADA standards
to evaluate Rehabilitation Act claims. See 29 U.S.C. § 794(d); McGeshick v. Principi, 357
F.3d 1146, 1150 (10th Cir. 2004).
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. . . .”). Therefore, the relief requested in ¶¶ 27(d) and (e) of Plaintiff’s Complaint will be
stricken.
For the reasons set forth herein, Defendant’s Motion to Dismiss (Dkt. No. 5) is
GRANTED IN PART and DENIED IN PART. Plaintiff’s claims under the Rehabilitation
Act and ADEA remain; all other claims of relief are dismissed without prejudice.
IT IS SO ORDERED this 29th day of September, 2015.

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