Jacox v. Lynch

Filing 21

ORDER Adopting 18 Report and Recommendations; Granting 9 Motion to Dismiss for Failure to State a Claim; Denying 17 Motion; Denying 19 Motion and Dismissing Complaint. Signed by Judge Sheryl H. Lipman on 4/17/17. (Lipman, Sheryl)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KAREEM JACOX,
Plaintiff,
v.
JEFF SESSIONS, Attorney General of the
United States,
Defendant.

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No. 16-cv-2303-SHL-dkv

ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING
PLAINTIFF’S OBJECTION TO THE CHIEF MAGISTRATE JUDGE’S
ORDER AND DISMISSING COMPLAINT

On May 5, 2016, Plaintiff Kareem Jacox filed his pro se Complaint, alleging that his
former employer, the Drug Enforcement Administration (the “DEA”), discriminated against him
based on his physical and mental disabilities, his gender and in retaliation for engaging in
protected activities. (Compl., ECF No. 1.) On September 12, 2016, Defendant Loretta Lynch, 1
then Attorney General of the United States, filed a Motion to Dismiss (ECF No. 9), to which
Plaintiff filed his response on September 21, 2016 (ECF No. 10). Defendant filed a Reply on
October 3, 2016. (ECF No. 11.) 2 Without leave of Court, Plaintiff filed a pro se Amended
Complaint on October 21, 2016. (ECF No. 14.) On October 27, 2016, Defendant filed a Motion

1

The Clerk is directed to substitute Jeff Sessions, Attorney General of the United States, for
Loretta Lynch as Defendant. See Fed. R. Civ. P. 25(d).
2
Plaintiff filed an additional response on October 11, 2016. (ECF No. 12.) To the extent
Plaintiff intended to file a sur-reply, the Court will not consider it herein because it was filed
without leave of Court. Additionally, as the Chief Magistrate Judge noted, Plaintiff’s arguments
in that filing were merely repetitive of his earlier filings.

to Strike Plaintiff’s Amended Complaint (ECF No. 15), which the Chief Magistrate Judge
granted on October 28, 2016. (ECF No. 16.)
On November 7, 2016, Plaintiff filed a Motion, objecting to the Chief Magistrate Judge’s
Order striking his Amended Complaint. (ECF No. 17.) Subsequently, on November 23, 2016,
the Chief Magistrate Judge submitted a Report and Recommendation (“R&R”), recommending
that the Court grant Defendant’s Motion to Dismiss for failure to state a claim upon which relief
may be granted and for failure to exhaust administration remedies. (ECF No. 18.) Plaintiff filed
his objection to the R&R on December 2, 2016. (ECF No. 19.) Defendant has not responded.
STATEMENT OF THE CASE
I.

Factual Allegations: 3
Plaintiff was hired by the DEA in 2004 and became a Special Agent in 2005. (Compl. 5,

ECF No. 1.) He was called into active duty from the Army Reserves from April 2013 through
December 2013, during which time he suffered from serious and chronic health conditions. (Id.)
Beginning in October 2013, Plaintiff notified the DEA’s Health Services Unit that the changes in
his health may affect his role as a Special Agent. (Id.) On December 12, 2013, Plaintiff
informed Defendant in writing that he was released from active duty, that his healthcare provider
took him off work because he was completely disabled and that he would be undergoing
complex healthcare services. (Id. at 6.) He also sent Defendant’s management personnel
requested medical records, and was placed on limited duty. (Id.; Mem., ECF No. 1-7 at PageID
325.)
In January 2014, pursuant to the requirements of the Federal Employees Retirement
System (“FERS”), Plaintiff began the process of applying for disability from the Social Security
3

The following recitation of the facts is taken from Plaintiff’s Complaint, as well as the exhibits
attached thereto, and are accepted as true for purposes of this Order.
2

Administration (“SSA”). On January 16, 2014, he submitted an SSA form to his direct
supervisor, Gabe Bewley, to be completed and returned within seven days. (Compl. 7, ECF No.
1.) On January 21, 2014, Mr. Bewley informed Plaintiff that he had given the letter to his
Supervisor, Brian Chambers, who in turn informed Plaintiff that he sent the letter to Michael
Stanfill, the Assistant Special Agent in charge of Tennessee. (Id. at 7-8.) On either January 22
or 23, 2014, an SSA representative, Alicia Moore, contacted Plaintiff to inform him that she had
received a call from Mr. Stanfill, requesting Plaintiff’s healthcare information. (Id. at 9.)
Plaintiff advised Ms. Moore that he did not authorize her to reveal any of his protected
healthcare information to Mr. Stanfill. (Id.) Mr. Bewley then informed Plaintiff that he could
not complete the form because he could not assess Plaintiff’s productivity percentage, which was
required for the form. (Id. at 10-11.) On February 26, 2014, Mr. Stanfill informed Plaintiff that
they could not complete the form and “could not help Plaintiff if they did not know what’s going
on with him.” (Id. at 13.) That same day, Plaintiff filed an online complaint for harassment
against Mr. Stanfill based on Stanfill’s attempt to obtain information about Plaintiff’s medical
condition. (Id.)
Also on February 26, 2014, Plaintiff received two memoranda. The first, sent by Harry
Sommers, the Special Agent in Charge, Atlanta Field Division, placed Plaintiff on five days
administrative leave for his “recent erratic behavior,” including “leaving the office early without
supervisory approval, disputing [his] established work hours, accusing [his] supervisors of
attempts to determine [his] medical condition and harassing behavior.” 4 (Mem., ECF No. 1-8 at
PageID 399.) The second memorandum, sent by Mr. Stanfill, was to “readdress [his] established
working hours while [he is] on Limited Duty and receiving Availability Pay.” (Id. at PageID
4

As part of this leave, Plaintiff was directed to surrender his badge and all government property
in his possession. (Compl. 14, ECF No. 1.)
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400-01.) This memorandum addressed a disagreement between the parties over Plaintiff’s duty
hours. (Id.) Specifically, Mr. Stanfill indicated that, for Plaintiff to retain “Availability Pay,” his
duty hours were to be Monday through Friday, 8:30 a.m. to 7:00 p.m., rather than 8:00 a.m. to
4:30 p.m., which were the hours Plaintiff had been working prior to that time. (Id.)
On March 11, 2014, Plaintiff alleges that Mr. Bewley informed him that Mr. Chambers
wanted Plaintiff to write “a series of Memorandums for medical necessity for work hours,”
although Plaintiff does not indicate what those memorandums were comprised of or why he was
required to write them. (Compl. 21, ECF No. 1.) Then, on March 12, 2014, Mr. Chambers
formally referred Plaintiff to the Employee Assistance Program out of concern for his “erratic
behavior.” (Mem., ECF No. 1-8 at PageID 402-04.) On the same day, Plaintiff contacted the
Atlanta Field Division Officer to file another harassment complaint. (Compl. 21, ECF No. 1.)
On March 21, 2014, Plaintiff was reassigned to report to Mr. Chambers, which Plaintiff alleges
did not follow standard agency procedures. (Id.) Plaintiff alleges that “[o]ther Special Agents in
Tennessee that had [sic] issued medical advisories by the Health Services Unit were treated more
favorable than Plaintiff when they were not subjected to harassment allegations levied against
them for erratic behavior.” (Id. at 18.)
On April 11, 2014, Plaintiff requested sick leave beginning April 18, 2014, which
Defendant initially denied. (Id. at 22.) Plaintiff alleges that a request for sick leave requires
mandatory approval when requested by a disabled veteran. (Id.) On April 18, 2014, Mr.
Chambers informed Plaintiff that his sick leave request was approved by DEA headquarters.
(Id.) Meanwhile, on April 17, 2014, Mr. Chambers issued Plaintiff a Suitability Review Protocol
(“SRP”) Evaluation memorandum, dated April 15, 2014, which requested that Plaintiff go to
Washington, D.C. on May 5 through May 8, 2014 for an evaluation. (Id.; Mem., ECF No. 1-10

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at PageID 447.) On April 22, 2014, Plaintiff received another SRP, rescheduling the evaluation
for May 27-28, 2014, in Washington, D.C. (Compl. 22, ECF No. 1; Mem., ECF No. 1-10 at
PageID 449-50.) Plaintiff was instructed that his failure or refusal to report for a scheduled SRP
would subject him to disciplinary action, “up to and including removal.” (Mem., ECF No. 1-10
at PageID 449.) Plaintiff refused to sign the “Acknowledgement of Receipt” page on the second
SRP memorandum and did not appear in Washington, D.C. in May 2014, as ordered. (Id. at
PageID 456.) A third SRP memorandum issued September 24, 2014, scheduled an SRP
evaluation process for October 20-21, 2014. (Id.)
On September 5, 2014, Plaintiff was issued a memorandum placing him on leave
restriction due to his “excessive use of unscheduled leave since July 2014.” (Id. at PageID 451.)
On September 17, 2014, Plaintiff filed an employment discrimination complaint with the
Department of Justice (“DOJ”) against the DEA, alleging discrimination based on disability and
retaliation. (Exh. 1, ECF No. 1-1.) Plaintiff then retired on October 31, 2014. (Compl. 23, ECF
No. 1.) The DOJ issued a final decision on the complaint on February 2, 2016, concluding that
Plaintiff was not subjected to either disparate treatment or a hostile work environment based on
disability or reprisal. (Exh. 1, ECF No. 1-1.) Thereafter, Plaintiff filed the present Complaint,
which was timely filed within 90 days of the final decision of the DOJ. See 29 C.F.R. §
1614.407(a).
II.

Procedural Posture
Plaintiff filed this pro se Complaint on May 6, 2016, challenging the decision of the DOJ

and asserting that his former employer, the DEA, discriminated against him based on his alleged
mental and physical disability, in violation of the Americans with Disabilities Act (the “ADA”)
and the Rehabilitation Act of 1973, and retaliated against him for engaging in protected activity,

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in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (“Title
VII”) 5 and the Rehabilitation Act. (Compl., ECF No. 1.) Defendant filed a Motion to Dismiss
(ECF No. 9) on September 12, 2016, arguing that Plaintiff’s disability discrimination and
retaliation claims fail to state a claim upon which relief may be granted and that all other claims
by Plaintiff were not administratively exhausted. On November 23, 2016, the Chief Magistrate
Judge issued a Report and Recommendation, recommending that Defendant’s Motion to Dismiss
be granted. (ECF No. 18.) Plaintiff filed a timely objection on December 2, 2016 (ECF No. 19),
to which Defendant did not respond.
Although Plaintiff’s filing lacks specific objections, 6 the Court construes his submission
as lodging two general objections to the Chief Magistrate Judge’s findings. First, Plaintiff
objects to the finding that he fails to establish a prima facie case of disability discrimination
because he has not established that other non-protected employees were treated differently than
him. (ECF No. 19.) Next, he objects to the finding that he has not established a prima facie case
of retaliation because he has not shown that the DEA took adverse action against him in response
to a protected activity. It does not appear that Plaintiff has objected to any other findings of fact
or law by the Chief Magistrate Judge.

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As noted by the Chief Magistrate Judge, Plaintiff does not allege any facts implicating Title
VII, and, therefore, the Court will construe his retaliation claims as brought under the
Rehabilitation Act. (See ECF No. 18 at 14-15.)
6
In his objection, Plaintiff primarily discusses his assertion that he has standing to pursue his
claims here. The Chief Magistrate Judge did not find that Plaintiff lacked standing, nor did
Defendant raise the issue of standing in the Motion to Dismiss. Therefore, the Court can only
assume that Plaintiff misinterpreted the Chief Magistrate Judge’s finding that he failed to state a
claim as a finding that he lacked standing. Because there is no challenge to standing, the Court
does not address the issue herein.
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ANALYSIS
I.

Standard of Review
A magistrate judge may submit to a judge of the court proposed findings of fact and

recommendations for dismissal of a complaint for failure to state a claim upon which relief can
be granted. 28 U.S.C. § 636(b)(1)(B). “A judge of the court shall make a de novo determination
of those portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 149 (1985). “A
general objection that does not identify specific issues from the magistrate’s report is not
permitted because it renders the recommendations of the magistrate useless, duplicates the
efforts of the magistrate, and wastes judicial economy.” Johnson v. Brown, 2016 WL 4261761,
at *1 (E.D. Kent. August 12, 2016) (citing Howard v. Sec’y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991)). “A general objection to the entirety of the magistrate’s report has
the same effects as would a failure to object.” Howard, 932 F.2d at 509. After reviewing the
evidence, the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1)(C). The district court
need not review findings that are not objected to under a de novo or any other standard. Thomas,
474 U.S. at 150.
In reviewing Plaintiff’s objections, the Court applies the Federal Rule of Civil Procedure
12(b)(6) standard. Under that standard, a court must determine whether the plaintiff has stated a
plausible claim upon which relief may be granted, while “constru[ing] the complaint in the light
most favorable to the plaintiff, accept[ing] its allegations as true, and draw[ing] all reasonable
inferences in favor of the plaintiff.” DirecTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007).
“Although for the purposes of a motion to dismiss we must take all of the factual allegations in

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the complaint as true, we are not bound to accept as true a legal conclusion couched as a factual
allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation
omitted).
II.

Failure to State a Claim
In the R&R, the Chief Magistrate Judge concluded that Plaintiff’s Complaint fails to state

a claim upon which relief may be granted for either disability discrimination or retaliation. (ECF
No. 18.) The Court reviews de novo Plaintiff’s specific objections to the findings of the R&R.
The Court agrees with the Chief Magistrate Judge that Plaintiff has not set forth viable disability
discrimination and retaliation claims.
A.

Disability Discrimination Claim

In the R&R, the Chief Magistrate Judge found that Plaintiff fails to state a prima facie
claim for disability discrimination because (1) he has not alleged that, even with reasonable
accommodations, he would have been able to perform his duties as a Special Agent; and (2) he
has not shown how similarly situated non-protected employees were treated differently than him.
Of the Chief Magistrate Judge’s findings, Plaintiff objects with the necessary specificity only as
to the finding that he fails to show that similarly situated nondisabled employees were treated
differently. This Court notes that Plaintiff’s claim fails as a matter of law based on the finding
which was not objected to, but will also address the objection.
To establish a prima facie case for a disability discrimination under the ADA and the
Rehabilitation Act based on circumstantial evidence, which is the basis of Plaintiff’s allegations,
a plaintiff must show: (1) that he is disabled; (2) that he is otherwise qualified for the position,
with or without reasonable accommodation; (3) that he suffered an adverse employment action;
(4) that the employer knew or had reason to know of his disability; and (5) he was either replaced

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by a nondisabled person or his position remained open while the employer sought other
applications. Daughtery v. Sajar Plastics, Inc., 544 F.3d 696, 703 (6th Cir. 2008) (quoting Macy
v. Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 365 (6th Cir. 2007). The last prong “may also
be satisfied by showing that similarly situated non-protected employees were treated more
favorably.” Jones v. Potter, 488 F.3d 397, 404 (6th Cir. 2007) (quoting Talley v. Bravo Pitino
Rest., Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995)).
In addition to the finding that Plaintiff failed to allege that he could perform his job
functions with reasonable accommodations, which was not objected to, the Chief Magistrate
Judge also found that Plaintiff failed on the last prong because he did not allege how similarly
situated non-protected employees were treated more favorably than him. In his Complaint, he
only claims that the DEA “did not show the same interest in other persons with disabilities when
they were placed on limited duties and issued medical advisories.” (Compl. 18-19, ECF No. 1.)
In his objection, Plaintiff argues that he has met this prong by showing (1) that other reassigned
employees were not reassigned by Mr. Stanfill, but by the Senior Agent in charge (“SAC”) of the
Atlanta Field Division; and (2) that no other employees have had their leave denied. (Obj. 4,
ECF No. 19.) However, Plaintiff does not address how any of these employees are allegedly
similarly situated to him, other than working in the Memphis Field Office, which is a fatal flaw
in his allegations. Therefore, Plaintiff still fails to establish the final prong of the prima facie
case.
Even if Plaintiff could establish the final prong, as previously noted, he has failed to raise
a specific objection to the Chief Magistrate Judge’s additional finding that he has not alleged
that, even with reasonable accommodations, he would have been able to perform his job as a

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Special Agent. The Court need not review findings that are not objected to. However, the Court
has reviewed this finding for clear error, and finds none.
The Court agrees with the Chief Magistrate Judge that Plaintiff fails to establish a prima
facie case for disability discrimination, and, therefore, his claim must be dismissed.
B.

ADA Retaliation Claim

In the R&R, the Chief Magistrate Judge also found that Plaintiff fails to establish a prima
facie claim for retaliation under the Rehabilitation Act and the ADA because (1) he fails to show
that his February 24, 2014 and March 12, 2014, complaints of harassment constitute protected
activity, and (2) he fails to show a causal connection between any adverse action taken against
Plaintiff and his complaints. (ECF No. 18 at 15-17.) To establish a claim for retaliation,
Plaintiff must show that: (1) he engaged in activity protected under the ADA; (2) the employer
knew of that activity; (3) the employer took adverse action against him; and (4) there was a
causal connection between the protected activity and the adverse action. Rorrer v. City of Stow,
743 F.3d 1025, 2046 (6th Cir. 2014). “The ADA is not [] a catchall statute creating a cause of
action for any workplace retaliation, but protects individuals only from retaliation for engaging
in . . . activity covered by the ADA.” Id. (citing 42 U.S.C. § 12203(a)). The ADA protection
against retaliation does not protect an employee who contests or opposes “employment decisions
that do not involve any claims of discrimination.” Id. The Chief Magistrate Judge concluded
that Plaintiff’s harassment complaints did not involve any claims of disability discrimination.
(ECF No. 18 at 16-17.)
In his objections, Plaintiff specifically objects only to the finding of whether adverse
action was taken against him. He claims that, after his complaint, he was reassigned and denied
leave. (Obj. 4, ECF No. 19.) Even if the Court considers Plaintiff’s harassment complaints as

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constituting protected activities, Plaintiff provides no support to establish a plausible claim that
any adverse action taken against him was caused by his complaints, rather than his own behavior
or work hours. The facts alleged by Plaintiff show that he missed a significant amount of
scheduled work hours beyond his sick leave and that he refused to report to multiple scheduled
SRP evaluations. The alleged harassment involved his superior’s attempt to obtain information
to complete a SSA disability form. Taking all Plaintiff’s alleged facts as true, there is not a
sufficient factual basis to state a plausible claim of retaliation. See Iqbal, 556 U.S. at 678
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)) (“[A] complaint [does not]
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”)
Consequently, the Court agrees with the Chief Magistrate Judge that Plaintiff fails to
establish a prima facie case for retaliation.
III.

Failure to Exhaust Administrative Remedies
Two potential claims by Plaintiff remain: sex discrimination and failure to

accommodate. First, Plaintiff checked the box for sex discrimination in paragraph 8 of his
Complaint, but alleged no facts to support this claim. (ECF No. 1 at 4.) Second, in the Motion
to Dismiss, Defendant speculates as to whether Plaintiff is alleging a failure to accommodate
claim, to which the Chief Magistrate Judge found Plaintiff had not exhausted his administrative
remedies. However, no such claim appears to be raised by Plaintiff in his Complaint or in any of
his responses or objections.
Because Plaintiff did not object to the Chief Magistrate Judge’s finding that he failed to
exhaust administrative remedies for his potential failure to accommodate claim, the Court need
not consider it under a de novo or any other standard. Moreover, the sex discrimination and

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failure to accommodate claims were not raised in his complaint filed with the DOJ, and,
therefore, are barred from being considered here.
IV.

Plaintiff’s Amended Complaint
In an October 28, 2016 Order, the Chief Magistrate Judge struck Plaintiff’s Amended

Complaint for failure to abide by the requirements of Federal Rule of Civil Procedure 15.
Plaintiff objected to this on November 7, 2016, arguing that he was only attempting to remove
his claim for sex discrimination. (ECF No. 17.)
First, by way of procedure, the Court may designate a magistrate judge to hear and
determine any pretrial matter pending before it. 28 U.S.C. § 636(b)(1)(A). The Court may
reconsider any non-dispositive pretrial matter handled by a magistrate judge only “where it has
been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” Id. Here,
Plaintiff has made no showing that the Chief Magistrate Judge’s Order striking his Complaint is
clearly erroneous or contrary to law. Moreover, there is no adverse effect on Plaintiff because,
as he has stated, his proposed Amended Complaint merely struck a claim he had previously
included in his Complaint. Therefore, the Court DENIES Plaintiff’s Motion.
CONCLUSION
The Court ADOPTS the Report and Recommendation in whole. Therefore, the Court
GRANTS Defendant’s Motion to Dismiss for failure to state a claim and failure to exhaust
administrative remedies, and dismisses all claims by Plaintiff against Defendant. Additionally,
the Court DENIES Plaintiff’s pending Motion objecting to the Chief Magistrate Judge’s Order
striking his Amended Complaint.

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IT IS SO ORDERED, this 17th day of April, 2017.
s/ Sheryl H. Lipman
SHERYL H. LIPMAN
UNITED STATES DISTRICT JUDGE

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