Seacrist v. Metropolitan Security Services, Inc. et al

Filing 44

MEMORANDUM OPINION AND ORDER granting in part and denying in part the USMS's 29 MOTION to Dismiss or, in the alternative, for Summary Judgment as more fully set forth herein; denying without prejudice Walden Security's 28 MOTION for L eave to File Amended Answer to Assert Additional Affirmative Defense re: 24 Answer to Amended Complaint; denying Walden Security's 30 MOTION to Dismiss or, in the alternative, for Summary Judgment. Signed by Judge Robert C. Chambers on 4/3/2015. (cc: attys; any unrepresented parties) (tmh)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

REGGIE L. SEACRIST,
Plaintiff,
v.

CIVIL ACTION NO. 2:14-24372

METROPOLITAN SECURITY SERVICES, INC.,
d/b/a WALDEN SECURITY, a Tennessee corporation,
DANIEL S. HALL, in his official capacity of Chief, Office
of Court Security-Judicial Security Division of the
UNITED STATES MARSHALS SERVICE, and
HONORABLE ERIC HOLDER, in his official capacity as
Attorney General of the United States and Chief
Administrative Officer of the THE DEPARTMENT OF JUSTICE,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is a Motion to Dismiss or, in the Alternative, for
Summary Judgment filed by Defendants United States Marshals Service, Daniel S. Hall, in his
official capacity as Chief of the Office of Court Security—Judicial Security Division, the
Department of Justice, and the Honorable Eric Holder, in his official capacity as Chief
Administrative Officer of the Department of Justice (hereinafter collectively referred to as USMS)
(ECF No. 29); a Motion to Dismiss or, in the Alternative, for Summary Judgment by Metropolitan
Security Services, Inc., d/b/a Walden Security (hereinafter Walden Security) (ECF No. 30); and a
Motion for Leave to File Amended Answer to Assert Additional Affirmative Defense. ECF No.
28. For the following reasons, the Court GRANTS, in part, and DENIES, in part, the USMS’s
Motion to Dismiss; DENIES Walden Security’s Motion to Dismiss or, in the Alternative, for

Summary Judgment; and DENIES WITHOUT PREJUDICE Walden Security’s Motion for
Leave to File Amended Answer to Assert Additional Affirmative Defense.
I.
FACTUAL ALLEGATIONS
On August 5, 2014, Plaintiff Reggie L. Seacrist filed a Complaint against
Defendants. Thereafter, on August 12, 2014, he filed an Amended Complaint. In his Amended
Complaint, Plaintiff asserts he was employed as a Court Security Officer (CSO) by Walden
Security and the USMS at the federal courthouse in Charleston, West Virginia. Am. Compl. at
¶¶8-9.

Plaintiff claims that he fully disclosed to his joint employers that he is an

insulin-dependent Type 2 diabetic when he applied for employment in 2006. Id. at ¶10. Plaintiff
states he underwent required annual medical exams, which demonstrated his diabetes was stable
and controlled. Id. at ¶12. When Plaintiff had his annual medical exam and blood tests on July 9,
2013, his glucose level was 87 and within the normal standards adopted by Walden Security and
the USMS. Id. at ¶13. His physician further stated Plaintiff had no work restrictions. Id.

Plaintiff claims that on October 6, 2013, the Department of Health and Human
Services, Program Support Center, Federal Occupational Health (FOH), a designated agent of
Defendants for medical review and medical clearance, completed a medical review form and
stated:
The examinee has diabetes treated with Insulin. …. The need for
insulin therapy suggests that the examinee is prone to excessive
hyperglycemia.
However, insulin therapy also significantly
increases the risk of hypoglycemic events. …. DUE TO THE
SIGNIFICANT ADVERSE EFFECTS OF HYPOGLYCEMIA AND
EXCESSIVE HYPERGLYCEMIA, PENDING FURTHER REVIEW,
it is recommended that the CSO be removed from all work duty.

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Id. at ¶¶5 & 18 (emphasis and ellipses in Am. Compl.). Plaintiff also was informed that he must
provide supplemental medical information and submit to additional medical testing, including a
stress test, an eye exam, complete lab work, delineated blood sugar testing over a three month
period, the past two years of insulin use and lab work, and a letter from his treating physician with
the medical notes. Id. at ¶22. Thereafter, on October 9, 2013, Daniel S. Hall, Chief of the Office
of Court Security-Judicial Security Division of the USMS wrote Walden Security and advised that
FOH had reviewed Plaintiff’s medical information and “Plaintiff ‘must discontinue performing
under the contract until the requested supplemental medical information is received, reviewed,
and it is determined that [Plaintiff] meets the CSO medical standards required by the contract.’”
Id. at ¶17 (italics original in Am. Compl.).

Plaintiff asserts that his supervisor with Walden Security informed him on October
10, 2013, “that he was being suspended without pay . . . . because he was [a] diabetic who was on
insulin.” Id. at ¶15 (italics original in Am. Compl.). Plaintiff also was given a letter which states,
in part:
“[Y]ou’ve been temporarily removed from performing as a court
security officer under this contract pending FOH and USMS
evaluation and determination of your medical qualification. This
action is a direct result of your failure to pass the annual medical
examination required of all court security officers servicing this
government contract.”
Id. at ¶16 (italics original in Am. Compl.).

Plaintiff alleges that FOH never conducted an individualized assessment of him,
and no reviewing physician ever found an episode of hypoglycemia or excessive hyperglycemia.
Likewise, there was never a determination he could not perform the essential functions of his
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position. Id. at ¶18. Similarly, Plaintiff asserts neither the USMS nor Walden Security made an
individualized assessment of him or determined he could not do his job, with or without reasonable
accommodations. Id. at ¶19.

Prior to Plaintiff providing any of the requested supplemental medical information,
“FOH completed a new Medical Review Form on November 5, 2013, finding “PENDING
FURTHER REVIEW, it is recommended that the examinee be returned to full duty status based on
his long experience with insulin use and his current fasting glucose levels.” Id. at ¶¶ 28-29 (italics
in Compl.). Plaintiff was returned to work on November 8, 2013, but he was advised that he
would have “to provide all of the supplemental medical information as requested. In addition,
[he] . . . was informed that he would also be required to have a C-Peptide blood test and
urinalysis.” Id. at ¶30. Plaintiff states that he followed strict medical monitoring over the next
three months, and he submitted the information on February 14, 2014. Id. at ¶¶31-32. On March
31, 2014, he was notified he was “‘medically qualified.’” Id. at ¶32.

On February 10, 2014, Plaintiff filed a formal complaint with the Office of Equal
Employment Opportunity, Department of Justice, pursuant to Section 501 of the Rehabilitation
Act of 1973 against the USMS. Id. at ¶36. Plaintiff waited 180 days before filing this action.
Thus, Plaintiff asserts he exhausted his administrative remedies. Id. at ¶36. In his action, Plaintiff
alleges in Count One that he was unlawfully discriminated against by the USMS in violation of the
Rehabilitation Act. In Count Two, he asserts a claim for unlawful discrimination under the
Americans with Disabilities Act of 1990, as amended, against Walden Security. Finally, in Count

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Three, Plaintiff alleges unlawful discrimination by Walden Security in violation of the West
Virginia Human Rights Act.

II.
DISCUSSION
In its Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, the
USMS argues Plaintiff failed to exhaust his administrative remedies as to all his claims because he
did not initiate timely contact with the USMS Equal Employment Opportunity (EEO) Counselor.
Pursuant to 29 C.F.R. § 1614.105(a)(1), a plaintiff “must initiate contact with a[n EEO] Counselor
within 45 days of . . . the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). The USMS
asserts it is undisputed that Plaintiff did not comply with this regulation because Plaintiff made
initial contact with the USMS EEO Counselor on December 11, 2013, which was 62 days after the
alleged discriminatory act.

In response, Plaintiff argues that the 45-day time period did not begin to run on
October 10, 2013, because his indefinite suspension was “equivocal” as it did not tell him if his
employment was being terminated, nor when he would be returned to work. As he was not
returned to work until November 8, Plaintiff insists that his contact with the EEO Counselor on
December 11 was within the required time period. In support, Plaintiff cites Adkins v. SuperValu,
Inc., Civ. Act. No. 3:08-1448, 2009 WL 2029807 (S.D. W. Va. 2009), which relied upon
Independent Fire Co. No. 1 v. West Virginia Human Rights Comm’n, 376 S.E.2d 612 (W. Va.
1988). However, the Court finds these cases do not control this situation.

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In Independent Fire Co., the West Virginia Supreme Court addressed the issue of
when the time period begins to run for filing a complaint with the West Virginia Human Rights
Commission. In that case, the complainant was a member of a volunteer fire company who
alleged he was indefinitely suspended because he supported a female for membership. 376 S.E.2d
at 613. The complainant was notified of his suspension on May 9, 1977. Plaintiff contacted an
attorney who sought to have him reinstated. By letter dated November 4, 1977, the complainant
was informed by his counsel that negotiations had failed. Id. Thereafter, the complainant filed a
complaint with the Human Rights Commission on January 30, 1978. Id. The Commission
determined the complaint was timely filed within ninety days of being denied reinstatement on
November 4. On certified question, the West Virginia Supreme Court stated the complaint could
be viewed in two ways. First, it could be viewed as a discriminatory termination that did not
become clear until November. Second, it could be viewed as a refusal to reinstate which occurred
within the existing limitation period. Id. at 618. Therefore, the West Virginia Supreme Court
found it timely filed. Id.

Relying, in part, on Independent Fire Co., this Court was asked to determine in
Adkins when the statute of limitations begins to run on a claim of age discrimination under the
West Virginia Human Rights Act. 2009 WL 2029807, at *1. However, the issue in Adkins was
raised on a motion to dismiss. In considering the complaint, the Court found it was impossible to
determine when the plaintiffs received unequivocal notice that their layoffs were permanent or
were given notice they were discharged. Id. at *3. Therefore, the Court found discovery was
necessary. Id. 1

1

The Court ultimately remanded the action for lack of federal jurisdiction. Id. at *6.
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The Court finds that application of these cases to the current situation is inapposite
and distinguishable. In both Independent Fire Co. and Adkins, the aggrieved individuals were
indefinitely suspended/laid off and, at some point learned, they were terminated. Here, however,
Plaintiff was not terminated, but was reinstated on November 8.

Thus, with respect the

suspension, the discrete act of alleged discrimination could not have occurred on November 8
because it is not when Plaintiff’s suspension became clear, nor was it a failure to reinstate.
Instead, Plaintiff was reinstated, and his reinstatement, by itself, was not a discriminatory act.
Therefore, the Court finds “the effective date of the action” suspending him was October 10 and
outside the 45-day window. 29 C.F.R. § 1614.105(a)(1)

However, when he was reinstated, Defendants reimposed the medical testing and
monitoring requirements and added new testing requirements. Plaintiff asserts he was subjected
to disparate treatment because other CSOs who had glucose levels exceeding the USMS’s
standards were not required to pass such strict medical criteria. As pled, this requirement is a new
discrete act of alleged discriminatory conduct which occurred within the 45-day time period by
which Plaintiff had to initiate contact with an EEO Counselor. Therefore, it is not barred under
the statute.

Plaintiff also argues that the Court should find his claims are not barred under the
doctrines of equitable estoppel and equitable tolling. The doctrine of “[e]quitable estoppel
applies where, despite the plaintiff’s knowledge of the facts, the defendant engages in intentional
misconduct to cause the plaintiff to miss the filing deadline.” English v. Pabst Brewing Co., 828
F.2d 1047, 1049 (4th Cir. 1987) (citations omitted). In addition, although equitable estoppel can

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be applied against civil litigants, “equitable estoppel against the government is strongly
disfavored.” Barr v. United States Marshals Serv., No. 3:05-1208-CMC-JRM, 2007 WL 2579399,
*5 (D. S.C. Sept. 4, 2007) (citing Office of Pers. Mgmt. v. Richmond, 496 U.S. 421, 422-23 (1990)
(“leav[ing] for another day whether an estoppel claim could ever succeed against the
Government,” but observing that “we have reversed every finding of estoppel [against the
Government] that we have ever reviewed.”).

Specifically, in Richmond, the United States

Supreme Court held that “erroneous oral and written advice given by a Government employee to a
benefits claimant” cannot “give rise to estoppel against the Government[.]” Richmond, 496 U.S. at
421.

Taking the Complaint in this case in the light most favorable to the Plaintiff under
the motion to dismiss standard, the Court finds Plaintiff’s equitable estoppel argument fails as a
matter of law. There is simply nothing in the Complaint which alleges the USMS intentionally
misled Plaintiff into missing the filing deadline. Moreover, even if the Court considers the
additional allegations made in Plaintiff’s response brief, the Court finds they are insufficient for
equitable estoppel to apply. Specifically, Plaintiff states the USMS failed to identify itself as his
joint employer, and he was unaware the USMS was his joint employer until he spoke with his
attorney on December 6, 2013. Plaintiff further asserts that the posters in the CSO locker room
failed to mention anything about the 45-day deadline or that CSOs were USMS employees. He
also complains that, although the poster in the common area of the USMS’s office contained the
45-day deadline, it provided it applied “[i]f you are a U.S. Marshals Service (USMS) employee or
applicant for employment,” and he had no idea he was an employee. However, even if true, the

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Court finds these allegations do not allege any intentional misconduct which would warrant
applying equitable estoppel.

Plaintiff also argues that the doctrine of equitable tolling should apply. Equitable
tolling differs from equitable estoppel in that equitable estoppel occurs “where the defendant has
wrongfully deceived or misled the plaintiff in order to conceal the existence of a cause of action.”
English, 828 F.2d at 1049 (citations omitted). Equitable tolling typically is found “where the
complainant has been induced or tricked by his adversary’s misconduct into allowing the filing
deadline to pass.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (footnote omitted).
Thus, “[t]o invoke equitable tolling, the plaintiff must . . . show that the defendant attempted to
mislead him and that the plaintiff reasonably relied on the misrepresentation by neglecting to file a
timely charge.” English, 828 F.2d at 1049 (citation omitted).

The Fourth Circuit recently

explained that equitable tolling applies “in two circumstances: first, when ‘the plaintiffs were
prevented from asserting their claims by some kind of wrongful conduct on the part of the
defendant,’ and second, when ‘extraordinary circumstances beyond plaintiffs' control made it
impossible to file the claims on time.’” Cruz v. Maypa, 773 F.3d 138, 145 (quoting Harris v.
Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (internal quotation marks omitted in Cruz)). In
addition, the Fourth Circuit stated that “[e]quitable tolling is a rare remedy available only where
the plaintiff has ‘exercise[d] due diligence in preserving [her] legal rights.’” Id. 145-46 (quoting
Chao v. Virginia Dep’t of Transp., 291 F.3d 276, 283 (4th Cir. 2002) (quoting Irwin, 498 U.S. at
96.

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Assuming the truth of Plaintiff’s allegations, the Court finds they fail to meet this
standard. In this case, Plaintiff basically argues that equitable tolling should apply because the
USMS never identified itself as his employer and he could not have been expected to have known
that the USMS was his joint employer. However, Plaintiff does not allege that the USMS
committed some type of misconduct or induced him into believing he was not an employee,
thereby preventing him from pursuing his legal remedies. Likewise, the fact Plaintiff was
unaware the USMS was a joint employer does not plausibly constitute an “extraordinary
circumstance” that made it impossible for Plaintiff to meet the filing deadline. Therefore, the fact
Plaintiff was not aware of his employment status does not fall within the grounds that would
permit this Court to equitably toll the deadline.

Plaintiff further complains, however, that neither the poster in the common area of
the USMS’s office, nor the poster in the CSOs’ locker room, identified CSOs as USMS
employees. Again, however, the fact that the posters did not specifically state that CSOs are
USMS employees could not plausibly be viewed as a form of trickery in order to induce a CSO to
miss the filing deadline. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. at 96. Therefore,
equitable tolling is not justified under the facts of this case. 2

2

Plaintiff also complains that he was not even aware of the USMS’s poster because he does
not walk where the bulletin board is located. Thus, he was prevented from knowing of the 45-day
time period. See Vance v. Whirlpool, 716 F.2d 1010, 1012-13 (4th Cir. 1983) (holding the failure
of Whirlpool to post a notice in a prominent place informing employees of their rights under
ADEA prevented a former employee of learning of his rights and, thus, warranted equitable
tolling). Additionally, Plaintiff argues that the poster fails to provide the information required
under 29 C.F.R. § 1614.102(b)(7). However, even if it had been posted in the CSOs’ locker room
and contained all the information Plaintiff believes is missing, Plaintiff would not have thought it
applied to him because he was under the impression he was not an employee of the USMS. Thus,
the location and allegedly missing content of the poster is not the reason why Plaintiff did not
know of the 45-day requirement. Therefore, to the extent Plaintiff argues that the poster should
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Turning next to the Motion for Leave to File Amended Answer to Assert
Additional Affirmative Defense (ECF No. 28), Walden Security seeks to amend its Answer to
assert an additional affirmative defense reserving a right to assert that Plaintiff failed to exhaust his
administrative remedies. Plaintiff opposes the motion because Walden Security did not attach a
copy of the Amended Answer in order to know exactly what the proposed amendment entails, nor
did it set forth a factual basis for an amendment. In addition, Plaintiff asserts that the arguments
made by the USMS regarding exhaustion under § 1614.105(a)(1) do not even apply to the two
causes of action asserted against Walden Security, a private employer, under the American with
Disabilities Act (Count Two) and the West Virginia Human Rights Act (Count Three).

Pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, “a party may
amend its pleading only with the opposing party’s written consent or the court’s leave” and leave
should be freely given Awhen justice so requires.@ Fed. R. Civ. P. 15(a)(2). 3

Although

amendments are liberally granted, it is not entirely clear what exhaustion defense Walden Security
seeks to make because it did not attach a copy of its proposed Amended Answer. It appears from
Walden Security’s motion that it seeks to base its exhaustion defense on § 1614.105(a)(1), but it
has not made any argument as to why that regulation would apply to the claims made against it as
a private employer and why it is not simply an act in futility. See In re PEC Solutions, Inc. Sec.
Litig., 418 F.3d 379, 391 (4th Cir. 2005) (“Leave to amend need not be given when amendment

have been in a more prominent location and should have contained certain phone numbers and
addresses, the Court finds such arguments irrelevant.
3

Rule 15 also permits amendment “once as a matter of course within . . . 21 days after
serving it,” however, that situation is not relevant here. Fed. R. Civ. P. 15(1)(A).
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would be futile.” (citations omitted)). Therefore, given the fact the Court cannot properly analyze
the request before it, the Court DENIES the motion WITHOUT PREJUDICE.

Lastly, with respect to Walden Security’s Motion to Dismiss or, in the Alternative,
for Summary Judgment, it summarily “incorporates the arguments and legal citations of” the
USMS and asks for judgment in its favor. Metropolitan Sec. Serv., Inc.’s Motion to Dismiss or, in
the alternative, for Summ. J., ECF No. 30, at 1. Again, however, Walden Security makes
absolutely no argument as to why or how the Court should apply the 45-day rule under
§ 1614.105(a)(1) to a private employer for the claims asserted against it. Therefore, the Court
DENIES the motion.
III.
CONCLUSION
Accordingly, for the foregoing reasons, the Court GRANTS, in part, and
DENIES, in part, the USMS’s Motion to Dismiss (ECF No. 29), DENIES WITHOUT
PREJUDICE Walden Security’s Motion for Leave to File Amended Answer to Assert Additional
Affirmative Defense (ECF No. 28), and DENIES Walden Security’s Motion to Dismiss or, in the
Alternative, for Summary Judgment. ECF No. 30.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.

ENTER:

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April 3, 2015