Opinion
Civil Action 3:21-CV-543
02-03-2023
JAY KRUISE, Plaintiff v. UNITED STATES DEPARTMENT OF THE ARMY, et al., Defendants
MANNION, D.J.
REPORT & RECOMMENDATION (DEFENDANTS' MOTION TO DISMISS, DOC. 18) (PLAINTIFF'S THIRD MOTION TO AMEND, DOC. 25)
William I. Arbuckle, U.S. Magistrate Judge
I. INTRODUCTION
Jay Kruise was a civilian employee at the Tobyhanna Army Depot. Following his termination, he initiated this pro se civil action alleging employment discrimination. Plaintiff is an ECF filer and has shown a remarkable persistence in his attempts to state a proper claim. Despite the passage of almost two years and the filing of multiple motions (by both Plaintiff and Defendants) this case is still at the motion to dismiss stage. This report and recommendation (“R&R”) deals with Plaintiff's most recent attempt to amend his complaint. That amended complaint (hereinafter “second amended complaint”) was allowed earlier today. (Doc. 49). However, another motion to amend (Doc. 25), and a motion to dismiss Plaintiff's now-superseded amended complaint (Doc. 18) are unresolved.
On September 8, 2022, an R&R was issued to address these motions. (Doc. 32). The District Court has postponed its decision of whether to adopt that recommendation until a decision is made on Plaintiff's August 28, 2022 motion to amend (Doc. 30), the fourth motion to amend filed in this case.
Because the second amended complaint is so similar to Plaintiff's amended complaint, we will incorporate the analysis of our September 8, 2022 R&R (Doc. 32). To the extent that the second amended complaint contains changes and adds an additional count we will explain in this R&R why the attempts to change the amended complaint fail to improve it, but note that the new allegation (Count VI) will proceed because it has not been challenged in any dispositive motion.
The September 2022 R&R also addresses Defendants' motion to dismiss (Doc. 18), but does so in the context of Plaintiff's now superseded amended complaint.
It will be recommended that the changes in the second amended complaint do not change the analysis of the legal sufficiency of Plaintiff's claims set forth in the earlier R&R, and that the Court should reach the same result.
II. BACKGROUND & PROCEDURAL HISTORY
The facts of this case are more thoroughly discussed in our September 2022 R&R (Doc. 32). We have, however, provided a brief summary here for the benefit of the Court and parties.
Plaintiff is an Asian man who suffers from depression. Defendants employed Plaintiff as an information technology specialist at the Tobyhanna Army Depot in Monroe County, Pennsylvania from 2007 to 2019, when he was terminated.
Plaintiff alleges that he was subjected to workplace harassment and discrimination on multiple occasions during the course of his employment. The claims in this lawsuit, in large part, concern a series of incidents that took place in 2018 and 2019.
Plaintiff alleges incidents that took place in 2007 and 2013 were addressed in a negotiated settlement agreement. In 2015, Plaintiff requested accommodation (that he work in a private cubicle) due to his disability (depression). Plaintiff alleges he was given a temporary accommodation in June 2017. That accommodation was rescinded in May 2018.
In May 2018, Plaintiff was moved from a private cubicle to a common work area. While in that new setting, Plaintiff alleges that multiple employees purposely engaged in disruptive behaviors to distract and harass Plaintiff, including playing loud music, coughing on Plaintiff with an open mouth, and belching near Plaintiff with an open mouth. These employees were instructed to stop, but allegedly did not. This conflict continued until Plaintiff retaliated by coughing on one of his coworkers. The ensuing verbal altercation led to Plaintiff's suspension in November 2018, and ultimately his termination in March 2019.
On March 24, 2021, Plaintiff initiated this pro se employment discrimination action. He has sought leave to amend four times, and it has been granted twice.
On August 3, 2021, Plaintiff made his first two requests to amend. He did so by filing two motions titled “First Motion to Amend/Correct Complaint” and attached a forty-two page proposed amended complaint to each motion. (Docs. 12, 12-1, 13, 13-1). These motions are, effectively, Plaintiff's first (Doc. 12) and second (Doc. 13) motions to amend.
On August 16, 2021, Plaintiff's first motion to amend (Doc. 12) was denied as moot, and Plaintiff's second motion to amend (Doc. 13) was deemed unnecessary because, by rule, Plaintiff was permitted leave to amend as of right under Rule 15 of the Federal Rules of Civil Procedure. (Doc. 14). Plaintiff's second proposed amended complaint was docketed as Plaintiff's “amended complaint” (Doc. 15).
On August 30, 2021, Defendants filed a motion to dismiss Plaintiff's amended complaint. (Doc. 18). The parties fully briefed this motion. (Docs. 19, 22). Then, on January 16, 2022, Plaintiff filed another document titled “First Motion to File Second Amended Complaint.” (Doc. 25). This is, effectively, Plaintiff's third motion to amend. Along with that motion, Plaintiff attached a third proposed amended complaint (Doc. 25-1). Defendants opposed this motion, arguing that the proposed amendments to count three of the amended complaint (the only real change) were futile. (Doc. 27).
On August 28, 2022, Plaintiff filed a document titled “Second Motion to Amend/Correct.” (Doc. 30). This motion is effectively Plaintiff's fourth motion to amend. Along with his motion, Plaintiff filed a supporting brief (Doc. 31) and a fourth proposed amended complaint (Doc. 30-1). Defendants did not respond to Plaintiff's fourth motion to amend.
On September 8, 2022, before the expiration of the deadline for opposing the fourth motion to amend, an R&R was issued. (Doc. 32). That R&R addressed the motion to dismiss (Doc. 18) and the third motion to amend (Doc. 25).
On January 27, 2023, the District Court issued an order directing that a decision on the September 2022 R&R be held in abeyance pending a decision on Plaintiff's fourth motion to amend. (Doc. 47).
Plaintiff's fourth motion to amend (Doc. 30) has been granted pursuant to Local Rule 7.6. The fourth proposed amended complaint is now Plaintiff's second amended complaint. However, virtually all of the pleading defects in Plaintiff's amended complaint also appear in this second amended complaint.
Specifically, the second amended complaint includes changes to three paragraphs under count three of the amended complaint, and adds one new claim (count six).
Defendants' motion to dismiss is not rendered moot by the second amended complaint, and the arguments raised in that motion to dismiss (Doc. 18) compel the dismissal of counts three, four, and part of count five in the second amended complaint.
With that understanding of the posture of this case, we turn to the appropriate legal standards.
III. LEGAL STANDARDS
In their motion to dismiss (Doc. 18), Defendants raise arguments that dismissal is appropriate under 12(b)(6) (failure to state a claim) as to counts one, two, three and five. (Doc. 19, p. 12). Defendants argue that count four should be dismissed under 12(b)(1) for lack of subject-matter jurisdiction. Id. We have set forth the standards for evaluating each type of dismissal request below.
A. Rule 12(b)(6): Motion to Dismiss For Failure to State a Claim
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to seek dismissal for failure to state a claim upon which relief can be granted. To assess the sufficiency of a complaint when dismissal is sought under Rule 12(b)(6), a court should: (1) take note of the elements a plaintiff must plead to state a claim; (2) identify mere conclusions which are not entitled to the assumption of truth; and (3) determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of a legal claim.
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011).
In order for his or her allegations to be taken as true, a plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Thus, courts “need not credit a claimant's ‘bald assertions' or ‘legal conclusions' when deciding a motion to dismiss.” The court also need not assume that a plaintiff can prove facts that he or she has not alleged.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).
Associated Gen Contractors of Cal. v. Cal St. Council of Carpenters, 459 U.S. 519, 526 (1983).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. This “presumption of truth attaches only to those allegations for which there is sufficient ‘factual matter' to render them ‘plausible on [their] face.'” The plausibility determination is context-specific and does not impose a heightened pleading requirement.
Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals Corp, 609 F.3d 239, 262 n. 27 (3d Cir. 2010).
Jordan v. Fox Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
Schuchardt v. President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted) (alternations in original).
Schuchardt, 839 F.3d at 347.
B. Rule 12(b)(1): Motion to Dismiss For Lack of Subject-Matter Jurisdiction
Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes the court to dismiss an action for lack of subject-matter jurisdiction. Motions brought under 12(b)(1) may present either a facial or factual challenge to the court's subject-matter jurisdiction. This distinction is subtle but crucial.
Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. And Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).
In reviewing a facial challenge under Rule 12(b)(1), the standards associated with Rule 12(b)(6) are applicable. The court's review of a facial challenge is limited to consideration of the complaint and documents referenced therein construed in the light most favorable to the plaintiff.
Id.
Mortensen, 549 F.2d at 891; Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
In reviewing a factual challenge, the court may consider evidence outside the pleadings, including affidavits, depositions, and testimony in order to “satisfy itself as to the existence of its power to hear the case.” In a factual challenge, “no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” If a dispute of material fact exists, “the court must conduct a plenary hearing on the contested issues prior to determining jurisdiction.”
Mortensen, 549 F.2d at 891.
Id.
McCann v. Newman Irrevocable Tr., 458 F.3d 281, 290 (3d Cir. 2006); see also Berardi v. Swanson Mem'l Lodge No. 48, 920 F.2d 198, 200 (3d Cir. 1990) (stating that a district court must ensure that a plaintiff has “had an opportunity to present facts by affidavit or by deposition, or in an evidentiary hearing,” to support his claim of jurisdiction (citation omitted)).
When the court's subject-matter jurisdiction over a complaint is challenged, plaintiff bears the burden of proving that jurisdiction exists.
Id.
Having reviewed these legal standards, we now turn to the merits of the second amended complaint.
IV. DISCUSSION
A. Defendants' Motion To Dismiss (Doc. 18) Should Be Construed As Seeking Dismissal of The Second Amended Complaint
In the R&R filed on September 8, 2022, we analyzed each argument in Defendants' motion to dismiss as it applied to Plaintiff's amended complaint. No final ruling has been made on Defendants' motion to dismiss, and Plaintiff's second amended complaint now supersedes the amended complaint Defendants' motion challenges.
Courts often deny pending motions to dismiss as moot when an amended complaint is filed. However, in this case the interests of justice do not weigh in favor of requiring Defendants to file another motion to dismiss simply because Plaintiff has introduced a new pleading, for the second time. That is especially true here because the second amended complaint contains virtually all the same defects as the now superseded amended complaint.
See 6 Wright & Miller, Federal Practice and Procedure § 1476 (3d ed. Apr. 2022 Update) (“If some of the defects raised in the original motion remain in the new pleading, the court simply may consider the motion as being addressed as to the amended pleading. To hold otherwise would be to exalt form over substance.”).
Accordingly, we recommend that the arguments raised in Defendants' pending motion to dismiss (Doc. 18) and the futility argument raised in Defendants' opposition to Plaintiff's third motion to amend (Doc. 27) be applied to this new pleading.
We now discuss: (1) whether and to what extent the claims were changed in the second amended complaint; and (2) whether those changes have any impact on the recommendations made in the September 2022 report.
A. Count One of the Second Amended Complaint Should be Permitted to Proceed For the Same Reasons Set Out in the September 2022 Report & Recommendation
In count one of the amended complaint (Doc. 15), and of the proposed amended complaint (Doc. 49), Plaintiff asserts a claim of disability discrimination and denial of reasonable accommodation under the Rehabilitation Act.
Defendants argue in their motion that this claim should be dismissed because Plaintiff did not plead enough facts to set forth a plausible claim.
In our September 2022 R&R, we recommended that count one be permitted to proceed. (Doc. 32, pp. 38-46). Count one is not substantively changed in the second amended complaint. (Doc. 49). Count one of the second amended complaint should be permitted to proceed for the same reasons set forth in the September 2022 R&R. (Doc. 32, pp. 38-46).
B. Count Two of the Second Amended Complaint Should be Permitted to Proceed For the Same Reasons Set Out in the September 2022 Report & Recommendation
In count two of the amended complaint (Doc. 15) and the second amended complaint (Doc. 49), Plaintiff asserts a hostile work environment claim under Title VII and the Rehabilitation Act.
Defendants argue in their motion that this claim should be dismissed because Plaintiff did not initiate pre-complaint proceedings within forty-five days.
In our R&R, we determined that Plaintiff has alleged enough facts to plausibly show he may have exhausted these claims. (Doc. 32, pp. 21-27). Count two is not substantively changed in the second amended complaint. Count two should be permitted to proceed for the same reasons set forth in the September 2022 R&R.
C. Count Three of the Second Amended Complaint Should be Dismissed For the Same Reasons Set Out in the September 2022 Report & Recommendation
In count three of the amended complaint (Doc. 15), Plaintiff alleged a retaliation claim under the rehabilitation act. In their motion to dismiss, Defendants argued that count three of the amended complaint should be dismissed because Plaintiff has not pleaded a plausible causal connection between the adverse employment action and Plaintiff's protected activity.
The second amended complaint, however, includes minor changes to three paragraphs of count three. Identical changes to this claim were made in the third proposed amended complaint (Doc. 25-1). Defendants opposed those changes, arguing that amendment was futile. (Doc. 27). In our R&R, we agreed that the proposed amendments did not rehabilitate count three, and that both iterations of this claim should be dismissed. (Doc. 32, pp. 47-58); (Doc. 32, pp. 58-61). Accordingly, count three of the second amended complaint should be dismissed for the same reasons set forth in the September 2022 R&R.
Specifically, Plaintiff added the following language:
Most importantly, the approving disciplinary authority (Tobyhanna Army Depot Legal Office) was fully aware of Kruise's prior and pending EEO complaints when he was considered for removal.(Doc. 49, ¶ 79).
The Agency management officials retaliated against Kruise for his prior EEO activity. While Kruise was being considered for removal, he had an EEO complaint pending at the EEOC (Agency No. Page 59 of 63 ARCECOM17JUL02738, Denied of Overtime). The approving disciplinary authority (Tobyhanna Army Depot Legal Office) was fully aware of Kruise's Denied of Overtime EEO complaint because they represented the Agency at the EEOC hearing held on June 30, 2021.(Doc. 49, ¶ 87).
The Agency management officials retaliated against Kruise for his prior EEO activity. While Kruise was being considered for removal, he had an EEO complaint pending at the EEOC (Agency numbers ARTYADMAR 00987; ARTYAD15DEC04850, Negotiated Settlement Agreement Appeal).(Doc. 49, ¶ 88).
D. Count Four of the Second Amended Complaint Should be Dismissed For The Same Reasons Set Out in the September 2022 Report & Recommendation
In count four of the amended complaint (Doc. 15) and second amended complaint (Doc. 49) Plaintiff asserts a Bivens claim alleging a violation of due process.
In their motion to dismiss, Defendants argue that sovereign immunity bars Plaintiff's Bivens claim against the United States, Department of the Navy, and the Secretary of the Navy in her official capacity.
In our R&R, we found that count four of the amended complaint should be dismissed. (Doc. 32, pp. 35-37). Count four is not substantively changed in the second amended complaint. Count four should be dismissed for the same reasons set forth in the September 2022 R&R. Id.
E. Count Five of the Second Amended Complaint Should be Partially Dismissed For the Same Reasons Set Out in the September 2022 Report & Recommendation
In count five of his amended complaint (Doc. 15) and second amended complaint (Doc. 49), Plaintiff alleges a claims of disparate treatment discrimination based on race related to three incidents: (1) a position change in 2014; (2) denial of a request to move from customer support in 2015; and (3) his termination (and the events that led to it) in 2019.
In their motion to dismiss, Defendants argue that all claims in count five should be dismissed because Plaintiff did not raise these issues when he contacted the EEO.
In our R&R, we found that the claim related to Plaintiff's 2019 termination should be permitted to proceed, but that the claims related to the incidents in 2014 and 2015 should be dismissed. (Doc. 32, pp. 27-32). Count five is not substantively changed in the second amended complaint. The claims in count five related to the 2014 and 2015 incidents should be dismissed for the same reasons set forth in the September 2022 R&R. The claim related to Plaintiff's 2019 termination should be permitted to proceed for the same reasons set forth in the September 2022 R&R.
F. Count Six of The Second Amended Complaint is Not Addressed in the Motion to Dismiss
In count six of the second amended complaint Plaintiff alleges that Defendants violated the Privacy Act, 5 U.S.C. § 552a(g)(1)(D). This is a new claim added in the second amended complaint, and therefore was not challenged in Defendants' motion to dismiss.
G. Plaintiff's Punitive Damages Claims in Counts One, Two and Five Should be Dismissed For the Same Reasons Set Out in the September 2022 Report & Recommendation
In their motion to dismiss, Defendants argue that Plaintiff's requests for punitive damages should be dismissed because punitive damages are not available for claims against the government under Title VII or the Rehabilitation Act.
In our September 2022 R&R, we found that Plaintiff's requests for punitive damages should be dismissed because punitive damages are, in fact, not available against the government for the remaining Title VII and Rehabilitation Act claims. Plaintiff's requests for punitive damages in counts one, two and five of the second amended complaint should be dismissed for the same reasons set forth in the September 2022 R&R.
H. Plaintiff's Third Motion to Amend (Doc. 25) is MOOT
Our September 2022 R&R also addressed Plaintiff's third motion to amend. (Doc. 25). In that motion, Plaintiff proposed changes to count three of his amended complaint. Those same changes were incorporated in his fourth motion to amend (Doc. 30).
Although we recommended that Plaintiff's third motion to amend (Doc. 25) be denied due to futility of amendment, the subsequent developments in this case have made this motion moot. Therefore, Plaintiff's third motion to amend should still be denied.
In short, the second amended complaint does not change the recommendations in the September 2022 R&R as to any of the substantive claims.
V. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) Defendants' Motion to Dismiss (Doc. 18) be applied to the second amended complaint and granted in part and denied in part.
a. Plaintiff's retaliation claim in count three of the second amended complaint should be DISMISSED.
b. Plaintiff's Bivens claim in count four of the second amended complaint should be DISMISSED
c. Plaintiff's racial discrimination / disparate treatment claim in count five of the second amended complaint should be PARTIALLY DISMISSED.
The claims related to incidents that occurred in 2014 and 2015 should be DISMISSED.
The claims related to Plaintiff being placed on leave and his termination should be permitted to proceed.
d. Plaintiff's request for punitive damages in counts one, two, and five of the second amended complaint should be DISMISSED
(2) Plaintiff's third motion to amend (Doc. 25) should be DENIED as MOOT.
(3) If this report is adopted in full, the remaining claims in this case will be:
a. Count One, disability discrimination and denial of reasonable accommodation under the Rehabilitation Act;
b. Count Two, hostile work environment under Title VII and the Rehabilitation Act.
c. Count Five, Disparate Treatment Discrimination based on race related to the events leading to his termination; and
d. Count Six, violation of the Privacy Act, 5 U.S.C. § 552a(g)(1)(D).
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.