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holding that where a plaintiff suffered a work-related injury and was seeking damages which flowed from her employer's failure to provide a reasonable accommodation for her disability, recovery under Title VII for the injuries she suffered as a proximate result of the defendant's discriminatory acts was not barred by FECA
Summary of this case from Madison v. PotterOpinion
Civil Action No. SA-03-CA-0933 FB (NN).
March 3, 2005
MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: Hon. Fred Biery United States District Judge
I. Introduction
The matter before the court is the motion to dismiss, or in the alternative, for summary judgment, brought by defendant R.L. Brownlee, Acting Secretary of the Army (docket entry 10). By way of the instant motion, defendant seeks dismissal, or in the alternative, judgment as a matter of law, of all the claims contained in plaintiff's complaint.Plaintiff, who was still employed by defendant at the time this action was filed, initiated this lawsuit on September 25, 2003 (docket entry 1). In her complaint, plaintiff alleged that defendant treated her differently, and worse, in the terms and conditions of her employment on the basis of her race, gender, disability and participation in protected activities. Plaintiff further contended that defendant failed to provide reasonable accommodation(s) for plaintiff's disability (docket entry 1). Plaintiff asserted that defendant's actions violated Title VII of the Civil Rights Act of 1964, the Rehabilitation Act, and several other federal statutes.
See Docket Entry 1.
In lieu of filing an answer to plaintiff's complaint, defendant filed the instant motion to dismiss, or in the alternative, for summary judgment on April 26, 2004 (docket entry 10). Although there had been some investigation conducted in this matter at the administrative level, it does not appear that any formal discovery had been conducted at the time defendant filed its dispositive motion.
Defendant first filed a request for extension of time to file an answer which was granted. Thus, defendant's motion to dismiss was timely. See Docket Entries 5-7, 9.
After considering defendant's motion (docket entry 10), plaintiff's response (docket entry 11), defendant's reply (docket entry 15) and the entirety of the record in this matter, it is my recommendation that defendant's motion to dismiss be GRANTED, in part, and DENIED, in part. I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring this matter to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained (docket entry 16).
II. Applicable Legal Standards
In the instant case, defendant moves to dismiss the case entirely, or, alternatively, to obtain judgment as a matter of law on any or all of the claims presented in plaintiff's complaint.
A. Dismissal Standard
Defendant's motion to dismiss is brought under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Under Rule 12(b)(1), a plaintiff's claim may be dismissed when the court lacks jurisdiction over the subject matter of that claim. In particular, Rule 12(b)(1) authorizes the dismissal of a case for want of subject matter jurisdiction when the district court lacks the statutory and constitutional power to adjudicate the case. A district court may dismiss a case for want of subject matter jurisdiction on any one of three different bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.
See Home Builders Association of Mississippi, Inc., v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).
See Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897 (1981)).
Pursuant to Rule 12(b)(6), a plaintiff's claim may be dismissed for failure to state a claim upon which relief may be granted when, viewing the allegations in the plaintiff's complaint in the light most favorable to him and drawing all reasonable inferences in his favor, it appears certain that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Rule 12(b)(6) allows a court to eliminate actions that are fatally flawed in their legal premises and destined to fail, thus sparing the litigants the burdens of unnecessary pretrial and trial activity. Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice to prevent a motion to dismiss under Rule 12(b)(6). In ruling on a motion to dismiss, a court should consider only those facts stated on the face of the complaint or incorporated into the complaint by reference, and matters of which judicial notice may be taken. If a complaint omits facts concerning pivotal elements of a plaintiff's claim, a court is justified in assuming the non-existence of those facts. B. Summary Judgment Standard
See Kaiser v. Aluminum Chem Sales, Inc. v. Avondale Shipyard, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982), cert. denied, 459 U.S. 1105 (1983); and Adolph v. Federal Emergency Management Agency, 854 F.2d 732, 735 (5th Cir. 1988).
See Spivey, Jr., v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
See Fernandez-Montes v. Allied Pilots Assoc., 987 F.2d 278 (5th Cir. 1993).
See Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1017 (5th Cir. 1996) and McNamara v. Bre-X Minerals Ltd., 57 F. Supp.2d 396, 417 n. 12 (E.D. Tex. 1999).
See Ledesma v. Dillard Dept. Stores, Inc., 818 F. Supp. 983 (N.D. Tex. 1993).
The applicable standard in deciding a motion for summary judgment is set forth in Federal Rule of Civil Procedure 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
Anderson, 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Id. ; Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.
Celotex Corp., 477 U.S. at 323.
Edwards v. Aguillard, 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp., 477 U.S. at 325.
Id.
Anderson, 477 U.S. at 257.
The non-moving party cannot discharge this burden by referring to the mere allegations or denials of the non-moving party's pleadings. Rather, the non-movant must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. The court will look at the record in the light most favorable to the non-movant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the non-movant's burden." Summary judgment is mandated if the non-movant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial. Accordingly, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
FED R.CIV.P. 56(e); Anderson, 477 U.S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp., 477 U.S. at 324; Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991); Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996).
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994)).
Celotex Corp., 477 U.S. at 322 ("In such situation, there can be 'no genuine issue as to any material fact,' since a complete failure of the proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). Id. at 323.
III. Analysis
In the instant case, defendant moves for dismissal, or in the alternative, for summary judgment, on the following grounds: (1) plaintiff failed to exhaust her administrative remedies as to any alleged wrongdoing committed before September 17, 2001; (2) plaintiff's retaliatory hostile work environment claim fails to state a claim upon which relief might be granted and/or fails as a matter of law because plaintiff cannot establish an adverse employment action; (3) plaintiff cannot recover for any work-related injuries because such claims are barred by the Federal Employees' Compensation Act; (4) plaintiff's disability discrimination claims fails to state a claim upon which relief might be granted and/or fails as a matter of law; and (5) plaintiff's "non-disability discrimination" claims fail to state a claim upon which relief might be granted and/or fail as a matter of law.
A. Are any acts of alleged wrongdoing that occurred before September 17, 2001 barred for plaintiff's failure to exhaust her administrative remedies?
Defendant's first argument in support of dismissal, or summary judgment, is that any acts of alleged wrongdoing which occurred before September 17, 2001, are barred as a result of plaintiff's failure to exhaust her administrative remedies. Specifically, defendant asserts that plaintiff was required to contact an EEO counselor within 45 days of the act of discrimination or the adverse, discriminatory personnel action. Because plaintiff contends that she first contacted an EEO counselor on November 1, 2001, defendant argues that any acts of discrimination occurring before September 17, 2001 (45 days before November 1, 2001), are barred for want of exhaustion. Defendant, therefore, avers that it is entitled to dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1), as this court lacks subject matter jurisdiction when a plaintiff fails to exhaust her administrative remedies, as well as 12(b)(6), as plaintiff cannot state a claim for which relief might be granted when she first fails to exhaust her administrative remedies. For these reasons, defendant further contends that it is entitled to judgment as a matter of law.
Docket Entry 10, at 9.
In opposition to this portion of defendant's motion, plaintiff has proffered two arguments: first, that plaintiff is excused from her failure to contact an EEO counselor timely as to any pre-September 2001 acts of discrimination because "management" never advised plaintiff of the filing time requirements and she was unaware of the same; and (2) all of defendant's actions fall under the continuing violation doctrine. Plaintiff's first argument is not entirely comprehensible as pled and is not supported by citation to any legal authority. Consequently, I shall focus exclusively on plaintiff's second argument — that defendant's actions fell under the continuing violation doctrine.
Docket Entry 11, at 13-14.
The regulations applying Title VII's anti-employment discrimination provisions to federal employees require employees "who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap" to contact an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory . . ." Once a federal employee has participated in, and exhausted, the administrative process, he or she may bring suit in federal court under Title VII. However,
[i]f a federal employee fails to exhaust his administrative remedies, the district court cannot adjudicate the employee's Title VII claim.
Fitzgerald v. Secretary, U.S. Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997).
Yet, there are instances in which an employer's conduct (or alleged conduct) cannot fairly be said to constitute a single, concrete act of discrimination. When the employer is engaged in an ongoing pattern of discriminatory behaviour, the court may properly find his actions to be a "continuing violation."
Courts have not formulated a clear standard for determining when alleged discriminatory acts are related closely enough to constitute a continuing violation and when they are merely discrete, isolated, and completed acts which must be regarded as individual violations.
Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983).
To determine if the employer's conduct constitutes a continuing violation, the court must review "the facts and context of each particular case." When conducting a "fact-specific inquiry," the Fifth Circuit has directed the trial courts to examine the following three factors: First, "Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation?" Second, "Are the alleged acts recurring . . . or more in the nature of an isolated work assignment or employment decision?" And, third, "Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?"
Id.
Berry, 715 F.2d, at 981-982.
Because this action is in its infancy in this forum and because the required analysis so highly fact specific, it would be inappropriate for the court to adjudicate the availability of the continuing violations doctrine to plaintiff at this time. In the interests of justice, plaintiff should be afforded the opportunity to obtain and present any evidence which would support her assertion that defendant's actions constituted a continuing violation. Similarly, defendant should be afforded the opportunity to obtain and present any evidence which would negate plaintiff's assertion that defendant's actions constituted a continuing violation. For these reasons, it is my recommendation that defendant's motion be DENIED with respect to the continuing violations doctrine and/or any bar against plaintiff's recovery for alleged wrongdoing which occurred before September 2001.
B. Do plaintiff's hostile work environment and retaliation claims fail as a matter of law?
Defendant's second argument in support of dismissal or summary judgment is that plaintiff's hostile work environment/retaliation claims fail as a matter of law. Specifically, defendant asserts that: (1) plaintiff has failed to establish an ultimate employment decision and, therefore, her retaliatory hostile work environment claim fails as a matter of law; and (2) plaintiff has failed to establish that defendant's purported wrongdoing was subjectively and objectively offensive, as well as severe and pervasive, such that plaintiff's disability-based hostile work environment claim fails as a matter of law.
Docket Entry 10, at 10-15.
In response and opposition, plaintiff argues that there is evidence that plaintiff suffered an adverse employment action — demotion — as the result of engaging in protected activity (filing a charge of discrimination and requesting accommodation for her disability). Plaintiff asserts that she was demoted from a GS-12 position to a GS-3 position. Plaintiff contends that the demotion included both a formal job demotion as well as a significant decrease in salary and benefits. Thus, plaintiff asserts that she suffered an ultimate employment action and her retaliatory hostile work environment claim is viable. Moreover, plaintiff contends that she was subject to verbal abuse and tangential employment changes, thereby fulfilling the requirement that her hostile work environment be both subjectively and objectively offensive.
Docket Entry 11, at 15-16.
In order to establish successfully a prima facie case of retaliation under Title VII, a plaintiff must show:
'(1) that she engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse employment action.'
Fierros v. Texas Dept. of Health, 274 F.3d 187, 191 (5th Cir. 2001) (internal citations omitted).
To fulfill the second prong — that plaintiff suffered an adverse employment action — the Fifth Circuit has directed that only "ultimate" employment actions "'such as hiring, granting leave, discharging, promoting, and compensating'" are actionable adverse employment actions.
Id.
In this case, defendant does not dispute that plaintiff's job grade was changed. Thus, plaintiff has established that she suffered an adverse, "ultimate" employment action. Although there may be insufficient evidence at this time to establish a causal link between plaintiff's protected activity and this adverse, ultimate employment action, it would be inappropriate to grant summary judgment at this early stage in the case. Given the Supreme Court's recent holding that employment discrimination complaints "must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief,'" plaintiff's allegations — that she engaged in protected activity and was, consequently, demoted — are sufficient to state a claim upon which relief might be granted. For these reasons, I recommend that defendant's motion be DENIED as to plaintiff's claim for retaliation.
See Fierros, 274 F.3d, at 190, wherein the Fifth Circuit explains that, in general, summary judgment "'is not favored in claims of employment discrimination (internal citations omitted).'"
Swierkiewicz v. Sorema, 534 U.S. 508 (2002), citing FED.R.CIV.P. 8(a)(2).
See Docket Entry 1, ¶¶ 12, 19a.
Similarly, plaintiff has pled sufficient facts to survive dismissal on her disability-based hostile work environment claim. Title VII is violated when:
As previously discussed, given the Fifth Circuit's general disfavor with summary adjudication in employment discrimination claims and the infancy of this case in this forum, it is my recommendation that defendant not be granted judgment as a matter of law on any of plaintiff's employment discrimination claims. Therefore, I am only addressing the propriety of dismissal under Federal Rule of Civil Procedure 12(b)(6) as to the same.
the workplace is permeated with 'discriminatory intimidation, ridicule, and insult . . .' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment . . .'
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (internal citations omitted).
In this case, plaintiff has alleged that she was verbally abused and humiliated, including being subjected to ridicule by one of her superiors (Col. Shanahan) on the basis of her disability. Plaintiff has even pled that the hostile work environment "unreasonably interfered with plaintiff's work performance." These allegations are sufficient — particularly in light of the Swierkiewicz decision — to survive a motion to dismiss. For these reasons, it is my recommendation that defendant's motion be DENIED as to plaintiff's hostile work environment cause of action.
See Docket Entry 1, ¶¶ 11, 13, at 3.
Docket Entry 1, ¶ 14, at 4.
C. Are plaintiff's claims for work-related injuries barred by the Federal Employees' Compensation Act (FECA)?
Defendant asserts that any claim by plaintiff to recover for her work-related injuries is barred by the Federal Employees' Compensation Act (FECA). Defendant argues, in pertinent part:
Plaintiff applied to the US Department of Labor for workers' compensation benefits on May 30, 2001. (Exh. 11). She received benefits from the OWCP, including treatment by OWCP physicians and a OWCP nurse assigned to monitor her case . . . At the time of the EEOC hearing, Plaintiff was attending physical therapy three times a week and a chiropractor once a week, all at the OWCP's expense . . . While FECA does not prevent Plaintiff from suing Defendant for alleged disability discrimination, it absolutely bars her suing Defendant for injuries related to her on-the-job injuries. The Court should dismiss these claims.
Docket Entry 10, at 16.
The Federal Employees' Compensation Act was created "to protect the Government from suits under statutes, such as the Federal Tort Claims Act, that had been enacted to waive the Government's sovereign immunity." Taking its queue from the "principal compromise . . . commonly found in workers' compensation," the statute guarantees federal employees the right to receive immediate benefits for on-the-job injuries in return for which the employees "lose the right to sue the Government." Under FECA, an employee receiving compensation for an on-the-job injury "may not receive salary, pay, or remuneration of any type from the United States . . ." during the time he or she is being compensated for the work-related injury.
5 U.S.C. § 8101, et seq.
Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-194 (1983).
Id. , 460 U.S., at 194.
In this case, there is nothing in the brief record before the court to indicate that plaintiff is seeking compensation for an on-the-job injury. Any such recovery would be barred by FECA. However, it appears that plaintiff is seeking recovery for damages which flowed from, inter alia, defendant's failure to make reasonable accommodation for plaintiff's disability. Injuries plaintiff suffered as a proximate result of defendant's discrimination, retaliation or hostile work environment harassment are not barred by FECA. Because plaintiff has not asserted claims for on-the-job injury, defendant's motion to dismiss, or for summary judgment, of said non-existent claims should be DENIED AS MOOT.
See Docket Entry 1, ¶ 19(a), at 5.
See Sullivan v. United States, 428 F. Supp. 79, 81 (E.D. Wis. 1977):
The type of injuries covered in 5 U.S.C. § 8101(5) includes injury by accident and disease; it does not appear to include such claims as are presented here for discrimination, mental distress, or loss of employment.
D. Do plaintiff's disability discrimination claims fail to state a claim upon which relief might be granted or fail as a matter of law?
Defendant has also argued that plaintiff's disability discrimination claims fail to state a claim upon which relief might be granted or fail as a matter of law. Specifically, defendant asserts that plaintiff has failed to meet the McDonnell Douglas test because she has not established all the requisite elements for a cause of action under the Rehabilitation Act, including that she was: qualified for her position; capable of performing the essential functions of her job or could do so with reasonable accommodations; or suffered an adverse employment action. Defendant further asserts that plaintiff is neither able to rebut its legitimate, non-discriminatory reasons nor able to establish that any such reasons were pretextual.
Docket Entry 10, at 17-22.
Docket Entry 10, at 22-25.
The Rehabilitation Act, 29 U.S.C. § 794(a), "prohibits discrimination against otherwise qualified individuals with handicaps in programs that receive federal assistance." As with most employment discrimination causes of action, claims under the Rehabilitation Act are subject to the traditional burden shifting framework. A plaintiff asserting a claim for relief under the Rehabilitation Act
Burciaga v. West, 996 F.Supp. 628, 633 (W.D. Tex. 1998).
bears the initial burden of establishing a prima facie case. Once this burden is met, the burden then shifts to the employer. The employer's burden is to "'articulate a legitimate non-discriminatory reason . . .'" that is unrelated to the handicap . . . If the employer meets this burden, the burden then shifts to the plaintiff to establish that the reason provided by the employer is a pretext for discrimination.
Id. , at 634 (internal citations omitted).
In order to establish a prima facie case of discrimination under the Rehabilitation Act:
a plaintiff must prove that, (1) he was an 'individual with handicaps'; (2) he was 'otherwise qualified'; (3) he worked for a 'program or activity' that received federal financial assistance; and (4) he was adversely treated solely because of his handicap.
Id. , citing Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993).
This burden-shifting framework, as well as the respective burdens of the parties, is similar to the requirements and analysis set forth in McDonnell Douglas Corp. v. Green.
Id. See also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The Supreme Court has recently reiterated and emphasized that the prima facie case requirement under McDonnell Douglas is "an evidentiary standard, not a pleading requirement." The Court continued:
Swierkiewicz, 534 U.S., at 510.
This Court has never indicated that the requirements for establish a prima face case under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss . . . Consequently, the ordinary rules for assessing the sufficiency of a complaint apply.
Id. , 534 U.S., at 511.
In the instant case, plaintiff has sufficiently pled her cause of action under the Rehabilitation Act. Plaintiff has alleged that she was an employee and defendant was an employer within the meaning of the Rehabilitation Act. Plaintiff has further pled that defendant failed to provide plaintiff with a reasonable accommodation for her disability. Plaintiff's complaint also avers that, as a result of defendant's failure to accommodate her disability, plaintiff suffered damages. Although plaintiff has not specifically alleged that she was a qualified individual — i.e. able to perform the essential functions of her job with or without reasonable accommodation — plaintiff's pleading is sufficient to survive dismissal under Federal Rule of Civil Procedure 12(b)(6). For these reasons, it is my recommendation that defendant's motion be DENIED as to plaintiff's causes of action for disability discrimination under the Rehabilitation Act.
Docket Entry 1, ¶ 7, at 2.
See Docket Entry 1, ¶ 15, at 4.
Docket Entry 1, ¶¶ 19a, 19c, at 5.
E. Do plaintiff's causes of action for "non-disability discrimination" fail to state a claim upon which relief might be granted or fail as a matter of law?
Lastly, defendant argues that plaintiff's claims for "non-disability" discrimination fail to state a claim upon which relief might be granted and/or fail as a matter of law. Defendant argues, in pertinent part,
Plaintiff alleges that Defendant did not meet a requirement to 'develop policies and procedures which will facilitate the hiring, placement, and advancement in employment of individuals who have received rehabilitation services under State vocational rehabilitation programs . . . Plaintiff cites a 1984 Massachusetts District Court case . . . to support this contention. But the case Plaintiff cites does not contain any such requirement. . . .
Plaintiff alleges that Defendant shrugged a statutory duty to 'create a program to train employees with respect to compliance with the Americans with Disabilities Act . . .' The statute Plaintiff cites to support this claim allows a state to expend payment to carry out a program to train employers regarding compliance with the ADA. 29 USC § 728a. Plaintiff cannot show that this statute (1) imposes any requirement on the United States or its agencies; (2) creates an independent cause of action that would entitle her to seek relief in Court; (3) grants United States District Courts jurisdiction to hear such a claim; or (4) waives the federal government's sovereign immunity to such a claim. Nor has she pled facts that would entitle her to relief even if she could bring these claims.
Finally, Defendant is entitled to summary judgment on Plaintiff's claim that Defendant violated 29 U.S.C. § 794 d ( sic) because Plaintiff (even assuming she were disabled) cannot show that she was denied 'access to and use of information' that is comparable to employees who do not suffer from a disability.
Docket Entry 10, at 25-26.
In response to the aforementioned attack on several of plaintiff's apparent causes of action, plaintiff quoted the following paragraph from her complaint:
Defendant failed to comply with Section 508 of the Rehabilitation Act ( 29 USC 794d), as amended by the Workforce Investment Act of 1998 (P.L. 105-220), August 7, 1998, which requires that Federal agencies ensure that 'individuals with disabilities who are Federal employees . . . have ( sic) access to and use of information and data that is comparable to the access to and use of the information and data by Federal employees who are not individuals with disabilities' (Sect. 508(a)(1)(A)(i)). (f)(1)(A) ( sic) provides that a disabled employee can file a complaint).
Plaintiff then asserted:
In its zeal to dismiss all violations of the law against the Defendant, Defendant never addressed the statutory right under Section 508 of the Rehabilitation Act, 29 U.S.C. 794d, specifically Sec. 508(a)(1)(A)(i).(f)(1)(A). Plaintiff possess a right ( sic) to allege and seek enforcement of the Workforce Investment Act of 1998 (P.L. 105-220). Defendant's own exhibit, an e-mail (Exhibit 30 of Defendant's Motion to Dismiss) stands in evidence that Plaintiff was denied access to and use of information and data as a federal employee with disabilities. This court has jurisdiction of federal statute enforcement, e.g. 28 U.S.C. § 1333.29 U.S.C. § 794d requires, inter alia, federal departments and agencies to provide federal employees with disabilities "access to and use of information and data that is comparable to the access to and use of the information and data by Federal employees who are not individuals with disabilities." The statute authorizes the filing of administrative complaints
Docket Entry 11, at 23.
with the Federal department or agency alleged to be in noncompliance. The Federal department or agency receiving the complaint shall apply the complaint procedures established to implement section 794 of this title for resolving allegations of discrimination in a federally conducted program or activity.
However, the statute appears to exclude the possibility of maintaining a civil action thereunder. In the subsection entitled "civil actions," the statute reads:
The remedies, procedures, and rights set forth in sections 794a(a)(2) and 794a(b) of this title shall be the remedies, procedures, and rights available to any individual with a disability filing a complaint under paragraph (1).
Thus, the statute does not authorize a private, non-administrative right action.
Because section 794d cannot form the basis for a civil action, and because this is the only non-disability discrimination cause of action for which plaintiff submitted any argument in support, I recommend that defendant's motion to dismiss be GRANTED with respect to plaintiff's non-disability discrimination causes of action. Plaintiff has failed to state a claim for which relief might be granted thereunder.
IV. Recommendation
Based on the foregoing, it is my recommendation that defendant's motion to dismiss (docket entry 10) be GRANTED, in part, and DENIED, in part, in accordance with this memorandum and recommendation. Specifically, I recommend that defendant's motion to dismiss be GRANTED as to plaintiff's non-disability discrimination causes of action but DENIED in all other respects.
V. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Report and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), any party who desires to object to this report must serve and file written objections to the Report and Recommendation within ten (10) days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings. conclusions, or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive, or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation within ten (10) days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuña v. Brown Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000), cert. denied, 530 U.S. 1229 (2000).
Douglass v. United Servs. Auto. Ass'n. , 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).