Amaefuna V Mcdonald et al

First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , First MOTION to Dismiss for Lack of Jurisdiction

D. Mass.February 10, 2017

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ____________________________________ ) Patricia Amaefuna, ) ) Plaintiff, ) ) v. ) Civil Action No. 16-11414-DJC ) Department of Veteran Affairs & another, ) ) Defendants. ) ) DEFENDANTS’ PARTIAL MOTION TO DISMISS AND FOR SUMMARY JUDGMENT Defendants, by and through their attorney, William D. Weinreb, Acting United States Attorney for the District of Massachusetts, move to dismiss Counts IV, V, VI, and VII for failure to state a claim and seek summary judgment regarding Count VIII. A memorandum of law accompanies this motion. Counts IV and V, in which Plaintiff alleges that Defendants failed to reasonably accommodate her disability, fail as a matter of law because the Americans with Disabilities Act does not apply to Plaintiff and because Plaintiff did not exhaust her remedies under the Rehabilitation Act. Counts IV and V should also be dismissed under Fed. R. Civ. P. 12(b)(1) because Plaintiff failed to file her Complaint within 90 days of receiving the Final Agency Decision regarding those claims. See 42 U.S.C. § 2000e-16(c). Counts VI and VII, which allege negligent and intentional infliction of emotional distress, are improper because Plaintiff has an alternative and exclusive remedy on that issue. Count VIII alleges breach of the covenant of good faith and fair dealing. But Plaintiff cannot sue on that theory because her hiring documents show that she was appointed. Moreover, even if Plaintiff had a contract, her claim would still fail because the Court can only hear contract claims for $10,000 or less. Case 1:16-cv-11414-DJC Document 18 Filed 02/10/17 Page 1 of 2 2 CONCLUSION For the reasons stated and on the authorities cited in the accompanying legal memorandum, this Court should dismiss Counts IV, V, VI, and VII and enter summary judgment for Defendants regarding Count VIII. Respectfully submitted, DEPARTMENT OF VETERANS AFFAIRS and ROBERT MCDONALD By their attorney, WILLIAM WEINREB Acting United States Attorney By: /s/ Annapurna Balakrishna Annapurna Balakrishna Assistant United States Attorney United States Attorney’s Office John Joseph Moakley Federal Courthouse One Courthouse Way - Suite 9200 Boston, Massachusetts 02210 (617) 748-3111 Massachusetts BBO # 655051 February 10, 2017 annapurna.balakrishna@usdoj.gov CERTIFICATE UNDER LOCAL RULE 7.1(A)(2) I certify that on February 8, 2017, at 5:08 PM, I emailed Plaintiff’s counsel and asked him to contact me to discuss the issues raised by motion. I have not received a response. /s/ Annapurna Balakrishna Annapurna Balakrishna CERTIFICATE OF SERVICE I certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants, if any, on February 10, 2017. /s/ Annapurna Balakrishna Annapurna Balakrishna Case 1:16-cv-11414-DJC Document 18 Filed 02/10/17 Page 2 of 2