Clemens v. Fanning et al

Brief in Reply

W.D. Wis.October 28, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ JOSEPH P. CLEMENS, Plaintiff, v. Case No. 16-cv-467-wmc ERIC K. FANNING, Secretary of the Army, Defendant. ______________________________________________________________________________ REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS ______________________________________________________________________________ Defendant Eric K. Fanning, Secretary of the Army (“Defendant”), by his attorney, John W. Vaudreuil, United States Attorney for the Western District of Wisconsin, by Leslie K. Herje, Assistant United States Attorney for that district, hereby submits this reply to Plaintiff’s response to Defendant’s motion to dismiss. For the reasons set forth below, this Court should grant Defendant’s motion to dismiss. I. Introduction Defendant filed a motion to dismiss Plaintiff’s claims on July 21, 2016. ECF No. 31. In his motion, Defendant raised numerous pleading deficiencies and legal arguments precluding Plaintiff’s claims in his Amended Complaint, ECF No. 15. Plaintiff’s opposition memorandum, ECF No. 36, failed to address any of Defendant’s specific arguments. Rather, in opposing Defendant’s motion, Plaintiff essentially makes two arguments: 1) Defendant’s motion was untimely; and 2) Plaintiff’s Amended Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 1 of 15 2 Complaint adequately states a “viable claim” of employment discrimination. See ECF No. 15 at 1-2. As argued in his opening brief, Plaintiff’s Amended Complaint fails to state a claim that Defendant committed an unlawful employment practice. Defendant accommodated Plaintiff’s multiple requests for leave after his strokes. When all of his available leave was exhausted and Plaintiff had neither returned to work after seven months nor been cleared to return to work, Defendant proposed to remove him for physical inability to perform the essential functions of his job. Thereafter, Defendant assisted him to secure a disability retirement. As an initial matter, Plaintiff must at least satisfy the pleading requirements of Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), with respect to each of his claims. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to state a claim under the federal rules. Iqbal, 556 U.S. at 678. Further, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. To establish the “facial plausibility” required to “unlock the doors of discovery,” the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Because Plaintiff has failed to plead sufficient factual content to let this Court infer any liability, dismissal is appropriate under Rule 12(b)(6). Finally, Defendant also identified claims raised by Plaintiff that this Court has no jurisdiction to hear and that he failed to exhaust. His remaining claims lack sufficient Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 2 of 15 3 facts to satisfy pleading standards and state a claim for relief beyond the merely conjectural. Consequently, Defendant renews his request that the Court dismiss Plaintiff’s Amended Complaint. II. Procedural Background Plaintiff originally filed a Complaint in the United States District Court for the Northern District of Illinois on November 13, 2015. ECF Nos. 1-3. He also simultaneously filed a motion for leave to proceed in forma pauperis and for attorney representation. ECF Nos. 4-5. The district court authorized Plaintiff leave to proceed on his Complaint on January 26, 2016, recruited counsel, and issued a summons the following day. ECF Nos. 8-10. The court held a status conference on March 30, 2016, and provided Plaintiff, then represented by counsel, until May 4, 2016, to file an Amended Complaint. ECF No. 13. Plaintiff then filed his Amended Complaint on April 29, 2016. ECF No. 15. Thereafter, the parties agreed to, and the district court granted, a motion for an extension of time for the Defendant to file a responsive pleading -- making the new responsive pleading due date June 21, 2016. ECF No. 20. On June 15, 2016, the Defendant filed a motion to dismiss or transfer venue, and set a briefing schedule for the motion. ECF Nos. 24-25. Rather than oppose the motion, Plaintiff specifically did not object to the motion to transfer venue; accordingly, the district court granted the motion and transferred the case to the Western District of Wisconsin on June 30, 2016. ECF Nos. 26-27. Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 3 of 15 4 On July 14, 2016, the Defendant filed an unopposed motion for extension of time to file a responsive pleading, extending the deadline to July 21, 2016. ECF No. 28. This Court granted this unopposed extension that same day. ECF No. 29. On July 21, 2016, the Defendant filed a motion to dismiss Plaintiff’s Amended Complaint. ECF No. 30. The Court set a standard briefing schedule, and then later extended the parties’ deadlines during the preliminary pretrial conference, providing Plaintiff until September 30, 2016, to respond. ECF No. 32. During the pretrial conference and in his text order, Magistrate Judge Crocker noted the following, “Mr. Clemens is free to attempt to retain a lawyer to assist him, and he is free to ask this court for assistance recruiting an attorney, but the September 30 deadline is going to stick no matter what.” Id. Notwithstanding, Plaintiff filed a motion for an extension of time on September 22, 2016, which the district court denied the following day. ECF Nos. 34-35. III. Argument As a preliminary matter, Plaintiff, who is proceeding pro se, failed to squarely address the arguments set forth in Defendant’s motion. Instead, Plaintiff essentially argued that his brief did state a claim that he was wrongfully discharged and retaliated against. In addition, he attached over 50 pages of documents to his brief,1 which appear to be briefs that he filed in the administrative EEOC proceedings back in 2012. See generally ECF No. 36 at 6-63. However, none of the arguments set forth in those 1 Plaintiff also attached five Exhibits to his brief in opposition. From review of the Exhibits, they appear to be duplicative of the documents attached to his brief. Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 4 of 15 5 documents directly address the arguments set forth in Defendant’s motion to dismiss. Although courts liberally construe a pro se litigant’s filings, Erickson v. Pardus, 551 U.S. 89, 94 (2007), a party is not allowed to amend his complaint through subsequent briefing. “[E]ven pro se litigants must follow rules of civil procedure.” Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). Similarly, neither the court nor a party is obligated to sift through all of these documents in an attempt to discern Plaintiff’s arguments. United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003) (even pro se plaintiffs are required to “make their pleading straightforward so that judges and adverse parties need not try to fish a gold coin from a bucket of mud.”) For these reasons, for the purposes of this motion, the Court should determine whether Plaintiff’s Amended Complaint, which was drafted and filed by an attorney, states claims that are plausible, and cognizable, on their face. A. Defendant’s Motion to Dismiss was Timely Plaintiff first argues that Defendant’s motion to dismiss was untimely, and, as a result, should be disregarded. ECF No. 15 at 1, 5. This argument has no merit. As outlined in the procedural background above, any motions for extensions of time were unopposed, and, in any event, ultimately granted by the court. Specifically, the Defendant filed a timely motion to dismiss or to transfer venue pursuant to 28 U.S.C. § 1406.2 Thereafter, Plaintiff, represented by counsel at the time, 2 Defendant argued that the applicable venue provision under the Rehabilitation Act, 42 U.S.C. § 2000e-5(f)(3), made clear that venue could only lie in Wisconsin. ECF No. 22 at 2. The Defendant alternatively argued that the Amended Complaint could be dismissed, but noted Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 5 of 15 6 decided not to object to the motion to transfer, and the Northern District of Illinois transferred this case. ECF No. 25. The Order was entered and the Amended Complaint transferred on June 30, 2016. ECF No. 27. Fourteen days later, on July 14, 2016, Defendant filed an unopposed motion for an extension of time until July 21, 2016, to file a responsive pleading. ECF No. 28. As noted above, this extension was granted and the Defendant filed a timely motion to dismiss on July 21, 2016. ECF No. 31. Accordingly, Plaintiff’s argument that Defendant’s motion to dismiss is untimely is without basis. B. Defendant’s Motion to Dismiss Should Be Granted Pursuant to Rule 12(b) 1. Plaintiff’s Claim for Work-related Injury Must Be Dismissed Because this Court Has No Subject Matter Jurisdiction As with the majority of Defendant’s arguments, Plaintiff failed to address the assertion that the Federal Employee’s Compensation Act (“FECA”) provides the exclusive remedy for federal employees’ work-related injuries. ECF No. 31 at 7-8. Plaintiff cannot pursue any claim that his stroke or strokes were work-related injuries in district court. See ECF No. 15 at ¶¶ 19 to 34. Plaintiff uses the label “hostile work environment” repeatedly throughout his response to describe his pre-stroke working conditions, but he does not base his hostile work environment claim, ECF No. 15, Count III, on any pre-stroke events. It is not uncommon for plaintiffs to use this term to describe any interpersonal conflict at work. Notwithstanding, Plaintiff has not identified any Title VII-protected basis (race, religion, color, national origin, age) or any disability upon which he alleges his supervisors that as Plaintiff had been proceeding pro se when the case was initially filed, a transfer to the Western District of Wisconsin would be in the interests of justice. ECF No. 22. Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 6 of 15 7 harassed him prior to his stroke. No course of conduct Plaintiff has described, whether before or after his stroke, meets the requisite Title VII definition of hostile work environment. To the extent that Plaintiff’s discussion of a pre-stroke hostile work environment is a way for him to seek compensation for his strokes, he is barred from raising any such claim before this Court because he has not exhausted any pre-stroke hostile work environment claim. The time has long passed by which he was required to raise these issues to an EEO counselor under 29 U.S.C. § 1614.105. Together with the exclusive FECA remedy, the Title VII exhaustion pre-condition to bringing suit prohibits him from recovering any damages for his stroke and his resulting disability. For these reasons, Defendant asserts that this Court has no jurisdiction over any claim Plaintiff raises for any work-related injury. Accordingly, at a minimum, paragraphs 19 to 34 should be struck from Plaintiff’s Amended Complaint. 2. Claims I to III Must Be Dismissed Because Plaintiff Fails to State a Claim for Failure to Accommodate, Hostile Work Environment, or Retaliation In opposing Defendant’s motion, Plaintiff relies on the plain language of Federal Rule of Civil Procedure 8(a) to assert he has pleaded sufficient facts to state a claim for relief. As Defendant has previously argued, Iqbal and Twombly make clear that to survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). See generally ECF No. 31 at 5-6. While Plaintiff is correct that he need not Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 7 of 15 8 plead a prima facie case at this stage, there are still both factual requirements and legal hurdles he must overcome to pursue his claims; his pleading does not overcome these. Accordingly, he fails to raise a right to relief over the merely speculative. Twombly, 550 U.S. at 555. Defendant has thoroughly discussed these deficiencies in his motion, and Plaintiff has not refuted Defendant’s specific arguments. a. Count I must be dismissed because Plaintiff failed to state a claim for failure to accommodate. Plaintiff admits that Defendant accommodated him with leave. ECF No. 36 at 61. Defendant agrees that Plaintiff’s accommodation request was for leave: not only advanced sick leave and leave donation, but also use of his entitlement to leave under the Family Medical Leave Act (“FMLA”). Am. Compl., ECF No. 15 at ¶¶ 35-37. Defendant granted Plaintiff all these varieties of leave. Id. After Plaintiff had used all of his leave, but still did not return to work, Defendant proposed to remove him. Am. Compl., ECF No. 15 at ¶¶ 54-55. This course of conduct does not describe an unlawful employment practice. Defendant has demonstrated that, as a matter of law, attendance is an essential job function. ECF No. 31 at 8-9. Plaintiff does not dispute this argument. Nor does he allege that he even once tried to return to work after his stroke or ever sought any medical clearance to return to work. As part of his supplemental documents,3 Plaintiff 3 In deciding a motion to dismiss, courts generally do not review documents outside of the pleadings unless they meet certain limited exceptions. See ECF No. 31 at 5 (when ruling on a motion brought pursuant to Fed. R. Civ. P. 12(b)(6), the court “may consider documents attached to a complaint, or documents referred to in a complaint which are central to the plaintiff’s claim. . . without converting a motion to dismiss into a motion for summary Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 8 of 15 9 has described a transportation plan for how he could have gotten to work despite his inability to drive, ECF No. 36 at 61, but he never made any assertion that he used it to report to work. Having failed to return to work, as a matter of law, Plaintiff is precluded from the class of persons protected by the Rehabilitation Act. See Byrne v. Avon Products, Inc., 328 F.3d 379, 381 (7th Cir. 2003). Plaintiff cannot state a claim for failure to accommodate because he is not within the class of persons protected by the Rehabilitation Act who are able to perform their essential job functions, including attending work. As Plaintiff’s Amended Complaint fails to state a plausible claim for relief for any failure to accommodate him, his claim must be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). b. Count II should be dismissed because Plaintiff fails to state a claim for retaliation. Plaintiff’s Complaint is ambiguous as to whether he claims his removal was in retaliation for activity protected under the Rehabilitation Act or under Title VII. Plaintiff’s opposition brief suggests he believes his claim arises under the Rehabilitation Act and the ADA. ECF No. 36 at 9. Of course, because he was a federal employee, the Rehabilitation Act provides plaintiff with the exclusive remedy for alleged employment based discrimination. Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005) (Section 501 of the Act is the sole remedy for Federal employees claiming disability discrimination). judgment.” Mekelburg v. Potter, 2010 U.S. Dist. LEXIS 13463 (E.D. Wis. Feb. 16, 2010) (citing Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993)). Although plaintiff’s attached documents do not appear to comport with these limitations, in an abundance of caution, the Defendant has reviewed them in the event the court liberally construes his opposition brief and considers them as part of his substantive response. Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 9 of 15 10 Courts evaluate such claims by applying certain ADA standards and case law. Scheerer v. Potter, 443 F.3d 916, 918-19 (7th Cir. 2006). In any event, because the protected activity he describes-writing to his senator-was demonstrably not an effort to oppose any employment practice prohibited by either Title VII or the Rehabilitation Act, he cannot state a claim for retaliation under either authority. 1) Plaintiff does not allege he opposed an employment practice prohibited by Title VII or the Rehabilitation Act. Plaintiff does not dispute Defendant’s characterization of his letters to Senator Durbin, ECF No. 31. Plaintiff complained to the Senator of being denied worker’s compensation under FECA for his stroke after he complained about too much work stress pre-stroke, being asked if he wished to apply for disability retirement, and pay- setting errors. The Seventh Circuit requires that “the [employee’s] complaints must indicate the discrimination occurred because of sex, race, national origin, or some other protected class.” Tomanovich v. City of Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006). Plaintiff complained of no conduct prohibited by either the Rehabilitation Act or Title VII. Filing a worker’s compensation claim is not activity protected by these statutes. Plaintiff has not and cannot meet the pleading requirements of Iqbal and Twombly on this count because his activity was not of the kind protected by Title VII or the Rehabilitation Act. In other words, he does not have a plausible right to relief. 2) Plaintiff pleaded no facts to suggest any nexus between his protected activity and his removal. Even assuming Plaintiff’s “protected activity” was protected by Title VII or the Rehabilitation Act, he still must satisfy the pleadings standards of Iqbal and Twombly by Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 10 of 15 11 pleading specific facts that establish the nexus between this protected activity and his removal. Plaintiff pleads no facts whatsoever to show 1) his managers were aware of his communications with Senator Durbin, or 2) were motivated to retaliate for it. Absent any facts to link his prior activity with his removal, his claim must be dismissed. 3) Plaintiff’s Amended Complaint undercuts his retaliation claim. By the terms of his own pleading, Plaintiff was granted extended leave and the agency’s proposal to remove Plaintiff “coincided with the date at which Mr. Clemens had exhausted his available leave.” Am. Compl., ECF No. 15 at ¶¶ 35-37, 54-55. This recital does not describe an unlawful employment practice. The timing Plaintiff describes indicates a wholly different and non-retaliatory motive for removing him: he had no remaining leave and had not come back to work. 3. Count III Should Be Dismissed Because Plaintiff Fails to State a Claim for Hostile Work Environment Defendant previously argued that hostile work environment harassment on the basis of disability is not a recognized cause of action in the Seventh Circuit. ECF No. 31 at 12. Plaintiff does not dispute this analysis in his response. As the cause of action has not been explicitly recognized in the Seventh Circuit, Plaintiff’s claim should be dismissed. Further, Plaintiff does not dispute Defendant’s analysis of the factual content of his hostile work environment claim. Even assuming such a cause of action did exist, Plaintiff’s factual allegations are too vague and sparse to raise any right to relief above the merely speculative level. The bar for alleging a hostile work environment is high, see Conley v. Village of Bedford Park, 215 F.3d 703, 712-13 (7th Cir. Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 11 of 15 12 2000), and Plaintiff’s four events from March 2011, to December 2011, do not satisfy the standard. Indeed, to rise to the level of a hostile work environment, conduct must be sufficiently severe or pervasive to alter the conditions of employment such that it creates an abusive relationship. Alexander v. Casino Queen, Inc., 739 F.3d 972, 982 (7th Cir. 2014)(emphasis in original). Two of the four events alleged are discrete acts under Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 107 (2002), so that leaves Plaintiff pleading a hostile work environment on the basis of two work evaluations. These allegations, which come nowhere close to abusive, do not, as a matter of law, satisfy the Iqbal and Twombly pleading standards or state a claim sufficient to survive a Rule 12(b)(6) motion. 4. Unexhausted Portions of Counts II and III Warrant Dismissal Plaintiff has failed to exhaust part of his retaliation claim and part of his hostile work environment claim. Other than generally objecting to having his claims carved- up, ECF No. 36 at 2, Plaintiff does not challenge this analysis or demonstrate when or how he exhausted these claims. Having failed to satisfy the necessary pre-condition to bringing suit, and given that he cannot now timely exhaust under 29 U.S.C. § 1614.105, these claims should be dismissed with prejudice under Rule 12(b)(6). The Seventh Circuit has held that where an employee’s lawsuit attempts to raise claims or allegations that were not presented and investigated at the administrative level, the employee has failed to satisfy a precondition to bringing a Title VII claim in federal court. Gibson v. West, 201 F.3d 990, 994 (7th Cir. 2000). The Amended Complaint filed in district court and the administrative charge must, at a minimum, describe the same circumstances and Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 12 of 15 13 participants. Cheek v. Peabody Coal Co., 97 F.3d 200, 202-03 (7th Cir. 1996). Because Plaintiff’s Amended Complaint includes factual claims not exhausted at the administrative level, those claims outside his administrative claims must be dismissed. a. Plaintiff’s claim of retaliation for requesting accommodation is unexhausted and must be dismissed. Defendant has demonstrated Plaintiff is claiming for the first time in his judicial complaint that his removal was retaliation for his request for accommodation. ECF No. 31 at 15. Plaintiff fails to refute that he never exhausted this issue. As more than 45 days has gone by and the issue cannot now be timely exhausted under 29 U.S.C. § 1614.105, this claim should be dismissed with prejudice. b. Plaintiff’s hostile work environment claim is unexhausted. Similarly, Plaintiff’s Amended Complaint for the first time alleges that the Agency created a hostile work environment when Plaintiff received “disparaging performance reviews.” Am. Compl., at ¶ 96. Plaintiff does not refute that he failed to administratively exhaust the issue of his negative performance evaluations as part of his hostile work environment claim. This claim was not raised within 45 days to an EEO counselor; it was not part of Plaintiff’s formal complaint of discrimination filed in January 2012. See ECF No. 31, Ex. 1. Defendant fully analyzed this issue in his initial memorandum of law. ECF No. 31 at 15-16. Plaintiff does not dispute or refute Defendant’s argument. As more than 45 days has gone by and the issue cannot now be timely exhausted under 29 U.S.C. § 1614.105, dismissal with prejudice is appropriate. Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 13 of 15 14 C. Plaintiff Generally Argues that He Has Stated a Claim Finally, in opposing Defendant’s motion, Plaintiff’s generally insists that he does state a claim. ECF No. 36. He asserts that his Amended Complaint is sufficient because his claim of employment discrimination satisfies the “who, what, when, where, and how.” ECF No. 36 at 62-63. He urges the Court to consider generally whether the management conduct he describes is an unlawful employment practice. ECF No. 36 at 2. As argued above, Defendant has already addressed this question with respect to each of Plaintiff’s claims. Plaintiff’s Amended Complaint fails to assert any unlawful employment practice, and, consequently, does not and cannot state a claim upon which relief can be granted. Accordingly, because Plaintiff’s Amended Complaint fails to state a claim upon which relief may be granted, Defendant’s motion to dismiss should be granted. Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 14 of 15 15 IV. Conclusion For the reasons set forth above, Defendant respectfully requests that the Court grant his motion and dismiss Plaintiff’s Amended Complaint with prejudice. Dated this 28th day of October, 2016. Respectfully submitted, JOHN W. VAUDREUIL United States Attorney By: s/ Leslie K. Herje LESLIE K. HERJE Assistant United States Attorney Unites States Attorney’s Office Western District of Wisconsin 222 West Washington Avenue, Suite 700 Madison, WI 53703 Phone: (608) 264-5158 Of Counsel Holly Bryant Litigation Attorney U.S. Army Litigation Division 9275 Gunston Road, 3rd Floor Fort Belvoir, VA 22060-5546 Case: 3:16-cv-00467-wmc Document #: 37 Filed: 10/28/16 Page 15 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN ______________________________________________________________________________ JOSEPH P. CLEMENS, Plaintiff, v. Case No. 16-cv-467-wmc ERIC K. FANNING, Secretary of the Army, Defendant. ______________________________________________________________________________ CERTIFICATE OF SERVICE ______________________________________________________________________________ The undersigned hereby certifies that she is an employee of the Office of the United States Attorney for the Western District of Wisconsin and is a person of such age and discretion as to be competent to serve papers. That on October 28, 2016, she caused a copy of Defendant’s Reply to Plaintiff’s Response to Defendant’s Motion to Dismiss to be served by United States Mail to the following addressee. Addressee: Joseph P. Clemens 9255 N. Lincoln Avenue Des Plaines, IL 60016 s/Ka Saundra L. Hosea Ka Saundra L. Hosea Case: 3:16-cv-00467-wmc Document #: 37-1 Filed: 10/28/16 Page 1 of 1