Clemens v. Fanning et al

Brief in Support of 30 Motion to Dismiss

W.D. Wis.July 21, 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. ______________________________________________________________________________ MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS ______________________________________________________________________________ Defendant Eric K. Fanning, Secretary of the Army, 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 memorandum of law in support of defendant’s motion to dismiss Plaintiff’s Amended Complaint for 1) lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), 2) failure to state a claim for which relief can be granted under Fed. R. Civ. P. 12(b)(6), and 3) failure to exhaust administrative remedies pursuant to Fed. R. Civ. P. 12(b)(6). For the reasons set forth below, this Court should grant Defendant’s motion. I. Introduction Plaintiff’s claims arise from an unfortunate medical event: a stroke or strokes at the age of 49. Plaintiff suffered these strokes away from the workplace. They affected his use of his right side and his ability to speak. His prognosis for recovery of function Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 1 of 16 2 in these areas could not be clearly predicted by his doctors even months after the strokes. Though employed at Fort McCoy, Plaintiff resided (and still resides) in Des Plains, Illinois, over two hours away. He was not cleared to return to work due, in part, to his inability to operate a motor vehicle. The United States Army (“Army” or “Agency”) granted Plaintiff’s repeated requests for advanced leave, Family Medical Leave Act leave, and enrollment in the Army’s leave donation program and later supported his successful application for disability retirement. Finally, more than seven months after his first stroke, when Plaintiff still had not returned to work and had exhausted all available leave, the Army proposed his removal for physical inability to perform the essential functions of his job. Plaintiff and his counsel1 have attempted in his Amended Complaint to state claims for failure to offer a reasonable accommodation, hostile work environment, and retaliation (some of which are unexhausted). However, the Amended Complaint fails as a matter of law to state a claim upon which relief can be granted on any of these claims. Further, to the extent Plaintiff attempts to state a claim for work-related injury, he is barred under the Federal Employees Compensation Act (“FECA”) from doing so. For these reasons, Defendant respectfully requests that the Court dismiss Plaintiff’s Amended Complaint. 1 Plaintiff was appointed counsel in the Northern District of Illinois, where he initially filed his Complaint and Amended Complaint. The Amended Complaint this motion seeks to dismiss was filed by counsel. Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 2 of 16 3 II. Factual Background A. Employment History Fort McCoy is a military installation and training Center for the Army located in Monroe County, Wisconsin. Am. Compl., p. 3, ¶ 12, April 29, 2016, ECF No. 15. The relevant period of Plaintiff’s employment with the Army was December 2008 to December 30, 2011, during which time he served as a Supervisory Emergency Dispatcher, GS-2151-11. Am. Compl., at ¶¶ 8 and 15. On March 11, 2011, Plaintiff suffered an acute cerebrovascular accident (“CVA”) or stroke. Am. Compl., at ¶ 31. On March 14, Dr. Andrey Lev-Weissberg cleared him to return to work on a reduced work schedule after a month. Am. Compl., at ¶¶ 32, 33). On May 19, 2011, Plaintiff asked his first-line supervisor, Chief Stapel, for extended leave and to be placed in the leave donation program; both requests were approved. Am. Compl., at ¶¶ 36, 37. On June 13, 2011, the Agency sent Plaintiff a request for medical documentation. Am. Compl., at ¶ 38. Plaintiff returned a June 21, 2011 assessment from Dr. Lev- Weissberg. Am. Compl., at ¶ 39. In response to Defendant’s inquiry regarding any needed reasonable accommodations, Dr. Lev-Weissberg only wrote “Perhaps text to voice.” Id. Thereafter, a June 24, 2011 assessment by Dr. Timothy Mikesell followed; he noted “[t]ime will tell his prognosis; it is unknown now”. Am. Compl., at ¶ 41. Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 3 of 16 4 Over four months later, Plaintiff alleges2 he contacted Senator Richard Durbin of Illinois regarding the Agency in letters dated October 18, 2011, and November 7, 2011. Am. Compl., at ¶¶ 52 and 56. When Plaintiff still had not returned to work by the end of October 2011, the Agency proposed his removal for physical inability to perform the essential functions of his position. Am. Compl., at ¶ 54. Plaintiff had exhausted all available leave by then. Am Compl., at ¶ 55. On December 30, 2011, the deciding official effected Plaintiff’s removal. Am. Compl., at ¶ 55. B. Relevant Administrative Procedural History Plaintiff filed a formal mixed case complaint regarding his removal with the Fort McCoy Equal Employment Opportunity (“EEO”) office on January 26, 2012. See Am. Compl., at ¶ 9, and Ex. 1 He thereafter sought review by the Merit Systems Protection Board (“MSPB”) and the Equal Employment Opportunity Commission’s (“EEOC”) Office of Federal Operations (“OFO”). Am. Compl., at ¶¶ 10-11. The full MSPB sustained the Plaintiff’s removal, and the EEOC’s OFO concurred with the MSPB’s final decision. Am. Compl., at ¶¶ 9-11. C. District Court Proceedings Plaintiff filed his Complaint in the Northern District of Illinois on January 26, 2016. Compl., Jan. 26, 2016, ECF No. 10. He thereafter filed for leave to proceed in forma 2 For purposes of this motion only, Defendant assumes the truth of this allegation. Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 4 of 16 5 pauperis and for court-appointed counsel. ECF Nos. 4 and 5. The district court granted both requests. Order, Jan. 26, 2016, ECF No. 9. Plaintiff’s counsel filed an Amended Complaint on April 29, 2016. ECF No. 15. Because the Northern District of Illinois was not a proper venue for Plaintiff’s Title VII claims, Defendant filed an uncontested motion to transfer venue to this district, which encompasses Fort McCoy, and where all the events at issue occurred. See generally ECF No. 22. The district court granted Defendant’s motion to transfer venue on June 29, 2016. ECF No. 25. Venue was transferred effective June 30, 2016. ECF Nos. 26-27. III. Legal Standards As a court of limited jurisdiction, a district court has a duty to assure itself that it has proper subject matter jurisdiction. Cook v. Winfrey, 141 F.3d 322, 325 (7th Cir. 1998). Unlike when ruling on a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, when a court is obliged to accept the allegations of the complaint as true, see Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), a court reviewing a Rule 12(b)(1) motion is granted substantial latitude in reviewing the evidence which supports its jurisdiction in addressing a motion to dismiss under Rule 12(b)(1). 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)). “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted). “[F]acial Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 5 of 16 6 plausibility” exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). Accordingly, while the complaint need not set out “detailed factual allegations,” Twombly, 550 U.S. at 555, it must provide sufficient factual amplification “to raise a right to relief above the speculative level.” Id. While a district court generally may not consider matters extraneous to the pleadings 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, as well as judicially noticed documents and reports of administrative bodies, without converting a motion to dismiss into a motion for summary 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)). For example, a plaintiff’s complaint to the EEOC may be considered on a motion to dismiss because it is integral to the complaint. See International Audio Text Network v. American Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam). Importantly, a plaintiff cannot prevent the court from looking at the text of the documents on which a claim is based by failing to attach or explicitly cite to them. In re Burlington Coat Factory, 114 F.3d 1410, 1426 (3d Cir. 1997). As it relates to the exhaustion of administrative remedies, a failure to comply with the preconditions for filing a discrimination lawsuit is an affirmative defense. Salas v. Wisconsin Dep’t of Corrections, 493 F.3d 913, 921 (7th Cir. 2007). As the Court Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 6 of 16 7 explained in Yassan v. J.P. Morgan Chase and Co., 708 F.3d 963 (7th Cir. 2013),3 “[a]t the dismissal stage, the court is typically confined to the pleadings alone, but ‘it is. . . well settled in this circuit that documents attached to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to his claim.” Id. at 975 (internal quotations and citations omitted). IV. Argument A. The Court has No Subject Matter Jurisdiction Over Any Claim for Purported Work-Related Injury To the extent Plaintiff is attempting to raise a claim that his stroke was a work- related injury (the facts set forth in paragraphs 19 to 34 of the Amended Complaint indicate an attempt at such a claim), those claims are preempted by the Federal Employees Compensation Act, 5 U.S.C. § 8116(c) (“FECA”). FECA is the exclusive remedy for civilian employees injured during their employment. “The remedies provided under FECA are exclusive of all other remedies against the United States for job-related injury or death.” Fuqua v. United States Postal Svc., 607 Fed. Appx. 570, 572 (7th Cir. 2015) (citing Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 193-94 (1983)). Accordingly, this Court has no jurisdiction over any claim Plaintiff seeks to raise for any work-related injury. Moreover, the decision of the Secretary of Labor allowing or denying payments on a FECA claim is not subject to judicial review in federal courts. 5 U.S.C. § 8128(b)(2); 3 In Yassan, the Court noted that “[d]ismissing a case on the basis of an affirmative defense is properly done under Rule 12(c), not Rule 12(b)(6).” In either event, the same standard applies to a motion filed either under Rule 12(c) or Rule 12(b)(6). Hayes v. City of Chicago, 570 F.3d 810, 813 (7th Cir. 2012). Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 7 of 16 8 Southwest Marine Inc. v. Gizoni, 502 U.S. 81, 90 (1991) (“FECA contains an ‘unambiguous and comprehensive’ provision barring any judicial review of the Secretary of Labor’s determination of FECA coverage.”). Accordingly, federal law bars Plaintiff from raising any purported claim for work-related injury in this forum, and, as such, this Court lacks subject matter jurisdiction over any such claim. B. Plaintiff Fails to State a Claim for Reasonable Accommodation, Hostile Work Environment, or Retaliation; Accordingly, These Claims Should be Dismissed Pursuant to Fed. R. Civ. P. 12(b)(6) 1. Plaintiff Fails to State a Claim for Reasonable Accommodation (Count I) Plaintiff has failed to state a claim for failure to accommodate because he has pleaded no facts showing he was ever again able to report to work after March 11, 2011, and prior to his termination. To establish a prima facie case of disability discrimination for failure to accommodate, Plaintiff must show that (1) he is disabled as defined under the Rehabilitation Act/ADA;4 (2) the defendant was aware of the disability; (3) that he is otherwise qualified for the position with or without a reasonable accommodation, and; (4) that an adverse action was taken against him because of his disability. Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1032 (7th Cir. 1999). Being able to work is required to establish this claim: “[i]nability to work for a multi-month period removes a person from the class protected by the ADA.” Byrne v. Avon Products, Inc., 328 F.3d 379, 381 (7th Cir. 2003). See also Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999) (“The rather common-sense idea is that if one is not able to be at work, one cannot be a qualified individual.”). Even assuming Plaintiff was legally disabled by his March 11 4 As amended by the ADA Amendments Act, P.L. 110-325 (2008). Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 8 of 16 9 and/or May 11, 2011 strokes and Defendant was aware of his disability, Plaintiff still bears the burden to show he could perform his essential job functions, to include, at a minimum, attendance. As a matter of threshold pleading, Plaintiff does not indicate he ever reported or sought to report to work even once after March 11, 2011. Accordingly, as a matter of law, his Amended Complaint fails to state a claim for which relief can be granted for reasonable accommodation, and his claim should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6). 2. Plaintiff Fails to State a Claim for Retaliation (Count II) To state a claim for retaliation under Title VII, Plaintiff must show that as a result of engaging in activity protected under Title VII, he suffered an adverse action by his employer. Stefanski v. Zehetner & Assocs., Inc., 855 F. Supp. 1030, 1033 (E.D. Wis. 1994); 42 U.S.C. § 2000e-3. Title VII provides that “it shall be an unlawful employment practice for an employer . . . to discriminate against any individual . . . because he has opposed any practice made an unlawful employment practice by [Title VII].” 42 U.S.C. § 2000e-3(a). The Seventh Circuit has held that an employer cannot discriminate against an employee for voicing opposition to employment practices deemed unlawful under Title VII. Worth v. Tyer, 276 F.3d 249, 265 (7th Cir. 2001). Notwithstanding, this Circuit requires that “the [employee’s] complaint 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); Sitar v. Ind. DOT, 344 F.3d 720, 727 (7th Cir. 2003) (“Although an employee need not use the magic words ‘sex’ or ‘gender discrimination’ to bring her speech within Title VII’s Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 9 of 16 10 retaliation protections, ‘she has to at least say something to indicate her [gender] is an issue.’ ”) (quoting Miller v. Am. Family Mutual Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000)). In the context of this case, Plaintiff must plead a sufficient factual basis for the Court to be able to infer he complained about discriminatory employment practices prohibited by Title VII. Plaintiff filed copies of his letters to Senator Richard Durbin with the MSPB as his evidence of prior protected activity, and specifically incorporates them and their contents by reference into his Complaint. Am. Compl., at ¶¶ 52, 56, 57. Defendant accordingly submits those letters with this motion for the Court’s reference. See Ex. 2. These communications with his Senator are as a matter of law an insufficient basis for a claim of retaliation under Title VII. Even assuming the truth of his allegations, his complaints to a member of Congress about not getting worker’s compensation from the Department of Labor (“DOL”), about his “hostile” pre-stroke work environment due to too many responsibilities (a complaint not involving an allegation of discrimination on any Title VII-protected basis), about being asked whether he wanted to apply for disability retirement after his strokes, and about incorrect pay-setting are not allegations of discriminatory employment practices prohibited by Title VII. In sum, these complaints cannot as a matter of law form the basis of a claim of retaliation for prior Title VII protected activity. Further, a plaintiff claiming retaliation under Title VII must show: “1) a statutorily protected activity; 2) an adverse action taken by the employer; and 3) a causal connection between the two.” Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 10 of 16 11 792 (7th Cir. 2007). Not only does Plaintiff’s prior activity fail to satisfy the legal standard for retaliation, but Plaintiff does not plead sufficient facts to describe the required causal nexus, and, therefore, raise his right to relief beyond the merely speculative. As the Seventh Circuit stated in Greengrass v. Int’l Monetary Sys., Ltd., 776 F.3d 481, 485 (7th Cir. 2015), a Title VII plaintiff can prove retaliation using either the direct or indirect method. Id. (citing Majors v. Gen. Elec. Co., 714 F.3d 527, 537 (7th Cir. 2013)). Under the direct method, a plaintiff must prove (1) that he engaged in statutorily protected activity; (2) that he was subjected to an adverse employment action; and (3) that there was a causal connection between the two. Id. (citing O’Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011)). Even before the United States Supreme Court adopted the but-for causation standard of proof for retaliation claims in its holding in Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2522 (2013), the Seventh Circuit required plaintiffs to prove an alleged retaliatory act would not have been taken but for the plaintiff’s protected Title VII activity. King v. Preferred Technical Group, 166 F.3d 887, 892 (7th Cir. 1999). Plaintiff includes conclusory allegations, but does not plead any facts upon which the Court could infer that his supervisors in Wisconsin were aware of any correspondence Plaintiff sent to his Senator complaining about a DOL program; nor does he plead any facts to show they had a motive to retaliate if they did know about the letters. To the contrary, Plaintiff pleads specifically that the timing of his proposed removal “coincided with the date at which Mr. Clemens had exhausted his available leave.” Am. Compl., at ¶¶ 54-55. As knowledge and causation are two Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 11 of 16 12 required elements of his retaliation claim, Plaintiff’s Amended Complaint fails to state a plausible claim upon which relief can be granted. 3. Plaintiff Fails to State a Claim for Hostile Work Environment (Count III) Plaintiff also attempts to plead a claim for disability-based hostile work environment, which claim the Seventh Circuit has yet to explicitly recognize exists. In Latham v. Donahue, 40 F. Supp. 3d 1023, 1030 (N.D. Ill. 2014), the district court discussed the state of the law in this Circuit as follows: The Seventh Circuit has not expressly decided whether a hostile work environment claim exists under the Rehabilitation Act or the ADA. Mannie v. Potter, 394 F.3d 977, 982 (7th Cir. 2005). However, the Circuit has assumed the existence of such claims where resolution of the issue has not been necessary. Id. (citing Conley v. Village of Bedford Park, 215 F.3d 703, 712-13 (7th Cir. 2000)). It is further assumed that the standards for proving such a hostile work environment claim under the Rehabilitation Act would mirror those under Title VII. Id. (citing Silk v. City of Chicago, 194 F.3d 788, 804 (7th Cir. 1999)). A hostile work environment exists where an employee experiences harassment that is “so severe or pervasive as to alter the conditions of employment and create an abusive working environment.” Conley, 215 F.3d at 713 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 786, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998)). Here, even if the Seventh Circuit did recognize such a claim, Plaintiff has failed to state a claim for hostile work environment as a matter of law. By comparison, the Plaintiffs in Mannie and Silk were present in their workplaces, described repeated instances of mistreatment at work, and still could not satisfy the Conley standard for hostile work environment. Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 12 of 16 13 Even accepting his pleaded allegations as true, Plaintiff was absent from the workplace beginning March 11, 2011, and he never returned to the workplace thereafter. As a result, as a practical matter, he cannot have experienced any workplace environment, let alone an environment so severely and pervasively harassing as to constitute a hostile work environment. Taking into account all allegations in his Amended Complaint, which are vague and sparse, Defendant construes Plaintiff’s hostile work environment claim on the basis of disability as follows: from March 11, 2011 (the date of his stroke, before which he was not disabled) to December 30, 2011 (the date of his removal, over nine months after his stroke), he alleges three incidents occurred: 1) disparaging mid-point and final performance evaluations,5 Am. Compl. at ¶ 96; 2) the Agency’s proposal to remove Plaintiff on October 31, 2011 (the date on which his leave was fully exhausted), Am. Compl. at ¶¶ 54, 55; and 3) his removal effective December 30, 2011,6 Am. Compl., at ¶ 8. As a matter of law, even assuming the truth of his allegations, these few events over the course of nine months are insufficiently severe and/or pervasive to satisfy the Conley standard for a hostile work environment. Further, removal is by law a discrete employment action that cannot be the basis for a hostile work environment claim. The Supreme Court in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002), distinguished discrete acts of retaliation from hostile 5 See Section C below for analysis of Plaintiff’s failure to exhaust this claim. 6 Plaintiff’s allegations state that his supervisors specifically barred him from returning to work. Am. Compl., at ¶ 96. As Plaintiff never pleads that he returned, inquired about returning, or tried to return to work after his stroke, Defendant construes this statement as a reference to the proposed removal and final removal decisions. Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 13 of 16 14 work environment claims. “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify.” See 536 U.S. at 114. Further, “[e]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice’”. Id. By contrast, “hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct.” Id. at 115. Plaintiff’s removal was a one-time, discrete act, as was the discrete, one-time proposal to remove him from his position for physical inability to perform the duties of the position. Plaintiff was not in the workplace from March 2011, through December 30, 2011. He therefore could not suffer the kind of repeated harassment in the workplace that is required to establish a hostile work environment claim under either Morgan or Conley. Plaintiff’s counsel therefore attempts to plead a hostile work environment claim based on two actions—poor work evaluations—over nine months. Receiving two poor performance evaluations is an insufficient factual basis to plausibly state a claim for a hostile work environment based on disability, even assuming for purposes of this motion that such a cause of action exists. Consequently, this claim must be dismissed under Rule 12(b)(6). C. Plaintiff’s Unexhausted Claims Warrant Dismissal Plaintiff has failed to exhaust part of his retaliation claim and part of his hostile work environment claim. 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 is deemed to have failed to exhaust administrative remedies, which is a precondition to bringing a Title VII claim in federal Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 14 of 16 15 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 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, they must be dismissed. 1. Plaintiff’s Retaliation Claim is Unexhausted Plaintiff claims for the first time in his Amended Complaint that his removal was in retaliation for his request for reasonable accommodation. Am. Compl., at ¶¶87 to 92. In his EEO complaint, by contrast, he claimed his removal was in retaliation for 1) filing a claim for federal workers’ compensation benefits (a Department of Labor CA-1 form), and 2) for contacting Senator Durbin to complain about not getting worker’s compensation and about his pre-stroke work duties and conditions. See Ex. 1; Ex. 2 at 1. Insofar as his claim for retaliation as pleaded in his Amended Complaint does not describe the same basis for his retaliation claim as his EEO complaint, it is not administratively exhausted, and Defendant is entitled to judgment as a matter of law. 2. Plaintiff’s Hostile Work Environment Claim is Unexhausted Similarly, Plaintiff’s Amended Complaint states for the first time that the Agency created a hostile work environment when Plaintiff received “disparaging performance reviews.” Am. Compl., at ¶ 96. This claim was not raised within 45 days to an EEO counselor, or raised in Plaintiff’s formal complaint of discrimination in January 2012. See Ex. 1. Under Gibson, like his new basis for retaliation, this claim similarly cannot be Case: 3:16-cv-00467-wmc Document #: 31 Filed: 07/21/16 Page 15 of 16 16 raised for the first time in Plaintiff’s Amended Complaint. Defendant is therefore entitled to judgment as a matter of law on Plaintiff’s hostile work environment claim. V. 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 21st day of July, 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 #: 31 Filed: 07/21/16 Page 16 of 16 Exhibit 1 Case: 3:16-cv-00467-wmc Document #: 31-1 Filed: 07/21/16 Page 1 of 4 Exhibit 1 Case: 3:16-cv-00467-wmc Document #: 31-1 Filed: 07/21/16 Page 2 of 4 Exhibit 1 Case: 3:16-cv-00467-wmc Document #: 31-1 Filed: 07/21/16 Page 3 of 4 Exhibit 1 Case: 3:16-cv-00467-wmc Document #: 31-1 Filed: 07/21/16 Page 4 of 4 Joseph P. Clemens 9255 North Lincoln Ave Des Plaines, IL 60016 847-299-4243 Senator Richard Durbin 101 West Grand Ave. #200 Chicago, IL 60610 (312) 527-3667 RE: Department of the Army, Fort McCoy, WI 18 October 2011 The Honorable Richard Durbin, I respectfully request, and desperately require and seek your assistance. On 11 March, 2011, I suffered a stroke that was related and caused by my employment in the Government service. Since May of 1993 I have been employed by the Department of Defense in the Emergency Services Division. I started as a Firefighter and rose through the ranks. I am currently, or was, a Branch Chief for the Directorate of Emergency Services Fort McCoy, Wisconsin. I had previously complained about the hostile and difficult working conditions. Unfortunately, the harassment continued until I suffered two strokes, due to the working environment and the stress that I was placed under for no apparent reason; except to possibly have me quit my job. This harassment still continues to this day, even in my absence. I have included a letter, which I filled out as to some of the work stressors, which I was able to remember, that was included, and required, in my claim as a work related illness or injury, (Form CA2). This paperwork was sent to the Management at the Directorate of Emergency Services to review and respond to. In September or October 2011, employees within the Directorate of Emergency Services were given Awards by the Post Commander. The reasons for the awards are obviously another attempt to harass me. The awards given were for the work that I had performed and completed, with absolutely no support or assistance from anyone employed within the Public Safety Center, Building 1681, Fort McCoy, WI. I had asked and requested on numerous times to get some type of assistance and was told NO. Even when I was working on some areas that I am not an expert on and there were numerous other personnel that were experts and could have offered some insight. Pleading Number : 2012010123 Submission date : 2012-03-29 13:38:59 Confirmation Number: 396445369 page 154 of 267Exhibit 2 Case: 3:16-cv-00467-wmc Document #: 31-2 Filed: 07/21/16 Page 1 of 5 It has also been suggested to me, by personnel at Fort McCoy, on numerous occasions that I should just take a disability retirement. Perhaps I should, although this is in direct violation of the Governments Equal Employment policy. But I do not feel I should be forced to retire, when I may recover from the effects of the strokes and be gainfully employed. This is what keeps my hopes up and keeps me working to overcome my current disabling conditions and problems. I have just turned 50 and my mind is telling me that I am too young to be retired. As you may be aware, in 2003, the President signed into law the Home Town Hero’s Act. This law provides that any Public Safety Officer or First Responder who suffers a heart attack or stroke, while on duty or within 24 hours of their shift is covered and protected. This law presumes that the heart attack or stroke is in the line of duty. Thankfully, I did not die from the first stroke. Apparently, either I was close to death, or I should have succumbed to this type of stroke. While I was in the hospital recovering, the Doctors and Nurses kept telling me how lucky and fortunate I was. At that time I was unaware of what they were talking about until I had time to research the mortality rate for the type of stroke I had suffered. On 11 May 2011, I suffered another stroke while I was at rehabilitation from the first stroke. At the present time I am working extremely hard to recover from these strokes, the strokes, that by law, are covered by workmen’s compensation, as they are presumed to be work related and in the line of duty. I have filled out the necessary paperwork on my part, but have not heard anything from either Fort McCoy or the Department of Labor Office of Workers Compensation Program, except that somebody has challenged my claim. I am including a copy of this letter for your reference. I have run out of money, gone through all of my sick and annual leave, and I am on the verge of losing everything I have worked for, including my house. I was not expecting to be off of work for this long of time, and I did not expect or foresee two strokes or the extensive rehabilitation. I have requested leave donation, but personnel at Fort McCoy “forgot” to submit my request in a timely fashion. Instead I was sent a letter requesting medical information; as if I was lying about suffering a stroke, and which was in a threatening manner; if I don’t supply the information I would be subject to adverse employment actions; i.e. termination. I have called my creditors to explain what has happened to me and my condition. I have also requested assistance, but with no money coming in, there really isn’t that much I can do. I am currently taking too many medications to list to help me avoid another stroke and lead as near a “normal” life as I had before. At this current time, I cannot afford food, housing and medications without an income that is guaranteed to me, by law. I am currently filing for disability retirement, but this income will not be sufficient to pay all of my past due medical co-payments, which workmen’s compensation should have taken care of by now. Pleading Number : 2012010123 Submission date : 2012-03-29 13:38:59 Confirmation Number: 396445369 page 155 of 267Exhibit 2 Case: 3:16-cv-00467-wmc Document #: 31-2 Filed: 07/21/16 Page 2 of 5 The disability retirement relies on the average for the highest three years I was employed. Unfortunately I have been trying to get this corrected since I started working at Fort McCoy, but no one is willing to correct the error. When I was hired I was a GS-6 step 10. But prior to that I was a GS-9 step 2 or 3. The GS-9 sum is what should have been used for the base of my new pay rate. The position I was hired for had a legacy grade of GS-11. I was only earning GS-7 pay. I addressed this on numerous occasions with Management at DES and the staff at the Civilian Personnel Advisory Center. Each time there was just finger pointing and absolutely nothing was resolved. I had requested that all personnel involved in this matter, meet and fix it. This meeting never materialized, and now I am forced to accept not a lower working wage, but also a decreased retirement benefit. If you could please help me with these problems. Problems that I do not know where they are stalled and why they have not been acted upon and corrected by now. Perhaps you can “light a fire” under the Agency(s) or person(s) stalling my requests and requirement to be met under the law. I regret having to go this route, but I have been left with no other choice but to seek your assistance and I hope you will be able to persuade Fort McCoy to follow the laws, rules and regulations as they pertain to me. Sincerely, Joseph P. Clemens 9255 North Lincoln Ave Des Plaines, IL 60016 847-299-4243 Pleading Number : 2012010123 Submission date : 2012-03-29 13:38:59 Confirmation Number: 396445369 page 156 of 267Exhibit 2 Case: 3:16-cv-00467-wmc Document #: 31-2 Filed: 07/21/16 Page 3 of 5 Joseph P. Clemens 9255 North Lincoln Ave Des Plaines, IL 60016 847-299-4243 Senator Dick Durbin 101 West Grand Ave. #200 Chicago, IL 60610 (312) 527-3667 RE: Follow up - Department of the Army, Fort McCoy, WI 7 November 2011 The Honorable Dick Durbin, This letter is just a follow up to my letter dated 18 October 2011. In that letter I had explained to you about the working conditions at Fort McCoy, with me finally suffering 2 strokes and being threatened with adverse action; termination, and unfortunately that is exactly what I received from DES Management. I now have two options, face termination for suffering a stroke in the line of duty, or resign. I have just received a letter informing me that they tend to terminate my employment. I do not understand why, as I have supplied all of the medical information, no two strokes are alike, and that depending on the person and the type and location of the stroke factor into the recovery time. I do not believe they can terminate my employment or force me to quit for applying for workmens compensation or requesting assistance from Congress. It appears to me that these people are uncaring and believe they are above the law, Congressional Acts and Presidential Directives. It truly amazes me that they could be this cold and callous, especially when Congress designated each October as National Disability Employment Awareness Month (NDEAM). I am still working extremely hard to recover from these strokes, the strokes, that by law, are covered by workmen’s compensation, as they are presumed to be work related and in the line of duty. But now, I am extremely afraid of suffering another stroke. I am constantly monitoring my blood pressure, and after I received this letter, my blood pressure shot dangerously high again, and I did not sleep, which only adds to the stress. Pleading Number : 2012010123 Submission date : 2012-03-29 13:38:59 Confirmation Number: 396445369 page 157 of 267Exhibit 2 Case: 3:16-cv-00467-wmc Document #: 31-2 Filed: 07/21/16 Page 4 of 5 I have also heard from the Department of Labor Office of Workers Compensation Program, I assume that this is at your suggestion. The letter is asking for a responsible and knowledgeable supervisor to respond to them regarding the working conditions. I regret having to go this route, but I have been left with no other choice but to seek your assistance and I hope you will be able to persuade Fort McCoy to follow the laws, rules and regulations as they pertain to me. I believe that it is my duty and responsibility to inform you regarding what is truly happening, at least at Fort McCoy, DES. Sincerely, Joseph P. Clemens 9255 North Lincoln Ave Des Plaines, IL 60016 847-299-4243 Pleading Number : 2012010123 Submission date : 2012-03-29 13:38:59 Confirmation Number: 396445369 page 158 of 267Exhibit 2 Case: 3:16-cv-00467-wmc Document #: 31-2 Filed: 07/21/16 Page 5 of 5