Jacox v. Lynch

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

W.D. Tenn.September 12, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ KAREEM JACOX Plaintiff, v. 16-cv-02303-SHL LORETTA LYNCH, ATTORNEY GENERAL UNITED STATES DEPARTMENT OF JUSTICE, Defendant. ______________________________________________________________________________ UNITED STATES OF AMERICA’S MOTION TO DISMISS ______________________________________________________________________________ The United States of America (the “United States”) files this Motion to Dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that it fails to state a claim upon which relief can be granted. The United States seeks dismissal of the plaintiff’s disability discrimination and retaliation claims, because the plaintiff failed to plead sufficient facts to support either claim. And, to the extent that the plaintiff is also asserting sex discrimination and reasonable accommodation claims, the United States moves for dismissal because these claims were not administratively exhausted. In support of this Motion, the United States relies upon its contemporaneously submitted Memorandum of Law. Case 2:16-cv-02303-SHL-dkv Document 9 Filed 09/12/16 Page 1 of 2 PageID 509 2 Dated this 12th day of September, 2016. Respectfully submitted, EDWARD L. STANTON, III United States Attorney s/ S. Keenan Carter (BPR 23386) Assistant United States Attorney 167 North Main Street, Suite 800 Memphis, Tennessee 38103 (901) 544-4231 keenan.carter@usdoj.gov CERTIFICATE OF SERVICE I, S. Keenan Carter, Assistant U.S. Attorney, certify that the foregoing has been served via First-Class U.S. Mail, postage prepaid, upon: Kareem Jacox 8985 Morning Grove Cove Cordova, TN 38108 on the 12th day of September, 2016. s/S. Keenan Carter Assistant United States Attorney Case 2:16-cv-02303-SHL-dkv Document 9 Filed 09/12/16 Page 2 of 2 PageID 510 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ______________________________________________________________________________ KAREEM JACOX Plaintiff, v. 16-cv-02303-SHL LORETTA LYNCH, ATTORNEY GENERAL UNITED STATES DEPARTMENT OF JUSTICE, Defendant. ______________________________________________________________________________ UNITED STATES OF AMERICA’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS ______________________________________________________________________________ The United States of America (the “United States”) files this Memorandum of Law in Support of its Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and, in support thereof, would show the Court as follows: I. INTRODUCTION On May 6, 2016, Kareem Jacox (the “plaintiff”) filed this lawsuit alleging two claims against the United States. First, he claims that his former employer, the Drug Enforcement Administration (“DEA”), discriminated against him based upon his alleged mental and physical disability. Second, he asserts a retaliation claim. As the arguments and authorities will set forth below, the plaintiff has failed to plead the elements necessary to make a prima facie case of disability discrimination or retaliation. Additionally, while it is unclear whether the plaintiff is also asserting sex discrimination and reasonable accommodation claims, this memorandum will Case 2:16-cv-02303-SHL-dkv Document 9-1 Filed 09/12/16 Page 1 of 9 PageID 511 2 also move for dismissal of these potentially alleged claims on the grounds that the plaintiff failed to exhaust the administrative remedies as to any sex discrimination or reasonable accommodation claims. II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY The plaintiff was hired as a Special Agent with the Drug Enforcement Administration (“DEA”) in 2004. In April of 2013, the plaintiff was called into active Army Reserve duty. He contacted the DEA’s Health Services Unit about changes, in his health, that would likely affect his performance as a Special Agent in October of 2013. On December 12, 2013, the plaintiff informed the DEA’s Health Services Unit that (1) he was released from active duty and was eligible to report back to work; (2) his healthcare provider had determined that he was completely disabled; and (3) he would be undergoing complex health care services under the care of his treating physicians. On December 16, 2013, the plaintiff returned to work at the DEA in a “limited duty” capacity. Upon his return, the plaintiff requested and was granted four hours of leave for each work day through February 6, 2014. In January of 2014, the plaintiff began the process of applying for Federal Employees Retirement System (“FERS”) disability retirement. On January 16, 2014, the plaintiff submitted a Social Security Administration disability form to his immediate supervisor for completion. Although the aforementioned disability form specifically asked the plaintiff’s DEA supervisor to assign a disability rating to the plaintiff, the plaintiff accused a DEA supervisor of seeking to obtain information about the plaintiff’s condition. This prompted the plaintiff to submit an online harassment complaint with the Office of Special Counsel on February 26, 2014, and contact an Equal Employment Opportunity (“EEO”) counselor on or about March 12, 2014. Case 2:16-cv-02303-SHL-dkv Document 9-1 Filed 09/12/16 Page 2 of 9 PageID 512 3 The plaintiff filed a formal EEO complaint alleging disability discrimination on September 17, 2014. On October 9, 2014, the plaintiff amended his EEP complaint to include a retaliation claim. Disability discrimination and retaliation claims are the only two claims that the plaintiff included in his EEO Charge. The plaintiff retired on October 31, 2014. On February 2, 2016, the United States Department of Justice issued a Final Agency Decision finding that the plaintiff had neither been subjected to disability discrimination nor retaliation. The plaintiff received the Final Agency Decision on February 8, 2016, and filed this lawsuit on May 6, 2016. III. LEGAL STANDARD Rule 12(b)(6) – Failure to State a Claim A motion to dismiss a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests whether a cognizable claim has been pled. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). In order to determine whether a motion to dismiss should be granted, courts examine the complaint, which must provide defendants with fair notice of a plaintiff’s claims as well as the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47 (1957); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir. 1976). While a complaint need not present detailed factual allegations, in order to be cognizable, it must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The complaint must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Id. at 553. The mere possibility that some set of undisclosed facts will support recovery is insufficient to overcome a Rule 12(b)(6) challenge. Ashcroft v. Iqbal, 556 U.S. 662 (2009). When courts consider a motion to dismiss pursuant to Rule 12(b)(6), it accepts as true all factual allegations made in the complaint and construes them in the light most favorable to the plaintiff. Neitzke v. Williams, 490 U.S. 319, 326-27 (1989); Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295-96 (6th Cir. 2008). Case 2:16-cv-02303-SHL-dkv Document 9-1 Filed 09/12/16 Page 3 of 9 PageID 513 4 Courts should, however, only accept as true “well-pled facts,” and it will not accept legal conclusions or unwarranted factual inferences. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 405- 06 (6th Cir. 1998). IV. ARGUMENT A. The plaintiff failed to plead sufficient facts to establish a prima facie case of disability discrimination. The Americans with Disabilities Act of 1990 (“ADA”) prohibits discrimination “against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, or other terms, conditions and privileges of employment.” 42 U.S.C. § 12112(a). A disability discrimination claim can be established in two ways – direct evidence or circumstantial evidence. Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998). “Direct evidence is evidence that proves the existence of a fact without requiring any inferences.” Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). “[W]hen an employer admits that its decision was based upon the employee’s disability, direct evidence of discrimination exists.” Monette v. Elect. Data Sys. Corp., 90 F.3d 1173, 1180 (6th Cir. 1996). In the present case, the plaintiff has not pled direct evidence of disability discrimination. Accordingly, he was required to plead a prima facie disability discrimination case through circumstantial evidence, which includes the following: (1) that he is disabled; (2) that he is otherwise qualified for the position, with or without reasonable accommodation; (3) that he suffered an adverse employment action; (4) that the employer knew or had reason to know of his disability; and (5) that either he was replaced by a nondisabled person or his position remained open while the employer sought other applicants. Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, Case 2:16-cv-02303-SHL-dkv Document 9-1 Filed 09/12/16 Page 4 of 9 PageID 514 5 703 (6th Cir. 2008). The plaintiff has failed to plead facts sufficient to satisfy the second element – he was otherwise qualified and fifth element – he was replaced by a nondisabled person. The plaintiff does not allege that he was “otherwise qualified for the position [Special Agent with the DEA], with or without reasonable accommodation.” Instead, the plaintiff made it abundantly clear that he could no longer satisfy the duties of a DEA Special Agent. Specifically, he pled that he “had a disability,” “is a disabled veteran,” suffered from serious and chronic health conditions while he was deployed and mobilized in active duty, reported changes in his health that could affect his performance as a Special Agent, his healthcare provider “determined and identified him to be completely disabled,” and “took him off work because he was completely disabled.” (Complaint, at ¶ ¶ f, l, n, p, s, and t.) The complaint also states that the plaintiff was on limited duty, because he was no longer able to perform the essential job functions of a Special Agent. The plaintiff also failed to plead that “he was replaced by a nondisabled person or his position remained open while the employer sought other applicants.” In fact, the plaintiff pled that the DEA “did not show the same interest in other persons with disabilities when they were placed on limited duties and issued medical advisories” and “did not express the same concern for other employees that had disabilities.” (Complaint, at iiiii and jjjjj.) Accordingly, there can be no plausible inference that the plaintiff was replaced by a nondisabled person. Based on the foregoing, it is clear that the plaintiff’s disability discrimination claims should be dismissed, because he failed to plead sufficient facts to establish a prima facie case of disability discrimination. B. The plaintiff cannot establish a prima facie case of retaliation. Retaliation claims are accorded the same treatment whether brought under the ADA or Title VII. Barrett v. Lucent techs., Inc., 36 F. App’x. 835, 840 (6th Cir. 2002). In order to establish Case 2:16-cv-02303-SHL-dkv Document 9-1 Filed 09/12/16 Page 5 of 9 PageID 515 6 a prima facie case for retaliation, the plaintiff was required to plead that: (1) he engaged in a protected activity; (2) the activity was known to the employer; (3) he thereafter suffered an adverse employment action; and (4) a causal link exists between the protected activity and the adverse employment action. In the case at bar, the plaintiff has failed to allege facts in support of the third element – an adverse employment action, and the fourth element – a causal link between the adverse employment action. The plaintiff failed to plead a sufficiently adverse action or harassment to satisfy the third element of a retaliation claim. The anti-retaliation provisions of Title VII “protect[] an individual not from all retaliation, but from retaliation that produces an injury or harm.” Siegner v. Township of Salem, 2016 U.S.App. LEXIS 11632 (6th Cir. 2016)(citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006)). Consultation between a supervisor and an employee, even when it involves a “confrontation … in which harsh words were exchanged,” is not a materially adverse action.” Id. (quoting Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594 (6th Cir. 2007)). Title VII also does not “exempt plaintiff[s] from employment standards enforced in an even- handed fashion.” Id. In the present matter, the plaintiff alleges that “[o]n January 27, 2014, [he], under the advice of his medical team and [a]ttorney at the time, began the process of applying for FERS disability retirement.” (Complaint, at p. 12, ¶ iii.) He also pleads that he did, in fact, retire on October 31, 2014. (Complaint, at p. 23, ¶ kkkkkkk.) And, while it is unclear what exactly the plaintiff is alleging were the adverse employment actions, it is very clear that there are no allegations that any DEA actions actually resulted in “injury or harm” to the plaintiff. For example, the plaintiff alleges that he was denied sick leave on or about April 18, 2014. (Complaint, at p. 21, ¶ pppppp.) He then pleads that his sick leave request was ultimately approved. (Complaint, at p. 22, ¶ xxxxxx.) Case 2:16-cv-02303-SHL-dkv Document 9-1 Filed 09/12/16 Page 6 of 9 PageID 516 7 Another example would be the plaintiff’s allegation that he was issued a Suitability Review Protocol Evaluation. (Complaint, at p. 22, ¶ tttttt.) However, the plaintiff pled that he informed his DEA supervisor that he would not submit to the Suitability Review Evaluation. (Complaint, at p. 23, ¶ fffffff.) To the extent that the plaintiff has actually pled an adverse employment action, he was also required to plead an injury or harm in connection with it and he has failed to do so. The plaintiff’s complaint also fails to plead a causal connection to any alleged adverse employment action. The requisite causal connection is established by evidence “sufficient to raise the inference that [the] protected activity was the likely reason for the adverse action.” EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997). In other words, the causal connection element requires the plaintiff to prove that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” There is simply no allegation of a causal connection and no inference of a causal connection that can be extrapolated from the plaintiff’s complaint. C. The plaintiff failed to exhaust administrative remedies as to any sex discrimination or reasonable accommodation claim. Any potential sex discrimination or reasonable accommodation claim should be dismissed, because the plaintiff failed to exhaust his administrative remedies. The filing of a Charge with the EEOC is a “jurisdictional prerequisite to bringing a civil action.” Mehr v. Starwood Hotels & Resorts Worldwide, Inc., 72 F. App’x 276, 286 (6th Cir. 2003). A person seeking to bring a discrimination claim in federal court “must first exhaust [his] administrative remedies.” Randolph v. Ohio Dep’t of Youth Servs., 453 F.3d 724, 732 (6th Cir. 2006). The general rule is that a plaintiff may file suit “only in regard to the claims asserted in the EEOC charge and those within the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination.” Scott v. Eastman Chem. Co., 275 Fed. Appx. 466, 471 (6th Cir. 2008). Case 2:16-cv-02303-SHL-dkv Document 9-1 Filed 09/12/16 Page 7 of 9 PageID 517 8 The plaintiff’s EEOC Charge did not assert sex discrimination or reasonable accommodation claims. Even construed liberally, the contents of the Charge would not have put the EEOC or United States on notice that the plaintiff was seeking to assert sex discrimination or reasonable accommodation claims. Accordingly, to the extent that the plaintiff is asserting these claims, they should be dismissed. V. CONCLUSION For the reasons set forth above, this Court should dismiss the plaintiff’s disability discrimination and retaliation causes of action for failure to state a claim. Also, if the plaintiff is attempting to assert sex discrimination and reasonable accommodation claims, these claims should be dismissed because they were not exhausted administratively. Dated this 12th day of September, 2016. Respectfully submitted, EDWARD L. STANTON, III United States Attorney s/ S. Keenan Carter (BPR 23386) Assistant United States Attorney 167 North Main Street, Suite 800 Memphis, Tennessee 38103 (901) 544-4231 keenan.carter@usdoj.gov Case 2:16-cv-02303-SHL-dkv Document 9-1 Filed 09/12/16 Page 8 of 9 PageID 518 9 CERTIFICATE OF SERVICE I, S. Keenan Carter, Assistant U.S. Attorney, certify that the foregoing has been served via First-Class U.S. Mail, postage prepaid, upon: Kareem Jacox 8985 Morning Grove Cove Cordova, TN 38108 on the 12th day of September, 2016. s/S. Keenan Carter Assistant United States Attorney Case 2:16-cv-02303-SHL-dkv Document 9-1 Filed 09/12/16 Page 9 of 9 PageID 519