Opinion
C. A. 4:21-cv-2514-SAL-KDW
05-03-2022
Juantia Green, Plaintiff, v. Merrick Garland, Attorney General Department of Justice; Bureau of Prisons, Defendants.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Plaintiff Juantia Green (“Plaintiff” or “Green”) filed the instant employment action against her former employer, the federal Bureau of Prisons (“BOP,” the “Agency,” or “Defendant”),bringing claims of disability-related discrimination and retaliation. Compl., ECF No. 1. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation (R&R) on Defendant's Motion to Dismiss, ECF No. 8, to which Plaintiff has responded, ECF No. 9. Based on the parties' submissions and applicable law, the undersigned recommends that Defendant's Motion to Dismiss, ECF No. 8, be granted in part and denied in part and this matter proceed to discovery.
Both the Attorney General and BOP are named as Defendants. As both parties typically reference Defendant in the singular, the undersigned does also.
I. Background
Plaintiff was formerly employed by BOP as a Correctional Officer at the Federal Correctional Institution, Williamsburg (“FCI Williamsburg”). Plaintiff went out of work on medical leave in early 2014. She has filed three separate Equal Employment Opportunity (“EEO”) claims since then; however, only the third such claim is the subject of this litigation. See Pl. Mem. 4, ECF No. 9.
According to Plaintiff's Complaint, her Third EEO Claim-BOP-2019-0882 & EEOC No. 410-202000354X (Case 3)-concerns “Plaintiff's mistreatment after work injury when she was returned to work August 2018, but no interactive accommodation search was performed by Defendant.” Compl. ¶ 7. Somewhat conflictingly, Plaintiff's Complaint also describes Case 3 as having been initiated by “certified letter to Defendants dated October 25, 2018, requesting ‘to initiate a third EEO complaint regarding failure to accommodate and reprisal from May 2015 to the present as BOP continues to discriminate and retaliate against Juantia Green Presently.'” Compl. ¶ 8; see also id. ¶ 10 (averring “Defendant[] ignored Plaintiff's request for hearing to properly state the issue was failure to accommodate and reprisal from May 2015 to termination January 30, 2019.”).
Case 1 was settled; Case 2 was presented to this court, and summary judgment was granted to Defendant. See Compl. ¶¶ 5-6, ECF No. 1.; Decl. of Def. Assistant General Counsel Marie Clarke (“Clarke”) in Supp. of Mot. Dism. ¶¶ 3-9, ECF No. 8-2; ECF No. 56, Green v. Garland, 4:20-1025-SAL-KDW, 2022 WL 897154 (D.S.C. Mar. 28, 2022) (“Green I”). As more fully discussed in the order granting summary judgment in Green I that case considered and reviewed matters from the mid-2015 timeframe that had been administratively evaluated in Case 2, including Plaintiff's placement in a vocational rehabilitation program and the BOP's purported failure to accommodate her during that timeframe. See Green I, ECF No. 50 (Jan. 24, 2022 Report and Recommendation), and ECF No. 56, 2022 WL 897154 (Mar. 28, 2022 Order adopting Report and Recommendation).
As discussed within and as noted in paragraphs 8 through 12 of her Complaint, Plaintiff disagrees with Defendant's determination of when EEO Case 3 was begun and exactly what it included.
Plaintiff's Complaint includes causes of action pursuant to Titles I and II of the Americans with Disabilities Act (“ADA”), and Sections 501 and 504 of the Rehabilitation Act of 1983 (“Rehabilitation Act”). Compl., ECF No. 1. Defendant responded to Plaintiff's Complaint by bringing the instant Motion to Dismiss seeking Rule 12(b)(1) and 12(b)(6) dismissal based on Plaintiff's alleged failure to exhaust remedies or, alternatively, her failure to state a plausible claim. Mot. Dism., ECF No. 8. In support of its Motion Defendant has submitted a memorandum of law (Def. Mem., ECF No. 8-1), as well as the declaration of BOP Assistant General Counsel Marie Clarke, which provides details and documents regarding the EEO actions (“Clarke Decl.,” ECF No. 8-2). Plaintiff opposes the Motion to Dismiss, asserting her federal-court Complaint and her EEO action were timely brought and that she has exhausted administrative remedies. She submits part of her argument relates to disputed facts concerning equitable tolling and argues Rule 12(b) dismissal would be premature. Further, she briefly submits she has sufficiently pleaded plausible disability-related claims. Alternatively, she seeks leave to amend to provide additional detail in an amended pleading. Pl. Mem., ECF No. 9. Defendant did not submit a reply.
Plaintiff's response to Local Civil Rule 26.01 Interrogatories indicating the action is brought pursuant to Title VII, 42 U.S.C. § 1981, and the ADA, see ECF No. 3 at 2, appears to be a scrivener's error. The Complaint and the response to the pending Motion to Dismiss reference only ADA and Rehabilitation Act claims. To the extent Plaintiff were considered to have raised Title VII claims, the same result would be recommended, particularly to the administrative-exhaustion issues.
II. Standard of review and what may be considered
A. Applicable review standard
Defendant seeks Rule 12(b)(1) dismissal of Plaintiff's claims based on her alleged failure to exhaust administrative remedies and Rule 12(b)(6) dismissal of Plaintiff's entire Complaint for failure to plead plausible claims. Def. Mot., ECF No. 8. As an initial matter, Defendant's challenges concerning failure to administratively exhaust remedies before the Agency and the Equal Employment Opportunity Commission (“EEOC”) and timely filing of this litigation more properly are considered pursuant to Rule 12(b)(6). See Fort Bend Cnty., Tx. v. Davis, 139 S.Ct. 1843, 1850- 51 (2019) (holding “Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.”). Because “Rehabilitation Act claims against the federal government must comply with the same administrative procedures that govern federal employee Title VII claims[,]” Wilkinson v. Rumsfeld, 100 Fed. App'x 155, 157 (4th Cir. 2004), Fort Bend County's ruling applies to Rehabilitation Act claims, as well. See Lee v. Esper, No. CV 3:18-3606-TLW-KFM, 2019 WL 7403969, at *2 (D.S.C. Aug. 13, 2019) (noting challenge to administrative-exhaustion requirements appropriately considered under Rule 12(b)(6)), report and recommendation adopted, 2020 WL 32526 (D.S.C. Jan. 2, 2020). Accordingly, all grounds of Defendant's Motion are considered pursuant to Rule 12(b)(6).
Prior to the Court's 2019 decision in Fort Bend County certain failure-to-exhaust challenges were considered to be jurisdictional and thus examined under Rule 12(b)(1). The cases Defendant cites in support of the argument that failure to exhaust deprives the court of jurisdiction all pre-date Fort Bend County. See Def. Mem. 7.
“A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court measures the legal sufficiency by determining whether the complaint meets the Rule 8 standards for a pleading. Id. The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . .550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (citing Twombly, 550 U.S. at 556)). When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court is also to “‘draw all reasonable inferences in favor of the plaintiff.'” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). At bottom, the court is mindful that a complaint “need only give the defendant fair notice of what the claim is and the grounds upon which it rests.” Coleman v. Md. Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010) (internal quotation marks omitted).
B. What may be considered
Here, Defendant has submitted the Declaration of Assistant General Counsel Clarke as well as nearly 80 pages of exhibits in support of the Motion to Dismiss. ECF No. 8-2. In response, Plaintiff has submitted six pages of exhibits (as well as a file-stamped copy of the Complaint in this matter). ECF No. 10, 10-1. Typically, in cases such as this one in which no discovery has yet taken place, additional exhibits are not considered. “In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d at 448. The court may consider such a document, even if it is not attached to the complaint, if the document “was integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. Id. at 448 (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). See also Int'l Ass'n of Machinists & Aerospace Workers v. Haley, 832 F.Supp.2d 612, 622 (D.S.C. 2011) (“In evaluating a motion to dismiss under Rule 12(b)(6), the Court . . . may also ‘consider documents attached to . . . the motion to dismiss, so long as they are integral to the complaint and authentic.'”) (quoting Sec'y of State for Def. v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007)); Bowie v. Univ. of Md. Med. Sys., No. CIV.A. ELH-14-03216, 2015 WL 1499465, at *6 (D. Md. Mar. 31, 2015) (granting Rule 12(b)(6) dismissal of plaintiff's ADA claim as time-barred and considering the EEOC Charge and Right to Sue Letter as being “integral” to the decision). However, if the court goes beyond these documents in considering a Rule 12(b)(6) motion, the court is considered to have converted the motion into one for summary judgment. Fed.R.Civ.P. 12(b), 12(d), 56. “Such conversion is not appropriate where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d at 448-49 (internal quotation and citation omitted).
Here, the court has no intention of converting the Motion to Dismiss into a Motion for Summary Judgment, nor has it been asked to do so. Accordingly, only documents attached and incorporated into the Complaint or authentic documents that are integral to the Complaint (such as certain documents related to Defendant's exhaustion-of-administrative-remedies challenge) will be considered at this juncture. Given the somewhat convoluted history and rather inter-related nature of Plaintiff's three EEO claims, reference to certain documents related to the administrative history of all three claims-and not just Case 3, which is before the court herein-is instructive. That noted, documents provided by Defendant that relate more to the substance of Plaintiff's claims will not be considered herein.
III. Discussion
A. Exhaustion of administrative remedies
Because much of the argument regarding exhaustion of administrative remedies is fact-intensive, the court sets out relevant facts in analyzing the motion. As noted above, facts included in the Complaint as well as undisputed, related documents are considered at this juncture.
1. General law regarding exhaustion of claims for federal employees
The Rehabilitation Act follows the procedures of Title VII. 29 U.S.C. § 794a (indicating Rehabilitation Act, which concerns federal employees' claims of job discrimination based on disability, incorporates “remedies, procedures, and rights set forth in” Title VII). Title VII creates a right of action for federal employees such as Plaintiff alleging discrimination on the basis of “race, color, religion, sex, or national origin.” See 42 U.S.C. § 2000e-16 (concerning claims by federal government employees); Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc). Prior to filing an action in this court, an employee such as Plaintiff must contact an EEO counselor and seek precomplaint counseling “within 45 days of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). The 45-day period “shall be extended” by the agency or the EEOC if the individual shows he was unaware of the time limits, “did not know or reasonably should not have known” the action occurred, that “despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor” within the time limits,” or “for other reasons considered sufficient by the agency or the Commission.” 29 C.F.R. § 1614.105(a)(2). If counseling is unsuccessful, then the EEO must provide the complainant with notice of her right to file a formal complaint of discrimination. 29 C.F.R. § 1614.105(d). The complainant must file any formal complaint within 15 days receipt of the notice. 29 C.F.R. § 1614.106(b).
Following investigation of the formal complaint, the complainant may either request a hearing and decision from an administrative judge (“AJ”) or request a final decision from the agency with which the complaint was filed. 29 C.F.R. § 1614.108(f). If the complainant chooses the former course of action, then “[w]hen [the] administrative judge . . . issue[s] [his or her] decision . . ., the agency shall take final action on the complaint by issuing a final order within 40 days of receipt of the hearing file and . . . decision.” 29 C.F.R. § 1614.110(a). The agency's final order must provide the complainant with notice of his right to appeal to the EEOC and right to file a civil action in federal district court, as well as notice of required deadlines for taking such actions. Id. If the agency fails to issue a final order within the required 40-day time period, “then the decision of the administrative judge . . . become[s] the final action of the agency.” 29 C.F.R. § 1614.109(i). A complainant may appeal the agency's final action to the EEOC's Office of Federal Operations (“OFO”) within 30 days following receipt of the final agency decision. 29 C.F.R. § 1614.402(a). Alternatively, the complainant may “opt-out of the administrative process . . . by filing a de novo civil action.” Laber, 438 F.3d at 416 n.9 (citing 29 C.F.R. §§ 1614.401(a), 1614.407(a); and 42 U.S.C. § 2000e-16(c)). Such judicial action must be filed “[w]ithin 90 days of receipt of notice of final action taken by a department, agency, or unit.” 42 U.S.C. § 2000e-16(c). Here, Plaintiff chose to opt-out of the EEOC's OFO review of the Final Agency Decision (“FAD”). ECF No. 1.
B. Background facts and administrative procedural history
As noted above, the instant case relates to the third of three EEO complaints Plaintiff submitted regarding her now-former employment by the Bureau of Prisons. More detailed information is available to the court in Plaintiff's now-ended case that related to the second of those EEO complaints, Green I, 4:20-cv-1025-SAL (D.S.C.). However, as noted above, for purposes of considering Defendant's pending Motion to Dismiss, the court considers only undisputed facts ascertainable from Plaintiff's pleading and from documents referenced in the Complaint or provided by the parties if the documents were “integral to and explicitly relied on in the complaint,” and there is no authenticity challenge. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d at 448.
1. Plaintiff's work as Correctional Officer
Plaintiff worked as a Correctional Officer at FCI Williamsburg from 2010 until she “was removed from work and told not to return to the premises on May 5, 2015.” Compl. ¶ 13. Plaintiff avers she “suffered a disabling condition of bilateral carpel tunnel of both hands, and despite being able to return to work with restrictions and despite Plaintiff passing the Defendant mandated Fit for Duty Exam, Plaintiff was perceived as disabled and unable to perform the majority of her job duties.” Id. ¶ 14. Plaintiff was employed by BOP until being terminated on January 30, 2019. Compl. ¶ 10.
2. Plaintiff's earlier EEO actions (“Cases 1 and 2”)
Plaintiff made a workplace-injury claim and filed prior EEO complaints in December 2014 for failure to accommodate and in April 2016 for failure to accommodate, discrimination, and reprisal. Compl. ¶¶ 5, 6, 15. Plaintiff notes she settled the first complaint (Case 1, BOP 2014-01257). Compl. ¶ 5.
Plaintiff describes Case 2, BOP 2015-02227, as having arisen when she “returned to work in August 2014 and was removed from work in May 2015, but was not terminated and was not given the benefit of interactive reasonable accommodation search.” Id. ¶ 6. Plaintiff indicates she remained on a leave of absence “without termination or contact from May 2015 to March 2018.” Id. Defendant permitted Plaintiff to return to work “as of August 2018, but offered no back pay for the leave period of May 2015-March 2018 or a legitimate business reason for the 2015-2018 leave period.” Id. Case 2 was appealed to this court, which granted summary judgment to Defendant on March 28, 2022. Green I, ECF No. 56, 2022 WL 897154 (D.S.C. Mar. 28, 2022) (considering the mid-2015 claims that had been investigated and considered by the Agency and the EEOC).
3. Administrative disposition of Plaintiff's EEO action now under review (“Case 3”)
The instant Complaint concerns BOP 2019-0882 (Case 3), which Plaintiff describes as follows:
7. BOP 2019-0882 was the third claim against the Agency regarding Plaintiff's mistreatment after work injury when she was returned to work August 2018, but no interactive accommodation search was performed by Defendant. Defendant had a Fit for Duty Exam that allowed Plaintiff to return to work and medical records that allowed Plaintiff to return to work with restrictions, and Defendant failed to allow Plaintiff to fully return to work.Compl. ¶ 7 (emphasis added). Elsewhere in her Complaint Plaintiff expounds on this, averring Defendant “refused to properly engage with Plaintiff in order to return Plaintiff to work with restrictions from August 2018 until termination January 30, 2019.” Id. ¶ 19.
Potentially relevant to Defendant's exhaustion-of-remedies challenge, Plaintiff pleads the following:
Plaintiff initiated this third claim via certified letter to Defendants dated October 25, 2018, requesting “to initiate a third EEO complaint regarding failure to accommodate and reprisal from May 2015 to the present as BOP continues to discriminate and retaliate against [Plaintiff] Presently.”Compl. ¶ 8 (emphasis added); see also Oct. 25, 2018 Letter, ECF No. 10-1 at 1-3 (letter and certification/delivery information provided by Plaintiff in Response to Mot. Dism.); see also Oct. 25, 2018 Letter attached to Pl. BOP 2019-882 Complaint of Discrimination, ex. 3 to Clarke Decl., ECF No. 8-2 at 32. Defendant never responded to the October 25, 2018 letter from Plaintiff's counsel and “failed to timely investigate Plaintiff's claim of continuing reprisal[,].” Compl. ¶ 9.
On December 3, 2018, BOP issued a letter to Plaintiff advising of the plan to terminate her because there was no available position she could perform. See Oct. 4, 2019 Letter from BOP to Plaintiff, ECF No. 10-1 at 5 (referencing Case 3 and noting Plaintiff's allegation that she “received a proposal of removal on December 3, 2018 and were terminated from employment on January 30, 2019”). Plaintiff was terminated on January 30, 2019. See Compl. ¶ 10.
Defendant looks to May 21, 2019 as the date Plaintiff made contact with the EEO counselor regarding Case 3. Plaintiff avers the May 21, 2019 date is “false” and that Defendant “claim[s] that Plaintiff's claim was only for October-November 2018[.]” Compl. ¶ 10. Plaintiff alleges Defendant “ignored Plaintiff's request for hearing” to properly state the issue to be considered in Case 3 was “failure to accommodate and reprisal from May 2015 to termination January 30, 2019.” Compl. ¶ 10.
There is no question but that the EEO Counselor's Report for Case 3 lists May 21, 2019 as the date of Plaintiff's initial contact with the EEO Counselor as to bringing Case 3. Case 3 EEO Counselor's Report, ECF No. 8-2 at 23-28. However, Plaintiff submits she is entitled to equitable estoppel and she should be considered to have timely filed Case 3. Details revealed by the Case 3 documentation potentially are relevant to this exhaustion-of-remedies analysis. The “Part A, Chronology of EEO Counseling” for Case 3, ECF No. 8-2 at 24, includes the following dates and information:
• May 21, 2019: date of initial contact with EEO counsel or and date of initial interview.
• March 6, 2018 - present August 19, 2019: Date of alleged discriminatory event.
• May 15, 2019: In the section regarding “Reason for Delayed Contact Beyond 45 Days, if applicable,” the following is indicated:
o “On 5/15/19 during a pre-hearing call with Judge Clay and BOP Agency Attorney, Marie Clarke, the attorney, Pheobe Clark for Juantia Green[,] requested amendment to the case to include this issue. Judge Clay denied the request due to her stating ‘matters were too separate in time for her to adjudicate.'” ECF No. 8-2 at 24 (emphasis in original).
■ Based on information in the April 2, 2021 Order Dismissing EEO Complaint in Case 3, this May 15, 2019 pre-hearing call with Judge Clay would have taken place in Case 1-the case that was settled on June 11, 2019. April 2, 2021 Order Dismissing EEO Complaint as Untimely, ECF No. 8-2 at 52 (noting Plaintiff's request to AJ Meeka Clay “to amend her claim [in Case 1] and add termination to the case” was denied, “ruling the matters were too separate in time for her to adjudicate.”).
o Part B of the EEO Counselor's Report again notes Judge Clay's denial of amendment of a prior case: “As stated above, Judge Clay's decision of 5/15/19 was to deny the
request to amend and for the aggrieved to pursue counseling.” Id. at 25-26 (emphasis added).
o The Report later indicates that Plaintiff's counsel clarified that the time frames for this complaint are from March 6, 2018 to present [August 2019].” Id. at 26 (emphasis added).
o June 11, 2019 was listed as the “Counseling Extension” date. Id. at 24. June 11, 2019 is also the date on which Plaintiff submitted a handwritten “Request for EEO Counseling” form in which she briefly recounted her claims of reprisal and failure to accommodate. ECF No. 8-2 at 29-30. Plaintiff craves reference to a “summary provided by [her] counsel,” although it does not appear that summary is in the current record. Id. at 30.
• August 21, 2019: date EEO Counselor Report and Notice of Right to File were issued. ECF No. 8-2 at 24.
Plaintiff filed a Complaint of Discrimination with DOJ on August 29, 2019. ECF No. 8-2 at 31-32. In responding to the “Date on Which Most Recent Alleged Discrimination Took Place,” Plaintiff responded, “Continued from May 2015 until termination January 30, 2019.” Case 3 Complaint, ECF No. 8-2 at 31 (emphasis added). She checked boxes indicating she believed she was discriminated against on the basis of disability and was subject to reprisal. Id. In the section of the Complaint indicating “Date of First Contact with EEO Office,” the date 05/21/19 was typed, and the handwritten date 10/25/18 was added, with the notation “Certified letter attached.” Id. The October 25, 2018 letter indicating Plaintiff wished to initiate a third EEO action appears to have been included as an exhibit to the EEO Complaint. Id. at 32.
On October 4, 2019, Plaintiff was advised by a DOJ EEO Officer that DOJ had accepted her August 29, 2019 Complaint of unlawful discrimination based on disability and reprisal as to the following issue: “From October 2018 to November 2018, you allege the agency failed to accommodate you and your request for a reasonable accommodation was denied.” Oct. 4, 2019 Letter, ECF No. 10-1 at 4 (sometimes referred to as the “Acceptance Letter”); see Compl. ¶ 10 (noting Defendant's claim that Plaintiff's claim was for October-November 2018 only).
Plaintiff takes issue with the timeframe's being limited to October-November 2018. See Compl. ¶ 10. While continually indicating Plaintiff initiated contact with an EEO counselor in May 2019, Defendant never explains the decision to limit the timeframe of the claim to “October-November 2018” or why the Acceptance Letter specifically found claims made “prior to October 25, 2018” (the date of the letter from Plaintiff's counsel) were untimely. While October-November 2018 are within the timeframe Plaintiff alleges are encompassed in Case 3, those months obviously pre-date the date the BOP indicates Plaintiff initiated EEO-counselor contact regarding Case 3.
• Plaintiff was advised that an EEO investigator would contact her regarding the investigation of the claim. ECF No. 10-1 at 4-5.
• The EEO Officer acknowledged Plaintiff's complaint regarding a December 3, 2018 letter advising of her proposed removal from her employment and of her January 30, 2019 actual removal from employment. ECF No. 10-1 at 5. The EEO determined Plaintiff's May 21, 2019 EEO Counselor Contact, made some 111 days after her January 30, 2019 termination, was untimely as it had not occurred within 45 days of the date of the allegedly discriminatory matter or the effective date of the personnel action. Id. at 4 (citing 29 C.F.R. § 1614.105(a)(1)).
• Plaintiff was further advised that “all allegations of discrimination allegedly occurring prior to October 25, 2018, are rejected for investigation for untimeliness in accordance with the Federal Regulation at 29 C.F.R. § 1614.107(a)(2), because they are discrete acts which were not presented to the EEO Counselor within 45 calendar days of the alleged discrimination, as required by 29 C.F.R. § 1614.105.” Id. at 6.
o Although the EEO Officer's letter does not explain why the October 25, 2018 date is referenced, the court notes that October 25, 2018 is the date of the letter from Plaintiff's counsel inquiring about the status of Case 2 and indicating Plaintiff's desire to open a third case “regarding failure to accommodate and reprisal from May 2015 to the present as BOP continues to discriminate and retaliation against [Plaintiff] presently.” ECF No. 10-1 at 1.
On October 14, 2019, Plaintiff's counsel responded to the EEO Officer, indicating the October 4, 2019 letter was “false.” ECF No. 10-1 at 3. Counsel included her October 25, 2018 certified letter in which she requested to initiate a third EEO claim. Id. Counsel submits that letter as “proof that the third complaint of reprisal was a continuing complaint that was not received August 29, 2019, but was received on October 29, 2018, the date of the certified receipt, and covers all actions from 5/2015 to termination.” Id. Plaintiff avers Defendant “ignored Plaintiff's request for hearing to properly state the issue was failure to accommodate and reprisal from May 2015 to termination January 30, 2019.” Compl. ¶ 10.
On April 2, 2021, EEOC AJ Michelle M. Robertson issued an “Order Dismissing EEO Complaint [Case 3] as Untimely and/or for Other Jurisdictional Reasons and Return of Case for Final Agency Decision.” ECF No. 8-2 at 51-59. That Order included the following potentially relevant to the timeliness issue:
• In summarizing Case 2, AJ Robertson noted the October 25, 2018 letter to the Agency EEO office from Plaintiff's counsel in which she sought a status-update as to Case 2 and “requested to amend the complaint. The letter did not identify any factual information or the requested amendments. The letter was sent prior to the termination of Complainant's employment.” ECF No. 8-2 at 52.
o The court notes that the October 25, 2018 letter did not “request amendment.” Rather, in the letter Plaintiff's counsel indicated Plaintiff wished to “initiate a third EEO complaint regarding failure to accommodate and reprisal from May 2015 to the present . . .” ECF No. 10-1 at 1.
• In discussing Case 3, AJ Robertson noted Plaintiff counsel's request for a hearing and Plaintiff's disagreement with the Acceptance Letter and her request that the accepted issue be “the failure to accommodate from May of 2015, through [Plaintiff's] termination.” ECF No. 8-2 at 53 (emphasis omitted).
o After reviewing the law that a claimant must make counselor contact within 45 days of when discrimination is suspected, the AJ found that “in order for Complainant's claims to be viable she was required to contact an EEO counselor within 45 days of January 30, 2019, her last day of employment with the Agency.” ECF No. 8-2 at 5354. Noting the 45-day period would have run on March 16, 2019, the AJ found Plaintiff's May 21, 2019 counselor-contact to be untimely. Id. at 54.
o The AJ noted Plaintiff “[a]rguably” had “sought to file an amendment in the EEOC case identified above [referring to Case 1] and add her failure to accommodate and termination claims.” Id. at 55; see id. at 51-52. Noting that motion to amend had not be made until May 15, 2019, the AJ found that, even if the May 15, 2019 date were used, it would also have been untimely. Id. In support of her decision, the AJ cited another EEO Appeal in which the AJ appropriately had considered the date the claimant attempted to amend a prior case as the date of the counselor-contact in the new matter. Id. at 54 (citing Dempsey v. Dept. of Air Force, EEOC Appeal No. 2019005135 (Aug. 20, 20202) (reconsideration denied Jan. 27, 2021)).
• The AJ also considered but rejected Plaintiff's argument that she had a “‘continuing complaint.'” EEO Order of Dism. 5, ECF No. 8-2 at 55. The AJ noted that, “[r]egardless of the words used, Complainant's discrete acts must be timely.” Id. (citing Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). The AJ further explained as follows:
o In [Morgan], the Supreme Court of the United States held that “discrete discriminatory acts are not actionable if time barred, even when they are related
to acts alleged in timely filed charges.” 536 U.S. at 113. The Court defined such “discrete discriminatory acts” to include acts such as termination, failure to promote, denial of transfer, or refusal to hire.” Id. at 114. [Plaintiff's] termination is a discrete act. In addition, [Plaintiff's] claim regarding the alleged denial of a reasonable accommodation, while [the alleged denial is] comprised of a series of ongoing discrete acts that recur each time she does not have the accommodation, is nonetheless untimely because the alleged denial of reasonable accommodations ended when Complainant was terminated.” ECF No. 8-2 at 55.
• While dismissing Case 3 as untimely, the AJ also included two alternative rulings: even if timely, Plaintiff's claims for failure to accommodate and for termination were barred by collateral estoppel because they should have been raised in the prior EEO case (Case 2); and, even if the termination claim was timely it was “most likely not properly before” the AJ as it likely was within the jurisdiction of the Merit Systems Protection Board (MSPB).” ECF No. 8-2 at 55-56.
DOJ's Complaint Adjudication Office then issued a Final Agency Decision (FAD) on May 11, 2021. Case 3 FAD, ECF No. 8-2 at 61-72. The FAD concluded that the AJ's chronology “accurately details the relevant events, and the AJ's Decision's conclusion that [Plaintiff's] current claim is procedurally barred is correct.” Id. at 70.
Plaintiff then filed her USDC Complaint on August 9, 2021 (not August 10, 2021, as incorrectly indicated by Defendant). Compl. ECF No. 1.
C. Analysis
1. Timeliness of federal court Complaint
Defendant first argues Plaintiff's Complaint should be dismissed as untimely. Noting that claimants have 90 days after receiving notice of right to sue to file their federal complaint, Defendant asserts Plaintiff did not file hers until August 10, 2021, which would be the 91st day after Plaintiff's May 11, 2021 email receipt of the FAD. Def. Mem. 8-9.
Plaintiff acknowledges receipt of the FAD on May 11, 2021. Pl. Mem. 9. However, as noted by Plaintiff and as evidenced by the court's electronic docketing system, Plaintiff filed her Complaint on August 9, 2021. Compl., ECF No. 1. By Defendant's own calculations, Plaintiff's Complaint was timely initiated. That portion of Defendant's Motion to Dismiss should be denied.
This court may take judicial notice of its records. See, e.g., Lolavar v. De Santibanes, 430 F.3d 221, 224 n.2 (4th Cir. 2005) (taking judicial notice of the docket sheet of a court of record); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (noting that the most frequent use of judicial notice is notice of the content of the court's own records).
2. Failure-to-exhaust argument
a) Defendant's position
Defendant next seeks dismissal based on Plaintiff's failure to “demonstrate that she exhausted her administrative remedies by initiating informal EEO counseling within 45 days of the discrete personnel actions alleged in her Complaint.” Def. Mem. 8-1 at 10-11 (citing 29 C.F.R. § 1614.105(a)(1) and noting requirement that employee initiate contact with EEO counselor within 45 days of the date of the matter alleged to be discriminatory or within 45 days of the effective date of a personnel action). Defendant notes that failure to initiate EEO-counselor within the 45-day window is grounds for dismissal, absent estoppel. Id. at 11 (citing Zografov v. V.A. Med. Ctr., 779 F.2d 967, 969-70 (4th Cir. 1985)).
Defendant sets out the following alleged acts of discrimination as found in Plaintiff's Complaint:
While Plaintiff vigorously opposes Defendant's dismissal arguments she does not take issue with this characterization of the alleged actions as set out in her Complaint.
(a) she was maintained on a leave of absence status from May 2015 to March 2018, when the BOP issued a return to work letter, Compl. ¶ 16;
(b) Plaintiff was allowed to return to work in August 2018, but was provided no back pay, Compl. ¶ 17;
(c) although medical records showed Plaintiff could “work with restrictions,” no “interactive accommodation search” was conducted and Defendant “failed to allow Plaintiff to fully return to work.” Compl. ¶¶ 7, 18;
(d) Plaintiff alleges she was retaliated against and not reasonably accommodated “from May 2015 to [her] termination January 30, 2019,” Compl. ¶ 10); but see id. ¶ 6 (indicating the period of leave from 2015-2018 was part of her second EEO claim); and
(e) alternatively, Plaintiff claims that “from August 2018 until [her] termination January 30, 2019” Defendant refused to engage with Plaintiff in order for her to return to work “with restrictions” and terminated Plaintiff on January 30, 2019 for “Physical/Medical Inability to Perform the Duties of [Her] Position.” Compl. ¶ 19.Def. Mem. 12 (emphasis added).
Looking to Plaintiff's May 21, 2019 EEO-Counselor contact as the start of her third EEO claim, Defendant submits dismissal for failure to exhaust is appropriate because none of Plaintiff's allegations of discriminatory action took place within 45 days of May 21, 2019. Def. Mem. 12.
Defendant also supplies several exhibits, including Plaintiff's formal request for accommodation in June 2018 and denial of same November 13, 2018 and a December 2018 letter proposing Plaintiff's termination. Def. Mem. 12 (citing several exhibits to Clarke's Decl.). Plaintiff does not take issue with these documents, and they relate to whether Plaintiff timely exhausted remedies. However, detailed consideration of these additional documents is not necessary at this time.
b) Plaintiff's response
Plaintiff responds by arguing she exercised due diligence in exhausting her administrative remedies, and any decision as to whether she should be entitled to equitable tolling should not take place before she has had the opportunity to conduct discovery. Pl. Mem. 7-11. Plaintiff particularly focuses on her counsel's October 25, 2018 letter to the EEO Officer in which counsel plainly indicated Plaintiff wished to begin a third EEO claim. See ECF No. 10-1 at 1; Pl. Mem. 9 (“Plaintiff's attempt to initiate counseling and Defendant's failure to respond should be questions of fact that need to be further examined in discovery to resolve the question of whether or not equitable tolling applies, based on due diligence and improper actions of the agency.”). Plaintiff also argues discovery is appropriate as to whether “Plaintiff's complaint was one of continuous or discreet acts.” Pl. Mem. 910.
Plaintiff makes an additional argument concerning her retaliation claims. Citing several cases from the United States District Court for the District of Columbia, Plaintiff submits that courts sometimes permit retaliation claims to be considered even though they took place after discrimination claims that had been presented to an EEO officer when the retaliation claims were related to previously submitted discrimination claims. Pl. Mem. 11 (citing Redding v. Mattis, 327 F.Supp.3d 136, 139-40 (D.D.C. 2018), and other D.D.C. cases). Although not crystal clear, Plaintiff seems to argue her retaliation claims should move forward regardless of administrative exhaustion because they are related to “claims previously presented to the EEO officer in the 2d EEO complaint and before.” Pl. Mem. 11. Plaintiff's argument also extends to her third EEO contact, if it is considered to have taken place on October 25, 2018.
c) Analysis
The court first considers Plaintiff's equitable-tolling argument. The law of equitable tolling, particularly in the context of an employment action by a government employee, was recently well-summarized by another court within the Fourth Circuit:
It is well settled that limitations in a Title VII action against a government agency is not jurisdictional and is subject to equitable tolling. See Irwin v. Dep't of Veterans Affs., 498 U.S. 89, 96 (1990); Weick v. O'Keefe, 26 F.3d 467, 470 (4th Cir. 1994). Equitable tolling is a discretionary doctrine that turns on the specific facts and circumstances of a particular case. Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed.Appx. 314, 321 (4th Cir. 2011). “Federal courts have typically extended equitable relief only sparingly” in this context, and apply the doctrine only in “those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Id. That said, courts “freely allow [equitable tolling] where the plaintiff's delay in filing was the result of misleading conduct or misinformation by a
government agency.” Kramer v. Bd. of Educ. of Baltimore Cnty., 788 F.Supp.2d 421, 426 (D. Md. 2011).' '
“The doctrine[ ] of equitable tolling . . . derive[s] from the notion ‘that a defendant should not be permitted to escape liability by engaging in misconduct that prevents the plaintiff from filing her claim on time.'” Dean v. Berlin Fire Co., No. CV ELH-17-2708, 2018 WL 4468844, at *7-8 (D. Md. Sept. 17, 2018) (quoting English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987)). As used in this context, “misconduct” does not require showing “deliberate, wrongful action by the defendant designed to frustrate the plaintiffs ability to file timely.” Id. (quoting Roberts v. Am. Neighborhood Mort. Acceptance Co., Civil No. JKB-17-0157, 2017 WL 3917011, at *5 (D. Md. Sept. 6, 2017)). Rather, “it may be sufficient if the defendant should have realized the effect of its conduct.” Id.; see also Aikens v. Ingram, 524 Fed.Appx. 873, 879 (4th Cir. 2013) (“[C]ourts have generally clarified that equitable estoppel requires the defendant's wrongdoing, while equitable tolling does not.”). The Fourth Circuit has acknowledged that equitable tolling “might be warranted in cases involving bad advice from the governmental agency charged with enforcing discrimination complaints,” Poteat v. Mack Trucks Inc., No. 96-1437, 1997 WL 33117, at *4 (4th Cir. Jan. 28, 1997) (per curiam), and in cases where, “due to agency error or misinformation, a complainant fails to meet the time requirements for filing an agency complaint....” Bishop v. Hazel & Thomas, PC, No. 97-2284, 1998 WL 377912, at *2 n.3 (4th Cir. July 1, 1998) (per curiam).
* * *
The United States Supreme Court has acknowledged that navigating “the intersection of federal civil rights statutes and civil service law has produced a complicated, at times confusing, process for resolving claims of discrimination in the federal workplace.” Kloeckner v. Solis, 568 U.S. 41, 49 (2012). The Court of Appeals for the Federal Circuit more bluntly describes the channels of administrative and judicial review in this context as a “byzantine labyrinth.” Kerr v. Merit Sys. Prot. Bd., 908 F.3d 1307, 1309 (Fed. Cir. 2018).Kotzalas v. Svnicki, No. 20-CV-2926-PWG, 2022 WL 1002136, at *4 (D. Md. Mar. 31, 2022) (finding equitable tolling deemed plaintiffs federal complaint to have been timely filed; although agency had not intentionally misled the employee or her counsel regarding filing deadline, the agency should not benefit from its confusing instructions regarding such deadlines).
Here, Plaintiffs claim that she is entitled to equitable tolling focuses principally on the BOP's failure to consider her October 25, 2018 letter to be adequate EEO-counselor contact so as to have October 25, 2018 be considered the date she filed her third EEO complaint. She submits she is entitled to discovery regarding “why the Agency and the EEOC Administrative Judge arbitrarily decided, despite Plaintiff's objections, that Plaintiff initiated counseling on May 21, 2019 and not October 25, 2018[.]” Pl. Mem. 9.
The undersigned agrees that, liberally construed, the October 2018 letter from Plaintiff's counsel likely should have been considered EEO contact that started a new charge. Although 29 C.F.R. § 1614.105(a) does not define what it means to “initiate contact” with an EEO counselor so as to make an EEO claim, the “EEOC has consistently held that ‘a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process.' EEOC Management Directive 110, at ch. 2, § I.A, n.1 (Nov. 9, 1999) (citing Kinan v. Cohen, Request No. 05990249, 1999 WL 320546 (May 6, 1999)).” Welsh v. Hagler, 83 F.Supp.3d 212, 218 (D.D.C. 2015).
Although the AJ addressed the October 25, 2018 letter, she characterized it as a “request to amend” Plaintiff's earlier case (Case 2). ECF No. 8-2 at 52. However, the language set out by Plaintiff's counsel, emphasized in bold and underlined type, indicated she “would like to initiate a third EEO complaint regarding failure to accommodate and reprisal from May 2015 to the present as BOP continues to discriminate and retaliate against [Plaintiff] presently.” ECF No. 10-1 at 1.
As the AJ noted in dismissing Case 3, on May 15, 2019, Plaintiff did attempt to amend a prior action (Case 1) to include failure to accommodate and termination claims, but the amendment was not permitted. See ECF No. 8-2 at 55. AJ Robertson found Case 3 was untimely even if using the May 15, 2019 date as the date of initial EEO-counselor contact because it did not take place until more than 45 days after Plaintiff's January 2019 termination. ECF No. 8-2 at 55; see ECF No. 8-2 at 25 (paperwork initiating Case 3 in which it is indicated that AJ Clay denied a motion to amend a prior case because the additional allegations (including the January 2019 termination) were too remote and should be considered in a separate action).
The undersigned agrees with Plaintiff that she has established sufficient due diligence to at least obtain discovery on her equity-based argument. A reasonable reading of the Complaint and documents considered regarding this motion indicates Plaintiff attempted to begin a third EEO claim in October 2018. Additionally, within days of having been advised in May 2019 by Case 1's AJ (Judge Clay) that Case 1 would not be amended but Plaintiff should begin another action to include later claims of failure to accommodate and the termination claim, Plaintiff did so. Adinolfi v. N. C. Dep't of Just., No. 5:18-CV-539-FL, 2020 WL 1490700, at *4 (E.D. N.C. Mar. 24, 2020) (denying motion to dismiss certain claims so that parties could pursue issue of whether employer's actions might have caused employee to delay filing EEOC charge). To be clear, permitting discovery does not guarantee Plaintiff will be able to establish she is excused from timely exhaustion of administrative remedies, nor does it ensure Plaintiff will establish timeliness of the claims in her Complaint based simply on her continued refrain that her discrimination was “continuous.”
Further, the BOP's agreeing to consider Plaintiff's claim from October to November 2018 and noting claims before the date of counsel's October 25, 2018 were untimely suggests that, on some level, the BOP may have considered counsel's letter as a starting point for her third claim.
To the extent Plaintiff is alluding to the continuing-violation doctrine, a brief discussion of that doctrine is instructive. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court of the United States held that “discrete acts,” such as “termination, failure to promote, denial of transfer, or refusal to hire,” and “each retaliatory adverse employment decision” is a separate (“discrete”) act and an administrative charge can cover only such “discrete acts” as those that “‘occurred' within the appropriate time period.” 536 U.S. at 114. See also Baker v. Boeing Co., Inc., No. CV 2:18-2574-RMG, 2021 WL 2283808, at *3 (D.S.C. June 4, 2021) (noting “‘defendant's failure to accommodate constitutes a discrete act rather than an ongoing mission' and, therefore, an untimely claim cannot be saved under the continuing-violation doctrine.” (quoting Hill v. Hampstead Lester Morton Ct. Partners LP, 581 Fed.Appx. 178, 181 (4th Cir. 2014)). Unlike Plaintiffs shorter 45-day timeframe for beginning charge process by instituting EEO-counselor contact, Morgan, a private employee, had 300 days from alleged discriminatory acts to file a charge with the EEOC or a similar state agency. Accordingly, the Court found that only those discrete acts that took place within 300 days of the charge-filing-date were considered to have been timely and actionable. Id. The Court found a continuing violation doctrine was applicable to hostile-work-environment claims, noting that their “very nature involves repeated conduct,” making them are “different in kind from discrete acts.” Id. at 115. Because hostile-work-environment claims involve repeated conduct, a series of related claims may all be considered timely so long as the employee files the charge within the statutorily-mandated period for “any act that is part of the hostile work environment.” Id. at 188.
To the extent Plaintiff is looking to the continuing-violation doctrine as a method of making otherwise untimely claims timely, she is reminded of the court's finding in her prior case that such a doctrine relates to “‘incidents [that] are part of a single, ongoing pattern of discrimination, i.e., when the incidents make up part of a hostile work environment claim.'” Green I, 2022 WL 897154, at *3 (D.S.C. Mar. 28, 2022) (quoting Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007)). Here, Plaintiff has not alleged a hostile work environment, nor does it appear that such a claim would be plausible in this matter. In any event, to have a series of otherwise untimely “continuing” acts be considered timely under this doctrine Plaintiff would still be required to demonstrate the so- called continuing acts were related to at least one act that was itself timely exhausted (or at least considered to have been timely exhausted pursuant to equitable principles).
While Plaintiff's opposition to Defendant's Motion generally indicates she has “attempted to address the continuous and ongoing hostile work environment, discrimination and retaliation from 2014 - 2019[,]” Pl. Mem. 2, neither her prior federal Complaint nor this Complaint includes a hostile-work-environment cause of action. Further, nothing in her Complaint suggests she could plead a plausible case that she was subject to such “severe or pervasive” unwelcome harassment based on a disability under the Rehabilitation Act so as to show a hostile work environment. See generally Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001) (setting out requirements of such a claim).
The doctrine of equitable tolling may, under certain circumstances, excuse a claimant's undertaking an administrative deadline “on time.” This does not translate, however, into a party's wholesale ignoring of the requirements of filing timely charges and, in the case of federal employees such as Plaintiff, initiating EEO-counselor contact as to discrete issues. In other words, while it may be that Plaintiff can show that BOP should have construed her October 25, 2018 letter as initiating a third EEO action, she still must demonstrate that, had it been so construed, she would be considered to have exhausted remedies as to specific, discrete wrongs. As the AJ noted, the October 25, 2018 letter was submitted prior to Plaintiff's termination. ECF No. 8-2 at 52. Although the Fourth Circuit Court of Appeals does not seem to have definitely addressed the issue, “the trend in federal courts of appeal has been to hold that discrimination claims must be exhausted by a subsequent EEO Charge[.]” Brooks v. United Parcel Serv., Inc., No. CV DKC 20-2617, 2021 WL 4339194, at *6 (D. Md. Sept. 23, 2021) (collecting cases) (emphasis added).
The undersigned recommends Defendant's Motion to Dismiss Plaintiff's claims on failure-to-exhaust grounds be denied. Plaintiff should be permitted to conduct discovery on issues related to the administrative process in her claims (including but not necessarily limited to her counsel's October 25, 2018 letter). At bottom, any other evidence of entitlement to equitable relief is helpful to Plaintiff only if it convinces the fact-finder that she should be considered to have timely exhausted her remedies.
While it is recommended that the motion to dismiss on exhaustion ground be denied as to all of Plaintiff's Rehabilitation Act claims the undersigned notes an additional ground for denial as to Plaintiff's claims of retaliation. As Plaintiff argued in her memorandum at times courts have not required that retaliation claims be brought within the statutory time-period when those claims are related to claims that were presented to an EEO officer. Pl. Mem. 10-11. See Redding v. Mattis, 327 F.Supp.3d 136, 139-40 (D.D.C. 2018). Defendant did not file a reply and has not responded to this argument.
The court agrees with Plaintiff that she may be permitted to pursue later claims of retaliation if it is considered that she filed a charge to which they could relate. In Hentosh v. Old Dominion University, 767 F.3d 413 (4th Cir. 2014), the Fourth Circuit found that a later retaliation claim could be considered so long as it related to a previously filed EEOC Charge, notwithstanding that the previously filed charge of discrimination would not be considered because it had not been administratively exhausted. 767 F.3d at 417-18 (relying on rule set out in Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992)). Accordingly, here, if Plaintiff establishes the retaliation claims in her Complaint relate back to a filed, even if not exhausted, EEOC Charge, she may proceed on such claims in any event.
In summary, it is recommended that Defendant's Motion to Dismiss be denied as to the failure-to-exhaust argument and the matter proceed to discovery. It is far from clear whether discovery will bear out facts to support Plaintiff's claim that equitable principles require that her attempts to make EEO-counselor contact be deemed timely, or what (if any) claims she will be able to link to any such contact. Nonetheless, this is an issue that will benefit from an appropriate discovery period. Stated another way, “the court does not preclude further consideration of the applicability of the law of equitable tolling to the evidence in this case, upon a more complete record at a later juncture.” Adinolfi v. N. C. Dep't of Just., 2020 WL 1490700, at *4.
If the district judge adopts this Report and Recommendation a scheduling order will be issued in this matter. Judicial economy indicates that full discovery-not only discovery related to timeliness issues-should take place between the parties prior to further potentially dispositive motions' being filed.
3. Dismissal for failure to state a claim
Defendant also seeks Rule 12(b)(6) dismissal for failure to allege plausible claims under the Rehabilitation Act or the ADA.
a) ADA claims
Plaintiff purports to bring causes of action for discrimination and retaliation under Titles I and II of the ADA and under Sections 501 and 504 of the Rehabilitation Act. Defendant appropriately seeks dismissal of Plaintiff's ADA causes of action because a federal employee's disability-related claims lie under the Rehabilitation Act, not the ADA. Def. Mem. 14-15. See Hatcher v. Wilkie, C/A No. 3:17-2535-JMC-PJG, 2019 WL 2090810, at *5 (D.S.C. Feb. 27, 2019) (collecting cases and noting the Rehabilitation Act, not the ADA, applies to disability-related claims brought by federal employees). Other than briefly indicating she is bringing both Rehabilitation Act and ADA claims, see Pl. Mem. 1-2, Plaintiff does not dispute that only the Rehabilitation Act is applicable herein.
Dismissal is appropriate as to the ADA-based claims set out in Plaintiff's Complaint. The court considers Plaintiff's disability-related claims as having been brought pursuant to the Rehabilitation Act only. In considering Plaintiff's Rehabilitation Act claims, the court may look to case law interpreting both the Rehabilitation Act and the ADA. See generally, Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995).
Defendant does not focus on whether both Sections 501 and 504 of the Rehabilitation Act may be applicable to Plaintiff's claims.
b) Rehabilitation Act claims
Defendant's Motion to Dismiss also includes a pleadings-sufficiency-based challenge to Plaintiff's claims of discrimination and retaliation under the Rehabilitation Act. Def. Mem. 14-18 (claiming Plaintiff's allegations do not satisfy the plausibility requirement of Iqbal and Twombly).
Construed in the light most favorable to the non-moving Plaintiff, her Complaint alleges the following:
After outlining her work history with Defendant and her EEO activity, Plaintiff alleges she “suffered a disabling condition of bilateral carpal tunnel of both hands, and despite being able to return for work with restrictions and despite Plaintiff passing the Defendant mandated Fit for Duty Exam, Plaintiff was perceived as disabled and unable to perform the majority of her duties.” Compl. ¶ 14. Plaintiff noted she had been on leave of absence from March 2015 until March 2018, at which time she was issued a letter “offering her a return to work.” Id. ¶ 16. Although Plaintiff returned to work in August 2018 “no interactive accommodation search was performed” although Plaintiff had records indicating she could return to work with restrictions, Defendant failed to allow her to “fully return to work.” Id. ¶ 18. “Despite evidence to the contrary,” Plaintiff was terminated on January 30, 2019 for “ ‘Physical/Medical Inability to Perform the Duties of [Her] Position.'” Id. ¶ 19. Plaintiff notes a Report of Investigation discussed Plaintiff's claims of failure to accommodate and reprisal and her January 30, 2019 termination. Compl. ¶ 20. Plaintiff then lists some of the ways she alleges she was treated disparately from other employees upon her return to work in 2018:
• Plaintiff was accused of making a fraudulent workers compensation claim;
• Plaintiff was not issued uniforms or clothing allowance or “PV Card or activation like other employees”;
• Plaintiff was not considered for “regular” positions like other employees;
• Captain Jones acknowledged Plaintiff was removed from her position because she was unable to return to full duty; and
• The HR representative claims Plaintiff was “unfit for duty according to her fitness for duty examination that was ordered by Defendant[,] but there is no evidence this was ever provided.”Compl. ¶ 20 a-e. Plaintiff alleges Defendant knew or should have known of the unequal treatment. Id. ¶ 21.
Plaintiff alleges she is an African-American female and was performing satisfactorily “before suffering a disabling condition that precluded Plaintiff from major life activities and left Plaintiff perceived as disabled by Defendant[s].” Compl. ¶ 29; see also id. ¶ 36 (averring Plaintiff was “performing satisfactorily before suffering a disabling condition that precluded Plaintiff from major life activities”); ¶ 39 (asserting Defendant “mistakenly believe[d] that Plaintiff had a physical impairment that substantially limit[ed] one or more of her major life activities such that Plaintiff [was] deemed otherwise unqualified for working for Defendant[.]”). Plaintiff alleges that, once she could return to work with restrictions and perform the majority of her job duties Defendant failed to accommodate her and failed to treat her in a manner equal to employees who were not perceived to be disabled and who had not filed 3 EEO Complaints. Id. ¶ 30. Plaintiff submits, then, that she was treated unequally to nondisabled employees and was discriminated and retaliated against “because of her disability or perceived disability[.].” Id. ¶ 32. Plaintiff alleges she is a “qualified individual with a disability that affected her ability to work without restrictions.” Id. ¶ 50. She alleges the above actions (or inactions) violate the Rehabilitation Act. Id. ¶ 51. Plaintiff alleges she has been discriminated against and Defendant failed to provide a reasonable accommodation. Id. ¶ 52. She claims Defendant's “decisions to deny re-employment amount to a failure to accommodate Plaintiff's disability.” Id. ¶ 52.
While paragraphs 29, 36, and 39 of her Complaint are part of her ADA-based claims the court appropriately notes allegations in the ADA-based claims as they are incorporated into the Rehabilitation Act claims. See Compl. ¶¶ 43, 49.
1. Disability discrimination claims
Defendant first argues Plaintiff has not set out a plausible claim of disability discrimination. Def. Mem. 14-16. Defendant argues Plaintiff's “generic allegation that she was discriminated against because her employer ‘perceived' her as disabled” is nothing but a legal conclusion that is insufficient under Twombly. Def. Mem. 16. Although Defendant suggests Plaintiff's Complaint does not alleged she was a “qualified individual” for purposes of the Rehabilitation Act, the undersigned disagrees. Her Complaint includes allegations that she is “qualified individual with a disability that affected her ability to work without restrictions.” Compl. ¶ 50. See also Compl. ¶¶ 29, 36, and 39 (regarding disabling condition that “precluded Plaintiff from major life activities” or “substantially limits one or more of her major life activities” such that she was “deemed otherwise unqualified for working for Defendant”). Whether Plaintiff ultimately can present sufficient facts to prove that she is a “qualified individual” for purpose of her Rehabilitation Act claims remains to be seen. She has, however, pleaded enough to allege disability discrimination. This portion of Defendant's motion should be denied.
2. Failure-to-accommodate claims
Defendant also seeks dismissal of Plaintiff's failure-to-accommodate claims, arguing that such claims are unavailable to an employee who is alleging she is only perceived disabled, rather than being actually disabled as defined by the Rehabilitation Act. Def. Mem. 16-17. Defendant's statement of the law is accurate: a claimant who alleges only a perceived disability will not have an actionable claim for failure to accommodate. Lee v. Olsten Staffing Servs. Corp., No. CV 4:18-2520-SAL-KDW, 2020 WL 6218725, at *8 (D.S.C. Mar. 11, 2020) (noting an employee who seeks recovery under the ADA (or Rehabilitation Act) based on her being “regarded as” disabled will be unable to establish a successful failure-to-accommodate claim), report and recommendation adopted, No. 4:18-CV-02520-SAL, 2020 WL 4726738 (D.S.C. Aug. 14, 2020).
Plaintiff's opposition to Defendant's Motion to Dismiss does not specifically address this legal point. Certainly, Plaintiff ought to address specific legal arguments. In any event, at this juncture, a liberal reading of Plaintiff's Complaint indicates she claims both that she is disabled and is perceived as disabled. See generally Cooper v. Rappahannock Shenandoah Warren Reg'l Jail Auth., No. 5:17-CV-00079, 2017 WL 4933050, at *5 & n.2 (W.D. Va. Oct. 31, 2017) (citing Fed.R.Civ.P. 8 and finding pleading alternative claims of actual disability and regarded-as disabled permissible at the pleadings stage). Plaintiff's theories of liability must be fleshed out in discovery and in later legal proceedings. For now, however, the undersigned is of the opinion that this portion of Defendant's Motion to Dismiss should be denied and Plaintiff's failure-to-accommodate claims remain in the Complaint.
3. Retaliation/reprisal claims
Finally, regarding Plaintiff's retaliation/reprisal claims, Defendant alleges Plaintiff has not set forth facts sufficient to show a plausible claim, claiming her “bald allegation” that she subjectively believes she was not treated equally to others who were not disabled and did not file three prior EEO complaints is insufficient to allege the required elements of her retaliation claim. Def. Mem. 17-18.
As acknowledged by Defendant, Plaintiff need not establish each element of her prima facie case at this juncture. Nonetheless, the prima facie elements are instructive in considering whether a plausible retaliation claim has been pleaded. Generally, a prima facie claim of retaliation pursuant to the Rehabilitation Act, is comprised of the following: 1) plaintiff engaged in protected activity, 2) the employer took adverse action against her, and 3) that a causal relationship existed between the protected activity and the adverse employment action. Hooven-Lewis v. Caldera, 249 F.3d 259, 271 (4th Cir. 2001).
Defendant acknowledges Plaintiff's pleading that she has filed various “claims of discrimination and retaliation since 2014,” Compl. ¶ 5, but submits Plaintiff has not alleged the other required elements. Def. Mem. 18. Defendant submits Plaintiff's “bald allegation” that she “believes she was not treated ‘in a manner equal to employees who were not perceived as disabled or who had not filed 3 EEO complaints,'” is insufficient to state a plausible claim. Id. at 18 (quoting Compl. ¶ 30).
The undersigned disagrees. Reading Plaintiff's Complaint as a whole, the undersigned finds Plaintiff plausibly has pleaded a retaliation claim. Considering in particular the following portions of Plaintiff's Complaint, she has set out a plausible retaliation claim:
• Plaintiff alleges she filed EEO claims in 2014, 2015, and again on October 25, 2018. Compl. ¶¶ 5-8.
• Plaintiff was terminated on January 30, 2019; Defendant ignored Plaintiff's request for a hearing to “properly state the issue was failure to accommodate and reprisal from May 2015 to termination January 30, 2019.” Compl. ¶ 10.
• Plaintiff's supervisors or others involved in her work assignments were interviewed in connection with her prior EEO complaints; she was returned to work under the same supervision. Compl. ¶ 15.
• Plaintiff was returned to work in August 2018, but Defendant “refused to properly engage with Plaintiff in order to return Plaintiff to work with restrictions from August 2018 until termination January 30, 2019.” Compl. ¶ 19.
• Plaintiff was “treated in a manner unequal to other employees,” and Defendant “knew or should have known of the unequal treatment toward Plaintiff,” including the “retaliatory treatment[.]” Compl. ¶¶ 20, 21.
• Plaintiff was treated differently from employees who “had not filed 3 EEO Complaints against [their] employer.” Compl. ¶ 30.
• Defendant's practice of “retaliating against Plaintiff by treating her differently” violated the Rehabilitation Act. Compl. ¶¶ 44, 50.
Taken as a whole, then, Plaintiff's Complaint discusses alleged retaliation and that she was treated differently from others who were not disabled or who had not filed EEO complaints. Plaintiff avers she attempted to initiate a third EEO complaint on October 25, 2018 and was terminated January 30, 2019. The Federal Rules do not require more in this regard. Plaintiff's termination plausibly could be causally related to her complaints, particularly her October 25, 2018 complaint. These allegations are sufficient to create an inference of a causal connection between Plaintiff having engaged in protected activity and the adverse actions to which she was subjected. E.g., Tellez v. Primetals Techs. USA, LLC, No. CV 2:18-0313-BHH-BM, 2018 WL 5724087, at *3 (D.S.C. Oct. 16, 2018), report and recommendation adopted, No. CV 2:18-313-BHH, 2018 WL 5720751 (D.S.C. Nov. 1, 2018) (denying motion to dismiss and finding, inter alia, that allegations concerning protected activity in late April 2017 and subsequent adverse events that allegedly led to a November 2017 constructive discharge were sufficient to survive a motion-to-dismiss challenge); see generally Slade v. Hampton Roads Regional Jail, 407 F.3d 243, 248 (4th Cir. 2005) (“Courts should not dismiss a complaint for failure to state a claim unless ‘after accepting all well-pleaded allegations in the Plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief'”) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). Defendant's challenge to Plaintiff's retaliation claims should be dismissed.
IV. Conclusion
For the reasons set forth above, it is recommended that Defendant's Motion to Dismiss, ECF No. 8, be granted as to Plaintiff's ADA causes of action and denied as to all other claims.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”