Opinion
1:99CV00541
February 12, 2001
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court for a ruling on several pending motions, including dispositive motions filed by all Defendants. Discovery has been completed in this action, and all motions are ripe for a resolution.
Plaintiffs Klaiber and Miller filed this action pro se and have continued in their self-representation throughout the case. This circumstance complicates determination of the pending motions, as Plaintiffs understandably have no experience in litigation and both their pleadings and legal arguments are vague and inartful. Nonetheless, the Court must construe all of their filings liberally, and search diligently for claims or arguments that may have merit even if they are not well articulated. Pro se plaintiffs are held to a less stringent pleading standard than are trained attorneys, and their complaints are liberally construed by the courts. Haines v. Kerner, 404 U.S. 519 (1972). At the same time, however, courts are not expected to develop tangential claims that may be only vaguely hinted at in the assertions of a pro se complaint. Beaudett v. City of Hampton, 775 F.2d 1274 (4th Cir. 1985), cert denied, 475 U.S. 1088 (1986).
The claims of Plaintiffs' complaint, as amended, are made against Defendants Nicholas Rinaldi and B.J. Thompson in their individual and official capacities, and against Defendant William J. Henderson, Postmaster General, in his official capacity. All Defendants are employees of the United States Postal Service. Against these Defendants, Plaintiffs assert claims of violation of their rights under (1) the Family Medical Leave Act; (2) Title VII of the Civil Rights Act of 1964; (3) the Americans with Disabilities Act; (4) the Inspector General Act of 1978; and (5) the Privacy Act of 1974. Discovery on these claims has now closed, and Defendants have moved for summary judgment on all claims. The Court will first rule on non-dispositive motions and then turn to Defendants' summary judgment motion.
Defendants have provided late discovery to Plaintiffs, a matter further discussed infra. If Plaintiffs believe any of the tardy discovery material is relevant to determination of any of their claims, they may submit such material to the Court for consideration during the period for filing objections to the Recommendations entered herein.
Defendants have styled their motion, (Pleading no. 53), as a motion to dismiss or for summary judgment. Since discovery has been permitted on all claims, the Couit will determine all of Plaintiff claims under the summary judgment standard of review. See also Pleading no. 22, "Defendants' Motion to Dismiss Individual Defendants Henderson, Thompson Rinaldi."
NON-DISPOSITIVE MOTIONS
On May 2, 2000, the pro se Plaintiffs requested entry of default against Defendants Rinaldi and Thompson in their individual capacities on the basis of an alleged failure on their part to respond to the complaint filed by Plaintiffs. However, the record shows that all Defendants filed a timely motion to dismiss under Rule 12(b)(6) and the individual Defendants later filed a motion to dismiss under Rules 12(b)(1) and 12(b)(3). ( See Pleading nos. 9 and 22.) Under the Federal Rules of Civil Procedure, a timely motion to dismiss, (Pleading no. 9), serves as a formal substitute for an answer, and therefore the Defendants were not at any time in default for failure to respond to the complaint. See Fed.R.Civ.P. 12(a)(4)(A). All Defendants later filed an answer at the time they withdrew their Rule 12(b)(6) motion. ( See Pleading nos. 47 and 49.) In any event, default should not be entered in this case against any Defendant since the Rules favor disposition on the merits. This case has been fully and actively litigated on the merits by all parties, and Plaintiffs have not shown any prejudice from the allegedly tardy response. Accordingly, Plaintiffs' motion for entry of default, (Pleading no. 35), should be DENIED.
On June 22, 2000, Plaintiffs filed a "Request for an Injunction," asking the Court to prohibit Defendants from future removals of Plaintiffs from pay-status. ( See Pleading no. 41.) The motion should be DENIED. Plaintiffs have shown no grounds for interim injunctive relief and, in any event, this case will be fully determined in the near future and all claims for relief can be adjudicated at one time.
On December 28, 2000, Plaintiffs filed a "Motion for an Order Compelling Disclosure and for Appropriate Sanctions." ( See Pleading no. 57.) Plaintiffs inform the Court that Defendants have failed to timely respond to outstanding discovery requests, despite correspondence on the subject between Plaintiffs and Defendants' counsel. Counsel for Defendants concede in response that provision of discovery responses to Plaintiffs has been delayed significantly beyond the due date. Defendants argue that the delay has not been "willful," but has resulted from (a) serious illness of one attorney in the Atlanta Field Office, and (b) Defendants' hope that the Court would rule on the individual Defendants' motion to dismiss, thereby obviating discovery as to them. By the time of this Order and Recommendation, Defendants have belatedly provided the discovery requested by Plaintiffs, and the Court, as noted in footnote 1 herein, has extended to Plaintiffs a full opportunity to make use of any of the late-provided information. Nonetheless, the Court finds Defendants' delay in making discovery to be unexcused and in violation of the scheduling order of the Court. The Court must consider what sanction may be proper.
Plaintiffs request that the Court "dismiss" Defendants' motion for summary judgment. The Court declines to do so, however, since such a sanction would accomplish little purpose. If the Court were to refuse to consider Defendants' dispositive motion, the summary judgment motion would, in legal effect simply convert to a Rule 50(a)(1) motion at the close of Plaintiffs' evidence, all to no substantial benefit to Plaintiffs. In considering an appropriate sanction, the Court deems it important to note that Plaintiffs have not been prejudiced in their prosecution of their case. Still, Defendants actions are unexcused. If Plaintiffs were represented by counsel, the Court would award them reimbursement for their cost of counsel in bringing their discovery motion ( see Rule 37(a)(4)(A)), but Plaintiffs here are pro se and thus have incurred no cost of counsel. Under these circumstances, the Court imposes the following sanction upon Defendants: Defendants are admonished to strictly comply with the Rules of Civil Procedure and Local Rules as to timing requirements as they may apply going forward in this litigation and shall be prohibited from requesting any extensions of time in view of their dilatory discovery responses. IT IS SO ORDERED.
DEFENDANTS' SUMMARY JUDGMENT MOTION
A party is entitled to judgment as a matter of law upon a showing that "there is no genuine issue of material fact." Fed.R.Civ.P. 56(c). The material facts are those identified by controlling law as essential elements of claims asserted by the parties. A genuine issue as to such facts exists if the evidence forecast is sufficient for a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of its case as to which it would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In evaluating a forecast of evidence on summary judgment review, the court must view the facts and inferences reasonably to be drawn from them in the light most favorable to the nonmoving party.
When the moving party has carried its burden, the nonmoving party must come forward with evidence showing more than some "metaphysical doubt" that genuine and material factual issues exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), cert. denied, 481 U.S. 1029 (1987). A mere scintilla of evidence is insufficient to circumvent summary judgment. Anderson, 477 U.S. at 252. Instead, the nonmoving party must convince the court that, upon the record taken as a whole, a rational trier of fact could find for the nonmoving party. Id. at 248-49. Trial is unnecessary if "the facts are undisputed, or if disputed, the dispute is of no consequence to the dispositive question." Mitchell v. Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993).
Several of the claims set out in Plaintiffs' pro se complaint are legally deficient for obvious and straightforward reasons. Plaintiffs have alleged that they bring actions under (1) the Family Medical Leave Act ("FMLA"), (2) Title VII of the Civil Rights Act of 1964, (3) the Americans with Disabilities Act ("ADA"), (4) the Inspector General Act of 1978, and (5) the Privacy Act of 1974. These causes of action are said to arise from a series of facts alleged by the Plaintiffs in their complaint. See Complaint at ¶ 2(a)-(o). Plaintiff Miller states that she has been diagnosed with Degenerative Disc Disease but her supervisor (Defendant Thompson) continues to insist that she take a "light-duty" status for her job. Plaintiff Klaiber states that she went to her doctor on June 1, 1999, because of swelling in her legs and feet, and the doctor gave her a note excusing her from prolonged standing. Defendant Thompson allegedly told her the note was "not enough" and she had to sign a form requesting light-duty. Klaiber alleges, however, that her condition does not prevent her from doing her assigned job. She also mentions a termination for unsatisfactory attendance in 1997 that was alleged to be an FMLA violation because "there were several days included, that were covered by FMLA."
Plaintiffs' claims under the Inspector General Act of 1978 are fatally deficient because there is no private right of action under the Act, 5 U.S.C. App. 3, § 1, et seq.; Perry v. Spivey, No. 1:98CV00971 (M.D.N.C. December 2, 1999). The Privacy Act claim fails in this case because there is no competent evidence of unwarranted dissemination by any named Defendant of Plaintiffs' personal information contained in federal agency records. See generally, Wilborn v. Dept of Health and Human Services, 49 F.3d 597, 600 (9th Cir. 1995). Plaintiffs' only argument under this claim is that their FMLA-related documents "have been improperly handled since [they] sought FMLA in 1996." (Plaintiffs' Mem. at 13.) They allege that Judy Frye is handling their forms, when only Kathryn Sherrill, Custodian of Medical Records, should do so. Id. Nonetheless, Defendants' interrogatory answers do not disclose any unauthorized access to restricted medical information, (Interrogatories 6 and 7), and Plaintiffs have proffered to the Court no competent evidence to the contrary. See Rule 56(e), Form of Affidavits; Further Testimony; Defense Required. The allegations of Plaintiffs' complaint and the contentions in their brief are not a substitute for competent evidence at this stage of the proceeding.
Plaintiffs' Title VII claims have no evidentiary basis. Title VII prohibits "personnel actions" based on race, color, religion, sex, or national origin. It is clear from Plaintiffs' pleadings and memoranda, however, that they do not claim discrimination on any of the above prohibited bases. Instead, they assert that their civil rights have been violated by creation of a "hostile work environment" in which their FMLA rights have been violated. Plaintiffs' Title VII claims are actually FMLA claims in disguise, and thus cannot withstand Defendants' summary judgment motion.
While Plaintiffs argue about a Title VII "retaliation" claim, they have shown no evidence of any "protected activity" by them which could give rise to a claim of retaliatory conduct. See Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), abrogated on other rounds, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In argument, they cite their requests for FMLA leave and for disability accommodations as "protected activities," but these are insufficient as a matter of law and do not substitute for a protected activity such as the filing of an EEO charge. Neither Plaintiff filed an EEO charge during the relevant time period prior to the filing of their complaint in this action, so their retaliation claims fail for lack of a prima facie case. See Klaiber dep. at 63-63; Miller documents at Gov't's Exh. F.
In their pleadings, Plaintiffs raised claims under the Americans with Disability Act ("ADA"). These claims, however, are legally deficient since Plaintiffs are federal employees and the United States is not an entity covered by the ADA. See 42 U.S.C. § 12111(2), 12111(5)(B)(i); Brown v. Henderson, 2000 WL 362035, * 1 (S.D.Ala. 2000). Even if Plaintiffs' pro se complaint were to be construed to raise a claim under the Rehabilitation Act of 1973, Plaintiffs' disability claims would fail under summary judgment review. Plaintiff Klaiber has presented documentation concerning her condition, "degenerative disc disease," which her doctor has stated prevents her from working on automation for more than 30 minutes at a time. Plaintiff Miller has "independent edema" which is aggravated by prolonged standing. See Exhs. I, J, K to Plaintiffs' Memorandum. Under the Rehabilitation Act, a person with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities. 29 C.F.R. § 1614.203; Sutton v. United Airlines, Inc., 527 U.S. 471 (1999). Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, and working. 29 C.F.R. § 1630.2(i). Neither Plaintiff has presented competent evidence of such a condition. Plaintiff Klaiber cannot work "on automation" for more than 30 minutes, but she has failed to show any major life activity in which she is significantly limited. Plaintiff Miller should avoid "prolonged standing," but she has not shown a significant limitation on the major life activity of walking or standing. Cf. Kelly v. Drexel University, 94 F.3d 102, 107 (3rd Cir. 1996) (impairments that result in mild limitations are not disabilities; limping and difficulty in climbing stairs is not substantially limiting); Banks v. Hit or Miss, Inc., 996 F. Supp. 802, 807 (N.D. Ill. 1998) (limitations to walking only short distances and to avoid standing for extended periods of time do not constitute a disability). Neither Plaintiff has made a colorable showing of a "disability" as that term is defined under the Rehabilitation Act. Clearly, each Plaintiff has presented evidence of a medical condition that carries with it some limitations, but not limitations that significantly impact their ability to carry out specific major life activities. Defendants' summary judgment motion should be granted as to Plaintiffs' ADA/Rehabilitation Act claims.
29 C.F.R. § 1630.20(J)(1) provides that an individual is substantially limited when she is "[u]nable to perform a major life activity that the average person in the general population can perform" or is "[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity."
Plaintiffs' central claims, as best can be discerned from their pro se pleadings, are presented under the Family Medical Leave Act. They allege, inter alia, that their supervisors failed to designate FMLA leave to which they were entitled on specific dates, they were threatened with termination if they did not sign a "light-duty" request, and they were disciplined for absences that should have been protected under the FMLA. Defendants originally moved to dismiss this claim because Plaintiffs had failed to allege sufficient facts to show that they were "eligible" employees for purposes of the FMLA. That pleading failure was corrected by the complaint amendment permitted, and made, in open court at the initial pretrial conference. See Pleading no. 34, Initial Pretrial Order. At this end-stage of the litigation, Defendants continue to press their Rule 12(b)(6) motion, contending that Plaintiffs have failed to state claims under the FMLA.
Under the FMLA, an eligible employee of a covered employer is allowed up to twelve weeks of unpaid leave for medical reasons attributable to the employee's "serious health condition," for the birth or adoption of a child, or for reasons relating to the care of a parent, spouse, or child suffering from a serious health condition. 29 U.S.C. § 2612(a)(1). The "serious health condition" (if suffered by the employee) must render the employee unable to work. The FMLA defines a serious health condition as "an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a health care provider." 29 U.S.C. § 2611(11) A serious health condition involving continuing treatment by a health care provider includes a period of incapacity ( i.e., inability to work, or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves treatment two or more times by a health care provider. 29 C.F.R. § 825.114(a)(2)(i) and (a)(2)(i)(A). An employee alleging a deprivation of the substantive guarantees established by the FMLA must demonstrate by a preponderance of the evidence her entitlement to the dispute leave. The intent of the employer is irrelevant. See King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999).
Defendants' challenge to Plaintiffs' complaint is that they "have failed to allege facts sufficient to meet the definition of a `serious health condition' listed in the statute and the accompanying Department of Labor regulations." Defendants argue that Plaintiffs' complaint "fails to provide any facts establishing that they received continuing treatment from their health care providers, or that a dependent received continuing treatment by a health care provider. Furthermore, their complaint does not allege that their illnesses made them unable to work, or that they received treatment from a health care provider on two or more occasions for their illnesses."
On review of the pro se complaint, it is apparent that Plaintiffs have not plead many of the elements essential to an FMLA claim. They have not alleged an inability to work on specific occasions as a result of their "serious chronic conditions" or those of family members. Plaintiff Klaiber appears to contend that she has "a chronic condition and . . . as a single mother [has] to take FMLA protected leave to care for [her] family member who also has a life threatening condition." She mentions a daughter who is seeing a psychiatrist for depression. Plaintiff Miller states that she has independent edema and her son has "a permanent illness." She says she was at one time terminated in 1997 for absences that should have been covered by FMLA. Plaintiffs also include an opening allegation that "the United States Postal Service, through the supervisory staff, used and abused their authority in taking retaliatory action against me for illnesses and disabilities protected under the [FMLA]." Complaint at ¶ 1.
Because this is a pro se litigation, the Court must construe Plaintiffs' pleadings liberally. Nonetheless, both the Court and the Defendants are entitled to be informed of the actual parameters of the Plaintiffs' claim. In response to Defendants' dispositive motion, Plaintiffs first argue that, in responding to Defendants' interrogatories, they have provided Defendants with "facts and medical documentation to prove that we both have serious chronic health conditions, we receive continuing treatment by a health care provider, we have received treatment from a health care provider on more than one occasion, and, due to our illness, there are times when we are incapacitated." Plaintiffs' Mem. at 8. Plaintiffs go on to say, however, that "Plaintiffs' FMLA claim is not based on whether or not we have serious health condition[s] or our dependents have serious health conditions. In our complaint we alleged that the defendants Rinaldi and Thompson interfered with our rights under the FMLA and retaliated against us because we asserted our rights under the FMLA, and in our complaint we alleged violations of the FMLA." Id. at 8-9. This description by Plaintiffs of their FMLA claims is largely indecipherable. It is unclear whether Plaintiffs attempt retaliation claims or claims of substantive violation of the FMLA leave rights. The Court cannot unravel the tangled arguments that Plaintiffs have included in their Memorandum.
This case cannot proceed further without a more definite statement of the FMLA claim of each Plaintiff. Accordingly, by separate order, the Court will order each Plaintiff, within 15 days of the order, to clearly state the facts underlying her FMLA claim. Plaintiffs should not "lump" together their claims in any fashion; instead, each Plaintiff shall state the facts peculiar to that Plaintiff which are alleged to give rise to an FMLA claim. Within 30 days after the filing of such statement, Defendants shall file a supplemental summary judgment memorandum in which they brief all grounds for entry of judgment in their behalf at this time on Plaintiffs' FMLA claims. Plaintiffs may respond within 30 days thereafter, and Defendants may have the final reply within 10 days. This expanded schedule for consideration of Defendants' dispositive motion on Plaintiffs' FMLA claim renders the current trial schedule untenable, as the case cannot be made ready for trial by April 2. Accordingly, the separate order will also postpone trial of the action.
CONCLUSION
For reasons set forth above, IT IS RECOMMENDED that Plaintiffs' claims against all Defendants be dismissed with prejudice insofar as Plaintiffs attempt to pursue claims of alleged violation of their rights under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act or the Rehabilitation Act of 1973, the Inspector General Act of 1978, and the Privacy Act of 1974. IT IS ALSO RECOMMENDED that Plaintiffs' motion for entry of default [Pleading no. 35] be denied and that Plaintiffs' request for an interim injunction [Pleading no. 41] be denied. IT IS ORDERED that, as a sanction for Defendants' tardy discovery responses. Defendants shall comply with all future time limitations in this case without request for any extensions of time. By separate Order, the Court directs further development of the issues regarding Plaintiffs' FMLA claims, and orders the continuance of the trial set for April 2, 2001.