Morrison v. Brennan

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

THOMAS E. MORRISON,

Plaintiff,

v. Case No. 8:17-cv-2850-T-60AEP

MEGAN J. BRENNAN, et al.,

Defendants.

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ORDER GRANTING “DEFENDANTS’ MOTION TO DISMISS” AND

“DEFENDANT SEARLE’S MOTION TO DISMISS OR

MOTION FOR MORE DEFINITE STATEMENT”

This matter is before the Court on “Defendants’ Motion to Dismiss”1 (Doc. # 70)

and “Defendant Searle’s Motion to Dismiss or Motion for More Definite Statement.”

(Doc. # 73). Plaintiff has not filed a response. After reviewing the motions, court file,

and the record, the Court finds as follows:

Procedural History

Plaintiff, an employee of the United States Postal Service, filed his initial pro se

complaint on November 27, 2017. On March 30, 2018, Defendants moved to dismiss

Plaintiff’s complaint based on his failure to comply with service requirements and

because postal service employees – as they are not agency heads – were improperly

joined as defendants. (Doc. # 28). Judge Kovachevich then granted Plaintiff’s “Motion

to Amend Complaint.” (Doc. ## 38, 42). In her order, Judge Kovachevich reminded

1 The Defendants moving for relief include the Postmaster General of the United States Postal Service

and several current and retired postal service employees.

Plaintiff to plead a “short and plain statement of [his] claim” through “simple, concise,

and direct allegations,” in accordance with Federal Rule of Civil Procedure 8(a)(2) and

(d)(1). The Court also provided Plaintiff with guidance on where to find resources for

pro se litigants.

On February 26, 2019, Plaintiff filed his amended complaint, (Doc. # 46), which

is the subject of the instant motions.2 The complaint was submitted using a pro se

“Complaint for Employment Discrimination” form, and Plaintiff appears to bring

claims for wrongful termination, failure to accommodate disability, retaliation, and

harassment for incidents that occurred between June 1, 2015 – July 26, 2016.

Legal Standard

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short

and plain statement of the claim showing the [plaintiff] is entitled to relief.” Fed. R.

Civ. P. 8(a). “Although Rule 8(a) does not require ‘detailed factual allegations,’ it does

require ‘more than labels and conclusions’; a ‘formulaic recitation of the cause of action

will not do.’” Young v. Lexington Ins. Co., No. 18-62468, 2018 WL 7572240, at *1 (S.D.

Fla. Dec. 6, 2018), report and recommendation adopted, No. 18-62468-CIV, 2019 WL

1112274 (S.D. Fla. Jan. 9, 2019) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544

(2007)). In order to survive a motion to dismiss, factual allegations must be sufficient

“to state a claim for relief that is plausible on its face.” Twombly, 550 U.S. at 555. A

2 The Court accepts as true the facts alleged in Plaintiff’s complaint for purposes of ruling on the

pending motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“[W]hen ruling on a

defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the

complaint.”). The Court is not required to accept as true any legal conclusions couched as factual

allegations. See Papasan v. Allain, 478 U.S. 265, 286 (1986).

claim is facially plausible when the pleaded facts allow the court “to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 129 S. Ct. 1937, 1940, (2009).

When deciding a Rule 12(b)(6) motion, review is generally limited to the four

corners of the complaint. Rickman v. Precisionaire, Inc., 902 F. Supp. 232, 233 (M.D.

Fla. 1995). Furthermore, when reviewing a complaint for facial sufficiency, a court

“must accept [a] [p]laintiff’s well pleaded facts as true, and construe the [c]omplaint in

the light most favorable to the [p]laintiff. Id. (citing Scheuer v. Rhodes, 416 U.S. 232,

236 (1974)).

As Plaintiff in this case is proceeding pro se, the Court more liberally construes

the pleadings. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2018). However, a pro

se plaintiff must still conform with procedural rules and the Court does not have

“license to act as de facto counsel” on behalf of a pro se plaintiff. United States v.

Padgett, 917 F.3d 1312, 1317 (11th Cir. 2019).

Analysis

Defendants argue that: (1) postal service employees sued individually must be

dismissed with prejudice because the Court lacks subject matter jurisdiction; (2)

Plaintiff failed to allege he exhausted the requisite administrative remedies; and (3)

Plaintiff failed to allege a plausible claim of discrimination, retaliation, or harassment.

I. Dismissal of postal service employees

Claims of discrimination made under Title VII and the Rehabilitation Act may

only be brought against the head of the department, agency, or unit against which

discrimination is alleged. Farrell v. U.S. Dep't of Justice, 910 F. Supp. 615, 618 (M.D.

Fla. 1995); see also Glover v. Donahoe, 626 Fed.Appx. 926, 931 (11th Cir. 2015) (finding

the only properly named defendant for plaintiff’s Title VII claims is the postmaster

general, in his official capacity).

In addition to suing the Postmaster General of the United States Postal Service,

Plaintiff also sues several current and retired Postal Service employees. The only

proper defendant in this case is the Postmaster General, in his official capacity.

Therefore, this case is dismissed with prejudice as to Defendants Eric D. Chavez,

Timothy L. Dose, Lisa I. Landes, Robert E. Ocasio, Erich H. Henegar, Michael E.

Kilcomons, Sharon C. Boice, Michael D. Searle, and Judith A. Farrell.

II. Plaintiff’s failure to allege exhaustion of administrative remedies

Under Title VII and the Rehabilitation Act, a federal employee is required to

pursue and exhaust his administrative remedies as a prerequisite to filing suit.3

Duberry v. Postmaster Gen., 652 Fed.Appx. 770, 772 (11th Cir. 2016); see Brady v.

Postmaster Gen., U.S. Postal Serv., 521 F. App'x 914, 916 (11th Cir. 2013), citing

Shiver v. Chertoff, 549 F.3d 1342, 1344 (11th Cir.2008) (“Under Title VII and the

Rehabilitation Act, federal employees are required to initiate administrative review

of any alleged discriminatory or retaliatory conduct with the appropriate agency

within 45 days of the alleged discriminatory act.”). When a plaintiff does not initiate

3 United States Postal Service employees are subject to the administrative requirements of 29 C.F.R. §

1614. Individual complaints of employment discrimination and retaliation prohibited by Title VII and

the Rehabilitation Act shall be processed in accordance with 29 C.F.R. § 1614. See 29 C.F.R. § 1614(a).

(“Complaints alleging retaliation prohibited by these states are considered to be complaints of

discrimination for purposes of this part.”).

EEO contact within 45 days, the claim is generally barred, unless the plaintiff can

show entitlement to equitable tolling, waiver, or estoppel. See Hunter v. U.S. Postal

Serv., 535 F. App'x 869, 872 (11th Cir. 2013) (“And although we apply equitable

tolling rules to the deadlines, we toll them only sparingly, such as when a plaintiff

has actively pursued remedies but filed a defective timely pleading or when she was

induced or tricked by her employer's misconduct into allowing the deadline to pass.”);

see also Basel v. Sec’y of Defense, 507 Fed. App’x 873, 875 (11th Cir. 2013). The

purpose of the exhaustion requirement is “to give the agency the information it needs

to investigate and resolve the dispute between the employee and the employer.”

Brown v. Snow, 440 F.3d 1259, 1263 (11th Cir. 2006). After an agency has made a

final decision, the employee may appeal the agency’s decision to either the federal

district court or the EEOC. Id.

In his complaint, Plaintiff does not allege that the conditions precedent to the

initiation of this employment discrimination lawsuit have been fulfilled. “In this

Circuit, the procedural preconditions to filing a Title VII lawsuit are viewed as

conditions precedent, and compliance with such conditions precedent must be pled

generally by a plaintiff in the complaint.” Shedrick v. Dist. Bd. of Trustees of Miami-

Dade Coll., 941 F. Supp. 2d 1348, 1364 (S.D. Fla. 2013) (citing Jackson v. Seaboard

Coast Line R. Co., 678 F.2d 992, 1009–10 (11th Cir.1982)); see also Myers v. Cent. Fla.

Investments, Inc., 592 F.3d 1201, 1224 (11th Cir. 2010) (“In pleading conditions

precedent, it suffices to allege generally that all conditions precedent have occurred or

been performed.”).

Other than writing “September 1, 2016,” in response to a form question asking

about the timing of when Plaintiff filed a charge with the Equal Employment

Opportunity Commission or Equal Employment Opportunity counselor regarding

alleged discriminatory conduct, Plaintiff does not address the issue of administrative

remedies (Doc. # 46). It is not clear how far the Plaintiff advanced in the

administrative process or what claims he raised when he filed his charge.

Nonetheless, the Plaintiff’s failure to allege that has satisfied all of the conditions

precedent to bringing this lawsuit in district court renders the complaint facially

insufficient.

III. Other deficiencies in Plaintiff’s complaint

Plaintiff’s complaint lacks sufficient facts that would allow the Court to draw a

reasonable inference that the Defendants engaged in discrimination against Plaintiff.

In Plaintiff’s statement of claim, he describes multiple incidents. However, it is

unclear how some of the facts he describes are relevant to his claims. More

importantly, Plaintiff fails to state facts that would plausibly support the claims he

asserts. The Court examines each cause of action individually.

Failure to accommodate disability

In order to survive dismissal, a complaint must allege a prima facie case of

discrimination. McCone v. Pitney Bowes, Inc., 582 F. App'x 798, 801 (11th Cir. 2014)

(citing Edwards v. Prime, 602 F.3d 1276, 1301 (11th Cir. 2010). A complaint “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its fact’” Edwards 602 F.3d at 1301 (citing Iqbal, 129 S. Ct. at 1949).

Although a plaintiff is not held to a high standard for failure to state a claim in a

motion to dismiss, a minimal pleading standard does exist. Jackson v. BellSouth

Telecommunications, 372 F.3d 1250, 1262 (11th Cir. 2004). “Conclusory allegations,

unwarranted deductions of facts or legal conclusions masquerading as facts will not

prevent dismissal.” Id.

The Rehabilitation Act “prohibits federal agencies from discriminating in

employment against otherwise qualified individuals with a disability.” Curry v. Sec'y,

Dep't of Veterans Affairs, 518 F. App'x 957, 963 (11th Cir. 2013). “The elements of a

Rehabilitation Act claim are that: (1) ‘[the] individual has a disability; (2) the

individual is otherwise qualified for the position; and (3) the individual was subjected

to unlawful discrimination as the result of his disability.’” Id. The standards of the

Americans with Disabilities Act apply to the Rehabilitation Act. See 29 U.S.C. §

794(d). Under the ADA, an employer must provide “reasonable accommodations for

known disabilities.” Morisky v. Broward Cty., 80 F.3d 445, 447 (11th Cir. 1996). The

burden of identifying a reasonable accommodation rests with the individual. Stewart

v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997); see

also Puckett v. Bd. of Trustees of First Baptist Church of Gainesville, Inc., 17 F. Supp.

3d 1339, 1343 (N.D. Ga. 2014) (“Because Plaintiff fails to allege that he requested an

accommodation, Plaintiff's ADA discrimination claim based on a failure to

accommodate is due to be dismissed.”).

Plaintiff alleges a mental disability, but he does not allege a connection between

his disability and any alleged discriminatory activity. Additionally, he asserts that

when he was asked to turn in paperwork in 2015 reapplying for an accommodation, he

refused to do so. Because Plaintiff fails to identify specific unlawful treatment he

experienced as a result of his disability or allege that he requested an accommodation,

his claim for failure to accommodate shall be dismissed.

Retaliation

In order to establish a prima facie claim of retaliation, Plaintiff must show that

(1) he engaged in statutorily protected activity; (2) he suffered a materially adverse

action; and (3) there was a causal connection between the protected activity and the

adverse action. Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010). “The

burden of causation can be met by showing close temporal proximity between the

statutorily protected activity and the adverse employment action, but the temporal

relationship must be very close.” Manigault v. Comm'r, Soc. Sec. Admin., 609 F. App'x

982, 985 (11th Cir. 2015).

In Plaintiff’s statement of claim, he describes being subjected to multiple

investigatory interviews and his termination in 2016. However, he does not identify

which incident(s) he believes were retaliatory. Additionally, Plaintiff has failed to

identify what, if any, statutorily protected activity he engaged in which gave rise to

the retaliation. Finally, Plaintiff fails to allege a close temporal relationship between

the statutorily protected activity and adverse employment action.

Harassment

“Disability-based hostile environment claims are analyzed under the Title VII

standards for hostile work environment claims.” Mont-Ros v. City of W. Miami, 111

F.Supp.2d 1338, 1362 (S.D. Fla. 2000). In a hostile work environment case, the

plaintiff must prove “(1) that he is a member of a protected class; (2) that he was

subjected to unwelcome harassment; (3) that the harassment was based on the

protected characteristic; (4) that the harassment affected a term or condition of

employment; and (5) that the employer knew or should have known of the harassment

and failed to take prompt, remedial action.” Id. Additionally, the harassment must be

severe and pervasive and “have the purpose or effect of unreasonably interfering with

[Plaintiff’s] work performance or creating an intimidating, hostile or offensive

environment.” Id.

In this case, Plaintiff fails to allege what specific actions to support his

harassment claim, whether the harassment he experienced was based on his

disability, or whether any actions made were severe and pervasive. Therefore, Plaintiff

has failed to present sufficient facts that would state a facially plausible claim for

relief.

Conclusion

The only proper defendant in this case is the agency head of the United States

Postal Service, the Postmaster General. Therefore, all Defendants other than the

Postmaster General are dismissed with prejudice.

Plaintiff’s amended complaint is dismissed without prejudice, because Plaintiff

failed to state a plausible claim of discrimination, retaliation, or harassment, which

would enable the court to draw a reasonable inference that the defendant is liable for

the alleged misconduct; and because Plaintiff failed to allege that he satisfied the

conditions precedent to bringing this suit. In addition to resolving the substantive

pleading deficiencies noted above, when filing future complaints, Plaintiff should

comply with the Federal Rules of Civil Procedure, as noted in Judge Kovachevich’s

order (Doc. # 42).

It is therefore ORDERED, ADJUDGED, and DECREED:

1. Defendants’ Motion to Dismiss Plaintiffs Amended Complaint (Doc. # 70) is

hereby GRANTED.

2. Defendant Searle’s “Motion to Dismiss or Motion for More Definite

Statement” (Doc. # 73) is hereby GRANTED.

3. This case is DISMISSED WITH PREJUDICE as to Defendants Eric D.

Chavez, Timothy L. Dose, Lisa I. Landes, Robert E. Ocasio, Erich H.

Henegar, Michael E. Kilcomons, Sharon C. Boice, Michael D. Searle, and

Judith A. Farrell.

4. Plaintiff's Amended Complaint (Doc # 46) is DISMISSED WITHOUT

PREJUDICE. Plaintiff is directed to file an amended complaint on or

before December 5, 2019.

DONE and ORDERED in Chambers, in Tampa, Florida this 5th day of

November, 2019.

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TOM BARBER

UNITED STATES DISTRICT JUDGE

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