Simmons v. Roth

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

SHELLI RENIA SIMMONS, )

)

Plaintiff, )

)

v. ) Case No. CIV-21-740-G

)

FRANK KENDALL, )

Secretary, U.S. Department of )

the Air Force, in his official capacity, )

)

Defendant. )

ORDER

Now before the Court is a Motion to Dismiss (Doc. No. 9) filed by Defendant Frank

Kendall, Secretary of the United States Air Force. Plaintiff Shelli Renia Simmons has

responded (Doc. No. 12), and Defendant has replied (Doc. No. 13).

I. Background

Plaintiff was employed by Defendant as a Contract Specialist for the Instrument

Contracting Section of Tinker Air Force Base. Compl. (Doc. No. 1) ¶ 9. Plaintiff states

that she is “fully competent and more than able to successfully perform her job tasks and

duties” but that she “suffers from various mental health disabilities, some of which affect

her test taking abilities.” Id. ¶ 10. During the 2018 and 2019 calendar years, Plaintiff took

the Contracting Officers Test (“COT”), understanding the test to be a requirement of

promotion. Id. ¶ 11. Plaintiff alleges that due to her “disabilities interfering with

concentration and focus,” she did not pass the COT. Id.

Plaintiff represents that she sought a “reasonable accommodation in the form of

more time to take the test on multiple occasions” and that each of her requests was denied.

Id. ¶ 12. Specifically, the Complaint alleges that following a November 18, 2018 verbal

request for accommodation to Division Chief Tommy Nicholson, Nicholson stated that “he

did not know how Plaintiff made it through college if she could not pass a test” and that he

would be “moving her to a different area where he feels she will be better off.” Id. ¶ 13.

On December 19, 2018, Plaintiff met with Mr. Baumann1 to request an accommodation for

the COT exam. Id. ¶ 14. Mr. Baumann told Plaintiff that he would check into the

possibility of an accommodation and get back with her. Id. Plaintiff then made a written

request for accommodation on March 29, 2019. Id. ¶ 15. Shortly thereafter, Plaintiff

learned that her request for accommodation and her mental disability were publicly

discussed at a staff meeting on April 1, 2019. Id. Then, on April 29, 2019, Plaintiff was

told by her third-level supervisor that even if she did find a way to pass the test, she could

not obtain the requisite certification for promotion without going through him. Id. ¶ 17.

Plaintiff states that she still has not received the requested accommodation. See id. ¶ 18.

On July 23, 2021, Plaintiff filed her Complaint, alleging claims of discrimination

and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. §§ 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq.

Defendant now moves to dismiss all of Plaintiff’s claims pursuant to Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. See Def.’s

Mot. (Doc. No. 9) at 7.2 In her Response, Plaintiff states that she voluntarily dismisses her

1 Plaintiff does not provide Mr. Baumann’s first name and describes Mr. Baumann’s

position title as “PK-SES.” Compl. ¶ 14.

2 Defendant moves in the alternative for summary judgment under Federal Rule of Civil

Procedure 56, attaching certain items of evidence as exhibits to his Motion. Because

Title VII claims, conceding that she did not administratively exhaust these claims as

required by Title VII. See Pl.’s Resp. (Doc. No. 12) at 5. Plaintiff also agrees to strike her

request for punitive damages. See id.

Consequently, as relates to the instant Motion, Plaintiff’s claims for discrimination

by failure to accommodate Plaintiff’s disability and retaliation in violation of the

Rehabilitation Act remain pending.

II. Standard of Decision

In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true

all well-pleaded factual allegations in the complaint and view[s] them in the light most

favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,

1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted

when it lacks factual allegations sufficient “to raise a right to relief above the speculative

level on the assumption that all the allegations in the complaint are true (even if doubtful

in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation

omitted); see also Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (“[T]o

withstand a motion to dismiss, a complaint must contain enough allegations of fact to state

a claim to relief that is plausible on its face.” (internal quotation marks omitted)). Bare

legal conclusions in a complaint are not entitled to the assumption of truth; “they must be

Plaintiff’s claims are subject to dismissal under Rule 12(b)(6), the Court declines to

consider any materials beyond the pleadings. See Brokers’ Choice of Am., Inc. v. NBC

Universal, Inc., 861 F.3d 1081, 1103 (10th Cir. 2017).

supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009).

III. The Motion to Dismiss

A. Failure to Accommodate in Violation of Section 501 of the

Rehabilitation Act

Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, prohibits disability

discrimination by the federal government against federal employees. In analyzing a claim

brought under § 501, the Court applies the standards from the Americans with Disabilities

Act (“ADA”), which prohibits discrimination “against a qualified individual on the basis

of disability.” 42 U.S.C. § 12112(a); see Wilkerson v. Shinseki, 606 F.3d 1256, 1262 (10th

Cir. 2010) (“We apply the standards from the [ADA] in analyzing a Rehabilitation Act

claim.”); 29 U.S.C. § 791(f). Discrimination includes “not making reasonable

accommodations to the known physical or mental limitations of an otherwise qualified

individual with a disability.” 42 U.S.C. § 12112(b)(5)(A); see also Exby-Stolley v. Bd. of

Cnty. Comm’rs, 979 F.3d 784, 794 (10th Cir. 2020) (“The ADA establishes a cause of

action for disabled employees whose employers fail to reasonably accommodate them.”

(emphasis and internal quotation marks omitted)). A reasonable accommodation may

include “appropriate adjustment or modifications of examinations.” 42 U.S.C. §

12111(9)(B).

To state a claim for failure to accommodate under the Rehabilitation Act, Plaintiff

must plausibly allege that she “(1) is disabled; (2) is otherwise qualified; and (3) requested

a plausibly reasonable accommodation.” Brown v. Austin, 13 F.4th 1079, 1084-85 (10th

Cir. 2021) (internal quotation marks omitted). Disability is defined as “(A) a physical or

mental impairment that substantially limits one or more of the major life activities of such

individual; (B) a record of such an impairment; or (C) being regarded as having such an

impairment.” Doyal v. Okla. Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000); see 42 U.S.C.

§ 12102(1)(A)-(C). “[C]onsideration of subsection (A) of the definition proceeds in three

steps.” Bragdon v. Abbott, 524 U.S. 624, 631 (1998). First, courts consider whether the

plaintiff has a physical or mental impairment. See id. Second, they “identify the life

activity” upon which the plaintiff relies and “determine whether it constitutes a major life

activity under the [Act].” Id. Third, they ask “whether the impairment substantially limited

the major life activity.” Id. “Whether a plaintiff has met the first two requirements [is a]

question[] of law for the court.” Sanchez v. Vilsack, 695 F.3d 1174, 1178 (10th Cir. 2012)

(internal quotation marks omitted).

Plaintiff alleges that she “suffers from various mental health disabilities, some of

which affect her test taking abilities.” Compl. ¶ 10. Defendant argues that this allegation

is insufficient to plausibly allege a disability under the Federal Rehabilitation Act due to

Plaintiff’s failure to identify her impairment. See Def.’s Mot. at 12-13. The Court agrees.

While Plaintiff “is not required to set forth a prima facie case for each element” of her

cause of action, Plaintiff must at least identify a physical or mental impairment to plausibly

allege that she suffers from a disability. Khalik v. United Airlines, 671 F.3d 1188, 1193

(10th Cir. 2012); see also Davenport v. Sugar Mountain Retreat, Inc., No. 09-CV-0535,

2009 WL 3415240, at *2 (N.D. Okla. Oct. 16, 2009) (dismissing the plaintiff’s claims

under the ADA and Fair Housing Act due to the plaintiff’s failure to identify his disabilities,

noting this failure rendered it impossible for the court to determine if the plaintiff was

indeed disabled under the relevant statutes); Herbert v. Wichita State Univ. Tech, No. 19-

1106, 2019 WL 5291099, at *2 (D. Kan. Oct. 18, 2019) (dismissing the plaintiff’s pleading

due in part to the plaintiff’s failure to identify his disability); see also 29 C.F.R. § 1630.2(h).

Because Plaintiff fails to plausibly allege that she has a physical or mental impairment, she

cannot establish that she “is disabled” within the meaning of the Rehabilitation Act.

Brown, 13 F.4th at 1084. Defendant’s request to dismiss Plaintiff’s failure-to-

accommodate claim pursuant to Rule 12(b)(6) is granted.3

B. Retaliation in Violation of Section 501 of the Rehabilitation Act

To establish a prima facie case of retaliation under the Rehabilitation Act, Plaintiff

must allege: “that (1) he engaged in a protected activity; (2) he was subjected to an adverse

employment action subsequent to or contemporaneous with the protected activity; and (3)

there was a causal connection between the protected activity and the adverse employment

action.” Foster v. Mountain Coal Co., 830 F.3d 1178, 1187 (10th Cir. 2016) (alteration

and internal quotation marks omitted). “[A] request for accommodation can constitute

protected activity supporting a retaliation claim.” Id. at 1188 (citing cases). Such a request

“is adequate” to constitute protected activity “if it is sufficiently direct and specific,”

3 Defendant also seeks to dismiss any claims for disparate treatment and hostile work

environment in violation of the Rehabilitation Act that Plaintiff may be attempting to raise

in her Complaint. See Def.’s Mot. at 15-18. Upon review of the Complaint and Plaintiff’s

Response, which only addresses Defendant’s argument regarding Plaintiff’s failure-to-

accommodate claim, it does not appear that Plaintiff brings claims for disparate treatment

or hostile work environment. Consequently, Defendant’s request to dismiss such claims

shall be denied as moot.

“mak[ing] clear that the employee wants assistance for his or her disability.” Id. (internal

quotation marks omitted).

Defendant argues that Plaintiff’s allegations regarding her requests for

accommodation are insufficient to establish that Plaintiff adequately requested an

accommodation in such a way as to plausibly allege that she engaged in protected activity.

See Def.’s Mot. at 19. The Court disagrees. Plaintiff’s allegations that she made two verbal

and one written request for extended time to take the examination are sufficient, at this

early stage of litigation, to plausibly allege that Plaintiff’s requests for accommodation

were adequate and sufficient to constitute protected activity. See Compl. ¶¶ 12-15.

Defendant next argues that Plaintiff has not plausibly alleged that she suffered an

adverse employment action. See Def.’s Mot. at 19-20; Def.’s Reply (Doc. No. 13) at 2-3.

“To establish an adverse action, ‘a plaintiff must show that a reasonable employee would

have found the challenged action materially adverse, which in this context means it well

might have dissuaded a reasonable worker from making or supporting a charge of

discrimination.’” Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1133

(10th Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68

(2006)). The Tenth Circuit instructs that the phrase “adverse employment action” is to be

liberally construed and is not limited to “monetary losses in the form of wages or benefits.”

Id. (internal quotation marks omitted). “Acts that carry ‘a significant risk of humiliation,

damage to reputation, and a concomitant harm to future employment prospects’ may be

considered adverse actions, although ‘a mere inconvenience or an alteration of job

responsibilities will not suffice.’” Id. (quoting Annett v. Univ. of Kan., 371 F.3d 1233,

1239 (10th Cir. 2004)). “[R]eassignment of job duties is not automatically actionable.”

Burlington N. & Santa Fe Ry. Co., 548 U.S. at 71.4

In her Response, Plaintiff points to two allegedly retaliatory acts as constituting

adverse employment actions within the meaning of the Rehabilitation Act. First, Plaintiff

points to “the threat of reassignment.” Pl.’s Resp. at 4. Presumably, the threat Plaintiff is

referring to is Mr. Nicholson’s statement that he “will be moving her to a different area

where he feels she will be better off.” Compl. ¶ 13. Plaintiff does not, however, allege

that this “threat of reassignment” was ever actualized or that the referenced reassignment

would be adverse in the context of Plaintiff’s employment. In the absence of facts

establishing that Mr. Nicholson’s statement would have, in the context of the circumstances

of Plaintiff’s case, dissuaded a reasonable worker from making or supporting a charge of

discrimination, the Court cannot conclude that Plaintiff has sufficiently alleged an adverse

employment action. See Lopez v. City of Albuquerque, No. CIV-08-806, 2010 WL

11590614, at *15 (D.N.M. July 7, 2010) (holding in the context of a Title VII retaliation

claim that “a jury could not reasonably conclude that the threatened, but largely

unactualized reassignment of job responsibilities would have been materially averse to a

reasonable employee” (footnote omitted)).

4 “The standard for retaliation claims under the Rehabilitation Act is the same as the

standard for retaliation claims under the [ADA].” Reinhardt, 595 F.3d at 1131. The Tenth

Circuit has adopted Burlington N. & Santa Fe Ry. Co.’s Title VII retaliation standard in

the ADA context because the retaliation provision in both statutes contains essentially the

same language. See Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 n.4 (10th Cir.

2007).

Second, Plaintiff points to the discussion of her mental disability and request for

accommodation at a staff meeting. See Pl.’s Resp. at 4. But Plaintiff never identifies who

discussed her mental disability and request for accommodation or what was said about

Plaintiff at this meeting. Plaintiff also does not expressly allege or argue that the discussion

at the staff meeting carried with it a significant risk of humiliation, damage to reputation,

or a concomitant harm to future employment prospects. Reinhardt, 595 F.3d at 1133.

Absent such detail, Plaintiff has not plausibly alleged that this discussion qualifies as an

adverse employment action.

Accordingly, the Court concludes that Plaintiff has failed to plausibly allege that

any retaliatory actions by Defendant qualify as an adverse employment action. Plaintiff’s

retaliation claim under the Rehabilitation Act is therefore dismissed.

IV. Plaintiff’s Request for Leave to Amend

Plaintiff requests leave to amend her Complaint in order to more specifically plead

her disability, her disability-related claim, and her retaliation claim. See Pl.’s Resp. at 4-

5. Defendant opposes Plaintiff’s request, arguing that Plaintiff must seek leave to amend

her Complaint through a written motion and that Plaintiff does not indicate how she would

cure the defects in her Complaint. See Def.’s Reply at 4-5.

The Court’s local rules prescribe that “[a] party moving under Fed. R. Civ. P.

15(a)(2) to amend a pleading . . . must attach the proposed pleading as an exhibit to the

motion.” LCvR 15.1. Accordingly, Plaintiff’s request for leave to amend is denied without

prejudice to the submission of a motion that complies with Local Civil Rule 15.1.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss (Doc. No. 9) is

GRANTED IN PART AND DENIED IN PART as follows:

1) Plaintiffs Title VII claims and request for punitive damages are

WITHDRAWN;

2) Plaintiff’s claims for failure to accommodate and retaliation in violation of the

Rehabilitation Act are DISMISSED without prejudice pursuant to Federal Rule

of Civil Procedure 12(b)(6);

3) The Court DENIES AS MOOT Defendant’s request for dismissal of any

disparate-treatment or hostile work environment claims; and

4) Plaintiffs request for leave to amend is DENIED without prejudice. Any motion

for leave to amend shall comply with Local Civil Rule 15.1 and shall be filed

within 10 days of the date of this Order. If Plaintiff fails to move to amend

within the time prescribed, judgment will be entered in Defendant’s favor.

IT IS SO ORDERED this 30th day of September, 2022.

(Barba B. Kadota

United States District Judge

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