Johns v. Marsh & McLennan Agency LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

JOYFUL L. JOHNS, )

)

Plaintiff, )

)

v. ) Case No. 3:19-cv-687-ALB-SRW

)

MARSH & MCLENNAN AGENCY )

LLC, )

)

Defendant. )

)

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on Defendant Marsh & McLennan

Agency LLC’s (“MMA”) Motion for Partial Judgment on the Pleadings. (Doc. 11).

Plaintiff Joyful Johns filed a response in opposition to the motion, doc. 12, to which

Defendant replied. (Doc. 13). Upon consideration, the motion is due to be granted.

BACKGROUND

Johns was hired by MMA in 2013 as an account manager. According to her

Complaint, Johns broke her foot in April 2018. On April 23, 2018, Johns requested

an accommodation to work from home while her foot healed. MMA denied her

request, so Johns used personal leave, FMLA leave, and eventually short-term

disability to cover her absences. In July 2018, Johns again requested to work from

home as an accommodation for her foot injury. This time her request was granted.

Johns worked from home until September 25, 2018, when she was terminated by

MMA. Johns filed an EEOC Charge on March 11, 2019, and later filed this action

claiming that MMA failed to provide a reasonable accommodation and retaliated

against her in violation of the Americans with Disability Act (“ADA”).

Defendant moves for judgment on the pleadings only as to Plaintiff’s failure-

to-accommodate claim.

STANDARD OF REVIEW

Judgment on the pleadings under Fed. R. Civ. P. 12(c) is appropriate “when

there are no material facts in dispute and the moving party is entitled to judgment as

a matter of law.” Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1273 (11th Cir.

2008). To decide a Rule 12(c) motion for judgment on the pleadings, courts apply

the same standard applied to Rule 12(b)(6) motions to dismiss. McPhillips v. Blue

Cross Blue Shield of Ala., No. 2:10-cv-615, 2010 WL 3833950, at *1 (M.D. Ala.

Sept. 23, 2010). That is, the Court must accept all facts alleged in the complaint as

true, viewing them in the light most favorable to the non-movant. Douglas Asphalt

Co., 541 F.3d at 1273; Cannon v. City of West Palm Beach, 250 F.3d 1299, 1301

(11th Cir. 2001).

DISCUSSION

To file an action asserting discrimination or retaliation under the ADA, a

plaintiff must first exhaust her administrative remedies. Maynard v. Pneumatic

Prods. Corp., 256 F.3d 1259, 1262 (11th Cir. 2001); Wilkerson v. Grinnell Corp.,

270 F.3d 1314, 1317 (11th Cir. 2001). A plaintiff exhausts her administrative

remedies if she (1) files an EEOC charge within 180 days of the last act of

discrimination and (2) files a civil action within 90 days of receipt of her Notice of

Right to Sue letter from the EEOC. Wilkerson, 270 F.3d at 1317; Gant v. Jefferson

Energy Co-op, 348 F. App’x 433, 434 (11th Cir. 2009); 42 U.S.C. § 2000e-5(f)(1).

“Each discrete discriminatory act starts a new clock for filing charges alleging that

act.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).

Defendant argues that Plaintiff’s failure-to-accommodate claim is time-barred

because Plaintiff filed her March 11, 2019 EEOC Charge more than 180 days after

the denial of her request for an accommodation on April 23, 2018. Plaintiff concedes

that she filed her EEOC Charge more than 180 days after her request was denied.

But Plaintiff claims that her failure-to-accommodate claim is still timely for two

reasons: (1) the 180-day limitations period did not begin to run until July 2018 and

(2) her email correspondence with the EEOC plus the EEOC’s temporary closure

during the 2019 government shutdown warrant equitable tolling of the limitations

period. Plaintiff’s arguments are unavailing.

In her Complaint, Plaintiff bases her failure-to-accommodate claim on the

denial of her request for an accommodation on April 23, 2018. The denial of a

reasonable accommodation for a disability is a discrete act of discrimination. Abram

v. Fulton Cnty. Gov’t, 598 F. App’x 672, 676 (11th Cir. 2015) (holding that each

denial of requested accommodation constituted “discrete act[] of alleged

discrimination” for purposes of limitations period); Dick v. Dickinson State Univ.,

826 F.3d 1054, 1059 (8th Cir. 2016) (same); see also Elmenayer v. ABF Freight

Sys., Inc., 318 F.3d 130, 134-45 (2d Cir. 2003) (holding that employer’s denial of an

employee’s proposed accommodation for religious practices is a “discrete act” of

discrimination, not a continuing violation). Thus, the 180-day limitations period for

Plaintiff’s failure-to-accommodate claim began running when Defendant denied her

accommodation request, making her deadline to file an EEOC charge October 20,

2018.

It is undisputed that Plaintiff filed her EEOC Charge on March 11, 2019,

nearly one year after her accommodation request was denied. But in an attempt to

circumvent this fatal fact, Plaintiff claims in her response that Defendant’s denial of

her accommodation request was part of a continuing violation. Specifically, she

claims that her “failure to accommodate claim was ongoing until July of 2018” when

she was provided an accommodation. (Doc. 12 at 3). This argument fails.

First, Plaintiff does not allege a continuing violation in her Complaint. But

even if she had, a continuing violation theory is not applicable to discrete

discriminatory acts like the denial of a reasonable accommodation. See Morgan, 536

U.S. at 114; Abram, 598 F. App’x at 676 (finding continuing violation theory

inapplicable where plaintiff did not allege a hostile work environment claim and

instead based her claims on the defendant’s failure to grant her accommodations

requests, each of which were discrete discriminatory acts); Ramsey v. Greenbush

Logistics, Inc., No. 3:17-cv-1167, 2017 WL 6492608, at *3 (N.D. Ala. Dec. 19,

2017) (dismissing failure-to-accommodate claim as untimely and rejecting

plaintiff’s continuing violation theory that his EEOC charge was timely since he was

still subject to his employer’s failure to accommodate his disability when he filed

the charge). Rather, “[e]ach alleged denial of a reasonable accommodation is a

discrete act ‘that must be challenged as [a] separate statutory discrimination . . .

claim[].’” Salser v. Clarke Cnty. Sch., No. 3:10-cv-17, 2011 WL 56064, at *3 (M.D.

Ga. Jan. 5, 2011) (quoting McCann v. Tillman, 526 F.3d 1370, 1379 (11th Cir.

2008)).

Here, Plaintiff alleges a single discrete act—the denial of her request for an

accommodation in April 2018. “An employer’s refusal to undo a discriminatory

decision is not a fresh act of discrimination,” and Plaintiff does not allege that she

made any new or additional requests for an accommodation between April and July.

Martin v. Sw. Va. Gas Co., 135 F.3d 307, 310 (4th Cir. 1998); see Long v. Howard

Univ., 512 F. Supp. 2d 1, 17 (D.D.C. 2007) (stating that requests to reconsider a

previously denied request for an accommodation do not “revive a time-barred

claim”). Plaintiff cites no authority and offers no argument supporting the

application of a continuing violation theory in this circumstance where her employer

granted the request for accommodation that it had previously denied.

Because Plaintiff has not alleged a continuing violation, Plaintiff’s failure-to-

accommodate claim is untimely unless she can show that she is entitled to equitable

tolling of the limitations period. Equitable tolling is appropriate when a plaintiff’s

untimely filing is due to extraordinary circumstances “beyond her control and

unavoidable even with diligence.” Horsley v. Univ. of Ala., 564 F. App’x 1006,

1008-09 (11th Cir. 2014). Equitable tolling requires more than ignorance of the law

or slow administrative proceedings—it “typically requires some affirmative

misconduct, such as fraud, misinformation, or deliberate concealment.” Brown v.

Montgomery Surgical Ctr., No. 2:12-cv-553, 2013 WL 1163427, at *11 (M.D. Ala.

Mar. 20, 2013). “And where the complaint's allegations facially demonstrate that the

claim is untimely and omit allegations to support equitable tolling, the plaintiff

generally cannot survive a motion [for judgment on the pleadings] on tolling

grounds.” Id.

Plaintiff is not entitled to equitable tolling for two reasons.

First, Plaintiff does not allege any facts in the Complaint to support equitable

tolling, though her failure-to-accommodate claim is plainly untimely on the face of

the Complaint. See Horsley, 564 F. App’x at 1009 (declining to apply equitable

tolling where plaintiff “asserted no facts in her complaint indicating that her

untimely filing was the result of circumstances beyond her control and unavoidable

even with diligence”).

Second, even were this Court to consider the allegations asserted by Plaintiff

in her response, her allegations fall short of the “extraordinary circumstances”

required by the equitable tolling doctrine. As discussed above, Plaintiff’s deadline

to timely file an EEOC charge based on her failure-to-accommodate claim was

October 20, 2018. So, to the extent Plaintiff blames her delay on the 2019

government shutdown, which occurred after the deadline had passed, that argument

fails. Plaintiff’s only other justification for her delay is that she contacted the EEOC

on September 27, 2018, and could not “control the fact that the earliest appointment

the EEOC could give her was over 100 days after she opened the inquiry . . . .” (Doc.

12 at 3). In other words, Plaintiff blames slow administrative proceedings for her

delay, which is insufficient. See Brown, 2013 WL 1163427, at *11-12 (declining to

apply equitable tolling where plaintiff claimed her delay in filing an EEOC charge

was the “fault of a government bureaucracy” because she contacted the EEOC to

report the discriminatory act but did not receive a draft charge from the EEOC until

after the 180-day deadline had passed).

Though equitable tolling may be appropriate where the EEOC misleads an

employee about the nature of her rights, Plaintiff has alleged no such deception by

the EEOC in this case, nor has she alleged that the EEOC otherwise engaged in any

affirmative misconduct. See Jones v. Wynne, 266 F. App’x 903, 906 (11th Cir. 2008).

In fact, the email correspondence submitted by Plaintiff shows the exact opposite—

that the EEOC informed her several times that answering questions as part of the

intake process was “not the same as filing a charge of discrimination,” which is “a

signed statement asserting that an organization engaged in employment

discrimination.” (Docs. 12-1 & 12-4).

Because Plaintiff has failed to allege any extraordinary circumstances that

warrant equitable tolling of the 180-day limitations period, her failure-to-

accommodate claim is time-barred. Plaintiff’s March 11, 2019 EEOC Charge was

simply too little, too late.

CONCLUSION

Based on the foregoing reasons, Defendant’s Motion for Partial Judgment on

the Pleadings is GRANTED. Plaintiff’s failure-to-accommodate claim (Count I) is

DISMISSED WITH PREJUDICE.

This case is not closed. The other counts in the Complaint remain pending.

DONE and ORDERED this 31st day of March 2020.

/s/ Andrew L. Brasher

ANDREW L. BRASHER

UNITED STATES DISTRICT JUDGE