United States District Court, D. Maryland
XINIS, UNITED STATES DISTRICT JUDGE
before the Court is Defendant Richard Spencer, Secretary of
the Navy's motion to dismiss the Second Amended Complaint
or, in the alternative, for summary judgment. ECF No. 47.
Plaintiff Jerry Lamb (“Lamb”) opposes the motion.
ECF No. 63. The Court now rules because no hearing is
necessary. See D. Md. Loc. R. 105.6. Upon
consideration of the parties' briefing and the evidence
in the record, the Court grants Defendant's motion.
was employed by the Navy and Naval Air Systems Command
(collectively, “the Agency”) as a Contracts
Specialist from 2009 until his termination on August 17,
2015. ECF No. 41 ¶¶17, 52. Lamb seeks this
Court's review of the Merit Systems Protection
Board's (“MSPB”) affirmance of the
Agency's decision to terminate his employment. From the
outset of his employment with the Agency, Lamb suffered from
back and knee problems, and has struggled with anxiety and
depression. Id. ¶¶18, 19. In addition,
Lamb's desk was placed in an area inaccessible by
elevator and directly under a vent, causing him severe
allergies. Id. ¶¶20, 24. Lamb's back
and knee pain was exacerbated by having to climb the stairs
to his desk each day, and by a desk chair that did not
provide proper support. Id. ¶¶21-23.
January 29, 2015, Lamb met with his then-supervisor and
prepared a request for reasonable accommodation, listing
among suggested options a lateral transfer within or outside
the Agency. AR01520-22. Lamb did not request leave as an
accommodation. Id. The parties disagree as to what
happened next. Lamb maintains that he notified his supervisor
later in February that he would need leave for treatment
related to his back problems, as well as his anxiety and
depression. Id. ¶30. Lamb submits that his
supervisor assented, and Lamb provided medical documentation
for his leave and accommodation request on February 23, 2015.
Id. ¶¶30, 31. The Agency asserts that Lamb
never provided his supervisor with the requested medical
documentation. ECF No. 47-1 at 4. Ultimately, it appears that
Lamb submitted a single page record documenting an emergency
room visit on February 6, 2015. AR00724. The record was otherwise
devoid of information supporting an extended leave request.
parties agree that on March 6, 2015, Lamb was assigned to a
new supervisor, Terrence O'Connell, and on March 9, Lamb
left work to begin his treatment. ECF No. 41 ¶¶32,
33. On March 14, 2015, O'Connell emailed Lamb, expressing
his concern that Lamb did not have enough sick leave to cover
this time away from work. O'Connell also told Lamb to
submit medical documentation supporting the requested leave
when Lamb returned to work on March 26, 2015. Id.
¶35, AR00614. Lamb did not return to work as planned,
however, because he was in a car accident shortly before his
scheduled return. Id. ¶38. Lamb then submitted
a Family Medical Leave Act (“FMLA”) request for
leave taken in March 2015. Id. ¶43, AR01815.
O'Connell once again requested documentation in support
of the requested leave but Lamb never submitted any medical
support to O'Connell. AR00616. Rather, Lamb sent
O'Connell via Federal Express a package of purported
medical records which instead included only three blank
sheets of paper. AR00799-803. No. other evidence
substantiates Lamb having submitted the requested
documentation to O'Connell. O'Connell accordingly
coded Lamb's days as Absent Without Leave
(“AWOL”). ECF No. 41 ¶46.
emailed O'Connell on April 22, 2015, asking permission to
use annual leave time to cover his absence if his FMLA
request was not approved, but O'Connell denied the
request noting that Lamb's division could not spare his
position for the requested length of time. AR1097. In
addition, the operative policy required that any requested
sick leave lasting longer than three days be accompanied by
documentary medical supporting evidence. AR01139. At the end
of April 2015, Lamb did not return to work for health-related
reasons. ECF No. 41 ¶50. On or about May 14, 2015,
O'Connell filed a Proposed Action for Removal against
Lamb based on the coding of Lamb's medical leave from
March to May as AWOL for a total of 43 days. Id.
¶51. On August 17, 2015, Lamb's employment was
terminated. Id. ¶52.
August 20, 2015, Lamb appealed his removal from the Agency
with the MSPB. ECF No. 23-23. The MSPB held a two-day
hearing, at which Lamb argued that his absences were
necessitated by various medical conditions which the Agency
failed to accommodate. Id. at 4. Specifically, Lamb
cited his requests for a lateral transfer, ergonomic seating
and to move his desk away from the vent. Id. at 4,
19. The Agency countered with evidence regarding Lamb's
failure to provide proper leave requests and whether
Lamb's supervisors had received the requests.
Id. at 7-17.
MSPB issued its Initial Decision on February 11, 2016,
finding that the Agency had properly considered Lamb as AWOL
and Lamb had “failed to prove any of his affirmative
defenses . . . by preponderant evidence.” ECF No. 23-23
at 34. Lamb appealed this decision to the Equal Employment
Opportunity Commission Office of Federal Operations
(“EEOC OFO”), which affirmed the MSPB's
decision. ECF No. 23-24.
had earlier filed a separate formal complaint with the EEOC
on July 16, 2015. ECF No. 23-16. This complaint alleged
disability discrimination as well as retaliation for
Lamb's filing of an earlier EEO complaint in
2014. Id. Lamb requested a hearing, and
the complaint was assigned to an EEOC Administrative Judge
who issued a Scheduling and Discovery Order on August 16,
2016. ECF No. 47-2. However, after Lamb failed to appear at a
deposition and a status conference, the Administrative Judge
dismissed the request for a hearing with prejudice, citing
Lamb's “repeated noncompliance.” Id.
The EEOC case was then remanded to the Agency to issue a
Final Agency Decision, pursuant to 29 C.F.R. §
1614.110(b). The Agency thereafter issued its Final Agency
Decision, finding that the Agency did not discriminate or
retaliate against Lamb. ECF No. 47-3. Lamb's appeal on
the Final Agency Decision is still pending. See ECF
No. 47-1 at 11.
27, 2016, Lamb filed this current action in this Court
appealing the MSPB's decision only. ECF No. 1. Lamb more
particularly alleges that the MSPB erred because the Agency
discriminated against him on account of his disability,
failed to accommodate his disability, and retaliated against
him for requesting accommodation, in violation of the
Rehabilitation Act, 29 U.S.C. § 791 (“Rehab
Act”), and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101. ECF No. 41
¶¶53-82. Lamb also alleges that the Agency violated
the FMLA by interfering with his request for FMLA leave and
terminating him in retaliation for attempting to assert his
FMLA rights. Id. ¶¶83-96.
Agency now moves to dismiss under Federal Rule of Civil
Procedure 12(b)(1) the Second Amended Complaint for lack of
subject matter jurisdiction, arguing that the ADA and FMLA do
not provide Lamb with a private right of action and that this
Court lacks jurisdiction over Lamb's FMLA retaliation and
disability accommodation claims because Lamb failed to first
exhaust the claims before the MSPB. On the remaining claims,
the Agency moves to dismiss or alternatively, for summary
judgment in its favor. ECF No. 47.