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Lamb v. Spencer

United States District Court, D. Maryland

December 7, 2018

JERRY GORALSKI LAMB, Plaintiff,
v.
RICHARD V. SPENCER, SECRETARY OF NAVY Defendant.

          MEMORANDUM OPINION

          PAULA XINIS, UNITED STATES DISTRICT JUDGE

         Pending 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.

         I. Factual Background

         Lamb 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.

         On 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.[1] 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.[2] AR00724. The record was otherwise devoid of information supporting an extended leave request. AR01792.

         The 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.

         Lamb 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.

         II. Procedural Background

         On 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.

         The 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.[3] ECF No. 23-24.

         Lamb 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.[4] 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.

         On July 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.

         The 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.

         III. ...


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