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Kelly v. Berryhill

United States District Court, D. Maryland

March 20, 2019



          Richard D. Bennett United States District Judge

         Plaintiff Monique Kelly, filed this Complaint against Defendant Nancy A. Berryhill in her capacity as the Acting Director of the Social Security Administration ("SSA," "Administration," or "Defendant"), asserting a claim for retaliation and harassment based on a prior claim (the "claim") to the U.S. Equal Employment Opportunity Commission ("EEOC"), a claim for harassment based on disability, and a claim for failure to provide reasonable accommodations. (Corrected Compl. ECF No. 2). Currently pending before this Court is Defendant's Motion to Dismiss for Lack of Jurisdiction, for Failure to State a Claim, or Alternatively, For Summary Judgment. (ECF No. 19). The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). The Administration's motion shall be treated as a Motion to Dismiss. For the reasons stated below, that motion, (ECF No. 19), is GRANTED and this case is DISMISSED WITH PREJUDICE.


         When reviewing a Motion to Dismiss, this Court accepts as true the facts alleged in Plaintiffs Complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (2011). This Court must then construe those facts in the light most favorable to Kelly. See Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Plaintiff suffers from urinary track and gynecological complications, and Post-Traumatic Stress Disorder ("PTSD") arising from her combat service in Bosnia. (Corrected Compl. ECF No. 2 at ¶ 9). She began working for the SSA as a claims examiner in 2009. (Id. at ¶¶ 8, 11). Plaintiff alleges that she has been the victim of numerous instances of abuse and harassment. (Id. at ¶ 13). In May 2012, Plaintiff was "made to parade before [her] managers ... to determine if [her] dress was appropriate." (Id. at ¶ 12). This "parade" and other instances of "harassment and failure to provide reasonable accommodations based on her disabilities" prompted her to file her first EEO charge against the Defendant in 2012. (Id. at ¶¶ 7, 13). In April 2016, Plaintiff filed her second EEO charge against the Administration, the exact bases of which remain unclear, but the pleadings indicate that the second charge was advanced on similar grounds. (Id. at ¶¶ 7, 14-20). It appears from the record that both charges remain pending. Ultimately, there was a third charge resulting in the Complaint in this case.

         Plaintiffs Complaint alleges numerous grounds for her claims. Plaintiff continued to work under a supervisory manager, Ava Comer, as to whom she filed he two previous charges. (Id. at ¶ 20). During 2015, she was wrongfully accused of breaching Personal Identifier requirements. (Id. at ¶ 36). Kelly contends that her "voluntary leave transfer program ("VLTP") has been continuously clobbered by the" SSA in that she was removed from an alleged list on a consistent basis and this prevented her from taking a form of leave. (Id. at ¶ 22). In March 2016, Plaintiffs requests to be relocated to another building were denied. (Id. at ¶ 21). In February 2016, Plaintiff received her Performance and Communications System ("PACS") assessments two weeks late. (Id. at ¶¶ 27-28). Plaintiffs PACS gave her a 3.5 rating, despite being promised a 4. (Id. at ¶ 29). In March of 2016, Ms. Comer called Plaintiff a "Easter Killer." (Id. at¶ 35). On August 2, 2016, a fellow co-worker yelled at Plaintiff and Ms. Comer told that co-worker that Plaintiff "was not a team player" and for him to "just do the work" that prompted the situation. In December 2016, Ms. Comer grabbed or slapped Plaintiffs wrist, told her to turn around and speak with her, and "demanded that she present to the entire module a speech on how [Plaintiffs] PTSD worked and how it affected her and the Module." (Id. at ¶ 37). On December 16, 2016, she was not invited to a work luncheon. (Id. at ¶ 50). Plaintiff also claims that on January 11, 2017, Ms. Comer touched Plaintiffs head, slapped her forehead, and said that she was using her healing hands to cure Plaintiff of her ales. (Id. at ¶ 23).

         As for her claim for refusal to grant a reasonable accommodation, Plaintiff advances that the Administration knew of her disability since her hiring. (Id. at ¶ 10). She allegedly requested reasonable accommodation sometime in mid-2012, July 2016, and again in August 2016 through her Employee Assistance Program ("EAP") counselor. (Id. at ¶¶ 38-39). An additional request was made through the online reasonable accommodation portal on November 8, 2016. (Id.). A reasonable accommodation of working from home three-days a week was "provisionally approved," and its temporary nature "causes tremendous stress" to Plaintiff. (Id. at ¶¶ 39-40). Plaintiff contends that she can successfully complete her job duties from home. (Id. at ¶ 41).

         The underlying instant charge against Defendant was filed on November 23, 2016. (ECF No. 1-2). On January 6, 2017, the SSA processed Kelly's complaint and opened an investigation into: 1) "Whether the Agency subjected [Plaintiff] to non-sexual harassment based on disability (mental) and retaliation (prior EEO activity) beginning August 2, 2016 and ongoing with respect to working conditions;" and 2) "Whether the Agency failed to provide [Plaintiff] with a reasonable accommodation based on disability (mental) beginning January 12, 2016 and continuing." (ECF No. 19-7). After its investigation, a report was issued on May 12, 2017. (ECF No. 19-8). On August 7, 2017, a final administration decision was issued which found that the SSA took reasonable action to accommodate Kelly's disability and did not discriminate against her based on disability or past protected conduct. (ECF No. 19-9 at 1, 18, and 20).

         On September 8, 2017, over one year later, Plaintiff brought this instant suit[1] against the SSA alleging retaliation harassment (Counts I); a claim of harassment based on disability (Count II); and denial of reasonable accommodation for a disability pursuant to Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791. (ECF No. 2 at ¶¶ 49-62). Currently pending before, this Court is Defendant's Motion to Dismiss for Lack of Jurisdiction, for Failure to State a Claim, or Alternatively, For Summary Judgment. (ECF No. 19).


         A motion to dismiss for failure to exhaust administrative remedies is governed by Federal Rule of Civil Procedure 12(b)(1), which requires dismissal when the court lacks subject matter jurisdiction. Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D. Md. 2003); Clarke v. DynCorp Intern. LLC, 962 F.Supp.2d 781, 786 (D. Md. 2013). The plaintiff bears the burden to show that subject matter jurisdiction exists. Piney Run Preservation Ass'n v. Cnty. Comm'rs of Carroll Cnty., 523 F.3d 453, 459 (4th Cir. 2008). A motion to dismiss for failure to state a claim is governed by Rule 12(b)(6), which authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The purpose of Rule 12(b)(6) is "to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006); see also Goines v. Valley Cmty. Servs. Bd, 822 F.3d 159, 165-66 (4th Cir. 2016). The sufficiency of a complaint is assessed by reference to the pleading requirements of Rule 8(a)(2), which provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to "state a claim to relief that is plausible on its face." BellAtl, Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009).

         While ruling on motion to dismiss, a court's evaluation is generally limited to allegations contained in the complaint. Goines v. Calley Cmty. Servs. Bd, 822 F.3d 159, 166-67 (4th Cir. 2016). However, courts may also consider documents explicitly incorporated into the complaint by reference. Id. at 166 (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). In addition, a court may "consider a document submitted by the movant that was not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity." Id. (citing Sec'y of State for Defence v. Trimble Nav. Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). A document is "integral" when "its 'very existence, and not the mere information it contains, gives rise to the legal rights asserted.'" Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611 (D. Md. 2011) (citation and emphasis omitted). Considering such documents does not convert a motion to dismiss to one for summary judgment. Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).

         Accordingly, in ruling on Defendant's Motion to Dismiss, this Court will consider Plaintiffs underlying EEOC Charge and its related documents. See Bowie v. Univ. of Maryland Med. Sys., No. ELH-14-03216, 2015 WL 1499465, at *3 n.4 (D. Md. Mar. 31, 2015) ("Courts commonly consider EEOC charges as integral to a plaintiffs Complaint, i.e., effectively a part of the pleading, even if the EEOC charge is not filed with the Complaint." (citations omitted)).


         I. Rule 12(b)(1) Motion to Dismiss

         The Social Security Administration asserts that Kelly's retaliation and disability-based discrimination claims, which presumably are advanced pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-16, and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, should be dismissed because she failed to exhaust her administrative remedies and thus this Court does not have subject matter jurisdiction. (ECF No. 19). As an initial matter, the Rehabilitation Act controls because all of Plaintiff s claims arise from her disabilities. Wonasue v. Univ. of Maryland Alumni Ass'n, 984 F.Supp.2d 480, 491 (D. Md. 2013). ...

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