United States District Court, D. Maryland
Richard D. Bennett United States District Judge
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.
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.
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).
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).
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).
September 8, 2017, over one year later, Plaintiff brought
this instant suit 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).
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).
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).
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)).
Rule 12(b)(1) Motion to Dismiss
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). ...