SHERYL H. LIPMAN, District Judge.
On May 5, 2016, Plaintiff Kareem Jacox filed his pro se Complaint, alleging that his former employer, the Drug Enforcement Administration (the "DEA"), discriminated against him based on his physical and mental disabilities, his gender and in retaliation for engaging in protected activities. (Compl., ECF No. 1.) On September 12, 2016, Defendant Loretta Lynch,
On November 7, 2016, Plaintiff filed a Motion, objecting to the Chief Magistrate Judge's Order striking his Amended Complaint. (ECF No. 17.) Subsequently, on November 23, 2016, the Chief Magistrate Judge submitted a Report and Recommendation ("R&R"), recommending that the Court grant Defendant's Motion to Dismiss for failure to state a claim upon which relief may be granted and for failure to exhaust administration remedies. (ECF No. 18.) Plaintiff filed his objection to the R&R on December 2, 2016. (ECF No. 19.) Defendant has not responded.
Plaintiff was hired by the DEA in 2004 and became a Special Agent in 2005. (Compl. 5, ECF No. 1.) He was called into active duty from the Army Reserves from April 2013 through December 2013, during which time he suffered from serious and chronic health conditions. (
In January 2014, pursuant to the requirements of the Federal Employees Retirement System ("FERS"), Plaintiff began the process of applying for disability from the Social Security Administration ("SSA"). On January 16, 2014, he submitted an SSA form to his direct supervisor, Gabe Bewley, to be completed and returned within seven days. (Compl. 7, ECF No. 1.) On January 21, 2014, Mr. Bewley informed Plaintiff that he had given the letter to his Supervisor, Brian Chambers, who in turn informed Plaintiff that he sent the letter to Michael Stanfill, the Assistant Special Agent in charge of Tennessee. (
Also on February 26, 2014, Plaintiff received two memoranda. The first, sent by Harry Sommers, the Special Agent in Charge, Atlanta Field Division, placed Plaintiff on five days administrative leave for his "recent erratic behavior," including "leaving the office early without supervisory approval, disputing [his] established work hours, accusing [his] supervisors of attempts to determine [his] medical condition and harassing behavior."
On March 11, 2014, Plaintiff alleges that Mr. Bewley informed him that Mr. Chambers wanted Plaintiff to write "a series of Memorandums for medical necessity for work hours," although Plaintiff does not indicate what those memorandums were comprised of or why he was required to write them. (Compl. 21, ECF No. 1.) Then, on March 12, 2014, Mr. Chambers formally referred Plaintiff to the Employee Assistance Program out of concern for his "erratic behavior." (Mem., ECF No. 1-8 at PageID 402-04.) On the same day, Plaintiff contacted the Atlanta Field Division Officer to file another harassment complaint. (Compl. 21, ECF No. 1.) On March 21, 2014, Plaintiff was reassigned to report to Mr. Chambers, which Plaintiff alleges did not follow standard agency procedures. (
On April 11, 2014, Plaintiff requested sick leave beginning April 18, 2014, which Defendant initially denied. (
On September 5, 2014, Plaintiff was issued a memorandum placing him on leave restriction due to his "excessive use of unscheduled leave since July 2014." (
Plaintiff filed this pro se Complaint on May 6, 2016, challenging the decision of the DOJ and asserting that his former employer, the DEA, discriminated against him based on his alleged mental and physical disability, in violation of the Americans with Disabilities Act (the "ADA") and the Rehabilitation Act of 1973, and retaliated against him for engaging in protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII")
Although Plaintiff's filing lacks specific objections,
A magistrate judge may submit to a judge of the court proposed findings of fact and recommendations for dismissal of a complaint for failure to state a claim upon which relief can be granted. 28 U.S.C. § 636(b)(1)(B). "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C);
In reviewing Plaintiff's objections, the Court applies the Federal Rule of Civil Procedure 12(b)(6) standard. Under that standard, a court must determine whether the plaintiff has stated a plausible claim upon which relief may be granted, while "constru[ing] the complaint in the light most favorable to the plaintiff, accept[ing] its allegations as true, and draw[ing] all reasonable inferences in favor of the plaintiff."
In the R&R, the Chief Magistrate Judge concluded that Plaintiff's Complaint fails to state a claim upon which relief may be granted for either disability discrimination or retaliation. (ECF No. 18.) The Court reviews de novo Plaintiff's specific objections to the findings of the R&R. The Court agrees with the Chief Magistrate Judge that Plaintiff has not set forth viable disability discrimination and retaliation claims.
In the R&R, the Chief Magistrate Judge found that Plaintiff fails to state a prima facie claim for disability discrimination because (1) he has not alleged that, even with reasonable accommodations, he would have been able to perform his duties as a Special Agent; and (2) he has not shown how similarly situated non-protected employees were treated differently than him. Of the Chief Magistrate Judge's findings, Plaintiff objects with the necessary specificity only as to the finding that he fails to show that similarly situated nondisabled employees were treated differently. This Court notes that Plaintiff's claim fails as a matter of law based on the finding which was not objected to, but will also address the objection.
To establish a prima facie case for a disability discrimination under the ADA and the Rehabilitation Act based on circumstantial evidence, which is the basis of Plaintiff's allegations, a plaintiff must show: (1) that he is disabled; (2) that he is otherwise qualified for the position, with or without reasonable accommodation; (3) that he suffered an adverse employment action; (4) that the employer knew or had reason to know of his disability; and (5) he was either replaced by a nondisabled person or his position remained open while the employer sought other applications.
In addition to the finding that Plaintiff failed to allege that he could perform his job functions with reasonable accommodations, which was not objected to, the Chief Magistrate Judge also found that Plaintiff failed on the last prong because he did not allege how similarly situated non-protected employees were treated more favorably than him. In his Complaint, he only claims that the DEA "did not show the same interest in other persons with disabilities when they were placed on limited duties and issued medical advisories." (Compl. 18-19, ECF No. 1.) In his objection, Plaintiff argues that he has met this prong by showing (1) that other reassigned employees were not reassigned by Mr. Stanfill, but by the Senior Agent in charge ("SAC") of the Atlanta Field Division; and (2) that no other employees have had their leave denied. (Obj. 4, ECF No. 19.) However, Plaintiff does not address how any of these employees are allegedly similarly situated to him, other than working in the Memphis Field Office, which is a fatal flaw in his allegations. Therefore, Plaintiff still fails to establish the final prong of the prima facie case.
Even if Plaintiff could establish the final prong, as previously noted, he has failed to raise a specific objection to the Chief Magistrate Judge's additional finding that he has not alleged that, even with reasonable accommodations, he would have been able to perform his job as a Special Agent. The Court need not review findings that are not objected to. However, the Court has reviewed this finding for clear error, and finds none.
The Court agrees with the Chief Magistrate Judge that Plaintiff fails to establish a prima facie case for disability discrimination, and, therefore, his claim must be dismissed.
In the R&R, the Chief Magistrate Judge also found that Plaintiff fails to establish a prima facie claim for retaliation under the Rehabilitation Act and the ADA because (1) he fails to show that his February 24, 2014 and March 12, 2014, complaints of harassment constitute protected activity, and (2) he fails to show a causal connection between any adverse action taken against Plaintiff and his complaints. (ECF No. 18 at 15-17.) To establish a claim for retaliation, Plaintiff must show that: (1) he engaged in activity protected under the ADA; (2) the employer knew of that activity; (3) the employer took adverse action against him; and (4) there was a causal connection between the protected activity and the adverse action.
In his objections, Plaintiff specifically objects only to the finding of whether adverse action was taken against him. He claims that, after his complaint, he was reassigned and denied leave. (Obj. 4, ECF No. 19.) Even if the Court considers Plaintiff's harassment complaints as constituting protected activities, Plaintiff provides no support to establish a plausible claim that any adverse action taken against him was caused by his complaints, rather than his own behavior or work hours. The facts alleged by Plaintiff show that he missed a significant amount of scheduled work hours beyond his sick leave and that he refused to report to multiple scheduled SRP evaluations. The alleged harassment involved his superior's attempt to obtain information to complete a SSA disability form. Taking all Plaintiff's alleged facts as true, there is not a sufficient factual basis to state a plausible claim of retaliation.
Consequently, the Court agrees with the Chief Magistrate Judge that Plaintiff fails to establish a prima facie case for retaliation.
Two potential claims by Plaintiff remain: sex discrimination and failure to accommodate. First, Plaintiff checked the box for sex discrimination in paragraph 8 of his Complaint, but alleged no facts to support this claim. (ECF No. 1 at 4.) Second, in the Motion to Dismiss, Defendant speculates as to whether Plaintiff is alleging a failure to accommodate claim, to which the Chief Magistrate Judge found Plaintiff had not exhausted his administrative remedies. However, no such claim appears to be raised by Plaintiff in his Complaint or in any of his responses or objections.
Because Plaintiff did not object to the Chief Magistrate Judge's finding that he failed to exhaust administrative remedies for his potential failure to accommodate claim, the Court need not consider it under a de novo or any other standard. Moreover, the sex discrimination and failure to accommodate claims were not raised in his complaint filed with the DOJ, and, therefore, are barred from being considered here.
In an October 28, 2016 Order, the Chief Magistrate Judge struck Plaintiff's Amended Complaint for failure to abide by the requirements of Federal Rule of Civil Procedure 15. Plaintiff objected to this on November 7, 2016, arguing that he was only attempting to remove his claim for sex discrimination. (ECF No. 17.)
First, by way of procedure, the Court may designate a magistrate judge to hear and determine any pretrial matter pending before it. 28 U.S.C. § 636(b)(1)(A). The Court may reconsider any non-dispositive pretrial matter handled by a magistrate judge only "where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law."
The Court
