United States District Court, W.D. Virginia, Danville Division
Jackson L. Kiser, Senior United States District Judge.
matter is before the Court on Defendant Megan J.
Brennan's Motion to Dismiss pursuant to Fed.R.Civ.P.
12(b)(1), Motion for Judgment on the Pleadings pursuant to
Fed.R.Civ.P. 12(c), and Motion for Summary Judgment pursuant
to Fed.R.Civ.P. 56. [ECF Nos. 15 & 21]. The matter was
fully briefed by the parties and, on March 14, 2019, 1 heard
oral arguments from the parties. I have reviewed the
pleadings and applicable law. For the reasons stated herein,
I will grant Defendant's Motion to Dismiss.
STATEMENT OF FACTS AND PROCEDURAL
case had a long and tortured procedural history before ever
making it to this court. That history is adequately set forth
in Defendant's memorandum in support of its Motion to
Dismiss/Motion for Judgment on the Pleadings [ECF No. 16] and
need not be repeated here. As is relevant to my decision,
however, the facts are as follows.
was on staff at the Post Office in Bassett, Virginia, as a
flexible window clerk when, on March 18, 2008, she was
injured on the job. Over the course of the next several
years, Plaintiff was involved in a dispute with the Post
Office over whether and to what extent she was entitled to a
limited-duty assignment following her injury. In November of
2010, Plaintiff received a letter which stated, in part, that
her limited-duty assignment was "made permanent on
3/23/2010 . .. ." This, Plaintiff contends, enshrined in
perpetuity her entitlement to a limited-duty assignment.
Defendant maintains that single sentence was "an
error" by the Department of Labor's Office of
Worker's Compensation Program ("DOL-OWCP"), and
that at no point in time was Plaintiff placed in a
limited-duty assignment for the rest of her employment with
the United States Postal Service ("USPS").
23, 2017, Postmaster of the Bassett post office Babette Lee
sent Plaintiff a letter withdrawing her limited-duty work
assignment because Plaintiff s limited schedule and duties
"no longer met the needs of the" postal service.
Lee emphasized, based on past determinations, that the
DOL-OWCP did not consider Plaintiff to have suffered from a
work-related injury after August of 2011, and that the
limited-duty work assignment she had enjoyed after that date
was not required.
months before and after receiving the letter from Postmaster
Lee, Plaintiff and the District Reasonable Accommodation
Committee ("DRAC") worked together to get updated
medical information from Plaintiff and to try to find an
accommodation that would suit her professed medical
limitations. They were unable to do so, partly because
Plaintiff failed to respond to various inquiries from the
DRAC. Plaintiff thereafter filed an application for
disability retirement, effective as of September 2, 2017.
contacted the USPS Equal Employment Office ("EEO")
on September 11, 2017, and complained that Postmaster
Lee's withdrawal of Plaintiffs limited-duty assignment
was "handicap discrimination." On October 10,
Plaintiff filed a formal Complaint of Discrimination with the
USPS EEO. That claim was ultimately dismissed, pursuant to 29
C.F.R. § 1614.107(a)(2), because it was filed more than
45 days after the alleged discriminatory act. Plaintiff
appealed that decision but, before action was taken on her
appeal, she filed suit in this court.
filed her Complaint on May 22, 2018, alleging that Postmaster
Lee subjected Plaintiff to "ongoing harassment due to
disability, defamation, production of hostile work
environment, fraudulent statements to OWCP [Office of Workers
Compensation Program], chose to ignore an LWEC [Lost
Wage-Earning Capacity] ¶ 11-17-2010." [Compl.
¶ B, May 22, 2018 [ECF No. 2].) On December 13, 2018,
Defendant filed a Motion to Dismiss for Lack of Jurisdiction,
Motion for Judgment on the Pleadings, and Motion for Summary
Judgment [ECF No. 15]. Because of the government shutdown,
which lasted from December 22, 2018, through January 25,
2019, this case was stayed. Defendant filed a second Motion
for Summary Judgment on the same day it requested a stay,
December 26 [ECF No. 21]. Plaintiff requested additional time
to respond to Defendant's motions [ECF No. 23]; that
request was granted [ECF No. 30], and Plaintiff responded. I
heard oral arguments on the motions on March 14, 2019. After
reviewing the extensive pleadings of the parties and the
applicable law, this matter is ripe for disposition.
STANDARD OF REVIEW
who is proceeding pro se, is entitled to a certain
level of deference in her pleadings by virtue of her status
as an unrepresented litigant. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). However, "the
requirement of liberal construction [of pleadings for pro
se parties] does not mean that the court can ignore a
clear failure in the pleadings to allege facts which set
forth a federal claim, nor can the court assume the existence
of a genuine issue of material fact where none exists."
Knowles v. S. C.D.C., No. 2:09-1921-MBS, 2010 WL
2990157, at *3 (D.S.C. July 29, 2010).
challenge to subject matter jurisdiction is raised under Rule
12(b)(1), "the burden of proving subject matter
jurisdiction is on the plaintiff." Richmond,
Fredericksburg & Potomac R Co. v. U.S., 945 F.2d
765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697
F.2d 1213, 1219 (4th Cir. 1982)). "In determining
whether jurisdiction exists, the district court is to regard
the pleadings' allegations as mere evidence on the issue,
and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment."
Id. "The court must grant the motion 'only
if the material jurisdictional facts are not in dispute and
the moving party is entitled to prevail as a matter of
law.'" Little v. Stock Bldg. Supply, LLC,
Case No. 4:10-cv-129, 2011 WL 5146179, at *3 (E.D. N.C. Sept.
2, 2011) (quoting Richmond, 945 F.2d at 768). An
allegation that a plaintiff has failed to exhaust her
administrative remedies as required by law is properly
considered under Rule 12(b)(1). See Jones v. Calvert
Group, LLC, 551 F.3d 297, 301 (4th Cir. 2009) ("[A]
failure by the plaintiff to exhaust administrative remedies .
. . deprives the federal courts of subject matter
jurisdiction over the claim").
claims that, when she received the Lee letter and was no
longer offered a limited-duty assignment, that action
constituted discrimination on the basis of a disability in
violation of the Rehabilitation Act. "The basic tenet of
the Rehabilitation Act of 1973, which governs employee claims
of disability discrimination against the federal government,
is that the government must take affirmative steps to
accommodate the handicapped, except where undue hardship
would result." Nanette v. Snow, 343 F.Supp.2d
465, 472 (D. Md. 2004) (citing 29 C.F.R § 1614.203;
Barth v. Gelb,2 F.3d 1180, 1183 (D.C. Cir. 1993)).
"The law prohibits discrimination against 'a
qualified individual with a disability' with respect to
'job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training,
and other terms, conditions, and privileges of
employment.'" Id. (quoting 42 U.S.C. §
12112(a). To succeed on a claim under the Rehabilitation Act,
a plaintiff must prove: "(1) that [s]he has a
disability; (2) that [s]he ...