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Porterfield v. Berryhill

United States District Court, N.D. Alabama, Southern Division

May 23, 2018

SANQUINETTE PORTERFIELD, Plaintiff,
v.
NANCY A BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION

          JOHN E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Sanquinette Porterfield (“Plaintiff”) has sued the Social Security Administration (“SSA” or “Defendant”) for alleged violations of Title II of the Family and Medical Leave Act (“FMLA”), 5 U.S.C. § 6301 et seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). (Doc. 1).[1] The SSA has filed a motion to dismiss the complaint. (Doc. 7). Plaintiff opposes the motion or, in the alternative, asks the court for leave to amend her FMLA and ADA claims. (Doc. 14). Plaintiff also has filed a separate motion for leave to file an amended complaint (doc. 22), which is opposed in part by the SSA (doc. 25). For the reasons that follow, the court will grant in part and deny in part the motion to dismiss and the motion for leave to amend the complaint, and will allow Plaintiff to file an amended complaint to assert a claim or claims under the Rehabilitation Act, 29 U.S.C. §§ 791, 794.

         I. FACTUAL AND PROCEDURAL HISTORY

         Plaintiff began working for the SSA in 2009 as a Teleservice Representative in Birmingham, Alabama. (Compl. ¶ 10). She fell and injured her wrist in July 2009, requiring surgery that year and again in 2011. (Id. ¶ 11). Plaintiff also suffers from migraine headaches and provided a letter from her physician to the SSA documenting the migraines. (Id. ¶ 13). She further claims she suffers from anxiety and depression. (Id.)

         Plaintiff missed work on various days between December 4, 2012, and February 25, 2013, due to her wrist injury and the resulting surgeries, as well as from February 26, 2013, through February 17, 2015, due to migraine headaches, anxiety, and depression. (Id. ¶¶ 14-15). She attributes her anxiety and depression to sexual advances from her immediate supervisor, George Green. (Id. ¶ 13). Plaintiff also states that she requested a transfer out of the Birmingham SSA Office because of sexual harassment, but it was denied. (Id.)

         References herein to (¶) are to a specific paragraph of the Complaint, which is found at document 1.

         On July 9, 2014, Plaintiff was counseled concerning her absences from work and a written record of the counseling was placed in her personnel file. (Id. ¶ 16-18). She attributes this counseling session and write-up to her “repeated rejection” of Green's sexual advances. (Id.) She also asserts that these actions constitute retaliation for taking FMLA leave. (Id. at ¶ 21).

         On October 29, 2014, Plaintiff filed an Equal Employment Opportunity (“EEO”) discrimination complaint with SSA's Office of Civil Rights and Equal Opportunity (“CREO”). (Id. ¶ 7). She received the final decision on her EEO complaint on March 8, 2017, and filed the instant lawsuit on June 6, 2017. (Id. ¶¶ 8-9). In her initial federal complaint, she alleges three claims under the FLMA, including claims for interference with her FMLA rights, discrimination, and retaliation (First, Second, and Third Claims, respectively); a claim under the ADA for discrimination (Fourth Claim); and a claim under Title VII for sex discrimination and sexual harassment (Fifth Claim). (Doc. 1).

         In her proposed “First Amended Complaint, ” Plaintiff asserts four Title VII claims (First, Second, Third, and Fifth Claims) and one claim under the Rehabilitation Act (Fourth Claim). (Doc. 22-1). The SSA opposes her motion to file an amend complaint, except to the extent the motion seeks to present a Rehabilitation Act claim.[3] (Doc. 25).

         II. STANDARDS OF REVIEW

         A. Motion to Dismiss

         The SSA's motion to dismiss the complaint is based on (1) a lack of subject matter jurisdiction (see Fed. R. Civ. P. 12(b)(1)); (2) Plaintiff's failure to state a claim (see Fed. R. Civ. P. 12(b)(6)); and (3) Plaintiff's failure to exhaust administrative remedies. (Doc. 7). Each will be addressed below.

         1. Rule 12(b)(1)

         With respect to subject matter jurisdiction, the plaintiff must “allege with sufficient particularity the facts creating jurisdiction” of the court and, if challenged, the facts that support maintaining jurisdiction. Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1273 (11th Cir. 2000) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 287, n.10 (1938) (quotations omitted)). “Although the plaintiff bears the burden of proving the court's jurisdiction, the plaintiff should be given the opportunity to discover facts that would support his allegations of jurisdiction.” Majd-Pour v. Georgiana Cmty. Hosp., Inc., 724 F.2d 901, 903 (11th Cir. 1984) (citations omitted). “‘[A] plaintiff must have ample opportunity to present evidence bearing on the existence of jurisdiction.'” Id. (quoting Colonial Pipeline v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991)).

         A challenge to the court's jurisdiction pursuant to Rule 12(b)(1) may be based upon either a facial or a factual challenge to the complaint. McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007). In a facial attack, the court may only look to see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, taking the facts alleged as true. Id. Factual attacks challenge the existence of subject matter jurisdiction as a matter of fact, and the court may consider matters outside of the pleadings. Id. The court may dismiss an action based on the complaint alone, the complaint supplemented by undisputed facts, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. See id.; Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (“irrespective of the pleadings” the court may consider “matters outside the pleadings, such as testimony and affidavits” on a factual challenge and “no presumptive truthfulness attaches to plaintiff's allegations”) (citation omitted)).

         2. Rule 12(b)(6)

         A motion to dismiss for failure to state a claim may be granted when the complaint is so factually deficient that the plaintiff's claim for relief is not plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court must accept all factual statements as true when deciding a Rule 12(b)(6) motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Conclusory legal allegations devoid of any factual support do not enjoy the same presumption of truth. Id. at 679. “Factual allegations must be enough to raise a right to relief above the speculative level, ” but this is not a high bar, as plaintiffs need only plead facts sufficient to “nudge[] their claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 547, 555.

         3. Exhaustion

         The Eleventh Circuit has held that exhaustion of administrative remedies is a jurisdictional prerequisite to filing a Title VII action. Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999) (citing Brown v. General Servs. Admin., 425 U.S. 820, 832-33 (1976)); see also Bloodworth v. Colvin, 17 F.Supp.3d 1245, 1250-51 (N.D.Ga. 2014). “‘The purpose of exhaustion is to give the agency the information it needs to investigate and resolve the dispute between the employee and the employer. Good faith effort by the employee to cooperate with the agency and EEOC and to provide all relevant, available information is all that exhaustion requires.”' Id. (quoting Wade v. Sec'y of the Army, 796 F.2d 1369, 1377 (11th Cir. 1986)).

         B. ...


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