United States District Court, N.D. Alabama, Southern Division
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE.
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). 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.
FACTUAL AND PROCEDURAL HISTORY
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.)
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.)
herein to (¶) are to a specific paragraph of the
Complaint, which is found at document 1.
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 ¶
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).
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. (Doc. 25).
STANDARDS OF REVIEW
Motion to Dismiss
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.
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)).
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)).
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.
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)).