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Saenz v. Wilkie

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

August 23, 2019

ALEXANDRA SAENZ, Plaintiff,
v.
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Defendant.

          MEMORANDUM OPINION AND ORDER

          ABDUL K. KALLON UNITED STATES DISTRICT JUDGE

         Alexandra Saenz brings this action, proceeding pro se, against her former employer the United States Department of Veterans Affairs for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq, as amended, and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a). See doc. 1 at 3. Saenz alleges that the VA discriminated against her by failing to accommodate her disability and by discharging her because of her gender, disability, race, and national origin. See doc. 1 at 5, 8. The VA has moved to dismiss for lack of subject matter jurisdiction and failure to exhaust administrative remedies under Title VII and the ADA. See doc. 6. Specifically, the VA contends that the court lacks subject matter jurisdiction over the ADA claims, and that Saenz failed to exhaust administrative remedies for her other claims. See doc. 6 at 1. After reading the briefs, see id.; docs. 10, 12, reviewing the evidence, and considering the relevant law, the court finds that the motion is due to be granted as to the ADA claims and Title VII national origin discrimination claim, but denied as to the Title VII race and gender discrimination claims.

         I. STANDARD OF REVIEW

         The VA brings its motion pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). A 12(b)(1) challenge for lack of subject matter jurisdiction may take the form of a facial or factual attack on the complaint. See McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). A facial attack “‘require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction' taking ‘the allegations in [her] complaint . . . as true.'” Id. (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). By contrast, a factual attack challenges “‘the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings . . . are considered.'” Id. (quoting Lawrence, 919 F.2d at 1529). “[W]hen a defendant properly [raises a factual] challenge[ ] . . . ‘no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of the jurisdictional issue.'” Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003) (quoting Lawrence, 919 F.2d at 1529).

         On the other hand, Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” are insufficient. Id. (citations and internal quotation marks omitted). Moreover, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (citations and internal quotation marks omitted). A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). Ultimately, this inquiry is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

         However, where, as here, a party moves to dismiss based on a failure to exhaust administrative remedies, the Eleventh Circuit has indicated a slightly different standard applies. In Bryant v. Rich, the Eleventh Circuit held that, under the PLRA, “exhaustion of administrative remedies is a matter in abatement and not generally an adjudication on the merits, ” 520 F.3d 1368, 1374-75 (11th Cir. 2008), and, therefore, “should be decided on a Rule 12(b) motion to dismiss[, ]” id. at 1375-76. Although the court did not specify which 12(b) motion was appropriate for a failure-to-exhaust defense, it explained that,

where exhaustion-like jurisdiction, venue, and service of process-is treated as a matter in abatement and not an adjudication on the merits, it is proper to consider facts outside of the pleadings and resolve factual disputes so long as the factual disputes do not decide the merits, and the parties are given sufficient opportunity to develop the record.

Bryant, 520 F.3d at 1376 (citations omitted). While Bryant only concerned PLRA claims, several courts in this circuit have applied the standard of review from Bryant to Title VII claims. See, e.g., Basel v. Sec'y of Defense, 507 Fed.Appx. 873, 875 (11th Cir. 2013); Tillery v. U.S. Dep't of Homeland Sec., 402 Fed.Appx. 421, 424 (11th Cir. 2010); Nodd v. Integrated Airline Servcs., Inc., 41 F.Supp.3d 1355, 1363-64 (S.D. Ala. 2014). Under Bryant's two-step process,

First, the court must look to the factual allegations in the defendant's motion and the plaintiff's response, taking the plaintiff's version of the facts as true to the extent that it conflicts with that of the defendant. If the complaint is not subject to dismissal at this step, the court must then make specific findings to resolve the parties' factual disputes, and determine whether the defendant bore its burden of proving that the plaintiff failed to exhaust his administrative remedies.

Basel v. Sec'y of Def., 507 Fed.Appx. 873, 875 (11th Cir. 2013) (internal citations omitted) (citing Turner v. Burnside, 541 F.3d 1077, 1082, 1082-83 (11th Cir. 2008). Notably, some courts before and after Bryant have treated motions to dismiss based on failures to exhaust administrative remedies under Title VII as 12(b)(6) motions for failure to state a claim. See, e.g., Banks v. Ackerman Sec. Sys., Inc., No. 109CV0229CC, 2009 WL 974242, at *2 (N.D.Ga. Apr. 10, 2009) (“The Court dismisses these claims pursuant to Rule 12(b)(6) rather than Rule 12(b)(1) because exhaustion of administrative remedies [under Title VII] is not a jurisdictional prerequisite.”); Howell v. Dep't of the Army, 975 F.Supp. 1293, 1296-97 (M.D. Ala. 1997) (“[F]ailure to meet a filing deadline constitutes failure to state a claim for purposes of a motion to dismiss under Rule 12(b)(6) . . .”). However, because Bryant advises that “where . . . exhaustion is not adjudicated as part of the merits, it is unlike a defense under Rule 12(b)(6) for failure to state a claim, which is generally decided on the merits[, ]” the court finds that the present motion to dismiss for failure to exhaust administrative remedies should not be analyzed under Rule 12(b)(6). See Nodd, 41 F.Supp.3d at 1364 n.9 (applying Bryant standard, rather than Rule 12(b)(6) standard, to Title VII motion).

         II. FACTUAL BACKGROUND

         This case arises out of Saenz's discharge by the VA on October 30, 2017. See doc. 1. Saenz, a Hispanic woman originally from Spain and Mexico, alleges that the VA discharged her because of her disabilities, race, sex, and national origin. See id. at 5, 8. Saenz's alleged disabilities included her pregnancy, post-partum depression, post-partum anxiety, post-partum obsessive compulsive disorder, and post-traumatic stress disorder. See id. at 5.

         Saenz last worked in the VA's Physical Medicine and Rehabilitation (“PM&R”) Department. See id. at 8. While working in PM&R, she “always had problems with getting a reasonable accommodation due to [her] disabilities.” Id. Specifically, the PM&R Department required her to begin the “whole [accommodation] process” anew, even though the VA had medical documentation of her disabilities and she received accommodations while working in another department. See id. Furthermore, even when the VA provided her accommodations, it would subsequently revoke these accommodations when Saenz's co-workers complained about the unfairness of the accommodations. See id. By contrast, when Saenz's coworkers requested an accommodation, the VA granted their requests without making them “jump through hoops” and no one complained. Id.

         Moreover, Saenz's co-workers were “verbally abusive” and “made fun of [her] disabilities.” Id. When Saenz “complain[ed]” about these incidents, her co-workers submitted “fake complaints” about her and, consequently, the Chief of PM&R threatened to take disciplinary actions against her such as “write ups” or “bad assessments.” Id. At some point, Saenz's supervisor, Courtney Lassiter, ...


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