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Holland v. Department of Health & Human Services

United States District Court, N.D. Georgia, Atlanta Division

September 29, 2014


Order Filed: August 8, 2014

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[Copyrighted Material Omitted]

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For Sharon D. Holland, Plaintiff: Linda Faye Aronson, LEAD ATTORNEY, Regina Sledge Molden, Molden & Holley, LLC, Atlanta, GA.

For Department of Health and Human Services, Defendant: R. David Powell, Office of United States Attorney, Northern District of Georgia, Atlanta, GA.

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THOMAS W. THRASH, JR., United States District Judge.

This is an employment discrimination action. It is before the Court on the Report and Recommendation [Doc. 26] of the Magistrate Judge recommending tat the Defendant's Motion to Dismiss [Doc. 16] be granted in part and denied in part. No objections to the Report and Recommendation were filed. The Court approves and adopts the Report and Recommendation as the judgment of the Court. The Defendant's Motion to Dismiss [Doc. 16] is GRANTED in part and DENIED in part.




This case is presently before the Court on Defendant Kathleen Sebelius' Motion to Dismiss. Docket Entry [16]. For the reasons outlined below, Defendant's Motion is GRANTED IN PART AND DENIED IN PART. Docket Entry [16]. Additionally, as explained in the body of this Report and Recommendation, to the extent that Plaintiff is asserting claims arising from facts cited in the factual allegations section of her Amended Complaint but has not explicitly asserted such claims in the Counts of her Complaint, Plaintiff is ORDERED to amend her Complaint within thirty (30) days of the date of this Report and Recommendation in order to explicitly identify such claims, if she believes that she exhausted administrative remedies as to them.


Sharon Holland (" Plaintiff" ) filed the instant lawsuit on February 26, 2013, alleging employment discrimination claims against the Secretary of the Department of Health and Human Services in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5 et seq (" Title VII" ). Plaintiff subsequently amended her complaint on October 31, 2013, after obtaining counsel. Therein, Plaintiff alleges Defendant violated the Rehabilitation Act, 29 U.S.C. § 701 by (1) discriminating against her on the basis of her disability when Defendant transferred her to a position in which she had little experience and training; (2) failing to accommodate her disability when Defendant refused her request to adjust her work schedule and allow her to telecommunicate; and (3) terminating her in retaliation for her filing a claim alleging discrimination with the Center for Disease Control's Equal Employment Opportunity office. (Am. Compl. ¶ 1, Docket Entry [12]). Plaintiff also asserts that she is entitled to punitive damages for Defendant's wanton, willful, malicious, and reckless conduct and that she is entitled to an award of attorney's fees for Defendant's stubborn litigiousness. (Am. Compl. ¶ ¶ 50-53).

Plaintiff alleges she began working with the Centers for Disease Control (" CDC" ) in 1992. (Am. Compl. ¶ 6). In October 2005, Plaintiff injured her back lifting a cart while on the job. (Am. Compl. ¶ 8). Plaintiff filed a workers' compensation claim with the Office of Workers Compensation Programs (" OWCP" ) and the OWCP approved her claim. (Am. Compl. ¶ 9). Plaintiff maintains that in retaliation for her filing the workers's compensation claim and a 2005 EEO complaint, she was transferred to a new department and a new position as Office Automation Assistant. (Am. Compl. ¶ 10).

Plaintiff avers that beginning around October 2007, she was placed on permanent disability as a result of her back injury and did not report to the CDC during that time. (Am. Compl. ¶ 17). In

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August 2008, Plaintiff resumed her employment with the CDC and submitted forms for reimbursement of lost wages due to her medically-required part time schedule, but her manager would not approve her to receive leave without pay. (Am. Compl. ¶ 18). Plaintiff's manager asked Plaintiff for documentation of her condition, but Plaintiff inadvertently left off her doctor's signature. (Am. Compl. ¶ 19). As a result, Plaintiff's manager reprimanded Plaintiff. (Am. Compl. ¶ 20). According to Plaintiff, the medical documents set forth restrictions in the number of hours she was supposed to work, but her managers refused to abide by her doctor's directives. (Am. Compl. ¶ 21). Plaintiff also states that Defendant refused her request for permission to telecommute and to work a compressed schedule which would allow her to report at work by 7:00 a.m., so that she could reduce strain to her back caused by heavy commuter traffic. (Am. Compl. ¶ ¶ 22-23). As a result, Plaintiff and her union representative met with management to discuss accommodation of her work-related injury. (Am. Compl. ¶ 24). Plaintiff's managers requested more documentation from Plaintiff's doctor that Plaintiff alleges she had already provided. (Am. Compl. ¶ 25). Plaintiff subsequently filed a charge with the CDC Equal Employment Opportunity office (" CDC EEO" ). (Am. Compl. ¶ 26). On January 2009, the CDC Acting Deputy Chief Operating Officer terminated Plaintiff's employment. (Am. Compl. ¶ 29). Plaintiff contends that Defendant discriminated against her on the basis of her disability by failing to adjust her work schedule, denying her request to telecommunicate, and transferring her from a position in the Graphics Department to a position in the Management Analysis and Services Office. (Am. Compl. ¶ ¶ 32-42). Plaintiff alleges Defendant retaliated against her by terminating her employment with the CDC in retaliation for her filing a discrimination claim with CDC's EEO office. (Am. Compl. ¶ ¶ 43-49).

In Defendant's Motion to Dismiss, Defendant contends that (1) Plaintiff's claim for punitive damages should be dismissed because the United States has not waived its sovereign immunity permitting itself to be sued for punitive damages and the Rehabilitation Act does not permit a plaintiff to recover punitive damages against a government agency; (2) Plaintiff's workers' compensation claims should be dismissed because the Court does not have subject matter jurisdiction over these claims; instead the Department of Labor has exclusive jurisdiction over them and its decisions are final and not subject to judicial review; and (3) Plaintiff's termination claim first raised before the Merit Systems Protection Board (" MSPB" ) should be dismissed because she failed to follow through with the administrative process in the MSPB and abandoned her claims there; and (4) Plaintiff's claims arising before August 19, 2008, that Defendant failed to reasonably accommodate her disability when Defendant refused to adjust her work schedule or allow her to telecommute, and Plaintiff's claim relating to an unwanted transfer in 2005, should be dismissed for Plaintiff's failure to exhaust administrative remedies because Plaintiff did not seek counseling in her EEO office within forty-five days after the incidents occurred.


A. Plaintiff's November 2008 Complaint With Her Agency's EEO Office

On October 2, 2008, Plaintiff contacted the EEO office for her agency (" EEO office" ) advising that she was filing a complaint in connection with several incidents that had occurred since she returned to

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service after her disability. (Decl. of Monica Diggs, hereinafter " Diggs Decl.," Ex. B, Docket Entry [16-2], p. 28). Therein, Plaintiff sought EEO counseling because her managers were not heeding the work restrictions given by her doctor, issued her a counseling memorandum, and placed her on Absent Without Leave (" AWOL" ) status instead of Leave Without Pay (" LWOP" ) status. (Diggs Decl., Ex. B, Docket Entry [16-2], p. 29-30). On November 12, 2008, the agency EEO office issued a notice of right to file a formal administrative complaint on the four claims addressed in Plaintiff's October 2, 2008 complaint including: (1) Defendant's decision to require Plaintiff to work a schedule that included days not released from medical care and the Defendant's threat of logging unworked time as AWOL instead of LWOP; (2) Defendant's issuance of a counseling memorandum for Plaintiff's failure to follow instructions; (3) Defendant's refusal to approve the work schedule suggested by Plaintiff's doctor; and (4) Defendant's decision to subject Plaintiff to a schedule that ignored her doctor's suggested medical restrictions. (Diggs Decl. ¶ 5C, Attach. C, Docket Entry [16-2], pp. 34-38). On November 25, 2008, Plaintiff filed a formal complaint with the EEO office. (Diggs Decl. ¶ 5D, Attach. D, Docket Entry [16-3], pp. 8-9). On or around February 18, 2009, while this EEO claim was pending, Plaintiff was informed that her employment with CDC had been terminated effective March 4, 2009. (Diggs Decl. ¶ 5E, Attach. E, Docket Entry [16-4], pp. 8-10).

B. Plaintiff's February 26, 2009 Appeal with the Merit System Protection Board and March 2, 2009 Attempt to Amend Her November Charge with Her Agency's EEO Office

On February 26, 2009, Plaintiff appealed her termination to the Merit Systems Protection Board (MSPB). (Diggs Decl. ¶ 5F, Attach. F, Docket Entry [16-4], pp. 21-27). On March 2, 2009, Plaintiff requested to amend her November 2008 complaint before the EEO office to add a claim for retaliatory termination. (Diggs Decl. ¶ 5G, Attach. G, Docket Entry [16-4], pp. 32-33). On March 5, 2009, Plaintiff's agency's EEO office acknowledged receipt of Plaintiff's request to amend her EEO complaint. Id. Plaintiff's agency's EEO office also advised that because Plaintiff has filed an MSPB appeal, her EEO complaint will be held in abeyance until the MSPB reaches a decision. Id. During the course of the appeal, Plaintiff's union-appointed representative, Sheilia Miller, indicated that because she was not sufficiently familiar with MSPB procedures, she could not represent the Plaintiff effectively. (Docket Entry [16-4], p. 49, 51). Plaintiff terminated Miller's representation and proceeded to represent herself until counsel could be obtained. (Id.).

C. Plaintiff's Withdrawal of MSPB Appeal and EEO Office's Dismissal of Plaintiff's Termination Claim

On April 7, 2009, the MSPB Administrative Judge held a status conference concerning Plaintiff's appeal. (Pl.'s Ex. 1, Docket Entry [17-1], p. 1-2). According to the MSPB Administrative Judge, the purpose of the status conference was to ensure that the parties were talking with each other about settlement and to ensure orderly processing of the case scheduled for a hearing on May 7, 2009. (Pl.'s Ex. 1, Docket Entry [17-1], p. 1-2). During the hearing, the Administrative Judge discussed the elements of a claim that Plaintiff failed to maintain a regular work schedule and advised Plaintiff that she needed to be prepared to present evidence

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that the benefits of her successful OWCP claim had not ended. (Pl.'s Ex. 1, Docket Entry [17-1], p. 1-2). On April 15, 2009, Plaintiff voluntarily withdrew her MSPB appeal. (Diggs Decl. ¶ 5H, Attach. H, Docket Entry [16-5], pp. 8-21, Pl.'s Resp. 4; Decl. of Scott Briles, hereinafter " Briles Decl.," ¶ 4B, Attach. B, Doc. 16-6, p. 31). On April 15, 2009, at the end of a fourteen-page letter ultimately expressing Plaintiff's intent to withdraw her appeal, Plaintiff explained:

Judge Klein, after our informal phone conference on April 7, 2009 and after careful consideration of all that was said during that conversation, I came to a decision. As of April 15, 2009, I, Sharon D. Holland am " withdrawing" my MSPB appeal . . . because I do not feel comfortable in proceeding based on the hostility I felt and comments made that indicated a decision had already been made before hearing my side, that is why this letter is so long, its my side.

(Diggs Decl., Ex. H, Docket Entry [16-4], p. 48). Because of this withdrawal, on April 23, 2009, the MSPB dismissed the appeal stating that the Plaintiff's withdrawal of her appeal was an act of finality " that removes the matter from the Board's jurisdiction." (Briles Decl. ¶ 4C, Attach. C, Docket Entry [16-6]), p. 35-36). The document advised that unless Plaintiff files a petition for review or the Board reopens the case on its own motion, the decision will be final on May 28, 2009. Id. Plaintiff does not dispute that she did not pursue further action regarding the MSPB's initial decision. (Briles Decl. ¶ 4C, Docket Entry [16-6], p. 3; Pl.'s Br. 5). Months later, on August 17, 2009, Plaintiff notified CDC's EEO office that she withdrew her MSPB appeal. (Diggs Decl. ¶ 5J, Attach. J, Docket Entry [16-5], p. 29). On September 8, 2009, CDC's EEO office issued a final decision dismissing all of Plaintiff's claims. (Diggs Decl. ¶ 5K, Attach. K, Docket Entry [16-5], pp. 31-37). With respect to Plaintiff's termination claim, the EEO concluded that because Plaintiff first filed her claim with the MSPB, the decision to do so constituted an election. (Diggs Decl. ¶ 5K, Attach. K, Docket Entry [16-5], p. 35). The EEO also concluded that the withdrawal of Plaintiff's appeal did not negate the fact that she initially elected to pursue the claim with the MSPB. (Diggs Decl. ¶ 5K, Attach. K, Docket Entry [16-5], p. 35). Plaintiff requested reconsideration by the Equal Employment Opportunity Commission's Office of Federal Operations, but Plaintiff's request was denied on November 29, 2012. (Docket Entry [12-2], p. 2-3). Plaintiff was granted the right to sue on November 29, 2012, and filed this action on February 26, 2013. (Am. Compl., Ex. B, Docket Entry [12-2]).


A. 12(b)(1) Motion to Dismiss Standard

An action may proceed in this Court only if federal subject matter jurisdiction exists. Lifestar Ambulance Serv., Inc. v. United States,365 F.3d 1293, 1295 (11th Cir. 2004). The plaintiff bears the burden of proof that subject matter jurisdiction does exist, and when challenged, the plaintiff must support the allegations. Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1273 (11th Cir. 2000); Chaney v. Rubin, 986 F.Supp. 516 (N.D.Ill. 1997) (finding that it was the plaintiff's burden to demonstrate that the district court instead of the Federal Circuit Court of Appeals had jurisdiction over the plaintiff's appeal of the MSPB's decision). A federal employee must pursue and exhaust her ...

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