United States District Court, S.D. Georgia, Dublin Division
Eva Chapman, who is proceeding pro se, initiated
this case on February 26, 2018, when she filed a form
"Complaint for Employment Discrimination."
Defendant Robert Wilkie, the Secretary of the United States
Department of Veterans Affairs, filed a motion to dismiss
Plaintiff's claims. On October 9, 2018, the Court
determined that Plaintiff had failed to exhaust
administrative remedies with respect to her age
discrimination and whistleblower claims. Those claims were
dismissed. The Court also concluded that Plaintiff had failed
to state a claim for race discrimination, disability
discrimination, or reprisal. However, Plaintiff was given an
opportunity to amend her complaint with respect to these
filed her Amended Complaint on October 29, 2018. (Doc. No.
17.) Defendant has now moved to dismiss the Amended
Complaint. The Court has reviewed the Amended Complaint, the
parties' briefs, and the relevant case law and resolves
the matter as follows.
MOTION TO DISMISS STANDARD
Rule of Civil Procedure 8(a)(2) requires that a complaint
contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." The
United States Supreme Court has provided additional guidance
to the Rule 8 (a) analysis in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Pursuant to the
Twombly/Iqbal paradigm, to survive a motion to
dismiss for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6), "a complaint must contain
sufficient factual matter, accepted as true, to * state a
claim to relief that is plausible on its face.'"
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). To be plausible, the complaint must contain
"well-pleaded facts" that "permit the court to
infer more than the mere possibility of misconduct."
Id. at 679; GeorgiaCarry.Org, Inc. v.
Georgia, 687 F.3d 1244, 1254 (11th Cir. 2012)
(stating that a plaintiff must necessarily "include
factual allegations for each essential element of his or her
claim"). "Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." Iqbal, 566 U.S. at 678-79. Stated
another way, Rule 8 "demands more than an unadorned,
Id. at 678.
pleadings of a pro se plaintiff "are held to a
less stringent standard than pleadings drafted by attorneys
and will, therefore, be liberally construed."
Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998). "This leniency, however,
does not require or allow courts to rewrite an otherwise
deficient pleading in order to sustain an action."
Thomas v. Pentagon Fed. Credit Union, 393 Fed.Appx.
635, 637 (11th Cir. 2010).
Order of October 9, 2018, the Court allowed Plaintiff to
replead three claims: a racial discrimination claim under
Title VII of the Civil Rights Act of 1964, as codified, 42
U.S.C. §§ 2000e - 2000e-17 ("Title VII");
a disability claim under the Americans with Disabilities Act
of 1990, as codified, 42 U.S.C. §§ 12111-12117
("ADA"); and a retaliation claim. The Court set
forth the elements of each claim and carefully explained that
Plaintiff must allege specific facts, which if accepted as
true, would be sufficient to state a claim for relief that is
plausible on its face. That is, Plaintiff must allege
sufficient factual matter from which the Court could infer
that Defendant committed the misconduct alleged.
outset of the Amended Complaint, Plaintiff asserts that she
is stating a claim for retaliation under Title VII and the
ADA.' Thus, she has abandoned any claim of
disparate treatment under either Title VII or the ADA. The
Court will therefore focus on whether Plaintiff has stated
sufficient facts to state a plausible claim for relief on her
Plaintiff refers to the ADA, a federal employee asserting a
claim of disability retaliation must proceed under the
Rehabilitation Act, not the ADA. The Rehabilitation Act, 29
U.S.C. § 791, "prohibits federal agencies from
discriminating in employment against otherwise qualified
individuals with a disability." Mullins v.
Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000)
. That said, the Rehabilitation Act incorporates the
anti-retaliation provision from the ADA, 42 U.S.C. §
12203(a), which prohibits retaliation because an individual
"opposed any act or practice made unlawful by this
chapter" or because an individual "testified,
assisted, or participated in any matter in an investigation,
proceeding, or hearing under this chapter." Moreover,
the ADA'S anti-retaliation provision is similar to Title
VII's anti-retaliation provision, 42 U.S.C. §
2000e-3(a), which prohibits retaliation because an individual
"opposed any practice made an unlawful employment
practice by this subchapter, or because [s]he has made a
charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this
subchapter." Accordingly, courts assess ADA retaliation
claims under the same framework as Title VII retaliation
claims. Burgos-Stefanelli v. Sec'y, U.S. Dep't of
Homeland Sec, 410 Fed.Appx. 243, 245 (11th
Cir. 2011); Stewart v. Happy Herman's Cheshire
Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir.
1997) (cited source omitted). To plausibly state a claim for
retaliation under Title VII, a plaintiff must show that (1)
she engaged in statutorily protected activity, (2) she
suffered an adverse employment action, and (3) there is some
causal connection between the two events. Hopkins v.
Saint Lucie Cnty. Sch. Bd., 399 Fed.Appx. 563, 566
(11thCir. 2010); McCann v. Tillman, 526
F.3d 1370, 1375 (11th Cir. 2008).
to Plaintiff's Amended Complaint, she was denied two
positions to which she applied at the Carl Vinson VA Medical
Center (theWVA") in Dublin, Georgia. The
first position was for Registered Nurse (Wound Care) under
Vacancy Announcement Number QA-12-709875-DP. (Am. Compl.,
Statement of Claim, ¶ 1.) On August 28, 2012, Plaintiff
was referred to the selecting official; however, she was not
selected. (Id.) Plaintiff asserts that she had
previously filed several EEO complaints against the selecting
official, Ms. Sue Preston. Plaintiff further alleges that
Preston had stated that Plaintiff "was not fit for her
September 19, 2012, Plaintiff was not referred to the
position of Supervisory Program Specialist, Vacancy
Announcement Number QA-12-701395-DAHP. (Id. ¶
2.) Plaintiff explains that Mr. David Petrasek was the HR
specialist for this job, but she had previously filed an EEO
complaint against him as well. (Id.) She further
alleges that Petrasek had placed Plaintiff on a "Do Not
Hire List" and "documented [Plaintiff] not suitable
to work at the VA." (Id.)
respect to the prior EEO complaints, Plaintiff alleges that
she filed two EEO complaints against Preston on March 12,
2009 and June 25, 2010. (Id. ¶ 4.) She further
alleges that she resigned in September 2010, but she filed
additional EEO complaints: one on October 28, 2010, and one
on July 27, 2012, which she states was stillwin
progress" during the aforementioned job selection
processes. (Id. ¶ 5.)
the elements of a retaliation claim to these asserted facts,
Defendant challenges the sufficiency of Plaintiff's
allegations with respect to the first and third elements of a
prima facie case of retaliation.
first element requires a showing that Plaintiff engaged in
statutorily protected expression. The filing of an EEO claim
is a "statutorily protected activity."
Burgos-Stefanelli, 410 Fed.Appx. at 246. Defendant
complains that there is not enough information about the
prior EEO complaints to know if they relate to her present
claims under Title VII and the ADA (Rehabilitation Act). The
content of the EEO complaints is not relevant at this point.
The Court must only assess whether Plaintiff has alleged
facts sufficient to show that she engaged in statutorily
protected activity. She has. The third element requires facts
showing some causal relationship between the statutorily
protected activity and the adverse employment actions. When
there is no direct evidence of a retaliatory motive for the
employer's adverse action, a plaintiff may prove
causation "by showing a close temporal proximity'
between the two events. Thomas v. Cooper Lighting,
Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) .
The temporal proximity must be "very close" to show
causation; in the Eleventh Circuit, a three-month time lapse
has been held insufficient to create a jury issue regarding
causation. Walker v. Sec'y, U.S. Dep't of Air
Force, 518 Fed.Appx. 626, 628 (11th Cir.
2013); Higdon v. Jackson, 393 F.3d 1211, 1220
(11th Cir. 2004) . Here, Defendant complains that
the temporal proximity between the protected activity and the
adverse actions is not close. Defendant concedes in brief,
however, that Plaintiff allegedly filed an EEO complaint on
July 27, 2012, one month prior to the first job