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Johnson v. Robert McDonald Secretary Department of Veterans Affair

United States District Court, E.D. Missouri, Eastern Division

October 7, 2016

EARLENE JOHNSON, Plaintiff,
v.
ROBERT MCDONALD SECRETARY DEPARTMENT OF VETERANS AFFAIR, Defendant.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendant Robert McDonald's motion to dismiss plaintiff's Amended Complaint under Rule 12(b)(6), Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. Pro se plaintiff Earlene Johnson has not responded to the motion to dismiss and the time to do so has long passed. For the following reasons, the Court will grant the motion to dismiss.

         I. Background

         In December 2008, plaintiff was hired by the Department of Veterans Affairs Medical Center (“VA”) at Jefferson Barracks in St. Louis, Missouri, on a Career-Conditional Appointment as a Medical Supply Technician, subject to completion of a one-year probationary period. Beginning in April 2009, plaintiff was placed on a series of light-duty assignments as a result of an April 1, 2009 injury to her left arm that required plaintiff to wear a hand brace. Plaintiff received two satisfactory job evaluations but was notified on November 10, 2009 that she was being terminated from her probationary employment for unprofessional conduct.

         Plaintiff filed an EEOC appeal of her termination, alleging that the VA subjected her to unlawful discrimination, retaliated against her, and subjected her to a hostile work environment by (1) reassigning her to the laundry room on September 8, 2009, and (2) issuing her a notice of termination on November 10, 2009 during her probationary period. In its final decision, the VA found no discrimination. On appeal, the EEOC affirmed the VA's final decision, finding that plaintiff failed to show she was subjected to unlawful discrimination, reprisal, or to actionable harassment. Plaintiff's request for reconsideration was denied, and she has exhausted her administrative remedies. Plaintiff filed this action in December 2015.

         On July 26, 2016, the Court granted defendant's motion to dismiss plaintiff's original complaint but granted plaintiff leave to file an amended complaint under the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701, et seq. (“Rehabilitation Act”), with the following directions:

Plaintiff should use the Court's employment discrimination complaint form, but must include the necessary factual allegations discussed above to support her Rehabilitation Act claims. Plaintiff may file exhibits to the amended complaint, but she must state the factual basis for her Rehabilitation Act claims in the amended complaint itself and may not simply refer to attached documents. Plaintiff may not incorporate by reference into the amended complaint the original complaint or her Response to the motion to dismiss, and instead must set forth all of her factual allegations in the amended complaint itself.

Mem. and Order of July 26, 2016 at 14 (Doc. 22).

         Plaintiff filed a seven-page Amended Complaint on a Court-provided form with sixty-five pages of exhibits attached. (Doc. 24.) The Amended Complaint alleges that defendant wrongfully terminated her employment, failed to accommodate her disability although it accommodated other employees, retaliated against her, and subjected her to harassment. (Id. at 4.) The Amended Complaint states that plaintiff's claims under the Rehabilitation Act are based on the following facts:

1. On February 26, 2009, management, Joyce Richardson (JR) failed to take appropriate action when the Complainant notified Human resources that DH was “pulling on a male coworker[']s private parts on a daily basis.” 2. On March 10, 2009, JR threatened the Complainant that she could have her removed/terminated from her probationary position.
5. [sic] On May 7, 2009, a coworker (DH), refused to allow the Complainant to use a computer and then told her that she could “do whatever the f- she wanted to do.” 6. On June 12, 2009, DH intentionally “brushed up” against the Complainant and then said “hit me - what are you going to do.” 8. [sic] On August 24, 2009, JR changed the Complainant's duty hours from 7:00 a.m. through 3:30 p.m. to 3:30 p.m. through midnight. Additionally, JR threatened to terminate her and then “taunted” her.
10. [sic] On September 8, 2009, JR reassigned the Complainant to the laundry.
13. [sic] On November 6, 2009, JR again reassigned the Complainant to the laundry.
14. On November 9, 2009, JR reassigned the Complainant back to the “P & D Department” and confronted her ...

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