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Childers v. Brennan

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

August 10, 2017

DAVID CHILDERS, Plaintiff,
v.
MEGAN BRENNAN, Postmaster General; THEODORE NAPPIER; and GARY BARNES, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTION FOR ADR EXTENSION

          DAVID D. NOCE, UNITED STATES MAGISTRATE JUDGE

         This action is before the court on the motion of defendants Megan Brennan, Theodore Nappier, and Gary Barnes to dismiss plaintiff David Childers' First Amended Complaint (Doc. 26) in its entirety. (Doc. 42). Plaintiff opposes the dismissal of Counts I through III. (Doc. 46). After hearing oral arguments from the parties on July 28, 2017, the court grants defendants' motion in part and otherwise denies it.

         I. BACKGROUND

         Plaintiff is an automotive technician employed by the United States Postal Service (“USPS”) facility in St. Louis, Missouri. (Doc. 26, ¶ 10). He alleges he is disabled due to impairments that specifically include permanent nerve damage impairing his left arm and right shoulder, dyslexia, a hearing impairment, and limited mobility in his right ankle and knee. (Doc. 26, ¶ 11). In 2013 and 2014, he filed three formal charges of discrimination with the USPS Equal Employment Opportunity Office (“EEO”). (Doc. 26, at 3, 4, and 7).

         On June 16, 2016, plaintiff commenced this judicial action by filing his complaint against defendant Megan Brennan, the Postmaster General of the United States. This court determined on January 12, 2017, that the judicial complaint was timely filed due to equitable tolling. (Doc. 23).

         On January 18, 2017, plaintiff filed the currently pending first amended complaint. (Doc. 26). In it he added two defendants in their personal and official capacities: Theodore Nappier, who was formerly plaintiff's direct supervisor and the manager of the USPS vehicle maintenance facility in St. Louis, Missouri, and Gary Barnes, who was at relevant times the USPS Supervisor of Vehicle Maintenance in St. Louis, Missouri. (Doc. 26, ¶¶ 6-7).

         Plaintiff's amended complaint is organized in 5 Counts. Counts I, II, and III variously bear captions of discrimination based on disability and retaliation, and respectively refer to his three administrative charges by EEO agency case number. Count IV is captioned as retaliation based on disability and cites 42 U.S.C. § 1981, and Count V is captioned as a constitutional violation under the First and Fourteenth Amendments and cites 42 U.S.C. § 1983. (Doc. 26).

         In response to the pending motion to dismiss, plaintiff agrees that defendants Nappier and Barnes and Counts IV and V should be dismissed for the reasons set forth in the motion to dismiss. (Doc. 46, at 1).

         The court discerns from the facts alleged in the remaining Counts I-III alleged claims against defendant Brennan in her official capacity of unlawful discrimination under the Rehabilitation Act of 1973 ("Act"), 29 U.S.C. § 794, due to alleged disparate treatment, a hostile work environment, and retaliation.

         II. FACTUAL ALLEGATIONS

         Plaintiff alleges the following in his amended complaint. On February 5, 2013, defendants Brennan and Nappier denied plaintiff's request for a change in work schedule. (Doc. 26, ¶ 13).

         Plaintiff complained about this decision between February 5 and July 1, 2013. (Id. at ¶ 14). On July 1, 2013, plaintiff's manager threatened to fire him and asked in a loud voice why he was “just standing around, ” when he was performing his normal job duties. (Id. at ¶ 15). On July 31, 2013, plaintiff's manager instructed him to use his left arm to complete a task, in violation of his medical restrictions. (Id. at ¶ 16). Plaintiff was threatened with a disciplinary Letter of Warning. Id.

         Plaintiff alleges that on January 14, 2014, the Vehicle Maintenance Manager ordered the lead mechanic to assign plaintiff the “hardest and nastiest jobs.” (Id. at ¶ 25). On several occasions, defendants' agents did not permit plaintiff to perform all of the jobs in his modified job assignment. (Id. at ¶ 26). On January 21, 2014, plaintiff discovered that his toolbox, which weighs approximately 1, 000 pounds, had been moved at defendants' direction, and that he had been assigned a specific work area far away from his toolbox, making it more difficult for him to fulfill his job duties. (Id. at ¶ 27). On January 22, 2014, defendants Nappier or Barnes instructed, encouraged, or permitted plaintiff's co-worker to throw an oil filter at plaintiff and curse at him. On January 23, 2014, defendants Nappier or Barnes instructed, encouraged, or permitted plaintiff's co-worker to curse at him and to make obscene gestures toward him. On January 24, 2014, defendants Nappier or Barnes instructed, encouraged, or permitted plaintiff's co-worker to throw a ball joint removal tool toward him. On January 27, 2014, defendants Nappier or Barnes instructed, encouraged, or permitted "someone" to place a copy of the Postal Zero Tolerance Policy in plaintiff's toolbox. On January 28, 2014, defendants Nappier or Barnes instructed, encouraged, or permitted plaintiff's co-worker to throw an EGR valve toward him. On January 29, 2014, defendants Nappier or Barnes instructed, encouraged, or permitted plaintiff's co-worker to throw a box of maxi pads at him. (Id. at ¶¶ 28-33). Although plaintiff complained to management and despite defendants' knowledge of these actions, management took no action. Id.

         Plaintiff alleges that on July 15, 2014, defendants informed him that his e-travel request would not be processed, which delayed his reimbursement for job-required travel costs and denied overtime pay altogether. (Id. at ¶ 42). On August 29, 2014, defendants instructed plaintiff to report for a threat assessment.

         Plaintiff alleges that on at least one occasion, defendants Nappier or Barnes instructed, encouraged, or permitted a co-worker to throw and strike plaintiff with an oil filter. (Id. at ΒΆ 44). Despite defendants' knowledge of this occurrence, they failed ...


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