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Claborn-Welch v. Perdue

United States District Court, W.D. Missouri, Western Division

April 27, 2018

VANESSA CLABORN-WELCH, Plaintiff,
v.
SONNY PERDUE, Secretary, Department of Agriculture, et al., Defendants.

          ORDER AND OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

          RTRIE D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT

         Pending is Defendants' motion to dismiss. Doc. #9. Defendant's motion is granted in part, and denied in part.

         I. BACKGROUND

         Plaintiff Vanessa Claborn-Welch was employed as an Information Technology Specialist with the United States Department of Agriculture's (“USDA”) Risk Management Agency (“RMA”) Fiscal Operation Branch in Kansas City, Missouri, from 1985 to 2002.[1] In 2000, Plaintiff was diagnosed with demantromyositis/ polymysitis, a disease that affected her immune system and caused her to suffer muscle weakness, difficulty breathing and moving, and “extreme and constant pain and anemia.” Plaintiff could not work in RMA's Kansas City office because her suppressed immune system prevented her from having contact with large groups of people. Plaintiff sought, and was granted, a reasonable accommodation in September 2000 to work from home as part of the agency's Short Term Medical Flexiplace Program. According to Plaintiff, this reasonable accommodation permitted Plaintiff to telework until she was able to return to work at RMA's office, or until she retired.

         In March 2001, Plaintiff was notified via letter that her approved flexible work program period had ended. The letter gave Plaintiff three options: (1) report to work at RMA's offices, (2) voluntarily quit, or (3) apply for disability retirement. Plaintiff objected to these options, and spoke with a Human Resources Specialist in Washington, D.C., who informed Plaintiff that each agency sets its own rules, and Plaintiff had to comply with those rules. Plaintiff contacted her immediate supervisor, who informed Plaintiff that she did not agree with the letter and had refused to sign it. According to the complaint, Plaintiff's immediate supervisor supported her desire to continue working. Plaintiff also contacted Defendants Lonnie Clemons and Steven Ginie, both in management roles with RMA, but was told she must quit or retire. Presented with her options, Plaintiff submitted for medical retirement, and remained in the flexible work program until her retirement was approved in February 2002.

         In 2011, Plaintiff attended a funeral where she learned two Caucasian female employees who had “gone out” on the flexible work program were permitted to participate in that program until they retired. Specifically, Plaintiff's complaint alleges these employees started the flexible work program “approximately the same time as Plaintiff, ” but were allowed to continue working for approximately five additional years, until each retired in 2007. Plaintiff, who identifies as a black female, maintains the agency held an unyielding position regarding her accommodation and disability yet provided accommodations for Caucasian employees. Plaintiff states her immediate supervisor observed racial bias by Defendants Clemons and Ginie, both Caucasian men. Plaintiff contends agency policy regarding the flexible work program permits long term or short term participation, and an employee can stay in the program as long as they are employed if the agency supports the employee.

         After being informed that Caucasian employees were permitted to participate in the flexible work program until their retirement, Plaintiff sought administrative remedies. On March 9, 2011, Plaintiff contacted an EEO counselor. Counseling was conducted, and Plaintiff received a Notice of Right to File a formal complaint on June 22, 2011. On July 6, 2011, Plaintiff filed a formal complaint. On April 5, 2012, the agency issued its decision dismissing the complaint as untimely. On April 26, 2012, Plaintiff filed an appeal with the Merit Systems Protection Board (“MSPB”). On September 28, 2012, the MSPB dismissed Plaintiff's appeal for lack of jurisdiction. Plaintiff sought review of that decision, but the MSPB denied her petition for review. On September 24, 2013, Plaintiff requested the Equal Employment Opportunity Commission (“EEOC”) review the MSPB's order. On June 11, 2014, the EEOC denied Plaintiff's request, and remanded the petition to the agency. On April 28, 2015, a final agency decision was issued. Plaintiff sought review of the final agency decision, but the EEOC denied relief. Plaintiff sought reconsideration of that decision, but the request was denied on June 9, 2017.

         Following the administrative process, Plaintiff filed this matter on September 7, 2017. Plaintiff's complaint alleges: (1) failure to accommodate disability, (2) race discrimination, (3) wrongful discharge and/or constructive discharge, (4) fraud, (5) fraudulent concealment, and (6) outrageous conduct. On December 11, 2017, the Court issued an order to Plaintiff to show cause why defendants had not been served. Doc. #3. In response, Plaintiff indicated Defendant agency had been served, but individuals Ginie and Clemons had not been served.[2] Doc. #8.

         Although Ginie and Clemons have not been served, all Defendants move to dismiss Plaintiff's complaint for several reasons. First, Defendants argue Ginie and Clemons should be dismissed due to Plaintiff's failure to serve them in accordance with the Federal Rules of Civil Procedure. Second, Defendants argue Plaintiff's common law claims for fraud, fraudulent concealment, and outrageous conduct should be dismissed because those claims are barred by sovereign immunity and precluded by Title VII and the Rehabilitation Act. Third, Defendants argue Plaintiff's failure to accommodate, race discrimination, and wrongful and/or constructive discharge claims should be dismissed because Plaintiff failed to timely exhaust administrative remedies. In the alternative, Defendants argue these claims are barred by the doctrine of laches.

         II. DISCUSSION

         A. Failure to Serve

         The Court first addresses the issue of service on the individual defendants. An officer or employee of the United States sued in an individual capacity must be served in accordance with the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 4(i)(3); Fed.R.Civ.P. 4(e). In response to the motion to dismiss, Plaintiff concedes she has been unable to locate or serve Ginie and Clemons, and requests the Court dismiss Plaintiff's claims against these parties without prejudice. Accordingly, the Court dismisses without prejudice Plaintiff's claims against individuals Ginie and Clemons.

         B. Common Law Claims

         The Court next addresses Plaintiff's common law claims for fraud, fraudulent concealment, and outrageous conduct. Defendant agency[3] argues these claims are barred by sovereign immunity, and precluded by Title VII and the Rehabilitation Act. In response, Plaintiff requests the claims be dismissed without prejudice. Plaintiff briefly argues these claims are not barred by sovereign immunity, or precluded by Title VII or the Rehabilitation Act, but ultimately requests dismissal of these claims without prejudice. While sovereign immunity and preclusion likely pose insurmountable obstacles to Plaintiff's common law claims, the Court finds resolution of those issues unnecessary at this time because Plaintiff concedes ...


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