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Johnson v. West Virginia Division of Rehabilitative Services

United States District Court, S.D. West Virginia, Huntington Division

April 27, 2018

EUGENE M. JOHNSON, Plaintiff,
v.
WEST VIRGINIA DIVISION OF REHABILITATIVE SERVICES, WEST VIRGINIA DEPARTMENT OF EDUCATION AND THE ARTS, GENTRY CLINE, TERESA SWECKER, and TERESA HAER, Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE.

         Pending before the Court is a Motion to Dismiss by Defendants West Virginia Division of Rehabilitative Services (WVDRS), West Virginia Department of Education and the Arts, Gentry Cline, Teresa Swecker, and Teresa Haer.[1] ECF No. 16. Plaintiff Eugene M. Johnson opposes dismissal. For the following reasons, the Court GRANTS the motion.

         I. Background

         This action represents round two of federal actions filed by Plaintiff (Johnson I and Johnson II), [2] alleging disability discrimination related to his former employment. On August 16, 2013, Plaintiff was hired by the WVDRS as a Rehabilitation Counselor to work in the Huntington District Office. Johnson II Compl., at ¶9, ECF No. 2. Prior to being hired, Plaintiff was diagnosed with attention deficit hyperactivity disorder (ADHD), dyslexia, migraine headaches, and depression. Id. at ¶13. Plaintiff asserts that Defendants had notice of his disability status prior to his employment because he received services from the WVDRS. Id. at ¶¶14 & 16.

         On March 18, 2015, Plaintiff filed his first Charge of Discrimination against the WVDRS with the Equal Employment Opportunity Commission (EEOC) for conduct that occurred on or before November of 2014. Johnson v. W.Va. Div. of Rehab. Servs., No. 3:16-9308, 2017 WL 1395501, at *4 (S.D. W.Va. Apr. 17, 2017) (Johnson I). Approximately four months later, in or about July 2015, Plaintiff was terminated from his employment. Johnson II Compl., at ¶49.[3]

         Shortly after his termination, on August 24, 2015, Plaintiff received his first Right to Sue within 90 Days Letter from the EEOC. Id., at ¶24. Thereafter, Plaintiff filed a civil action against the WVDRS, Teresa Swecker, and Teresa Haer in the Circuit Court of Cabell County, West Virginia, on November 17, 2015.[4] Plaintiff did not file an action in federal court within the 90-day period.

         On March 15, 2016, Plaintiff filed a second charge against the WVDRS with the EEOC, “alleging disability discrimination, retaliation, discharge, and failure to accommodate” against the WVDRS. Defs.' Mem. of Law in Supp. of Defs.' Mot. to Dismiss, at 2, ECF No. 17; Johnson I, 2017 WL 1395501, at *4. Approximately one month later, on April 12, 2016, Plaintiff voluntarily dismissed his state action to proceed with a Level III Grievance Hearing before the West Virginia Public Employees Grievance Board and his second EEOC charge. Johnson I, 2017 WL 1395501, at *4; Defs.' Mem. of Law in Supp. of Defs.' Mot. to Dismiss, at 2. According to Defendants, Plaintiff requested an indefinite continuance of his Level III Grievance Hearing on July 22, 2016, pending the outcome of his second EEOC Complaint. The continuance was granted over Defendants' objections. Defs.' Mem. of Law in Supp. of Defs.' Mot. to Dismiss, at 3.

         More than a year after receiving his first Right to Sue within 90 Days Letter from the EEOC, and before the EEOC made a determination on his second EEOC Charge, Plaintiff filed his first action in this Court against the WVDRS on October 3, 2016. Johnson I Compl., 3:16-09308, ECF No. 2. In his Johnson I Complaint, Plaintiff alleged the following five counts: (1) Count I-disability discrimination based upon the fact that the WVDRS terminated Plaintiff's disability-related services one week after hiring him in August 2013; (2) Count II-disability discrimination based upon the WVDRS's February 2014 decision to transfer Plaintiff's assistant to a different location; (3) Count III-disability discrimination based upon the WVDRS's June 2014 directive that Plaintiff only could interact with his assistant via email; (4) Count IV- disability discrimination based upon the WVDRS's denial of his requests for transfer that he began making in November 2014; and (5) Count V-disability discrimination based upon his termination in July 2015 instead of providing him a transfer as a reasonable accommodation. In the prayer for relief, Plaintiff requested damages for these alleged violations of Title VII of the Civil Rights Act of 1964 (Title VII) and the American with Disabilities Act (ADA).

         On March 6, 2017, the WVDRS filed a motion to dismiss his first federal action. Johnson I, 3:16-9308, ECF No. 18. In considering the motion, the Court recognized that the EEOC had not issued a Right to Sue letter for the conduct alleged in Counts IV and V, and Plaintiff had a pending state grievance related to Counts I, II, and III. Johnson I, 2017 WL 1395501, at *4. Therefore, the Court dismissed Plaintiff's case without prejudice because Plaintiff had not exhausted his administrative remedies and this Court lacked subject matter jurisdiction. Id. at *4-5.[5] Plaintiff did not appeal this decision.

         Three days after the Court entered its decision in Johnson I, the EEOC issued a second Right to Sue within 90 Days Letter on April 20, 2017. Johnson II Compl., at ¶25. Thereafter, Plaintiff filed the current action in this Court on July 19, 2017. In his second Complaint, Plaintiff names not only the WVDRS, but also the West Virginia Department of Education and the Arts, Donna Ashworth, Gentry Cline, Teresa Swecker, and Teresa Haer. Counts I through V are nearly verbatim to the Counts I through V in his first Complaint. The only significant difference in the second Complaint is that Plaintiff cursorily describes the roles of Defendants Ashworth, Cline, Swecker, and Haer in the alleged discriminatory actions, and he added a Count VI, alleging in a single sentence that the WVDRS's actions and omissions violated the Rehabilitation Act of 1973. Defendants now move to dismiss this Complaint.

         II. Legal Standard

         As in the first action, the motion to dismiss raises questions of both subject matter jurisdiction and the sufficiency of the pleadings. At the outset, this Court must address whether it has subject matter jurisdiction before it rules on the merits of any of Plaintiff's claims. Johnson I, 2017 WL 1395501, at *2. When, as here, a motion is made pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court must determine whether it has jurisdiction to adjudicate the claims in the complaint. “Federal courts possess ‘only the jurisdiction authorized them by the United States Constitution and by federal statute.'” Id. (quoting United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009)). If challenged, it is the plaintiff's burden to “establish[] a factual basis for jurisdiction.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). “If a ‘facial attack' is made, the court must accept the complaint's allegations as true and decide if the complaint is sufficient to confer subject matter jurisdiction.” Id. (citation omitted); see also Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009) (explaining that, “when a defendant asserts that the complaint fails to allege sufficient facts to support subject matter jurisdiction, the trial court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged”). If a “factual attack” is brought, the court may consider the allegations in the complaint as evidence, but also “‘may consider evidence outside the pleadings without converting the proceedings to one for summary judgment.'” Id. (quoting Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768). Here, applying a Rule 12(b)(6) procedural framework, the Court finds Plaintiff has failed to establish subject matter jurisdiction on the face of his Complaint.

         III. Discussion

         In bringing this second action, Plaintiff suffers the same fundamental fatal flaw as he did in bringing the first action. In both instances, Plaintiff has failed to allege a proper basis to confer subject matter jurisdiction on this Court. In order to have an actionable claim, [6] section 706(c) of Title VII requires a plaintiff to exhaust his or her administrative remedies prior to instituting a judicial action alleging employment discrimination. See Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (“[A] failure by the plaintiff to exhaust administrative remedies concerning a ...


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