United States District Court, S.D. West Virginia, Huntington Division
EUGENE M. JOHNSON, Plaintiff,
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
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
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. ECF No. 16. Plaintiff Eugene
M. Johnson opposes dismissal. For the following reasons, the
Court GRANTS the motion.
action represents round two of federal actions filed by
Plaintiff (Johnson I and Johnson II),
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 &
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
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. Plaintiff did not file an action in
federal court within the 90-day period.
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.
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).
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. Plaintiff did not appeal this decision.
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.
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.
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,  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 ...