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Jacox v. Sessions

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

April 17, 2017

KAREEM JACOX, Plaintiff,
v.
JEFF SESSIONS, Attorney General of the United States, Defendant.

          ORDER ADOPTING REPORT AND RECOMMENDATION, DENYING PLAINTIFF'S OBJECTION TO THE CHIEF MAGISTRATE JUDGE'S ORDER AND DISMISSING COMPLAINT

          SHERYL H. LIPMAN UNITED STATES DISTRICT JUDGE

         On May 5, 2016, Plaintiff Kareem Jacox filed his pro se Complaint, alleging that his former employer, the Drug Enforcement Administration (the “DEA”), discriminated against him based on his physical and mental disabilities, his gender and in retaliation for engaging in protected activities. (Compl., ECF No. 1.) On September 12, 2016, Defendant Loretta Lynch, [1]then Attorney General of the United States, filed a Motion to Dismiss (ECF No. 9), to which Plaintiff filed his response on September 21, 2016 (ECF No. 10). Defendant filed a Reply on October 3, 2016. (ECF No. 11.)[2] Without leave of Court, Plaintiff filed a pro se Amended Complaint on October 21, 2016. (ECF No. 14.) On October 27, 2016, Defendant filed a Motion to Strike Plaintiff's Amended Complaint (ECF No. 15), which the Chief Magistrate Judge granted on October 28, 2016. (ECF No. 16.)

         On November 7, 2016, Plaintiff filed a Motion, objecting to the Chief Magistrate Judge's Order striking his Amended Complaint. (ECF No. 17.) Subsequently, on November 23, 2016, the Chief Magistrate Judge submitted a Report and Recommendation (“R&R”), recommending that the Court grant Defendant's Motion to Dismiss for failure to state a claim upon which relief may be granted and for failure to exhaust administration remedies. (ECF No. 18.) Plaintiff filed his objection to the R&R on December 2, 2016. (ECF No. 19.) Defendant has not responded.

         STATEMENT OF THE CASE

         I. Factual Allegations:[3]

         Plaintiff was hired by the DEA in 2004 and became a Special Agent in 2005. (Compl. 5, ECF No. 1.) He was called into active duty from the Army Reserves from April 2013 through December 2013, during which time he suffered from serious and chronic health conditions. (Id.) Beginning in October 2013, Plaintiff notified the DEA's Health Services Unit that the changes in his health may affect his role as a Special Agent. (Id.) On December 12, 2013, Plaintiff informed Defendant in writing that he was released from active duty, that his healthcare provider took him off work because he was completely disabled and that he would be undergoing complex healthcare services. (Id. at 6.) He also sent Defendant's management personnel requested medical records, and was placed on limited duty. (Id.; Mem., ECF No. 1-7 at PageID 325.)

         In January 2014, pursuant to the requirements of the Federal Employees Retirement System (“FERS”), Plaintiff began the process of applying for disability from the Social Security Administration (“SSA”). On January 16, 2014, he submitted an SSA form to his direct supervisor, Gabe Bewley, to be completed and returned within seven days. (Compl. 7, ECF No. 1.) On January 21, 2014, Mr. Bewley informed Plaintiff that he had given the letter to his Supervisor, Brian Chambers, who in turn informed Plaintiff that he sent the letter to Michael Stanfill, the Assistant Special Agent in charge of Tennessee. (Id. at 7-8.) On either January 22 or 23, 2014, an SSA representative, Alicia Moore, contacted Plaintiff to inform him that she had received a call from Mr. Stanfill, requesting Plaintiff's healthcare information. (Id. at 9.) Plaintiff advised Ms. Moore that he did not authorize her to reveal any of his protected healthcare information to Mr. Stanfill. (Id.) Mr. Bewley then informed Plaintiff that he could not complete the form because he could not assess Plaintiff's productivity percentage, which was required for the form. (Id. at 10-11.) On February 26, 2014, Mr. Stanfill informed Plaintiff that they could not complete the form and “could not help Plaintiff if they did not know what's going on with him.” (Id. at 13.) That same day, Plaintiff filed an online complaint for harassment against Mr. Stanfill based on Stanfill's attempt to obtain information about Plaintiff's medical condition. (Id.)

         Also on February 26, 2014, Plaintiff received two memoranda. The first, sent by Harry Sommers, the Special Agent in Charge, Atlanta Field Division, placed Plaintiff on five days administrative leave for his “recent erratic behavior, ” including “leaving the office early without supervisory approval, disputing [his] established work hours, accusing [his] supervisors of attempts to determine [his] medical condition and harassing behavior.”[4] (Mem., ECF No. 1-8 at PageID 399.) The second memorandum, sent by Mr. Stanfill, was to “readdress [his] established working hours while [he is] on Limited Duty and receiving Availability Pay.” (Id. at PageID 400-01.) This memorandum addressed a disagreement between the parties over Plaintiff's duty hours. (Id.) Specifically, Mr. Stanfill indicated that, for Plaintiff to retain “Availability Pay, ” his duty hours were to be Monday through Friday, 8:30 a.m. to 7:00 p.m., rather than 8:00 a.m. to 4:30 p.m., which were the hours Plaintiff had been working prior to that time. (Id.)

         On March 11, 2014, Plaintiff alleges that Mr. Bewley informed him that Mr. Chambers wanted Plaintiff to write “a series of Memorandums for medical necessity for work hours, ” although Plaintiff does not indicate what those memorandums were comprised of or why he was required to write them. (Compl. 21, ECF No. 1.) Then, on March 12, 2014, Mr. Chambers formally referred Plaintiff to the Employee Assistance Program out of concern for his “erratic behavior.” (Mem., ECF No. 1-8 at Page ID 402-04.) On the same day, Plaintiff contacted the Atlanta Field Division Officer to file another harassment complaint. (Compl. 21, ECF No. 1.) On March 21, 2014, Plaintiff was reassigned to report to Mr. Chambers, which Plaintiff alleges did not follow standard agency procedures. (Id.) Plaintiff alleges that “[o]ther Special Agents in Tennessee that had [sic] issued medical advisories by the Health Services Unit were treated more favorable than Plaintiff when they were not subjected to harassment allegations levied against them for erratic behavior.” (Id. at 18.)

         On April 11, 2014, Plaintiff requested sick leave beginning April 18, 2014, which Defendant initially denied. (Id. at 22.) Plaintiff alleges that a request for sick leave requires mandatory approval when requested by a disabled veteran. (Id.) On April 18, 2014, Mr. Chambers informed Plaintiff that his sick leave request was approved by DEA headquarters. (Id.) Meanwhile, on April 17, 2014, Mr. Chambers issued Plaintiff a Suitability Review Protocol (“SRP”) Evaluation memorandum, dated April 15, 2014, which requested that Plaintiff go to Washington, D.C. on May 5 through May 8, 2014 for an evaluation. (Id.; Mem., ECF No. 1-10 at PageID 447.) On April 22, 2014, Plaintiff received another SRP, rescheduling the evaluation for May 27-28, 2014, in Washington, D.C. (Compl. 22, ECF No. 1; Mem., ECF No. 1-10 at PageID 449-50.) Plaintiff was instructed that his failure or refusal to report for a scheduled SRP would subject him to disciplinary action, “up to and including removal.” (Mem., ECF No. 1-10 at PageID 449.) Plaintiff refused to sign the “Acknowledgement of Receipt” page on the second SRP memorandum and did not appear in Washington, D.C. in May 2014, as ordered. (Id. at PageID 456.) A third SRP memorandum issued September 24, 2014, scheduled an SRP evaluation process for October 20-21, 2014. (Id.)

         On September 5, 2014, Plaintiff was issued a memorandum placing him on leave restriction due to his “excessive use of unscheduled leave since July 2014.” (Id. at PageID 451.) On September 17, 2014, Plaintiff filed an employment discrimination complaint with the Department of Justice (“DOJ”) against the DEA, alleging discrimination based on disability and retaliation. (Exh. 1, ECF No. 1-1.) Plaintiff then retired on October 31, 2014. (Compl. 23, ECF No. 1.) The DOJ issued a final decision on the complaint on February 2, 2016, concluding that Plaintiff was not subjected to either disparate treatment or a hostile work environment based on disability or reprisal. (Exh. 1, ECF No. 1-1.) Thereafter, Plaintiff filed the present Complaint, which was timely filed within 90 days of the final decision of the DOJ. See 29 C.F.R. § 1614.407(a).

         II. Procedural Posture

         Plaintiff filed this pro se Complaint on May 6, 2016, challenging the decision of the DOJ and asserting that his former employer, the DEA, discriminated against him based on his alleged mental and physical disability, in violation of the Americans with Disabilities Act (the “ADA”) and the Rehabilitation Act of 1973, and retaliated against him for engaging in protected activity, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e (“Title VII”)[5] and the Rehabilitation Act. (Compl., ECF No. 1.) Defendant filed a Motion to Dismiss (ECF No. 9) on September 12, 2016, arguing that Plaintiff's disability discrimination and retaliation claims fail to state a claim upon which relief may be granted and that all other claims by Plaintiff were not administratively exhausted. On November 23, 2016, the Chief Magistrate Judge issued a Report and Recommendation, recommending that Defendant's Motion to Dismiss be granted. (ECF No. 18.) Plaintiff filed a timely objection on December 2, 2016 (ECF No. 19), to which Defendant did not respond.

         Although Plaintiff's filing lacks specific objections, [6] the Court construes his submission as lodging two general objections to the Chief Magistrate Judge's findings. First, Plaintiff objects to the finding that he fails to establish a prima facie case of disability discrimination because he has not established that other non-protected employees were treated differently than him. (ECF No. 19.) Next, he objects to the finding that he has not established a prima facie case of retaliation because he has not shown that the DEA took adverse action ...


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