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Belton v. Shinseki

July 27, 2009

WILLIE D. BELTON, SR., PLAINTIFF,
v.
ERIK K. SHINSEKI,*FN1 SECRETARY OF VETERAN AFFAIRS, DEFENDANT.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

Plaintiff Willie D. Belton, Sr., proceeding pro se, has brought claims against defendant, the Secretary of Veteran Affairs, under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633a et seq., the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. After plaintiff filed an amended complaint, defendant moved to dismiss or, in the alternative, for summary judgment. Upon consideration of defendant's motion, the responses and replies thereto, the applicable law, the entire record herein, and for the reasons stated below, the Court GRANTS defendant's motion to dismiss and DENIES AS MOOT defendant's motion for summary judgment.

I. Background

Plaintiff is an African-American male who was forty-eight years old when his amended complaint was filed. Am. Compl. ¶ 6. Plaintiff joined the Veterans Administration ("VA") in 1981 as an electrician's helper. Id. ¶ 6. He alleges that he was disabled while in military service and that his lower back is "rated at 20%." Id. ¶ 9. Plaintiff claims that he was subjected to intentional discrimination, retaliation, and a hostile work environment based on his age, race, and disability. Id. ¶¶ 8-10.

Specifically, plaintiff claims that he applied for a General Engineer position (Vacancy Announcement No. VAR-DV-0-1956) in April 2000.*fn2 Id. ¶¶ 20, 27. He alleges that he was qualified for the position but that he was not selected or notified of the non-selection. Id. ¶ 27. Defendant, however, points to evidence that plaintiff was notified of his ineligibility for the position on May 12, 2000. Def.'s Statement of Material Facts Not in Genuine Dispute ¶ 3; Pl.'s Opp'n Ex. B-1.

Plaintiff also claims that he was harassed by his supervisor. In particular, plaintiff alleges that his supervisor sent plaintiff e-mails requesting that he complete his work orders on the same day they were assigned to him. Am. Compl. ¶ 9. He also claims that he received a phone call at home from his supervisor, who threatened physical harm after plaintiff filed complaints. Id. ¶ 14. Finally, plaintiff alleges that his supervisor retaliated against him by forcing him to work with a co-worker who plaintiff claims was known to be "dangerous." Id. ¶ 16. More generally, plaintiff contends that he was discriminated and retaliated against because the VA refused to provide him with "electrically protective clothing." Id. ¶¶ 10-12.

Plaintiff contacted an Equal Employment Opportunity ("EEO") counselor on June 25, 2001 with claims of harassment and non-selection on the basis of race and physical disability. See Def.'s Mot. Ex. 1. He then filed an initial EEO complaint on August 24, 2001. Id. On January 3, 2002, the VA accepted for further processing plaintiff's harassment claim and rejected as untimely his non-selection claim because plaintiff did not contact a counselor within forty-five days of the date of his non-selection. See id. at 4. On September 25, 2003, plaintiff was placed in a "Leave Without Pay" status pending resolution of workers' compensation claims related to his continued unauthorized absences from work. See Def.'s Exs. 7-8. When his workers' compensation claims were denied by the Department of Labor on March 15, 2004, plaintiff was placed in an "Absent Without Leave" status. See Def.'s Mot. Exs. 7-8.

Plaintiff filed a complaint in this Court in April 2004 and sought leave to amend the complaint in March 2005. Defendant moved to dismiss the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment pursuant to Rule 56. Plaintiff filed a "preliminary" opposition and, after defendant filed a reply, moved for an extension of time to respond to defendant's reply and to obtain counsel.*fn3 The Court granted plaintiff's motion, directing plaintiff to file a "final opposition" and permitting defendant to file a surreply. The parties did so, and the motion is ripe for decision.

II. Standard of Review

A. Rule 12(b)(1)

On a motion to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Because subject-matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiffs' factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion for failure to state a claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003). Thus, to determine whether it has jurisdiction over the claim, the court may consider materials outside the pleadings where necessary to resolve disputed jurisdictional facts. Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).

B. Rule 12(b)(6)

Pursuant to Federal Rule of Civil Procedure 8(a), a pleading stating a claim for relief must contain "'a short and plain statement of the claim showing that the pleader is entitled to relief'" in order to provide the defendant with "fair notice of the claims against" him. Ciralsky v. CIA, 355 F.3d 661, 669, 670 (D.C. Cir. 2004) (quoting Fed. R. Civ. P. 8(a)); see also Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (per curiam). "[W]hen a complaint adequately states a claim, it may not be dismissed based on a district court's assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007). In considering a 12(b)(6) motion, the Court should construe the complaint "liberally in the plaintiff's favor," "accept[ing] as true all of the factual allegations" alleged in the complaint. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) ...


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