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Lawrence William Klute v. Eric Shinseki

July 12, 2011


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


This case arises from claims brought pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12102, 12111-12 (2006), Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 (2006), and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794a (2006).*fn1 Complaint ("Compl.") ¶ 4. The plaintiff asserts that he was discriminated against by the defendant based on his disabilities, race, and sex. Id. ¶ 1. Currently before the Court is the defendant's Federal Rule of Civil Procedure 56 motion for summary judgment. See Defendant's Motion for Summary Judgment ("Def.'s Mot."). For the reasons that follow, the Court concludes that it will sua sponte dismiss all claims without prejudice, and will therefore deny the motion for summary judgment.*fn2


In 1997 the plaintiff suffered a stroke and consequently developed several physical impairments, including peripheral vascular disease, diabetes, stenosis, and lumbar arthritis. Compl. ¶ 8; Pl.'s Opp'n at 2. These conditions affected the plaintiff's ability to write, speak, see, walk, and concentrate. Compl. ¶ 8; Pl.'s Opp'n at 2. Nonetheless, the plaintiff, an attorney, obtained employment with the Department of Veterans Affairs ("VA") in January 2006, where he worked until April 1, 2010. Compl. ¶ 6.

A. The Plaintiff's Employment at the VA

As an associate attorney at the VA, the plaintiff was required to meet a quota, or "production requirement," of 156 credits (mostly cases) per year. See Plaintiff's Opposition Appendix ("Pl.'s Opp'n App.") at 14 (Sullivan Deposition).*fn3 During his time at the VA, the plaintiff worked for four different judges on the Board of Veterans Appeals. Id. at 25 (Medical Records). For his first two years at the VA, he received "fully successful" performance reviews. See id. In March 2008, the plaintiff began working for Judge Barry Bohan, from whom he allegedly received "untimely" and "unsatisfactory" ratings on his performance reviews. Id. The plaintiff then began working "excessive hours" to keep up with the production quota. Compl. ¶ 14. As a result of the purported "discriminatory treatment by management, the plaintiff also developed emotional conditions." Pl.'s Opp'n at 3. Specifically, the plaintiff's psychiatrist diagnosed him with adjustment disorder with mixed anxiety and depression. Def.'s Mot., Exhibit ("Ex.") 3 (Letter from Gerald P. Perman, M.D., P.A. ("Perman Letter"); see also Compl. ¶¶ 11, 15. The psychiatrist believed that the plaintiff began suffering from the adjustment disorder with mixed anxiety and depression on June 11, 2008. Def.'s Mot., Ex. 3 (Perman Letter). According to the plaintiff, this condition worsened to the point that in December, 2008, he needed an accommodation to continue working. Compl. ¶ 9. The plaintiff, sometimes through his psychiatrist, requested an accommodation on three occasions: on December 9, 2008, December 29, 2008, and March 9, 2009. On each occasion the requested accommodation consisted of a reduced caseload and transfer to another "decision team" (or supervisor). Id. ¶¶ 9-10, 13. Each time the request to transfer to a different supervisor was denied. Id. The defendant, through a letter dated December 11, 2008, to the plaintiff from Chief Veterans Law Judge Robert Sullivan, also refused to reduce the productivity requirements, asserting that they were an essential function of the job. Def.'s Reply at 2. In that same letter the defendant advised the plaintiff he could utilize the Family and Medical Leave Act ("FMLA") to have the productivity requirements waived during an extended absence from work. Id. In the same letter the defendant also suggested that the plaintiff could consider part-time employment, which would reduce the productivity requirement in proportion to the number of hours worked. Id.

The plaintiff "missed" work from December 9, 2008 to March 30, 2009, which he claims was a "result of the failure to accommodate." Compl. ¶ 11. When the plaintiff returned to work, Chief Judge Sullivan told him he would need to undergo a "performance improvement plan." Id. ¶ 12; Def.'s Statement ¶ 6. According to the plaintiff, his physical and psychological impairments prohibited him from complying with the productivity requirement without working additional hours, at night, on weekends, and on holidays. Compl. ¶ 14. Unable to endure the stress of maintaining that schedule, the plaintiff retired from his position with the VA on March 31, 2010. Id.

B. The Plaintiff's Pursuit of Administrative Remedies

Prior to his retirement, on January 13, 2009, the plaintiff sought counseling from the Office of Resolution Management at the VA, Pl.'s Opp'n App. at 2., which the plaintiff refers to and the Court understands to be "EEO counseling," Pl.'s Opp'n at 1.*fn4 On the initial contact and interview sheet he submitted to the Office of Resolution Management, the plaintiff indicated that the remedy he was seeking was "assign[ment] to another decision team and judge and relief from quota during his absence." Pl.'s Opp'n App. at 3. A February 12, 2009 letter sent to the plaintiff informed him that the informal counseling on his claims would be closed along with two copies of the Notice of Right to File a Discrimination Complaint. Id. at 4. The plaintiff filed an official administrative Complaint of Employment Discrimination on February 25, 2009, id. at 6, which he refers to as his "EEO Formal Complaint," id. at 1. That Complaint was assigned to Administrative Judge Abigail Coleman at the United States Equal Opportunity Employment Commission ("EEOC"). Id. at 8. On March 12, 2010, in connection with the case pending before the EEOC, the plaintiff deposed three individuals. Id. at 9, 13, 16. The plaintiff "filed this action while the case was still pending at the EEOC," and does not include the outcome of the EEOC proceeding in any of his pleadings in this case. Pl.'s Opp'n at 2. He filed his Amended Complaint in this case on August 6, 2010.

The plaintiff also apparently at some point submitted a claim to the United States Department of Labor's Office of Workers' Compensation Programs ("OWCP"). Id. at 4; Pl's Opp'n App. at 52. Based on a report dated May 18, 2010, from the plaintiff's psychiatrist, the OWCP informed the plaintiff in a letter dated June 1, 2010, that his claim had been accepted.

Pl.'s Opp'n App. at 52. While the plaintiff maintains that the claim was accepted "based upon thework-related stress," that the "OWCP found that the VA failed to accommodate [his] condition . . . [,] that he was subjected to unprofessional management treatment," and that OWCP "only accepts work related stress claims if [there] has been discrimination and/or supervisory abuse," Compl. ¶ 15, the Court does not find support for these assertions in the June 1, 2010 letter to the plaintiff from the OWCP or in any of the plaintiff's other filings in this case. The defendant states, on the other hand, that it is his understanding that the plaintiff filed a Workers' Compensation claim as advised in the June 1, 2010 letter "and that, as a result of that claim, [the] [p]laintiff was awarded compensation from the Department of Labor. Def.'s Mot. at 4.


"Federal courts are courts of limited jurisdiction." Kokkonen, v. Guardian Life. Ins. Co. of Am., 511 U.S. 375, 377 (1994). "They possess only that power authorized by the Constitution and statute, . . . [i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction." Id. (citing Willy v. Coastal Corp., 503 U.S. 131, 136-37 (1992); McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-83 (1936); Turner v. Bank of North Am., 4 U.S. 8, 11 (1799)).

Federal Rule of Civil Procedure 12(h)(3) provides that "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). In assessing its jurisdiction over the subject matter of the claims presented, a court "must accept as true all of the factual allegations contained in the complaint" and draw all reasonable inferences in favor of the plaintiff, Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008) (internal quotation marks omitted), but courts are "not required . . . to accept inferences unsupported by the facts alleged or legal conclusions that are cast as factual allegations." Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001). Further, the "court may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction in the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000). Ultimately, however, the plaintiff bears the burden of ...

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