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Dunn v. Esper

United States District Court, E.D. Kentucky, Central Division, Lexington

September 30, 2019

MICHIAL L. DUNN, Plaintiff,
DR. MARK ESPER, Secretary of the Army, et al., Defendants.



         This matter is before the Court on Defendant’s Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) or, in the alternative, Fed.R.Civ.P. 12(b)(6). [R. 32] For the reasons below, the Court will GRANT Defendant’s motion.

         I. Background

         This case involves claims by Plaintiff Michial L. Dunn (“Dunn” or “Plaintiff”) against the Acting Secretary of the Army (the “Army” or “Defendant”). [R. 1, Compl., ¶¶ 1-3] Specifically, Plaintiff asserts claims for discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §2000e et seq., Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §701 et seq., the Age Discrimination in Employment Act of 1967 (the “ADEA”), 26 U.S.C. §621 et seq. Plaintiff alleges that the Army discriminated against him in 2013 when it had him re-evaluated for a workplace injury he suffered in 1994, then offered him a position that he was unable to perform, with the sole intention of revoking his federal Office of Workers’ Compensation Programs (“OWCP”) benefits. [R. 1, Compl., ¶¶ 15-40] In response, Defendant filed a motion to dismiss, arguing that Plaintiff’s discrimination and retaliation claims against the Army are an “attempted . . . end run around the [OWCP] appeals process by asking the Court to overturn the decision of the OWCP Board.” [R. 32-1, at p. 1] Defendant contends that the Federal Employees’ Compensation Act (“FECA”), 5 U.S.C. § 8101 et seq., strips the Court of jurisdiction in this case because it prevents review of whether the OWCP improperly denied the Plaintiff compensation.

         In the alternative, Defendant argues that the Plaintiff’s Complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) because “the claims alleged fail to establish a prima case of (1) discrimination or retaliation under Title VII or (2) discrimination under the Rehabilitation Act and the Age Discrimination in Employment Act.” [R. 32-1, at p. 1]

         Because the Court finds that Plaintiff’s Complaint (and all his discrimination claims) is really a collateral attack on the OWCP’s decision to redetermine his benefits under FECA, the Court will GRANT Defendant’s Motion to Dismiss pursuant to Rule 12(b)(1). In addition, the Court finds that Plaintiff’s Complaint fails to state a claim and would be dismissed pursuant to Defendant’s Rule 12(b)(6) Motion.

         II. Standard of Review for Rule 12(b)(1) Motions

         When considering a motion to dismiss pursuant to Rule 12(b)(1), the Plaintiff bears the burden of proving jurisdiction in order to survive the motion. Wayside Church v. Van Buren Cty., 847 F.3d 812, 817 (6th Cir. 2017), cert. denied sub nom. Wayside Church v. Van Buren Cty., Mich., 138 S.Ct. 380 (2017) (quoting Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986)). A challenge to subject-matter jurisdiction under Rule 12(b)(1) is either a “facial attack, ” where the Court must take all of the allegations in the Complaint as true, or a “factual attack, ” where the Court can “weigh evidence to confirm the existence of the factual predicates for subject-matter jurisdiction.” Amburgey v. United States, 733 F.3d 633, 636 (6th Cir. 2013) (citing McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012)) (internal quotation marks omitted)). In challenging the Court’s subject-matter jurisdiction, the Defendant attacked the factual background that gives rise to the Plaintiff’s Complaint. See [R. 32-1, at p. 8] Thus, the Court will treat this as a factual attack. When ruling on a factual attack, “no presumptive truthfulness applies to the allegations, ” and the Court “must weigh the conflicting evidence to arrive at the factual predicate that subject-matter [jurisdiction] does or does not exist.” Gentek Bldg. Prods., Inc., v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007). That is the analysis the Court will apply here.

         III. Standard of Review for Rule 12(b)(6) Motions

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is factually plausible if the complaint contains factual allegations that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This does not require a showing that the defendant is probably liable, but “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. To meet this plausibility standard, the complaint must contain more than “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. A complaint whose “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct” does not satisfy the pleading requirements of Rule 8 and will not withstand a motion to dismiss. Id. at 679.

         IV. Factual and Procedural Background

         Plaintiff began working as a boiler plant operator for the Defendant beginning on or about June 1, 1991. [R. 1, Compl., ¶ 8] Plaintiff is an African-American over the age of forty (40), who suffers from a disability, specifically carpal tunnel and a herniated disc. [R. 1, Compl., ¶ 7] The Plaintiff claims that “[o]n or around January 25, 1992, Plaintiff suffered an on-the-job injury that led to a permanent total disability with carpal tunnel in both hands and recurrent back and leg pain.” [R. 1, Compl., ¶ 9] The Office of Workers’ Compensation Programs (“OWCP”), a subdivision of the Department of Labor (“DOL”) which “administers the FECA and is required to provide for limited duty jobs to accommodate employees with compensable job-related injuries, ” awarded Plaintiff temporary total disability compensation effective August 31, 1995. Gantner v. Potter, No. CIV.A. 3:03CV-644-S, 2007 WL 3342305, at *3 (W.D. Ky. Nov. 7, 2007) (describing OWCP’s role); Id.; [R. 1, Compl., ¶ 10]

         The OWCP continued to monitor the Plaintiff’s medical condition, resulting in various proceedings not relevant here. Eventually, in 2013, the OWCP had the Plaintiff re-evaluated, resulting in a determination that Plaintiff was capable of performing limited work. On January 24, 2013, a doctor opined that while the Plaintiff could not perform the duties of a boiler plant operator, he could return to work eight hours a day in a limited duty position with certain restrictions. [R. 32-3, Ex. B-Tritz Decl., ¶ 11 and referenced attachments therein] As a result, the OWCP determined that the medical evidence demonstrated that the Plaintiff could perform sedentary duties, and hence, was able to resume light duty work under certain restrictions. [R. 32-1, at p. 4] On February 4, 2013, Debra K. Cowan, Human Resource Specialist for the U.S. Army Civilian Human Resource Agency, received a letter from the DOL requesting that she make a job offer to the Plaintiff that took into account the noted restrictions by the doctor. [R. 32-1, at. p. 4; R. 32-2, Ex. A – Cowan Decl., ¶ 6; R. 32-3, Ex. B – Tritz Decl., ¶ 11] Ms. Cowan informed the Plaintiff that it was her role as the Agency’s Injury Compensation Program Administrator to return employees to work. [R. 35, at p. 2] Then, on March 25, 2013, Ms. Cowan extended an offered to the Plaintiff for a permanent limited-duty position as a facilities management clerk. [R. 32-2, Ex. A – Cowan Decl., ¶ 7; R. 32-3, Ex. B – Tritz Decl., ¶ 11; R. 1, Compl., ¶ 12]. This position required inputting data into a computer while sitting in a chair, and incorporated certain restrictions not relevant here. [R. 32-1, Ex. A – Cowan Decl., ¶ 7] According to Ms. Cowan’s Declaration, this job offer was sent to the Plaintiff via certified mail, and Ms. Cowan never met the Plaintiff in person. [R. 32-2, Ex. A – Cowan Decl., ¶ 8] According to her Declaration, Ms. Cowan did not know the Plaintiff’s race, nor was she aware of his previous EEO filings. Id. On March 30, 2013, the Plaintiff declined the position. Id. at ¶ 9; [R. 1, Compl., ¶ 13] The Plaintiff alleges he refused this position “due to his permanent injuries.” [R. 1, Compl., ¶ 13] On April 2, 2013, Ms. Cowan sent a letter to the OWCP notifying the agency that the Plaintiff refused the position offered. [R. 32-2, Ex. A – Cowan Decl., ¶ 9] On April 4, 2013, the OWCP communicated with the Plaintiff that the position offered was suitable, and if he refused, he would not be entitled to compensation. Id. The OWCP gave Plaintiff 30 days to accept the position or provide a justification for his refusal. Id. On May 8, 2013, the OWCP advised the Plaintiff that the justifications he provided for refusing the position were not valid. Id. The OWCP then afforded Plaintiff 15 days to accept the position or have his compensation benefits terminated. Id. On June 4, 2013, the OWCP issued a final decision terminating the Plaintiff’s benefits. Id. at ¶ 10; [R. 1, Compl., ¶ 14].

         Following this decision, the Plaintiff began a lengthy administrative challenge process. Eventually, in a decision dated March 11, 2016, the Employees Compensation Appeals Board (“ECAB”), the Board the reviews OWCP decisions, found that the OWCP improperly terminated Dunn’s benefits as it failed to meet its burden of proof to establish that the Plaintiff refused an offer of suitable employment, as the medical evidence did not clearly establish that he could perform duties of a facilities management clerk. Id. (citing OWCP filings attached to declaration). The Plaintiff’s OWCP benefits were reinstated on April 2, 2016. [R. 32-2, Ex. A – Cowan Decl., ¶ 11] He is currently receiving OWCP benefits. Id. The Plaintiff additionally received a lump sum payment for benefits missed between the June 4, 2013 OWCP decision and the March 11, 2016 ECAB reversal. Id. As of January 6, 2018, the Plaintiff has been paid a gross total of $525, 442.80 in disability compensation since August 31, 1995. [R. 32-3, Ex. B – Tritz Decl., ¶ 22]

         Plaintiff then filed a Charge of Discrimination (Charge 470-2015-00012X) with the Equal Employment Opportunity Commission (“EEOC”), alleging inter alia, that Defendant had violated Title VII, the Rehabilitation Act, and the ADEA. [R. 1, Compl., ¶ 3] The EEOC issued Plaintiff a Right to Sue letter. [R. 1, Compl., ¶ 4] The Plaintiff then filed his Complaint in the Southern District of Indiana [R. 1, Compl.] before that court transferred this case to the Eastern District of Kentucky [R. 21] This Motion to Dismiss followed.

         V. ...

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