Court filing

Order and final report and recommendation — Brown v. Azar

Filed August 7, 2019 in Brown v. Azar; one of 20 filings from this case.

Record facts

Court	U.S. District Court for the Northern District of Georgia (Atlanta Division)
Filed	2019-08-07

U.S. District Court for the Northern District of Georgia (Atlanta Division) · No. 1:19-cv-02152-LMM · Doc. 4 · 2019-08-07 · Docket on CourtListener

Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

KIMBERLY BROWN,

Plaintiff,

HONORABLE ALEX AZAR,
Secretary, U.S. Dept. of Health and
Human Services,

Defendant.

CIVIL ACTION FILE NO.
1:19-cv-02152-LMM-LTW

ORDER AND FINAL REPORT AND RECOMMENDATION

Plaintiff Kimberly Brown (“Plaintiff”), proceeding pro se, seeks leave to file this
civil action in forma pauperis, without prepayment of fees and costs or security
therefor, pursuant to 28 U.S.C. § 1915(a)(1). (Doc. 1). The affidavit of poverty
indicates that Plaintiff is unable to pay the filing fee or incur the costs of these
proceedings. Thus, the requirements of 28 U.S.C. § 1915(a)(1) have been satisfied,
and Plaintiff’s request to proceed in forma pauperis is GRANTED. (Doc. 1).
Therefore, this action shall proceed as any other civil action. Because Plaintiff is
proceeding without prepayment of a filing fee, the Court shall consider whether her
Complaint is subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2).

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I.
STANDARD OF REVIEW
Section 1915(e)(2) requires the Court to dismiss an in forma pauperis complaint
at any time if the Court determines that the allegation of poverty is untrue, or that the
action (1) is frivolous or malicious, (2) fails to state a claim on which relief may be
granted, or (3) seeks monetary relief against a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). A claim is frivolous only if it “lacks an arguable basis
either in law or in fact.” Miller v. Donald, 541 F.3d 1091, 1100 (11th Cir. 2008)
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). Dismissal for failure to state
a claim is warranted if, assuming the truth of the factual allegations of a plaintiff’s
complaint, there is a dispositive legal issue which precludes relief. Neitzke v.
Williams, 490 U.S. 319, 326 (1989); Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th
Cir. 1997) (applying Federal Rule of Civil Procedure 12(b)(6) standards to 28 U.S.C.
§ 1915(e)(2)(B)(ii)). A complaint must contain specific factual matter, accepted as
true, to state a claim that is plausible on its face and to suggest the required elements
of the claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Watts v. Fla. Int’l Univ.,
495 F.3d 1289, 1296 (11th Cir. 2007). Factual allegations in a complaint need not be
detailed but “must be enough to raise a right to relief above the speculative level . . .
on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Swierkiewicz v.
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Sorema N.A., 534 U.S. 506, 508 n.1 (2002)). Thus, a complaint “requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
II.
ALLEGATIONS
This is the second case Plaintiff has filed related to her employment with the
United States Department of Health and Human Services (“Defendant”). In Plaintiff’s
previous case, Plaintiff brought claims against Defendant for discrimination,
retaliation, and harassment under the Americans with Disabilities Act (“ADA”) and for
breach of contract. Brown v. Azar, No. 18-cv-02504-LMM-LTW (N.D. Ga.) (“Brown
I”). On a 28 U.S.C. §1915(e)(2) review, the Court advised Plaintiff that she should
have brought her ADA disability discrimination claims under Rehabilitation Act but
found that her Amended Complaint failed to state a claim for relief under either statute.
Brown I, Doc. 10, at 7-25 (N.D. Ga. May 10, 2019), report and recommendation
adopted, Doc. 13 (N.D. Ga. May 31, 2019). The District Court adopted this Court’s
recommendation of dismissal without prejudice. Brown I, Doc. 13, at 1 (N.D. Ga. May
31, 2019).
Three days after this Court recommended that Brown I be dismissed, Plaintiff
filed the instant case. (Compl., Doc. 1-1). Plaintiff again brings employment
discrimination claims against Defendant based on her disability. (Compl. ¶¶ 1, 5-6).
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Plaintiff provides details regarding an alleged dispute with Vincent Williams in 2014
when he was her acting supervisor. (Compl. ¶¶ 9-15). Plaintiff states that on March
21, 2014, she applied for sick leave because an illness rendered her unable to return to
work after lunch the previous day. (Compl. ¶¶ 9-10). Williams denied her sick leave
and charged her as Absent Without Leave (“AWOL”). (Compl. ¶ 11). Plaintiff
responded by informing Williams of her disability status by email, but Williams shut
the door in her face and refused to hear her appeal. (Compl. ¶¶ 12, 14). According to
Plaintiff, three days later, Williams came to her desk, banged on her cubicle wall, and
kept repeating “I’m saying good morning to you.” (Compl. ¶ 15). Plaintiff claims she
did not respond because she felt intimidated after Williams closed the door on her.
(Id.). Plaintiff states that she did not speak with Williams for two years and blames
Dawn Hines, her direct supervisor, for permitting a hostile work environment to exist
between Plaintiff and Williams. (Compl. ¶¶ 18, 24). In her previous Complaint,
Plaintiff alleged that Williams did not speak to her for two years but did not explain
the origin of the dispute. (Brown I, Am. Compl., Doc. 5, ¶ 60).
Plaintiff states that she requested to be transferred from Hines to another
supervisor, but her request was denied by Hines and Ingrid Zambrana. (Compl. ¶ 19).
Plaintiff also asserts that she was temporarily assigned to Zambrana for three months,
but Plaintiff ended up working for Zambrana for nine months in the “File Room.”
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(Compl. ¶ 20). Plaintiff also generally alleges that Hines faulted her for arguments
between Plaintiff and other employees, and Hines refused to investigate further when
asked to do so by Plaintiff. (Compl. ¶ 21). Plaintiff alleges in a conclusory manner
that while she was supervised by Hines, she was subjected to a “hostile work
environment, harassment, intimidation, belittling, retaliation, fraudulent accusations,
and defamation.” (Compl. ¶ 23). These allegations are identical to allegations
contained in Plaintiff’s first lawsuit. (Brown I, Am. Compl. ¶¶ 30-31, 59).
Plaintiff contends that she expressed to Hines that she intended to file a formal
complaint on several occasions between March 2014 and December 2, 2014. (Compl.
¶ 27). On December 18, 2014, the AWOL charge was removed from Plaintiff’s record
and, on the same day, Plaintiff was issued a “Letter of Caution: Excessive Unscheduled
Leave” for leave taken over a year earlier. (Compl. ¶ 28). Plaintiff claims that although
Hines initially dissuaded her from filing a complaint, she eventually filed an EEOC
complaint on March 19, 2015. (Id.). Plaintiff further complains that she did not timely
receive discovery items in her EEOC case. (Compl. ¶¶ 32-34). These are all new
allegations not included in Plaintiff’s her previous lawsuit. (See Brown I, Am.
Compl.).
Plaintiff for the first time alleges that she had to take two months of leave without
pay from July 2014 through September 2014 because of “these allegations.” (Compl.
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¶ 36). As in her previous lawsuit, Plaintiff seeks $250,000 in for “public humiliation,
defamation, invasion of privacy, and harassment.”1 (Compl. ¶ 37; Brown I, Am.
Compl. ¶ 67). Plaintiff asks the Court to declare that Defendant violated the ADA and
“breached its agreement(s)” with Plaintiff and award Plaintiff damages, her fees and
costs, and other relief to which she may be entitled. (Compl., p. 7).
Plaintiff again brings claims for discrimination and retaliation under the
Americans with Disabilities Act that should be brought under the Rehabilitation Act,
29 U.S.C. § 791 et. seq. (Compl. ¶ 1; Brown I, Compl. ¶ 1). Pascal v. McHugh, No.
CV-12-S-2985-NE, 2015 WL 3836965, at *20 (N.D. Ala. June 22, 2015) (explaining
that the Rehabilitation Act is the exclusive remedies for disability discrimination
against federal employees); Rogers v. Shinseki, No. CV-112-194, 2014 WL 1093147,
at *2 n.3 (S.D. Ga. Mar. 18, 2014); Van Durr v. Geithner, No. 1:11-CV-227-MP-GRJ,
2012 WL 2890449, at *1 n.1 (N.D. Fla. June 8, 2012). Plaintiff requests a declaration
that Defendant breached an agreement with her, suggesting that she intends to bring a
claim for breach of contract. (Compl. p. 4).
III.
LEGAL ANALYSIS

1 As it did before, the Court construes these to be descriptions of harms for which
Plaintiff believes should be compensated as opposed to independent claims. To the
extent Plaintiff intends to bring them as independent claims, they are not cognizable
based on the facts alleged.
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A.
Timeliness of Complaint
Before commencing a civil action, a plaintiff bringing a claim under either the
ADA or the Rehabilitation Act must exhaust her administrative remedies in the manner
prescribed by Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e-5; 42
U.S.C. § 12117(a); Doe v. Garrett, 903 F.2d 1455, 1461 (11th Cir. 1990) (holding that
private actions against federal government employers must satisfy Title VII’s
requirements for exhausting administrative remedies). Plaintiff must file a charge with
the Equal Employment Opportunity Commission (“EEOC”) within 180 days after the
occurrence of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1).
After the EEOC’s investigation into the charge, and upon receipt of the EEOC’s notice
of the right to sue, a plaintiff must file a judicial complaint within ninety days. 42
U.S.C. § 2000e-5(f)(1); Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825 (11th Cir.
2000) (holding that Title VII actions may not be brought more than ninety days after
the complainant receives notice that the EEOC dismissed the charge). Although the
ninety-day deadline is strict, it is non-jurisdictional and subject to equitable tolling in
extraordinary circumstances. See Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1850
(2019) (holding that Title VII’s charge-filing provisions are non-jurisdictional);
Stamper v. Duval Cty. Sch. Bd., 863 F.3d 1336, 1342 (11th Cir. 2017) (holding that
the timely-filing requirements of Title VII are non-jurisdictional and subject to
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equitable tolling in extraordinary circumstances beyond plaintiff’s control); Norris v.
Fla. Dep’t of Health and Rehabilitative Servs., 730 F.2d 682, 683 (11th Cir. 1984)
(rejecting as untimely a complaint filed ninety-one days after receiving notice of the
right to sue).
Plaintiff alleges “[t]his action is brought timely only after all available
administrative procedures were timely filed and exhausted.” (Compl. ¶ 1). Notably,
Plaintiff made an identical statement in her previous case. (See Brown I, Am. Compl.
¶ 1). However, Plaintiff has not worked for Defendant since September 6, 2016, and
most the facts alleged in her Complaint took place in 2014. (See generally Compl.).
The only EEOC charge mentioned in Plaintiff’s Complaint was filed on March 19,
2015. (Compl. ¶ 27). Plaintiff attaches only three pages of the EEOC’s decision on
appeal, which states that the ALJ issued a final decision on February 2, 2017, and
Plaintiff filed an appeal on June 15, 2017. (Doc. 1-1, at 8). The undersigned notes that
Plaintiff failed to attach any of the pages showing the results of her EEOC appeal,
including the date it was decided. Given the timing of Plaintiff’s EEOC charge,
decision, and appeal, the Court finds it unlikely that Plaintiff’s case was brought timely,
as it was filed almost two years after Plaintiff appealed the ALJ’s decision, and
Plaintiff’s Complaint does not suggest that any extraordinary circumstances existed to
justify equitable tolling.
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B.
Failure to State a Claim
Even if Plaintiff timely filed this action, Plaintiff’s Complaint still fails to state
a claim upon which relief can be granted. As an initial matter, federal agencies are not
employers covered by the ADA. 42 U.S.C. § 12111(5) (excluding United States and
corporations wholly owned by the United States from the definition of employer);
Coleman v. Sec’y U.S. Dep’t of Homeland Sec., 649 F. App’x 128, 129-30 (3d Cir.
2016); Smith v. Potter, 400 F. App’x 806, 811 (5th Cir. 2010); Mosely v. Boente, No.
2:16-CV-153, 2017 WL 476278, at *1 (S.D. Ga. Feb. 6, 2017); Jones v. Rumsfeld, No.
5:05-CV-01100-KOB, 2014 WL 1329550, at *12 (N.D. Ala. Mar. 28, 2014); Hollins
v. Samuels, No. 1:12-CV-4119-AT-AJB, 2012 WL 12894839, at *2 n.4 (N.D. Ga. Dec.
21, 2012). The exclusive remedy for disability discrimination in federal employment
is under the Rehabilitation Act, 29 U.S.C. § 791 et seq. Paschal v. McHugh, No. CV-
12-S-2985-NE, 2015 WL 3836965, at *20 (N.D. Ala. June 22, 2015) (explaining that
the Rehabilitation Act is the exclusive remedy for disability discrimination against
federal employees); Rogers v. Shinseki, No. CV 112-194, 2014 WL 1093147, at *2 n.3
(S.D. Ga. Mar. 18, 2014); Van Durr v. Geithner, No. 1:11-CV-227-MP-GRJ, 2012 WL
2890449, at *1 n.1 (N.D. Fla. June 8, 2012). Because federal agency defendants are
not covered by the ADA, Plaintiff’s ADA claims are frivolous and should be dismissed
on that basis. However, given the nearly identical statutory requirements of the ADA
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and the Rehabilitation Act, the Court will evaluate whether Plaintiff’s allegations fail
to state a claim under the Rehabilitation Act. 29 U.S.C. § 791(f) (applying the
standards from the ADA to all nonaffirmative action employment discrimination
claims under the Rehabilitation Act); Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (“The standard for determining liability under the Rehabilitation Act is the same
as that under the ADA.”) However, there is one important distinction between the
statutes: the Rehabilitation Act demands a greater showing of causation, requiring
proof that the individual was discriminated against “solely by reason of her disability.”
Wade v. Fla. Dept. of Juvenile Justice, 745 F. App’x 894, 896 (2018) (citing Schwartz
v. City of Treasure Island, 544 F. 3d 1201, 1212 n.6 (11th Cir. 2008); Ellis, 432 F.3d
at 1326.
1.
Disparate Treatment under the Rehabilitation Act
To establish a prima facie case of discrimination under the Rehabilitation Act,
Plaintiff must show that (1) she has a disability, (2) she is otherwise qualified for the
position, and (3) she was subjected to unlawful discrimination as a result of her
disability. Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017). The
Rehabilitation Act expressly incorporates the ADA’s definition of disability: “a
physical or mental impairment which substantially limits one or more major life
activities,” “a record of such an impairment, or being regarded as having such an
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impairment.” 29 U.S.C. § 705(9); 42 U.S.C. § 12102(1). Plaintiff alleges her
disabilities include insomnia, bipolar disorder, cancer, anxiety, and panic attacks.
(Compl. ¶ 6). Plaintiff also alleges that her employer was aware of her disabilities.
(Compl. ¶¶ 5, 6, 12). The Court finds it plausible at this stage that Plaintiff has a
disability under the Rehabilitation Act.
A qualified individual is someone “who, with or without reasonable
accommodation, can perform the essential functions of the employment position that
such individual holds or desires.” 42 U.S.C. § 12111(8); Wade v. Fla. Dept. of Juvenile
Justice, 745 F. App’x 894, 896 (11th Cir. 2018) (applying the same definition to the
Rehabilitation Act); Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir.
2000) (defining “qualified individual with a disability” under the ADA). It is unclear
from Plaintiff’s Complaint whether she is a qualified individual, as Plaintiff has not
alleged sufficient facts about her job requirements or performance to allow the Court
to infer that she was capable of doing the essential functions of the job with or without
accommodation. Regardless, Plaintiff’s claim clearly falls short on the third element.
To establish the third element, Plaintiff must plausibly allege that she suffered
an adverse employment action based on her disability.2 Ellis, 432 F.3d 1321, 1327

2 The third element can also be shown by an employer’s failure to provide a
reasonable accommodation, but here Plaintiff does not allege that she ever identified
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(11th Cir. 2005). An adverse employment action is one that a reasonable person would
find causes a “serious and material change in the terms, conditions, or privileges of
employment.” Garrett v. Postmaster Gen. U.S. Postal Servs., 725 F. App’x 792, 758
(11th Cir. 2018) (applying the definition of an “adverse employment action” from
Davis to a disability discrimination claim under the Rehabilitation Act); Davis v. Town
of Lake Park, Fla., 245 F.3d 1232, 1239-40 (11th Cir. 2001) (defining “adverse
employment action” in the Title VII context). The only possible adverse employment
action Plaintiff alleges is the issuance of a “Letter of Caution: Excessive Unscheduled
Leave” after Defendant removed the AWOL charge from her record. (Compl. ¶ 28).
Plaintiff does not allege how this Letter of Caution resulted in tangible job
consequences, and criticism of job performance without tangible consequences will
rarely form the basis of a job discrimination claim. Davis, 245 F.3d 1232 (11th Cir.
2001) (summarizing cases).
Most critically, the Court cannot infer that Defendant issued the Letter of
Caution solely because of Plaintiff’s disability. The Complaint does not allege facts
suggesting a causal connection between her disability and the issuance of the Letter or
Caution or any of her other complaints about Williams and Hines. Nor does Plaintiff’s

or requested a reasonable accommodation. See Boyle v. City of Pell City, 866 F.3d
1280, 1289 (11th Cir. 2017).
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Complaint allege that Defendant treated non-disabled employees any differently. As a
result, Plaintiff has failed to allege facts making it plausible that she suffered disparate
treatment on the basis of her disability and the claim should be DISMISSED.
2.
Retaliation under the Rehabilitation Act
The Rehabilitation Act incorporates the anti-retaliation provisions of the ADA.
Burgos-Stefanelli v. Sec’y, U.S. Dept. of Homeland Sec., 410 Fed. App’x 243, 245
(11th Cir. 2011). Section 12203(a) of the ADA provides that “no person shall
discriminate against any individual because such individual has opposed any act or
practice made unlawful by [the ADA] or because such individual made a charge . . .
under [the ADA].” 42 U.S.C. § 12203(a). Retaliation claims brought under the
Rehabilitation Act and the ADA are assessed under the same rubric as Title VII
retaliation claims. Solloway v. Clayton, 738 F. App’x 985, 988 (11th Cir. 2018)
(holding that retaliation claims under the Rehabilitation Act are assessed using the
same framework as Title VII retaliation claims); Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997) (holding that ADA retaliation claims
are evaluated under the same framework as Title VII retaliation claims). Thus, to
establish a prima facie case of retaliation, Plaintiff must show that (1) she engaged in
statutorily protected expression; (2) she suffered an adverse employment action; and
(3) a causal link between the protected expression and the adverse action exists.
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Stewart, 117 F.3d at 1287. An employee engages in statutorily protected expression if
she has (1) opposed any employment practice made an unlawful practice by the ADA
(the opposition clause) or (2) “made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing” (the participation clause). 42
U.S.C. § 12203; Mulkey v. Bd. of Comm’rs of Gordon Cty., 488 F. App’x 384, 389
(11th Cir. 2012); Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010);
Anduze v. Fla. Atl. Univ., 151 F. App’x 875, 878 (11th Cir. 2005).
Here, Plaintiff alleges she threatened to file an EEOC charge several times
between March 2014 and December 2014, and eventually filed an EEOC charge on
March 19, 2015. (Compl. ¶ 27). Plaintiff does not provide any information about her
threats that would the Court to infer that those communications constituted protected
activity. For an informal complaint to be protected expression, the employee must have
a subjective belief that the employer was engaged in unlawful employment practices
and the belief must be objectively reasonable in light of the facts and record presented.
Harrison v. Belk, Inc., 748 F. App’x 936, 943 (11th Cir. 2018). Complaints that stem
from everyday disagreements with co-workers are not protected activity. Id. However,
filing an EEOC charge is “protected activity” under the Rehabilitation Act. Braithwaite
v. School Bd. of Broward Cty., No. 17-13750, 2019 WL 993270, at *3 (11th Cir. Feb.
28, 2019).
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A materially adverse employment action for purposes of a retaliation claim is
“one that might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Burlington N. and Santa Fe. Ry. Co. v. White, 548 U.S. 53,
68 (2006) (establishing the standard for Title VII retaliation claims) (citations omitted).
Thus, the standard for retaliation claims protects against a wider range of conduct than
discrimination claims. Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008). Even
under the standard for retaliation claims, however, “petty and trivial” actions are not
considered sufficiently adverse. Rainey v. Holder, 412 F. App’x 235, 238 (11th Cir.
2011). Plaintiff’s statement that she was harassed, belittled, and treated unfairly after
March 2014 is conclusory and fails to allege an adverse employment action. (Compl.
¶ 23). Plaintiff alleges Defendant removed her AWOL charge in December 2014, and
she was issued a “Letter of Caution.” (Compl. ¶ 28). Plaintiff does not explain the
relevance of the “Letter of Caution” or how it relates to the previous AWOL charge.
Therefore, Plaintiff’s allegations do not permit an inference of an adverse employment
action that would dissuade someone from making or supporting a charge of
discrimination.
Even if Plaintiff were able to identify a materially adverse employment action,
the Amended Complaint does not allege any causal connection between any of
Defendant’s alleged conduct and Plaintiff’s EEOC complaint. A plaintiff can establish
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a causal relationship between the protected activity and an adverse employment action
by showing a “close temporal proximity” between the two events. Higdon v. Jackson,
393 F.3d 1211, 1220 (11th Cir. 2004) (addressing a retaliation claim under the ADA).
Thus, temporal proximity, without more, must be “very close.” Clark Cty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273 (2001); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1364 (11th Cir.2007) (quotation omitted). Courts have held that one month between
the protected expression and the adverse employment action can support an inference
of causation, but three months is too remote. Jackson v. Agency for Persons with
Disabilities Fla., 608 F. App’x 740, 743 (11th Cir. 2015) (summarizing the law that
one month is close enough to support an inference of causation, but three to four months
is not); Thomas, 506 F.3d at 1364 (holding that a three-month period between the
protected expression and the adverse action does not allow a reasonable inference of
causation). Here, Plaintiff states that she filed an EEOC complaint in March 2015;
however, Plaintiff claims that a hostile work environment existed as early as March
2014, and Defendant issued the Letter of Caution on December 18, 2014. (Compl. ¶
18). Because the Court is unable to infer a causal connection between Plaintiff’s
protected activity and any adverse employment action, the Court RECOMMENDS
that Plaintiff’s retaliation claim be DISMISSED.

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3.
Hostile Work Environment under the Rehabilitation Act
In unpublished cases, the Eleventh Circuit has recognized hostile work
environment claims under the Rehabilitation Act and applied the same prima facie case
for claims brought under Title VII: (1) plaintiff belongs to a protected group; (2)
plaintiff has been subjected to unwelcome harassment; (3) the harassment was based
on a protected characteristic; (4) the harassment was “sufficiently severe to alter the
terms and conditions of employment;” and (5) the employer is responsible under direct
or vicarious liability. Gooden v. Internal Revenue Serv., 679 F. App’x 958, 966-67
(11th Cir. 2017) (applying the Title VII standard to claims brought under the
Rehabilitation Act); Wolfe v. Postmaster Gen., 488 F. App’x 465, 469 (11th Cir. 2012)
(assuming without deciding that hostile work environment claims are cognizable under
the Rehabilitation Act and applying Title VII standards); Burgos v. Chertoff, 274 F.
App’x 839, 842 (11th Cir. 2008) (applying Title VII standards to a hostile work
environment claim brought under the Rehabilitation Act); Dockery v. Nicholson, 170
F. App’x 63, 66-67 (11th Cir. 2006) (applying the Title VII standard to hostile work
environment claim against a federal agency). To show that the harassment was
“sufficiently severe and pervasive to alter the conditions of the victim’s employment
and create an abusive working environment,” the harassment must be both objectively
and subjectively abusive. Woodruff v. School Bd. of Seminole Cty., 304 F. App’x 795,
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18
799 (11th Cir. 2008) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).
Factors to be considered include: “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.” Id. (quoting Harris, 510 U.S. at 23). The allegations of harassment
described by Plaintiff are neutral with respect to Plaintiff’s disability, and the facts do
not suggest that any of the incidents occurred because of her disability. (See Compl.
¶¶ 14, 15, 18, 21, 23-25). Nor do any of Plaintiff’s allegations rise to the level of being
so “severe or pervasive” that they altered the conditions of her employment and created
an abusive working environment. Because Plaintiff does not allege disability-related
harassment that was severe or pervasive, the Court RECOMMENDS that Plaintiff’s
hostile work environment claim be DISMISSED.
4.
Breach of Contract
Plaintiff requests a declaration that Defendant breached an agreement or
agreements. (Compl. p. 4). The Complaint, however, does not identify any contract
or agreement that Defendant allegedly breached. (See generally Compl.). In order to
establish a breach of contract claim under Georgia law, Plaintiff must prove: (1) a
breach of the contract and (2) resultant damages (3) for the party who has the right to
complain about the contract being broken. Inland Atlantic Old Nat’l Phase I, LLC v.
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19
6425 Old Nat’l, LLC, 329 Ga. App. 671, 677 (2014); Dewrell Sacks, LLP v. Chicago
Title Ins. Co., 324 Ga. App. 219, 223 (2013). As an initial matter, for Plaintiff’s breach
of contract claim to state a plausible claim for relief, Plaintiff must identify the term or
terms of the contract that Plaintiff alleges Defendant breached. Adkins v. Cagle Foods
JV, LLC, 411 F.3d 1320, 1327 (11th Cir. 2005) (affirming dismissal of breach of
contract claim where plaintiff could not identify a contractual provision defendant
breached); Goodwill v. BB&T Inv. Servs., Inc., No. 1:13-cv-1119-WSD, 2013 WL
6271868, at *4 (N.D. Ga. Dec. 4, 2013) (finding that plaintiff did not plausibly assert
a breach of contract where the plaintiff failed to provide sufficient information about
the alleged contract); Am. Casual Dining, L.P. v. Moe’s Sw. Grill, L.L.C., 426 F.
Supp.2d 1356, 1369 (N.D. Ga. 2006) (dismissing a breach of contract claim because
plaintiff could not identify a contractual provision breached by defendant). Plaintiff
has not pled the terms of the contract she alleges was breached nor provided a copy of
the contract. Therefore, the Court RECOMMENDS that Plaintiff’s claim for breach
of contract be DISMISSED.
CONCLUSION
For the reasons explained above, the undersigned GRANTS Plaintiff’s request
to proceed in forma pauperis (Doc. 1) and RECOMMENDS that Plaintiff’s Amended
Complaint be DISMISSED. As this is Plaintiff’s second attempt to allege nearly
Case 1:19-cv-02152-LMM Document 4 Filed 08/07/19 Page 19 of 20

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identical claims against Defendant, the Court RECOMMENDS that the claims be
DISMISSED WITH PREJUDICE. As this is a Final Report and Recommendation
and there is nothing further in this action pending before this Court, the Clerk is directed
to terminate the reference to the undersigned.
SO ORDERED AND REPORTED AND RECOMMENDED this 7 day
of August, 2019.
____________________________________
LINDA T. WALKER
UNITED STATES MAGISTRATE JUDGE
Case 1:19-cv-02152-LMM Document 4 Filed 08/07/19 Page 20 of 20

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Order and final report and recommendation — Brown v. Azar

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