Loos v. Napolitano

• Decision Date: 21 October 2009
• Docket Number: No. 4:08CV3241.,4:08CV3241.
• Citation: 665 F.Supp.2d 1054
• Parties: Michelle Lindner LOOS, Plaintiff, v. Janet NAPOLITANO, Secretary, Department of Homeland Security, Defendant.
• Court: U.S. District Court — District of Nebraska

665 F.Supp.2d 1054

Michelle Lindner LOOS, Plaintiff, v. Janet NAPOLITANO, Secretary, Department of Homeland Security, Defendant.

No. 4:08CV3241.

United States District Court, D. Nebraska.

October 21, 2009.

COPYRIGHT MATERIAL OMITTED

Denise L. Saathoff, Saathoff Law Firm, Malcolm, NE, for Plaintiff.

Lynnett M. Wagner, Assistant United States Attorney, Omaha, NE, for Defendant.

MEMORANDUM AND ORDER

RICHARD G. KOPF, District Judge.

Plaintiff Michelle Lindner Loos brings this action against her former employer, the Secretary of the Department of Homeland Security, alleging discrimination on the basis of disability, breach of contract, and promissory estoppel. Loos purports to bring her discrimination claim pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"); the Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA"); and the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq. She bases her breach-of-contract claim on the defendant's "handbooks and written materials" that formed an "implied contract of employment" between the defendant and Loos. Finally, Loos alleges a promissory estoppel claim, asserting that the defendant made statements to Loos regarding "employment practices and policies, flex time scheduling, one-on-one training, and other such help in learning to process the required forms," and Loos detrimentally relied upon these statements in performing her job. (Filing 1, Complaint.)

The defendant has filed a motion to dismiss (filing 16) portions of Loos's complaint pursuant to Fed.R.Civ.P. 12(b)(1) and (6), arguing that: (1) to the extent Loos's cause of action for discrimination is based on Title VII and the ADA, such claims should be dismissed because the Rehabilitation Act provides the exclusive remedy for claims of discrimination based on disability in connection with federal employment; (2) the only discrimination claim that can be considered by this court is Defendant's alleged failure to provide Loos with the reasonable accommodation of training, as all other alleged discriminatory acts have not been administratively exhausted; and (3) Loos's second and third causes of action for breach of contract and promissory estoppel under state law should be dismissed because the Civil Service Reform Act of 1978 ("CSRA") is the plaintiff's exclusive remedy to contest her termination of employment from a federal agency. (Filing 18, Br. Supp. Def.'s Partial Mot. Dismiss at 1-2.)

Background

Loos was hired as an Exams Clerk by the U.S. Citizenship and Immigration Service Center, an agency of the Department of Homeland Security, on March 23, 2003. (Filing 1, Complaint ¶ 10; Filing 17-2, Decl. Randy Frazier ¶ 3.¹) She was employed as a federal civil service employee, which was a "term" position for more than one year, but less than four years. Loos was subject to a one-year trial (or probationary) period, a fact Loos acknowledged by signing a Trial Period Notification form on March 24, 2003. (Filing 17-2, Decl. Randy Frazier ¶ 4 & CM/ECF p. 5.) Loos's position was governed by various federal statutes and regulations, including those arising under the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111 (codified as amended in scattered sections of 5 U.S.C.) ("CSRA"). (Filing 17-2, Decl. Randy Frazier ¶ 6.) On March 15, 2004, Loos was given written notification that she was being terminated within her one-year probationary period for failure to meet performance standards and disruption of work due to excessive socializing. (Filing 17-2, Decl. Randy Frazier ¶ 5 & CM/ECF pp. 6-9.)

Disability Discrimination Under Title VII, ADA, Rehabilitation Act

Defendant argues that Plaintiff's Title VII and ADA claims must be dismissed because the Rehabilitation Act provides the sole remedy for discrimination in federal employment. Although Loos's complaint specifically cites Title VII, the ADA, and the Rehabilitation Act as the bases for her discrimination claim, Loos does not argue that she, as a former federal employee, is actually entitled to separately recover under Title VII and the ADA, but only that the Rehabilitation Act incorporates some of the standards of the ADA and Title VII and that "[t]he provisions of the three different Acts [Title VII, ADA, Rehabilitation Act] are so intertwined that dismissing claims under any of their provisions would not have any legal effect." (Filing 23, at 3.)

Loos is correct that the Rehabilitation Act incorporates standards from the ADA and Title VII. See Lane v. Pena, 518 U.S. 187, 193, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996) (Rehabilitation Act provides that remedies, procedures, and rights set forth in Title VII apply to violations of section 501 of the Rehabilitation Act (29 U.S.C. § 791), which prohibits disability discrimination in employment decisions by the federal government); Ballard v. Rubin, 284 F.3d 957, 960 n. 3 (8th Cir.2002) (because same basic standards and definitions are used under the ADA and Rehabilitation Act, cases interpreting either act are interchangeable); Gardner v. Morris, 752 F.2d 1271, 1278 (8th Cir.1985) (1978 amendments to the Rehabilitation Act incorporated by reference provisions of Title VII that require claimant to exhaust administrative remedies before filing discrimination claim in court); 42 U.S.C. § 12117(b) (enforcement agencies for employment discrimination claims under the ADA and Rehabilitation Act shall develop procedures to avoid duplication of effort and conflicting or inconsistent standards); 29 U.S.C. §§ 791(g) & 794(d) (standards to be applied in cases alleging employment discrimination under various portions of Rehabilitation Act shall be those in ADA); 29 C.F.R. § 1614.203 (standards to be used to determine violation of Rehabilitation Act, 29 U.S.C. § 791, are those applied under ADA).

Although the Rehabilitation Act incorporates standards of the ADA and Title VII, Loos, as a former federal employee, is not entitled to separately recover under Title VII and the ADA because (1) Title VII does not apply to disability-discrimination claims, and (2) the ADA excludes from its coverage the United States or corporations wholly owned by the United States. 42 U.S.C. § 2000e-2(a) (Title VII makes it unlawful for employer to discriminate against employee based on race, color, religion, sex, or national origin; disability not mentioned); 42 U.S.C. § 12111(5)(B)(i) (defining employers covered by ADA, but excluding United States or corporations wholly owned by United States government). See also Calero-Cerezo v. United States Dept. of Justice, 355 F.3d 6, 12 n. 1 & 19 (1st Cir.2004) (because "[t]he Rehabilitation Act, the precursor to the ADA, applies to federal agencies, contractors and recipients of federal financial assistance, while the ADA applies to private employers with over 15 employees and state and local governments," court would address federal employee's ADA and Rehabilitation Act claim of discrimination based on disability under the Rehabilitation Act only; noting that "[t]he elimination of the ADA claim does not . . . affect the legal analysis or the scope of remedy available to the plaintiff"); Jones v. Potter, 488 F.3d 397, 403 (6th Cir.2007) (Rehabilitation Act, not the ADA, constitutes exclusive remedy for federal employee alleging disability-based discrimination); Mannie v. Potter, 394 F.3d 977, 982 (7th Cir.2005) (federal employee had no remedy for employment discrimination under ADA; Rehabilitation Act is "the sole remedy for federal employees claiming disability discrimination"); Gardner v. Morris, 752 F.2d 1271, 1278 & n. 6 (8th Cir.1985) (Rehabilitation Act incorporates by reference provisions of Title VII as the exclusive vehicle for judicial remedy of claims of discrimination in federal employment); St. Hilaire v. Minco Products, Inc., 288 F.Supp.2d 999, 1010 n. 18 (D.Minn.2003) (Title VII does not apply to disability-discrimination claim).

Thus, Loos's sole remedy for disability discrimination in her federal employment is the Rehabilitation Act, and Loos's claims under the ADA and Title VII must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

Administrative Exhaustion

The defendant next argues that the only discrimination claim that Loos can pursue under the Rehabilitation Act is the defendant's alleged failure to provide her with the reasonable accommodation of training, as Loos's other claims of discrimination have not been administratively exhausted.

After Loos was terminated from her position on March 15, 2004, she contacted an EEO counselor regarding her termination on March 18, 2004. Notes from that meeting define the "basis" for Loos's claim as "physical [d]isability" and the "issue" as "Terminated from term employment—due to production, and because I talk too much." (Filing 17-3, CM/ECF p. 5.) On March 30, 2004, Loos made a request to mediate her EEO complaint based on a mental disability, claiming that "[t]he Agency failed to recognize her hidden disability and also failed to provide the appropriate training and work environment to achieve success." (Filing 17-3, at CM/ECF p. 6.) Loos's mediation request stated that "other employees were not reprimanded for their socializing" and "[m]y supervisor used disparate treatment of the employees in her unit." (Filing 17-3, at CM/ECF p. 8.) On June 7, 2004, Loos filed a Complaint of Discrimination with the United States Immigration and Customs Enforcement EEO Complaints Program Management Office, alleging that "[i]n consideration of my history of partial complex seizures, I was not properly trained and mentored in order to achieve success." (Filing 17-3, at CM/ECF p. 9.)

On July 8, 2004, the USCIS Office of Equal Employment Opportunity accepted the following issue in Loos's complaint: "On March 15, 2004, you became aware that your term employment as a Clerk in the Exams Unit of the Nebraska Service Center was...