Dunope v. ArcelorMittal Steel
| Decision Date | 13 August 2013 |
| Docket Number | Civil Action No. 5:13-CV-58 |
| Court | U.S. District Court — Northern District of West Virginia |
| Parties | MARY ANN DUNOPE, Plaintiff, v. ARCELORMITTAL STEEL, Defendant. |
(Bailey)
Currently pending before this Court is defendant ArcelorMittal Steel's ("ArcelorMittal" or "the defendant") Motion to Dismiss [Doc. 12] the plaintiff's Complaint in its entirety. This motion has been fully briefed by the defendant, but the pro se plaintiff has failed to respond to the Motion to Dismiss [Id.].1 Therefore, this motion is now ripe for decision. This Court has reviewed the record and the motion and, for the reasons set out below, finds that ArcelorMittal's motion should be GRANTED.
This action arises from the 2004 termination of Ms. Mary Ann Dunope's ("the plaintiff") employment from Weirton Steel, when International Steel Group ("ISG") bought out Weirton Steel [Doc. 1 at 2]. The pro se plaintiff filed her Complaint on April30, 2012 [Doc. 1]. The plaintiff notes, and the Court agrees, that it properly has jurisdiction to hear this claim "pursuant to Section 107 of the Americans with Disabilities Act, 42 U.S.C. § 12117(a), incorporating by reference Section 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e); the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a); 28 U.S.C. §§ 1131, and 1343(a); and this Court's supplemental jurisdiction pursuant to 28 U.S.C. § 1367" [Id. at 1].
The plaintiff was employed by Weirton Steel Corporation from 1978 to 2004, primarily in office jobs [Doc. 1 at 2; Doc. 13 at 2]. By memorandum dated March 5, 2004, the plaintiff was offered participation in a Transition Benefit Program immediately after ISG completed a "purchase of Weirton Steel's assets" [Doc. 1 at 2; Doc. 13 at 3]. Participation in the program would have allowed the plaintiff to receive a lump sum payment of "over $30,000 if she had elected the Transition Benefit offered by ISG" [Doc. 1 at 3-4; Doc. 13 at 3; Doc. 13-1].2 "The plaintiff refused the Transition Benefit (buyout) in 2004 and on subsequent occasions" thereafter [Doc. 1 at 8; Doc. 13 at 3]. The plaintiff then asserts that she "received a second memorandum from ISG, dated March 31, 2004, indicating that 'those expected to be immediately employed will subsequently be required to complete a drug screen; complete pre-employment paperwork, e.g. an employment application, Form I-9, Form W-4, etc.; and take a post offer physical exam'" [Doc. 1 at 3].
The plaintiff's employment status with ISG in the period immediately after those memoranda were dispatched is unclear. The plaintiff does not specifically allege that she was offered employment by ISG, but implies that she was.3 The defendant alleges that the "plaintiff was never actually employed by ISG or (ArcelorMittal)," and "received, at most, a non-specific offer of employment from ISG in 2004." [Doc. 13 at 4, citing Doc. 1 at ¶ 11].
The plaintiff alleges that ISG's first discriminatory act took place on April 19, 2004 [Doc. 1 at 3]. The plaintiff filled out an ISG employment application that "ask(ed) disabled applicants to 'list and describe limitations,'" which, she contends, is a per se violation of the Americans with Disabilities Act ("ADA") [Id.]. Next, the plaintiff contends that "subsequent to passing the post-offer physical exam in 2004, (she) met with two of ISG's Managers, Korbel and Robicky" [Id.]. The plaintiff avers that "Manager Korbel told her that she would be put to work if she dropped her handicap classification," which was "witnessed by Union President Mark Glyptis" [Doc. 1 at 4]. The plaintiff alleges that because ISG never rescinded this request, the act constitutes a continuing violation of the ADA [Id.].
The plaintiff claims that at some point in 2004, presumably after the other alleged acts of discrimination took place, the defendant placed her on a "Preferred Hire List" but put "Disapproved" next to her name [Doc. 1 at 5]. The plaintiff contends that her "Disapprov(al)" stems from ISG's awareness of the plaintiff's "on-going ADA lawsuitagainst Weirton Steel Corporation for disability discrimination" [Id.]. Further, the plaintiff argues that she was placed on a no-hire list as of 2011 in retaliation for prior legal actions, and that the defendant has hired others for positions for which she applied who have less experience [Doc. 1 at 5-6].
The plaintiff claims that throughout the time that the other alleged discriminatory acts took place, "the defendant (also purportedly) did not engage in an interactive process with plaintiff regarding her ADA disability" [Doc. 1 at 3] for several reasons: (1) the plaintiff claims that she was not "sent to any other physician" after passing a post-offer physical exam [Doc. 1 at 3]; (2) "the defendant never notified the plaintiff that it had modified its employment application, so that applicants don't have to list their disability" [Doc. 1 at 5]; (3) the defendant "never notified the plaintiff that it had withdrawn the offer of employment made to (her) in connection with the post-offer physical exam" [Id.]; (4) "the defendant (did not notify) the plaintiff that she was incapable of working anywhere except an office environment" [Id.]; (5) the defendant "never notified the plaintiff that she was incapable of working anywhere except an office environment" [Id.]; (6) the defendant "never notified the plaintiff that the Preferred Hire List was eliminated" [Id.]; and finally (7) "the defendant has had numerous office openings" and has not interviewed the plaintiff or "asked for updates on her physical limitations" since 2004 [Doc. 1 at 6].
The plaintiff does not claim that she took any specific action to inquire about her employment prospects between the alleged employment offers of 2004 and 2010. The plaintiff does, however, allege that she sent written notice on December 23, 2010 and February 3, 2011 to Susan Falbo, Manager of Labor Relations for defendantArcelorMittal, asking that she be restored to employment in a "dust-free environment" [Doc. 1 at 6]. The defendant alleges it did not reply to those requests until April 21, 2011, at which time the plaintiff was informed that the "Preferred Hire List" was eliminated in 2008 [Doc. 1 at 7]. As part and parcel of these relatively recent allegations, the plaintiff alleges that the "defendant did not respond to the plaintiff's May 5, 2011 bid or set up any kind of interactive process for the plaintiff" [Doc. 1 at 8].
Defendant ArcelorMittal Steel responded to the plaintiff's Complaint on May 28, 2013, by way of a Fed. R. Civ. P. 12(b)(6) motion to dismiss the plaintiff's Complaint in its entirety [Docs. 12 and 13]. The defendant argues that most of the plaintiff's claims are time barred, that the plaintiff has failed to state a continuing violation to toll the limitation period, and that the remainder of her arguments fail to state a claim for which relief can be granted [Id.]. In addition, the defendant contends that the plaintiff is "unable to show a plausible entitlement to relief with her limited 'timely' allegations as required under the Iqbal and Twombly pleading standards" [Doc. 12].
On May 29, 2013, United States Magistrate Judge James E. Seibert mailed the plaintiff a Roseboro Notice to advise the plaintiff of her right to file responsive material [Doc. 14]. The docket reflects that the plaintiff accepted service of the notice on May 31, 2013 [Doc. 15]. Nevertheless, the plaintiff failed to respond to the defendant's Motion to Dismiss [Docs. 12 and 13].
When reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a Giarratano v. Johnson, 521 F.3d 298,302 (4th Cir. 2008). In other words, the plaintiff must "allege facts sufficient to state all the elements of her claim" to survive a motion to dismiss for failure to state a claim. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002)); see also Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002). Further, the Court must assume all of the allegations to be true, must resolve all doubts and inferences in favor of the plaintiff, and must view the allegations in a light most favorable to the plaintiff. Edwards v. City of Goldsboro, 178 F.3d 231, 243—44 (4th Cir. 1999). In accepting factual allegations as true, however, the Court must not accept "threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Any "bare assertions devoid of further factual enhancement" are not considered "well-pled" for Rule 12(b)(6) purposes. Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 681.). When rendering its decision, the Court should consider only the allegations contained in the complaint, the exhibits to the complaint, matters of public record, and other similar materials that are subject to judicial notice. Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995) ( 5B CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357) (3d ed. 2004).
However, as this case involves a pro se plaintiff, this Court will only dismiss this matter if "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Haines v. Kerner, 404 U.S. 519, 520-21 (1972), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The defendant has moved to dismiss the claims on multiple grounds. The Court will analyze each cause of action in turn.
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