Lowe v. Delta Airlines, Inc.
| Decision Date | 31 May 2017 |
| Docket Number | CIVIL ACTION NO. 1:16-CV-3717-TWT-JSA |
| Parties | BURDETTE LOWE, Plaintiff, v. DELTA AIRLINES, INC., Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
Plaintiff Burdette Lowe, proceeding pro se, sues her former employer, Delta Airlines, Inc. ("Delta" or "Defendant"), alleging discrimination on the grounds of disability in violation of the Americans With Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq. ("ADA"), and retaliation in violation of the ADA and/or Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII").
This case is before the undersigned on Defendant's Motion to Dismiss [9], Plaintiff's Motion in Opposition [17], and Plaintiff's Emergency Motion for Extension of Time to File Second Amended Complaint [21]. For the reasons stated below, the undersigned RECOMMENDS that the Motion to Dismiss [9] be DENIED AS MOOT, that Plaintiff's motions [17] [21] be DENIED, and that this case be dismissed for Plaintiff's failure to follow a court order to re-plead with a Complaint that states a viable claim.
The circumstances that bring the Court to consideration of the above-listed motions are confusing. Plaintiff brought this case by way of an application for in forma pauperis status dated October 5, 2016 [1]. Less than one week later, on October 11, 2016, Plaintiff submitted another complaint, also against Defendant Delta Airlines, Inc., which asserted some overlapping but also some potentially different claims appearing to be based on much of the same set of facts. The second case was filed under the separate docket number, Civil Action No. 1:16-CV-3765. While the second case (the 3765 case) was also assigned and referred to the undersigned U.S. Magistrate Judge, it was assigned to a different presiding U.S. District Judge (Judge Richard W. Story) than the Judge assigned to the instant case (Chief Judge Thomas W. Thrash).
On December 22, 2016, Defendant filed a Motion to Dismiss the instant case [9], and separately moved to dismiss the 3765 case on January 17, 2017. Plaintiff did not specifically respond to the Motion to Dismiss [9] but instead filed an Amended Complaint on January 17, 2017 [16].1
In the meantime, the undersigned became aware of the existence of these two overlapping but not entirely co-extensive cases filed roughly simultaneously by Plaintiff against the same Defendant. Accordingly, on January 25, 2017, the undersigned issued an Order and Report and Recommendation in both cases (1) recommending that the later-filed 3765 case be dismissed, and (2) ordering Plaintiff to file a Second Amended Complaint in the instant case. See Order [20] at 2. The Court ordered that such an amended complaint be filed "WITHIN TWENTY-ONE (21) DAYS OF THIS ORDER". Order [20] at 2 (emphasis in original).2 In addition to giving Plaintiff the opportunity to add her claims from the 3765 case into this case, the Order made clear that Plaintiff needed to better plead the factual support showing a plausible basis for her claims and to specifically delineate each separate claim and the legal basis for such. Id.
Nothing was filed within 21 days of the Order. Twenty-eight (28) days later, on February 22, 2017, Plaintiff filed a motion requesting ten additional days to file her Second Amended Complaint. [21]. Plaintiff stated that the need for this extension arose from her elderly mother's medical emergency on Sunday, February 19, 2017. That emergency occurred 25 days after the Court's January 25 Order.
Defendant objected to the Motion for Extension. Defendant stated that it would have readily agreed to any delay necessitated by the medical emergency, but argued that the motion did not establish such a circumstance, because the emergency occurred several days after the due date for the Second Amended Complaint. [23]. The Court has held the Motion for Extension in abeyance, but ordered Plaintiff to file her proposed Second Amended Complaint within the ten-day period requested, which Plaintiff did on March 6, 2017 [25]. Noting that it possessed the discretion to excuse a late filing of the Second Amended Complaint even if it was technically out-of-time, the Court further ordered briefing on whether it would be futile to exercise such discretion on the basis that the proposed Second Amended Complaint, even if permitted, would be subject to dismissal for failure to state a claim. See Order [30]. The parties have since set forth their respective briefs on this question [31][32].
Plaintiff alleges that she is a 53 year-old African American female who has been disabled since April 2006. Am. Compl. [16] at 5. She served as a flight attendant with an airline subsequently acquired by Defendant (Northwest) until approximately 2006, when she suffered a workplace accident in which she inhaled toxic chemicals. Id. at 7. This left her with a permanent condition known as Occupational InducedAsthma: Reactive Airways Dysfunction Syndrome (RADS), which impedes her ability to breathe freely and has resulted in her disability. Id.
Plaintiff, who apparently had remained on medical leave for several years, indicates that she requested and was denied reasonable accommodations in 2008, and again in November 2012. See Complaint [3] at 8, 16. In or around June 2013, Plaintiff requested that she be permitted to retire, which according to Plaintiff, Defendant initially agreed to. Id. at 9. However, at some subsequent point, she was informed that she was not eligible for retirement benefits because of her age. Id. at 9-10, 16. Plaintiff questioned this, but never received documentation as to Defendant's retirement policies. Id. Plaintiff alleges that she would have been eligible for lifetime travel benefits under Northwest's pre-merger policy, because she had already completed 10 years of service. Id.; Am. Compl. [16] at 7-8. But Plaintiff does not appear to allege any facts to suggest that this historical Northwest policy still applies.
In the meantime, Plaintiff was periodically asked to sign a settlement agreement as to her pending workers' compensation issues. Id. at 8; Am. Compl. [16] at 8; [16-7]. Such draft agreements included proposed general releases for all other claims Plaintiffs might have against Defendant, including under Title VII and the ADA. Id. Plaintiff refused to sign the releases. Id. Plaintiff characterizes this refusal as protected activity under either Title VII or the ADA, because her refusal to sign these settlementagreements constituted her "opposition to participating in what she in good faith believes was a practice that [sic] unlawful under the employment discrimination statutes by refusing to sign an unlawful Settlement Agreement and Release that require her to waive Federal protection and rights including EEOC and ADA." Am. Compl. [16] at 10.
Plaintiff left the company apparently voluntarily, believing that she had retired, on or about July 30, 2013. See id. at 6. On July 30, 2013, she was told that she did not in fact meet the age requirements for retiree pass travel but the correspondence that Plaintiff received from human resources continued to describe Plaintiff as being in "retirement." See [16-5]. In August 2013, Plaintiff filed a complaint with the EEOC alleging discrimination on the basis of disability and retaliation. Am. Compl. [16] at 11. As late as October 31, 2013, Defendant was offering settlement agreements for Plaintiff to sign that included releases of claims, which Plaintiff refused to sign. See id. at 10-11.
In January 2014, Plaintiff discovered that her separation from the company was actually coded as being on grounds of "resignation" and not "retirement." Am. Compl. [16] at 11. Plaintiff alleges that her status must have been changed at some point from "retirement" to "resignation" prior to January 2014. See id. at 10-11.
The Amended Complaint alleges six counts: (1) Retaliation: Wrongful Termination- ADA, in which Plaintiff alleges that she was retaliated against under the ADA by having her status changed from "retirement" to "resignation" as a result of her refusal to sign settlement agreements that would release potential claims in June or July 2013 and on October 31, 2013, and/or for her EEOC complaint in August 2013, and/or for having requested accommodations; (2) Retaliatory Harassment Discrimination- ADA, in which Plaintiff alleges that her rights to retiree pass privileges and other benefits of retirement were extinguished because, at some point after January 2013, she was placed on "unapproved medical leave." Plaintiff alleges that this action was in "violation of ADA retaliation harassment"; (3) "Retaliation Discrimination," in which Plaintiff complains about the lack of accurate information from Defendant and other alleged acts of harassment; (4) "Interference," in which Plaintiff complains that Defendant offered her settlement agreements in exchange for inadequate consideration that would, if executed, involve her release of claims under Title VII and otherwise; (5) "Disability Harassment," which is again premised on Defendant's offer of settlement agreements; and (6) "ERISA Interference," in which Plaintiff complains about Defendant changing her status to Unapproved Medical Leave Absence, which allegedly had the impact of denying her retiree benefits.
Plaintiff's complaints attach a variety of emails, documents, and at least one of her right to sue letters. See, e.g., Compl. [3] at 15; Am. Compl. [16-1] at 1.
Defendant filed its Motion to Dismiss on December 22, 2016. Among other arguments, Defendant argues that Plaintiff's claims for discrimination and retaliation are untimely, as they were filed more than 90 days after receipt of her right to sue letter, which was dated on June 23, 2016. Defendant thus attaches Plaintiff's two EEOC charges and right to sue...
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