Miller v. Austin
| Decision Date | 30 March 2021 |
| Docket Number | No. 20-CV-1958 (KMK),20-CV-1958 (KMK) |
| Parties | MARYTHERESE MILLER, Plaintiff, v. LLOYD J. AUSTIN III, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Appearances:
Marytherese Miller
Cornwall on Hudson, NY
Jennifer C. Simon, Esq.
U.S. Attorney's Office SDNY
New York, NY
Marytherese Miller ("Plaintiff") brings this pro se Action against Lloyd J. Austin III, Secretary of the Department of Defense ("Austin"), John E. Whitley, Acting Secretary of the Department of the Army (the "Department"), ("Whitley"), Ltg. Charles Pede, Judge Advocate Generals Corps ("Pede"), Kathleen McGettigan, Acting Director of the U.S. Office of Personnel Management ("OPM"), ("McGettigan"), Kevin J. Berry, Equal Employment Opportunity Commission ("EEOC"), ("Berry"), Dennis Dean Kirk, Chair of the Merit Systems Protection Board ("MSPB"), ("Kirk"), Jamie Nawaday ("Nawaday") and Natasha L. Waglow ("Waglow"), Department of Justice ("DOJ"), and Inspector Generals Dodig and Army ("Dodig" and "Army", respectively; collectively, "Defendants"). 1 Plaintiff alleges that Defendants violated her constitutional and statutory rights, including under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (the "Rehabilitation Act"), in connection with her discharge from employment by the Department. (Id.) Before the Court is Defendants' Motion To Dismiss (the "Motion") pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Not. of Mot. (Dkt. No. 7).) For the reasons that follow, the Motion is granted.
The following facts are taken from Plaintiff's Complaint. They are assumed to be true for purposes of adjudicating the instant Motion.
Plaintiff was employed by the Department for nearly 28 years, providing administrative and technical support to hearings and investigations. (Compl. 5.)2 In 2004, Plaintiff slipped on the stairs at work and injured her patella. (Id. at 7.) To accommodate this and a subsequent knee injury, Plaintiff in 2006 was allowed to work in the hearing room located down the hallway from her desk. (Id.) On May 7, 2007, Defendants denied Plaintiff's reasonable accommodation, and ordered her to report to work on the date of her planned surgery. (Id. at 8-9.) In late 2008 through 2009, office renovations forced Plaintiff to relocate, and she received accommodation to avoid climbing steep inclines and ramps. (Id. at 9-10.) Plaintiff's supervisor reversed this accommodation on January 5, 2010. (Id. at 10.) The need to ascend a non-handicap concreteincline caused Plaintiff to tear her ACL. (Id.) While Defendants claimed that they offered Plaintiff a mobility scooter for the incline, they never obtained one, nor did they have the authority to do so. (Id. at 11-12.) Defendants subsequently sought to remove Plaintiff from her job, even though she had committed no misconduct and received excellent performance ratings. (Id.) Plaintiff filed a complaint with the MSPB and was reinstated to her job in March 2013. (Id. at 12.) Upon her reinstatement, Plaintiff was prevented from recording contested honor hearings because Defendants blocked reasonable accommodation. (Id. at 13.) After Plaintiff received another excellent performance rating, MSPB reversed its decision. (Id. at 13-14.) On June 3, 2014, Plaintiff was terminated from her position, though she has yet to receive valid paperwork effecting the termination. (Id. at 15-16.)
Despite the lack of a trial, (id. at 5), Plaintiff's claims have been adjudicated in federal court. On September 14, 2011, Judge Scheindlin granted summary judgment in a Rehabilitation Act and Title VII action filed by Plaintiff prior to her discharge in August 2009. .) Plaintiff asserts that this ruling was based on perjured statements by Nawaday. (Compl. 5, 9.) After her termination, Plaintiff in July 2014 filed a second complaint, which Judge Seibel dismissed on Rule 12(b)(6) grounds. .) Plaintiff filed a third federal court complaint on July 2, 2018. .) Judge Stanton dismissed the complaint sua sponte, reasoning that "[t]he issues raised in this complaint are issues Plaintiff raised or could have raised in [the first two lawsuits], and therefore these claims are barred by the doctrine of res judicata." .) Judge Stanton also warned Plaintiffthat "filing of further litigation in this Court, challenging the actions of her former employer, will result in an order barring Plaintiff from filing new actions against her former employer in forma pauperis unless she receives prior permission." (Id. at 5.) The Second Circuit dismissed Plaintiff's appeal. (Mandate of USCA ("Mandate") (Dkt. No. 7, Miller v. Esper, 18-CV-5995 Dkt. (S.D.N.Y.)).) The case before Judge Stanton is particularly relevant here, because the vast majority of the instant Complaint appears to have been copied verbatim from Plaintiff's 2018 complaint. For example, the "Statement of Facts" is completely identical, with the exception of a clause added to the fourth paragraph.
The two complaints differ only very slightly. The Complaint names as a defendant Whitley's predecessor, who at the time had been recently named Secretary of the Department, , while the 2018 complaint did not, (see generally 2018 Compl.). In addition, the Complaint identifies two post-2018 events that were not discussed in the 2018 complaint. First, the Complaint notes a December 9, 2019 EEOC ruling. This ruling related to Plaintiff's administrative claim that the EEOC provided Plaintiff's prior administrative complaint to its attorney Matthew Geller ("Geller"), even though he was named in this prior complaint. The administrative judge found that "there [was] no showing of harm to [Plaintiff]" from this error. (Id. at 80.) However, due to a potential "chilling effect," the administrative judge ordered that a notice that the Department discriminated against Plaintiff be "posted for 180 days." (Id. at 80, 83.) The Department appealed the posting order, (id. at 73-74), and prevailed because Plaintiff "failed to prove she was subjected to unlawful retaliation in violation of Title VII[,]" and, thus, "there [was] no basis for the posting order mandated by the AJ," (id. at 34). According to Plaintiff, this decision "brings to light new . . . proof that Plaintiff has not received a hearing by the EEOC thus denial of [sic] due process." (Id.at 3.) Second, the Complaint notes a January 17, 2020 letter from OPM, which sought "to determine if the condition on which [Plaintiff] retired continues to be disabling." (See id. at 3, 109.) According to Plaintiff, this letter indicates "new harassment and retaliation," because although the Department "claimed Plaintiff [was] too disabled for her current position," her doctors "medically clear[ed] Plaintiff for work." (Id. at 3.)
Plaintiff's Complaint, dated March 4, 2020, was filed on March 5, 2020. (Id.) The Complaint seeks relief for discrimination and retaliation pursuant to the Rehabilitation Act as modified by the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (See id. at 20-23, 25-28.) The Complaint also seeks relief pursuant to various statutes that authorize criminal penalties, 18 U.S.C. §§ 241, 245, 1621, and based on 42 U.S.C. § 1983. (See id. at 17-20, 23-25.)3 On May 13, 2020, Defendants submitted a letter requesting leave to file a motion to dismiss, (see Dkt. No. 4), and the Court granted their request, (see Dkt. No. 6). Defendants filed the instant Motion on June 30, 2020. Mot. ( ) (Dkt. No. 8).) On July 10, 2020, Defendants wrote a letter to the Court explaining that Plaintiff had not opposed the Motion. (Dkt. No. 10.) The Court provided Plaintiff until August 10, 2020 to oppose the Motion. (Dkt. No. 11.) Defendants submitted a second letter on October 28, 2020, again explaining that Plaintiff had yet to oppose the Motion. (Dkt. No. 12.) The Court via memo endorsement extended Plaintiff's opposition deadline to November 15, 2020, and ordered Defendants to mail the memo endorsement to Plaintiff. (Dkt. No. 13.) On January 7, 2021, Defendants submitted a third letter, noting that Plaintiff had not been mailed the October 28, 2020 memo endorsement and requesting a final deadline forPlaintiff to oppose the Motion. (Dkt. No. 14.) The Court provided Plaintiff until January 25, 2021 to oppose the Motion. (Dkt. No. 15.) It further noted that, should Plaintiff fail to meet this deadline, the Motion would be deemed fully submitted. (Id.) Plaintiff did not oppose the Motion before January 25, 2021, and has not opposed the Motion or otherwise communicated with the Court. Thus, the Court deems the Motion fully submitted and ripe for adjudication.
"The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are 'substantively identical.'" Gonzalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D. Conn. June 3, 2014) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)).
"A federal court has subject matter jurisdiction over a cause of action only when it has authority to adjudicate the cause pressed in the complaint." Bryant v. Steele, 25 F. Supp. 3d 233, 241 (E.D.N.Y. 2014) (citation and quotation marks omitted). "Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a claim is...
To continue reading
Request your trial