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JOHNSON v. PRINCIPI

TERRY JOHNSON, Plaintiff,
v.
ANTHONY J. PRINCIPI, Secretary of Veterans Affairs; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL NO. 2107; and LAWRENCE JENKINS, Defendants.



The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Terry Johnson filed her Second Amended Complaint against her former employer, the Veterans Affairs Medical Center ("VAMC"), alleging she had been subject to denigrating comments and abuse by its management and her fellow employees because of her sex, race, national origin, disabling condition, or in retaliation for a previous formal Department of Veteran's Affairs ("VA") Equal Employment Opportunity ("EEO") complaint she had filed against the VAMC. Plaintiff's complaint also included allegations against her local union, Local 2107, her national union, American Federation of Government Employees ("AFGE") (collectively "the Union Defendants"), and Lawrence Jenkins, Chief Steward of Local 2107, complaining that these three defendants mistreated her by failing to assist her in filing grievances against the VAMC and denying her requests to be appointed to a stewardship position in the local union. Plaintiff asserts their actions were in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (Count I), 42 U.S.C. § 1981 (Count II), and the Americans With Disability Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA") (Count III). The Union Defendants and Jenkins have now filed a motion to dismiss.*fn1

For the following reasons, the Court grants the motion to dismiss in its entirety.

  I. Background

  A. Procedural Background

  On June 12, 1996, Plaintiff filed a formal EEO complaint against the VAMC, her employer at the time, with the VA, claiming she was a victim of sex and race discrimination. This complaint was resolved through a settlement agreement between Plaintiff and the VAMC. Following this agreement, Plaintiff alleged she was subject to denigrating comments and abuse by the VAMC's employees and management. Thereafter, on February 24, 2003, Plaintiff filed the initial complaint in this Court, pro se, for this action against Secretary of Veterans Affairs Anthony J. Principi*fn2 and the President of AFGE, Bobby Harnage, alleging claims of discrimination and related misconduct. In August 2003, the Court granted Plaintiff leave to file an amended complaint. The Court subsequently appointed Plaintiff counsel. On November 21, 2003, Plaintiff sought leave to amend the amended complaint to substitute defendants. With the Court's permission, Plaintiff filed her Second Amended Complaint on February 23, 2004, replacing Bobby Harnage with current the Union Defendants-AFGE, Local Union 2107, and Lawrence Jenkins. The Union Defendants and Jenkins now file their Joint Motion to Dismiss the Second Amended Complaint.

  B. Factual Background

  When considering a motion to dismiss, the Court must consider the allegations in the complaint to be true and view them, along with the reasonable inferences that can be drawn from them, in the light most favorable to the plaintiff. See Massey v. Helman, 196 F.3d 727, 732 (7th Cir. 1999).

  Plaintiff is a disabled African-American of Cherokee ancestry, and also a veteran of the United States Army. She was born with male genitalia but identifies herself as female. For the time period relevant to this case, Plaintiff's dress and appearance at work, as well as in the rest of her life, has been feminine.

  Plaintiff was employed at the VAMC from 1993 until August 2001, at which time her status changed to disability retirement. When she left the VAMC in August 2001, she was employed as a Pharmacy Technician. For the past several years, Plaintiff has also been a member of Local 2107, a local union representing federal government employees. Local 2107 functions as a labor organization affiliated with AFGE, a national union functioning across the United States representing federal government employees.

  Plaintiff states she was subject to denigrating comments and abuse at the VAMC by both management and fellow employees. In addition, she alleges that the VAMC rejected her applications for promotion or reassignment, because of her sex, race, national origin and disabled condition, or in retaliation for her 1996 EEO complaint, despite favorable performance evaluations and acknowledgment by the VAMC that Plaintiff was qualified for those positions. In Fall of 2003, Plaintiff filed a formal VA EEO complaint against the VAMC. The VA issued a Final Agency Decision against Plaintiff's complaint on January 14, 2003.

  Plaintiff alleges she informed Local 2107 and Lawrence Jenkins, an employee of the VAMC and Chief Steward of Local 2107, about the discrimination and misconduct she experienced at the VAMC. However, union personnel failed to address or file grievances relating to her mistreatment at the VAMC. Jenkins and other leaders of Local 2107 have denied her requests to be appointed to a stewardship position, and prevented her from being on the ballot for the positions of Chief Steward and Vice President of the local union. Local 2107 also deleted Plaintiff's name from the mailing list and from the AFGE national roll, and as a result, prevented her from receiving notice of the September 2002 Chief Stewardship election in sufficient time to submit her name for nomination by the June 24, 2002 deadline date. On June 4, 2003, Jenkins referred to her as "Thing" before members of Local 2107 and employees of the VAMC. Plaintiff contends that these actions were taken by union personnel on account of her race, national origin, disability and sexual orientation. Plaintiff complained to the AFGE about the misconduct of Jenkins and Local 2107, and the AFGE did not take corrective action. Count I of her complaint alleges violations of Title VII, Count II alleges violations of Section 1981, and Count III alleges violations of the ADA.*fn3 II. Discussion

  The Union Defendants and Jenkins do not identify under which rule their motion to dismiss is brought. Presumably, with respect to Counts I and III, it is brought under Rule 12(b)(6), for failure to state a claim upon which relief can be granted. The motion to dismiss Count II appears to be brought under Rule 12(b)(1), for lack of subject matter jurisdiction, and also under 12(b)(6) with respect to Jenkins.

  In considering a motion to dismiss under Rule 12(b)(6), a court does not decide the merits of the case, but rather tests the sufficiency of the complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). A court must accept as true all the plaintiff's well-pleaded factual allegations and the inferences reasonably drawn from them. Apostol v. Landau, 957 F.2d 339, 343 (7th Cir. 1992). Dismissal will ...


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