United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R. WOOD, United States District Judge
Eric Phillipson has sued Defendant John F. Kelly, in his
official capacity as Secretary of the Department of Homeland
Security (“DOHS”), for age
discrimination.Phillipson works for the Federal Emergency
Management Agency (“FEMA”), which is a division
of DOHS. According to Phillipson's First Amended
Complaint, DOHS discriminated against him, retaliated against
him for his grievance about the discrimination, and subjected
him to a hostile work environment. In particular, Phillipson
claims that due to his age DOHS wrongfully disciplined him,
evaluated his job performance as poor, denied him sick leave,
and solicited co-worker complaints about his behavior, all in
violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.
Before the Court is Defendant's motion to dismiss several
of Phillipson's claims. (Dkt. No. 19.) Phillipson, in
turn, has filed a motion seeking leave to file a second
amended complaint. (Dkt. No. 28.) For the reasons that
follow, the Court grants Defendant's motion to dismiss in
part and denies it in part, and also grants Phillipson's
motion for leave to file a second amended complaint.
is a 49-year-old program analyst for FEMA. (First Am. Compl.
¶ 7, Dkt. No. 18.) He is a member of the bargaining unit
subject to FEMA's collective bargaining agreement
(“CBA”) with the American Federation of
Government Employees (“AFGE”). (Id.
¶ 8.) In his First Amended Complaint, Phillipson
describes the following eight discriminatory or retaliatory
incidents that he has suffered while working for FEMA.
(Id. ¶ 11.)
Incident A: On March 18, 2013,
Phillipson's supervisor, Operational Plans Section Chief
Gustav Wulfkuhle, wrote an official reprimand intended for
Phillipson's personnel folder. (Id. ¶
11(a); see also Grievance Filing (Apr. 24, 2013) at
1, Ex. 2 of Dkt. No. 20-1 at 69 of 135.) According to the
letter, Phillipson was counseled in October 2012
“concerning [his] manner of dealing with Denise Dukes,
” which was characterized as “aggressive, ”
“belligerent, ” “unacceptable, ” and
constituting “misconduct.” But Phillipson alleges
that “there was no such counseling in October of
2012.” (Grievance Filing (Apr. 24, 2013) at 1, Ex. 2 of
Dkt. No. 20-1 at 69 of 135.)
Incident B: On April 5, 2013,
Wulfkuhle wrote an Official Notice of Proposed Suspension.
(First Am. Compl. ¶ 11(b), Dkt. No. 18.) That Notice
charged that Phillipson had been “60 days past due on
[his] government issued travel card” as of April 9,
2012. (Grievance Filing (Apr. 24, 2013) at 1, Ex. 2 of Dkt.
No. 20-1 at 69 of 135.) Phillipson denies that this was true.
Incident C: On April 15, 2013,
Wulfkuhle evaluated Phillipson's performance in four job
categories as “Less Than Expected”
(“LTE”) because Phillipson failed to complete an
Individual Development Plan (“IDP”). Phillipson
alleges that he had completed that IDP. (First Am. Compl.
¶ 11(c), Dkt. No. 18; see also Grievance Filing
(Apr. 24, 2013) at 2, Ex. 2 of Dkt. No. 20-1 at 69 of
135.) After Phillipson received notice that DOHS
proposed to suspend him, Phillipson or his union submitted a
response. (First Am. Compl. ¶ 13, Dkt. No. 18.)
Incident D: On June 21, 2013,
Phillipson felt ill at about 9 a.m. and requested sick leave.
After six hours passed without Wulfkuhle's response,
Phillipson notified the only supervisor present in the office
that he intended to leave and then did so. Five days later,
Wulfkuhle instructed Phillipson to carry the sick leave time
used as away without leave. (Id. ¶ 11(d); EEO
Counselor's Rpt. at 4 (Aug. 22, 2013), Ex. 9 of Dkt. No.
20-1 at 120 of 135.)
Incident E: On July 8, 2013,
Phillipson learned that FEMA leadership had directed its
Regional Security Officer to call Phillipson's coworkers
to ask if he had been “hostile” towards them.
(First Am. Compl. ¶ 11(e), Dkt. No. 18; see
also EEO Counselor's Rpt. at 2 (Aug. 22, 2013), Ex.
9 of Dkt. No. 20-1 at 120 of 135.)
Incident F: On September 6, 2013,
Wulfkuhle again issued Phillipson a Performance Expectation
Letter citing his performance as LTE. (First Am. Compl.
¶ 11(f), Dkt. No. 18.)
Incident G: On September 11, 2013,
Wulfkhule attempted to deliver Phillipson's Second
Quarter Performance Evaluation to him with ratings of LTE in
several areas. (Id. ¶ 11(g).)
Incident H: Finally, On September
24, 2013, Wulfkhule denied Phillipson's request for sick
leave. (Id. ¶ 11(h).)
April 24, 2013, in response to Incidents A, B, and C,
Phillipson sent a letter to Paul Preusse, the Director of
FEMA's Response Division, to provide “official
notice” that he desired to file a grievance against
Wulkuhle because of “a series of incidents that have
occurred between January 28th and April 24th, 2013.”
(Grievance Filing (Apr. 24, 2013) at 1, Ex. 2 of Dkt. No.
20-1 at 69 of 135.) The grievance letter complains that
Wulfkuhle made false official statements about Phillipson as
described in Incidents A and B above, and that Wulfkuhle
subjected Phillipson to disparate treatment on account of his
age at various times, such as in Incident C.
has moved to dismiss Phillipson's claims based on
Incidents A, B, and C for lack of subject-matter
jurisdiction, pursuant to Federal Rule of Civil Procedure
12(b)(1). Defendant also has moved to dismiss the claims
arising out of Incidents E, F, and G for failure to state a
claim, pursuant to Federal Rule of Civil Procedure
12(b)(6). Notably, Defendant has not moved to