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Phillipson v. Kelly

United States District Court, N.D. Illinois, Eastern Division

March 24, 2017

ERIC PHILLIPSON, Plaintiff,
v.
JOHN F. KELLY, Secretary of U.S. Department of Homeland Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          ANDREA R. WOOD, United States District Judge

         Plaintiff Eric Phillipson has sued Defendant John F. Kelly, in his official capacity as Secretary of the Department of Homeland Security (“DOHS”), for age discrimination.[1]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.

         BACKGROUND

         Phillipson 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.)[2]

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. (Id.)
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.)[3] 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).)

         On 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.

         Defendant 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).[4] Notably, Defendant has not moved to ...


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