United States District Court, N.D. Mississippi, Oxford Division
MICHAEL P. MILLS, UNITED STATES DISTRICT JUDGE
Mississippi State Veterans Home (“MSVH”), Amanda
May and Stephanie Spears have filed motions to dismiss in
this case which have been partially conceded by plaintiff
Tamisha Pegues. This court will grant the motions to dismiss
to the extent that they have been conceded, and it will also
address, on its own motion, jurisdictional concerns which it
has developed regarding certain other claims asserted by
plaintiff after having reviewed the parties' submissions
in this case.
a case which finds itself in a regrettably deficient state of
pleading and briefing, considering that it is set to go to
trial on September 11, 2017. This case involves, at its
heart, a claim for disability discrimination based upon
plaintiff's allegations that her former employer MSVH
unlawfully refused to accommodate her disability resulting
from a ruptured disc. Plaintiff further contends that she was
improperly fired from her position at MSVH after defendant
determined that it could no longer offer light duty as an
option for its employees.
have presently filed motions to dismiss most, but not all, of
the claims asserted against them, and, as noted previously,
plaintiff has conceded that some of her claims should be
dismissed. In her response, however, plaintiff argues certain
other claims which she asserts should be permitted to go to
trial, and it is unclear to this court whether defendants
agree with this assertion, since they did not file a rebuttal
brief. This situation appears to be based partly upon the
fact that the former lead counsel for defendants filed a
motion to withdraw from this case on April 26, 2017, which is
approximately when defendants would have been required to
file their rebuttal briefs. In (successfully) seeking
permission to withdraw, counsel noted that he had
“resigned from his position as Special Assistant
Attorney General effective April 30, 2017, and will no longer
be employed by the Office of the Attorney General.”
[Motion to withdraw at 1]. Perhaps as a result of their
former counsel's employment situation,  the briefing on
the motion to dismiss leaves a good deal to be desired, and
there are a number of unsettled issues in this court's
mind even after having reviewed defendants' motions to
dismiss and plaintiff's responses to them.
lack of rebuttal briefing aside, it strikes this court that
defendants' motions to dismiss are rather bare-bones in
nature, given that they consist almost entirely of citations
to generalized principles of law, dealing primarily with
Eleventh Amendment immunity. Notably, the motions to dismiss
make little, if any, effort to point out weaknesses in the
specific allegations of plaintiff's Third Amended
Complaint, even though that complaint strikes this court as
being, if anything, even more bare-bones than the motions to
dismiss. For example, the Third Amended Complaint makes
conclusory allegations that the individual defendants May and
Spears, who are administrators at MSVH, face liability under
state and federal law, but it never comes close to making any
sort of detailed allegations in this regard. Specifically,
the complaint alleges that:
5. Plaintiff was employed by the Defendant Veterans Home for
six and one-half (6 ½) years. On approximately
December 4, 2013, Plaintiff ruptured a disc while on the job.
The ruptured disk substantially affected Plaintiff's
ability to perform everyday life activities, and constituted
a “disability” within the meaning of the
Americans with Disabilities Act and the Americans with
Disabilities Act Amendments Act, and the Rehabilitation Act
of 1973. Plaintiff was placed on light duty. Defendant, in
violation of doctor's orders, required Plaintiff to
perform light-duty by lifting.
6. Consistent with the purposes of the Mississippi
Workers' Compensation Act, Plaintiff reported to
Mississippi Workers' Compensation Commission
(“MWCC”) that she was being required, as a
condition of her employment, to violate doctor's orders.
The MWCC then contacted Defendant Veterans Home. Immediately
thereafter, Defendant Veterans Home, acting through Defendant
Spears, but with the consent and direction of Defendant May,
terminated Plaintiff's employment.
In terminating Plaintiff on April 2, 2014, Defendants told
Plaintiff that there would no longer be any light-duty work
available for any employees. Defendant Veterans Home
terminated Plaintiff by abolishing its light-duty work
because Plaintiff had reported to the MWCC that Defendant
Veterans Home was violating doctor's orders by requiring
her to perform work in violation of the doctor's orders.
Except for Plaintiff's report to the MWCC, Defendants may
have accommodated Plaintiff by allowing her light-duty work.
7. A report to the MWCC that employees are being required to
work for a state agency in conflict with doctor's orders
is a report on a matter of public concern. Furthermore,
following the implicit requirements of state law by reporting
on one's work conditions to the MWCC is speech protected
by the petitions clause of the First Amendment to the United
8. Defendant Veterans Home refused to accommodate
Plaintiff's disability by allowing her to perform
light-duty work. Instead, it abolished its light-duty jobs.
Light-duty work would have been a reasonable accommodation
for Plaintiff's injury.
9. Defendant Veterans Home and individual Defendants
willfully violated Plaintiff's rights under the Family
and Medical Leave Act (“FMLA”). Even though the
Veterans Home offered FMLA leave to its employees and
Plaintiff qualified for FMLA leave, and they were aware that
Plaintiff had an injury that qualified her for FMLA leave,
they never offered her leave instead of firing her.
10. Plaintiff has suffered lost income and mental anxiety and
[Third Amended Complaint at 3-4].
allegations are the only ones of any specificity in the
complaint, and there is nothing in them which spells out what
the individual defendants May and Spears may have done to
subject themselves to liability in this case. Nevertheless,
the remaining portion of the complaint alleges liability on
the part ...