United States District Court, D. South Carolina, Anderson Division
Mary E. Oglesby, Plaintiff,
Itron Electricity Metering, Inc., a/k/a Itron, Inc., Defendant.
Timothy M. Cain United States District Judge.
Mary E. Oglesby (“Oglesby”), filed this action
against her former employer, Itron Electricity Metering,
Inc., a/k/a Itron, Inc. (“Itron”) claiming that
the termination of her employment violated the Family and
Medical Leave Act (“FMLA”), the Americans with
Disabilities Act (“ADA”), and the Rehabilitation
Act. Itron has filed a motion to dismiss Ogelsby's
disability and discrimination claims under the ADA and
Rehabilitation Act. (ECF No. 5). In accordance with 28 U.S.C.
§ 636(b)(1) and Local Civil Rule 73.02, D.S.C., that
motion was referred to a magistrate judge for pretrial
handling. Before the court is the magistrate judge's
Report and Recommendation (“Report”),
recommending that the court grant the motion to dismiss. (ECF
No.13). Oglesby has filed objections (ECF No. 24), and Itron
has responded to those objections (ECF No. 26). Accordingly,
this matter is now ripe for review.
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). In the absence of objections, this court is not
required to provide an explanation for adopting the Report.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). Rather, “in the absence of a timely filed
objection, a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life &
Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
Rule of Civil Procedure 12(b)(6) permits a party to move for
dismissal if the opposing party fails to state a claim for
which relief can be granted. Rule 8(a) sets forth a liberal
pleading standard, which requires only a “ ‘short
and plain statement of the claim showing the pleader is
entitled to relief, ' in order to ‘give the
defendant fair notice of what . . . the claim is and the
grounds upon which it rests.' ” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). A motion to
dismiss under Rule 12(b)(6) examines the legal sufficiency of
the facts alleged on the face of a plaintiff's complaint.
See Edwards v. City of Goldsboro, 178 F.3d 231, 243
(4th Cir. 1999). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.' ” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. Although “a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, ” a pleading that merely offers
“labels and conclusions, ” or “a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555. Likewise,
“a complaint [will not] suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancements.' ” Iqbal, 129 S.Ct.
at 1949 (quoting Twombly, 550 U.S. at 557).
Report, the magistrate judge determined that Ogelsby's
ADA claim should be dismissed as time-barred for failure to
file this action within ninety days after receiving the right
to sue letter from the Equal Employment Opportunity
Commission. (“EEOC”). (Report at 10). The
magistrate judge also recommended that the Rehabilitation Act
claims be dismissed because Ogelsby failed to allege any
program or activity received federal funds. (Report at 12).
In her objections, Ogelsby does not address the magistrate
judge's recommendation that the ADA claim be dismissed as
untimely. Therefore, having found no clear error, the court
adopts that portion of the Report which recommends granting
the motion to dismiss as to the ADA claim.
objections, Ogelsby alleges only that the magistrate judge
erred in recommending that the Rehabilitation Act claims be
dismissed. (Objections at 2). Ogelsby contends that the
question of whether Itron receives federal funds should not
be addressed until after discovery. She contends that she
alleges in her complaint that Itron receives subsidies and
that places Itron within the ambit of the Act. In its
response, Itron argues that Oglesby has not alleged that
Itron receives subsidies or other assistance, rather Oglesby
alleges only that Itron is a government contractor, which
does not make it subject to the Rehabilitation Act.
Complaint, Oglesby alleges that the Rehabilitation Act
applies to private employers who receive federal funding and
encompasses “employers who are engaged in government
contracting.” (Am. Compl. ¶¶ 29-30). Oglesby
then alleges that Itron “had during the course of
Plaintiff's employment, contracts to perform work for the
federal and/or state and local governments.” (Am.
Compl. at ¶ 31).
504 of the Rehabilitation Act prohibits discrimination
through any program on activity that receives federal
financial assistance. See 29 U.S.C. § 794.
Section 504 provides:
No otherwise qualified individual with handicaps . . . shall,
solely by reason of her or his handicap, be excluded from the
participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving
Federal financial assistance . . .
29 U.S.C. § 794. As noted above, in her complaint,
Oglesby alleges Itron had “contracts to perform work
for the federal and/or state and local governments.”
(Am. Compl. at ¶ 31). However, a private entity's
contract with the government does not qualify as
“federal financial assistance” for purposes of
the Rehabilitation Act. Conner v. Nucor, C/A No.
2:14-cv-4145-SB, 2015 WL 5785510, *6 (D.S.C. Sept. 30, 2015)
(citing Smith v. Laidlaw Transit, Inc., C/A No.
3:02-cv-4179-JFA, 2006 WL 6036888, *8 (D.S.C. Jan. 6, 2006)
(“Defendant was not a recipient of federal financial
assistance for purposes of a Rehabilitation Act claim, and
cannot therefore be sued under that Act.”), aff'd
196 F.App'x 153 (4th Cir. 2006); Jarno v. Lewis,
256 F.Supp.2d 499, 504 (E.D.Va. 2003) (collecting cases
holding that “procurement contracts do not constitute
federal financial assistance where the recipient receives no
government subsidy for its service but rather acts solely as
a market participant”). See also Venkatraman v. REI
Systems, Inc., 417 F.3d 418, 421 (4th Cir. 2005)
(explaining that “an entity receives
'assistance' [under Title VI] when it receives a
subsidy, as opposed to compensation.”); Allen v.
Center for Creative Leadership, C/A No. 1:05-cv-1149,
2006 WL 1743285, *2 (M.D. N.C. June 22, 2006) (dismissing
title VI claim pursuant to Rule 12(b)(6) because merely
“alleging contracts with the federal government . . .
falls short of the required allegation of 'financial
assistance' necessary to state a claim”). Based on
the foregoing, the court agrees with the magistrate
judge's determination that Oglesby has failed to state a
claim under the Rehabilitation Act.
thorough review of the Report and the record in this case,
the court adopts the Magistrate Judge's Report (ECF No.
13) and incorporates it herein. It is therefore
ORDERED that Itron's motion to dismiss
Plaintiff's ADA and Rehabilitation claims (ECF No. 5) is