CLAY v. KENDALL

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
BRADLEY M. CLAY, 	)
)
)
Plaintiff, 	)
)
v. 	) 	CIVIL ACTION NO. 5:25-cv-57 (MTT)
)
FRANK KENDALL, 	)
)
)
Defendant. 	)
)
ORDER
Bradley Clay brought this action against Frank Kendall, the Secretary of the
Department of the Air Force. ECF 1. Clay asserts claims of disability discrimination,
failure to accommodate, and retaliation under the Rehabilitation Act, 29 U.S.C. § 701.
Id. ¶¶ 88-133. Kendall moves to dismiss in part for failure to exhaust and failure to state
a claim. ECF 6. For the reasons that follow, Kendall’s motion to dismiss (ECF 6) is
GRANTED in part and DENIED in part.
I. BACKGROUND
Clay’s claims arise out of his employment at Robins Air Force Base in Houston
County, Georgia (“Robins”). ECF 1. Clay alleges that his supervisors at Robins failed to
accommodate him for his disabilities, that they discriminated against him based on his
disabilities, and that they retaliated against him for requesting an accommodation and
filing a complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”).
Id. ¶¶ 88-133.
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A. Factual Background
Prior to his employment as a civilian, Clay was “an active duty Airman in the
United States Air Force.” Id. ¶ 8. During his service in the Air Force, Clay was deployed
to a base in Iraq. Id. ¶ 18. “[A]s a direct result of experiences … during his active duty
military service,” Clay was diagnosed with Post-Traumatic Stress Disorder (“PTSD”),
Major Depressive Disorder, and Major Anxiety Disorder. Id. ¶¶ 16-20. Clay’s conditions
cause depression, anxiety, and panic attacks. Id. ¶¶ 21-27.
Clay alleges that he was experiencing such symptoms when he began his
employment at Robins as a Non-Destructive Inspection Technician (“NDI Technician”)
in 2019. Id. ¶ 12. As an NDI Technician, Clay “spent some time on the aircraft flight line,
a hangar used to service Defendant’s aircraft.” Id. ¶ 15. Clay “quickly found that there
were occasions in which loud noises, including the sonic booms emanating from aircraft
traveling to and from Robins Air Force Base, would cause [ ] Clay to experience …
‘panic attacks.’” Id. ¶ 24.
Clay consulted mental health professionals and conducted “a significant amount
of personal research,” which led him to the conclusion that “a service dog would be able
to provide [ ] Clay with a calming presence, and … provide the specific types of physical
contact that [he] needs in order to alleviate an episode of PTSD.” Id. ¶ 38. Clay
discovered that certain organizations provide service dogs to veterans at no cost. Id. ¶
40. However, according to Clay, those organizations require applicants to obtain their
employers’ approval. Id. ¶ 41.
On August 23, 2022, Clay met with his supervisors, Kyle Machen and Jennifer
Tribble, to request an accommodation. Id. ¶¶ 35, 45-46. Clay requested two
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accommodations: (1) “[u]se of a service animal [with Personal Protective Equipment] for
prevention/minimizing effects of PTSD panic attacks,” and (2) “[u]se of Bluetooth active
noise cancelling earbuds or headphones with passthrough technology to hear ambient
sounds but block sounds that can trigger PTSD.” Id. ¶ 46. During the meeting, Clay
alleges that his supervisors denied his request for headphones with passthrough
technology. Id. ¶ 50. According to Clay, Tribble also expressed concern about his
request for a service animal. Id. ¶ 57.
After the meeting, Clay submitted an accommodation request form and a letter
from his psychiatrist to Robins’ “Disability Program Manager.” Id. ¶ 54. In the form, Clay
sought the same accommodations he requested during the August 23, 2022 meeting.
Id. On August 30, 2022, the defendants allegedly denied both of his requested
accommodations, but allowed Clay “to take breaks when panic attacks occur[ed]” and
use double-hearing protection. Id. ¶¶ 52, 58. According to Clay, “conversation about the
request for approval to use a service dog continued over the course of the following
months” between Clay, Tribble, Machen, and other supervisors. Id. ¶ 63. At some point
during the accommodation process, Tribble contacted Robins’ director of safety to solicit
his “analysis and opinion concerning the feasibility of the request.” Id. ¶¶ 65-66.
On September 14, 2022, the director of safety issued a memorandum opining on
the feasibility of Clay’s requested accommodation. Id. ¶ 68. According to Clay, the
director “expressed concerns of a service dog due to hazards present in this workplace,
including exposure to chemicals and the type of flooring in that area.” Id. ¶ 70.
Additionally, the director “expressed his expectation that the other employees … do not
expect to see a dog in this workplace, and it could cause problems for employees who
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have allergies to dogs or had experienced a traumatic experience with a dog as a child.”
Id. ¶ 71. Clay alleges the director also “determined that Mr. Clay was unable to safely
perform the essential functions of his job.” Id. ¶ 72. Clay alleges that the memorandum
was added to his personnel records. Id. ¶ 68.
Following the denial of his accommodation request, Clay initiated an action with
the EEOC “in early October 2022.” Id. ¶ 78. Around that time, Clay also received “a
lateral promotion to the position of NDI Engineer.” Id. ¶ 80. While his new position was
still at Robins, he would be working under a different organization within the Air Force.
Id. Clay started his new position on November 6, 2022. Id.
According to Clay, Tribble and the disability program manager “continued to be
assigned to [his] requests for reasonable accommodation and the ongoing
conversations concerning the requests continued.” Id. ¶ 81. However, after Clay started
his new position, he made a new request for the same accommodations to his new
supervisor. Id. ¶ 82. Clay alleges his new supervisor denied Clay’s accommodation
request “for the sole reason that he was going to rely on the decision” of Clay’s previous
organization. Id. Eventually, in November 2024, Clay’s accommodation request was
granted without modification. Id. ¶ 83.
B. Procedural History
On September 6, 2022, Clay contacted an EEO counselor, alleging that the
defendants discriminated against him based on his disability. Id. ¶ 84. He filed his
formal EEO complaint on February 6, 2023. Id. Clay had a two-day hearing before an
administrative law judge (“ALJ”) on October 1 and 2, 2024. Id. ¶ 85. On October 9,
2024, the ALJ entered her final decision in favor of Robins. Id. ¶ 86.
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Clay filed this action on February 18, 2025. ECF 1. Clay asserts three claims
under the Rehabilitation Act: (1) disability discrimination, (2) failure to accommodate,
and (3) retaliation. Id. ¶¶ 88-133. On April 21, 2025, Kendall moved to dismiss in part for
failure to exhaust and failure to state a claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. ECF 6.
II. STANDARDS
A. Exhaustion
Plaintiffs proceeding under the Rehabilitation Act must exhaust their
administrative remedies by filing a charge with the EEOC before bringing their claims in
federal court.1 See 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5); Shiver,
549 F.3d at 1344 (applying Title VII exhaustion requirements to claims under the
Rehabilitation Act). The defense of failure to exhaust non-judicial remedies raises a
matter in abatement. Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008) (citations
omitted); see Chesnut v. CC Servs., Inc., 2020 WL 1433876, at *3 (M.D. Ga. Mar. 24,
2020) (applying Bryant to claims subject to Title VII). Like other matters in abatement,
e.g., jurisdiction, venue, and service of process, a district court may—indeed,
necessarily must—consider facts outside the pleadings and resolve factual disputes to
determine whether an exhaustion defense has merit “so long as the factual disputes do
not decide the merits and the parties have sufficient opportunity to develop a record.” Id.
at 1376 (citations omitted); see also, e.g., Snow v. Cirrus Educ. Grp., 2017 WL
6001502, at *3 (M.D. Ga. Dec. 4, 2017); Akkasha v. Bloomingdale’s, Inc., 2019 WL
1 “The remedies, procedures, and rights of Title VII are available to plaintiffs filing complaints under the
Rehabilitation Act.” Shiver v. Chertoff, 549 F.3d 1342, 1344 (2008).
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7480652, at *3 (S.D. Fla. Dec. 18, 2019).2 Plaintiffs who allege disability discrimination
by their employers bear “the burden of proving all conditions precedent to filing suit[.]”
Maynard v. Pneumatic Prods. Corp., 256 F.3d 1259, 1262 (11th Cir. 2001). Here, both
parties rely on matters outside the pleadings and neither party claims that the record
has not been sufficiently developed.
B. Failure to State a Claim
The Federal Rules of Civil Procedure require that a pleading contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). To avoid dismissal pursuant to Rule 12(b)(6), “a complaint must contain
sufficient factual matter … to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible when “the court [can] draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Factual allegations that are ‘merely consistent with a defendant’s liability’ fall short of
being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir.
2012) (quoting Iqbal, 556 U.S. at 678).
At the motion to dismiss stage, “all well-pleaded facts are accepted as true, and
the reasonable inferences therefrom are construed in the light most favorable to the
plaintiff.” FindWhat Inv. Grp. v. FindWhat.com, 658 F.3d 1282, 1296 (11th Cir. 2011)
(quoting Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006)). But
“conclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis,
2 Under Perttu v. Richards, parties may have a right to a jury trial on exhaustion “when that issue is
intertwined with the merits of a claim that falls under the Seventh Amendment.” 605 U.S. 460, 468 (2025).
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297 F.3d 1182, 1188 (11th Cir. 2002). The complaint must “give the defendant fair
notice of what the … claim is and the grounds upon which it rests.” Twombly, 550 U.S.
at 555. Where there are dispositive issues of law, a court may dismiss a claim
regardless of the alleged facts. Patel v. Specialized Loan Servicing, LLC, 904 F.3d
1314, 1321 (11th Cir. 2018).
III. DISCUSSION
Kendall first contends that Clay failed to exhaust any claims arising after his
November 2022 promotion. ECF 6 at 6-10. Kendall also argues that Clay failed to state
a claim for disability discrimination and retaliation because he did not plausibly allege an
adverse employment action. Id. at 10-14.
A. Clay Failed to Exhaust His Failure to Accommodate Claim Arising After His
November 2022 Promotion
Kendall argues that Clay failed to exhaust his claims arising after his November
2022 promotion because he did not assert those claims in his EEO complaint. Id. at 6-
10. Clay contends that his post-November 2022 claims were properly exhausted
because they were either “reasonably expected to grow from,” or a “continuing violation”
of, the allegations in his EEO complaint. ECF 8 at 12-17.
1. Clay’s post-November 2022 failure to accommodate claim did not grow out of
his EEO complaint.
“The purpose of [the] exhaustion requirement ‘is that the [EEOC] should have the
first opportunity to investigate the alleged discriminatory practices to permit it to perform
its role in obtaining voluntary compliance and promoting conciliation efforts.’” Gregory v.
Ga. Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (quoting Evans v. U.S.
Pipe & Foundry Co., 696 F.2d 925, 929 (11th Cir. 1983)). Thus, claims in a
Rehabilitation Act lawsuit are typically limited to “the scope of the EEOC investigation
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that can reasonably be expected to grow out of the charge of discrimination.” Id. at 1280
(internal citation omitted). Claims that “amplify, clarify, or more clearly focus” the
allegations in the EEO complaint are permitted. Id. at 1279 (internal quotation marks
and citation omitted). However, “allegations of new acts of discrimination are
inappropriate.” Id. at 1279-80. Still, “the scope of an EEOC complaint should not be
strictly interpreted,” and courts should be “extremely reluctant to allow procedural
technicalities to bar claims brought under [Title VII].” Id. (internal quotation marks and
citation omitted).
Here, Clay alleges, “after [he] obtained a lateral transfer in or around November
2022, Defendant refused to provide [Clay] with the reasonable accommodations as he
had requested, relying solely on the decision that had been made while [Clay] was in his
prior position.”3 ECF 1 ¶ 122. At Clay’s final EEO hearing, the ALJ specifically stated:
Prior to the hearing, Complainant did not seek to amend this complaint to
include a failure to accommodate him in his new position, and he did not
develop the hearing record on this second alleged failure to accommodate
or give the Agency notice of his intent to raise this allegation as part of this
case.
Therefore, 	to 	the 	extent 	Complainant 	alleges 	the 	Agency 	failed 	to
accommodate him in his new position after November 2022, I find it to be
beyond the scope of the accepted claims, and I am unable to consider it.
3 Kendall appears to move for dismissal of all of Clay’s claims that arise after November 2022, not just
Clay’s post-November 2022 failure to accommodate claim. See ECF 6 at 10 (“[A]ny claims related to
alleged discrimination after November 6, 2022, should be dismissed.”) (emphasis added). As discussed
below, Clay’s only remaining claim is for retaliation. Unlike discrete acts of new discrimination, retaliation
claims not asserted in an EEO complaint are often found to grow out of an EEO complaint because “[i]t is
the nature of retaliation claims that they arise after the filing of the EEOC charge.” Baer v. Buckeye
Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) (quoting Gupta v. East Texas State Univ., 654 F.2d
411 (5th Cir., 1981)). Here, it is unclear whether any of the alleged retaliatory acts occurred after
November 2022. Regardless, any post-November 2022 retaliation claim would be properly exhausted
because such a claim could be reasonably expected to grow out of Clay’s EEO complaint. See Gregory,
355 F.3d 1277 (“The facts alleged in [the plaintiff’s] EEOC charge could have reasonably been extended
to encompass a claim for retaliation because they were inextricably intertwined with her complaints of
race and sex discrimination.”).
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ECF 6-2 at 27:6-17. This alone demonstrates that Clay’s new failure to accommodate
claim could not have been reasonably expected to grow out of the EEOC’s
investigation. Review of Clay’s EEO complaint and his declaration submitted to the ALJ
only confirms that conclusion.
Apart from listing his job title as “NDI Engineer,” Clay made no mention of his
November 2022 promotion or his second accommodation request in his EEO complaint.
ECF 8-1 at 4-5. Despite the EEOC form’s direction to “[p]repare a separate complaint
form for each office which you believe discriminated against you,” Clay completed only
one form. Id. at 1. The form directed Clay to identify who he believed discriminated
against him, and Clay named only Tribble, his former supervisor, and Urbansky, the
Robins’ Safety Director. Id. He made no mention of his new supervisor, to whom he
alleges he made his second accommodation request. Id. Nor did he mention his new
supervisor or any other witnesses to his second accommodation request when the form
asked Clay to identify witnesses who may contribute to the investigation. Id. at 2. And,
most importantly, Clay’s factual allegations in his EEO complaint detail only events
surrounding his first accommodation request. Id. at 4-5; see Jimenez v. United States
Attorney General, 146 F.4th 972, 990 (11th Cir. 2025) (“The facts alleged in the charge
matter most for determining what can reasonably be expected to grow out of an EEOC
charge.” (citation modified)).
Clay contends “[t]he ongoing failure to provide a reasonable accommodation,
both before and after Clay was promoted, was not only alleged on the face of Clay’s
complaint, it [was] also the type of allegation that should be see[n] as growing out of the
four corners of that complaint, and a reasonable investigator would have certainly
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understood the post-November 2022 allegations to form the basis of Clay’s complaint.”
ECF 8 at 16. As support, Clay cites the allegation in his EEO complaint that his
discrimination had been “ongoing since” August 23, 2022. ECF 8 at 12; see ECF 8-1 at
1. Clay also cites his declaration submitted to the ALJ, in which he explained that
“management in [his] new position … indicated that the same requests for
accommodations … will be denied as a result of what Mr. Urbansky indicated in his
memorandum.” ECF 8-2 at 15. However, Clay’s passing references to a new
accommodation request are not enough to demonstrate that a reasonable investigator
would have known Clay intended to assert a second failure to accommodate claim. That
is particularly true here, where the ALJ explicitly declined to consider that claim because
the record had not been developed.
To adequately evaluate a failure to accommodate claim, the ALJ needed details
about Clay’s new position, such as his new job duties, his new work environment, and
his new supervisors’ actions. See Hollbrook v. City of Alpharetta, Georgia, 112 F.3d
1522, 1527 (11th Cir. 1997) (“[W]hat is reasonable for each individual employer is a
highly fact-specific inquiry and will vary depending on the circumstances and
necessities of each employment situation.”). The ALJ explicitly stated that those facts
were not developed in the administrative record because Clay raised the post-
November 2022 failure to accommodate claim “for the first time” at his EEO hearing.
See ECF 6-2 at 26:15-20; 27:6-17. Thus, with respect to Clay’s post-November 2022
failure to accommodate claim, the EEOC did not have the opportunity “to investigate the
alleged discriminatory practices to permit it to perform its role in obtaining voluntary
compliance and promoting conciliation efforts.’” Gregory, 355 F.3d at 1280 (quoting
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Evans, 696 F.2d at 929). Accordingly, Clay failed to exhaust his post-November 2022
failure to accommodate claim.
2. The continuing action doctrine does not apply.
In a one-sentence argument, Clay contends that if the Court is unconvinced that
his post-November 2022 claim grew out of his EEO complaint, it “could also find that
Clay’s post-November 2022 allegations consist of the same continuing violation” of his
earlier failure to accommodate claim. ECF 8 at 2. This Court has previously addressed
a similar argument in Humble v. Cirrus Educ. Grp., Inc., 2017 WL 6001501, at *3 (M.D.
Ga. 2017). In Humble, the plaintiff asserted claims for disparate treatment and hostile
work environment in her judicial complaint, but failed to raise facts relating to those
claims in her EEO charge. Id. The plaintiff appeared to contend that her claims were
exhausted under the continuing action doctrine because she indicated that her
discrimination was a continuing action on her EEO charge. Id. at *3 n.4. As the Court
explained in Humble, the continuing action doctrine applies only when “the plaintiff has
timely filed a claim regarding an ongoing discriminatory act,” not when the plaintiff
asserts claims based on “discrete actions for which administrative remedies must be
exhausted.” Id. (citing Ledbetter v. Goodyear Tire and Rubber Co., Inc., F.2d 1169,
1179 (11th Cir. 2005)). Here, Clay’s claims are based on two separate accommodation
requests, which required analysis of two distinct, albeit related, sets of factual
circumstances. Thus, the continuing violation doctrine does not apply to Clay’s post-
November 2022 failure to accommodate claim.
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Accordingly, Kendall’s motion to dismiss for failure to exhaust is GRANTED with
respect to Clay’s post-November 2022 failure to accommodate claim. That claim is,
therefore, DISMISSED.
B. Clay Has Failed to State a Claim for Disability Discrimination Under the
Rehabilitation Act
Next, Kendall argues that Clay failed to plausibly allege he suffered an actionable
adverse action in support of his disability discrimination claim. ECF 6 at 10-14. In his
response brief, Clay concedes that he “failed to include several allegations in support”
of his disability discrimination claim. ECF 8 at 17-18. Clay has, thus, abandoned that
claim. See Coal. for the Abolition of Marijuana Prohibition v. City of Atl., 219 F.3d 1301,
1326 (11th Cir. 2000) (“The appellants’ failure to brief and argue this issue during the
proceedings before the district court is grounds for finding that the issue has been
abandoned.”); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014)
(collecting cases) (“We have long held that an appellant abandons a claim when he
either makes only passing references to it or raises it in a perfunctory manner without
supporting arguments and authority.”).4
The Court agrees that, as pled, Clay’s complaint does not plausibly allege an
adverse action as required to state a claim for disability discrimination. Muldrow v. City
of St. Louis, Missouri, 601 U.S. 346, 354-55 (2024) (“To make out a Title VII
discrimination claim, a transferee must show some harm respecting an identifiable term
4 Rather than moving for leave to amend his complaint, Clay states his disability discrimination claim
“should be allowed to proceed once Clay is given an opportunity to amend in order to clarify this claim.”
ECF 8 at 18. Even if that statement could be read as a motion to amend, and it cannot, a request to
amend in a responsive brief is not a properly raised motion for leave to file an amended complaint. See
Newton v. Duke Energy Fl, LLC, 895 F.3d 1270, 1288 (11th Cir. 2018) (“Where a request for leave to file
an amended complaint simply is imbedded within an opposition memorandum, the issue has not been
raised properly.”).
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or condition of employment.”); see also Stanley v. City of Sanford, Florida, 606 U.S. 46,
61 (2025) (applying Muldrow’s Title VII discrimination standard to a disability
discrimination claim)
Thus, Clay’s disability discrimination claim is DISMISSED without prejudice.
C. Clay Has Stated a Retaliation Claim under the Rehabilitation Act
Kendall also argues that Clay failed to plausibly allege he suffered a materially
adverse action and, thus, failed to state a claim for retaliation under the Rehabilitation
Act. ECF 6 at 10-13; 13 at 8-10.
To establish a prima facie case of retaliation under the Rehabilitation Act, “a
plaintiff must show that (1) she engaged in statutorily protected conduct; (2) she
suffered an adverse employment action; and (3) there is a causal connection between
the protected conduct and the adverse employment action.” Brungart v. BellSouth
Telecommunications, Inc., 231 F.3d 791, 798 (11th Cir. 2000); see Burgos-Stefanelli v.
Sec’y, United States Dep’t of Homeland Sec., 410 F. App’x 243, 245 (11th Cir. 2011)
(“[W]e assess retaliation claims pursuant to the Rehabilitation Act under the framework
we use in assessing Title VII retaliation claims.”). However, at the pleading stage, a
plaintiff need not allege “specific facts establishing a prima facie case.” Jackson v.
BellSouth Telecommunications, 372 F.3d 1250, 1270 (11th Cir. 2004). Rather, the
plaintiff “need only lay out a short statement of the claim showing that the pleader is
entitled to relief.” Id.
Unlike claims of disability discrimination5, retaliation is actionable if the alleged
mistreatment “well might have dissuaded a reasonable worker from making or
5 To prevail on a disability discrimination claim, the plaintiff “must show some harm respecting an
identifiable term or condition of employment.” Muldrow, 601 U.S. at 354-55. Previously, courts required
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supporting a charge of discrimination.” Monaghan v. Worldpay US, Inc., 955 F.3d 855,
861 (11th Cir. 2020) (quoting Burlington, 548 U.S. at 68). However, “Title VII … does
not set forth ‘a general civility code for the American workplace.’” Burlington, 548 U.S. at
68 (quoting Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998)). The
Supreme Court has emphasized that the standards for judging materiality are intended
to separate “significant from trivial harms” such as “petty slights, minor annoyances, and
simple lack of good manners.” Id. at 68. The Supreme Court has also emphasized that
context matters, and whether an action qualifies as materially adverse will often depend
on the particular circumstances. Id. at 69 (“The real social impact of workplace behavior
often depends on a constellation of surrounding circumstances, expectations, and
relationships which are not fully captured by a simple recitation of the words used or the
physical acts performed.”); see Smith v. Haynes & Haynes P.C., 940 F.3d 635, 648-49
(11th Cir. 2019) (“The test for materiality is ‘objective,’ though ‘the significance of any
given act of retaliation will often depend upon the particular circumstances.’”).
Here, Clay alleges that “as a direct result” of his accommodation requests and
his initiation of EEO proceedings, “documentation and information was added to [Clay’s]
personnel file concluding that [he] was unable to safely perform the essential functions
of his job.” ECF 1 ¶ 129. Clay also alleges that his supervisor, Tribble, testified his EEO
complaint was “frivolous, without merit, and … not based on facts” and that she publicly
some change to the terms and conditions of employment to assert a retaliation claim as well. E.g., Davis
v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir. 2001). However, in Burlington Northern and
Santa Fe RY. Co. v. White, the Supreme Court held that, unlike Title VII’s antidiscrimination provision,
“the scope of the antiretaliation provision extends beyond workplace-related or employment-related
retaliatory acts and harm.” 548 U.S. 53, 67 (2006).
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accused him of engaging in “fraud, waste, and abuse of Government funds.” Id. ¶¶ 79,
131-32
First, Kendall argues that the memorandum added to Clay’s personnel file is not
an adverse action sufficient to state a retaliation claim. ECF 6 at 10-13. Kendall cites
Davis v. Town of Lake Park, Fla., in which the Eleventh Circuit held that a negative
performance memorandum is not actionable unless it resulted in “[a] more tangible form
of adverse action such as a loss in benefits, ineligibility for promotional opportunities, or
more formal discipline.” 245 F.3d at 1241. However, the claim at issue in Davis was an
anti-discrimination claim, and, thus, the Eleventh Circuit analyzed whether the alleged
action “impact[ed] the ‘terms, conditions, or privileges’ of the plaintiff’s job in a real and
demonstrable way.” Davis, 245 F.3d at 1235, 1239. Again, that is not the standard
here—Clay need only plausibly allege the defendant acted in a way that “well might
have dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington, 548 U.S. at 68; Monaghan, 955 F.3d at 861.
Kendall further contends that Clay has not plausibly alleged an adverse action
because he was promoted after the memorandum was added to his personnel file. ECF
6 at 12-13. But the Eleventh Circuit has rejected the contention that retaliation claims
are invalid simply because the plaintiff subsequently received an employment benefit.6
See Crawford, 529 F.3d at 973 (“Again, we think it important to emphasize that an
employer cannot undo the harm its actions have caused, and thereby avoid liability,
simply by attempting to make the employee whole retroactively.”).
6 In his reply brief, Kendall states that Clay “does not seem to dispute that the filing of a personnel file,
without more, cannot be considered retaliation. ECF 13 at 8. However, in Clay’s response to Kendall’s
motion to dismiss, he argues that the memorandum, along with Tribble’s public accusations, constituted
an adverse action. See, e.g., ECF 8 at 19.
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Finally, Kendall argues Clay’s allegations that his supervisor publicly accused
him of fraud, waste, and abuse “fall woefully short of the pleading standards in the
Federal Rules of Civil Procedure.” ECF 13 at 9. The Court disagrees. Clay alleged that
his supervisor, Tribble, publicly accused Clay of engaging in fraud, waste, and abuse of
government funds because Clay filed an EEO Complaint. ECF 1 ¶¶ 131, 132. Although
thin to the point of emaciation, Clay’s allegations of his supervisor’s actions, along with
the inclusion of the memorandum in his personnel file, plausibly allege that Clay’s
supervisors acted in a way that “well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Monaghan, 955 F.3d at 861 (quoting
Burlington, 548 U.S. at 68).
Because Clay has plausibly alleged that he suffered an adverse action, Kendall’s
motion to dismiss Clay’s retaliation claim for failure to state a claim is DENIED.
IV. CONCLUSION
In sum, the Court concludes that Clay failed to exhaust his failure to
accommodate claim arising after November 2022. Additionally, Clay has failed to state a
claim of disability discrimination under the Rehabilitation Act. However, Clay has
plausibly alleged a retaliation claim under the Rehabilitation Act. Accordingly, Kendall’s
motion to dismiss is GRANTED in part and DENIED in part. Clay’s failure to
accommodate claim arising after his promotion in November 2022 and his disability
discrimination claim are DISMISSED without prejudice. Clay’s failure to accommodate
claim arising prior to November 2022 and his retaliation claim will proceed for further
factual development.
Case 5:25-cv-00057-MTT Document 16 Filed 12/18/25 Page 16 of 17

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SO ORDERED, this 18th day of December, 2025.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
Case 5:25-cv-00057-MTT Document 16 Filed 12/18/25 Page 17 of 17