Bailey v. Dejoy

Decision Date26 February 2021
Docket Number1:20-cv-00042-JAW
PartiesAMY M. BAILEY, Plaintiff v. LOUIS DEJOY, Postmaster General of the United States Postal Service, Defendant
CourtUnited States District Courts. 1st Circuit. United States District Court (Maine)

Plaintiff alleges that her former employer, the United States Postal Service, discriminated against her based on her disability. Plaintiff initially asserted claims pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq. In her response to Defendant's partial motion to dismiss, Plaintiff evidently attemps to assert more than ten additional violations of federal law. Defendant has moved to dismiss all Plaintiff's claims except the claims arising under the Rehabilitation Act.1 See Fed. R. Civ. P. 12(b)(1), (6). (Motion, ECF No. 29; Reply, ECF No. 36.)

Following a review of the record and after consideration of the parties' arguments, I recommend the Court grant in part and deny in part Defendant's motion to dismiss.

A. Factual Background

The following facts are drawn from Plaintiff's complaint, including the attached exhibits, and Plaintiff's subsequent pleadings. See Waterman v. White Interior Sols., No. 2:19-cv-00032-JDL, 2019 U.S. Dist. LEXIS 191506, at *4 (D. Me. Nov. 5, 2019) (stating that a court may "consider other filings by a self-represented plaintiff, 'including [the] response to the motion to dismiss, to understand the nature and basis of [her] claims'" (quoting Wall v. Dion, 257 F. Supp. 2d 316, 318 (D. Me. 2003)). Plaintiff's factual allegations are deemed true when evaluating a motion to dismiss. See McKee v. Cosby, 874 F.3d 54, 59 (1st Cir. 2017) (considering a motion to dismiss pursuant to Rule 12(b)(6)); Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010) (considering a motion to dismiss pursuant to Rule 12(b)(1)).

Plaintiff was formerly employed by the United States Postal Service. (Complaint at 5, ECF No. 1; Exhibit at 1, ECF No. 1-3.) She worked as a mail handler and her duties included sorting mail that came through the facility. (Exhibit at 1, 3.) According to Plaintiff, she has dissociative amnesia which "causes short term memory loss." (Exhibit at 6.) Plaintiff alleges she made a request for an accommodation in her job, but Defendant failed to make the accommodation. (Complaint at 5; Exhibit at 1.) Because of her disability, Plaintiff "need[ed] to sometimes write things down," and claims that this can be done through use of a cellphone or a notepad. (Exhibit at 7.) Evidently, Plaintiff occasionally wrote notes on her phone while performing her job. (Exhibit at 4.)

Plaintiff alleges that the postal plant manager, Brandon Pinkham, "violated protocols and established policies" during her employment. (Complaint at 5.) Plaintiff asserts she was told during her training that she should "tag" any "broken and dangerous equipment" so that it could be repaired. (Exhibit at 1; Response ¶ 10, ECF No. 32.) According to Plaintiff, she "tagged" several pieces of equipment, but the plant manager removed the tags. (Exhibit at 1-2.) Plaintiff alleges that a full-time employee filed a "union complaint" about the issue. (Exhibit at 2.) Plaintiff also alleges that she was retaliated against "for removing a dangerously damaged cage from the floor [and] 'tagging' it." (Response ¶ 39.)

Plaintiff maintains that she was informed during her training that she would be able to train in other departments, but she was "passed up on greater than 7 occasions." (Exhibit at 1.) She alleges that other employees were able to conduct this additional training and that of the ten other people hired at the same time, she was the only one not trained in other departments. (Id.) Plaintiff asserts that her "work duties were limited to 3 areas." (Response ¶ 50.) Plaintiff also alleges that the plant manager would assign only her to a workstation that usually required two employees. (Exhibit at 2.) She claims that she often worked alone for up to two hours, while others worked in groups of two or three. (Id.) Plaintiff asserts the manager refused to train her on the use of a scanning device and called her "useless" when she tried to use it. (Exhibit at 2, Response ¶ 46.)

Plaintiff alleges that on one instance, the plant manager threw a box while they were sorting mail and the box struck her in the head. (Exhibit at 3.) After she was struck, she experienced a "headache and dizziness." (Id.) Plaintiff sought to write a report about theincident with one of her supervisors but was unable to do so. (Exhibit at 3-4.) Plaintiff took the following day off. (Exhibit at 4.) , Plaintiff alleges that upon her return to work, her "card was pulled." (Id.) Plaintiff claims that she was eventually able to file a report with the plant manager about the incident. (Id.) At some point, the plant manager informed her that if she filled out an accident report or "voic[ed] a complaint" then she "would not be hired again." (Response ¶ 40.)

According to Plaintiff, the plant manager also conducted a performance review regarding Plaintiff's employment. (Exhibit at 4.) The manager cited Plaintiff for some absences, which Plaintiff disputed. (Id.) Plaintiff alleges that other employees were not cited for having a similar number of absences. (Id.) Plaintiff claims that she asked for a copy of her the "review," but the plant manager "wouldn't give [her] a copy" and and "alter[ed] the document." (Exhibit at 4; Response ¶ 34.) (Id.)

Plaintiff asserts that on three different days she was told that there was no work and that she did not have to come to work. (Exhibit at 5.) After the third day, Plaintiff informed an administrator at the plant of the events that had occurred "after [Plaintiff] asked for an accommodation [for her] disability." (Id.) Plaintiff spoke with the administrator about "being discriminated against because of [her] condition and retaliated [against] because of the incident [where she] got hit with a package." (Id. at 5-6.) Plaintiff claims the administrator told her that he would speak to the plant manager about Plaintiff returning to her shift. (Id. at 5.) Later that same day, Plaintiff received a call informing her that she was "let go" from her position. (Id. at 6.)

B. Procedural Background

Plaintiff filed a complaint against Defendant2 on February 6, 2020, asserting claims under the ADA and sections 503 and 504 of the Rehabilitation Act, 29 U.S.C. §§ 793-794.3 (Complaint at 4.) On December 18, 2020, Defendant filed a partial motion to dismiss Plaintiff's claim asserted under the ADA for lack of subject-matter jurisdiction, arguing that, pursuant to 42 U.S.C. § 12111(5)(B), the Postal Service is exempt as an "employer" under the ADA. (Motion at 2.) Plaintiff filed a response to the motion to dismiss on January 8, 2020, in which motion she sought to "correct errors" and amend the "Civil Cover Sheet" by asserting additional claims. (Response ¶¶ 3-56, ECF No. 32.) On that same day, Plaintiff filed an amended Civil Cover Sheet, which attempted to assert additional causes of action and which cited the federal statutes Defendant allegedly violated. (Corrected Civil Cover Sheet, ECF No. 33; Attachment, ECF No. 33-1.) On January 21, 2020, Defendant renewed his motion to dismiss Plaintiff's ADA claim for lack of subject-matter jurisdiction and sought to dismiss Plaintiff's additional claims.4 See Fed. R. Civ. P. 12(b)(1), (6). (Reply, ECF No. 36.)

A. Plaintiff's Claims

Through her complaint and subsequent pleadings, Plaintiff apparently seeks to assert claims pursuant to the following federal statutes: (1) Sections 501, 503, 505, and 508 of the Rehabilitation Act, 29 U.S.C. § 791 et seq.;5 (2) the ADA, 42 U.S.C. § 12112 et seq.; (3) Title VII, which the Court interprets as a claim arising under 42 U.S.C. § 2000e-16; (4) the Service Contract Act, 41 U.S.C. § 6703; (5) the whistleblower protections of the Fair Labor Standards Act, 29 U.S.C. § 218c, and 15 U.S.C. § 2087(b); (6) the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.; (7) the Privacy Act of 1974, 5 U.S.C. § 552a; (8) the Javits-Wagner-O'Day Act, 41 U.S.C. §§ 8501-06; (9) the Architectural Barriers Act, 42 U.S.C. §§ 4151-57; (10) the Contract Disputes Act, 41 U.S.C. §§ 7101-09; (11) the Notification and Federal Employee Antidiscrimination and Retaliation Act ("No FEAR Act"), Pub. L. No. 107-174, 116 Stat. 566 (2002); and (12) the Fourteenth Amendment. (See Complaint at 4; Response ¶¶ 3-56; Corrected Civil Cover Sheet, ECF No. 33; Attachment, ECF No. 33-1.)

B. Analysis

Plaintiff has moved to dismiss several claims for lack of subject matter jurisdiction (Federal Rule of Civil Procedure 12(b)(1)) and based on Plaintiff's alleged failure to assert facts to support an actionable claim (Federal Rule of Civil Procedure 12(b)(6)).

1. Rule 12(b)(1) Motion to Dismiss Standard

"'Federal courts are courts of limited jurisdiction,' possessing 'only that power authorized by Constitution and statute.'" Gunn v. Minton, 568 U.S. 251, 256 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). "Federal courts are obliged to resolve questions pertaining to subject-matter jurisdiction before addressing the merits of a case." Acosta-Ramírez v. Banco Popular de Puerto Rico, 712 F.3d 14, 18 (1st Cir. 2013). Pursuant to Federal Rule of Civil Procedure 12(b)(1), a party may move to dismiss a claim for lack of subject-matter jurisdiction. "A motion to dismiss an action under Rule 12(b)(1) . . . raises the fundamental question whether the federal district court has subject matter jurisdiction over the action before it." United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 8 n.6 (1st Cir. 2005) (quotation marks omitted). On such a motion, the court must "credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor." Merlonghi, 620 F.3d at 54. The court "may also 'consider...

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