Piraino v. U.S. Postal Service, 1:99-CV-19.

• Court: U.S. District Court — Eastern District of Texas
• Writing for the Court: Schell
• Citation: Piraino v. U.S. Postal Service, 69 F.Supp.2d 889 (E.D. Tex. 1999)
• Decision Date: 08 October 1999
• Docket Number: No. 1:99-CV-19.,1:99-CV-19.
• Parties: Thomas J. PIRAINO, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.

69 F.Supp.2d 889

Thomas J. PIRAINO, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.

No. 1:99-CV-19.

United States District Court, E.D. Texas, Beaumont Division.

October 8, 1999.

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Robert J. Smith, Attorney at Law, Thomas J. Piraino, Beaumont, TX, for Thomas J. Piraino, plaintiff.

Andrea Hedrick Parker, U.S. Attorney, Beaumont, TX, for United States Postal Service, defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

SCHELL, Chief Judge.

This matter is before the court on Defendant United States Postal Service's Motion to Dismiss (Dkt.# 13), filed on May 28, 1999. Plaintiff Thomas J. Piraino filed a response on August 5, 1999. After consideration of the motion, response and applicable law, the court is of the opinion that Defendant's Motion to Dismiss should be GRANTED.

I. Factual Background

Plaintiff, an African-American male, was employed by the United States Postal Service ("Postal Service") in 1963. In 1978 Plaintiff accepted a disability retirement from the Postal Service due to knee injuries. Plaintiff does not allege that his 1978 discharge from the Postal Service was wrongful. In 1988 Plaintiff began requesting reinstatement with the Postal Service in a light duty capacity, and Plaintiff was denied reinstatement. Plaintiff subsequently learned that a former Postal Service employee, Pat Self (a white male), who had suffered an injury was reinstated on December 25, 1992. Because Self was reinstated and Plaintiff was not, Plaintiff filed EEO Claim 1-G-000-1281-93 on March 8, 1993, alleging discrimination based on race, color and handicap. After exhausting the administrative process, Plaintiff timely filed a lawsuit on July 12, 1995, against the Postmaster General in this court. See Piraino v. Runyon, Civil Action No. 1:95-cv-409 ("1995 suit"). In the 1995 suit, Plaintiff alleged that he applied for reinstatement and was rejected, that white employees with similar disabilities had been reinstated, and that he had been retaliated against for filing claims with the EEOC. See Pl.'s Original 1995 Compl. at 2; Transcript of March 4, 1994 Hearing Before Anthony J. Randall Administrative Judge at 13. On December 8, 1995, following a hearing, the 1995 suit was dismissed "without prejudice" for failure to perfect service on the defendants. Plaintiff took no further action regarding that suit.

Over two years later, in February 1998, Plaintiff allegedly requested reinstatement with the Postal Service and Plaintiff's request was again denied. On May 5, 1998, Plaintiff filed EEO Claim 4-G-770-0502-98 alleging that he had been discriminated against by the U.S. Postal Service in violation of Title VII since 1988. On July 7, 1998, the Postal Service issued a final agency decision letter dismissing the 1998 claim as identical to prior EEO claims filed by Plaintiff and notifying Plaintiff that he had a "right to sue" within 90 days of receipt of the letter. On October 5, 1998, Plaintiff tendered for filing in this court the complaint that is the basis for this suit, which was eventually filed on January 5, 1999. Plaintiff filed his complaint pro se under Title VII of the Civil Rights Act of 1964. Plaintiff alleges that the Postal Service discriminatorily refused to reinstate him at various times beginning in 1988 and most recently in 1998 and that the Postal Service had reinstated white employees with disabilities similar to Plaintiff's. See Pl.'s Original 1999 Compl. at 2; Pl.'s Resp. to Def.'s Mot. at 1-2. Plaintiff also alleges that L.G. Slider, the Postmaster in Beaumont, had told someone that if Plaintiff would drop the EEOC complaint, he would consider reinstating him. See Pl.'s Original 1999 Compl. at 2.

In response, Defendant filed its "Motion to Dismiss" under FED. R. CIV. P. 12(b)(1) asserting that the present claim is the same claim that was the subject of the 1995 suit and moving to dismiss based solely on Plaintiff's failure to file the present suit, as required by 42 U.S.C. § 2000e-16(c), within 90 days of receiving the "right to sue" letter on the original 1995 complaint. In other words, Defendant contends that the present claim is an attempt to circumvent the limitations period by refiling a claim that was dismissed and is now time-barred. On June 30, 1999, Plaintiff filed his "Response to Defendant's Motion to Dismiss," asserting that the present claim is based on the ongoing conduct of the Defendant and that the current suit is merely similar to the prior suit and therefore is not time-barred.

II. Standard for Rule 12(b)(6) Motion to Dismiss

Defendant filed its Motion to Dismiss pursuant to Rule 12(b)(1) based on Plaintiff's alleged failure to comply with Title VII limitation periods. In Title VII cases against federal agencies, such as the Postal Service, time limits for filing an administrative claim or a civil action are not jurisdictional, but rather operate as a statute of limitations, and are subject to waiver, estoppel and equitable tolling. See Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (regarding civil actions); Munoz v. Aldridge, 894 F.2d 1489, 1494 (5th Cir. 1990) (regarding administrative claims). "Although the ninety-day filing requirement is not jurisdictional, in the absence of extenuating circumstances, `it is a statutory precondition to the maintenance of any action under Title VII' in federal court." Santerre v. Agip Petroleum Co., 45 F.Supp.2d 558, 574 (S.D.Tex.1999) (citation omitted). Therefore, failure to comply with a statute of limitations is grounds for dismissal, but the motion is properly decided under Rule 12(b)(6), not Rule 12(b)(1). See Maturi v. Harvey Hotels, No. 3:96-CV-2196G, 1997 WL 75238 at *2 (N.D.Tex. Feb.14, 1997).

FED. R. CIV. P. 12(b)(6) provides that a party may move a court to dismiss an action for "failure to state a claim upon which relief can be granted." On motion under Rule 12(b)(6), the court must decide whether the facts alleged, if true, would entitle the plaintiff to some legal remedy. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Dismissal is proper only if there is either (1) "the lack of a cognizable legal theory" or (2) "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). "Normally, in deciding a motion to dismiss for failure to state a claim, courts must limit their inquiry to facts stated in the complaint and the documents either attached to or incorporated in the complaint." Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017 (5th Cir.1996). The court also may "consider matters of which [it] may take judicial notice." Lovelace, 78 F.3d at 1017-18; FED. R. EVID. 201(f). Matters of public record, items appearing in the record of the case, and exhibits attached to the complaint also may be considered. See 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (1990).

The court must accept as true all material allegations in the complaint as well as any reasonable inferences to be drawn from them. See Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). The well-pleaded facts must be reviewed in the light most favorable to the plaintiff. See Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir.1995). A plaintiff, however, must allege specific facts, not conclusory allegations. See Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir.1989). Conclusory allegations and unwarranted deductions of fact are not admitted as true. See Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir.1992).

"[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46, 78 S.Ct. 99; Kaiser Aluminum, 677 F.2d at 1050. "`The motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'" Kaiser Aluminum, 677 F.2d at 1050 (citation omitted).

III. Discussion

A. Title VII Limitation Periods

The court begins its analysis with the law regarding procedures and time limits for filing a Title VII civil action against a federal agency, which are different from the rules governing suits against private entities. A claim of discrimination against a federal agency is governed by 42 U.S.C. § 2000e-16 and the extensive EEOC regulations found in 29 C.F.R. §§ 1614.101-.110, 1614.401-.607.

Within 45 days of the alleged discrimination, the aggrieved person ("the employee") must report the grievance to an Equal Employment Opportunity Counselor of the agency charged with discrimination. See 29 C.F.R. § 1614.105(a)(1) (1998). If the matter cannot be resolved within 30 days, the employee is notified in writing of his right to file a discrimination complaint (EEO claim) within 15 days after receipt of the notice. See id. § 1614.105(d). After an EEO claim is filed, the agency conducts an investigation and at the conclusion of that investigation, the employee has the right to request a hearing before an administrative law judge or to receive an immediate final decision from the agency. See id. § 1614.108. Even if the hearing is held, as in the present case, the agency issues a final agency decision that discrimination did or did not exist. See id. § 1614.110. The final agency decision letter informs the employee that he has two options if he is not satisfied with the decision: 1) to appeal to the EEOC within 30 days of receipt of the final agency decision, see id. § 1614.402; or 2) to commence a civil action within 90 days of receipt of the final agency decision. See 42 U.S.C. § 2000e-16(c). If the employee elects to appeal to the EEOC, as in this case, he must file a civil action within 90 days of receipt of the EEOC final decision letter or 180 days from the...