Tesh v. U.S. Postal Service, No. 01-CV-0099-EA(J).

• Court: United States District Courts. 10th Circuit. Northern District of Oklahoma
• Writing for the Court: Eagan
• Citation: 215 F.Supp.2d 1220
• Decision Date: 26 March 2002
• Docket Number: No. 01-CV-0099-EA(J).
• Parties: Brent E. TESH, Plaintiff, v. UNITED STATES POSTAL SERVICE, John E. Potter, Postmaster General, USPS, the U.S. Merit Systems Protection Board, Defendants.

215 F.Supp.2d 1220 Brent E. TESH, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, John E. Potter, Postmaster General, USPS, the U.S. Merit Systems Protection Board, Defendants. No. 01-CV-0099-EA(J). United States District Court, N.D. Oklahoma. March 26, 2002.

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David W. Davis, Davis, Champ & Assoc., Tulsa, OK, for Plaintiff.

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Brent E. Tesh, Broken Arrow, OK, Pro Se.

Cathryn Dawn McClanahan, U.S. Attorney, Tulsa, OK, C. Denean Avery, U.S. Postal Service, SW Area Law Dept., Dallas, TX, for Defendants.

ORDER

EAGAN, District Judge.

This matter comes before the Court on the Report and Recommendation (Dkt.# 78) of the United States Magistrate Judge with respect to Defendant's Motion to Dismiss Improper Party Defendants (Dkt.# 30-1). Plaintiff filed timely objections pursuant to 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). Accordingly, the Court has conducted a de novo review of the issues.

Magistrate Judge Sam A. Joyner recommended that the motion be granted in part and denied in part. The magistrate judge specifically recommended that the following claims be dismissed:

1. Plaintiffs' wrongful discharge tort claim under Oklahoma law;

2. Plaintiff's claim under the Americans with Disabilities Act;

3. Plaintiff's claim under the Rehabilitation Act of 1973 to the extent it is asserted against the Merit Systems Protection Board ("MSPB") and the United States Postal Service ("USPS"); and

4. Plaintiff's claim for review of the MSPB's final order to the extent it is asserted against the Postmaster General and MSPB.

If the Report and Recommendation is adopted, the only remaining claims would be (a) plaintiff's claim under the Rehabilitation Act of 1973 against the Postmaster General; and (b) plaintiff's claim for review of the MSPB's final order against USPS. Further, it would be proper to dismiss the MSPB as a party from the litigation, as there would be no claims left against MSPB.

None of plaintiff's "objections" challenges the magistrate judge's legal analysis or conclusions. Instead, they reflect nothing more than plaintiff's disagreement with the magistrate judge's recitation of plaintiff's allegations in the Amended Complaint. The magistrate judge's recitation of plaintiff's allegations provide the context in which plaintiff's cause of action arose and preface the legal analysis of defendants' motion. Plaintiff's quibble with the magistrate judge's statement that plaintiff was injured when he tripped over a curb while he was at the Northeast station, for instance, while plaintiff now contends that he was at the Eastside station, is immaterial to the ultimate resolution of the issues raised by the motion to dismiss. Hence, plaintiff's objections provide no legitimate reason for the Court to "reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions," Fed. R.Civ.P. 72(b), and the Court finds no such reason based on its review. The legal analysis and conclusions set forth in the Report and Recommendation are sound.

Based upon a careful review of the Report and Recommendation of the magistrate judge and the objections of the plaintiff, the Court finds that the Report and Recommendation (Dkt.# 78) should be ADOPTED. The objection of the plaintiff (Dkt.# 91) is OVERRULED. Defendant's Motion to Dismiss Improper Party Defendants (Dkt.# 30-1) is GRANTED in part and DENIED in part. Plaintiff's wrongful discharge tort claims under Oklahoma law and plaintiff's claims under the Americans with Disabilities Act are dismissed. Plaintiff's claim under the Rehabilitation Act of 1973 is dismissed to the extent it is asserted against the MSPB and the USPS. Plaintiff's claim for review of

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the MSPB's final order is dismissed to the extent it is asserted against the Postmaster General and the MSPB. The MSPB is dismissed with prejudice as a party from the litigation. The only remaining claims are plaintiff's claim under the Rehabilitation Act of 1973 against the Postmaster General and plaintiff's claim for review of the MSPB's final order against the USPS.

REPORT AND RECOMMENDATION

JOYNER, United States Magistrate Judge.

Now before the Court is Defendants' motion to dismiss all defendants except John E. Potter in his capacity as Postmaster General of the United States Postal Service ("USPS"). [Doc. No. 30-1]. The motion has been referred to the undersigned for a report and recommendation pursuant to 28 U.S.C. § 636. Having reviewed the parties' submissions (doc. nos. 30, 34 and 44), the undersigned hereby recommends that Defendants' motion to dismiss be GRANTED IN PART AND DENIED IN PART.

I. INTRODUCTION

Plaintiff alleges that in November 1992 he began working as a letter carrier for USPS at the northeast station in Tulsa, Oklahoma. Plaintiff alleges that in September 1996, he was chased by a dog while delivering mail. While running from the dog, Plaintiff alleges that he injured both of his knees; resulting in left knee surgery in January 1997. Plaintiff alleges that he remained under a doctor's care until he reached maximum medical improvement and was released in April 1997. Plaintiff also alleges that he re-injured his right knee when he tripped over a curb in the parking lot at the northeast station in October 1997. Plaintiff further alleges that he is limited by hypertension and Type II, poorly controlled diabetes.

Plaintiff alleges that USPS conducted a medical evaluation of him in June 1997 and, based on that review, offered him a permanent rehabilitation position as a "modified city carrier" at the main post office in Tulsa, working from 6:30 p.m. to 3:00 a.m. Plaintiff alleges that he declined this position because it would have required him to perform work in excess of the restrictions placed on him by his treating doctors. Plaintiff alleges that he requested USPS to accommodate him by placing him back at the northeast station, which had appropriate seating and parking for handicapped employees. According to Plaintiff, USPS refused his request for accommodation and transferred him to the main post office to work the 6:30 p.m. to 3:00 a.m. shift.

Plaintiff filed a formal complaint with the Equal Employment Opportunity Commission ("EEOC") in either June or August 1998 (the Amended Complaint mentions both dates). In October 1999, Plaintiff's EEOC claim was transferred to the United States Merit Systems Protection Board ("MSPB"). Plaintiff charged USPS with discrimination based on his disability. Specifically, Plaintiff alleges that USPS discriminated against him by removing him from his job at the northeast station and placing him on a midnight shift at the main post office. Plaintiff also alleges without any detail that he was denied promotions as a result of his disability. Plaintiff alleges that in January 2001 MSPB issued its final order denying his claim.

Plaintiff has brought the following four causes of action against Defendants:

1. Violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112;

2. Violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791 [Rehabilitation Act section 501];

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3. An action for review of the MSPB's final order under 5 U.S.C. § 7703; and

4. An action in tort under Oklahoma law for wrongful discharge in violation of public policy. See Burk v. K-Mart, 770 P.2d 24 (Okla.1989).

Plaintiff has sued the following three defendants on each of these claims:

1. The United States Postal Service;

2. John E. Potter as Postmaster General of USPS, having replaced William J. Henderson as Postmaster General on June 1, 2001. See Fed. R.Civ.P. 25(d)(1); and

3. The United States Merit Systems Protection Board.

Defendants argue that Mr. Potter, as Postmaster General, is the only proper party on the claims pled by Plaintiff, and that USPS and MSPB should be dismissed as parties.

II. DEFENDANTS' HAVE NOT WAIVED THE DEFENSES PRESENTED IN THEIR MOTION TO DISMISS.

Plaintiff argues that Defendants' post-answer motion to dismiss is untimely. As the basis for his waiver argument, Plaintiff points to Fed.R.Civ.P. 12(h). However, in light of the express language of Rule 12(h), Plaintiff's waiver argument is frivolous.

Rule 12(h) provides as follows:

Waiver or Preservation of Certain Defenses.

(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

Fed.R.Civ.P. 12(h). Rule 12(h) creates three rules applicable to three distinct sets of defenses which can be raised under Rule 12(b). None of these rules, however, effect a waiver under the facts of this case.

The exact basis under Rule 12(h) for Plaintiff's argument is unclear. At one point, Plaintiff suggests that Defendants' motion to dismiss is raising a "lack of capacity to be sued" under Rule 19. Doc. No. 34, p. 2. Rule 19, however deals with necessary and indispensable parties, while Rule 17(b) deals with capacity to sue or be sued. If Plaintiff was intending to characterize Defendants' motion to dismiss as a motion raising a Rule 19 objection, Rule 12(h)(2) specifically provides that a motion under Rule 19 may be brought at any time...