Wray v. Donahue

• Decision Date: 21 August 2014
• Docket Number: Case No. 2:13-cv-1006
• Parties: BABETTE C. WRAY, Plaintiff, v. PATRICK R. DONAHUE, POSTMASTER GENERAL, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

BABETTE C. WRAY, Plaintiff, v. PATRICK R. DONAHUE, POSTMASTER GENERAL, et al., Defendants.

Case No. 2:13-cv-1006

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

August 21, 2014

JUDGE EDMUND A. SARGUS, JR

Magistrate Judge Norah MeCann King

OPINION AND ORDER

This matter is before the Court on Defendants' Motion to Dismiss (ECF No. 11), Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss (ECF No. 15), and Defendants' Reply Brief in Support of their Motion to Dismiss (ECF No. 16). For the reasons set forth below, the Court GRANTS Defendants' Motion.

I.

Plaintiff was employed as a full time mail processing clerk by the United States Postal Service at its Columbus, Ohio Processing and Distribution Center. As part of its National Reassessment Program ("NRP"), the Postal Service displaced Plaintiff to the Rewrap Unit on May 2, 2003, had no work available from October 11, 2008 through October 17, 2008, and placed her on standby from October 17, 2008 through November 12, 2010, at which time she was informed that there was no further employment available for her based upon her medical restrictions. Plaintiff filed discrimination and retaliation claims with the Postal Service's Equal Employment Opportunity ("EEO") division based on this action. On October 8, 2013, Plaintiff, who is proceeding without the assistance of counsel, brought this action appealing the results of her administrative claim. Plaintiff named the head of the Postal Service, Patrick R. Donahue, asa defendant and also named individual Postal Service employees Trent Clark, Sr., Sue Grice, Sheri Bentley, Symentia Morris, Tammy Blake, Valerie Springhetti Roush, and Karen Murphy.

II.

A. Pro Se Litigants

A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than are formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21(1972); Estelle v. Gamble, 429 U.S. 97, 106 (1976). A court should make a reasonable attempt to read the pleadings of a pro se litigant to state a valid claim on which the plaintiff could prevail, despite any failure to cite proper legal authority, contusion of various legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. Ashiegbu v. Purviance, 74 F. Supp. 2d 740, 749 (S.D. Ohio 1998) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).

B. Dismissal

Defendants move for dismissal under both Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction); Fed. R. Civ. P. 12(b)(6) (failure to state a claim upon which relief can be granted). Defendants rely upon Rule 12(b)(1) as the standard for dismissal of the claims they contend were not properly exhausted at the administrative level. "However, a failure to exhaust administrative remedies - the asserted basis for the Government's motion - is not a jurisdictional bar, but rather a condition precedent to an action in federal court." McKnight v. Gates, 282 F. App'x 394, 397 n.2 (6th Cir. 2008) (citing Zipes v. Trans World Airlines, 455 U.S. 385, 393-98 (1982); Mitchell v. Chapman, 343 F.3d 811, 819-20 (6th Cir. 2003) ("It is well-established that a party's exhaustion of administrative processes for filing a claim of discrimination is a condition precedent to filing suitin the district court, rather than a jurisdictional prerequisite"). Thus, the Court will utilize Rule 12(b)(6) to assess all of Defendants' arguments. Id. (stating that because exhaustion is a condition precedent, "the District Court assessed the Government's exhaustion argument pursuant to Rule 12(b)(6) standards, and we do the same"). Id.

In evaluating a complaint to determine whether it states a claim upon which relief can be granted, the Court must construe it in favor of the plaintiff, accept the factual allegations contained in the pleading as true, and determine whether the factual allegations present any plausible claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcrqft v. Iqbal, 556 U.S. 662 (2009) (clarifying the plausibility standard articulated in Twombly). "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." Iqbal, 556 U.S. at 678. The factual allegations of a pleading "must be enough to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555.

The Court may also appropriately consider the documents that are part of an administrative record without converting a motion to dismiss into one for summary judgment. Weldon v. Warren Cnty. Children Servs., 1:12-CV-279-HJW, 2012 WL 5511070 (S.D. Ohio Nov. 14, 2012) (citing Weiner v. Klais & Co., Inc., 108 F.3d 86, 88-89 (6th Cir. 1997) (documents are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to the plaintiff's claim); Toth v. Grand Truck R.R., 306 F.3d 335, 348 (6th Cir. 2002) (courts may take judicial notice of orders issued by administrative agencies, such as the EEOC, pursuant to their delegated authority)).

III.

This case involves the administrative process required of federal employees who bring lawsuits based upon discrimination. The Postal Service's NRP also impacts this case. The Court briefly reviews each statutory scheme.

A. The National Reassessment Program

The Postal Service began development of the NRP in 2004. Sandra M. Mcconnell v. John E. Potter, EEOC DOC 0720080054, 2010 WL 332083, at *2 (Jan. 14, 2010).

The goal of the NRP was to "standardize" the process used to assign work to injured-on-duty employees. Employees subject to the NRP were those who sustained an approved compensable injury as determined by the Department of Labor and who were determined to be either limited-duty employees or rehabilitation employees. Limited-duty employees are defined as injured-on-duty employees whom the agency expects will be able to return to their pre-injury positions as their medical conditions improve, while rehabilitation employees are defined as employees who were injured-on-duty and have reached a level of maximum medical improvement (MMI), and are not expected to be able to return to their pre-injury positions.

Id. (internal citations omitted).

There is currently a class action pending regarding the legality of the NRP. A Postal Service employee, Sandra M. McConnell, in her class complaint, alleges that the agency discriminated against her and other similarly situated class members when it failed to engage in the interactive process required by the Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. See id. McConnell further alleges that the Postal Service failed to reasonably accommodate her and the class members during and after the NRP process.

B. Administrative Exhaustion

The United States Code of Federal Regulations, 29 C.F.R. §§ 1614.105 through 1614.109, set forth the steps that a federal employee must take before filing a lawsuit allegingdiscrimination. These steps are designed to permit the agency to resolve the problem before federal court intervention. The particular type of discrimination claim at issue in the instant action is a "mixed case." That is, "a complaint of employment discrimination filed with a federal agency based on race, color, religion, sex, national origin, age, disability, or genetic information related to or stemming from an action that can be appealed to the Merit Systems Protection Board" ("MSPB") is referred to as a "mixed case." 29 C.F.R. § 1614.302(a).

In Butler v. West., the United States Court of Appeals for the District of Columbia has "briefly survey[ed]" the statutory and regulatory scheme "that structure the prosecution of mixed cases," referring to it as "extremely complicated" but able to "be reduced to a decision tree, albeit a somewhat elaborate one,"

An employee who intends to pursue a mixed case has several paths available to her. At the outset, the aggrieved party can choose between filing a "mixed case complaint" with her agency's EEO office and filing a "mixed case appeal" directly with the MSPB. See 29 C.F.R. § 1614.302(b). By statute, the relevant agency EEO office and the MSPB can and must address both the discrimination claim and the appealable personnel action. See 5 U.S.C. § 7702(a). Should she elect the agency EEO route, within thirty days of a final decision she can file an appeal with the MSPB or a civil discrimination action in federal district court. See 29 C.F.R. §§ 1614.302(d)(1)(H), 1614.302(d)(3), 1614.310(a). If 120 days pass without a final decision from the agency's EEO office, the same avenues of appeal again become available: the complainant can file either a mixed case appeal with the MSPB or a civil action in district court. See 5 U.S.C. §§ 7702(e)(1)(A), 7702(e)(2); 29 C.F.R. §§ 1614.302(d)(1)(i), 1614.310(g); 5 C.F.R. § 1201.154(b)(2).

When a complainant appeals to the MSPB, either directly or after pursuing her claim with the agency EEO office, the matter is assigned to an Administrative Judge who takes evidence and eventually makes findings of fact and conclusions of law. See 5 C.F.R. §§ 1201.41(b), 1201.111. The AJ's initial decision becomes a final decision if neither party, nor the MSPB on its own motion, seeks further review within thirty-five days. See 5 C.F.R. § 1201.113. However, both the complainant and the agency can petition the full Board to review an initial decision. Should the Board deny the petition for review, the initial decision becomes final, see 5 C.F.R. § 1201.113(b); if the Board grants the petition, its decision is final when issued. See 5 C.F.R. § 1201.113(c). At this point, the Complainant again has a choice: within thirty days of receiving a final decision

from the MSPB, she can either appeal the discrimination claim to the EEOC, see 5 C.F.R. § 1201.157, or appeal the entire claim

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