Thompson v. Brennan

Filing 41

ORDER by Judge Edward M. Chen Granting 36 Defendants' Motion to Dismiss With Prejudice. (emcsec, COURT STAFF) (Filed on 4/4/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRIAN THOMPSON,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-03798-EMC

v.
MEGAN J. BRENNAN, et al.,
Defendants.

ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS WITH
PREJUDICE
Docket No. 36

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Defendants move to dismiss Plaintiff Brian Thompson‟s First Amended Complaint for

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failure to state a claim. Plaintiff did not file a brief in opposition but has filed a declaration. This

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matter is appropriate for resolution without oral argument. See Local Civ. R. 7-1(b). The motion

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hearing scheduled for 1:30 p.m. on May 24, 2018 is VACATED. For the reasons below,

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Defendants‟ motion is GRANTED and all claims are DISMISSED.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

For a fuller description of Mr. Thompson‟s allegations, the Court refers to its January 25,

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2018 order granting Defendant‟s motion to dismiss. See Docket No. 29. In short, Mr. Thompson

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is a former U.S. Postal Service (“USPS”) employee with an auto-immune disorder that interfered

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with his work. In relevant part, Mr. Thompson began calling in sick due to flare-ups on January 9,

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2015. See First Amended Complaint (“FAC”) ¶ 22. Mr. Thompson claims that he provided

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intermittent updates and doctor‟s notes to USPS, see FAC ¶¶ 23-25, but USPS sent him a “Notice

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of Removal” letter on April 1, 2015 stating that his removal would be effective May 9, 2015. Id. ¶

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27. On May 4, 2015, he filed a formal grievance regarding the Notice of Removal with his labor

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union. Id. ¶ 34. While his grievance was pending but after the effective date of the notice of

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removal, Mr. Thompson began requesting reasonable accommodations from the USPS‟s

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Reasonable Accommodations Committee. Id. ¶¶ 39-41. Although he was provided a packet of

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forms to complete, which he filled and submitted, the committee never acted upon his request (or

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at least did not inform him of any action on it). Id.
On November 15, 2015, Mr. Thompson‟s primary care doctor cleared him to return to

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work full-time as of December 15, 2015, but when he informed his supervisor, he was told that he

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had been relieved from his duties and informed of a labor arbitration hearing to be held December

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3, 2015. Id. ¶ 42. It was at that time that Mr. Thompson claims he learned that he had been

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terminated. He alleges that while on medical leave for his CVID flare-ups, he also “suffered from

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severe emotional and mental decline” that prevented him from “fully understand[ing] that USPS

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intended to actually remove him from his position.” Id. ¶¶ 49-50. He states that he was “under

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United States District Court
Northern District of California

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the sincere belief that he remained employed by USPS,” id. ¶ 51, and that he was “operating under

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the assumption that USPS had made a mistake that, with sufficient documentation, would be

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corrected.” Id. ¶ 52. His “physical and mental incapacity, and lack of information regarding the

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process, led him to believe that he was not „really fired‟ until he received notice of the arbitration

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decision.” Id.
II.

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DISCUSSION

Mr. Thompson brings claims for disability discrimination and retaliation, breach of

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contract, and denial of due process all arising out of his termination. The Court‟s prior holding

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with respect to each claim will be summarized as needed below.

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A.

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Disability and Retaliation Discrimination
Regarding Plaintiff‟s claims for race and disability discrimination and retaliation under the

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Rehabilitation Act and Title VII of the Civil Rights Act of 1964, the Court previously held that

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Mr. Thompson had failed to exhaust his administrative remedies by timely initiating the Equal

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Employment Opportunity process. See Docket No. 29 at 5-7. In particular, the 45-day limitations

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period began to run on April 1, 2015 (the date the Notice of Removal was issued), but Mr.

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Thompson did not contact an EEO counselor until March 1, 2016. Id. at 6. The Court gave

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Plaintiff leave to amend to attempt to state facts supporting equitable tolling. Id. at 7.

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Mr. Thompson has not pled facts to support equitable tolling. First, equitable tolling may
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“excuse a claimant‟s failure to comply with the time limitations where she had neither actual nor

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constructive notice of the filing period.” Johnson v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002)

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(quotation omitted). The record indicates that Mr. Thompson had actual notice; he does not

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dispute he received the Notice of Removal. Moreover, on at least one prior occasion, Mr.

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Thompson filed (or directed the filing of) an EEO complaint regarding a Notice of Removal he

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received in 2010. See Wang Decl., Ex. A.1 That is sufficient to conclude that Plaintiff was

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familiar with the process. See Gill v. Gen. Servs. Admin., Case No. 14-cv-02999-MEJ, 2014 WL

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6469377, at *4 (N.D. Cal. Nov. 18, 2014) (“Previous experience with the administrative EEO

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process alone is enough to put [plaintiff] on notice of the filing requirement.”). Moreover,
Plaintiff does not allege that he was unaware of the 45-day filing period. Plaintiff therefore may

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United States District Court
Northern District of California

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not invoke ignorance of the filing deadline to justify his late claim.
Second, Plaintiff has not shown that his delay was justified by, e.g., incapacitation that

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prevented him from making a timely claim. See Seattle Audobon Soc. v. Robertson, 931 F.2d 590,

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595 (9th Cir. 1991) (equitable tolling may apply when “extraordinary circumstances beyond

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plaintiffs‟ control made it impossible to file the claims on time”). Though it is not the case that a

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plaintiff must be “completely . . . disabled” to warrant equitable tolling as Defendants suggest,

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equitable tolling should not be awarded when a plaintiff is nevertheless “able to file paperwork,

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converse with doctors, write a letter detailing her claim, and hire legal counsel.” Tatum v.

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Schwartz, 405 Fed.Appx. 169 (9th Cir. 2010). Here, multiple factors weigh against equitable

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tolling to March 1, 2016 (the date Plaintiff actually initiated the EEO process). Plaintiff was able

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to file a union grievance on May 4, 2015, within 45 days of receiving the Notice of Removal; he

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began requesting reasonable accommodations from the USPS‟s Reasonable Accommodations

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Committee in June 2015 (9 months before filing an EEO complaint); he personally attended a

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labor arbitration hearing on December 3, 2015; and his doctor cleared him for return to work full-

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time as of December 15, 2015. Mr. Thompson has therefore not demonstrated that he was so

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The Court takes judicial notice of the EEO complaint as it is a record filed with a public agency
and not subject to reasonable dispute; Plaintiff has not objected to Defendants‟ reliance on the
2010 complaint. See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
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continuously incapacitated that he could not initiate the EEO process earlier than March 1, 2016.

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Finally, Mr. Thompson has not shown that his delay was excusable for other reasons. For

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example, “[i]f a reasonable plaintiff would not have known of the existence of a possible claim

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within the limitations period, then equitable tolling will serve to extend the statute of limitations

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for filing suit until the plaintiff can gather what information he needs.” Johnson, 314 F.3d at 414.

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Mr. Thompson clearly knew of his potential claim as early as May 4, 2015, when he filed the

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union grievance. At that time, he knew the absences related to his medical disability were the

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basis for USPS‟s Notice of Removal. Indeed, he attests that when he received the notice of

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removal, “I knew that the law doesn‟t allow people to [be] fired while they are on medical leave
and I had confirmation that I was on medical leave.” Thompson Decl. ¶ 11. Though Mr.

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United States District Court
Northern District of California

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Thompson claims that he thought the notice of removal was a “mistake,” that is belied by the fact

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that he filed a union grievance shortly after receiving it. Id. ¶ 9. His belief “that he was not „really

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fired‟ until he received notice of the arbitration decision” in December 2015, id. ¶ 52, is

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unreasonable in light of the clear language of the Notice of Removal. See Docket No. 32, Ex. A at

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1 (“This is advance written notice that you will be removed from the Postal Service effective close

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of business May 9, 2015.”).

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Accordingly, Mr. Thompson has failed to demonstrate that equitable tolling of his

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discrimination and retaliation claims is warranted. The Court therefore DISMISSES these claims

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(Counts I, II, and III) with prejudice.

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B.

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Breach of Contract
Plaintiff also alleges that his termination breached provisions of the Employee Labor

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Relations Manual (ELM). As the Court previously held, however, that manual is not a collective

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bargaining agreement, and Congress has only authorized breach of contract actions by employees

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against the USPS on the basis of a collective bargaining agreement. See Docket No. 29 at 8-9

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(citing 39 U.S.C. § 1208(b) and Miles v. U.S. Postal Serv., 561 F.2d 1348, 1350 (1977)). The

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Court granted Plaintiff leave to allege a breach of his collective bargaining agreement, but he has

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not attempted to do so; he only alleges violations of the ELM. See FAC ¶¶ 77-98. His breach of

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contract claim (Count IV) is therefore DISMISSED with prejudice.
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C.

Due Process

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Finally, Plaintiff alleges his due process rights were violated because he received

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inadequate notice of or opportunity for a hearing and there was a conflict of interest because the

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person representing USPS at the arbitration proceeding was also reviewing his request for

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reasonable accommodation. See FAC ¶¶ 99-129. Regarding inadequate notice, the Court noted

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that Plaintiff nevertheless appeared at the hearing, presented evidence, did not request additional

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process, submitted post-hearing briefs and medical documentation, and thus failed to allege how

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any inadequate notice (assuming he had a right to more notice) prejudiced him. See Docket No.

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29 at 11. The Court also noted that Plaintiff had not demonstrated a conflict of interest with
respect to the USPS representative because his request for accommodation was not at issue in the

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United States District Court
Northern District of California

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arbitration proceeding, and, in any case, the fact that the USPS‟s representative may have been

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biased against him did not demonstrate that the arbitrator was. Id. at 12. The Court nevertheless

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gave Plaintiff an opportunity to amend his due process claim “if he can allege a violation of the

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CBA or that the ELM was incorporated into the CBA, and that grounds exist to toll the statute of

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limitations.” Id. As discussed above, Plaintiff has failed to allege either that equitable tolling is

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warranted or a violation of his CBA, nor any other basis for a viable due process claim. His due

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process claim (Count V) is therefore DISMISSED with prejudice.
III.

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CONCLUSION

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For the reasons above, Defendants‟ motion is GRANTED and Plaintiff‟s claims are

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DISMISSED with prejudice. The Clerk of the Court is directed to enter judgment for Defendants

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and to close the case.

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This order disposes of Docket No. 36.

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IT IS SO ORDERED.

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Dated: April 4, 2018
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EDWARD M. CHEN
United States District Judge

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