Gullette v. Donahoe

Filing 28

ORDER GRANTING 19 MOTION TO DISMISS. Signed by Judge Claudia Wilken on 3/27/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 3/27/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PATRICIA A. GULLETTE,

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United States District Court
For the Northern District of California

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No. C 12-0490 CW

Plaintiff,

ORDER GRANTING
MOTION TO DISMISS
(Docket No. 19)

v.
PATRICK R. DONAHOE, Postmaster
General of the United States
Postal Service,
Defendant.
________________________________/

Plaintiff Patricia A. Gullette, proceeding pro se, brings

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this action against Defendant Patrick R. Donahoe, Postmaster

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General of the United States Postal Service (USPS), for breach of

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contract and violations of the Rehabilitation Act.1

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moves to dismiss Plaintiff’s first amended complaint (1AC) for

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failure to state a claim.

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Court took the matter under submission on the papers and now

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grants the motion.

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Defendant

Plaintiff opposes the motion.

The

BACKGROUND
The following facts are taken from Plaintiff’s 1AC.

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Plaintiff was employed by USPS from 1971 until 2007.

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16, 1AC ¶ 3.

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Duty Job Assignment” to accommodate a physical disability, which

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required her to limit her physical range of movement.

Docket No.

In December 1999, the agency offered her a “Limited

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Plaintiff states that she brings this action under the Americans
with Disabilities Act (ADA). The federal government, however, is not an
employer within the meaning of the ADA. See 42 U.S.C. § 12111(5)(B)(1).
Thus, Plaintiff’s disability claim must proceed under the Rehabilitation
Act.

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Id. ¶¶ 3z38-40.

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duty offer, USPS agreed to modify her working conditions and

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increase her pay level from PS-5 to PS-6.

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this agreement, she alleges, USPS never raised her pay level.

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¶ 3z44.

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Plaintiff alleges that, as part of that limited

Id. ¶ 3z40.

Despite
Id.

In March 2002, after USPS denied several of her requests for

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a pay increase, Plaintiff filed a Title VII action in this

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district alleging that the agency’s refusal to raise her pay was

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motivated by retaliatory animus.

Docket No. 20, Def.’s Request

United States District Court
For the Northern District of California

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for Judicial Notice (RJN), Ex. D, Case No. 02-1356 EDL, Compl.

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¶ 3.2

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requests for a raise, in violation of its December 1999 limited

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duty offer, because she had reported discriminatory treatment by a

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supervisor.

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when she reported the alleged discrimination or what the

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discriminatory conduct entailed, the court dismissed her complaint

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in July 2002 for failure to state a claim.

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(describing Plaintiff’s complaint as “incomprehensible” and

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“chaotic”).

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timely amended complaint, her claims were dismissed with

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prejudice.

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Specifically, Plaintiff asserted that USPS denied her

Id. ¶¶ 5-6.

Because her complaint did not specify

Id., Ex. E, at 3-4

In August 2002, after Plaintiff failed to file a

Id., Ex. F, at 1.

One and a half years later, in April 2004, Plaintiff filed a

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second Title VII lawsuit against USPS, this time alleging that the

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agency denied her requests for a raise out of both discriminatory

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2

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The Court grants Defendant’s unopposed request to take judicial
notice of several publicly available documents from Plaintiff’s prior
lawsuits against USPS. United States v. Wilson, 631 F.2d 118, 119 (9th
Cir. 1980) (“[A] court may take judicial notice of its own records in
other cases, as well as the records of an inferior court in other
cases.”).

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and retaliatory animus.

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¶¶ 3-4.

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discriminated against her on the basis of race and sex and

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retaliated against her for filing complaints with the Equal

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Employment Opportunity Commission (EEOC).

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again, however, her complaint provided few details to support her

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allegations of discrimination and retaliation.

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focused on USPS’s refusal to increase her pay level after the

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December 1999 limited duty job offer.

Id., Ex. G, Case No. 04-1308 VRW, Compl.

In her complaint, Plaintiff asserted that USPS

Id., Ex. G, ¶ 5.

Once

Instead, it

Id., Ex. G, ¶ 6.

In

United States District Court
For the Northern District of California

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October 2004, the court granted summary judgment to USPS, finding

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that Plaintiff’s claims were identical to those raised in her

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prior lawsuit and, thus, barred by res judicata.

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12.

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Id., Ex. H, at

A few months later, in February 2005, Plaintiff took a leave

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of absence from work to recover from a shoulder injury she

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suffered on the job.

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cleared to return to work in December 2005 with certain

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limitations, id. ¶¶ 3z57, 3z64, Ex. 35, USPS notified her in

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November 2005 that it could not offer her a position under the

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conditions prescribed by her doctor.

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She alleges that USPS made no effort to find another position for

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her despite her desire to return to work.

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1AC ¶ 3z57.

Although she was medically

Id. ¶¶ 3z57, 3z65, Ex. 18.

Id.

Almost a full year later, in October 2006, USPS sent

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Plaintiff a “Notice of Separation” in the mail to inform her that

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she was being “administratively separated from the Postal

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Service.”

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decision was based on the fact that Plaintiff had been

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“continuously absent from duty” for the preceding year and

Id. ¶ 3z64, Ex. 12, at 1.

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The letter stated that the

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appeared unlikely to return to work in the near future.

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12, at 1.

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effectively forced her to retire from USPS, against her wishes, on

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September 30, 2007.

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Id., Ex.

Plaintiff alleges that the administrative separation

Id. ¶ 3z66.

Plaintiff filed her 1AC in this case in May 2012.

1AC

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¶¶ 3z37-99.

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1999 agreement to increase her pay level, disregarded union

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grievance decisions in her favor, failed to provide her with

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reasonable workplace accommodations, and retaliated against her

United States District Court
For the Northern District of California

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In it, she alleges that USPS breached its December

for reporting discrimination.

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Id.

LEGAL STANDARD
A complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.”

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Civ. P. 8(a).

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state a claim, dismissal is appropriate only when the complaint

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does not give the defendant fair notice of a legally cognizable

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claim and the grounds on which it rests.

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Twombly, 550 U.S. 544, 555 (2007).

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complaint is sufficient to state a claim, the court will take all

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material allegations as true and construe them in the light most

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favorable to the plaintiff.

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896, 898 (9th Cir. 1986).

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to legal conclusions; “threadbare recitals of the elements of a

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cause of action, supported by mere conclusory statements,” are not

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taken as true.

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(citing Twombly, 550 U.S. at 555).

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Fed. R.

On a motion under Rule 12(b)(6) for failure to

Bell Atl. Corp. v.

In considering whether the

NL Indus., Inc. v. Kaplan, 792 F.2d

However, this principle is inapplicable

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

Although the court is typically confined to consideration of
the allegations in the pleadings, when the complaint is
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accompanied by attached documents, such documents are deemed part

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of the complaint and may be considered in evaluating the merits of

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a Rule 12(b)(6) motion.

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1265, 1267 (9th Cir. 1987).

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“properly subject to judicial notice.”

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Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

Durning v. First Boston Corp., 815 F.2d
The court may also consider matters
Daniels-Hall v. Nat’l

When granting a motion to dismiss, the court is generally

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required to grant the plaintiff leave to amend, even if no request

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to amend the pleading was made, unless amendment would be futile.

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United States District Court
For the Northern District of California

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Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

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F.2d 242, 246–47 (9th Cir. 1990).

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amendment would be futile, the court examines whether the

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complaint could be amended to cure the defect requiring dismissal

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“without contradicting any of the allegations of [the] original

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complaint.”

Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th

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Cir. 1990).

The court may deny leave to amend for “repeated

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failure to cure deficiencies by amendments previously allowed.”

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McGlinchy v. Shell Chem. Co., 845 F.2d 802, 809–10 (9th Cir.

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1988).

A pro se plaintiff is entitled to a liberal amendment

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policy.

Eldridge v. Block, 832 F.2d 1132, 1135–37 (9th Cir.

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1987).

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In determining whether

DISCUSSION
I.

Breach of Contract (First Cause of Action)
Plaintiff proffers two theories of breach of contract

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liability in her complaint.

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its collective bargaining agreement (CBA) with her union by

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failing to abide by union grievance decisions stating that she was

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entitled to a pay increase under the 1999 limited duty offer.

First, she asserts that USPS breached

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1AC

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¶¶ 3z37-56, Ex. 3.

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terms of the limited duty offer itself.3

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of these theories appears to be supported by the records Plaintiff

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has attached to her complaint, which do not suggest that she was

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promised a pay increase in December 1999.4

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under either of theory, Plaintiff’s contract claim is barred by

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res judicata.

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Second, she asserts that USPS breached the
Id. ¶¶ 3k-3n.

Neither

More importantly,

The doctrine of res judicata, or claim preclusion, prohibits
the re-litigation of any claims that were raised or could have

United States District Court
For the Northern District of California

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been raised in a prior action.

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Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003).

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The purpose of the doctrine is to “relieve parties of the cost and

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vexation of multiple law suits, conserve judicial resources, and,

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by preventing inconsistent decisions, encourage reliance on

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adjudication.”

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590, 594 (9th Cir. 1985) (quoting Allen v. McCurry, 449 U.S. 90,

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94 (1980)).

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when doing so does not raise any disputed issues of fact.

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v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984).

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Tahoe–Sierra Pres. Council v.

Marin v. HEW, Health Care Fin. Agency, 769 F.2d

Res judicata may be raised on a motion to dismiss
Scott

Three elements must be present in order for res judicata to
apply: (1) an identity of claims; (2) a final judgment on the
3

In her opposition, Plaintiff repeatedly characterizes the limited
duty offer as part of a “settlement agreement” arising out of a 1999
Title VII lawsuit she filed against USPS. Opp. 4, 6, 14. Her own
exhibits, however, demonstrate that the limited duty offer was not part
of that settlement. The settlement agreement in the 1999 action, which
is attached to the 1AC, was signed in October 2000 and makes no mention
of the December 1999 limited duty offer. See 1AC, Ex. 3, at 43-50.
4 The December 1999 limited duty offer states that Plaintiff will
be transferred to a new work station and that, as a result, her “pay
location” will also change. 1AC, Ex.2, at 1. The offer does not,
however, promise her a pay increase. Id.

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merits; and (3) the same parties or their privies.

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U.S. at 94.

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Plaintiff’s breach of contract claim must be dismissed.

Allen, 449

Because all three of these elements are present here,

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A.

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An identity of claims exists when two suits arise from the

Identity of Claims

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same transactional nucleus of facts.

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1078.

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transactions where the claims share a factual foundation such that

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they could have been tried together.

Tahoe–Sierra, 322 F.3d at

Two events are part of the same transaction or series of

Western Systems, Inc. v.

United States District Court
For the Northern District of California

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Ulloa, 958 F.2d 864, 871 (9th Cir. 1992).

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supporting the same claim for relief must be brought in the

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initial action.”

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“Different theories

Id.

Here, both of Plaintiff’s breach of contract theories arise

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from the same fundamental transaction -- namely, the December 1999

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limited duty offer on which her previous lawsuits were based.

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the court observed in dismissing her 2004 claims on res judicata

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grounds, “both this suit and [the prior action] arise out of the

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same transactional nucleus of facts, for they both center on

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[USPS]’s alleged failure to process plaintiff’s pay grade

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increase.”

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asserted a claim for breach of the CBA or breach of the limited

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duty offer in either of her previous actions, she did not do so.

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For the purposes of claim preclusion, this is sufficient to

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establish an identity of claims.

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(“Newly articulated claims based on the same nucleus of facts may

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still be subject to a res judicata finding if the claims could

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have been brought in the earlier action.”

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also RJN, Ex. H, at 7 (“A plaintiff cannot avoid the bar of claim

RJN, Ex. H, at 8.

As

Although Plaintiff could have

Tahoe–Sierra, 322 F.3d at 1078

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(emphasis added)); see

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preclusion merely by alleging conduct by the defendant not alleged

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in the prior action, or by pleading a new legal theory.”).

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Plaintiff’s conclusory assertion that her contract claim is

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“inextricably intertwined” with her accommodation claims, Opp. 16,

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does not alter this outcome.

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claims in her prior lawsuits, is based on USPS’s failure to raise

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her pay level after the 1999 limited duty offer.

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assertion that USPS subsequently failed to provide reasonable

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accommodations -- after it allegedly breached the contract --

Her contract claim, just like the

United States District Court
For the Northern District of California

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cannot rescue her contract claim.

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Plaintiff’s

claims to avoid res judicata.

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Plaintiff cannot meld these two

Nor can Plaintiff allege a new injury here based on her

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“reduced” retirement annuity.

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precipitated the reduced retirement annuity is the same injury

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asserted in her previous lawsuits: that is, USPS’s refusal to

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increase Plaintiff’s pay level.

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judicata simply by waiting for her previously dismissed claims to

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carry new financial consequences.

The alleged injury that

Plaintiff cannot overcome res

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B.

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Plaintiff’s claim that USPS unlawfully refused to raise her

Final Judgment on the Merits

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pay level has previously been rejected by two different courts.

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In 2002, a court dismissed her complaint with prejudice for

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failure to state a claim.

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another court granted summary judgment to USPS on claims arising

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from the same set of facts.

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decisions constitute final judgments on the merits.

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Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3 (1981)

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(recognizing that dismissal with prejudice for failure to state a

RJN, Exs. E, F.

Two years later,

Id., Ex. H, at 12.

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Both of these
See Federated

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claim is a final judgment on the merits for res judicata

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purposes); Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 988

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(9th Cir. 2005) (“[S]ummary judgment dismissal . . . is considered

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a decision on the merits for res judicata purposes”).

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Nevertheless, Plaintiff contends that these decisions should

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not be treated as final judgments because she was unable to

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correct deficiencies in her pleadings in those cases due to

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“conditions beyond her control.”

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notes that she and her family were “were dealing with

Opp. 9.

In particular, she

United States District Court
For the Northern District of California

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extraordinary medical issues” that “precluded her from filing an

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amended complaint or additional information.”

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Id.

While courts have made “occasional exception[s]” to res

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judicata in order “to prevent unusual hardship” to certain

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claimants, Rose v. Town of Harwich, 778 F.2d 77, 82 (1st Cir.

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1985), such an exception is not warranted here.

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Plaintiff has asserted this claim in two previous lawsuits.

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she was unprepared to file a timely amended complaint in either of

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those cases, she could have requested an extension of time.

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failure to do so does not justify suspending res judicata here.

As noted above,
If

Her

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C.

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The final element of res judicata is satisfied if the parties

Privity between the Parties

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in the prior lawsuit are identical to, or in privity with, the

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parties in the subsequent lawsuit.

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sufficient commonality of interests between the parties.

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Sierra, 322 F.3d at 1081.

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prior actions against the Postmaster General, privity is not in

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dispute here.

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(N.D. Cal.) (recognizing that employees of the same federal

Privity exists if there is
Tahoe–

Because Plaintiff brought both of her

See Conway v. Geithner, 2012 WL 1657156, at *3

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agency, if sued in their official capacity, are privies for the

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purposes of claim preclusion).

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Thus, Plaintiff’s claim for breach of contract is precluded

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by res judicata.

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dismissed with prejudice.5

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II.

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Because amendment would be futile, the claim is

Failure to Accommodate (Second Cause of Action)
Plaintiff next alleges that USPS violated the Rehabilitation

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Act, 42 U.S.C. §§ 12101 et seq., by failing to provide her with

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reasonable accommodations for her disability.

The section of her

United States District Court
For the Northern District of California

10

complaint addressing this claim is long and meandering and relies

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heavily on the fifty exhibits -- totaling nearly a thousand pages

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in length -- attached to her 1AC.

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The claim appears to be based on Plaintiff’s treatment between

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2000 and 2007 and, as such, is time-barred.

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See id. ¶¶ 3z74-75, Exs. 1-50.

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Before bringing a federal employment discrimination claim

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under the Rehabilitation Act, a plaintiff must first exhaust all

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administrative remedies.

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Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003).

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require that a federal employee seeking to bring a Rehabilitation

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Act claim must first “initiate contact with [an EEO] Counselor

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within 45 days of the date of the matter alleged to be

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discriminatory.”

42 U.S.C. § 2000e-16(c); Cherosky v.

29 C.F.R. § 1614.105(a)(1).

EEOC regulations

Failure to comply

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The Court need not address Defendant’s argument that Plaintiff’s
contract claim is time-barred.
6 As part of the agreement to settle her 1999 lawsuit against USPS,
Plaintiff agreed to release and discharge USPS “from any and all
obligations, damages, liabilities, actions, causes of actions, claims
and demands of any kind and nature whatsoever” (other than worker’s
compensation claims) arising from “any claims of discrimination,
harassment or retaliation” that occurred before March 1999. RJN, Ex. C,
at ¶ 8.

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with this regulation is “fatal to a federal employee’s

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discrimination claim.”

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Cir. 2002).

4

Lyons v. England, 307 F.3d 1092, 1105 (9th

Here, Plaintiff asserts that she has filed multiple EEOC

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claims since 2000, pointing specifically to complaints that she

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filed in March, April, and July 2010.7

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complaints was filed within the relevant forty-five day filing

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period.

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Separation” in October 2006 and constructively discharged her in

1AC ¶ 3z67.

None of these

The 1AC alleges that USPS mailed Plaintiff a “Notice of

United States District Court
For the Northern District of California

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September 2007, id. ¶¶ 3z64, 3z66.

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window for Plaintiff to initiate an EEOC complaint would have

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closed in November 2007, at the latest.

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Thus, the forty-five day

Plaintiff argues that the limitations period should be tolled

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because (1) she is still suffering the ill effects of USPS’s

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unlawful conduct in the form of a reduced retirement annuity and

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(2) she did not discover USPS’s adverse employment actions until

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the limitations period had expired.

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persuasive.

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Neither of these arguments is

The Ninth Circuit has specifically rejected Plaintiff’s first

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tolling argument, holding that the “continual ill effects from an

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original violation” do not toll the forty-five day period in which

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to file an EEOC complaint.

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(9th Cir. 1981).

Ward v. Caulk, 650 F.2d 1144, 1147

Because Plaintiff’s reduced retirement annuity

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Plaintiff also asserts that she “contacted the EEO and filed a
complaint concerning this matter in 2000-01.” Opp. 19. This complaint,
however, is irrelevant here because it formed the basis for Plaintiff’s
2004 lawsuit. To the extent that Plaintiff’s claims in this suit are
based on the allegations in that EEOC complaint, they are barred by res
judicata, as discussed above. Further, the 2000-01 complaint preceded
the actions she complains of here.

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is merely the “continual ill effect[]” of USPS’s alleged

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discrimination prior to 2007, it is insufficient to justify

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tolling here.

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only discovered USPS’s adverse employment actions after the

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limitations period ended -- is undermined by the allegations in

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her complaint.

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sent her a written notice of administrative separation in October

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2006, which forced her to retire in September 2007.

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cannot plausibly argue that she did not learn of this action until

United States District Court
For the Northern District of California

10
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Plaintiff’s second tolling argument -- that she

As previously noted, the 1AC alleges that USPS

Plaintiff

three years later.
Plaintiff’s argument that the EEOC pre-filing requirement

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does not apply here is similarly unavailing.

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cites two decisions by the EEOC’s Office of Federal Operations for

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support, neither is apposite here.

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merely stands for the proposition that an employee may satisfy the

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pre-filing requirement by contacting the EEOC by telephone and

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need not file his or her initial complaint in writing.

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No. 05980343, 1999 WL 303886, at *3.

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allege that she ever contacted an EEO counselor during the

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limitations period -- either by telephone or in writing -- Short

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does not offer her any support.

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Degroat v. Potter, EEOC DOC No. 01A42287, 2005 WL 578518, does not

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discuss the EEOC pre-filing requirement at all and, thus, is

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likewise inapplicable.

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Although Plaintiff

The first, Short v. Peters,

EEOC DOC

Because Plaintiff does not

The other decision she cites,

Accordingly, Plaintiff’s second cause of action is dismissed.

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Because Plaintiff would have to contradict her original complaint

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to allege that this claim was timely, she is denied leave to

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amend.

Reddy, 912 F.2d at 296.
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III. Retaliation (Third Cause of Action)

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As explained above, Plaintiff has failed to allege that she

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timely exhausted her administrative remedies prior to filing her

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claims under the Rehabilitation Act.

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did not and her arguments for seeking equitable tolling are

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unavailing.

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claim, is dismissed with prejudice.

Thus, her retaliation claim, like her accommodations

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The record shows that she

CONCLUSION
For the reasons set forth above, Defendant’s motion to

United States District Court
For the Northern District of California

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dismiss (Docket No. 19) is GRANTED.

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judicial notice (Docket No. 20) is GRANTED.

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Defendant’s request for

Plaintiff’s 1AC is dismissed with prejudice and judgment
shall enter accordingly.

The clerk shall close the file.

IT IS SO ORDERED.

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Dated:

3/27/2013

CLAUDIA WILKEN
United States District Judge

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