Branch v. United States Postal Service (Southwest Area) et al

Filing 16

ORDER & REASONS re 14 Motion to Dismiss: it appearing to the Court that motion has merit, IT IS ORDERED that motion to dismiss is GRANTED as unopposed; pla's lawsuit is hereby dismissed. Signed by Judge Martin L.C. Feldman on 4/11/2012. (rll, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JASPER LEE BRANCH, JR.

CIVIL ACTION

v.

NO. 11-2912

PATRICK R. DONAHOE, POSTMASTER GENERAL,
UNITED STATES POSTAL SERVICE

SECTION "F"

ORDER AND REASONS
Local Rule 7.5 of the Eastern District of Louisiana requires
that memoranda in opposition to a motion be filed eight days prior
to the noticed submission date.

No memoranda in opposition to the

defendant’s motion to dismiss, noticed for submission on April 11,
2012, has been submitted.
Accordingly,

the

motion

is

deemed

to

be

unopposed,

and

further, it appearing to the Court that the motion has merit,1 IT
1

In his complaint, the plaintiff, pro se, asks this Court
“to review a recent denial from the EEOC Appeal No. 0120112070
(July 21, 2011).” (Plaintiff worked for the U.S. Postal Service as
a distribution clerk in New Orleans and voluntarily took disability
retirement from the USPS in 1999. Plaintiff contacted an Equal
Employment Opportunity counselor at the USPS on December 9, 2010).
In his motion to dismiss, the defendant contends that: (1) the
Court lacks subject matter jurisdiction over the plaintiff’s EEO
claims (in which he alleged discrimination based on retaliation and
mental disability) because the claims were not timely exhausted at
the administrative level; and (2) the plaintiff fails to state a
claim for relief from the denial of workers’ compensation benefits
because the Secretary of Labor is vested with the exclusive power
to administer and decide all questions arising under the Federal
Employees’ Compensation Act. The Court agrees.
It is well-settled that prior to bringing a suit for
employment discrimination, a federal employee must timely exhaust
his administrative remedies. See Fitzgerald v. Sec’y, U.S. Dep’t of
Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997).
Federal
regulations require an employee who believes that he has been
discriminated against on the basis of race, color, religion, sex,
1

IS ORDERED that the defendant’s motion to dismiss is GRANTED as
unopposed.

The plaintiff’s lawsuit is hereby dismissed.
New Orleans, Louisiana, April 11, 2012

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

national origin, age, or disability to initiate contact with an EEO
counselor within 45 days of the effective date of the action. 29
C.F.R. § 1614.105(a)(1). Failure to do so bars review of the claim
in federal court absent waiver, estoppel, or equitable tolling.
Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992)(citation
omitted). The record demonstrates that the plaintiff left the USPS
in 1999 but that he did not contact an EEO counselor until 2010.
The defendant suggests that, here, the plaintiff might seek to rely
on tolling to save his failure to timely exhaust his remedies.
But, as the defendants have noted, “courts that have allowed
equitable tolling based on mental illness have done so only in
exceptional circumstances, such as where the complainant is
institutionalized or adjudged mentally incompetent.”
Vidal v.
Chertoff, 293 Fed.Appx. 325, 329 (5th Cir. 2008)(citing Lyons v.
Potter, 521 F.3d 981, 983 (8th Cir 2008)). The record demonstrates
that the plaintiff pursued several claims in various forums over
the years such that his simple assertion of mental disability does
not rise to the level of exceptional circumstances to warrant
tolling. Having failed to respond to the defendant’s motion, the
plaintiff can not carry his burden of demonstrating that equitable
tolling would apply.
Plaintiff fails to state a claim for workers’
compensation benefits because such a claim cannot be pursued
against the defendant here in this Court.
FECA provides
compensation benefits for a federal employee’s personal injuries
“sustained while in the performance of his duty.”
5 U.S.C. §
8102(a). However, this remedy is exclusively administrative and,
therefore, not subject to judicial review. 5 U.S.C. § 8124(b); §
8128(b); Grijalva v. United States, 781 F.2d 472, 474 (5th Cir.
1986). The Secretary of Labor is vested with the power to
“administer, and decide all questions arising under” the FECA and
his action in denying or granting compensation is final and
conclusive and may not be reviewed by a court of law. See 5 U.S.C.
§ 8128(b)(1), (2) and 5 U.S.C. § 8145.
2