Branch v. United States Postal Service (Southwest Area) et al
Filing
21
ORDER and REASONS denying 18 Motion for Reconsideration. Signed by Judge Martin L.C. Feldman on 6/5/12. (plh, )
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
Before the Court is the plaintiff’s motion to reconsider this
Court’s April 11, 2012 Order dismissing the plaintiff’s case.
For
the reasons that follow, the motion to reconsider is DENIED.
Background
This litigation arises out of a retired distribution clerk’s
discrimination claims against the Postmaster General of the United
States Postal Service.
Jasper Lee Branch, Jr. worked for the United States Postal
Service as a distribution clerk at the New Orleans Processing &
Distribution Center; he voluntarily took disability retirement from
the USPS with an effective date of January 25, 1999.
Since
retiring, Branch has filed claims with the Merit Systems Protection
Board, Equal Employment Opportunity Commission, Department of
Veterans Affairs, and Employees’ Compensation Appeals Board.
On December 9, 2010 Branch contacted an Equal Employment
Opportunity counselor at the USPS and then completed an Information
for Pre-Complaint Counseling; he then filed a formal EEO complaint
1
of discrimination on December 31, 2010. Almost one week later, the
USPS issued a Dismissal of Formal EEO Complaint in which the USPS
defined Branch’s EEO issues:
The
Complainant
alleges
discrimination
based
on
Retaliation (prior EEO activity) and Mental Disability
(unspecified) when:
1.
On November 15, 2010, the Department of Labor,
Employees’ Compensation Appeals Board (EACB) affirmed the
Office of Workers’ Compensation Programs’ (OWCP) decision
to deny Complainant’s request to reopen his injury case.
2.
On unspecified date(s) Complainant alleged unfair
personnel practice in that the Employee Assistance
Program (EAP) failed to assist an enrolled employee as
they had a duty to and that he was retaliated against for
contacting his Congressman. Complainant also stated “no
bathroom privileges without AWOL (absent without official
leave); ordered for Pysco (sic) evaluation; the posting
of my picture.
The USPS found that the first issue was a collateral attack on an
adjudicatory decision of the Department of Labor’s ECAB, and should
not be subject to an EEO claim.
Respecting the second issue, the
USPS found that the Branch’s complaint was untimely brought to the
attention of the EEO counselor.
Branch appealed the dismissal to the EEOC’s Office of Federal
Operations, which affirmed the USPS’s decision to dismiss Branch’s
EEO complaint.
Branch sought reconsideration, but the Office of
Federal Operations denied the petition on November 4, 2011.
On November 28, 2011 Branch, pro se and in forma pauperis,
sued Patrick Donahoe, Postmaster General, United States Postal
Service, in this Court.
On March 19, 2012 the defendant moved to
dismiss the plaintiff’s complaint; the motion was set for hearing
2
on April 11, 2012.
The motion to dismiss and attending exhibits
was served, via first class mail, on the plaintiff.
The plaintiff
did not file an opposition to the motion and on April 11, 2012 the
Court granted the USPS’s motion to dismiss, noting that it was
unopposed and also finding that the defendant’s motion had merit.
The plaintiff now seeks reconsideration of the Court’s April 11,
2012 Order and Reasons.
I.
Rule 59(e) of the Federal Rules of Civil Procedure provides
that a motion to alter or amend a judgment must be filed no later
than 28 days after the entry of the judgment.
Fed.R.Civ.P. 59(e).
Rule 60(b), on the other hand, applies to motions filed after the
28-day
period,
requirements.”
but
demands
more
“exacting
substantive
See Lavespere v. Niagara Machine & Tool Works, 910
F.2d 167, 173-74 (5th Cir. 1990), abrogated on other grounds,
Little v. Liquid Air Corp., 37 F.3d 1069, 1078 (5th Cir. 1994)(en
banc).
“A Rule 59(e) motion ‘calls into question the correctness of
a judgment.’”
Templet v. Hydrochem, Inc., 367 F.3d 473, 478 (5th
Cir. 2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581
(5th Cir. 2002)).
Because of the interest in finality, Rule 59(e)
motions may only be granted if the moving party shows there was a
mistake of law or fact or presents newly discovered evidence that
could
not
have
been
discovered
3
previously.
Id.
at
478-79.
Moreover, Rule 59 motions should not be used to relitigate old
matters, raise new arguments, or submit evidence that could have
been presented earlier in the proceedings.
See id. at 479;
Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419 (5th
Cir. 2010)(“a motion to alter or amend the judgment under Rule
59(e) ‘must clearly establish either a manifest error of law or
fact or must present newly discovered evidence’ and ‘cannot be used
to raise arguments which could, and should, have been made before
the judgment issued’”)(citing Rosenzweig v. Azurix Corp., 332 F.3d
854, 864 (5th Cir. 2003)(quoting Simon v. United States, 891 F.2d
1154, 1159 (5th Cir. 1990)).
The grant of such a motion is an
“extraordinary remedy that should be used sparingly.” Indep. CocaCola Employees’ Union of Lake Charles, No. 1060 v. Coca-Cola
Bottling Co. United, Inc., 114 Fed.Appx. 137, 143 (5th Cir. Nov.
11, 2004) (citing Templet, 367 F.3d at 479).
The Court must
balance two important judicial imperatives in deciding whether to
reopen a case in response to a motion for reconsideration: “(1) the
need to bring the litigation to an end; and (2) the need to render
just decisions on the basis of all the facts.”
Templet, 367 F.3d
at 479.
Because the Court entered the challenged Order on April 11,
2012, and the plaintiff filed his motion to reconsider 12 days
later, the motion to amend is timely under Rule 59(e).
4
II.
In support of his request for reconsideration, Branch suggests
that he never received the defendant’s motion to dismiss; rather,
he contends that he has only received two documents from the Court
-- the scheduling order and the April 11 Order and Reasons -- but
“No other Notice for [Dismissal] to response [sic] to[].”
The
defendant counters that it properly served the plaintiff with a
copy of its motion to dismiss when it mailed to the plaintiff’s
last
known
address
the
motion
and
accompanying
exhibits.1
Moreover, the defendant contends that it is clear from the exhibits
submitted by the defendant that the plaintiff was untimely in
pursuing
his
EEO
remedies
and,
therefore
the
Court
has
no
jurisdiction over the plaintiff’s EEO claims even if the Court were
inclined to grant reconsideration.
Furthermore, the defendant
contends that the law is clear that the plaintiff has no remedy in
this Court for review of the denial of worker’s compensation
benefits and, therefore, this Court was correct in finding that the
USPS’s motion to dismiss had merit.
The Court agrees.
The plaintiff requests an opportunity to continue with his
case, but he fails to present any arguments that would show the
Court that it had erred in its legal and factual analysis that
supported its April 11, 2012 ruling. In fact, this Court proceeded
1
The defendant invokes Federal Rule of Civil Procedure
5(b)(2) and Local Rule 5.4.
5
to address the merits of the motion to dismiss, and determined that
the motion indeed had merit, specifically observing with clarity
that:
...
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, 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
6
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.
See Order and Reasons dated April 11, 2012, p.1-2 at n.1.2
The
plaintiff does not challenge this Court’s findings and has not
demonstrated that reconsideration is warranted.
Accordingly, the
plaintiff’s motion for reconsideration is DENIED.
New Orleans, Louisiana, June 5, 2012
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
2
The Court notes that the Federal Rules do not require
that district courts state their findings or conclusions when
ruling on a motion under Rule 12 or 56. See Fed.R.Civ.P. 52(a)(3).
7
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