WASHINGTON v. DONAHOE et al

Filing 56

MEMORANDUM OPINION (c/m to Plaintiff 12/12/13 sat). Signed by Chief Judge Deborah K. Chasanow on 12/12/13. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DEBBIE WASHINGTON
:
v.

:

Civil Action No. DKC 13-0339

:
PATRICK R. DONAHOE, et al.
:
MEMORANDUM OPINION
Presently pending and ready for review in this employment
discrimination

case

are

six

motions.

Plaintiff

Debbie

Washington filed a motion for an ex parte hearing (ECF No. 42),
and two motions to amend her pleadings (ECF Nos. 46 and 53).
Defendant Ellen S. Saltzman filed a motion to dismiss.
21).

(ECF No.

Defendant Patrick R. Donahoe, Postmaster General of the

United States, filed a motion to dismiss or, in the alternative,
for summary judgment.

(ECF No. 39).

Finally, Defendants Alton

Branson, Timothy W. Dowdy, Robert Harnest, William Jacobs, and
Robert Williams filed a motion to dismiss.

(ECF No. 47).

The

issues have been briefed, and the court now rules, no hearing
being deemed necessary.

Local Rule 105.6.

For the following

reasons, one of Plaintiff’s motions to amend the pleadings will
be granted and the other will be denied as moot.

Plaintiff’s

motion

Defendants’

for

an

ex

parte

motions will be granted.

hearing

will

be

denied.

I.

Background
The following facts are either set forth in the complaint,

evidenced

by

documents

referenced

or

relied

upon

in

the

complaint, or are matters of public record of which the court
may take judicial notice.1
Plaintiff was a mail carrier for the United States Postal
Service

(“USPS”)

and

a

member

of

the

local

chapter

of

the

National Association of Letter Carriers (“NALC”), a union.

On

June 30, 1989, she injured her knee on-the job.

She applied

for, and was granted, workers’ compensation benefits.
day

at

work

was

August

22,

2000,

although

she

Her last

remained

an

employee of USPS for many years after.
On

February

28,

2009,

USPS

involuntarily

Plaintiff because of her long term absence.

reassigned

Plaintiff filed a

grievance which was resolved by the USPS-NALC Dispute Resolution
Team in her favor, finding that Plaintiff cannot be denied the
right

to

work

based

solely

on

1

her

long

term

absence.

The

“Although as a general rule extrinsic evidence should not
be considered at the 12(b)(6) stage,” the court may consider
such evidence where the plaintiff has notice of it, does not
dispute its authenticity, and relies on it in framing the
complaint.
Am. Chiropractic Ass’n v. Trigon Healthcare, Inc.,
367 F.3d 212, 234 (4th Cir. 2002); see also Douglass v. NTI-TSS,
Inc., 632 F.Supp.2d 486, 490 n.1 (D.Md. 2009). Here, Defendants
have attached documents pertaining to an arbitration hearing
concerning Plaintiff. These documents are referenced or relied
upon by the complaint. In her opposition papers, Plaintiff does
not challenge the authenticity of the attached documents. Thus,
the court may consider them in resolving the pending motions to
dismiss.
2

decision stated that Plaintiff shall be allowed to return to
work once she submits the proper documentation to determine in
what capacity she should be returned.
USPS terminated Plaintiff’s employment on September 4, 2009
for

“Unacceptable

Attendance/Failure

to

Attendance/Absence without Permission.”

be

Regular

in

Plaintiff received her

termination notice on September 9, 2009.

Per the terms of the

contract between USPS and NALC, Plaintiff had fourteen days to
file

a

grievance,

removal

letter

deadline.

i.e.,

sent

to

September
Plaintiff

23,
set

2009.

The

forth

the

notice

of

fourteen-day

Plaintiff first told her Shop Steward that she wanted

to file a grievance on September 28, 2009.

On March 19, 2010,

an arbitration hearing before Defendant Ellen Saltzman was held
as

to

whether

USPS

employment.

The

had

just

hearing

cause

was

to

terminate

bifurcated,

Plaintiff’s

with

Arbitrator

Saltzman first hearing argument as to whether the grievance was
filed timely.

In an opinion dated May 23, 2010, Arbitrator

Saltzman

that

found

the

grievance

was

filed

untimely

and

dismissed the case.
Further,

Saltzman

found

undisputed

bringing

forth

Plaintiff’s

diligent

in

received

notice

Arbitrator
contractual

from

Saltzman

Plaintiff

held

agreement

that

that
USPS

concerning
3

that

the

Union

was

grievance

she

and

the

once

wished

proceed.

the

Union

deadline

to

came
for

to

it

a

filing

grievances which USPS had not waived in this case. Consequently,
she

was

bound

grievance.

to

(ECF

effectuate
No.

the

21-4).

contract

Plaintiff’s

and

dismiss

termination

the

became

effective on June 23, 2010.
Plaintiff
Employment

also

filed

Opportunity

subjected

her

to

religion,

color,

a

complaint

(“EEO”)

discrimination

office,

physical

on

USPS’s

alleging

the

disability,

with

bases

age,

and

of

Equal

that

USPS

race,

sex,

reprisal

for

prior EEO activity when, since 2000, USPS allegedly denied her a
reasonable accommodation by preventing Plaintiff from working
since

2000

and

placing

Plaintiff

in

an

unassigned

position.

Following informal counseling, USPS closed the case and gave
Plaintiff a Notice of Right to File (“NORF”).

Per federal law,

Plaintiff’s deadline to file a formal complaint was fifteen days
after receiving the NORF.

Her complaint was filed on September

11, 2009, approximately forty-five days after she received her
NORF.

USPS

untimely.

dismissed

the

complaint

because

Plaintiff

was

Plaintiff appealed that decision to the EEOC’s Office

of Federal Operations (“OFO”), which upheld USPS’s decision on
July 1, 2011.
reconsideration.

(ECF No. 39-1, at 9-11).

Plaintiff requested

In an opinion dated November 20, 2012, OFO

denied reconsideration, finding that Plaintiff provided no new
evidence or information to establish that their prior decision

4

involved a clearly erroneous interpretation of material fact or
law.

(Id. at 12-13).
On January 10, 2013, Plaintiff filed a pro se complaint in

the United States District Court for the District of Columbia.
(ECF No. 1).

Plaintiff’s complaint is unclear as to her claims

against the multiple Defendants, but it appears that she is
contending that her employment termination violated Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and
the Rehabilitation Act, 29 U.S.C. § 701, et seq.
2013,

the

D.C.

District

Court

transferred

On January 30,

the

case

to

this

court, finding that the venue provisions of Title VII make this
court the proper venue.

(ECF No. 4).

Plaintiff was granted

leave to proceed in forma pauperis on February 7, 2013.
No. 6).
2013.

(ECF

Plaintiff filed an amended complaint on February 22,
(ECF

No.

9).

Her

amended

complaint

adds

Defendants

Saltzman, Branson, Dowdy, Harnest, Jacobs, and Williams.

Her

claim

she

against

Defendant

Saltzman

appears

to

be

that

conducted the arbitration hearing in an unfair manner because
Plaintiff was not allowed to present personally her position,
instead only her union representatives were allowed to speak.
Finally,

Plaintiff

appears

Harnest,

Dowdy,

Williams,

to

claim
and

that

Defendants

Branson),

as

her

Jacobs,
union

representatives (“Union Defendants”), did not properly represent
her in her grievance hearing.
5

On

May

dismiss.

9,

2013,

Defendant

(ECF No. 21).

Saltzman

filed

a

motion

to

Defendant Donahoe filed a motion to

dismiss or, in the alternative, for summary judgment on June 17,
(ECF No. 39).2

2013.

The Union Defendants filed a motion to

dismiss on July 15, 2013.

(ECF No. 47).

In accordance with

Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the clerk of
court mailed a letter to Plaintiff on the same day of each of
these filings, notifying her that a dispositive motion had been
filed and that she was entitled to file opposition material or
risk entry of judgment against her.

(ECF Nos. 22, 40, 48).

Plaintiff opposed Defendant Saltzman’s motion on May 29, 2013
(ECF No. 35); Defendant Donahoe’s motion on July 5, 2013 (ECF
No. 43); and the Union Defendants’ motion on August 1, 2013 (ECF
No. 52).

Defendant Saltzman and the Union Defendants filed

replies on June 13, 2013 and August 15, 2013, respectively.
(ECF Nos. 38 and 54).

Defendant Donahoe did not elect to file a

reply.
2

Plaintiff also listed Prince Jones, Nigel McClean, Annetta
Wallace, Toni Grier, Frances C. Lamer, Jennifer Green, Rochell
Talley, William Mooney as Defendants.
Defendants Jones,
McClean, and Green are current USPS employees and are being
represented
by
Postmaster
Donahoe.
Defendants
Wallace,
Strugell, Grief, Lamer, and Talley are retired employees of
USPS.
Defendant Donahoe does not represent them.
Defendant
Donahoe states that Defendant Mooney is a union official. (See
ECF No. 39, at 1 n.1).
This does not seem to jibe with the
summons which was successfully delivered to “William Mooney,
U.S. Postal Service.” (ECF No. 14). In any event, as will be
discussed in section III.E, Plaintiff’s claims as to these
Defendants will be dismissed.
6

Plaintiff’s

motions

include

one

motion

for

an

ex

parte

hearing filed on July 5, 2013 (ECF No. 42), and two motions to
amend her pleadings, filed on July 10, 2013 and July 15, 2013.
(ECF Nos. 46 and 47).
motions

was

filed

by

The only opposition to any of these
Defendant

Saltzman

Plaintiff’s motion for an ex parte hearing.
II.

in

opposition

to

(ECF No. 44).

Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is

to test the sufficiency of the complaint.
Charlottesville,

464

F.3d

480,

483

(4th

Presley v. City of
Cir.

2006).

A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).

Fed.R.Civ.P.

“Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n.3 (2007).

Bell Atl. Corp.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light

most

favorable

to

the

plaintiff.
7

See

Harrison

v.

Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979).
III. Analysis
A.

Plaintiff’s Motions

Plaintiff requests an ex parte hearing because she never
received Defendant Saltzman’s reply brief.

She contends that

Defendants are playing games with her and requests an ex parte
hearing.

(ECF No. 42).

Defendant Saltzman contends that her

reply brief was in fact mailed to Defendant but, in any event,
Saltzman promptly mailed Plaintiff another copy.
Plaintiff
filing.

has

not

indicated

that

she

did

(ECF No. 44).

not

receive

this

This dispute does not constitute grounds for an ex

parte hearing and Plaintiff’s motion will be denied.
Plaintiff’s motions to amend the pleadings are in fact the
same document that was either submitted twice or inadvertently
docketed twice.
letter

from

the

Plaintiff seeks to add two documents: (1) a
EEOC

to

Plaintiff
8

dated

February

9,

2012

acknowledging

that

it

has

received

Plaintiff’s

documentation

regarding a notice of intent to file a civil action against USPS
pursuant to the Age Discrimination in Employment Act; and (2) a
legal notice that Plaintiff is a potential class member eligible
for monetary compensation in the settlement reached in the case
of Walker v. Donahoe, EEOC Case No. 541-2008-00188X.

(ECF No.

46).

proposed

No

additions

Defendant
to

the

has

objected

record.

to

Plaintiff’s

Additionally,

Plaintiff’s

second

requested addition – the class action settlement notice – has
already been provided by Plaintiff in her opposition.
43-1, at 5).

(ECF No.

Consequently, one motion to amend will be granted

and the other denied as moot.
B.

Defendant Saltzman’s Motion to Dismiss

Defendant Saltzman served as the arbitrator between USPS
and

Plaintiff

concerning

whether

USPS’s

Plaintiff’s employment was with just cause.

termination

of

Following a hearing

on March 19, 2010, Saltzman ruled that Plaintiff’s grievance was
filed untimely and consequently dismissed the grievance.
No. 21-4).

(ECF

Plaintiff argues that Defendant Saltzman presided

over an unfair arbitration because she “had really no one to
talk up on my behalf because [Defendant] Harnest refused to
remove

himself

after

he

had

injured

his

head

in

a

fall.

[Saltzman] was very upset with him saying the same thing over
and

over

again,”

and

that

Plaintiff
9

was

not

allowed

to

say

anything.

(ECF No. 9 ¶¶ 56 and 58).

Defendant Saltzman argues

that – as an arbitrator – she was acting in a quasi-judicial
capacity,

deciding

the

narrow

Plaintiff’s grievance filing.

issue

of

the

timeliness

of

Accordingly, Defendant Saltzman

argues that she is entitled to immunity and Plaintiff’s claims
should be dismissed with prejudice.
Plaintiff’s

opposition

does

not

address

Defendant’s

assertion of arbitral immunity, instead arguing that Defendant
Saltzman presided over an unfair arbitration hearing by denying
Plaintiff the opportunity to speak.
Neither the Supreme Court of the United States, the United
States

Court

of

Appeals

for

the

Fourth

Circuit,

nor

this

district have adopted the doctrine of arbitral immunity.

While

every other circuit that has considered the issue has recognized
the doctrine, see Pfannensteil v. Merrill Lynch, 477 F.3d 1155,
1158-59 (10th Cir. 2007) (collecting cases), it is not necessary
to reach the existence of the doctrine and its applicability to
this

case

given

other

deficiencies

in

Plaintiff’s

amended

complaint.
Even
unfair

if

Defendant

manner,

Saltzman

Plaintiff’s

conducted

amended

the

hearing

complaint

in

fails

an
to

demonstrate how Saltzman’s alleged improper management of the
proceedings

caused

her

harm.

Plaintiff’s

grievance

dismissed on the narrow issue of its untimeliness.
10

was

Nowhere in

Plaintiff’s filings does she dispute that finding.

Even if

Defendant Saltzman was required to let Plaintiff speak – as
opposed

to

her

NALC

representatives

–

Plaintiff

gives

no

indication what information she would have provided that would
have led to a different outcome.

Plaintiff’s discussion of USPS

intimidating her NALC representatives or Defendant Harnest being
an inadequate representative is immaterial to whether Plaintiff
filed

her

grievance

Consequently,

timely.

Plaintiff

Defendant Saltzman.

has

That

failed

fact

to

is

state

a

not

disputed.

claim

against

See Twombly, 550 U.S. at 555 (“Factual

allegations must be enough to raise a right to relief above the
speculative level.”).
C.

USPS’s motion to dismiss

Giving pro se Plaintiff’s complaint a liberal reading, she
appears

to

obstructed
against

her

be

claiming

justice,
on

that

denied

multiple

Defendant

due

bases

USPS

process,

in

the

defamed

and

form

of

her,

discriminated
a

failure

to

accommodate and wrongful termination.
To

the

extent

Plaintiff

is

seeking

damages

for

a

tort

through the Federal Tort Claims Act (“FTCA”), such an action
shall not be instituted “unless the claimant shall have first
presented the claim to the appropriate Federal agency.”
U.S.C. § 2675(a).
it

receives

an

28

Such a claim is deemed presented to USPS when
executed

Standard
11

Form

95

or

other

written

notification of an incident, accompanied by a claim for money
damages in a sum certain.

39 C.F.R. § 912.5(a).

The filing of

an administrative claim is a jurisdictional prerequisite and may
not be waived.

Henderson v. United States, 785 F.2d 121, 123

(4th Cir. 1986).
USPS has provided a declaration from Elinor G. Brown, a
paralegal

specialist

with

USPS.

Ms.

Brown

declares

Plaintiff has not filed any tort claims against USPS.
39-1

¶

4).

Plaintiff

does

not

dispute

this

that

(ECF No.
assertion.

Accordingly, to the extent Plaintiff’s claim against Defendant
USPS for damage or injury sounds in tort, she has failed to
fulfill the FTCA’s jurisdictional prerequisite.

Furthermore, to

the extent Plaintiff claims that Defendant USPS defamed her,
such

claims

are

not

cognizable.

See

28

U.S.C.

§

2680(h)

(excepting any claim arising out of libel or slander from the
FTCA).
In terms of Plaintiff’s employment discrimination claims, a
federal employee must file a formal complaint with her agency
within fifteen days of receiving the right to do so.
§ 1614.106(b).
fifteen-day

29 C.F.R.

Failure to file a formal complaint within the

period

constitutes

a

failure

to

administrative remedies and is grounds for dismissal.
v. Harvey, 381 F.Supp.2d 458, 467 (D.Md. 2005).

12

exhaust
See Moret

Documents

provided

by

USPS

indicate

that

Plaintiff

initially contacted USPS’s EEO office on April 27, 2009.

Her

case was closed on July 22, 2009, at which point she was given a
Notice of Right to File a formal complaint (“NORF”).
39-1, at 5-6).

(ECF No.

Documents provided by both USPS and Plaintiff

indicate that Plaintiff received the NORF on July 25, 2009.
That puts the fifteen-day deadline to file a formal complaint at
August 10, 2009.3
September

11,

Plaintiff did not file her complaint until

2009,

received her NORF.

approximately

forty-five

days

after

she

USPS denied her employment discrimination

claims because she failed to meet this deadline, a decision
upheld twice by EEOC-OFO.

(ECF No. 39-1, at 9-13).

does not dispute the untimeliness of this filing.

Plaintiff

Consequently,

the record demonstrates that Plaintiff has failed to exhaust
administrative

remedies

with

respect

to

her

employment

discrimination claims and these claims will be dismissed.4
Finally, to the extent Plaintiff asserts that USPS is to
blame for her unfavorable arbitration, that claim is also timebarred.

In DelCostello v. Teamsters, 462 U.S. 151 (1983), the

Supreme Court held that an employee may bring suit against an
3

Fifteen days from July 25, 2009 would be August 8, 2009, a
Saturday.
4

Plaintiff has not claimed – nor has she provided any
documents to indicate – that she is bringing a civil action for
employment discrimination claims beyond those documented in her
September 2009 claim.
13

employer and his union, notwithstanding the outcome or finality
of any grievance or arbitration proceeding, but the statute of
limitations for bringing such claims is six months from the date
of

the

allegedly

unfair

labor

practice.

Filing

a

parallel

action with the National Labor Relations Board does not toll the
six-month time period.

Kolomick v. United Steelworkers of Am.,

Dist. 8, AFL-CIO, 762 F.2d 354, 356-57 (4th Cir. 1985).
the arbitrator’s decision was issued on May 23, 2010.
was

removed

from

USPS’s

employ

effective

June

Here,

Plaintiff
23,

2010.

Consequently, Plaintiff’s deadline to file a claim of unfair
labor practice was December 2010 at the latest.
her

claim

in

federal

district

court

on

Plaintiff filed

January

10,

2013.

Therefore, her claim for unfair labor practice against Defendant
USPS is time-barred and will be dismissed.
D.

Union Defendants’ Motion to Dismiss

Plaintiff

alleges

that

the

Union

Defendants

failed

adequately to represent her during the grievance proceeding.
union

owes

its

members

a

duty

of

fair

representation

A
in

grievance proceedings, Vaca v. Sipes, 386 U.S. 171, 177 (1967),
but a breach of this duty is also governed by the six-month
statute of limitations laid out in DelCostello.

As discussed

above in the context of Plaintiff’s claims against Defendant
USPS, the latest deadline to file a claim for breach of duty of
fair representation was December 2010.
14

Plaintiff filed over two

years

late.

Consequently,

her

claims

against

the

Union

Defendants are time-barred and will also be dismissed.
E.

Remaining Defendants

No

motions

have

been

brought

on

behalf

of

Defendants

Annetta Wallace, Toni Grier, Frances C. Lamer, Rochell Talley,
and William Mooney.

USPS represented that Mr. Mooney is a union

official and the others are retired USPS employees not currently
represented.

As discussed in footnote 1, Mr. Mooney appears to

be either a current or former USPS employee.

In any event, all

of Plaintiff’s allegations against these Defendants – to the
extent she specifies the alleged wrongful actions of individual
Defendants – encompasses the same set of claims that were found
to be time-barred in the preceding sections.
Plaintiff is proceeding in forma pauperis pursuant to §
1915.

Accordingly, “a district court may consider a statute of

limitations defense sua sponte when the face of the complaint
plainly reveals the existence of such defense.”
S.A.

v.

Johnson,

440

F.3d

648,

656

(4th

Eriline Co.
Cir.

2006).

Consequently, Plaintiff’s complaint as to these Defendants will
be dismissed as well.
IV.

Conclusion
For the foregoing reasons, Plaintiff’s motion for an ex

parte hearing will be denied.

Plaintiff’s motion to amend the

15

pleadings will be granted.
be granted.

Defendants’ motions to dismiss will

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

16