Nguyen v. Managing Counsel USPS

Filing 12

MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 07/12/2013. (bas, Deputy Clerk)c/m on 7/12/2013 bca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
THANH TAN NGUYEN,

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Plaintiff,
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v.
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Case No. 13-cv-800-AW
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PATRICK R. DONAHOE,
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Postmaster General, USPS,
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Defendant.
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MEMORANDUM OPINION
Pro se Plaintiff Thanh Tan Nguyen filed this suit against Defendant Patrick R. Donahoe,
Postmaster General of the United States Postal Service, alleging discrimination based on race
and age and retaliation in violation of Title VII of the Civil Rights Act of 1964. Currently
pending before the Court is Defendant’s Motion to Dismiss or, in the Alternative, for Summary
Judgment (“Motion to Dismiss”). Doc. No. 8. For the reasons articulated below, the Court
GRANTS Defendant’s motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Thanh Tan Nguyen (“Nguyen” or “Plaintiff”) was an employee of the United
States Postal Service and was stationed at the Westlake Post Office in Bethesda, MD. Over the
course of his employment, Nguyen was given a series of “no time off” suspensions for violating
office policies. See, e.g., Doc. No. 4-4 at 2. Defendant generally alleged that Nguyen missed scan
checkpoints on his mail route on multiple occasions. On June 15, 2012, Defendant sent Nguyen a
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letter of removal informing him that it was terminating him in 30 days. Nguyen’s removal
became effective on July 15, 2012. Doc. No. 4-2 at 1.
Nguyen, a 58-year-old Vietnamese-American, alleges that his firing resulted from age
discrimination, racial discrimination, and retaliation for previous EEO filings. After Nguyen
received his notice of removal, his union, the National Association of Letter Carriers, requested
an Informal Step A Meeting and filed a grievance on Nguyen’s behalf. Doc. No. 4-1. The
grievance went through a series of appeals, and ultimately terminated on December 10, 2012. On
or around this date, the Regular Arbitration Panel upheld Nguyen’s termination. Doc. No. 4-7 at
2. Nguyen subsequently made first contact with an EEO counselor on December 21, 2012. He
then filed a formal EEO complaint on January 25, 2013, which was accepted for investigation on
February 14, 2013. Doc. No. 4-2. Nguyen requested a hearing with the EEOC on February 20,
2013 regarding his pending EEO complaint. Doc. No. 8-2. The EEOC, however, declined to
consider his request for a hearing. The EEOC concluded that it was “premature” because 180
days had not passed since Plaintiff filed his EEO complaint. Id. (citing 29 C.F.R. § 1614.108(g)).
On March 15, 2013, Nguyen filed his Complaint in this Court. Doc. No. 2. On June 6,
2013, Defendant filed a Motion to Dismiss. Doc. No. 8. Defendant argues that Nguyen failed to
exhaust his administrative remedies prior to filing suit in two ways. First, Defendant alleges that
Nguyen failed to consult with an EEO counselor within 45 days of his termination. Second,
Defendant alleges that the current EEO investigation is ongoing, and that Nguyen failed to wait
the 180 days required by law before filing suit.

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II. STANDARD OF REVIEW
Generally, “a failure by the plaintiff to exhaust administrative remedies concerning a
Title VII claim deprives the federal courts of subject matter jurisdiction over the claim.” Jones v.
Calvert Group, Ltd., 551 F.3d 297, 300–01 (4th Cir. 2009) (citation omitted). “Courts may
consider materials outside the pleadings to determine whether they have subject matter
jurisdiction.” Bennett v. Kaiser Permanente, Civil Action No. 10–CV–2505 AW, 2013 WL
1149920, at *2–3 (D. Md. Mar. 20, 2013) (citation omitted). Although the Fourth Circuit has
held that the failure of a federal employee to timely contact an EEO counselor does not, per se,
deprive courts of subject matter jurisdiction, the issue is still whether the employee has
exhausted administrative remedies. See Zografov v. V.A. Medical Ctr., 779 F.2d 967, 969–70
(4th Cir. 1985). “Motions to dismiss for failure to exhaust administrative remedies are governed
by Fed. R. Civ. P. 12(b)(1) . . . .” Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003)
(citation omitted); Puryear v. Shrader, Civil No. PJM 11–3640 2013 WL 1833262, at *1 (D.
Md. Apr. 30, 2013) (citation omitted).1 “[I]f the governmental entity challenges jurisdiction
under Rule 12(b)(1) . . . the court is free to consider exhibits outside the pleadings to resolve

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At least one District of Maryland case indicates that courts should treat motions to dismiss for failing to
exhaust administrative remedies under Rule 12(b)(6). Medlock v. Rumsfeld, 336 F. Supp. 2d 452, 462 n.5
(D. Md. 2002) (citation omitted). The Court need not definitively decide whether it is proper to treat the
instant Motion to Dismiss under Rule 12(b)(1) because the Court would grant the Motion under a Rule
12(b)(6) analysis. Plaintiff himself submitted essentially all the documents on which the Court relies to
grant the Motion and the documents are integral to his ambiguous, pro se form Complaint. See, e.g.,
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (citation omitted); see also Jones
v. Stafford, Civil Action No. 8:12–cv–00891–AW, 2012 WL 5882588, at *1 (D. Md. Nov. 20, 2012)
(citations omitted) (incorporating the allegations from a pro se plaintiff’s memoranda, correspondence,
and associated documents into a pleading because the pleading was unclear and deficient).

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factual disputes concerning jurisdiction.” Zander v. United States, 843 F. Supp. 2d 598, 603–04
(D. Md. 2012) (alteration in original) (citation and internal quotations marks omitted).
III. ANALYSIS
A. Plaintiff’s Failure to Wait the Required 180 Days
Defendant asserts that Plaintiff failed to exhaust his administrative remedies by failing to
wait for 180 days after filing his EEO complaint before filing suit in this Court. The relevant
EEOC regulation provides as follows:
A complainant who has filed an individual complaint, an agent who has filed a
class complaint or a claimant who has filed a claim for individual relief pursuant
to a class complaint is authorized under title VII, the ADEA and the
Rehabilitation Act to file a civil action in an appropriate United States District
Court:
(a) Within 90 days of receipt of the final action on an individual or class
complaint if no appeal has been filed;
(b) After 180 days from the date of filing an individual or class complaint if an
appeal has not been filed and final action has not been taken;
(c) Within 90 days of receipt of the Commission’s final decision on an appeal; or
(d) After 180 days from the date of filing an appeal with the Commission if there
has been no final decision by the Commission.
29 C.F.R. § 1614.407.
Here, Plaintiff filed his formal EEO complaint on January 25, 2013. Plaintiff has
presented no evidence that he has received notice of final action. Hence, Plaintiff may file suit no
earlier than July 25, 2013 or thereabouts. However, Plaintiff filed suit on March 15, 2013, and it
is still before July 25, 2013. Accordingly, the Court must dismiss Plaintiff’s Complaint. See
Puryear, 2013 WL 1833262, at *2 (citation omitted) (“Because Puryear had not received a
decision on her appeal, and because 180 days had not yet elapsed when she filed suit, the Court
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did not have jurisdiction over these claims when the suit was filed.”); Avery v. Astrue, Civil No.
WDQ–11–2612, 2012 WL 1554646, at *3 (“Because he did not wait 180 days or for a decision
on his appeal, the Court must dismiss this action for lack of subject matter jurisdiction.”).

B. Plaintiff’s Failure to Meet with an EEO Counselor Within 45 Days of His
Termination
Alternatively, Defendant argues that the Court must dismiss the instant action because
Plaintiff failed to meet with an EEO counselor within 45 days of his termination. Under EEOC
regulations, “[a]n aggrieved person must initiate contact with a Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days
of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). This 45 day period is extended if
“the individual shows that he or she was not notified of the time limits and was not otherwise
aware of them.” 29 C.F.R. § 1614.105(a)(2).
Here, Plaintiff alleges a series of discriminatory/retaliatory acts. The latest of these acts
occurred on June 15, 2012, when Plaintiff received a letter of removal informing him that
Defendant was terminating him in 30 days. Nguyen’s removal became effective on July 15,
2012. Construed in the most favorable light, Plaintiff alleges that he did not contact an EEO
counselor until December 21, 2012. However, this date falls more than five months after July 15,
2012. Plaintiff does not allege, and the record does not reflect, that Plaintiff contacted an EEO
counselor before that time. Although Plaintiff does allege that he participated in Defendant’s
grievance process, this act is insufficient to toll the 45-day time limit. Kim v. Potter, Civil Action
No. DKC 09–2973, 2010 WL 2253656, at *5–6 (D. Md. June 2, 2010) (citing Smith v. Potter,
445 F.3d 1000, 1007 n.19 (7th Cir. 2006)). Nor has Plaintiff alleged that he was “not notified of
the time limits.” Accordingly, even if dismissal were improper for failing to wait the required
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180 days before filing suit, the Court would still properly dismiss Plaintiff’s Complaint.
Therefore, the Court is compelled to dismiss Nguyen’s complaint to the extent that it concerns
race and age discrimination. See, e.g., LaPorte v. Henderson, 176 F. Supp. 2d 464, 470 (D. Md.
2001) (citing Zografov, 779 F.2d at 968–69) (“[S]ince failure to consult with an EEO counselor
in a timely fashion represents a failure to timely exhaust administrative remedies, the Court is
without jurisdiction to hear the claim.”).
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss. A
separate Order follows.
July 12, 2013
Date

/s/
Alexander Williams, Jr.
United States District Judge

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