Ross v. Donahoe

Filing 30

MEMORANDUM OPINION AND ORDER GRANTING 19 Defendant's Motion to Dismiss. Signed by Judge Paul W. Grimm on 6/23/2016. (kns, Deputy Clerk)(c/m 6/23/16)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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HARVEY ROSS,
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Plaintiff,
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v.

Case No.: PWG-15-814
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MEGAN J. BRENNAN
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Defendant.
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MEMORANDUM OPINION AND ORDER
Plaintiff Harvey Ross, pro se, is an employee of the United States Postal Service
(“USPS”) and has brought a complaint against the Megan Brennan, Postmaster General of the
USPS, for its handling of a June 28, 2011, Proposed Notice of Removal. I have read Ross’s
complaint, which lacks clarity, as challenging a previous Equal Employment Opportunity
(“EEO”) decision where the USPS was found liable and the USPS’s decision awarding Ross
$5,000 in damages. Defendant has filed a motion to dismiss. Def.’s Mot., ECF No. 19.1

1

In response to Defendant’s motion, Ross filed a motion for summary judgment for
discrimination/retaliation, Opp’n, ECF No. 24. Brennan filed a motion to strike Ross’s motion
for summary judgment. See ECF No. 22. I previously treated this filing as his opposition to
Defendant’s motion and struck the portions of the filing moving for summary judgment for
failure to comply with the Case Management Order, ECF No. 4. See Nov. 16, 2015, Letter
Order, ECF No. 23. For the reasons stated in this memorandum opinion and order, had I not
struck Ross’s motion for summary judgment for failure to comply with the Case Management
Order, he would not have been able to assert a meritorious claim for summary judgment because
the undisputed material facts show that he is not entitled to judgment as a matter of law
insomuch as his claims are time barred. Subsequent to the Nov. 16, 2015, Letter Order, Ross
filed an opposition and reply to Brennan’s motion to strike, Suppl., ECF No. 24. I am treating
this filing as a supplement to Ross’s opposition to Brennan’s motion to dismiss. Brennan has
filed a reply, Reply, ECF No. 29. The motion to dismiss is ripe for review. A hearing is
unnecessary in this case. See Loc. R. 105.6.

Because I treat Ross’s complaint as challenging both the Equal Employment Opportunity
Commission’s (“EEOC”) liability decision and the USPS’s damages decision regarding the June
28, 2011, Proposed Notice of Removal and because Ross filed his complaint on March 20, 2015,
after the 90-day deadline of the initial September 22, 2014, EEOC decision, I will dismiss Ross’s
complaint as time barred.
I.

BACKGROUND
Ross is a mechanic at the USPS, where he has worked since 1987. Compl. 7, ECF No. 1.

He brought this claim for “on-going hostile atmosphere to retrieve past EEO mediated
agreements and other monies and benefits owed” under Title VII of the Civil Rights Act of 1964,
42 U.S.C § 2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA), 29
U.S.C. § 621 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794(c). Id. at 1.
Ross’s complaint is rambling and difficult to follow. Although he refers to an on-going hostile
atmosphere, these actions appear related to two agency decisions that Ross is challenging. Sept.
22, 2014, Decision, Compl., Ex. 1, ECF No. 1-1; Dec. 18, 2014, Decision, Def.’s Mot., Ex. 3,
ECF No. 19-4.2 I am treating Ross’s complaint as only challenging these decisions, even though
he lists other EEO activity that predates these decisions as background for his current claims and
references other potential claims for on-going issues.3

2

The December 18, 2014, USPS decision begins on page 16 of Exhibit 3. For this citation,
I will refer to the internal page numbers of the decision.
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To the extent that Ross is bringing claims for a present hostile work environment or
constructive discharge, see Compl. 10—which seem to relate directly to Ross’s dissatisfaction
with the September 22, 2014, and December 18, 2014, decisions—these claims would be
dismissed for failure to exhaust the administrative remedies available to him. See Venable v.
Pritzker, No. GLR-13-1867, 2014 WL 2452705, at *10–12 (D. Md. May 30, 2014). Ross has
not provided any indication that he filed a charge with the EEO office regarding these claims and
did not contest the USPS’s Acceptance for Investigation Letter limiting the scope of its
investigation to “discrimination based on Retaliation (prior EEO activity) when: On or around
2

On May 3, 2011, Ross was working in his position as a mechanic for the USPS. See
Compl. 12. There seems to have been some confusion between Ross and his supervisor with
respect to Ross going on break. See id. at 12–13. While Ross was on break, a call came in for
certain maintenance to be done, and a page went out to Ross. See id. Ross, who had a
transceiver with a dead battery, did not receive the page. See id. As a result, the maintenance
work was delayed. See id.; see also Sept. 22, 2014 Decision 2.4
Following this incident, on June 28, 2011, Ross’s supervisor issued a Proposed Notice of
Removal.

See Compl. 14.

On October 27, 2011, Ross filed an EEO complaint alleging

discrimination on the basis of race, national origin, and age as well as reprisal for prior protected
EEO activity. See Sept. 22, 2014, Decision. The USPS denied Ross’s complaint, and he
appealed. See id. The EEOC reviewed Ross’s appeal and found that he was “entitled to a
finding of discrimination on the basis of retaliation and is entitled to full relief. Because we are
rendering our decision on the basis of retaliation, we need not address the Agency’s failure to
address [Ross’s] claims of race, national origin or age discrimination.” Id. at 4. As part of its
decision, the EEOC remanded Ross’s complaint to the USPS to investigate the extent to which
Ross was entitled to compensatory damages and to issue a final decision with respect to these
damages. Id. at 5. The EEOC decision informed Ross clearly that
[t]his is a decision requiring the Agency to continue its administrative processing
of your complaint. However, if you wish to file a civil action, you have a right to
file such action in an appropriate United States District Court within ninety (90)
calendar days from the date that you receive this decision.
Id. at 7.

June 28, 2011, you were issued a Proposed Notice of Removal.” See Notice of Invest., Def.’s
Mot., Ex. 2, ECF No. 19-3.
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Ross has not contested the factual description of events leading to his EEO claim as
stated in the September 22, 2014, Decision.
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In compliance with the EEOC decision, the USPS rendered its final decision on Ross’s
entitlement with respect to compensatory damages in connection with the events surrounding the
June 28, 2011, Proposed Notice of Removal. See Dec. 18, 2014, Decision. Based on its review,
the USPS determined “that an award of $5,000.00 in non-pecuniary compensatory damage is
warranted.” Id. at 7. Ross filed his claim in this Court on March 20, 2015.
II.

DISCUSSION
Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it

fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237,
2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule’s purpose “‘is to test the sufficiency
of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.’” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th
Cir. 2006)). To that end, the Court bears in mind the requirements of Fed. R. Civ. P. 8, Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must
contain “a short and plain statement of the claim showing that the pleader is entitled to relief,”
Fed. R. Civ. P. 8(a)(2), and must state “a plausible claim for relief,” as “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice,”
Iqbal, 556 U.S. at 678–79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from
Iqbal and Twombly). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. Plaintiff is proceeding pro se, and his complaint is
to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, liberal
construction does not absolve Plaintiff from pleading plausible claims. See Holsey v. Collins, 90

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F.R.D. 122, 128 (D. Md. 1981) (citing Inmates v. Owens, 561 F.2d 560, 562–63 (4th Cir. 1977)).
I must accept the facts as alleged in Plaintiffs’ complaint as true. See Aziz v. Alcolac, 658 F.3d
388, 390 (4th Cir. 2011).
When reviewing a motion to dismiss, “[t]he court may consider documents attached to
the complaint, as well as documents attached to the motion to dismiss, if they are integral to the
complaint and their authenticity is not disputed.” Sposato v. First Mariner Bank, No. CCB-121569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI Int'l v. St. Paul Fire & Marine
Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009); see also Fed. R. Civ. P. 10(c) (“A copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). Moreover,
where the allegations in the complaint conflict with an attached written instrument, “the exhibit
prevails.” Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir.
1991); see Azimirad v. HSBC Mortg. Corp., No. DKC-10-2853, 2011 WL 1375970, at *2–3 (D.
Md. Apr. 12, 2011). If the documents that the Court considers exceed this scope, the Court must
treat the motion as a motion for summary judgment. Fed. R. Civ. P. 12(d); Syncrude Canada
Ltd. v. Highland Consulting Group, Inc., 916 F. Supp. 2d 620, 623 (D. Md. 2013).

In

considering Defendant’s motion to dismiss, I have only looked at those exhibits attached to
Ross’s pleadings or those exhibits attached to the parties’ filings with respect to this motion that
are integral to the amended complaint and whose authenticity has not been disputed.
Ross has brought this action under Title VII, the ADEA, and the Rehabilitation Act. See
Compl. 1.5 Under Title VII, the ADEA, and the Rehabilitation Act, Ross must have filed this

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The USPS’s Acceptance for Investigation Letter limited the scope of its investigation to
“discrimination based on Retaliation (prior EEO activity) when: On or around June 28, 2011,
you were issued a Proposed Notice of Removal.” See Notice of Invest. The letter notified Ross
that “if you do not agree with the accepted issue as defined above, you must provide a written
response specifying the nature of your disagreement within seven (7) calendar days of the date of
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action “[w]ithin 90 says of receipt of the Commission’s final decision on an appeal.” See 29
C.F.R. § 1614.407. “The ninety-day period is not jurisdictional, but instead is treated as a statute
of limitations period. Nevertheless, the ninety-day timing requirement is strictly enforced.”
Shelton v. Atlantic Bingo Supply Co., No. DKC-11-0952, 2011 WL 4985277, at *1 (D. Md. Oct.
17, 2011) (internal citations omitted); see also Laber v. Geren, 316 Fed. App’x 266, 270 (4th Cir.
2009) (per curiam) (“Laber II”).
“Title VII does not authorize a federal-sector employee to bring a civil action alleging
only that the OFO’s remedy was insufficient. Rather, in order properly to claim entitlement to a
more favorable remedial award, the employee must place the employing agency’s discrimination
at issue.” Laber v. Harvey, 438 F.3d 404, 423 (4th Cir. 2006) (en banc) (footnote omitted)
(“Laber I”). As Ross is pro se, I will construe his complaint liberally as challenging not just the
amount of the non-pecuniary compensatory award but also as placing the USPS’s liability at
issue in accordance with Laber I.
Unfortunately, because Ross failed to file his complaint within ninety days of the original
EEOC September 22, 2014, decision, his claim is time barred. The pertinent facts here closely
parallel the same pattern as the facts in Laber II. In Laber II, the plaintiff appealed a decision by
the U.S. Army to the EEOC’s Office of Federal Operations (“OFO”), which issued a decision in
the plaintiff’s favor on December 22, 1998. See 316 Fed. App’x at 268. As part of that decision,
the OFO ordered the Army to pay Laber backpay, which the Army was required to calculate. Id.
On January 25, 1999, Laber sought reconsideration of the OFO’s decision, which was denied on

your receipt of this letter.” Id. In cases where the plaintiff fails to provide such a notification, “it
is presumed that [the plaintiff’s] allegations were properly identified,” and challenges concerning
issues other than the accepted issue are untimely. See Venable, 2014 WL 2452705, at *12.
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April 11, 2000. Id. The Army determined Laber’s eligible backpay, or lack thereof, in May
2000. Id.
The Fourth Circuit determined that the final decision with respect to the ninety-day filing
deadline was the December 22, 1998, decision, as extended by the April 11, 2000, request for
reconsideration. See id. at 270. The Fourth Circuit reached this conclusion even though the
Army did not determine the exact amount that Laber was owed for backpay until May 2000.
Ross’s procedural timeline follows the same pattern.6 The EEOC reached a final decision
in his case on September 22, 2014, and ordered the USPS to determine the amount of nonpecuniary compensatory damages to which Ross was entitled. See Sept. 22, 2014, Decision.
The USPS issued its notice of final decision with respect to this award on December 18, 2014.
See Dec. 18, 2014, Decision. Following the rule established in Laber II, the starting date for the
ninety-day filing window was the date of the initial decision on the USPS’s liability, September
22, 2014. Because Ross did not file his complaint until March 20, 2015, he filed his complaint
after the ninety-day deadline, and his claim therefore is time barred.7

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It bears noting that in this case there was only a single decision by the EEOC OFO, dated
September 22, 2014, unlike in Laber II, where the EEOC OFO issued multiple decisions based
on Laber’s filing of a motion for reconsideration and a request for clarification of its original
decision. See Laber II, 316 Fed. App’x at 268–69. The December 18, 2014, decision, which
Ross mistakenly argues is the “final” order for purposes of determining the timeliness of his
appeal, is actually an order of the USPS, not the EEOC OFO.
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Ross has not raised the issue of equitable tolling. A plaintiff is entitled to equitable
tolling “only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented timely filing.” Holland v. Florida,
560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Ross has
not demonstrated that he is entitled to equitable tolling. Further, under a similar fact pattern, the
Fourth Circuit in Laber II ruled that equitable tolling was inappropriate. 316 Fed. App’x at 270–
71.
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III.

CONCLUSION
For the reasons stated above, I will GRANT Defendant’s motion to dismiss.

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Even

though Ross did not request the opportunity to amend his complaint, any amendment of his
complaint would be futile because I am dismissing his complaint as time barred. As a result, this
dismissal is with prejudice.
ORDER
Accordingly, it is this 23rd day of June, 2016, hereby ORDERED that Defendant’s
motion to dismiss, ECF No. 19, is GRANTED. The Clerk is directed to close the case.
So ordered.

/S/
Paul W. Grimm
United States District Judge
dpb

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Because I will grant Defendant’s motion to dismiss because Ross’s claims are time
barred, I do not need to consider Defendant’s other arguments for why its motion should be
granted.
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