Stanciel v. Potter
Filing
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OPINION AND ORDER granting in part and denying in part 24 Motion to Dismiss. Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MILTON STANCIEL,
Plaintiff,
Civil Case No. 11-11512
Honorable Patrick J. Duggan
v.
JOHN E. POTTER,
Defendant.
_____________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED
COMPLAINT
On April 8, 2011, Milton Stanciel (“Plaintiff”), a former United States Postal
Service employee, filed this action alleging employment discrimination based on sex and
disability. In an amended complaint filed June 19, 2012, Plaintiff asserts the following
claims against Defendant: (I) disability discrimination under the Rehabilitation Act of
1973; (II) disability discrimination under the Michigan Persons With Disabilities Civil
Rights Act; (III) a violation of his procedural due process rights under 42 U.S.C. § 1983;
(IV) a substantive due process violation under 42 U.S.C. § 1983; (V) sex discrimination
under Title VII of the Civil Rights Act of 1964; and (VI) sex discrimination in violation
of the Michigan Elliott-Larsen Civil Rights Act. Presently before the Court is
Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint, filed pursuant to
Federal Rule of Civil Procedure 12(b)(6) on July 5, 2012. The motion has been fully
briefed and the Court held a motion hearing on September 12, 2012. For the reasons that
follow, the Court grants in part and denies in part Defendant’s motion.
I.
Defendant’s Arguments and Plaintiff’s Response
Defendant seeks to dismiss Plaintiff’s Title VII and Rehabilitation Act claims,
Counts I and V, respectively, based on Plaintiff’s failure to exhaust his administrative
remedies. Defendant argues that Plaintiff’s state law discrimination claims, Counts II and
VI, are preempted by federal law. Lastly, Defendant argues that Plaintiff’s § 1983 claims,
Counts III and IV, are subject to dismissal because the statute applies to state, and not
federal, officials.
In response to Defendant’s motion, Plaintiff addresses only whether he exhausted
his administrative remedies with respect to Counts I and V of his First Amended
Complaint. Plaintiff fails to respond to Defendant’s arguments for dismissal of his
remaining claims. At the motion hearing, Plaintiff indicated that he in fact is abandoning
those claims. Thus the Court is granting Defendant’s motion to dismiss Counts II-IV and
VI of Plaintiff’s First Amended Complaint.
II.
Standard for Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of the complaint. RMI Titanium Co. v. Westinghouse Elec. Corp., 78
F.3d 1125, 1134 (6th Cir. 1996). Under Federal Rule of Civil Procedure 8(a)(2), a
pleading must contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.” To survive a motion to dismiss, a complaint need not contain
“detailed factual allegations,” but it must contain more than “labels and conclusions” or
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“a formulaic recitation of the elements of a cause of action . . .” Bell Atlantic Corp. v.
Twombly, 550 U.S. 555, 570, 127 S. Ct. 1955, 1964-65, 1974 (2007). A complaint does
not “suffice if it tenders ‘naked assertions’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal, 556 U.S. 662, – , 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550
U.S. at 557, 127 S. Ct at 1966).
As the Supreme Court provided in Iqbal and Twombly, “[t]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570, 127
S. Ct. at 1974). “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.” Id. (citing Twombly, 550 U.S. at 556, 127 S. Ct. at 1965). The
plausibility standard “does not impose a probability requirement at the pleading stage; it
simply calls for enough facts to raise a reasonable expectation that discovery will reveal
evidence of illegal [conduct].” Twombly, 550 U.S. at 556, 127 S. Ct. at 1965.
In deciding whether the plaintiff has set forth a “plausible” claim, the court must
accept the factual allegations in the complaint as true. Id.; see also Erickson v. Pardus,
551 U.S. 89, 127 S. Ct. 2197, 2200 (2007). This presumption, however, is not applicable
to legal conclusions. Iqbal, 129 S. Ct. at 1949. Therefore, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 555, 127 S. Ct. at 1965-65).
Generally, when ruling on a motion to dismiss, the Court may not consider
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materials beyond the complaint without converting the motion to one for summary
judgment under Federal Rule of Civil Procedure 56. See Fed. R. Civ. P. 12(d). However,
the Court can consider materials beyond the complaint on a Rule 12(b)(6) motion if such
materials are public records, matters of which a court may take judicial notice, or letter
decisions of governmental agencies. See Jackson v. City of Columbus, 194 F.3d 737, 745
(6th Cir. 1999), abrogated on other grounds in Swierkiewicz v. Sorema, N.A., 534 U.S.
506, 122 S. Ct. 992 (2002). A Court also may consider documents referenced in the
plaintiff’s complaint and central to the plaintiff’s claim(s), even if not attached to the
complaint. City of Monroe Employees Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 659
n.6 (6th Cir. 2005) (citing Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997)); see
also Amini v. Oberlin Coll., 259 F.3d 493, 503 (6th Cir. 2001) (indicating that the
plaintiff’s EEO charge, the filing of which was a precondition to bringing the lawsuit, was
central to his discrimination claims and could be considered on a motion to dismiss).
III.
Factual and Procedural Background
Plaintiff began working for the United States Postal Service (“USPS”) as a mail
handler on or about January 1, 1991. (Am. Compl. ¶ 8.) Plaintiff suffers from a mental
impairment. (Id. ¶ 11.) Because of this impairment, Plaintiff was hired via a special
hiring process which excused him from the standard postal service exams to determine
literacy or ability to serve as an employee. (Id.) As an USPS employee, Plaintiff was a
member of the National Postal Mail Handlers Union, Local 307 (“union”). (Id. ¶ 14.)
On September 22, 2009, Plaintiff was issued a notice of removal due to irregular
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attendance. (Id. ¶ 26.) On September 26, 2009, Plaintiff was admitted to an in-patient
rehabilitation treatment program for alcoholism. (Id. ¶ 28.) On October 8, 2009, Plaintiff
returned to work after successfully completing the treatment program. (Id. ¶ 29.)
Pursuant to the notice of removal, his employment was terminated on October 30, 2009.
(Id. ¶ 30.)
On November 12, 2009, Plaintiff contacted an Equal Employment Opportunity
(“EEO”) counselor alleging discrimination in connection with his removal. (Def.’s Mot.
Ex. 101.) The claim of discrimination was assigned EEO Case No. 1J-484-0002-10
(“EEO Case No. 0002”). (Id.) Plaintiff authorized union advocate Glen Berrien to
represent him with respect to his discrimination complaint. (Id.) On December 10, 2009,
USPS sent Plaintiff a “Notice of Right to File,” which informed Plaintiff that he had to
file a formal discrimination complaint with the USPS within 15 days or, if filed later, it
would be dismissed pursuant to 29 C.F.R. Part 1614.107. (Id. Ex. 102.) Mr. Berrien was
copied on the notice. (Id.) Plaintiff did not file a formal complaint in that time period.
(Id. Ex. 103 at 2.)
On April 6, 2010, Plaintiff again contacted the EEO counselor to initiate
counseling concerning the September 22, 2009 removal notice. (Id. Ex. 104.) The claim
was assigned EEO Case No. 1J-484-0011-10 (“EEO Case No. 0011”). (Id.) Plaintiff
filed a formal discrimination complaint regarding EEO Case No. 0011 with USPS on July
16, 2010. (Id. Ex. 105.) The USPS dismissed the complaint on July 28, 2010. (Id. Ex.
103 at 1.)
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Plaintiff appealed the USPS’ decision in EEO Case No. 011, but it was upheld by
the U.S. Equal Employment Opportunity Commission (“EEOC”) on February 9, 2011.
(Id.) On that date, the EEOC sent Plaintiff a right to sue letter. (Pl.’s Am. Compl. ¶ 33.)
As indicated previously, he filed the present action on April 8, 2011.
IV.
Applicable Law and Analysis
The right to bring an action under Title VII or the Rehabilitation Act is predicated
upon “rigorous administrative exhaustion requirements and time limitations.” Brown v.
Gen. Servs. Admin., 425 U.S. 820, 833, 96 S. Ct. 1961, 1968 (1976) (indicating that
compliance with administrative exhaustion requirements is a precondition to filing a
federal employment discrimination lawsuit under Title VII); Smith v. United States Postal
Service, 742 F.2d 257, 262 (6th Cir. 1984) (“Congress intended to require persons
complaining of handicap discrimination in employment to exhaust administrative
remedies before availing themselves of judicial remedies under the Rehabilitation Act.”).
EEOC regulations set forth the specific procedures a federal employee must follow
to make a claim of discrimination and/or retaliation in violation of Tile VII and/or the
Rehabilitation Act. See 29 C.F.R. § 1614.103(a). First, the employee must seek informal
EEO counseling within 45-days 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). Failure to timely seek EEO counseling is grounds for dismissal of the
plaintiff’s discrimination claim(s). Hunter v. Sec’y of U.S. Army, 565 F.3d 986, 993 (6th
Cir. 2009) (citing Benford v. Frank, 943 F.2d 609, 612 (6th Cir. 1991)).
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If the federal employee contacts an EEO counselor within 45 days and the matter
is not resolved, the employee must then file a formal discrimination complaint with the
“agency that allegedly discriminated against the complainant” within 15 days of receiving
notice of their right to do so. 29 C.F.R. §§ 1614.106(a) & (b). Failure to timely file a
formal EEO complaint with the agency also warrants dismissal of a subsequent lawsuit.
King v. Henderson, No. 99-1800, 2000 WL 1478360, at *1, 4 (6th Cir. Sept. 27, 2000);
see also Waters v. Runyon, No. 94-5299, 1994 WL 573924, at *1 (6th Cir. Oct. 17, 1994);
Lockett v. Potter, 259 F. App’x 784, 786 (6th Cir. 2008) (identifying the timely filing of a
complaint with the agency as one precondition for filing a lawsuit in federal court).
While Plaintiff timely contacted an EEO counselor on November 12, 2009
regarding his September 22, 2009 notice of removal, he failed to file a formal
discrimination complaint with the USPS within 15 days of receiving notice of his right to
do so. Plaintiff contacted an EEO counselor a second time and thereafter filed a timely
formal complaint; however, his contact with the EEO counselor was untimely. Plaintiff
does not dispute the untimeliness of his actions to exhaust his administrative remedies
with respect to the September 22, 2009 removal notice and that the failure to timely
exhaust administrative remedies is an affirmative defense.1 (Pl.’s Resp. Br. at 7.)
1
In his response brief, Plaintiff argues that he timely exhausted his administrative
remedies after learning in March 2010 that he had been removed from USPS’ rolls. (Pl.’s
Resp. Br. at 10-11; Ex. 2 ¶ 32.) The USPS waits to remove a terminated employee from
its rolls until the employee exhausts his or her administrative remedies. (See Def.’s Reply
Br. at 4.) Thus the removal of Plaintiff from USPS’ rolls was not a discrete injury from
his earlier removal. Plaintiff, in fact, did not identify his removal from the rolls as a
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Plaintiff argues, however, that equitable tolling should apply because of his mental
disability or Defendant’s “trickery.”
The Supreme Court has found equitable tolling applicable to suits against the
United States. Irwin v. Dep’t of Veteran Affairs, 498 U.S. 89, 95-96, 111 S. Ct. 453, 457
(1990). In Irwin, the Court identified two situations where equitable tolling may apply:
“in situations where the claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period, or where the complainant has been induced
or tricked by his adversary’s misconduct into allowing the filing dealing to pass.” Id. at
96, 111 S. Ct. at 457-58. While the Court has acknowledged that tolling might be
appropriate in other cases, see Young v. United States, 535 U.S. 43, 50, 122 S. Ct. 1036
(2002), it also has cautioned that federal courts have “typically extended equitable relief
only sparingly.” Irwin, 498 U.S. at 96, 111 S. Ct. at 457; see also Earnhardt v. Puerto
Rico, 691 F.2d 69, 71 (1st Cir. 1982) (indicating that the federal courts “have taken a
uniformly narrow view of equitable exceptions to Title VII limitations periods.”). Most
Circuits, including the Sixth Circuit, have allowed equitable tolling based on the
plaintiff’s mental illness. See, e.g., Barrett v. Principi, 363 F.3d 1316, 1319-21 (Fed. Cir.
2004) (collecting cases); see also Cantrell v. Knoxville Cmty. Dev. Corp., 60 F.3d 1177,
1180 (6th Cir. 1995).
A plaintiff invoking the doctrine of equitable tolling bears the burden of
discriminatory act in his administrative grievance or in the complaints he has filed here.
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demonstrating that the doctrine should apply in his or her case. See Kellum v. Comm’r of
Soc. Security, 295 F. App’x 47, 49 (6th Cir. 2008); see also, Jessie v. Potter, 516 F.3d
709, 715 (8th Cir. 2008); Hardy v. Potter, 191 F. Supp. 2d 873, 879 (E.D. Mich. 2002)
(citing Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)). To warrant equitable tolling, a
plaintiff must do more than show that he or she suffers from a disability. Nunnally v.
MacCausland, 996 F.2d 1, 5 (1st Cir. 1993) (indicating that cases applying equitable
tolling based on mental illness “eschew reliance solely on a diagnosis”). The plaintiff
must show that a mental disability interfered with his or her compliance with the deadline
sought to be tolled. See, e.g., Boos, 201 F.3d at 185 (finding the plaintiff’s conclusory and
vague claim that she suffers from “paranoia, panic attacks, and depression” insufficient to
invoke equitable tolling, “without a particularized description of how her condition
adversely affected her capacity to function generally or in relationship to the pursuit of
her rights”); Smith-Haynie v. District of Columbia, 155 F.3d 575, 580 (D.C. Cir. 1998)
(indicating that to warrant equitable tolling, the plaintiff’s disability “must be ‘of such a
nature as to show she is unable to manager her business affairs or estate, or to
comprehend her legal rights or liabilities.”); Miller v. Runyon, 77 F.3d 189, 191 (7th Cir.
1996) (recognizing equitable tolling based on the plaintiff’s mental illness “only if the
illness in fact prevents the sufferer from managing his affairs and thus from understanding
his legal rights and acting upon them.”); Nunnally, 996 F.2d at 5 (stating that “[e]quitable
relief is denied if the plaintiff was able to engage in rational thought and deliberate
decision making sufficient to pursue his claim alone or through counsel.”); see also
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Barrett, 363 F.3d at 1321 (adopting Nunnally’s standard to assess whether the plaintiff’s
mental incompetence warrants tolling).
In his affidavit submitted in response to Defendant’s motion, Plaintiff
demonstrates that his mental disability interfered with his ability to comply with the
requirements to exhaust his administrative remedies.2 As such, the Court concludes that
his failure to file a formal complaint with USPS within 15 days of receiving notice of his
right to do so does not justify the dismissal of his Title VII and Rehabilitation Act claims
(Counts I and V).
V.
Conclusion
There is merit to Defendant’s arguments of support of the Court’s dismissal of
Counts II-IV and VI of Plaintiff’s First Amended Complaint. In response to Defendant’s
motion to dismiss, Plaintiff in fact has abandoned those claims. However, the Court
concludes that Plaintiff’s Title VII and Rehabilitation Act claims, Counts I and IV, are not
subject to dismissal because Plaintiff failed to properly exhaust his administrative
remedies.
Accordingly,
2
As another basis for equitable tolling, Plaintiff asserts that he was the “victim of
trickery.” (Pl.’s Resp. Br. at 9.) “Equitable tolling has been applied where . . . the
claimant has been induced or tricked by the defendant’s misconduct into allowing the
filing deadline to pass.” Aslani v. Sparrow Health Sys., No. 1:08–cv–298, 2009 WL
3711602, at *8 (W.D. Mich. Nov. 3, 2009) (citing Mazumder v. Univ. of Michigan
Regents, 270 Mich. App. 42, 715 N.W.2d 96, 99 (2006), rev’d in part on other grounds,
480 Mich. 1045, 743 N.W.2d 889 (2008). Plaintiff, however, fails to show that he was
tricked in any way (much less by Defendant).
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IT IS ORDERED, that Defendant’s Motion to Dismiss Plaintiff’s First Amended
Complaint is GRANTED IN PART AND DENIED IN PART in that Counts II-IV and
VI of Plaintiff’s First Amended Complaint, only, are DISMISSED WITH
PREJUDICE.
Dated: October 1, 2012
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Felicia Duncan Brock, Esq.
Jan M. Geht, Esq.
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