Mitchell v. United States Postal Service et al

Filing 25

OPINION and ORDER Granting Defendant's Motion to Dismiss Certain Claims 14 . Signed by District Judge Laurie J. Michelson. (JCur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEDRIC MITCHELL,
Plaintiff,
v.

Case No. 14-cv-13916
Honorable Laurie J. Michelson
Magistrate Judge Mona K. Majzoub

PATRICK DONOHOE,
POSTMASTER GENERAL,
UNITED STATES POSTAL
SERVICE,
Defendants.
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
CERTAIN CLAIMS [14]
Plaintiff Kedric Mitchell, a former employee of the United States Postal Service
(“USPS”), says that USPS started treating him differently after his wife filed a grievance in 2007
stemming from her termination from a USPS job, and discriminated against him due to his
mental health issues. So he filed this lawsuit in 2014 against the Postmaster General and the
USPS. Now before the Court is Defendant’s Motion to Dismiss Certain Claims (Dkt. 14), which,
with defendants’ consent, the Court will apply to Plaintiff’s newly-amended Complaint. (Dkt.
24.) The Court has carefully reviewed the briefing and heard oral argument on August 24, 2015.
The sole issue before the Court is whether Plaintiff has adequately exhausted his administrative
remedies such that he can proceed under the Rehabilitation Act on his claim that the USPS
retaliated against him for his wife’s conduct. The Court answers this question in the negative and
therefore GRANTS Defendant’s motion for partial dismissal.

I. MOTION TO DISMISS STANDARD
The Federal Rules of Civil Procedure require that pleadings contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
plaintiff “must allege ‘enough facts to state a claim of relief that is plausible on its face.’”
Traverse Bay Area Int. Sch. Dist. v. Mich. Dep’t of Educ., 615 F.3d 622, 627 (6th Cir. 2010)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility means
that “the complaint has to ‘plead[] factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Ohio Police & Fire Pension
Fund v. Std. & Poor’s Fin. Servs., LLC, 700 F.3d 829, 835 (6th Cir. 2012) (alteration in original)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “This standard does not require detailed
factual allegations, but a complaint containing a statement of facts that merely creates a
suspicion of a legally cognizable right of action is insufficient.” HDC, LLC v. City of Ann Arbor,
675 F.3d 608, 614 (6th Cir. 2012) (citation and internal quotation marks omitted).
The court must “accept all well-pleaded factual allegations as true and construe the
complaint in the light most favorable to plaintiffs.” Bennet v. MIS Corp., 607 F.3d 1076, 1091
(6th Cir. 2010). The court “need not, however, accept unwarranted factual inferences.” Id. (citing
Twombly, 550 U.S. at 570). Nor are “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements” entitled to an assumption of truth. Iqbal, 556 U.S. at
678. “[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
On a motion to dismiss for failure to state a claim, the Court may consider “the
Complaint and any exhibits attached thereto, public records, items appearing in the record of the

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case and exhibits attached to defendant’s motion to dismiss so long as they are referred to in the
Complaint and are central to the claims contained therein.” Bassett v. NCAA, 528 F.3d 426, 430
(6th Cir. 2008).
II. ALLEGATIONS OF THE AMENDED COMPLAINT
Mitchell attached an amended complaint to his response to Defendant’s Motion to
Dismiss. (See Dkt. 19-1, Am. Compl.) The Court construed this exhibit as a motion to amend the
complaint and granted it on the record at the hearing conducted on August 24, 2015.
According to the Amended Complaint, Mitchell started working as a postal employee in
October 1997. (Am. Compl. at ¶ 6.) His wife was also a postal employee, and she became
pregnant in fall 2006. (Id. at ¶ 7.) The pregnancy was troubled and so Mitchell left work to care
for his wife, resulting in his termination in December 2006. (Id. at ¶¶ 7–8.) After filing a
grievance, Mitchell was reinstated in January 2007. (Id. at ¶ 10.) He then went on leave from
February through September 2007, and his wife had the baby in May 2007. (Id. at ¶¶ 11, 12.)
Meanwhile, Mitchell’s wife was terminated from her employment with the Postal Service
in January 2007, though she did not find out about this until September. (Id. at ¶¶ 13, 14.) She
filed a union grievance that was ultimately unsuccessful because it was untimely. (Id. at ¶¶ 15,
16.) Mitchell says that after his wife filed the grievance, his supervisors started treating him
differently. (Id. at ¶ 18.) Specifically, “Anytime plaintiff had any concern, complaint, or
grievance, it was brushed off by plaintiff’s superiors as stemming solely from an animosity over
plaintiff’s wife’s termination.” (Id. at ¶ 19.)
Mitchell filed an Equal Employment Opportunity complaint in February 2009. (Id. at 21.)
He did not mention the treatment due to his wife’s termination; instead, he based his complaint
on “discriminatory treatment for his depression.” (Id. at ¶ 22.) During the proceedings, he moved

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to amend the complaint to add allegations that “he was treated differently because of how
defendant had treated his wife.” (Id. at ¶ 23.) The administrative law judge (“ALJ”) denied this
request in a written order. (Id. at ¶ 26.) Defendant attached this referenced opinion to its briefing.
(Dkt. 22-5.) In this order, the ALJ found, “First, the Complainant cannot amend his own
complaint with his wife’s claim of discrimination. . . . Finally, the claims involving these discrete
acts arising in December 2006 and October 2007, are not timely to be brought at this late date in
a complaint that he first sought EEO counseling on March 30, 2009.” (Id. at 1–2.)
Mitchell took another leave of absence in September 2009 for his depression. (Id. at ¶
25.) In June 2010, Mitchell’s wife wrote a letter to his superiors. (Id. at ¶ 27.) The Amended
Complaint does not attach or detail the contents of the letter – but Mitchell’s December 2010
EEO complaint does. In his EEO complaint, he stated that during a meeting, his superiors
informed him that “because of this letter, the Postal Service felt that due to my Medical
Condition I may pose a danger to myself or others.” (Dkt. 14-2, Dec. 2010 EEO Compl. at
0020.) But before this point, Plaintiff had “no history of violence or threatening behavior in his
longtime employment with defendants.” (Id. at 36.) Mitchell returned to work on August 2,
2010. (Am. Compl. at ¶ 28.) On or about August 10, 2010, Mitchell’s supervisors called him into
a meeting where he was asked to provide full access to his medical records. (Id. at ¶ 30.) They
also asked him to “obtain a note from his doctor that he was not a danger to himself or others.”
(Id. at ¶ 32.) When Mitchell refused, he was fired and escorted off the premises. (Id. at ¶ 35.)
Mitchell filed a second EEO complaint in December 2010. (Id. at ¶ 37; Dec. 2010 EEO
Compl.) He alleged that “he was being discriminated and retaliated against for filing the original
EEO complaint.” (Id. at ¶ 38.) He attempted to consolidate this complaint with his first EEO

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complaint but was denied. (Id. at ¶ 39.) He says that during this time, he “made multiple attempts
to return to work, but each attempt was denied.” (Id. at ¶ 40.)
Mitchell’s amended complaint asserts claims of discrimination and retaliation in one
count under the Rehabilitation Act. (Id. at 42–54.) The claim encompasses Defendant’s treatment
of plaintiff due to his depression, his wife’s grievance, and his prior EEO activity. (See id.) Now
before the Court is Defendant’s Motion to Dismiss. (Dkt. 14.) Defendant filed this motion prior
to the Court granting Mitchell leave to file his amended complaint. But at oral argument, defense
counsel stated that since Count I of the amended complaint is the same as Count II of the original
complaint, the arguments presented in the motion could transfer to the amended complaint. Thus,
the Court will address those arguments here.
III. ANALYSIS
Defendant seeks to “limit[] [this case] to the issues Plaintiff exhausted at the
administrative level: his claim of discrimination based on his disability, and his claim of
retaliation arising from his prior Equal Employment Opportunities (“EEO”) proceeding.” (Dkt.
20, Def.’s Reply Br. at 2.) Thus, Defendant argues that Mitchell’s Rehabilitation Act claim must
be dismissed to the extent that he “failed to bring an administrative claim of retaliation arising
from his wife’s prior EEO activity, or other past activity by his wife opposing any USPS
employment practices . . . .” (Def.’s Br. at 6.)
In the federal employment context, the Sixth Circuit has held that “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.” Smith v.
United States Postal Serv., 742 F.2d 257, 262 (6th Cir. 1984); see also Hall v. United States
Postal Serv., 857 F.2d 1073, 1077–78 n.4 (6th Cir. 1988) (“While it has not always been so, it is

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now clear, at least in this circuit, that federal employees, including Postal Service employees,
alleging handicap discrimination in employment may maintain private causes of action against
their employers under both sections 501 and 504 of the Rehabilitation Act. . . . It is also clear that
a handicapped person alleging discriminatory treatment must exhaust administrative remedies as
a condition precedent to bringing an action under either section 501 or section 504.”).
The administrative procedures pertaining to Rehabilitation Act claims are set forth in 29
C.F.R. § 1614.105 and they involve a meeting with a counselor, alternative dispute resolution
procedures, and finally, filing an EEO Complaint. When examining whether claims have been
exhausted, “The Sixth Circuit has stated that an EEO complaint ‘should be liberally construed to
encompass all charges ‘reasonably expected to grow out of the charge of discrimination.’’”
Karnes v. Runyon, 912 F. Supp. 280, 284 (S.D. Ohio 1995) (citation omitted) (examining
exhaustion of Rehabilitation Act and Title VII claims). Indeed, EEO complaints are filed by lay
complainants and should not “result in the restriction of subsequent complaints based on
procedural technicalities or the failure of the charges to contain the exact wording which might
be required in a judicial pleading.” EEOC v. McCall Printing Corp., 633 F.2d 1232, 1235 (6th
Cir.1980).
Here however, it is clear that Mitchell’s EEO Complaint concerned only Defendants’
reaction to his mental health issues and his attempt to return to work in August 2010. The letter
does not mention the manner in which he was treated after his wife’s termination and subsequent
grievance. Nor did Mitchell check the box for “retaliation” in the cover sheet. Indeed, his wife is
only mentioned because she apparently wrote a letter about Mitchell’s state of mind to his
superiors. Therefore, from the Amended Complaint and the documents central to that Complaint,

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the Court finds that Mitchell did not exhaust his administrative remedies for retaliation regarding
his wife’s union grievance.
Anticipating this conclusion, Mitchell argues that he did not exhaust the claims relating to
his wife’s termination because it would have been a “futile gesture.” (Pl.’s Resp. at 12.)
“Exhaustion is not required if it would be futile or inadequate to protect the plaintiff’s rights.”
Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 917 (6th Cir. 2000) (analyzing the futility
exception in the IDEA context) (citations omitted). However, “[f]utile claims concern inadequate
administrative remedy.” Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 n.2 (6th Cir. 2001); see
also McCarthy v. Madigan, 503 U.S. 140, 147–48 (1992) (stating that exhaustion may be
excused where there is “doubt as to whether the agency was empowered to grant effective relief”
(collecting cases)). Mitchell has “the burden of demonstrating futility or inadequacy” as he
“seek[s] to bypass the administrative procedures.” Covington, 205 F.3d at 917.
Here, it appears that Mitchell attempts to invoke the futility exception based on the ALJ’s
denial of his request to amend his first complaint. But the administrative procedures available to
Mitchell were not inadequate to protect his rights simply because his only attempt to pursue a
claim regarding his wife was found to be legally deficient. See Jones v. Smith, 266 F.3d 399, 400
(6th Cir. 2001) (“Jones failed to demonstrate that he had exhausted his administrative remedies,
admitting that no grievance had been filed because his counselor did not give him a grievance
form. . . . He does not allege that there was no other source for obtaining a grievance form or that
he made any other attempt to obtain a form or to file a grievance without a form.”); see also
Wilson v. MVM, Inc., 475 F.3d 166, 176 (3d Cir. 2007) (“[A]ppellants alleged that they had
attempted to appeal their termination and, because of a poor response to their attempts, any
further efforts to exhaust administrative remedies would have been futile. While it is true that the

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appellants made some attempts, their failed attempts [were not directed to the proper
administrative body.] The appellants never brought a claim against the USMS before the EEOC
and have made no argument as to why they failed to do so.”). If anything, the ALJ’s denial
suggests that had Mitchell timely filed a Complaint and clarified that the retaliation claim was
based on Defendant’s conduct toward him and not toward his wife, he could have received some
relief through the administrative process. See S.E. v. Grant Cty. Bd. of Educ., 544 F.3d 633, 641–
42 (6th Cir. 2008) (holding that IDEA exhaustion was not futile where some of the remedies
plaintiff sought were available through the administrative process); see also Broughton v. Wands,
No. CIV.A 10CV00119BNB, 2010 WL 1225011, at *2 (D. Colo. Mar. 23, 2010) (“Because Mr.
Broughton has not completed the process of exhausting BOP administrative remedies, he cannot
know whether his efforts to exhaust would be futile. Mr. Broughton may not exhaust
“administrative remedies by, in essence, failing to employ them.”).
IV. CONCLUSION
Plaintiff failed to exhaust his retaliation claim based on his wife’s union grievance and
has not demonstrated that exhaustion would have been futile. Therefore, Defendant’s Motion to
Dismiss (Dkt. 14) will be GRANTED. It follows that Count I will be DISMISSED IN PART.
The remaining claims in Count I are Mitchell’s disability discrimination claim and his claim of
retaliation based on his 2009 EEO complaint.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: August 31, 2015

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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on August 31, 2015.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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