Bowers v. United States Postal Service

Filing 20

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

TROY E. BOWERS,
Plaintiff,
v.

Case No. 1:16:CV;1082

MEGAN J. BRENNAN, Postmaster
General of the United States,

HON. GORDON J. QUIST

Defendant.
_____________________________/

OPINION
This case stems from the termination of Plaintiff’s employment with the United States Postal
Service. Plaintiff is a United States Army veteran who was rated as disabled by the United States
Department of Veteran Affairs after his honorable discharge in 1997. Plaintiff was hired by the
Postal Service in 2002 and worked as a supervisor at the Muskegon Post office until his termination
in 2015. The United States Postal Service, Office of Inspector General conducted an investigation
into Plaintiff’s misuse of his work computer, ultimately concluding that Plaintiff frequently visited
eBay and Gmail websites, and used employee access to track shipments of items he sold on eBay.
The Postal Service issued Plaintiff a Notice of Removal in February 2014, informing
Plaintiff that the Postal Service intended to terminate his employment because of his misuse of his
computer. In March 2014, the Service issued a Letter of Decision, terminating Plaintiff effective
April 5, 2014. This Letter was rescinded, but the February Notice of Removal remained in effect
until the Service issued a second Letter of Decision in October 2014. Plaintiff appealed the decision
to the Merit System Protection Board. An ALJ held hearings on Plaintiff’s appeals, affirming the
Service’s removal based on misuse of his computer and finding that the removal was not based on

intentional discrimination. Plaintiff appealed the ALJ’s decision to the full MSPB. The Board
affirmed the ALJ’s finding that Plaintiff was properly terminated for misusing his computer and not
because of discrimination.
Plaintiff filed a pro se complaint, “claiming discrimination based on disabling condition.”
(ECF No. 1 at PageID.3.) Plaintiff then moved for default judgment. (ECF No. 12.) Defendant
moved to dismiss for failure to state a claim and for lack of subject matter jurisdiction. (ECF No.
9.)
Motion for Default Judgment
Plaintiff moved for a default judgment on the basis that Defendant failed to timely respond
to the complaint. (ECF No. 12.) Plaintiff’s summons was served on the U.S. Attorney’s Office on
October 24, 2016, meaning that Defendant had 60 days from October 25 to respond. (ECF No. 6.)
As per Rule 6, the deadline would normally be December 23, 2016, but the Clerk’s office was closed
on December 23 and December 26, in observance of Christmas. “[I]f the clerk's office is
inaccessible…on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the
first accessible day that is not a Saturday, Sunday, or legal holiday.” Fed. R. Civ. P. 6(a)(3)(A). The
first accessible day after December 23 was December 27, the day on which Defendant filed her
motion to dismiss. (ECF No. 9.)
Defendant’s response to the summons was timely. Plaintiff’s motion for default will be
denied.
Motion to Dismiss
Defendant argues that Plaintiff’s disability discrimination claim should be dismissed because
the complaint fails to sufficiently plead that he was disabled for the purposes of the ADA. A prima
facie disability discrimination claim under the Rehabilitation Act requires that the plaintiff establish
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(1)
(2)
(3)
(4)
(5)

he or she is disabled;
he or she is otherwise qualified for the position, with or without reasonable
accommodation;
he or she suffered an adverse employment decision;
the employer knew or had reason to know of the plaintiff's disability, and
the position remained open while the employer sought other applicants or the
disabled individual was replaced.

Ferrari v. Ford Motor Co., 826 F.3d 885, 891–92 (6th Cir. 2016) (citing Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1186 (6th Cir. 1996)). “An individual is considered ‘disabled’ under the ADA
if she (1) ‘has a physical or mental impairment that substantially limits one or more of the major life
activities of such individual,’ (2) ‘has a record of such impairment,’ or (3) is regarded by her
employer as having such an impairment.” Gruener v. Ohio Cas. Ins. Co., 510 F.3d 661, 664 (6th
Cir.2008) (quoting Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 810 (6th Cir.1999)).
The compliant simply states that “Plaintiff is a disabled veteran” and “Plaintiff is claiming
discrimination based on disabling condition.” (ECF No. 1 at PageID.1-3.) Defendant argues that
this falls well short of the plausibility requirement of Rule 12(b)(6) under Ashcroft v. Iqbal, 556
U.S. 662, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955
(2007). Plaintiff’s response brief is no more illuminating, simply reiterating that “Plaintiff is a
disabled veteran and has preference rights that other non[-]disabled veterans do not have.” (ECF
No. 16 at PageID.157.)
Defendant has the better argument. Plaintiff does not allege facts to support his contention
that he is disabled; he does not even specify what impairment he has, much less how that impairment
substantially limits a major life activity. Moreover, courts consistently find that an ADA plaintiff’s
designation as “disabled” by the Veterans Administration is insufficient to support a finding that the
plaintiff is “regarded as” being disabled by their employer, even when the employer knows of the
VA’s designation. See, e.g., Phillips v. Mabus, No. CIV. 12-00384 LEK, 2013 WL 4662960, at *10
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(D. Haw. Aug. 29, 2013), aff'd, 607 F. App'x 762 (9th Cir. 2015); Slocum v. Potter, No. CIV.A.
3:08-3714-CMC, 2010 WL 2756953, at *4-5 (D.S.C. June 8, 2010); Wilborn v. Ashcroft, 222
F.Supp.2d 1192, 1208–09 (S.D. Cal. 2002).
To the extent that Plaintiff is making a claim under the USERRA, he is appealing a final
order by the MSPB. USERRA claims against the federal government must be presented to MSPB,
and a claimant has the right to appeal to Federal Circuit, rather than a district court. See Heckman
v. Jewell, 540 F. App'x 800 (9th Cir. 2013) (citing 38 U.S.C. § 4324); see also Elgin v. Dep't of
Treasury, 567 U.S. 1, 132 S. Ct. 2126, 2131 (2012) (“The Federal Circuit has ‘exclusive
jurisdiction’ over appeals from a final decision of the MSPB.”)
Conclusion
For the foregoing reasons, the Court will deny Plaintiff’s motion for default judgment
and grant Defendant’s motion to dismiss.
A separate order will enter.

Dated: February 17, 2017

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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