Scott v. Donahoe et al

Filing 22

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiff's Motion to Remand 15 is DENIED. IT IS FURTHER ORDERED that Defendants Motions to Dismiss [10, 18] are DENIED without prejudice. IT IS FURTHER ORDERED that Plaintiff is granted leave to file an amended complaint within twenty (20) days from the date of this Order. Failure to comply with this Court's Order will result in the dismissal of Plaintiff's action. Signed by District Judge John A. Ross on 2/8/13. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KENNEDY SCOTT,
Plaintiff,
v.
PATRICK R. DONAHOE, Postmaster
General, and BERNARD FEDER, CEO
AMERICAN POSTAL WORKERS
UNION,
Defendants.

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No. 4:12-CV-968-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss [ECF No. 10],
Plaintiff’s Motion to Remand [ECF No. 15], and Defendant’s Motion to Dismiss Pursuant to
Rule 41(b). [ECF No. 18] The motions are fully briefed and ready for disposition.
Background
Plaintiff brings the instant action against his employer, the United States Postal Service
(“USPS”), and his union, the American Postal Workers Union, alleging breach of contract
(Counts I and II), failure to hire and/or promote (Count III), per se negligence (Count IV), and
breach of the duty of fair representation (Count V).1 Specifically, Plaintiff alleges USPS
discriminated against him by destroying his promotion test in breach of an employment contract,
failing to promote him, and negligently failing to guarantee that he receive notice of an oral
interview. (Complaint, Doc. No. 2, ¶¶ 4, 6, 27) Plaintiff further alleges USPS breached a

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This action was dismissed without prejudice as to Defendant Bernard Feder, CEO of the
American Postal Workers Union, for lack of timely service.

contract involving an employee suggestion program (“eIDEAS”) by failing to recognize or
compensate him for an idea he submitted. (Id., ¶¶ 16-18)
On May 29, 2012, USPS removed the case to this Court. (Doc. No. 1) On October 4,
2012, USPS moved to dismiss under Rules 12(b)(1) and 12(b)(6) for lack of subject matter
jurisdiction and failure to state a claim. (Doc. No. 10) On November 7, 2012, Plaintiff moved to
remand the case to state court. (Doc. No. 15) Plaintiff was granted extensions of time to file a
response to USPS’s motion to dismiss (Doc. Nos. 13, 16), but did not respond. USPS filed his
motion to dismiss pursuant to Rule 41(b) on December 18, 2012. On December 21, 2012,
Plaintiff filed his Memorandum in Opposition to Motions to Dismiss and Alternative Motion for
Leave to Amend. (Doc. No. 20)
Motion to Remand2
Upon consideration, the Court finds the case was properly removed. First, the Postmaster
General, as a United States officer, may remove any “civil action . . . that is commenced in a
State court and that is against or directed [against him] . . . to the district court of the United

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As a threshold matter, Plaintiff’s motion fails to comply with E.D.Mo.L.R. 7-4.01,
which requires a moving party to file with each motion a memorandum in support of the motion,
including any relevant argument and citations to any authorities on which the party relies.
Plaintiff’s motion is comprised of two sentences: “COMES NOW Counsel for Petitioner and
respectfully moves this Honorable Court to remand the above-titled action to the court of origin.
Your cooperation is greatly appreciated.” (Doc. No. 15) There are no arguments and citations to
any authorities included in the motion or an accompanying memorandum.
Plaintiff’s motion is also untimely. “A motion to remand the case on the basis of any
defect other than lack of subject matter jurisdiction must be made within 30 days after the filing
of the notice of removal . . . .” 28 U.S.C. § 1447(c). Because Defendant filed his Notice of
Removal on May 29, 2012, Plaintiff’s motion to remand had to be filed by June 28, 2012.
However, Plaintiff’s motion was not filed until November 7, 2012, more than 160 days after the
Notice was filed.
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States for the district and division embracing the place wherein it is pending . . . .” 28 U.S.C. §
1442(a). Specifically, the Postmaster General may remove a claim from State to federal court in
which a plaintiff alleges employment discrimination. See Cummings v. U. S. Postal Service,
2009 WL 2383857 (E.D. Wis. July 31, 2009). (Doc. No. 21, p. 2)
In addition, under the Postal Reorganization Act, 39 U.S.C. § 409(a) (“PRA”), actions
brought against the United States Postal Service in state courts may be removed to the federal
courts. Continental Cable Vision v. U.S. Postal Service, 945 F.2d 1434, 1437 (8th Cir. 1991)
(“Section 409(a) does create for the [USPS] an independent ground for removal from a state
court to a federal court.”) For these reasons Plaintiff’s motion to remand will be denied.
Motion to Dismiss
In support of its motion, USPS first argues that Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §§ 2000e, et seq., provides the exclusive remedy for discrimination
claims for federal employees such as Plaintiff. (Doc. No. 11, p. 5) USPS contends that Plaintiff’s
allegations that USPS discriminated against him convert his employment counts (Counts I, III
and IV) into a Title VII claim. (Id., pp. 7-8) Because Plaintiff failed to timely exhaust his
administrative remedies and challenge the final agency action in federal court, the Court lacks
jurisdiction of his claims.3 Brown v. Gen. Serv. Admin, 425 U.S. 820, 834 (1976); Harrell v.
Donahoe, 638 F.3d 975, 983 (8th Cir. 2011).
Alternatively, USPS argues that even if Count I and Count IV cannot be construed to
allege discrimination based on race, the Court still lacks jurisdiction. (Doc. No. 11, p. 10) Count
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Under Title VII, Plaintiff was required to contact the Equal Employment Opportunity
(EEO) office within 45 days of the alleged discrimination and challenge the final agency action
no less than 90 days after receiving it. (Id., pp. 8-9) Plaintiff contact the EEO 55 days after the
alleged discrimination, and filed suit almost 440 days after the final agency action. (Id., pp. 2-3)
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I fails because as an appointed employee, Plaintiff cannot maintain an action for breach of
employment contract. O’Neal v. Donahoe, 802 F.Supp.2d 709 (E.D. Va. 2011). Under the PRA
and the collective bargaining agreement between his union and the Postal Service, Plaintiff was
provided access to grievance procedures for his claim. As an appointed employee, Plaintiff
cannot supplement the federal protections afforded by Congress with a breach of employment
contract claim. See Sisley v. Leyendecker, 260 F.3d 849, 851 (8th Cir. 2001). (Doc. No. 11, pp.
11-12)
With respect to Count IV, USPS states the Civil Service Reform Act (CSRA) and the
PRA do not permit state law tort claims to supplement their comprehensive provisions and
remedial procures. See Biermann v. United States, 67 F.Supp.2d 1057, 1062 (E.D. Mo. 1999)
(“[F]ederal employees are barred from bringing claims against the government when the claims
arise out of an employment relationship that is governed by comprehensive procedural and
substantive provisions giving meaningful remedies against the United States. The Civil Service
Reform Act provides such remedies to federal civil servants.”) (Doc. No. 11, p. 12). Moreover,
this comprehensive scheme “does not contain a statutory right to judicial review,” such that the
court lacks jurisdiction to review a plaintiff’s tort claim. Biermann, 67 F.Supp.2d at 1062. (Doc.
No. 11, p. 13)
Finally, with respect to Count II, USPS argues the PRA preempts employee suggestion
program claims because they involve labor disputes outside the jurisdiction of the federal courts.
Hill v. Potter, 2010 WL 4450405, at *5 (C.D. Cal. Oct. 29, 2010). (Doc. No. 11, p. 13)
In response, Plaintiff contends he has sufficiently alleged claims for breach of contract,
failure to hire or promote and other causes and disputes that these claims fall under federal law.
(Doc. No. 20, p. 4) Plaintiff further argues that USPS’s preemption argument and other defenses
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fail, citing United States v. Quick International Courier, Inc., 131 F.3d 770 (8th Cir. 1997),
ostensibly as support for his position that the Postal Service is subject to tort claims. Quick was
an action under the False Claims Act, 31 U.S.C. § 3729 (a)(7), brought by the United States, on
behalf of the Postal Service, against a mail courier service engaged in a “remailing” scheme.
Quick transferred bulk mail from the United States to Barbados and then remailed it to the
United States to take advantage of the discounted rates the USPS charged the Barbadian postal
service. Id. at 772. Quick counterclaimed against the Postal Service, alleging unfair competition
in violation of the Lanham Act. Id. The district court granted summary judgment to the
government on the Lanham Act claim. The Eighth Circuit reversed, holding the PRA waived the
Postal Service’s sovereign immunity with respect to claims against the Postal Service under the
Lanham Act. Id. at 775. USPS replies that Plaintiff’s reliance on Quick is misplaced because the
mail courier service was not an appointed federal employee. (Reply Memorandum, Doc. No. 21,
p. 4)
Finally, Plaintiff requests the Court grant him leave to amend his complaint to cure any
pleading deficiencies. The Court should freely give leave to amend pleadings when justice so
requires. Fed.R.Civ.P. 15(a)(2). “[D]enial of leave to amend a pleading is appropriate only in
those limited circumstances in which undue delay, bad faith on the part of the moving party,
futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated.”
Lexington Ins. Co. v. S & N Display Fireworks, Inc., 2011 WL 5330744, at *1 (E.D.Mo., Nov.
7, 2011) (quoting Roberson v. Hayti Police Dept., 241 F.3d 992, 995 (8th Cir.2001)). Upon
consideration, the Court finds that at this stage of the proceedings, USPS would not be unduly
prejudiced by granting Plaintiff leave to amend its complaint in an attempt to cure the
deficiencies identified by USPS, particularly since a case management order has not yet been
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entered in this case.
Motion to Dismiss Pursuant to Rule 41(b)
USPS argues Plaintiff’s complaint should be dismissed for failure to prosecute his claims
and comply with this Court’s orders. (Memorandum in Support, Doc. No. 19) Specifically,
USPS complains of Plaintiff’s failure to timely respond to its pending motion to dismiss. After
requesting additional time to respond, Plaintiff did not respond to USPS’s motion and instead
moved to remand the case to state court. Plaintiff responds that he was waiting for the Court to
rule on his motion to remand and that USPS has suffered no prejudice by any delay in filing his
response. (Doc. No. 20, p. 5)
“A district court may, in its discretion, dismiss an action pursuant to Fed.R.Civ.P. 41(b) if
‘the plaintiff fails to prosecute or to comply with [the Federal Rules or] a court order.’”
Whitehead v. Garrett, 2011 WL 3607074, at * 1 (E.D. Mo. Aug. 12, 2011) (quoting Smith v.
Gold Dust Casino, 526 F.3d 402, 404 (8th Cir.2008)). However, dismissal of an action with
prejudice is “an extreme sanction and should be used only in cases of willful disobedience of a
court order or continued or persistent failure to prosecute a complaint.” Id. (quoting Smith, 526
F.3d at 405). Upon review of the record, the Court cannot conclude that Plaintiff’s conduct was
so “willful or egregious” to warrant dismissal of his case. Cf. Rodgers v. The Curators of the
Univ. of Mo., 135 F.3d 1216, 1218 (8th Cir.1998) (affirming dismissal with prejudice of
plaintiff's complaint when plaintiff failed to appear at two court-ordered depositions, disregarded
court orders to produce documents, and violated a court order prohibiting him from terminating
his counsel).
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand [15] is DENIED.
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IT IS FURTHER ORDERED that Defendant’s Motions to Dismiss [10, 18] are
DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff is granted leave to file an amended
complaint within twenty (20) days from the date of this Order. Failure to comply with this
Court’s Order will result in the dismissal of Plaintiff’s action.

Dated this 8th day of February, 2013.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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