Scott v. Donahoe et al

Filing 31

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for Reconsideration 26 is DENIED. IT IS FURTHER ORDERED that Defendants renewed Motion to Dismiss 27 is GRANTED. A separate Order of Dismissal accompanies this Memorandum and Order.. Signed by District Judge John A. Ross on 4/16/13. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KENNEDY SCOTT,
Plaintiff,
v.
PATRICK R. DONAHOE, Postmaster
General,
Defendant.

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No. 4:12-CV-968-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion for Reconsideration [ECF No. 26]
and Defendant’s renewed Motion to Dismiss. [ECF No. 27]
I. Background
Plaintiff filed this action against his employer, the United States Postal Service
(“USPS”), and his union, by naming Bernard Feder, CEO of the American Postal Workers
Union, in state court 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). On May 29, 2012, USPS removed the case to this Court and on October 4, 2012, moved to
dismiss under Rules 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and failure to
state a claim. On its review of the record, the Court noted the file contained no proof of service
on, or entry of appearance on behalf of Defendant Feder. On October 29, 2012, the Court
ordered Plaintiff to show cause why this action should not be dismissed as to Defendant Feder.
Plaintiff did not respond to the Court’s order.
On November 7, 2012, Plaintiff moved to remand the case to state court. On February 8,

2013, the Court determined the case was properly removed and denied Plaintiff’s motion. (Doc.
No. 22) The Court denied Defendant’s motion to dismiss without prejudice and granted Plaintiff
an additional twenty days to file an amended complaint. (Id.) The Court also ordered this action
dismissed without prejudice as to Defendant Feder for lack of timely service. (Doc. No. 23) On
February 27, 2013, the Court on Plaintiff’s motion granted Plaintiff an additional seven days to
file an amended complaint. (Doc. No. 25)
Instead of filing an amended complaint, Plaintiff filed the instant motion for
reconsideration, asking the Court to reconsider its Orders dated February 8, 2013 denying his
motion to remand and dismissing the Postal Union as a party defendant. In response, Defendant
renewed his motion to dismiss. Plaintiff then filed a pleading captioned “Proof of Exhaustion of
Administrative Remedies” requesting the Court deny Defendant’s motion to dismiss, remand the
action to state court, or in the alternative, grant him leave to amend his complaint. (Doc. No. 29)
Defendant filed a response in opposition to Plaintiff’s Proof of Exhaustion of Administrative
Remedies. (Doc. No. 30)
II. Discussion
A. Plaintiff’s motion for reconsideration
In support of his motion, Plaintiff first argues the case must be remanded because his
action does not present a federal question. (Doc. No. 26, p. 6) Pursuant to 28 U.S.C. § 1442(a),
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 States for the district and division embracing the place wherein it is pending . . . .”
Moreover, under the Postal Reorganization Act, 39 U.S.C. § 409(a) (“PRA”), actions brought

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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). The Court
finds no error in its ruling that this case was properly removed.
In addition, Plaintiff contends that federal law does not preempt his claims, citing United
States v. Quick International Courier, Inc., 131 F.3d 770 (8th Cir. 1997). Quick was an action
under the False Claims Act, 31 U.S.C. § 3729 (a)(7), brought by the United States against a mail
courier service. The case did not involve an appointed federal employee. For this reason,
Plaintiff’s reliance on Quick is misplaced.
In further support of his motion, Plaintiff argues the Court erred in concluding that the
Postal Union was not properly joined as a party, and cites the federal rule relating to compulsory
joinder, Fed.R.Civ.P. 19. (Doc. No. 26, p. 7) The Court did not address the issue of joinder in its
previous order. Feder was dismissed as a party after Plaintiff failed to respond to the Court’s
order to show cause why the action should not be dismissed as to Feder for lack of timely
service. (Doc. No. 23)
Finally, Plaintiff contends this Court agreed with Defendant’s position that any request
for a jury trial by Plaintiff was forfeited upon removal. (Doc. No. 26, p. 8) The Court has
carefully reviewed its decision and Defendant’s briefing and finds that no such position was
asserted by Defendant and no such ruling was made.
“Motions for reconsideration serve a limited function: to correct manifest errors of law or
fact or to present newly discovered evidence.” Williams v. U.S., 2005 WL 2063964, at *1
(E.D.Mo. Aug. 24, 2005) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 414 (8th
Cir.1988)). Because Plaintiff’s motion does not set forth any manifest error of law or fact, or

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present any newly discovered evidence, the Court finds that reconsideration of its previous
decision is unwarranted and Plaintiff’s motion for reconsideration will be denied.
B. Defendant’s renewed motion to dismiss
In support of his renewed motion, Defendant again argues that Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq., preempts Plaintiff’s claims of
racial discrimination (Counts I, III and IV). (Doc. No. 27, p. 1; Doc. No. 11, p. 5) 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. (Id.) Alternatively, Defendant
argues that even if Count I and Count IV cannot be construed to allege discrimination based on
race, Plaintiff’s claims still fail because (i) Plaintiff, as an appointed employee, cannot maintain
an action for breach of employment contract; and (ii) the PRA preempts negligence per se and
does not provide a statutory right of review. (Id.; Doc. No. 11, pp. 11-12) Finally, Defendant
argues the PRA also preempts Plaintiff’s employee incentive program claims in Count II because
they involve labor disputes outside the jurisdiction of the federal courts. (Id.; Doc. No. 11, p. 13)
Plaintiff has not responded to Defendant’s motion with respect to these claims.
Therefore, the Court finds Plaintiff has abandoned these claims. See Semi-Materials Co., Ltd. v
MEMC Electronic Materials, Inc., 2011 WL 134078, at *4 (Jan. 10, 2011) (court construed
plaintiff’s failure to respond to argument raised in motion to exclude as abandonment of intent to
introduce opinion). See also Culkin v. Walgreen Co., 2006 WL 839195, at *1 (E.D.Mo. Mar. 27,
2006) (court assumed plaintiff abandoned claims not addressed in opposition to defendant's
motion to dismiss); United States v. NHC Health Care Corp., 163 F.Supp.2d 1051, 1058-59
(W.D.Mo.2001) (court assumed plaintiff abandoned claims not addressed in opposition to
defendant's motion for summary judgment). Even if Plaintiff’s claims were not abandoned,
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however, they would fail on the merits. Under the PRA and the collective bargaining agreement
between his union and the USPS, Plaintiff was provided access to grievance procedures for his
claim. As an appointed employee, he cannot supplement the federal protections afforded by
Congress with a claim for breach of employment contract. See Sisley v. Leyendecker, 260 F.3d
849, 851 (8th Cir. 2001). Moreover, the PRA preempts his claims for negligence per se and
breach of an incentive program contract. Biermann v. United States, 67 F.Supp.2d 1057, 1062
(E.D. Mo. 1999); Hill v. Potter, 2010 WL 4450405, at *5 (C.D. Cal. Oct. 29, 2010).
In response to Defendant’s renewed motion to dismiss, Plaintiff filed a Proof of
Exhaustion of Administrative Remedies. (Doc. No. 29) None of the documents attached to
Plaintiff’s filing establishes that he exhausted his administrative remedies as to his
discrimination claims against Defendant. At most, the documents demonstrate that Plaintiff
contacted a USPS EEO counselor, which Defendant concedes. (Doc. No. 30, p. 2)
29 C.F.R. § 1614.105-110 describes in detail the procedure federal employees must
follow in bringing an employment discrimination claim. No court has jurisdiction over a federal
employee discrimination claim unless and until the plaintiff has fully exhausted his
administrative remedies. Burkett v. Glickman, 327 F.3d 658, 660 (8th Cir. 2003). See also 42
USC § 2000e-16(c). Specifically, a postal employee must initiate contact with the EEO
counselor for the USPS within 45 days of an alleged discriminatory incident. 29 C.F.R. §
1614.105(a)(1). If dissatisfied with the result obtained with the help of the Counselor, the
employee may, within certain time limits, file a formal complaint with the USPS. 29 C.F.R. §
1614.106. As a federal agency, the USPS has a duty to investigate the complaint, provide a
hearing, and fulfill other administrative requirements. 29 C.F.R. § 1614.106-110. Once the
agency has taken final action, the employee may appeal the decision to the EEOC, 29 C.F.R. §
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1614.110, or alternatively, file a civil action in federal district court, within 90 days of receiving
the final agency action. 42 U.S.C. 2000e-16(c).
Here, Plaintiff contacted the Equal Employment Opportunity (EEO) office on October
26, 2010. (Declaration of Stacy N. Beck (“Beck Decl.”), Doc. No. 10-1, ¶ 3) He claimed he
knew on September 1, 2010, that the USPS was allegedly promoting ineligible white employees.
(Id., ¶ 4). The EEOC rejected Plaintiff’s claim and provided him with his Notice of his Right to
File an Individual Complaint on January 10, 2011. On January 24, 2011, Plaintiff filed his formal
EEO complaint alleging that USPS promoted Mr. Martin Jamison, a white male, in June 2010
and July 2010, despite the fact that Jamison failed the same exam. (Id., ¶¶ 4, 6; Doc. No. 10-3).
The EEO investigated Plaintiff’s complaint and on February 9, 2011, issued its final agency
action dismissing Plaintiff’s complaint for failure to timely initiate contact with the EEO. (Id., ¶
7; Doc. No. 10-4). The final agency action also notified Plaintiff that he needed to challenge the
decision, if at all, by filing “a civil action in an appropriate U.S. District Court within 90
calendar days of [his] receipt of [the] decision.” (Id.) Plaintiff received the final agency action on
February 12, 2011. (Id.) Plaintiff never filed his action in federal court; rather, he sued in the
City of St. Louis Circuit Court on April 27, 2012, almost 440 days after the agency’s final
agency action, and 437 days after he received the final agency action. Therefore, Plaintiff’s
discrimination claims are time-barred and will be dismissed for failure to timely exhaust his
administrative remedies.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Reconsideration [26] is
DENIED.
IT IS FURTHER ORDERED that Defendant’s renewed Motion to Dismiss [27] is
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GRANTED. A separate Order of Dismissal accompanies this Memorandum and Order.

Dated this 16th day of April, 2013.

_______________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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