McGee v. Donahoe

Filing 166

ORDER granting in part and denying in part ECF No. 106 Motion to Dismiss. Signed by Judge Richard F. Boulware, II on 10/10/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LOLA MCGEE,

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Plaintiff,

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Case No. 2:13-cv-01426-RFB-VCF

v.

ORDER
Defendant’s Motions to Dismiss (ECF No.
106)

PATRICK R. DONAHOE, et al.

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Defendants.

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I.

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This case is before the Court on a renewed Motion to Dismiss (ECF No. 106) filed by

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Defendant USPS Postmaster General Megan J. Brennan.
For the reasons stated below, the Motion to Dismiss is GRANTED in part and DENIED in

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INTRODUCTION

part.
II.

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BACKGROUND

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McGee raises the following claims in her Amended Complaint (ECF No. 8), against the

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Postmaster General and against individual Defendant employees of the United States Postal

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Service (USPS), in their official capacities: a.) a hostile work environment claim based on race

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discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; b.) a race

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discrimination claim under Title VII; c.) a race discrimination claim under, 42 U.S.C. § 1981; d.)

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a gender discrimination claim under Title VII; e.) an Age Discrimination in Employment Act

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(ADEA) claim, 29 U.S.C. § 62 et seq.; f.) a retaliation claim under Title VII; and g.) a disability

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discrimination claim under the Rehabilitation Act, 29 U.S.C. § 794.

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III.

FACTUAL ALLEGATIONS

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The following factual allegations are taken from Plaintiff’s complaint. Lola McGee is an

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African-American woman and is a former federal employee with over 11 years of federal

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employment. Most recently, McGee worked at the USPS as a Supervisor and Acting Manager in

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Customer Service. On September 10, 2009, following alleged discrimination by the USPS, Ms.

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McGee was allegedly forced into medical disability retirement.

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McGee alleges that she suffers from major depression, post-traumatic stress disorder,

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anxiety disorder, panic disorder, and peripheral sensory neuropathy. McGee claims that various

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employees and supervisors at the USPS retaliated and discriminated against her from

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approximately 2004 to 2009 based on her disability, race, age, and gender. As a result, McGee

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suffered emotional distress and adverse health consequences.

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In this case, the Court ordered limited jurisdictional discovery to determine whether

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equitable tolling should apply to McGee’s claims, in response to Defendant’s original Motion to

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Dismiss which argued lack of subject matter jurisdiction. See Young v. U.S., 769 F.3d 1047, 1052

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(9th Cir. 2014) (“Allegations of jurisdictional facts . . . are not afforded presumptive truthfulness;

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on a motion to dismiss for lack of subject matter jurisdiction, the court may hear evidence of those

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facts and resolve factual disputes where necessary.”) (citations and quotation marks omitted).; see

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also Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008) (“[Jurisdictional discovery] may

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be appropriately granted where pertinent facts bearing on the question of jurisdiction are

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controverted or where a more satisfactory showing of the facts is necessary.”) (citations and

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internal quotation marks omitted). The Court finds the following facts to be undisputed, based on

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this jurisdictional discovery:

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On November 1, 2008, McGee filed her first EEO complaint, in which she alleged

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various counts of discrimination and workplace retaliation dating back to 2005.

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The National EEO Investigative Services Office (NEEOISO) of USPS dismissed

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all claims occurring prior to July 10, 2008, as untimely. Plaintiff’s remaining

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claims were for harassment and hostile work environment, charging of sick leave

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hours, and non-selection for a managerial position. On August 11, 2009,

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NEEOISO issued its Final Agency Decision, finding no discrimination regarding

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the 2008 complaint.

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On May 27, 2009, Plaintiff filed a second EEO complaint, alleging discrimination

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based on sex, physical and mental disability, and retaliation for denial of a lateral

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transfer requested on April 9, 2009. On October 21, 2009, the NEEOISO issued a

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Final Agency Decision finding no discrimination regarding the 2009 complaint.

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within thirty days, but did not file appeals.

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McGee was advised, in each final decision, of her right to appeal the EEO decisions

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Between August 2009 and August 2011, McGee sent fifteen letters related to or

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regarding her claims against the USPS, to various parties, including the NEEOISO,

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her district manager, and Senator Harry Reid’s office.

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almost two years past the 30-day deadline to appeal.

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McGee filed her appeal of the 2008 and 2009 EEO decisions on September 6, 2011,

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On November 9, 2012, the EEOC dismissed McGee’s appeal, finding that it was

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untimely filed. The EEOC noted that McGee had argued that the reason for her

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delay was because she was “severely ill and in mental turmoil.” However, the

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EEOC found that this explanation was too general to justify a finding of

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incapacitation that would allow an untimely appeal.

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On December 4, 2012, McGee requested reconsideration of the EEOC’s denial of

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her appeal. On reconsideration, McGee argued that her mental state was very

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debilitating, and that she was unable to keep up with her appeals. She provided a

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letter from her treating psychiatrist dated November 20, 2012, in which the

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psychiatrist states that McGee had been his patient since May 5, 2010. The

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psychiatrist’s letter stated that McGee was unable to file her appeal because of her

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depression.

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On May 31, 2013, the EEOC denied McGee’s request for reconsideration. The

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EEOC found that McGee had not shown that she was so incapacitated by her

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condition that she was unable to meet the time limits. The EEOC relied on the fact

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that McGee had sent letters to the USPS and the USPS’ National Equal

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Employment Office on September 12, 2009, November 11, 2009, and October 5,

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2010, which the EEOC said demonstrated that she was capable of addressing her

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discrimination claims during that period.

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McGee filed her federal complaint on August 8, 2013 (ECF No. 1), and filed her Amended

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Complaint on February 26, 2014. (ECF No. 8). Federal Defendant filed a Motion to Dismiss on

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July 28, 2014, arguing that McGee’s Complaint should be dismissed because she had not

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exhausted her administrative remedies and the Court therefore lacks subject matter jurisdiction

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over the case. (ECF No. 18). On September 11, 2015, the Court held a hearing on the Motion to

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Dismiss and denied it without prejudice, to allow the parties to engage in limited discovery

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addressing what claims Plaintiff previously raised in filings with the EEOC, and whether equitable

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tolling should be applied to Plaintiff’s delayed filings of appeals to the EEOC rulings. (ECF No.

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57). Federal Defendant renewed its Motion to Dismiss on May 16, 2016. (ECF No. 106). McGee

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filed her Response on August 5, 2016. (ECF No. 136). Defendant filed a Reply on August 15,

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2016. (ECF No. 138). The Court held a hearing on the renewed Motion to Dismiss on December

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19, 2016. (ECF No. 144).

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III.

LEGAL STANDARD
A. Motion to Dismiss

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An initial pleading must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The court may dismiss a complaint for failing to

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state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a motion to

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dismiss, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and

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are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Sec. Servs.,

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Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted).

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To survive a motion to dismiss, a complaint need not contain “detailed factual allegations,”

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but merely asserting “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause

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of action’” is not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it

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contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

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face,” meaning that the court can reasonably infer “that the defendant is liable for the misconduct

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alleged.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In sum, at the

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motion to dismiss stage, “[t]he issue is not whether a plaintiff will ultimately prevail but whether

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[he] is entitled to offer evidence to support the claims.” Cervantes v. City of San Diego, 5 F.3d

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1273, 1274-75 (9th Cir. 1993) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (emphasis

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in original).

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“As a general rule, a district court may not consider any material beyond the pleadings in

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ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)

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(citation and internal quotation marks omitted). If the district court relies on materials outside the

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pleadings submitted by either party to the motion to dismiss, the motion must be treated as a Rule

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56 motion for summary judgment. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). Two

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exceptions to this rule exist. First, the court may consider extrinsic material “properly submitted

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as part of the complaint,” meaning documents either attached to the complaint or upon which the

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plaintiff’s complaint necessarily relies and for which authenticity is not in question. Lee, 250 F.3d

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at 688 (citation omitted). Second, the court “may take judicial notice of matters of public record.”

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Id. (citation and internal quotation marks omitted).

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IV.

DISCUSSION – MOTION TO DISMISS
A. Failure to Administratively Raise Claims

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Defendant first argues that McGee failed to exhaust administrative claims not specifically

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addressed in her 2008 and 2009 EEO Complaints. The 2008 EEO Final Agency Decision stated

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that it investigated and dismissed the following allegations: “From July 12, 2008, the complainant

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has been subjected to hostile work environment harassment regarding working conditions, taken

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off higher level details assignments, treated in a disrespectful, cruel, and rude manner, and received

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threats from management officials. On or around September 8, 2008, the complainant became

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aware that she had been charged 32 hours of sick leave. Since July 12, 2008 the complainant has

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not been selected for the position of Manager, Customer Services, and on December 9, 2008, the

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complainant was informed that she was not selected for the Manager’s position at King’s Station.

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The complainant has not been paid higher level pay since August 22, 2008. During December

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2008, Management requested that complainant’s badge access . . . be removed.” (ECF No. 106-1,

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at 4).

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The 2009 EEO final agency decision states that it investigated and dismissed the following

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allegations: discrimination based on sex, retaliation for prior EEO activity, physical disability, and

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mental disability, when on or around April 8, 2009, complainant was denied a lateral transfer to

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the city of Las Vegas and sent back to North Las Vegas. (ECF No. 106-1, at 62.)

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Defendant does not specifically articulate which of McGee’s claims, as alleged in the

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Amended Complaint, were not raised in her administrative complaints. “[S]ubstantial compliance

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with the presentment of discrimination complaints to an appropriate administrative agency is a

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jurisdictional prerequisite.” Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001)

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(emphasis in original). However, “The district court has jurisdiction over any charges of

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discrimination that are ‘like or reasonably related’ to the allegations in the EEOC charge, or that

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fall within the ‘EEOC investigation which can reasonably be expected to grow out of the charge

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of discrimination.” Id. (citing Deppe v. United Airlines, 217 F.3d 1262, 1267 (9th Cir. 2000)).

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The Court finds that all of McGee’s claims are “like or reasonably related” to the

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allegations in McGee’s EEOC charges, and that the claims therefore do not fail on the basis of not

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having been raised at the administrative level. However, the Court now proceeds to an analysis of

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whether those claims were properly administratively exhausted.

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B. Administrative Exhaustion and Time Barring – Title VII and Rehabilitation
Act Claims
i. Legal Standard

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“In order to bring a Title VII claim in district court, a plaintiff must first exhaust her

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administrative remedies.” Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001) (citations

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omitted). “[A]bandonment or failure to cooperate in the administrative process prevents

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exhaustion and precludes judicial review.” Id. at 708. In order to file a Rehabilitation Act lawsuit,

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a plaintiff must also file a discrimination charge with the EEOC. 42 U.S.C. § 12117(a); 42 U.S.C.

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2000(e)-16. Rehabilitation Act claims are analyzed under the same law as Title VII claims. See

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Lopez v. Johnson, 333 F.3d 959, 961 (9th Cir. 2003).
ii. Analysis

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Defendant argues that McGee’s claims are time barred, because she did not file her civil

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action within 90 days of the USPS’ final decision on her EEO claims, nor did she timely appeal

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those decisions.

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In issuing its final agency decisions in 2009, NEEIOSO advised McGee that she had the

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right to appeal the final decisions within 30 calendar days of receipt of the decisions, or

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alternatively, to file a civil action within 90 calendar days of receipt of the decisions. McGee failed

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to timely appeal or file a civil action within the limitations period. On August 11, 2009, NEEOISO

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issued its Final Agency Decision as to McGee’s 2008 complaint, finding no discrimination. On

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October 21, 2009, the NEEOISO issued a Final Agency Decision as to McGee’s 2009 complaint,

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finding no discrimination. McGee filed her appeal of the 2008 and 2009 EEO complaint decisions

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on September 6, 2011, almost two years past the 30-day deadline to appeal. Therefore, McGee’s

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Title VII and Rehabilitation Act claims have been brought outside of the statute of limitations.

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McGee has requested that the Court equitably toll the statute of limitations from October

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A final decision on that appeal was issued on May 31, 2013, and Plaintiff filed her federal

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complaint on August 8, 2013, within 90 days of that final decision on appeal. Generally, a litigant

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seeking equitable tolling bears the burden of establishing two elements: (1) that he has been

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pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. See

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Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The “invocation of the equitable tolling doctrine

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is not appropriate in cases in which the litigant has failed to meet a deadline as a result of ‘garden

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variety’ neglect.” Washington v. Garrett, 10 F.3d 1421, 1437 (9th Cir. 1993).

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Plaintiff argues that she was incapacitated by illness and unable to file her appeal until

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September 2011. Jurisdictional discovery was conducted in this case, and the record reflects that

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during the time of McGee’s alleged incapacitation, in July 2010, her treating doctor, Dr. Reed,

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provided a Psychiatric/Psychological Impairment Questionnaire in response to a request from her

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attorneys. In that questionnaire, in response to the question, “Can your patient manage benefits in

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his or her own best interest?,” Dr. Reed answered, “Yes.” Dr. Reed testified in her deposition that

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Plaintiff was incapable of taking care of her personal needs “during the time when she was going

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through the panic attacks, was hospitalized for the heart palpitations . . . they was ruling out if she

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had a heart attack, ruling out if she had a stroke . . . .” (ECF No. 106-3 at 19). McGee was

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hospitalized in April 2009. In her deposition, Dr. Reed states that as of August 2010, she believed

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McGee was capable of managing benefits in her own best interest. Dr. Reed wrote a letter on June

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24, 2013, at McGee’s behest, stating that McGee had been incapable of filing timely appeals

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because of her condition; however, this letter was written four years after Dr. Reed had last treated

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McGee.

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McGee has submitted a notarized letter from May 2016, from Dr. Rick Jenkins, a treating

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physician, who states that in his professional medical opinion, McGee was incapacitated during

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2009-2011, due to Post Traumatic Stress Disorder (PTSD) and depression. (ECF No. 136-4).

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However, according to Dr. Jenkins’ deposition, he did not begin treating McGee until May 2010.

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(ECF No. 106-4).

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The record reflects that McGee filed an “Intent to Sue” letter on October 5, 2010, with the

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EEOC. On August 4, 2009, she sent a letter to Harry Reid’s office requesting assistance related to

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her allegations against USPS. On September 12, 2009, she sent a letter to NEEOISO requesting a

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Final Agency Decision regarding her 2009 EEO complaint. On September 22, 2009, she sent a

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letter to her district manager advising him that she was giving herself a retirement party, and

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requesting that the invitation be emailed and posted. On November 11, 2009, she sent a letter to

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NEEIOSO, advising them that she had received the Final Agency Decision regarding her 2008

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EEO complaint, and notifying them that she had legal representation. On December 9, 2009,

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McGee sent a letter to the U.S. Department of Labor, advising them of her change of address and

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requesting a correction of her job title. On July 1, 2010, McGee sent a six-page letter to the Office

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of Workers’ Compensation Programs, in which she described her issues and claims against USPS

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in detail.

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Based on its review of the evidence submitted with the motions in this case, pursuant to

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jurisdictional discovery, the Court will not equitably toll the statute of limitations for the entire

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period between the 2009 Final Agency Decisions, and the 2011 filing of McGee’s appeal of those

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decisions. The Court does not credit the opinions of Dr. Jenkins as to McGee’s condition prior to

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May 2010, which is when he began treating McGee. The Court also does not credit Dr. Reed’s

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evaluation as to McGee’s condition during the relevant time period, as Dr. Reed discontinued

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treating McGee in April 2009. During the relevant time period, McGee submitted many letters to

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federal officials and agencies regarding her case and claims, including an Intent to Sue letter in

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2010. Therefore, the Court finds that McGee was capable of appealing her EEO decisions sooner

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than September 2011. Although the statute of limitations may have been equitably tolled due to

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extraordinary circumstances during some of the intervening period between her 2009 denial and

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her 2011 appeal, due to McGee’s suffering from PTSD and depression, McGee was not precluded

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by extraordinary circumstances throughout this entire period from filing an appeal. Short of

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equitably tolling the statute of limitations during that entire intervening period, McGee’s Title VII

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and Rehabilitation Act claims are precluded by the statute of limitations. Therefore, McGee’s Title

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VII and Rehabilitation Act claims are dismissed with prejudice.

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C. Administrative Exhaustion and Time Barring – ADEA and Section 1981
Claim
i. Legal Standard

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“Unlike Title VII of the Civil Rights Act . . . the ADEA contains no express requirement

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that a federal employee complainant seek administrative relief . . . except that an employee who

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wishes to file suit without pursuing administrative remedies must give the EEOC notice of intent

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to sue at least 30 days before filing suit.” Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003)

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(internal citation marks and quotations omitted).

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ii. Analysis

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Defendants have generally argued that all of McGee’s claims are time barred, due to her

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untimely filing of her administrative appeal. However, they have not raised a specific argument

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regarding McGee’s ADEA claim, nor regarding her Section 1981 claim. Whereas Title VII and

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ADA claims require administrative exhaustion, and have specific statutory time limits for litigation

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based on administrative exhaustion, Defendants have raised no law, and the Court is not aware of

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any, that requires administrative exhaustion of ADEA claims or Section 1981 claims. McGee sent

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an Intent to Sue letter to the EEOC on October 5, 2010. While the Ninth Circuit has held, in cases

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when there are simultaneous administrative and judicial proceedings, that for prudential reasons,

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plaintiffs were required to exhaust their administrative remedies, it specifically declined to apply

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such a rule in a case where there were no administrative remedies pending. Bankston, 345 F.3d at

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777.
Therefore, the Court rejects this argument as to McGee’s ADEA discrimination and

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Section 1981 race discrimination claims, and allows those claims to proceed.

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V.

CONCLUSION

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Accordingly, Motion to Dismiss (ECF No. 106) is GRANTED as to Plaintiff’s Title VII

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and Rehabilitation Act claims, and DENIED as to Plaintiff’s claims under the ADEA and 42

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U.S.C. § 1981.

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DATED this 10th day of October, 2017.

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__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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