MARLEY v. DONAHUE et al
Filing
25
OPINION. Signed by Chief Judge Jerome B. Simandle on 9/23/2015. (dmr)(n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MARY-ELLEN MARLEY,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
Civil No. 14-1597 (JBS/JS)
v.
PATRICK R. DONAHUE, POSTMASTER
GENERAL OF THE UNITED STATES
POSTAL SERVICE, and THE UNITED
STATES POSTAL SERVICE,
OPINION
Defendants.
APPEARANCES:
Mary-Ellen Marley, pro se
14 Hillside Ave.
Westville, N.J. 08093
Anne B. Taylor, Assistant U.S. Attorney
U.S. ATTORNEY’S OFFICE
401 Market Street
P.O. Box 2098
Camden, N.J. 08101
Attorney for Defendants
SIMANDLE, Chief Judge:
INTRODUCTION
In this employment discrimination and retaliation
litigation, pro se Plaintiff, Mary-Ellen Marley (hereinafter,
“Plaintiff”), generally alleges that her longtime former federal
employer, the United States Postal Service (hereinafter,
“Defendants” or the “Postal Service”) engaged in an array of
discriminatory, retaliatory, and otherwise unlawful conduct
during the final six years of her employment with the Postal
Service.
(See generally Compl.)
Indeed, Plaintiff’s over 800
page Complaint points to a laundry list of alleged instances and
prior Equal Employment Opportunity proceedings,1 arising from her
continual charges of workplace misconduct. (See generally id.)
Plaintiff’s 10-count Complaint alleges, in particular, that
the Postal Service: (1) subjected her to a hostile and abusive
work environment in violation of Title VII, the Rehabilitation
Act, and the Age Discrimination in Employment Act (hereinafter,
“Count I”); (2) engaged in ultra vires conduct (hereinafter,
“Count II”); (3) violated her constitutional right to privacy
(hereinafter, “Count III”); (4) infringed upon her Fourth
Amendment Rights in violation 42 U.S.C. § 1983 (hereinafter,
“Count IV”); (5) committed mail fraud in violation 18 U.S.C. §
1341 (hereinafter, “Count V”); (6) violated the Family Medical
Leave Act and the Americans with Disabilities Act (hereinafter,
“Count VI”); (7) infringed upon her First Amendment Rights in
violation 42 U.S.C. § 1983 (hereinafter, “Count VII”); (8)
violated the Equal Protection Clause (hereinafter, “Count
VIII”); (9) subjected her to reprisal in retaliation for
engaging in protected activities (hereinafter, “Count IX); and
1
Indeed, between 2007 and 2009, Plaintiff initiated EEO
proceedings on eight separate occasions: 4C-080-0020-07, 4C-0800029-07, 4C-080-0057-07, 4C-080-0080-07, 4C-080-0024-08, 4C-0800065-08, 4C-080-0015-09, 4C-080-0096-09. (See Compl. at 11 ¶
11.)
2
(10) violated the Rehabilitation Act (hereinafter, “Count X”).
(See generally id.)
The Postal Service now moves to dismiss all of Plaintiff’s
claims [see Docket Item 20], except for that of retaliation
arising out of discipline imposed in 2009, on the grounds that
Plaintiff failed to first exhaust administrative remedies, and
because many of Plaintiff’s claims fail to be cognizable as
independent causes of actions (or, indeed, even a cause of
action at all), and/or are untimely.2
(Defs.’ Br. at 8-18.)
Plaintiff, for her part, largely provides no response to the
Postal Service’s substantive challenges to the viability of her
claims (see generally Pl.’s Opp’n), and instead reiterates her
lengthy recitation of the underlying events, but ultimately
concedes that the present suit deals only with claims “brought
forth on August 24, 2009.”
(Pl.’s Sur-reply at 1.)
2
Defendants also move to dismiss the United States Postal
Service, on the grounds that the head of the Postal Service,
Patrick R. Donahue, amounts to the only cognizable Defendant.
In an employment action against the Postal Service, the
Postmaster General—here, Mr. Donahue—constitutes the only proper
Defendant. See 42 U.S.C. § 2000e-16(c) (generally noting that a
federal employee who files a civil action alleging employment
discrimination must name only the head of the department, agency
or unit as the defendant, and not specific supervisors and/or
the entity itself); Kirkland v. Runyon, 876 F. Supp. 941, 943 n.
1 (S.D. Ohio 1995) (substituting the Postmaster General as the
sole party defendant). Defendants’ motion will, accordingly, be
granted in this respect, and the United States Postal Service
will be dismissed from this action and terminated from the
docket.
3
For the reasons that follow, the Postal Service’s motion to
dismiss will be granted, and all Counts of Plaintiff’s Complaint
will be dismissed in their entirety with prejudice, except for
Count IX, a Title VII claim for retaliation arising out of
actions taken and discipline imposed by the Postal Service in
the late summer and fall of 2009.
BACKGROUND
Factual and Procedural Background3
Plaintiff started her thirty-year postal career on November
29, 1980 at the Post Office in Sewell, New Jersey, and served
seemingly without incident for nearly twenty-five years.4
Compl. at 33-35.)
(See
Indeed, from November 1980 until March 2005,
Plaintiff received favorable commendations for her performance
and multiple advancements, including a promotion to Safety
Director of the Sewell Facility.
(See id., see also Exs. 60-62
3
For purposes of the pending motion, the Court accepts as true
the version of events set forth in Plaintiff’s Complaint, and
construes Plaintiff’s pleading, as it must, liberally. See
Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011)
(describing the liberal construction required of pro se
submissions); Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184
(3d Cir. 2009) (per curiam) (same).
4 As stated above, Plaintiff’s Complaint, together with its
exhibits, spans over 800 pages, and includes employment history
immaterial to the claims she has presently asserted. The
density of Plaintiff’s submissions makes it difficult to discern
every detail of the allegedly unlawful conduct. Nevertheless,
the Court has, upon careful inspection of the voluminous record,
culled the salient details from Plaintiff’s pleading, with an
eye towards providing a comprehensive yet abbreviated recitation
of the essential allegations.
4
to Compl.)
Thereafter, however, Plaintiff claims that the
Postal Service subjected her an array of harassment and
disparate treatment, in retaliation for “‘whistle blowing’ on
the higher Management in the [Sewell] Post Offce.”
(Compl. at
42 ¶ 41.)
Plaintiff’s employment problems, as alleged, specifically
appear to have begun in 2005, following an internal
investigation into the conduct of then-Postmaster, Evelyn
Hunley.
(Id. at 35 ¶ 11.)
In connection with the
investigation, Plaintiff provided “truthful[]” testimony, but
disclosed information “not” in Ms. Hunley’s “favor.”
¶ 11.)
(Id. at 35
She informed investigators, in particular, that Ms.
Hunley “peddl[ed]” her own business while on Postal Service time
by selling “Pre-Paid Legal out of the Sewell Post Office
Facility” in violation of “Postal Policy.”
(Id.; see also Ex.
68 to Compl.)
Shortly thereafter, Postal Service management, and
specifically Ms. Hunley, allegedly subjected her to an array of
retaliatory conduct for her “‘whistleblower’ comments,”
including dismissing her from the Safety Director position,
denying numerous requests for overtime, and constantly
scrutinizing her job performance.
26, 39 ¶ 31, 40.)
(Compl. at 36 ¶¶ 15-16, 38 ¶
In addition, the Postal Service imposed
formal discipline against her on two occasions: first for
5
accruing overtime without prior authorization from management
(see Ex. 64 to Compl.), and then for “experienc[ing] an at-fault
motor vehicle accident.”
(Ex. 66 to Compl.)
The first resulted
in the issuance of a written warning, while the second led to
the imposition of a seven (7) day “no-time-off suspension.”
(Id.)
Then, on November 28, 2005, Plaintiff received a “14
calendar day no-time-off suspension” for violating the Postal
Service’s “Standards of Conduct.”
Ex. 68 to Compl.)
(Compl. at 40 ¶ 34; see also
The suspension charged her, in particular,
with becoming disruptive, raising her voice, and acting in a
threatening manner towards her supervisor, during a conversation
that occurred on November 10, 2005.
¶ 35; see also Ex. 69 to Compl.)
(See Compl. at 39 ¶ 30, 40
Following issuance of the
suspension, Plaintiff challenged the suspension under the Postal
Service’s grievance procedures (see Ex. 69 to Compl.), claiming
that management “singled [her] out ... as a form of retaliation
for her adverse comments/statements regarding the Sewell Post
Office Management/Postmaster/Supervisor.”
see also Ex. 70 to Compl.)
(Compl. at 42 ¶ 40;
After her supervisor denied her
review at the initial stage of the grievance proceeding, the
Dispute Resolution Team “expunged” the suspension during a
subsequent review, reasoning that management lacked “just cause
to issue the 14-day suspension.”
(Ex. 70 to Compl.)
6
In the following year, Plaintiff approached the Officer-inCharge of the Sewell facility, with allegations that another
supervisor, Tony Tropiano, sexually harassed her.
42 ¶ 43.)
(See id. at
Rather than offer Plaintiff assistance, however, the
Management of the Sewell Facility allegedly retaliated against
her by subjecting her to various work evaluations, issuing
various warning letters for “UNSATISFACTORY JOB
PERFORMANCE/FAILURE TO FOLLOW INSTRUCTIONS,” and ultimately
referring her to an Employee Assistance Program Counselor to
discuss her alleged alcoholism.
(See id. at 45 ¶¶ 51-82
(emphasis in original); see also Ex. 72 to Compl.)
As a result,
Plaintiff claims that the stress and anxiety of the “hostile
[work] environment” in the Sewell Facility plagued her
throughout 2006.
(Compl. at 50 ¶ 65; see also Ex. 73 to Compl.)
Indeed, Plaintiff filed a workers’ compensation Claim for
“‘stress and anxiety caused by harassment [on] the job.’”
73 to Compl.)
(Ex.
On January 4, 2007, however, the U.S. Department
of Labor denied her claim for compensation benefits, on the
basis that she failed to demonstrate “a medical condition caused
or aggravated by compensable factors of employment.”
Compl.; see also Compl. at 54 ¶ 82.)
(Ex. A to
In support of its denial,
the Department of Labor acknowledged Plaintiff’s complaints of
workplace abuse and misconduct, but found no “supportive
evidence” to buttress her assertions, and deemed Plaintiff’s
7
“emotional reaction” (i.e., stress and anxiety) to the otherwise
“proper” actions of management “self-generated” and “not
compensable” through the workers’ compensation scheme.
(Ex. A
to Compl.)
Following the adverse workers’ compensation decision,
Plaintiff filed an Equal Employment Opportunity (hereinafter,
“EEO” or “EEOC”) Complaint on February 27, 2007, alleging that
she had been denied workers’ Compensation on account of her sex,
age, and mental disability.5
90.)
(Ex. D to Compl.; Compl. at 56 ¶
The agency, however, deemed her EEO Complaint as an
improper “collateral attack” on the Department of Labor’s
workers’ compensation decision, and dismissed the Complaint on
5
The EEO complaint process involves both the federal agency
involved the discrimination and the Equal Employment Opportunity
Commission (hereinafter, the “EEOC”). The “federal agency in
which the employment discrimination complaint arose”
specifically handles “the complaint at the counseling, formal
complaint, and investigation stages of the complaint process,”
while the EEOC becomes involved in the process at the hearing
stages and after investigation by “providing administrative
judges to conduct hearings, and at the appeals stage by deciding
appeals from final agency decisions and agency final actions.”
(Ex. G to Compl.) A decision upon an appeal, if affirmed on
reconsideration, results in a complainant’s right to file a
civil action within a specified period, and constitutes the
final step of full administrative exhaustion. For present
purposes, the Court notes, at the outset and as explained in
greater detail below, that Plaintiff’s own submissions make
clear that she received a right to sue letter on three
occasions: June 21, 2007, August 13, 2007 (following
reconsideration), and December 13, 2013 (see Exs. D & 58 to
Compl.), with the latter specifically spawning the pending
litigation (and the others having expired without action from
Plaintiff).
8
March 16, 2007 for failure to state a claim (but advised
Plaintiff of her right to file suit in an appropriate federal
forum).
(Ex. D to Compl.)
On appeal, the EEOC affirmed the
dismissal on June 21, 2007, and then denied Plaintiff’s request
for reconsideration on August 13, 2007 (again with notice of
Plaintiff’s right to pursue a civil action “in an appropriate
United States District Court within ninety (90) calendar days”).6
(Id. (emphasis in original); see also Compl. at 57 ¶¶ 99-102.)
After an incident in which Sewell management convened a
“floor talk and accused [all mail carriers] of time wasting
practices,” Plaintiff initiated another EEO proceeding in
September 2007, charging the Postal Service with discrimination
on the basis of age and gender.
Compl. at 58 ¶ 104.)
(Ex. E to Compl.; see also
Because an inquiry revealed that “service
talks” constitute a routine practice, the EEOC declined to take
any further action, but again advised Plaintiff of her right to
file a formal Complaint.
(Ex. E to Compl.)
Plaintiff, however,
did not pursue this claim through a formal Complaint.
Rather,
after her supervisor “disapproved” her request for annual leave,
Plaintiff filed a third EEO charge on January 4, 2008, alleging
that the Postal Service discriminated against her on account of
her “extreme stress and anxiety” and age.
105.)
6
(Id.; Compl. at 59 ¶
After an inquiry into the alleged misconduct, the EEOC
Plaintiff, as stated above, initiated no such civil action.
9
again declined to take any further action (but, as always,
advised Plaintiff of the procedure to seek additional review
through the EEO process).7
(See Ex. E to Compl.)
Then, on April 28, 2008, Plaintiff suffered a workplace
injury to her finger, and again requested workers’ compensation
benefits for her injury, as well as covered leave under the
Family and Medical Leave Act (hereinafter, “FMLA”).
at 60 ¶ 110; Ex. G to Compl.)
(See Compl.
After allegedly being denied both
benefits, Plaintiff attempted to initiate another EEO proceeding
on May 3, 2008, charging the “unknowledgeable” and “incompetent”
management with harassment and intimidation.
111.)
(Compl. at 60 ¶
Plaintiff, however, submitted her EEO forms directly to
the EEOC, rather than to the Postal Services’ internal EEO
investigative services, and so the EEOC returned her forms
without further action and with instructions concerning
appropriate submission.
(See Ex. G to Compl.)
Following
resubmission, the EEO action proceeded through the
administrative process, until its dismissal with prejudice at
Plaintiff’s request by the Administrative Judge.
(See Ex. R to
Compl.)
In the months that followed this complaint, namely, July,
August, September, and October of 2008, Plaintiff received a
series of official reprimands and “no-time-off” suspensions for
7
Plaintiff, again, appears to have taken no further action.
10
“UNSATISFACTORY JOB PERFORMANCE,” all stemming from her alleged
failure to submit the documentation necessary for overtime
and/or “auxiliary assistance.”
(Ex. H to Compl. (emphasis in
original); see also Compl. at 61 ¶¶ 116-24.)
Then, on December
1, 2008, the Postal Service notified Plaintiff that she would be
removed from service on January 2, 2009 for “Unsatisfactory Job
Performance” and particularly for “failure to follow
instructions” by improperly “expanding [her] street time” in
order to incur overtime.
original).)
(Ex. J to Compl. (emphasis in
The notification alleged that Plaintiff “blatantly
ignored” mandatory procedures and “deliberated undermined the
authority of management by creating unauthorized overtime” for
herself.
(Id.)
Plaintiff refused to sign the notice, but left
the Sewell facility on that date without incident.
(Id.)
Plaintiff initiated a union grievance and EEO proceeding on
the following day, December 2, 2008, charging the Postal Service
with retaliation based upon prior EEO activity, and
discrimination on account of Plaintiff’s age and gender.
Ex. L to Compl.)
(See
Following an investigation into Plaintiff’s
union grievance (see, e.g., Ex. P to Compl.), the grievancearbitration team determined that management lacked “just cause
to issue a Notice of Removal,”8 and rescinded Plaintiff’s removal
8
In rescinding the removal, the Dispute Resolution Team
specifically relied upon a discrepancy in the Sewell facility’s
11
on January 22, 2009.
(Ex. O to Compl.)
As a result, Plaintiff
returned to work on January 29, 2009 (see Compl. at 66 ¶ 142),
but appears to have continued to pursue EEO remedies relative to
the removal action.
(See, e.g., Exs. S & U to Compl.)
Given
the rescission of Plaintiff’s removal through the grievance
process, however, the EEOC found “no reasonable expectation”
that the allegedly unlawful action would recur, and dismissed
Plaintiff’s EEO complaint as moot.9
(Pl.’s Sur-reply at 1; see
also Ex. 55 to Compl.)
Plaintiff’s employment continued without significant (or at
least documented) incident until August 24, 2009, at which time
her “second-level manager” dismissed her from work for the day,
for acting “belligerently” towards him and otherwise “causing a
disturbance” within the Sewell facility.
Compl. at 12 ¶ 13.)
(Ex. 55 to Compl.;
Shortly thereafter, the Sewell Postmaster,
Ms. Hunley, placed Plaintiff on “off-duty status without pay,”
following her “verbal tirade and threatening actions towards the
handling of overtime requests and management’s unexplained
“delay in conducting the investigation” into Plaintiff’s
workplace misconduct. (Ex. O to Compl.) The Dispute Resolution
Team took issue, in particular, with the fact that management
waited over six (6) weeks to conduct an investigatory interview
into Plaintiff’s alleged misconduct. (See id.)
9 Plaintiff purports to have completed appeal paperwork relative
to the EEOC’s dismissal, but acknowledges on the face of appeal
and in connection with the pending briefing, that no final
agency decision issued (see Ex. W to Compl.; Pl.’s Sur-reply),
presumably because she “agreed” to “drop[]” this particular EEOC
charge. (Pl.’s Sur-reply at 1.)
12
Postmaster” on October 5, 2009.
at 16 ¶ 23.)
(Exs. 5 & 55 to Compl.; Compl.
As a result of these episodes, the Postal Service
issued Plaintiff a Notice of Removal on October 20, 2009 for
“Improper Conduct” and “Unsatisfactory Job Performance.”
(Ex. 5
to Compl. (emphasis in original).)
Following her removal, Plaintiff filed a union grievance
and a companion EEO appeal.
(See, e.g., Ex. 10 to Compl.)
Through the union grievance procedure, Plaintiff obtained a
settlement that again rescinded and expunged the Notice of
Removal, enabling her to return to active duty and to receive an
award of back pay from the effective date of removal until her
return to active duty.10
(See Exs. 5-11 to Compl.; see also
Compl. at 17 ¶¶ 27-40.)
Following a similar sequence of warning
letters and a notice of removal (see, e.g., Exs. 12, 14, 16, 17,
22, & 23 to Compl), Plaintiff resigned from the Postal Service
on September 10, 2010, because she could no longer tolerate
management’s “behavior” towards her. (Ex. 24 to Compl.)
Meanwhile, the investigation and review of Plaintiff’s EEO
Complaint concerning the October 20, 2009 Notice of Removal
(alleging discrimination based upon retaliation) continued, and
following a lengthy investigative process, the Administrative
Judge conducted a hearing on April 26-27, 2012.
10
(See, e.g.,
The settlement followed the grievance-arbitration panel’s
declaration of an “IMPASSE” in relation to Plaintiff’s
grievance. (Ex. 10 to Compl. (emphasis in original).)
13
Exs. 19-21, 25-45 to the Complaint.)
Based upon the “hearing
and the evidence adduced,” however, the Administrative Judge
found that the Postal Service “did not discriminate” against
Plaintiff on the basis of reprisal.
(Ex. 46 to Compl.)
Rather,
the Administrative Judge determined that the Postal Service
disciplined Plaintiff on account of her “flagrant and repeated
violations of postal policy and regulations pertaining to
behavior and performance” (id.) and entered Judgment in favor of
the Postal Service on November 5, 2012.
(See Ex. 47 to Compl.)
Plaintiff took a timely appeal from that “Final Agency Decision”
(see Exs. 48-53 to Compl.), but the EEOC found “no reason to
disturb the final action,” and affirmed the Administrative
Judge’s final agency decision on June 4, 2013.
Compl.)
(Ex. 55 to
The EEOC then denied her request for reconsideration on
December 13, 2013, and advised her of the right “to file a civil
appropriate in an appropriate United States District Court
within ninety (90) calendar days” from the denial.
(Ex. 58 to
Compl. (emphasis in original).)
Plaintiff timely filed this action, and the pending motion
followed.11
11
On October 14, 2014, the Court denied the Postal Service’s
motion for a more definite statement, on the grounds that
Plaintiff’s Complaint, though lengthy, sufficiently described
the events giving rise to her employment discrimination and
retaliation claims. See Marley v. Donahue, No. 14-1597, 2014 WL
5152618 (D.N.J. Oct. 14, 2014). In other words, the Court found
14
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), the court
must “‘accept all factual allegations as true, construe the
Complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the
Complaint, the plaintiff may be entitled to relief.’” Fleisher
v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012)
(citations omitted).
In applying this standard to pro se pleadings and other
submissions, as here, the Court must liberally construe the
well-pleaded allegations, and draw all reasonable inferences in
favor of the pro se litigant.
Higgs, 655 F.3d at 339 (3d Cir.
2011); Capogrosso, 588 F.3d at 184.
Despite this liberality,
however, a pro se complaint must still “contain sufficient
factual matter, accepted as true,” to “‘state a [plausible]
claim to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“the overall tenor of Plaintiff’s Complaint” enabled the Postal
Service, “through appropriate effort, to formulate a good faith
response to Plaintiff’s Complaint, even if in the form of a
blanket denial of her allegations.” Id. at *2 (citation
omitted). The Court, however, expressed no opinion on “the
viability of Plaintiff’s claims, beyond that incidentally
required by the Court’s evaluation under Rule 12(e).” Id. at *3
n.1.
15
DISCUSSION
As stated above, Plaintiff’s Complaint contains a bevy of
claims resulting from her lengthy employment with the Postal
Service.
For the reasons that follow, Counts I, II, III, IV, V,
VI, VII, VIII, and X of Plaintiff’s Complaint will be dismissed
with prejudice, on an array of grounds.
Plaintiff’s Discrimination and Hostile Work Environment
Claims, Embodied in Counts I and X, Must be Dismissed
with Prejudice
In Counts I, IX, and X, Plaintiff alleges that the Postal
Service subjected her to a hostile work environment and to
retaliation, in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000(e), et seq. (hereinafter, “Title
VII”),12 the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq.
(hereinafter, the “RA”),13 and the Age Discrimination in
Employment Act, 29 U.S.C. § 621, et seq. (hereinafter, the
12
Title VII generally provides that it is “an unlawful
employment practice for an employer ... to discharge any
individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race,
color, religion, sex, or national origin.” 42 U.S.C. § 2000e–
2(a)(1).
13 The Rehabilitation Act generally provides that “[n]o otherwise
qualified individual with a disability in the United States ...
shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a).
16
“ADEA”).14
(See Compl. at 5, 9.)
Critically, however, these
claims are subject to extensive exhaustion requirements and
limitations periods, which Plaintiff substantially failed to
follow in this instance.
Specifically, a federal employee seeking redress for
unlawful workplace discrimination and/or retaliation must first
exhaust administrative remedies against the federal employer
prior to filing suit in federal court.15
16(c); see also 29 C.F.R. § 1614.
See 42 U.S.C. § 2000e-
A plaintiff filing claims
under Title VII, the RA, and/or the ADEA, as here, must, in
particular, first pursue the EEOC’s administrative process
before seeking judicial review.16
14
See Wilson v. MWM, Inc., 475
The ADEA provides, in relevant part, that “[i]t shall be
unlawful for an employer ... to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any
individual with respect to his compensation, term, conditions,
or privileges of employment, because of such individual’s age.”
29 U.S.C. § 623(a)(1).
15 The exhaustion requirement encourages “quicker, less formal,
and less expensive resolution of disputes within the Federal
Government and outside of court.” West v. Gibson, 527 U.S. 212,
218-19 (1999). Indeed, exhaustion affords the EEOC an essential
“opportunity to settle disputes through conference,
conciliation, and persuasion,” thereby avoiding unnecessary
litigation. Webb v. City of Phila., 562 F.3d 256, 262 (3d Cir.
2009).
16 The exhaustion requirement differs slightly between Title VII,
the RA, and the ADEA. Specifically, a federal employee filing a
Title VII and/or RA claim must pursue and exhaust administrative
remedies before initiating an action in federal court. Williams
v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997). In general, this
process entails: (1) making contact with an EEO counselor within
forty-five (45) days of the alleged discriminatory action; (2)
filing a formal complaint with the EEOC within fifteen (15) days
17
F.3d 166, 173 (3d Cir. 2007) (noting that Title VII and RA
claims brought by federal employees against federal employers
require exhaustion of administrative remedies); Freed v.
Consolidated Rail Corp., 201 F.3d 188, 194 (3d Cir. 2000)
(same); Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997)
(same); Slingland v. Donahoe, 543 F. App’x 189, 193 (3d Cir.
2013) (describing the exhaustion requirement under the ADEA).
In other words, a federal employee’s claims under Title VII, the
RA, and the ADEA must be, and routinely are, dismissed if the
employee fails to properly exhaust.
See, e.g., Scheidt v.
Donahoe, No. 13-836, 2014 WL 6991982, at *3 (D.N.J. Dec. 10,
2014) (dismissing an RA claim for failure to exhaust); Fanciullo
from receipt of the agency’s final decision; and then (3)
appealing the agency’s final decision to the EEOC or filing a
civil action in federal district court within ninety (90) days
of the agency’s decision. See 29 C.F.R. §§ 1614.105–1614.109,
1614.401, 1614.407(a); Green v. Postmaster Gen., 437 F. App’x.
174, 177–78 (3d Cir. 2011). A federal employee suing under the
ADEA, by contrast, has two alternative routes to judicial
review: (1) file directly in federal court after providing the
EEOC with at least thirty (30) days’ notice of an intent to sue,
within 180 days of the alleged unlawful discrimination; or (2)
invoke the EEOC’s administrative process and then sue, within
the necessary period, if dissatisfied with the outcome.
Patnaude v. Gonzales, 478 F. Supp. 2d 643, 648 n.8 (D. Del.
2007) (citing Rann v. Chao, 346 F.3d 192, 194-195 (D.C. Cir.
2003)); see also 29 C.F.R. § 1614.201(a) (noting the special
procedure under the ADEA). For purposes of the pending motion,
and this action generally, the distinction proves immaterial,
because Plaintiff’s Complaint makes plain that she only
initiated a single civil action, the present one, and never
notified the EEOC of an intention to forego the administrative
remedy process relative to her claim of age discrimination (much
less file an independent action within the necessary timeframe).
18
v. U.S. Postal Serv., No. 12-5467, 2013 WL 5467169, at *8-*10
(dismissing RA and ADEA claims for failure to exhaust); Cross v.
Donahoe, 12-2670, 2013 WL 4518049, at *4 (D.N.J. Aug. 23, 2013)
(dismissing Title VII claims for failure to exhaust).
The exhaustion requirements applicable in this instance
generally required “both consultation with an agency counsel”
and the filing an EEO complaint and subsequent federal complaint
“within the required times.”
1020 (3d Cir. 1997).
Robinson v. Dalton, 107 F.3d 1018,
Specifically, Plaintiff had to obtain a
final agency decision, appeal that decision through conclusion
to the EEOC, and then institute a civil action in an appropriate
federal district court within ninety (90) days of the relevant
decision (or 180 days from the occurrence of the alleged
unlawful practice, if foregoing the administrative process in
connection with an ADEA claim).
16(c).
See, e.g., 42 U.S.C. § 2000e-
These deadlines, in turn, function as a statute of
limitations, and once expired, generally bar a plaintiff from
seeking judicial review.
See Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 95 (1990); Winder v. Postmaster Gen. of
U.S., 528 F. App’x 253, 255 (3d Cir. 2013) (noting that the
failure to bring a claim within the EEO limitations period
generally bars relief); Hill v. U.S. Gen. Servs. Admin., No. 052092, 2008 WL 4371761, at *4 (D.N.J. Sept. 17, 2008) (barring
untimely EEO complaints).
19
Here, Plaintiff’s Complaint delineates a long history of
EEO activity from 2005 to 2009, but alleges full administrative
exhaustion and the timely filing of a federal action only in
relation to her Title VII claim for retaliatory discipline in
the fall of 2009.
Indeed, the voluminous pleading filed by
Plaintiff reflects a litany of EEO activity, but provides no
facts to show the requisite exhaustion of administrative
remedies as to her claims of workplace discrimination and/or
retaliation in 2006 to 2008, nor her EEO claims subsequent to
the 2009 claim for retaliation.
(See generally Compl.)
Indeed, although Plaintiff relies upon allegations of jobrelated discrimination and/or retaliation dating back as early
as November 2005, her own pleading reflects that she did not
even initiate her first EEO proceeding until 2007.
Similarly,
Plaintiff pursued multiple EEO complaints in 2007, but did not
pursue them to final agency decision (despite receiving
instructions on the appropriate process), and then voluntarily
withdrew a subsequent EEO complaint in 2008.
These claims have,
accordingly, not been exhausted, and the time for such
exhaustion has long since expired.17
17
See 42 U.S.C. § 2000e-
Moreover, even if the Complaint and attached documents
contained facts sufficient to demonstrate exhaustion, which it
does not, the period within which to initiate a civil action
relative to these claims similarly expired long ago. And, for
the reasons stated below, Plaintiff has not demonstrated an
20
5(e)(1) (providing, in relevant part, that a claim of
discrimination must be filed within three hundred (300) days
after the allegedly unlawful employment practice occurred);
Amtrak v. Morgan, 536 U.S. 101, 108-09 (2002) (noting that a
“claim is time barred if it is not filed within [this] time
limit”).
Similarly, although Plaintiff fully exhausted her 2007
claims under Title VII, the RA, and the ADEA on August 13, 2007
(following reconsideration), she never initiated a civil action
within the required ninety (90) period, and her opportunity to
file such an action lapsed over seven (7) years ago.18
See Hill,
entitlement to any of the equitable exceptions to these time
limits. See 29 C.F.R. § 1614.604(c).
18 These time limits may be excused on the grounds of waiver,
estoppel, and/or equitable tolling. See 29 C.F.R. §
1614.604(c). Here, Plaintiff does not argue for application of
any of these equitable exceptions, nor do her submissions
otherwise reflect even an arguable entitlement to any particular
one of them. Nevertheless, the Court notes that equitable
tolling generally applies (1) where the defendant has actively
misled the plaintiff relative to the cause of action; (2) where
the plaintiff has been prevented from asserting his or her
rights in some extraordinary way; and/or (3) where the plaintiff
timely asserted a claim, but did so, mistakenly, in an improper
forum. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1387 (3d Cir. 1994); see also 29 C.F.R. § 1614.105(a)(2).
Plaintiff has alleged no such qualifying circumstances in this
instance. To the contrary, Plaintiff’s own pleading reflects, on
its face, that the Postal Service consistently advised her of
her rights, and her filing of eight (8) independent EEO
proceedings demonstrates her acute familiarity with the
administrative process. Even more, in her Sur-reply, Plaintiff
concedes that the present suit only concerns the retaliation
claims she “brought forth” in the fall of 2009. (Pl.’s Sur-reply
at 1.) For all of these reasons, the Court finds no basis for
equitable tolling.
21
2008 WL 4371761, at *5 (dismissing the plaintiff’s employment
claims on exhaustion and timeliness grounds).
The Court, however, reaches a different result in relation
to Plaintiff’s December 5, 2009 EEO complaint for retaliation in
violation of Title VII (but not the RA and/or ADEA), following
the Postal Service’s issuance of a Notice of Removal on October
20, 2009.
(See, e.g., Ex. 55 to Compl.)
Indeed, the Postal
Service concedes that Plaintiff fully exhausted this EEO
complaint and timely filed this action as to this Title VII
retaliation claim following the EEOC’s December 13, 2013 final
decision.
(See generally Ex. 58 to Compl.)
This EEO complaint
narrowly concerns conduct that occurred on August 24, 2009,
October 5, 2009, and October 20, 2009, and in turn, sets the
contours of what survives for purposes of this litigation.
For all of these reasons, Count IX, a claim for retaliation
in violation of Title VII, will be permitted to proceed.
However, Counts I and X, claims for a hostile work environment
in violation of Title VII, the RA, and the ADEA, must be
dismissed with prejudice.
Plaintiff’s Claim for “Ultra Vires Conduct,” Embodied in
Count II, Must be Dismissed with Prejudice
In Count II of her Complaint, Plaintiff alleges that the
Postal Service engaged in “ultra vires conduct” that violated
the Privacy Act, 5 U.S.C. § 552a, and the Health Insurance
22
Portability and Accountability Act of 1996, Pub. L. No. 104-191,
110 Stat. 1936 (hereinafter, “HIPAA”), by “disclosing
Plaintiff’s protected health information” without her knowledge
or consent.
(Compl. at 5.)
The Privacy Act aims “‘to protect the privacy of
individuals identified in government information systems by
regulating the collection, maintenance, use and dissemination of
personal information and prohibiting unnecessary and excessive
exchange of such information within the government to outside
individuals.’”
N’Jai v. Pittsburgh v. Bd. of Public Educ., 487
F. App’x 735, 737 (3d Cir. 2012).
The Act, in turn, creates a
private cause of action when a federal agency “fails to comply
with any provision of this section ... in such a way as to have
an adverse [e]ffect on an individual.”
552a(g)(1)(D).
5 U.S.C. §
Critically, however, an action to enforce any
liability created under the Privacy Act must be filed within two
years from the date of the allegedly unlawful disclosure.
See 5
U.S.C. § 552a(g)(5).
Here, Plaintiff’s Complaint contains no information from
which to divine the basis for her Privacy Act claim, much less
any identification of the improperly disclosed record.19
19
In order to state a viable claim for improper disclosure, a
plaintiff must allege: (1) that the disclosed information
amounts to a statutorily-defined record; (2) that the agency
improperly disclosed the information; (3) that the disclosure
23
Nevertheless, even if the Postal Service disclosed Plaintiff’s
record on the date of her resignation, September 10, 2010, the
limitations period applicable to her Privacy Act claim has long
since expired.
The Court therefore finds Plaintiff’s Privacy
Act claim untimely.20
See Campeau, 575 F. App’x at 38 (affirming
the dismissal of a Privacy Act claim on timeliness grounds).
As a result, Count II must be dismissed with prejudice.21
Plaintiff’s Constitutional Claims, Embodied in Counts
III, IV, VII, and VIII, Must be Dismissed with Prejudice
Plaintiff’s Complaint, as stated above, contains a bevy of
constitutional claims, all stemming from her allegations of
workplace discrimination and/or retaliation.
Compl.)
(See generally
Counts III, IV, VII, and VIII specifically claim that
had an adverse effect; and (4) that the agency willfully and
intentionally disclosed the record. See, e.g., Quinn v. Stone,
978 F.2d 126, 131 (3d Cir. 1992); Madden v. Runyon, 899 F. Supp.
217, 225 (E.D. Pa. 1995). Plaintiff’s Complaint in this
instance contains no such allegation. For that reason,
Plaintiff’s claim under the Privacy Act could, alternatively, be
dismissed for failure to state a claim.
20 For the reasons stated above, no allegations of Plaintiff’s
Complaint suggest any entitlement to equitable tolling, nor has
Plaintiff argued for the applicability of such exception. Much
to the contrary, Plaintiff has, as stated herein, in essence
conceded that her Complaint solely concerns acts of retaliation
in the Fall of 2009. (See Pl.’s Sur-reply at 1.)
21 As to that aspect of Count II that pertains to HIPAA, the
Court need only briefly note that HIPAA creates “no private
federal remedy.” Newsuan v. Colon, No. 13-1199, 2013 WL
3989076, at *3 (E.D. Pa. Aug. 5, 2013) (collecting cases); Hove
v. Cleary, No. 10-1876, 2011 WL 2223760, at *6 (D.N.J. June 6,
2011) (same). HIPAA therefore provides Plaintiff with no
independent avenue for relief, and this aspect of Count II must
likewise be dismissed with prejudice.
24
the Postal Service acted with “discriminatory animus” and/or
singled her out for “irrational differential treatment [and]
retaliatory conduct,” in violation of her constitutional rights
under the First and Fourth Amendments, and the Equal Protection
Clause of the Constitution.
(See Compl. at 6, 8-9,
Nevertheless, in a variety of contexts squarely applicable
here, the Supreme Court has concluded “that a precisely drawn,
detailed statute pre-empts more general remedies.”
Gen. Servs. Admin., 428 U.S. 820, 835 (1967).
Brown v.
Indeed, extant
authority reflects that Title VII, the ADEA, and the
Rehabilitation Act provide the exclusive remedy for claims of
discrimination and/or retaliation in federal employment, and
foreclose a federal employee plaintiff from asserting parallel
constitutional claims.
See, e.g., Brown, 425 U.S. 835 (finding
that Title VII “of the Civil Rights Act of 1964, as amended,
provides the exclusive judicial remedy for claims of
discrimination in federal employment”); Hildebrand v. Allegheny
Cnty., 757 F.3d 99, 110 (3d Cir. 2014) (finding that the ADEA
provides the “exclusive remedy for claims of age discrimination
in employment,” precluding claims of unconstitutional age
discrimination in the workplace); Ruddy v. U.S. Postal Serv.,
455 F. App’x 279, 284 (3d Cir. 2011) (finding that the RA
constitutes “the exclusive means” for asserting disability
discrimination claims that arise from federal employment).
25
Indeed, because of the administrative schemes codified in those
statute (and in the regulations promulgated thereunder), “it
would be anomalous to permit a litigant to avoid [those]
remedial scheme[s] by simply asserting an independent
constitutional claim premised upon the same facts.”
Spence v.
Straw, 54 F.3d 196, 203 (3d Cir. 1995).
Because Plaintiff’s constitutional claims solely arise out
of her allegations of workplace discrimination and/or
retaliation, the Court finds these claims barred.
See Fullman
v. Potter, 480 F. Supp. 2d 782, 794 (E.D. Pa. 2007) (finding the
plaintiff’s constitutional claims barred, because they arose out
of alleged discrimination related to an individual’s federal
employment); Allen v. Crosby, 416 F. Supp. 1092, 1098 (E.D. Pa.
1976) (dismissing the plaintiff’s employment-related claims
under 42 U.S.C. § 1981, and the Fifth and Thirteenth
Amendments); Hersh v. Dep’t of Navy, 456 F. Supp. 227, 229 (E.D.
Pa. 1978) (dismissing the plaintiff’s employment-related claims
under 42 U.S.C. §§ 1981, 1983, as well as the First, Fourth, and
Fifth Amendments); Harley v. Paulson, No. 07-3559, 2008 U.S.
Dist. LEXIS 112607, at *6 n.1 (D.N.J. Dec. 9, 2008) (dismissing
a First Amendment retaliation claim, on the grounds that Title
VII provided the exclusive remedy for federal employees’ claims
of employment discrimination).
26
As a result, Counts III, IV, VII, and VII must be dismissed
with prejudice.
Plaintiff’s Claim for Mail Fraud, Embodied in Count V,
Must be Dismissed with Prejudice
In Count V of her Complaint, Plaintiff alleges that
Defendants acted in violation of 18 U.S.C. § 1341, a statute
directed at criminal liability for mail fraud.22
(See Compl. at
7.)
Nevertheless, the federal criminal laws do not provide
private individuals with any cause of action.
Indeed, “there is
no private cause of action for a violation of the federal mail
and wire fraud statutes.”
Addlespurger v. Corbett, 461 F. App’x
82, 87 (3d Cir. 2012); Jones v. TD Bank, 468 F. App’x. 93 (3d
Cir. 2012) (finding that the federal mail fraud statute did not
provide plaintiff with private right of action); Wisdom v. First
Midwest Bank, 167 F.3d 402, 408 (8th Cir. 1999) (joining the
Fifth and Sixth Circuits in finding no private cause of action
for mail fraud).
As a result, Count V must also be dismissed with prejudice.
Plaintiff’s Claim for ADA and FMLA violations, Embodied
in Count VI, Must be Dismissed with Prejudice
Count VI of Plaintiff’s Complaint alleges that the Postal
Service violated the Americans with Disabilities Act, 42 U.S.C.
22
Plaintiff’s Complaint itself provides no information from
which to divine the perceived basis for her mail fraud claim.
(See Compl. at 7.)
27
§ 12101, et seq. (hereinafter, the “ADA”),23 and the Family
Medical Leave Act, 29 U.S.C. § 2601, et seq. (hereinafter, the
“FMLA”).24
Nevertheless, the Court need not belabor Plaintiff’s ADA
claim, because the ADA does not apply to the federal government
employers, as here, and therefore provides Plaintiff no basis
for relief.
See Smith v. Pallman, 420 F. App’x 208, 214 (3d
Cir. 2011) (finding dismissal of the plaintiff’s ADA claim
“proper because the ADA does not apply to federal agencies”);
Venter v. Potter, 435 F. App’x 92, 95 n. 1 (3d Cir. 2011)
(same).
Likewise, Plaintiff’s claim for violations of the FMLA is
untimely and must be dismissed.
Indeed, an FMLA claim must be
brought no later than two (2) years after “the last event” of
the alleged violation.25
29 U.S.C. § 2617(c)(1); see also
Scheidt, 2014 WL 6991982, at *4 (citing White v. Eberle & BCI
Servs., LLC, No. 12–2169, 2013 WL 211249, at *3 (D.N.J. Jan. 17,
23
The ADA generally prohibits discrimination by employers
against qualified individuals with disabilities. See 42 U.S.C.
§ 12112.
24 The FMLA generally entitles government employees to a total of
12 administrative workweeks of leave during any 12-month period
under certain specified circumstances. See 29 U.S.C. §
2612(a)(1); 5 U.S.C. § 6382(a)(1).
25 In the event of a “willful” violation of the FMLA, the statute
of limitations extends to three (3) years. 29 U.S.C. §
2617(c)(2). Plaintiff, however, has demonstrated no such
willfulness, and even if she had, her FMLA claim would still be
untimely, as explained below.
28
2013)) (noting same).
Here, the last event Plaintiff alleges
violated the FMLA occurred on July 7, 2010, after the Postal
Service denied Plaintiff’s request for FMLA benefits.
Compl. at 23 ¶ 50.)
(See
Plaintiff, however, did not file her
Complaint in this litigation until March 12, 2014, over three
and a half years later.
Moreover, even assuming the last
discriminatory event occurred on the date of Plaintiff’s
resignation, September 10, 2010, she still filed the Complaint
well beyond the two (2) year limitations period (and even the
three (3) year limitations period applicable to willful
violations).26
untimely.
The Court therefore finds Plaintiff’s FMLA claim
See Scheidt, 2014 WL 6991982, at *4 (dismissing an
FMLA claim as untimely); Mumford v. Peco Energy Co., No. 02-929,
2002 WL 818858, at *2 (E.D. Pa. Apr. 29, 2002) (dismissing an
FMLA claim as time-barred).
As a result, Count VI must be dismissed with prejudice.
CONCLUSION
For all of these reasons, the Postal Service’s motion to
dismiss will be granted, and Plaintiff’s Complaint will be
dismissed in its entirety with prejudice, except for Count IX,
26
Nor does the pendency of her EEOC charge change this result.
Indeed, the “‘filing of a charge of discrimination with the EEOC
or comparable state agency does not toll the FMLA statute of
limitations.’” Scheidt, 2014 WL 6991982, at *5 (quoting Durham
v. Atl. City Elec. Co., No. 08-1120, 2010 WL 3906673, at *9
(D.N.J. Sept. 28, 2010)).
29
which states a Title VII claim for retaliatory discipline in the
fall of 2009.
An accompanying Order will be entered.
September 23, 2015
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
30
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