MCGINTY v. BRENNAN et al
Filing
14
OPINION. Signed by Judge Claire C. Cecchi on 06/28/2016. (JB, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DANIEL I. McGINTY,
Civil Action No.: 15-6855 (CCC-SCM)
Plaintiff,
OPINION
V.
MEGAN J. BRENNAN, POSTMASTER
GENERAL, U.S. POSTAL SERVICE
Defendant.
CECCHI, District Judge.
I.
INTRODUCTION
This matter comes before the Court on the motion [ECF No. 4] of Defendant Megan I.
Brennan in her official capacity as Postmaster General (“Defendant”) to dismiss Plaintiff Daniel
J. McGinty’s (“Plaintiff’) Complaint.
The Court decides the motion without oral argument
pursuant to Federal Rule of Civil Procedure
7$•1
Having considered the parties’ submissions and
for the reasons set forth below, the Court grants Defendant’s motion to dismiss.
II.
BACKGROUND
On April 5, 1981, Plaintiff was honorably discharged from the United States Air force
with a service-connected disability. [Compi. at 4.] In August 1981, Plaintiff became employed
with the United States Postal Service (“USPS”) with a veteran’s preference. [Id.] On May 4, 1990,
Plaintiff resigned his position at the USPS. [Id.] By that point, he had accumulated 375.62 hours
of unused sick leave, among other benefits. [Id.]
The Court considers any arguments not presented by the parties to be waived. See Brenner v.
Local 514, United Bhd. of Carpenters & Joiners, 927 F.2d 1283, 1298 (3d Cir. 1991) (“It is well
established that failure to raise an issue in the district court constitutes a waiver of the argument.”).
1
On August 20, 1994, Plaintiff was reemployed by the U$PS.
[Id.]
By letter dated
february 3, 1997, Plaintiff was informed by Patricia A. Johnson, a Human Resources Specialist at
the USPS, that he was given credit for his prior employment and that all of his previously accrued
benefits were reinstated with the exception of the sick leave balance of 375.62 hours. [Id.] The
letter cited the U$PS’s Employee and Labor Relations Manual (“ELM”) Section 513.72 as the
basis for not reinstating the unused sick leave balance. [Id.] ELM 513.72 reads:
Reemployment. Sick leave may be recredited upon reemployment
provided there is not a break in service in excess of 3 years.
At that time in 1997, Plaintiff took no further action to challenge the USPS’s decision not to
reinstate his unused sick leave balance.
On February 12, 2002, Plaintiff filed a claim for occupational bilateral carpal tunnel
injuries for which he received medical benefits through the Office of Workers’ Compensation
Programs (“OWCP”) of the United States Department of Labor. [Id.] These injuries stemmed
from Plaintiffs employment with the USPS.
On March 9, 2015, Plaintiff was charged leave without pay for medical leave due to workrelated injuries he suffered. [Id.] On March 12, 2015, Plaintiffrequested pre-complaint counseling
from a USPS Equal Employment Opportunity (“EEO”) Counselor. [See ECF No. 42.2] Plaintiff
filed an EEO Complaint of Discrimination in the Postal Service on June 1, 2015 (the “EEO
Complaint”). [See ECF No. 4-3.] The only allegation in his EEO Complaint was that the “ELM
regarding reemployment fails to include disabled American veterans, specifically ELM 513.73.”
[ECF No. 4-3.]
2
In evaluating a motion to dismiss, this Court may consider public documents as well as
documents integral to the Complaint, such as EEO documents from the administrative agency. See
Smith v. Pall, 420 F. App’x 208, 213 (3d Cir. 2011) (“[T]he District Court properly considered the
attached EEO documents when considering the motion to dismiss.”).
2
On June 22, 2015, a Dismissal of Formal EEO Complaint (the “EEO Dismissal”) was
issued by EEO Services Analyst Christine Muringer in Plaintiffs case, Agency Case
Number 1B-073-001 3-15. [See ECF No. 1 at 14-17.] The EEO Dismissal was made solely on the
basis that his EEO Complaint was untimely. [Id.] Specifically, the EEO Services Analyst found
that a “discrete act” of discrimination was alleged to have taken place on August 20, 1994. [Id.]
Accordingly, under 29 C.F.R.
§ 1614.105(a)(1), Plaintiff had 45 days from that date to contact an
EEO Counselor. [Id.] As Plaintiff did not contact an EEO Counselor until March 3, 2015—more
than 20 years later—the EEO Dismissal found his EEO Complaint to be untimely. [Id.] Lastly,
the EEO Dismissal informed Plaintiff of his right to appeal to the Equal Employment Opportunity
Commission (“EEOC”) or to file a civil action in lieu of appealing to the EEOC. [Id.]
Pursuant to 29 C.F.R.
§ 1614.407(c), Plaintiff timely filed this civil action within 90 days
of receipt of the EEO Dismissal. Defendant now moves to dismiss on two grounds: (1) failure to
exhaust administrative remedies; and (2) failure to state a claim for discrimination.
III.
DISCUSSION
A. Plaintiffs Complaint is dismissed for failure to exhaust his administrative
remedies.
The Third Circuit’s decision in Smith v. Patiman is directly on point. 420 F. App’x 20$.
There, the Third Circuit affirmed a district court’s dismissal for failure to exhaust administrative
remedies when an employee did not contact the EEO Counselor within 45 days of the alleged
discriminatory action. Id. at 213.
Here, the discrimination alleged is the failure to credit Plaintiffs previously accrued
unused sick leave upon his reemployment. That action occurred upon Plaintiffs reemployment
on August 20, 1994.
Accordingly, Plaintiff had 45 days from that date to contact an EEO
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Counselor. See 29 C.F.R.
§ 1614.105(a)(1). He failed to do so, and therefore failed to exhaust his
administrative remedies.
In his opposition, Plaintiff appears to argue that the discriminatory action occurred on
February 3, 1997 when the USPS informed him that under ELM 513.72 he was not entitled to sick
leave after a break in service of more than three years. [See ECF No. 5
¶ 3.] The distinction,
however, is of no consequence—Plaintiff did not contact an EEO Counselor within 45 days of that
date either.
finally, to the extent Plaintiff has argued (either in his EEO Complaint, his Complaint in
this action, or his opposition papers to the motion to dismiss) that the discriminatory conduct was
continuing in nature through the date he was charged leave without pay on March 9, 2015, the
EEO Dismissal directly addressed that point. [See ECF No. 1 at 15.] Citing precedent from the
United States Supreme Court, the EEO Dismissal found that the failure to credit the
previously-accrued sick time was a “discrete act” occurring on August 20, 1994 that began the
45-day clock to contact an EEO Counselor. [Id.] Plaintiff has not raised any argument to the
contrary.
Accordingly, pursuant to Third Circuit precedent, Plaintiffs Complaint must be dismissed
for failure to exhaust his administrative remedies.
B. Plaintiff fails to state a claim upon which relief can be granted.
To the extent Plaintiff argues3 that his Complaint alleges a separate claim for discrimination
that occurred when he was charged leave without pay on March 9, 2015, Plaintiff has failed to
state a claim for discrimination under the Rehabilitation Act. Rehabilitation Act claims are subject
This Court is mindful that Plaintiff is proceeding pro Se, and will therefore construe his pleadings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be
liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” (internal quotations omitted)).
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to the McDonnell Douglas burden-shffling framework. See Wishldn v. Potter, 476 F.3d 180, 184$5 (3d Cir. 2007). Under this framework, a plaintiff in a discrimination case must first establish a
primafade case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
To establish aprimafacie case of disability discrimination under the Rehabilitation Act, a plaintiff
must show that: (1) he has a disability within the definition provided by the Americans with
Disabilities Act; (2) he is otherwise qualified to perform the essential functions of his position; and
(3) he has suffered an adverse employment decision because of that disability. Freeman v.
Chertoff 604 F. Supp. 2d 726, 731 (D.N.J. 2009). Here, Plaintiff fails to allege that he suffered
an adverse employment decision because ofhis disability.4
“The Rehabilitation Act
[]
sets an exacting standard of causation and only ‘allows a
plaintiff to recover if he or she were deprived of an opportunity to participate in a program solely
on the basis of disability.” Njos v. United States, Civil Action No. 3:1 2-cv-125 1, 2015 U.S. Dist.
LEXIS 176464, at *9..10 (M.D. Pa. Sept. 28, 2015) (quoting CG v. Pennsylvania Dep’t ofEduc.,
734 F.3d 229, 235-36 (3d Cir. 2013)). It is insufficient for Plaintiff to allege that he is disabled
and that the suffered an adverse employment decision. The disability must be the cause of the
adverse employment decision.
Here, Plaintiff does not contend that he was charged leave without pay because he was
disabled. Rather, Plaintiff contends that he was charged leave without pay because of the USP$’s
interpretation of the ELM.5 Thus, Plaintiff has not pleaded facts sufficient to establish a prima
fade case of discrimination under the Rehabilitation Act.
Defendant contends that Plaintiff fails to allege that he has a disability, thus failing the first
element. EECF No. 4-1 at 7-8.] Plaintiff contests this assertion. EECF No. 5 ¶ 3b.] Construing
the facts in a light most favorable to the Plaintiff, the Court assumes for purposes of this motion
that Plaintiff has a disability.
Further, it appears to this Court that the USPS’s interpretation of the ELM—applying ELM
513.72 rather than 513.73 to Plaintiffs situation—is reasonable in this case. ELM 513.73 applies
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C. The USPS is an improper defendant.
Defendants correctly contend that the only proper defendant in an action brought by a
federal employee pursuant to the Rehabilitation Act is the head of the employing department. See
Burg v. US. Dept. Health and Human Services, No. 07-2992, 2010 U.S. Dist. LEXIS 133919, at
*6 (E.D. Pa. Dec. 15, 2010) (citing 42 U.S.C.
§ 2000e-16(c). Accordingly, the only proper
defendant in this case is Megan J. Brennan in her official capacity as Postmaster General. This
Court will dismiss the USPS as an independant defendant.
IV.
CONCLUSION
Having reviewed the parties’ submissions, the Court grants Defendant’s motion to
dismiss. To the extent the deficiencies in the Complaint can be cured, Plaintiff will be given
thirty (30) days to file an amended complaint. An appropriate order accompanies this Opinion.
Dated: J\-
,2016
CLAIRE C. CECCHI, U.S.D.J.
only to “individuals who were originally separated and who are subsequently reemployed from a
continuous period on OWCP rolls.” Plaintiff was undisputedly not such an individual when he
was reemployed in 1994.
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