MCGINTY v. BRENNAN et al

Filing 38

OPINION. Signed by Judge Claire C. Cecchi on 4/27/2017. (ld, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DANIEL J. McGINTY,

Civil Action No.: 15-6855 (CCC-SCM)

Plaintiff,
OPINION
V.

MEGAN J. BRENNAN, Postmaster
General, U.S. POSTAL SERVICE, BETH
COBERT, Acting Director, U.S. Office of
Personnel Management, DOES 1-5,
Defendants.
CECCHI, District Judge.
I.

INTRODUCTION
This matter comes before the Court on the motion of Defendants Megan J. Brennan in her

official capacity as Postmaster General, Beth Cobert, Acting Director, U.S. Office of Personnel
Management, and the United States Postal Service (“USP$” and collectively “Defendants”) to
dismiss Plaintiff Daniel J. McGinty’s (“Plaintiff’) Amended Complaint. ECF No. 29. The Court
decides the motion without oral argument pursuant to Federal Rule of Civil Procedure 78. for the
reasons set forth below, the Court grants Defendants’ motion.
II.

BACKGROUND
On April 5, 1981, Plaintiff was honorably discharged from the United States Air force

with a service-connected disability. Amended Complaint (“Compl.”) ECF No. 19 at 3. In August
1981, Plaintiff became employed with the 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.

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On August 20, 1994, Plaintiff was reemployed by USPS. Id. On february 3, 1997, Patricia
A. Johnson, a Human Resources Specialist at USPS, sent a letter informing Plaintiff that he was
given credit for his prior employment and that all of his previously accrued benefits were reinstated
with the exception ofthe sick leave balance of 375.62 hours. Id. The letter cited USPS’s Employee
and Labor Relations Manual (“ELM”) Section 513.72, applicable to reemployment, as the basis
for not reinstating the unused sick leave balance. Id. at 4. ELM 513.72 reads: “Sick leave may be
recredited upon reemployment provided there is not a break in service in excess of 3 years.”
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. at 37, Ex. M.1 On July 21,
2003, Plaintiff received a letter response to an inquiry regarding his unused sick leave from his
first employment with USPS which ended in 1990. See Id. at Ex. M. The letter indicates that for
an employee who was injured on duty and placed on the OWCP payroll, ELM 513.73 applies and
unused sick leave will be “re-credited to their account regardless of the length of time these
employees were on OWCP and off postal rolls.” Id. The letter further provides that because
Plaintiff voluntarily resigned from USPS in 1990, and the injury for which he received benefits
from OWCP occurred in 2002, ELM 513.73 does not apply. Id.
On March 9, 2015, Plaintiff was charged leave without pay for medical leave. Id. at 71,
Ex. S. On March 12, 2015, Plaintiff requested pre-complaint counseling from a USPS Equal
Employment Opportunity (“EEO”) Counselor. Id. at Ex. N. Plaintiff filed an EEO Complaint of
Discrimination in the Postal Service on June 1, 2015 (the “EEO Complaint”). See Id. at 73, Ex. S.
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.”).
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The only allegation in his EEO Complaint was that the ELM regarding reemployment, specifically
ELM 513.73, fails to include disabled American veterans, and as a result, the Agency failed to
credit back to Plaintiff 375.62 hours of previously earned sick leave. Id.
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-073-0013-15. See Id. at 4, 75-78, Ex. T. The EEO Dismissal was made solely on the
basis that his EEO Complaint was untimely. Id. at 75-78, Ex. T. Specifically, the EEO Services
Analyst found that a “discrete act” of discrimination was alleged to have taken place on August
20, 1994, when Plaintiff was reemployed by USPS.

§

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 12, 2015—more than 20 years later—the
EEO Dismissal found the 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 on September 15, 2015 against Defendant Megan J. Brennan and
USPS. ECF No. 1. On November 25, 2015, Defendants filed a motion to dismiss, which the Court
granted with leave to amend on June 29, 2016. See ECF Nos. 14, 15. On July 18, 2016, Plaintiff
filed an Amended Complaint and added Defendant Beth Cobert, Acting Director of the U.S. Office
of Personnel Management and Does 1-5 to the action. ECF No. 19. On September 7, 2016,
Defendants filed the instant motion to dismiss. ECF No. 26.

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III.

LEGAL STANDARD

For a complaint to survive dismissal pursuant to federal Rule of Civil Procedure 1 2(b)(6),
it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ati. Corp.

V.

Twombly,

550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all
well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor
of the non-moving party. See Phillips v. Cnty. ofAllegheny, 515 F.3d 224, 234 (3d Cir. 2008).
However, “the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “factual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. “A pleading that offers labels and conclusions will not do. Nor does a complaint
suffice if it tenders naked assertion[sJ devoid of further factual enhancement.” Iqbal, 556 U.S. at
67$ (internal citations omitted).
A pro se litigant’s complaint is held to “less stringent standards than formal pleadings
drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Courts have a duty to
construe pleadings liberally and apply the applicable law, irrespective of whether apro se litigant
has mentioned it by name. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). A
pro se complaint “can only be dismissed for failure to state a claim if it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citing Haines, 404 U.S. at 520-21); Bacon v. Minner,
229 F. App’x 96, 100 (3d Cir. 2007).

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IV.

DISCUSSION
In the Amended Complaint, Plaintiff appears to allege a claim of employment

discrimination based upon his disability. As the Rehabilitation Act is the exclusive remedy for
federal employees to claim disability discrimination, the Court will construe Plaintiffs claim as
such. See Spence v, Straw, 54 F.3d 196, 197 (3d Cir. 1995). Defendants move to dismiss the
Amended Complaint on the grounds that Plaintiff has failed to exhaust his administrative
remedies2 and that Plaintiff has failed to state a claim. See ECF No. 29. Here, the Court finds
Plaintiff failed to state a claim for discrimination and grants Defendants’ motion to dismiss.3
A. Plaintiff Fails To State A Claim Upon Which Relief Can Be Granted
Rehabilitation Act claims are subject to the McDonnell Douglas burden-shifting
framework. See Wishkin v. Potter, 476 F.3d 180, 184-85 (3d Cir. 2007). Under this framework,
a plaintiff in a discrimination case must first establish a prima fade 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

2

A plaintiff asserting a claim under the Rehabilitation Act must first exhaust Title VII
administrative remedies before bringing suit. See Spence, 54 F.3d at 201. Among other
requirements, a plaintiff must first contact an EEO counselor within 45 days of the alleged
discriminatory act. Id. Here, the discriminatory act Plaintiff complains of occurred upon
reemployment on August 20, 1994. Plaintiff did not file a complaint with the EEOC until March
3, 2015, over twenty years later. See ECF No. 19 at 4, 71, Ex. S. Therefore, Plaintiff failed to
timely exhaust his administrative remedies. However, the Court will address Plaintiffs claim on
the merits.
Plaintiff asserts claims against USPS and Beth Cobert, Acting Director of the U.S. Office of
Personnel Management (“OPM”). However, as stated in this Court’s previous decision, 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. § 2000e16(c). Accordingly, the only proper defendant in this case is Megan I. Brennan in her official
capacity as Postmaster General, and Plaintiffs Amended Complaint is also dismissed on this
independent basis as to USPS and Beth Cobert. See also fanciullo v. United States Postal Serv.,
No. 12-5467-ES, 2013 U.S. Dist. LEXIS 140152, *14.15 (D.N.J. Sept. 30, 2013).
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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 of his disability.
The Rehabilitation Act only “allows a plaintiff to recover if he or she [was] deprived of an
opportunity to participate in a program solely on the basis of disability.” CG v. Penn. Dep ‘t of
Educ., 734 f.3d 229, 235-36 (3d Cir. 2013). It is insufficient for Plaintiff to allege that he is
disabled and that he suffered an adverse employment decision. Rather, the disability must be the
cause of the adverse employment decision. Here, Plaintiff does not contend that he was denied his
accumulated sick leave hours because he was disabled. Instead, Plaintiff alleges that USPS used
the incorrect ELM to determine whether his sick leave should be credited.4 See ECF No. 30. Thus,
because Plaintiff has not alleged he suffered an adverse employment decision because of his
disability, Plaintiff has not pleaded facts sufficient to establish aprimafacie case of discrimination
under the Rehabilitation Act. Accordingly, Plaintiff’s claim for discrimination is dismissed.
B. FERCCA
In a supplemental brief to this Court, Plaintiff alleges that the “[aJpplicable law is the
Federal Erroneous Retirement Coverage Corrections Act” (“FERCCA”).5 See ECF No. 28, 5
U.S.C.S.

§

$331.

Plaintiff alleges he is “entitled to [Civil Service Retirement System] Offset

“Plaintiff argues ELM 512.73 is applicable to his case, rather than 513.72. ELM 513.73 applies
only to “individuals who were originally separated and who are subsequently reemployed from a
continuous period on OWCP rolls.” Because Plaintiff was undisputedly not such an individual
when he was reemployed in 1994, it appears that the USPS’s interpretation of the ELM—applying
ELM 513.72 rather than 513.73 to Plaintiff’s situation—is reasonable in this case.
The Court notes Plaintiff may not amend his Amended Complaint in a supplemental briefing to
the Court. See Hughes v. UPS, 639 F. App’x 99, 104 (3d Cir. 2016). However, in light of
Plaintiff’s pro se status, the Court addresses the new statute identified by Plaintiff.
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coverage” under the statute. ECF No. 22. Before a plaintiff may file a FERCCA claim, he must
exhaust his administrative remedies with the Merit Systems Protection Board. See 5 C.F.R.

§

839.1301, 839.1034. Here, Plaintiff has not alleged he exhausted his administrative remedies
regarding this claim. Accordingly, Plaintiffs claim pursuant to FERCCA must be dismissed for
failure to exhaust his administrative remedies.6 See Smith v. Pailman, 420 F. App’x 208, 212 (3d
Cir. 2011) (“Failure to timely exhaust administrative remedies is an appropriate basis for granting
a Rule 12(b)(6) motion to dismiss.”).
V.

CONCLUSION
Having reviewed the parties’ submissions, the Court grants Defendants’ 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.

D

ate

.

d

2017

_

CLAIRE C. CECCHI, U.S.D.J.

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Having dismissed Plaintiffs claims against the named Defendants, Plaintiffs remaining claims
exist solely against unnamed defendants. “Case law is clear that an action cannot be maintained
solely against Doe defendants.” Baker v. United States, 642 F. App’x 147, 152 (3d Cir. 2016).
See also Breslin v. Philadelphia, 92 F.R.D. 764, 765 (E.D. Pa. 1981) (“Given the identification of
the remaining defendants only as ‘John Doe,’ there is no method of serving the complaint in accord
with due process, and no way that the action can otherwise proceed.”). Accordingly, the Court
dismisses Plaintiffs Amended Complaint in its entirety.
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