DAVIS v. BRENNAN
Filing
57
OPINION. Signed by Judge Claire C. Cecchi on 11/30/2018. (sm)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JIMMY I. DAVIS,
Civil Action No.: 15-cv-8402-CCC-JBC
Plaintiff,
OPINION
v.
MEGAN J. BRENNAN, POSTMASTER
GENERAL,
Defendant.
CECCHI, District Judge.
I.
INTRODUCTION
This matter comes before the Court on the motion of Defendant Megan J. Brennan in her
official capacity as Postmaster General (“Defendant”) for summary judgment pursuant to Federal
Rule of Civil Procedure 56. ECF No. 39. Plaintiff Jimmy I. Davis (“Plaintiff’), who is proceeding
pro se in this Title VII action, opposes the motion. ECF No. 43. The motion is decided without
oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons set forth below, the
Court grants Defendant’s motion.
II.
BACKGROUND
On August 30, 2014, following a confrontation with his supervisors, Plaintiff, a United
States Postal Service (“USPS”) employee who serves as a tractor-trailer operator, was placed in
off-duty, unpaid status for “Conduct Un[bejcoming of a United States Postal Employee (Zero
Tolerance Policy).” Defendant’s Statement of Material Facts (“DSOF”)
¶J
1-2.’ Plaintiffs off
Local Civil Rule 56.1 requires a party moving for summary judgment to file a statement of
material facts not in dispute. An opposing party must file a responsive statement, addressing each
duty, unpaid status, which the parties’ submissions also refer to as an “emergency placement” or
“suspension,” lasted for 74 hours. Id.
¶ 3.
A. August 2014 EEO Claim
On August 31, 2014, Plaintiff submitted an Information for Pre-Complaint Counseling to
the Equal Employment Opportunity Commission (“EEOC”), in which he alleged the August 30,
2014 emergency placement was retaliation for two prior EEO complaints he had filed. Id.
¶J 7-9.
On September 30, 2014, a Notice of Right to File a formal EEO complaint was issued to Plaintiff,
advising him that he had 15 days from receipt of the notice to file a formal complaint with the
National EEO Investigative Services Office (“NEEOISO”). Id.
not file a formal complaint. Id.
¶J
10-11. However, Plaintiff did
¶ 12.
B. January 2015 MSPB Appeal
On January 12, 2015, Plaintiff appealed his August 30, 2014 placement to the United States
Merit Systems Protection Board (“MSPB”), identifying his August 30, 2014 emergency placement
as the challenged personnel action and the basis for his appeal as “[s]ervice is in Violation of ‘NO
FEAR Act’ of 2002.” Id.
¶J
13-14. On March 26, 2015, an Administrative Judge dismissed
Plaintiffs MSPB appeal for lack ofjurisdiction, stating that MSPB’s jurisdiction extends only to
unpaid suspensions that exceed 14 days. The decision did not address the timeliness of the appeal,
and stated that the decision would become final on April 30, 2015 unless Plaintiff filed a petition
for review with the full MSPB. Id.
¶J 16-20.
However, Plaintiff did not file a petition for review,
and the decision became final on April 30, 2015.
material fact and “indicating agreement or disagreement and, if not agreed, stating each material
fact in dispute and citing to the affidavits and other documents.” L. Civ. R. 56.1. Any material
fact not disputed “shall be deemed undisputed” for purposes of deciding the motion. Id.
2
C. May 2015 Removal and Second MSPB Appeal
On May 15, 2015, USPS issued a Letter of Decision notifying Plaintiff that he would be
removed from his position and that his removal would “become effective on June 5, 2015.” Id.
¶
4. The May 15, 2015 letter cited the August 30, 2014 incident along with Plaintiff’s history of
discipline. Id.
¶ 5.
to the MSPB. Id.
On May 17, 2015, Plaintiff appealed USPS’s May 15, 2015 Letter of Decision
¶ 21.
On April 25, 2016, an Administrative Judge dismissed without prejudice
Plaintiffs appeal to permit him time to attempt to retain counsel and provided that the appeal
would be refiled automatically on July 11, 2016.
Id.
¶
30.
Afier Plaintiffs appeal was
automatically refiled, on August 23, 2016, Plaintiff and USPS entered into a settlement agreement
in which the latter agreed to rescind the May 15, 2015 Letter of Decision, institute a four-month
suspension instead ofremoval, and pay Plaintiff a lump sum of $20,000 in compensatory damages.
Id.
¶J 31-33.
D. September 2015 Second EEO Claim
On September 19, 2015, Plaintiff filed an Information for Pre-Complaint Counseling with
the EEOC alleging wrongful discharge and referring to his January 12, 2015 appeal to the MSPB.
Id.
¶J 35-36.
On October 16, 2015, the EEOC issued to Plaintiff a Notice of Right to File a formal
complaint, and on October 26, 2015, Plaintiff submitted a formal EEO complaint. Id.
¶J 37-3 8.
The NEEOISO dismissed Plaintiffs complaint on November 19, 2015 because Plaintiff “made an
election to proceed before the [M$PB]” through his May 17, 2015 appeal, which concerned “the
same action challenged in the” EEO complaint. Id.
¶ 40.
F. Title VII Action Procedural History
On December 2, 2015, Plaintiff initiated this Title VII action challenging his August 30,
2014 placement and seeking lost wages, movement to a higher-level position within U$PS,
3
removal of all disciplinary letters and actions from his file, and compensation for pain and
suffering. ECF No. 1. Plaintiff filed an Amended Complaint on June 23, 2016, omitting his
requests for equitable relief such that he now seeks only compensatory and punitive damages. ECF
No. 16. Defendant subsequently filed the instant motion for summary judgment, (ECF No. 39-1
(“Def. Br.”)), seeking dismissal of Plaintiffs claims based on Plaintiffs failure to exhaust his
administrative remedies. Plaintiff filed an opposition, (ECF No. 43
(“Opp.”)), and Defendant filed
a reply, (ECF No. 44 (“Def. Reply”)). In addition, Plaintiff filed a letter on March 5, 2018, (ECF
No. 51), which the Court construed as Plaintiffs responsive statement of material facts pursuant
to Local Civil Rule 56.1.2 ECF No 55.
III.
LEGAL STANDARIS
A.
Summary Judgment
Summary judgment is appropriate if the “depositions, documents, electronically stored
information, affidavits or declarations, stipulations.
.
.
admissions, interrogatory answers, or other
materials” demonstrate that there is no genuine issue as to any material fact, and, construing all
facts and inferences in a light most favorable to the non-moving party, “the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Follockv. Am. Tel. & Tel. LongLines, 794 F.2d 860, 864 (3d Cir. 1986).
The moving party has the initial burden of proving the absence of a genuine issue of
material fact. See Celotex, 477 U.S. at 323. Once the moving party meets this burden, the nonmoving party has the burden of identifying specific facts to show that, to the contrary, there exists
2
This Court is mindful that Plaintiff is proceedingpro 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)).
4
a genuine issue of material fact for trial. See Matsushita Etec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986). The non-moving party must “go beyond the pleadings and by [its]
own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’
designate ‘specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324
(citations omitted); see also Lujan v. Nat’l Wildflfe Fed’n, 497 U.S. 871, 888 (1990) (“The object
of [Rule 56(e)] is not to replace conclusory allegations of the complaint
.
.
.
with conclusory
allegations of an affidavit.”); Big Apple BMW, Inc. v. BMWoIN Am., Inc., 974 F.2d 1358, 1363
(3d Cir. 1992) (“To raise a genuine issue of material fact,” the opponent must “exceed the ‘mere
scintilla’ threshold
.
.
.
.“
(citations omitted)). A fact is “material” if a dispute “might affect the
outcome of the suit under governing law,” and a “genuine” issue exists as to that fact “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court’s role is to determine whether there
is a genuine issue for trial, not to weigh the evidence and decide the truth of the matter. Id. at 249.
B.
Exhaustion of Administrative Remedies
“It is a basic tenet of administrative law that a plaintiff must exhaust all required
administrative remedies before bringing a claim for judicial relief.” Robinson v. Dalton, 107 F.3d
1018, 1020 (3d Cir. 1997) (citing McKart v. United States, 395 U.S. 185, 193 (1969)). Courts
require plaintiffs to exhaust these remedies in order “to promote administrative efficiency, respect
executive autonomy by allowing an agency the opportunity to correct its own errors, provide courts
with the benefit of an agency’s expertise, and serve judicial economy by having the administrative
agency compile the factual record.” Id. (quoting Heywood v. Cruzan Motors, Inc., 792 F.2d 367,
370 (3d Cir. 1986)) (internal quotation marks omitted). “The Supreme Court has explained that
when Title VII remedies are available, they must be exhausted before a plaintiff may file suit.”
Spence v. Straw, 54 F.3d 196, 200 (3d Cir.1995). “[A] court need not pass upon the merits of a
5
plaintiffs substantive claim until it satisfies itself that the claim is properly before it, including
determining whether the plaintiff properly exhausted administrative remedies.” Wilson v. MVM,
Inc., 475 f.3d 166, 173 (3d Cir. 2007).
IV.
DISCUSSION
All facts are construed in favor of Plaintiff as the non-moving party. As discussed above,
Plaintiff initiated four administrative challenges relevant to this action: (1) an EEO claim filed on
August 31, 2014; (2) an appeal to the MSPB filed on January 12, 2015; (3) a second appeal to the
MSPB filed on May 17, 2015; and (4) a second EEO claim filed on September 19, 2015. The first
two challenges pertain to Plaintiffs August 30, 2014 emergency placement, while the latter two
challenges pertain to his May 15, 2015 notice of removal. Defendant contends that because
Plaintiff did not exhaust or seek timely judicial review of any of his four challenges, review of his
claims in this Court is precluded. According to Defendant, all four challenges alleged a “mixed
case” of “retaliation for prior EEO activity coupled with an improper adverse personnel action.”
Def. Br., at 2.
Although Defendant’s motion addresses exhaustion of all four administrative
challenges, Defendant contends that only Plaintiffs August 30, 2014 placement appears to be the
basis for Plaintiffs Amended Complaint in this action, given Plaintiffs pleading is silent with
respect to the May 15, 2015 Letter of Decision. See Id. at 5, 7, 22. The Court addresses all four
administrative challenges in turn below.
A.
Plaintiff Failed to Exhaust His Administrative Challenges to His August 14,
2014 Emergency Placement
Defendant contends that Plaintiff cannot sustain a claim based on the August 14, 2014
placement because he failed to exhaust administrative remedies and timely seek judicial review.
Defendant asserts that to exhaust the claims under Title VII, Plaintiff was required to contact an
EEO counselor within 45 days of the alleged discriminatory action, see 29 C.F.R.
6
§
1614.105(a)(1), and then file a formal complaint within 15 days of receiving notice of right to file
a complaint, see 29 C.F.R.
§
1614.106(b). Here, Plaintiff timely filed a pre-complaint form with
the EEO on August 31, 2014 challenging the August 30, 2014 placement, but then did not file a
formal EEO complaint. Defendant contends that such an abandonment of the agency process
before its conclusion is a failure to exhaust that precludes judicial review. Def. Br. at 20-21. In
his opposition, Plaintiff does not dispute that afier filing his first EEO challenge on August 31,
2014, he never filed a formal EEO complaint. The Court finds that Plaintiff abandoned the agency
EEO process, which constitutes a failure to exhaust that prevents judicial review. See Green v.
Postmaster Gen. of US., 437 F. App’x 174, 177-78 (3d Cir. 2011) (affirming dismissal of civil
claim under Title VII based on plaintiffs failure to exhaust administrative claims where the
plaintiff failed to file a timely formal EEO complaint); see also Slingland v. Donahoe, 542 F.
App’x 189, 192 (3d Cir. 2013) (noting that the fact that the plaintiff “voluntarily withdrew her
M$PB appeal does not excuse her failure to exhaust”); Word v. Potter, 149 F. App’x 97, 100 (3d
Cir. 2005) (concluding that plaintiff was “barred from maintaining [his] action under Title VII”
when he failed to exhaust the administrative procedures by initiating the EEO process within 45
days of the alleged discrimination); Vinieratos v. US. Dep ‘t ofAir force, 939 F.2d 762, 770 (9th
Cir. 1991) (“[A]bandonment of the administrative process may suffice to terminate an
administrative proceeding before a final disposition is reached, thus preventing exhaustion and
precluding judicial review.”).
Defendant also contends that the MSPB’s dismissal of Plaintiffs January 12, 2015 appeal
is ineligible for judicial review. Def. Br. at 2 1-22. Specifically, Defendant asserts that even if the
MSPB had jurisdiction, Plaintiff filed his appeal more than four months after August 30, 2014 and
his claim was therefore untimely. See 5 C.F.R.
§
1201.154(a) (setting forth a 30-day deadline to
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file an appeal after the effective date of the contested action). In his opposition, Plaintiff concedes
that his January 12, 2015 appeal was untimely. Opp. at 2,
¶ 3.
Defendant further contends that
even if Plaintiffs MSPB appeal had been timely, Plaintiff failed to timely seek judicial review
within the required 30 days of the MSPB’s decision, which became final on April 30, 2015. See
29 C.F.R.
§
1614.310(a). Plaintiff does not dispute that after the MSPB dismissed his January 12,
2015 appeal for lack ofjurisdiction, Plaintiff did not contest the dismissal with the full MSPB. or
timely seek review in this Court. Plaintiff also does not dispute that he initiated the instant
litigation on December 2, 2015, approximately seven months after the MSPB’s decision became
final. The Court finds that Plaintiffs claims must be dismissed based on his failure to timely and
completely exhaust this second administrative process.
B.
Plaintiff Failed to Exhaust His Administrative Challenges to His May 15,
2015 Letter of Decision
Defendant also asserts that, to the extent Plaintiff contends that the instant litigation
challenges his proposed May 15, 2015 removal, such a challenge would fail because Plaintiff
“failed to exhaust his administrative claims and there is no judicially reviewable agency action.”
Def. Br. at 23. Specifically, Defendant argues that judicial review is precluded because the MSPB
never heard or decided Plaintiffs May 17, 2015 appeal of the May 15, 2015 notice of removal,
which had culminated in a settlement between Plaintiff and USPS. Id. at 23-24.
In addition, Defendant contends that Plaintiffs second EEO challenge initiated on
September 19, 2015 is not properly reviewable by this Court because Plaintiffs EEO claim was
filed after Plaintiff first elected to proceed before the MSPB on May 17, 2015. Id. at 24. Plaintiffs
decision to pursue the MSPB appeal was a “binding election of remedies” that precluded Plaintiffs
filing of an EEO claim. Id. (citing 29 C.F.R.
§
1614.302(b); Burkhart V. Potter, 166 F. App’x 650,
652 n.4 (3d Cir. 2006)). Defendant also argues that even if the Court were to find that Plaintiff
$
properly pursued his second EEO claim, Plaintiff failed to timely pursue that claim within 45 days
“of the effective date of the action.” Id. (quoting 29 C.F.R.
§ 1614.105(a)(1)). The May 15, 2015
Letter of Removal informed Plaintiff that his removal would “become effective on June 5, 2015,”
and Plaintiff did not file his EEO claim by July 20, 2015 (45 days from June 5, 2015).
Plaintiff does not dispute that he settled his second appeal to the MSPB or that his second
EEO complaint was dismissed because he had already challenged his proposed removal before the
MSPB. Plaintiff also does not dispute that he filed his second EEO complaint on September 19,
2015. In his opposition, however, Plaintiff states that “[o]n August 8, 2015, the agency officially
discharged plaintiff and as a result ofthis adverse action, the plaintiff filed a timely EEO complaint
on September 19, 2015.”
Opp. at 2, ¶ 5; see also Id.
at 3 (reiterating that his discharge occurred
on August 8, 2015). Similarly, in his responsive statement of material facts, Plaintiff states that
“the effective date of [his] termination was on August 8, 2015 and not on June 5, 2015” and that
he “had 45 days from date of the adverse action on August 8, 2015 to file an EEO complaint and
did so, on September 19, 2015.” ECF No. 51 at 1.
The Court finds that Plaintiffs failure to timely engage in the administrative process is a
failure to exhaust that precludes judicial review. Although Plaintiff asserts that his alleged August
8, 2015 termination, rather than the effective date ofthe May 15, 2015 Letter of Decision, triggered
the 45-day limitations period, Plaintiff omits the fact that he chose to proceed before the MSPB,
precluding him from later seeking relief through the EEO process. See 29 C.F.R.
§ 1614.302(b);
Burkhart, 166 F. App’x at 652 n.4. Moreover, Plaintiff has not alleged, and there is no basis in
the record to believe, that August 8, 2015 is the date on which Plaintiff was first notified of his
termination, i.e., the date on which the alleged discriminatory act occurred. See Urban v. Bayer
Corp. Pharm. Div., 245 F. App’x 211, 212 (3d Cir. 2007) (“For the purposes of filing a charge
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alleging unlawful termination, the limitations period is measured from the date on which the
employee was advised of her termination, and not from her last day of employment.”). The Court
agrees with Defendant that although it appears that May 15, 2015 may be the date Plaintiff received
actual notice of his termination, July 20, 2015 (45 days from the effective date of June 5, 2015)
was the last day for Plaintiff to have initiated a timely EEO challenge.
Moreover, Plaintiffs opposition states that he “was removed on August 30, 2014, in the
same manner as in his past, he was taken out of service and ‘Emergency Placed’, followed by
trumped charges and untimely grievances filed by the union, consequently, resulting in the
discharge ofplaintiff on August 8, 2015.”
Opp. at 3.
To the extent Plaintiff requests that the Court
consider his August 30, 2014 suspension and May 15, 2015 proposed removal as a course of
disciplinary conduct rather than as discrete acts, the Court declines to do so. Although the
continuing violation doctrine may save untimely claims when a plaintiff can establish that the
discriminatory conduct “is part of a pattern and at least one of those acts occurred within the
statutory limitations period,” Sarno v. Wal-Mart Stores East, L.P., No. 12-2075, 2012 WL
588036 1, at *4 (D.N.J. Nov. 20, 2012) (citation omitted), the doctrine will not permit plaintiffs to
raise untimely claims that involve “discrete acts, which are individually actionable,” 0 ‘Connor v.
City ofNewark, 440 f.3d 125, 127 (3d Cir. 2006). Here, the August 30, 2014 suspension and May
15, 2015 proposed removal are separate disciplinary actions, and exhaustion of each claim and the
applicable statute of limitations must be considered separately.3
In sum, the Court finds that plaintiff failed to exhaust his administrative remedies and
The Court also notes that Plaintiffs responsive statement of material facts alleges that U$P$
violated the terms of the August 23, 2016 settlement agreement. See ECF No. 51. Plaintiff has
not sufficiently explained how that agreement waives the statutory prerequisites for filing suit in
federal court.
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timely seek judicial review. Thus, his claims do not qualify for review by this Court. Accordingly,
the Court grants Defendant’s motion for summary judgment and dismisses Plaintiffs claims.
C.
Punitive Damages Are Unavailable
finally, the Court notes that in his Amended Complaint and opposition to Defendant’s
motion, Plaintiff requests punitive damages. ECF No. 16 at 4;
Opp.
at 3 (seeking $350,000 in
punitive damages). The Court concludes that even if Plaintiffs claims were properly before this
Court, punitive damages would be unavailable where, as here, the defendant is a government
agency. See 42 U.S.C.
§ 1981 a(b)(1) (“A complaining party may recover punitive damages under
this section against a respondent (other than a government, government agency or political
subdivision) ifthe complaining party demonstrates that the respondent engaged in a discriminatory
practice or discriminatory practices with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.” (emphasis added)); Walter v. US. Postal Serv., No.
12-1244, 2013 WL 3245204, at *4 (W.D. Pa. June 26, 2013) (granting motion to strike plaintiffs
demand for punitiye damages and concluding that the “Postal Service is a ‘government agency’
exempt from punitive damages under Title VII”).
V.
CONCLUSION
For the foregoing reasons, the Court grants Defendant’s motion for summary judgment.
An appropriate Order accompanies this Opinion.
Dated:
30,
CLAIRE C. CECCHI, U.S.D.J.
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