KIRMAN v. UNITED PARCEL SERVICE, INC. et al
Filing
18
OPINION filed. Signed by Judge Freda L. Wolfson on 11/30/2015. (eaj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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Plaintiff,
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v.
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UNITED PARCEL SERVICE, INC. d/b/a :
UPS, JOHN DOES 1-10, and ABC
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ENTITIES 1-10,
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Defendants.
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___________________________________ :
Civil Action No. 15-2357 (FLW)(LHG)
LUCAS KIRMAN,
OPINION
WOLFSON, United States District Judge:
This matter comes before the Court on a motion to dismiss, pursuant to Federal Rule of
Civil Procedure 12(b)(6), or in the alternative, a motion for summary judgment under Federal Rule
of Civil Procedure 56, filed by Defendant United Parcel Service, Inc. d/b/a UPS (“UPS” or
“Defendant”) seeking dismissal of the employment discrimination action filed by Plaintiff Lucas
Kirman (“Kirman” or “Plaintiff”). For the following reasons, the Court will convert Defendant’s
motion to one for summary judgment with respect to Defendant’s timeliness argument, and will
grant the motion in part and dismiss it in part. Specifically, the Court will deny summary judgment
on Count I of the Complaint because it is timely-filed, and will grant the motion to dismiss on
Count II of the Complaint based on Plaintiff’s failure to exhaust administrative remedies and,
without prejudice, on Count III for failure to state a prima facie case of retaliation.
I.
BRIEF FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The following facts are drawn from the Complaint and certifications submitted by the
parties and are not in dispute, except where noted. From May 2003 to October 2012, Kirman was
employed by UPS. Compl. ¶¶ 6, 33. Until March 2005, Kirman worked as a pre-loader, which
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required him to lift and lower packages that could range up to 70 pounds in weight, scan labels,
and sort packages. Id. at ¶¶ 15, 18. However, in or around March 2005, Kirman was diagnosed
with Multiple Sclerosis (“MS”), for which Kirman requested, and received, a lighter work duty as
a scanner. Id. at ¶¶ 18-20.
On April 29, 2009, Kirman took an extended medical leave of absence and was placed on
disability due to a severe relapse of his MS. Id. at ¶ 21. When Kirman returned to work on May
27, 2010, he alleges UPS did not allow him to work as a scanner, as it had before, but instead
“forced him into a variety of positions, all requiring fast paced, physically demanding work, and
heavy lifting.” Id. at ¶¶ 22, 23. Kirman alleges he made daily requests for lighter work, which his
supervisor allegedly promised him would be given, but no such position was provided. Id. at ¶ 24.
On October 29, 2010, Kirman went out on a second medical leave of absence due to his
MS symptoms and his strenuous physical duties. Id. at ¶ 26. When Kirman was cleared for work
again by his doctor, he alleges he was informed by a manager at UPS that if he could not do the
job he was originally hired to do, as a pre-loader, Plaintiff could no longer work at UPS. Id. at ¶
27. On or about March 27, 2011, Kirman met with UPS managers and requested that he be allowed
to return to his position as a scanner. Id. at ¶ 29. Plaintiff alleges that UPS managers informed
him there was no position with the official job title of scanner. Id. However, Plaintiff alleges that
women who could not perform all of the required duties were often hired as pre-loaders, but were
permitted to primarily scan packages and perform only occasional light lifting. Id. at ¶ 30.
On March 30, 2011, Plaintiff completed an U.S. Equal Employment Opportunity
Commission (“EEOC”) Intake Questionnaire (“EEOC Intake Questionnaire”). Certification of
Pauline M.K. Young, Esq., dated July 2, 2015 [hereinafter “Young Cert.”] Ex. C. In response to
question four, “[w]hat is the reason (basis) for you claim of employment discrimination,” Plaintiff
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checked only the box for “disability” and did not check “sex” or “retaliation.” Id. In response to
question seven, “[w]hat reasons were given to you for the acts you consider discriminatory?,”
Plaintiff responded, in relevant part, that “[d]uring my time of employment with UPS it was clear
that there were people hired under the title of pre-loader who could not perform all the duties
required under that job title and were only required to scan and perform some and occasional light
lifting.” Id. Similarly, in response to question eight, “[d]escribe who was the same or similar
situation as you and how they were treated,” Plaintiff responded, “N/A There are people that
cannot possibly meet the [r]equirements of lifting but still stay employed because they [a]re [never]
asked to [perform] these [d]uties [j]ust scan.” Id.
On May 26, 2011, Kirman filed a charge of discrimination with the EEOC (the “EEOC
Charge”).1 In the narrative of the EEOC Charge, Kirman stated:
I was hired by this employer on or about May 21, 2003. My most recent position
title is that of Pre-Loader.
I have a disability that this employer has been made aware of. I have certain
medical restrictions related to same. I was initially provided with a reasonable
accommodation. However, there came a point that I was told that I could not return
to work until I was fully cleared to return without restrictions. I was further
informed that if I could not perform the job I was originally hired to do, then I could
no longer work for this employer. However, on or about March 17, 2011, I had a
meeting with certain officials of this company to determine the type of reasonable
accommodation(s) that could be afforded to me. I requested that I be allowed to
return to the Scanner position that I had previously held for approximately five
years. To the best of my knowledge and belief, this position was available and I
was able to perform the functions of same. However, I was informed that this
accommodation could not be given to me because this position did not exist.
Accordingly, I feel I have been discriminated against on the basis of disability, in
violation of the Americans with Disabilities Act, as amended.
1
The Complaint makes conflicting allegations regarding the date Plaintiff filed his EEOC
charge, compare Compl. ¶ 4 (alleging May 26, 2011), with id. at ¶ 32 (alleging June 7, 2011).
Plaintiff filed the charge on May 26, 2011, and the EEOC mailed the EEOC Charge to Defendant
on June 7, 2011. Certification of Heather Weiner Brochin, Esq., dated May 26, 2015 [hereinafter
“Brochin Cert.”] Ex. A.
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Brochin Cert.. Ex. A. Kirman only marked the box for discrimination based on disability in the
EEOC Charge, and did not check the box for sex discrimination or retaliation. Id.
Plaintiff alleges that, a year and a half after the filing of the EEOC Charge, he was
constructively terminated by UPS “on or around October 2012.” Compl. ¶¶ 6, 33. On June 26,
2014, the EEOC issued a Final Determination on the EEOC Charge. Young Cert. Ex. B. The
Final Determination provided, in relevant part, that:
The evidence confirms that [Kirman] has a disability as defined by the statute, and
he had medical restrictions related to his disability. . . .
Further, the evidence of record indicates that other individuals were regularly
allowed to just perform this aspect of the position. Accordingly, this reasonable
accommodation would not have caused an undue hardship for Respondent.
Id. The Final Determination closed by inviting the parties to engage in conciliation, id., which
was apparently unsuccessful. See Certification of Robert Steve Ensor, Esq., dated September 8,
2015 [hereinafter “Ensor Cert.”] ¶¶ 2-3.
On September 3, 2014, the EEOC mailed Kirman a Notice of Right to Sue (“Notice”).
Brochin Cert. Ex. B. John Waldinger, the Area Office Director for the Newark Area Office for
the EEOC, submitted a certification in this matter in which he explained that the “general practice”
in the Newark Area Office was for him to review a notice after an investigator decides to issue
one, and if he approves it, he would sign it and give it to his administrative assistant to stamp the
“date mailed” section and, on that date, mail the notice to the recipient and any other parties “cc’d”
in the notice. Certification of John Waldinger, dated September 8, 2015 [hereinafter “Waldinger
Cert.”] ¶¶ 1-4. Robert S. Ensor, Esq., an attorney who represented UPS in the conciliation
proceeding before the EEOC with respect to Kirman’s discrimination claim, submitted a
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certification stating that he received a “cc’d” copy of the Notice on or before September 8, 2014.2
Ensor Cert. ¶¶ 1-5.
Kirman alleges that he did not receive the Notice until January 10, 2015, when his former
attorney received a copy of the Notice from the EEOC.3 Compl. ¶¶ 5, 34. Kirman has submitted
a certification in which he attests that he “do[es] not recall ever receiving a Notice of Right to Sue
from the EEOC other than [the one that was] forwarded by my attorney, Mr. Albert J. Rescinio, in
or around January 2015.” Certification of Lucas Kirman, dated July 16, 2015 [hereinafter “Kirman
Cert.”] ¶ 2. Kirman further stated that he is “confident that [he] never received a notice of right to
sue directly from the EEOC” because, due to his suffering from MS and his “acute[] awareness
that this disease could have a negative effect upon [his] memory,” he is “very careful to keep
everything related to [his] claim with the EEOC in a single folder,” and “[i]f anything had come
in, [he] would have immediately put it in that folder for safe keeping[, but] [t]here is not such
Notice in [his] folder.” Id. at ¶ 3.
Deborah Kirman, Plaintiff’s mother, submitted a certification in which she described the
“extraordinary precautions” that Kirman takes, due to his “acute[] aware[ness] of his cognitive
2
Due to an intervening weekend, Monday, September 8, 2014 was the third business day
following the stamped date of mailing on Wednesday, September 3, 2014.
3
Plaintiff’s former attorney, Albert J. Rescinio, Esq., “did not represent [Kirman] on the
actual EEOC submission”; instead, Mr. Rescinio “only represented Mr. Kirman with regard to
assisting Mr. Kirman in reaching out to the EEOC to obtain records regarding his filing with the
EEOC.” Certification of Albert J. Rescinio, Esq., dated August 27, 2015 [hereinafter “August
Rescinio Cert.”] at ¶ 2. Mr. Rescinio contacted Mr. Waldinger and a “Mr. Dudt” at the EEOC to
“obtain the documents regarding Mr. Kirman’s case,” August Rescinio Cert. ¶ 3, and, in response,
received a copy of the Notice on January 10, 2015, which was post-marked January 7, 2015.
Certification of Albert J. Rescinio, Esq., dated June 26, 2015 [hereinafter “June Rescinio Cert.”]
at ¶¶ 2, 4. Mr. Rescinio avers that after he reviewed the Notice, he contacted Mr. Dudt at the
EEOC to request a proof of mailing, and that “Mr. Dudt indicated that there was no proof of
mailing.” Id. at ¶ 6.
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deficits,” to ensure that “potentially important information is not forgotten or misplaced.”
Certification of Deborah Kirman, dated August 27, 2015 [hereinafter “Deborah Kirman Cert.”] ¶
8; see also id. at ¶¶ 2-7 (describing Kirman’s medical history and history of brain damage).
Specifically, Ms. Kirman avers:
Every piece of mail [Kirman] received was, and continues to be, put immediately
into a designated folder which he keeps by his side. As soon as he received each
piece of mail, he would call me to tell me he had received a piece of mail, and
who[m] that mail was from. He would then place that mail in the appropriate folder
and I would then review it that evening after work. If he received a phone call
which might be important, he would immediately call me and relay the contents of
that phone call. He would also type in reminders on his notebook, which is always
kept on the coffee table in front of where he sits daily. This has been our routine
since [Kirman] was discharged from the hospital in late December, 2011, and it
remains our routine to this day.
Id. at ¶ 8. Ms. Kirman states that “[t]here has never been even a single occasion when [she] did
not review each piece of mail on the same day [Kirman] received it.” Id. at ¶ 9. Further, Ms.
Kirman states that “[a]t no time, during [her] daily review of [Kirman’s] mail, did [she] ever see
any correspondence from anyone at the EEOC referencing or mentioning in any way, Notice of
Right to Sue, prior to Mr. Rescinio’s receipt of a package from the EEOC on January 10, 2015[.]”
Id. at ¶ 11.
On April 3, 2015, within 90 days of Mr. Rescinio’s receipt of the Notice, Plaintiff filed this
lawsuit, asserting claims for discrimination under the American with Disabilities Act of 1990
(“ADA”) (Count I); discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”)
(Count II); and retaliation under the ADA (Count III). On May 26, 2015, Defendant filed the
instant motion to dismiss, or in the alternative seeking summary judgment, in lieu of Answer.
II.
STANDARD OF REVIEW
Defendant moves both for dismissal under Federal Rule of Civil Procedure 12(b)(6) or, in
the alternative, for summary judgment under Federal Rule of Civil Procedure 56.
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A.
Motion to Dismiss Standard
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a claim “for
failure to state a claim upon which relief can be granted.” When reviewing a motion to dismiss,
courts must first separate the factual and legal elements of the claims, and accept all of the wellpleaded facts as true. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). All
reasonable inferences must be made in the plaintiff’s favor. See In re Ins. Brokerage Antitrust
Litig., 618 F.3d 300, 314 (3d Cir. 2010). In order to survive a motion to dismiss, the plaintiff must
provide “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). This standard requires the plaintiff to show “more than a
sheer possibility that a defendant has acted unlawfully,” but does not create as high of a standard
as to be a “probability requirement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Third Circuit has required a three-step analysis to meet the plausibility standard
mandated by Twombly and Iqbal. First, the court should “outline the elements a plaintiff must
plead to a state a claim for relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). Next, the
court should “peel away” legal conclusions that are not entitled to the assumption of truth. Id.; see
also Iqbal, 556 U.S. at 678-79 (“While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”). It is well-established that a proper
complaint “requires more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal quotations and citations
omitted). Finally, the court should assume the veracity of all well-pled factual allegations, and
then “determine whether they plausibly give rise to an entitlement to relief.” Bistrian, 696 F.3d at
365 (quoting Iqbal, 556 U.S. at 679). A claim is facially plausible when there is sufficient factual
content to draw a “reasonable inference that the defendant is liable for the misconduct alleged.”
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Iqbal, 556 U.S. at 678. The third step of the analysis is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679.
Generally, when determining a motion under Rule 12(b)(6), the court may only consider
the complaint and its attached exhibits. However, while “a district court may not consider matters
extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may
be considered without converting the motion to dismiss into one for summary judgment.” Angstadt
v. Midd-West Sch. Dist., 377 F.3d 338, 342 (3d Cir. 2004) (citation omitted); see also In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
B.
Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if
the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” When applying this standard, the court must examine the factual
record and reasonable inferences therefrom in the light most favorable to the party opposing
summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
The moving party has the initial burden of proving to the district court the absence of
evidence supporting the non-moving party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v. Metro. Life
Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). The burden then shifts to the non-movant to come
forward with specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e); Williams v.
Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989) (the non-movant must present
affirmative evidence – more than a scintilla but less than a preponderance – which supports each
element of his claim to defeat a properly presented motion for summary judgment). The non-
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moving party must go beyond the pleadings and show specific facts by affidavit or by information
contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to
meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322; see also
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). The non-moving party “must present
more than just bare assertions, conclusory allegations or suspicions to show the existence of a
genuine issue.” Garcia v. Kimmell, 381 F. Appx. 211, 213 (3d Cir. 2010) (quoting Podobnik v.
U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)).
When considering a motion for summary judgment, the court is not permitted to weigh the
evidence or to make credibility determinations, but is limited to deciding whether there are any
disputed issues and, if there are, whether they are both genuine and material. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986).
III.
DISCUSSION
Defendant’s motion advances three arguments: (1) the Complaint is untimely under the
90-day rule; (2) Counts II and III of the Complaint are barred for failure to exhaust administrative
remedies; and (3) Count III of the Complaint fails to state a prima facie case of retaliation. Under
Federal Rule of Civil Procedure 12(d), if “matters outside the pleadings are presented to and
not excluded by the Court, the motion must be treated as one for summary judgment under Rule
56.” Since both parties have submitted certifications which go beyond the pleadings with respect
to Defendant’s timeliness argument, the Court will treat that portion of Defendant’s motion as one
for summary judgment.4 Fed. R. Civ. P. 12(d); Greer v. Smith, 59 F. Appx. 491, 492 (3d Cir.
2003); see also McLaughlin v. Forty Fort Borough, 64 F. Supp. 3d 631, 648 (M.D. Pa. 2014)
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No additional notice to the parties is required because Defendant moved for summary
judgment in the alternative. See Davis v. Brown, 556 F. Appx. 87, 89-90 (3d Cir.), cert. denied,
__ U.S. __, 135 S. Ct. 246 (2014).
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(partially converting motion to dismiss to summary judgment). As discussed in more detail below,
the Court finds that (1) the Complaint is timely; (2) Count II is barred for failure to exhaust
administrative remedies; and (3) Count III must be dismissed without prejudice based on Plaintiff’s
failure to sufficiently allege a prima facie case of retaliation.
A.
Plaintiff has Submitted Sufficient Evidence to Rebut the Presumption that He
Received the EEOC’s Notice of Right to Sue within 3 Days of its First Mailing.
Defendant has submitted the Notice, stamped as mailed on September 3, 2014, along with
three certifications to support its argument that Plaintiff is presumed to have received the Notice
within three days of its mailing, and, therefore, the Complaint filed on April 3, 2015 is not timelyfiled. In response, Plaintiff has submitted four certifications in support of his position that the
Notice was not received by Plaintiff or Plaintiff’s former attorney until January 10, 2015 and,
therefore, the Complaint is timely-filed. As discussed in more detail below, the Court finds that
Plaintiff has submitted sufficient evidence to rebut the presumption that he received the Notice
within three days of its mailing on September 3, 2014. Accordingly, because Defendant has not
submitted any evidence of Plaintiff’s actual receipt of the Notice prior to January 10, 2015, this
Court finds that the Complaint is timely-filed.
To pursue a private action under Title VII or the ADA, a plaintiff must file his or her
complaint within ninety days of receipt of the notice of right to sue from the EEOC. 42 U.S.C. §
2000e-5(f)(1); Edwards v. Bay State Milling Co., 519 F. Appx. 746, 748 (3d Cir. 2013). “The
ninety-day period for filing a private action after receiving a right to sue letter is treated as a statute
of limitations issue and is strictly construed.” Williams v. Kaztronix, No. 13-0652, 2014 U.S. Dist.
LEXIS 41147, at *11 (D.N.J. Mar. 26, 2014) (citing Burgh v. Borough Council of Montrose, 251
F.3d 465, 470 (3d Cir. 2001)); see also Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236,
239-40 (3d Cir. 1999). “The Third Circuit has strictly construed this requirement and has held that
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a complaint filed ‘even one day beyond the ninety day window is untimely and may be dismissed
absent an equitable reason for disregarding this statutory requirement.’” Williams, 2014 U.S. Dist.
LEXIS 41147 at *11 (quoting Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 176 (3d Cir. 1999)).
The burden of proof is on the defendant to establish the affirmative defense that suit was filed after
the expiration of the 90-day time period. Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 108 (3d
Cir. 2003).
“The statutorily-created ninety-day period starts when either the claimant or [his] attorney
receives a right-to-sue letter, whichever is earlier.” Seitzinger, 165 F.3d at 239 n.1 (citing Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89, 92-93 (1990)). “When the actual date of receipt is known,
that date controls; where the actual date of receipt is unknown, courts will presume receipt took
place three days after the EEOC mailed it.” Edwards, 519 F. Appx. at 748 (citing Seitzinger, 165
F.3d at 239); see also Dicroce v. Norton, 218 F. Appx. 171, 174 (3d Cir. 2007). The presumption
is a rebuttable one, Ebbert, 319 F.3d at 108 n.5, but “[i]t is Plaintiff’s burden to rebut the
presumption.” Olan v. RR Donnelley & Sons Co., No. 07-3209, 2007 U.S. Dist. LEXIS 75534, at
*5-6 (E.D. Pa. Oct. 10, 2007) (citing Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526 (2d Cir.
1996)); see also Tate-Linton v. N.J. Transit Rail Operations, Inc., No. 14-4084, 2015 U.S. Dist.
LEXIS 52603, at *3 (E.D. Pa. Apr. 21, 2015). The presumption can be rebutted by “sworn
testimony or other admissible evidence” indicating the notice was received later than three days
after mailing. Sherlock, 84 F. 3d at 526.
In this matter, Defendant has submitted ample evidence that the Notice was mailed to
Plaintiff on September 3, 2014, triggering the presumption of receipt within three days of mailing.
See Jaramillo v. Solis, No. 07-2031, 2010 U.S. Dist. LEXIS 33722, at *8-9 (D.N.J. Apr. 5, 2010);
see also Zamora v. GC Servs., LP, No. 15-0048, 2015 U.S. Dist. LEXIS 102020, at *7-8 (W.D.
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Tex. Aug. 4, 2015). Indeed, Plaintiff does not – and cannot – dispute that the EEOC mailed him
the Notice on September 3, 2014. Instead, Plaintiff argues that he did not receive the Notice until
his former attorney received it on January 10, 2015. Based on the evidence submitted by Plaintiff,
the Court finds that Plaintiff has sufficiently rebutted the presumption of receipt.
To be sure, Plaintiff’s own “bare” assertion that he merely “do[es] not recall” receiving the
Notice prior to when his former attorney received it on January 10, 2015, Kirman Cert. ¶ 2, by
itself, would be insufficient to rebut the presumption. See Jaramillo, 2010 U.S. Dist. LEXIS 33722
at *9; see also Sherlock, 84 F.3d at 526 (holding that Plaintiff’s sworn assertion “that she had no
recollection of when she received the letter,” insufficient to rebut presumption). However, in this
matter, Plaintiff offers more than his own assertion of non-receipt: the certifications of his mother
and former attorney.
First, Plaintiff’s mother attests that she and Plaintiff implemented a rigorous screening
system to ensure that important mail was not lost or forgotten because of the “great importance”
Plaintiff placed both on his EEOC matter in particular and out of general concern that other
important information might be lost of misplaced due to his cognitive impairments. Deborah
Kirman Cert. ¶¶ 2-11; see Mulrooney v. Corp. Serv. Co., No. 12-0163, 2013 U.S. Dist. LEXIS
42876, at *23-27 (D. Del. Mar. 27, 2013) (finding plaintiff’s sworn statement of non-receipt was
corroborated by, among other things, his attorneys’ sworn statement that his office did not receive
an EEOC notice of right to sue until it was forwarded by defendant’s attorney, and “that they were
aware of the importance of the Notice, and that they routinely searched the office mail (such that
had the Notice arrived, they would likely have seen it).”). Second, although Plaintiff did not
employ an attorney to represent him before the EEOC, he did retain an attorney for the specific
purpose of following-up with the EEOC regarding the Notice – precisely because Plaintiff (and
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his mother) had not received the Notice. See August Rescinio Cert. ¶ 2; see also Duron v.
Albertson’s LLC, 560 F.3d 288, 289-91 (5th Cir. 2009) (finding that a plaintiff’s sworn affidavit
of non-receipt was corroborated by “evidence that she and her attorney made several attempts to
contact the EEOC to inquire as to the status of her case” after the 90-day period following the
original mailing of the notice of right to sue); Schmidlin v. Uncle Ed’s Oil Shoppes, Inc., No. 1310552, 2014 U.S. Dist. LEXIS 100641, at *13-15 (E.D. Mich. July 22, 2014) (same). Based on
these facts, the Court finds that Plaintiff has submitted sufficient evidence to rebut the presumption
of receipt. See generally Matsushita, 475 U.S. at 587 (reasonable inferences must be drawn in
light most favorable to the party opposing summary judgment).
Because Plaintiff has met his burden to rebut the presumption of receipt, the burden then
shifts back to Defendant to show the affirmative defense of late-filing. See Ebbert, 319 F.3d at
108. However, Defendant’s motion relied exclusively on the presumption of receipt and, therefore,
Defendant has submitted no evidence that Plaintiff actually received the Notice on September 6,
2014 – or any time prior to Plaintiff’s former attorney’s receipt on January 10, 2015. Accordingly,
Defendant has failed to meet its burden to prove the affirmative defense of late-filing, and this
Court finds that the Complaint, filed on April 3, 2015, was timely-filed.
B.
Plaintiff Failed to Exhaust Administrative Remedies for his Gender
Discrimination Claim under Title VII.
Defendant moves to dismiss Count II of the Complaint based on Plaintiff’s failure to
exhaust administrative remedies because he did not complain of gender discrimination in his
EEOC Charge. A plaintiff cannot proceed in federal court with a claim of gender discrimination
under Title VII without first exhausting administrative remedies by filing a timely EEOC charge.
Nguyen v. Wal-Mart, No. 12-1824, 2013 U.S. Dist. LEXIS 88948, at *11-12, 15 (D.N.J. June 25,
2013); see also Mandel v. M&Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013). “[T]he
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parameters of the civil action in the district court are defined by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of discrimination,
including new acts which occurred during the pendency of proceedings before the [EEOC].”
Mandel, 706 F.3d at 163 (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d
Cir. 1976), cert. denied, 429 U.S. 1041 (1977)). “A plaintiff's claim [brought in the district court]
must thus fall ‘fairly within the scope of the prior EEOC complaint, or the investigation arising
therefrom.’” Id. (quoting Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996)). The defendant bears
the burden of showing the affirmative defense of failure to exhaust administrative remedies.
Slingland v. Donahoe, 542 F. Appx. 189, 191 n.3 (3d Cir. 2013).
Plaintiff argues that the EEOC was on notice of his gender discrimination because he
“advised the EEOC that other employees, such as female employees, had been assigned light
duty/scanner work – the same assignment that UPS told Plaintiff did not exist.” Plaintiff’s Opp.
Br. at 9. However, nowhere in his EEOC Charge or EEOC Intake Questionnaire does Plaintiff
complain of gender discrimination – not only did he fail to check off the box indicating that charge
was part of his claim, but he also only asserted in the EEOC Intake Questionnaire that “people”
were provided accommodations that he had requested. Young Cert. Ex. C.
In Antol, the Third Circuit rejected an argument identical to Plaintiff’s argument in this
matter and found that a similarly-deficient gender discrimination claim was barred for failure to
exhaust administrative remedies. Antol involved a plaintiff who asserted a claim for disability
discrimination under the ADA in his EEOC charge, but failed to assert a claim for gender
discrimination. The plaintiff then filed suit in federal court, asserting claims for both disability
and gender discrimination, arguing that the gender discrimination claim ought to have been
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revealed by the EEOC’s investigation, based on the sex of the employees who received positions
over him. The Third Circuit disagreed, holding:
The specifics of [Antol’s] disability discrimination charge do not fairly encompass
a claim for gender discrimination merely because investigation would reveal that
Antol is a man and the two employees who received the positions are women. The
investigation focused, quite properly we think, on the gravamen of
Antol’s complaint--disability discrimination. Neither the EEOC nor the agency
were put on notice of a gender discrimination claim. The purpose of requiring
exhaustion is to afford the EEOC the opportunity to settle disputes through
conference, conciliation, and persuasion, avoiding unnecessary action in court.
Antol failed to exhaust administrative remedies for his gender discrimination claim.
Antol, 82 F.3d at 1296.
Here, Plaintiff similarly argues that the EEOC should have intuited that he also wished to
assert a gender discrimination claim based solely on the fact that the EEOC’s investigation should
have discovered that the “people” he claimed were receiving accommodations he requested were
female. Young Cert. Ex. C. Moreover, Plaintiff only included his assertion that other “people”
were receiving accommodations in his EEOC Intake Questionnaire, and not his EEOC Charge.
See Johnson v. Chase Home Fin., 309 F. Supp. 2d 667, 672 (E.D. Pa. 2004) (“Courts in this Circuit
have found that intake questionnaires do not serve the same function as the formal charge, are not
part of the formal charge, and therefore do not satisfy the exhaustion requirement in circumstances
such as this where a claim marked off in the questionnaire is omitted from the charge and where
the EEOC does not investigate the omitted claim.”); see also Binder v. PPL Servs. Corp., No. 062977, 2009 U.S. Dist. LEXIS 103814, at *16-18 (E.D. Pa. Nov. 5, 2009) (same). Indeed, Plaintiff’s
EEOC Charge contains no facts regarding Plaintiff’s complaints of gender discrimination, or even
that other “people” received the accommodations that he requested. Brochin Cert. Ex. A. Like in
Antol, the mere fact that the EEOC’s investigation would possibly reveal that the “people” Plaintiff
claimed were receiving the accommodations were female (and, indeed did find that “other
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individuals were regularly allowed to just perform [the scanning] aspect of the [pre-loader]
position,” Young Cert. Ex. B), is insufficient to put the EEOC on notice that Plaintiff was also
claiming gender discrimination. Accordingly, the Plaintiff failed to exhaust his administrative
remedies for a claim of gender discrimination when he did not file a separate EEOC charge (or
amend his initial EEOC charge) to put the EEOC on notice that his claim included gender
discrimination.
C.
Plaintiff Has Failed to Plead a Prima Facie Case of Retaliation.
Finally, Defendant moves to dismiss Count III of the Complaint (retaliation under the
ADA) for failure to state a claim. “In order to establish a prima facie case of illegal retaliation
under the anti-discrimination statutes, a plaintiff must show: (1) protected employee activity; (2)
adverse action by the employer either after or contemporaneous with the employee’s protected
activity; and (3) a causal connection between the employee’s protected activity and the employer’s
adverse action.” Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 759 (2004) (quoting
Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir.), cert. denied, 537 U.S. 824 (2002)),
cert. denied, 544 U.S. 961 (2005). A plaintiff may show a causal connected through “(1) temporal
proximity between the protected activity and the adverse employment action; (2) an intervening
pattern of antagonism; or (3) other facts, that, when ‘looked at as a whole,’ are sufficient to raise
an inference.” Newton-Haskoor v. Coface N. Am., No. 11-3931, 2012 U.S. Dist. LEXIS 68972, at
*16 (D.N.J. May 17, 2012) (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280-81 (3d
Cir. 2000)), aff’d, 524 F. Appx. 808 (3d Cir. 2013).
Here, Plaintiff provides only a conclusory allegation that “Defendants retaliated against
Plaintiff, inter alia, by harassing him and ultimately terminating his employment because of the
filing of his EEOC charge.” Compl. ¶ 53; see Iqbal, 556 U.S. at 678-79 (“While legal conclusions
16
can provide the framework of a complaint, they must be supported by factual allegations.”).
Nowhere in the Complaint does Plaintiff allege any facts to support his conclusory allegation that
Defendant “harass[ed]” Plaintiff, nor any facts that show causality between Plaintiff’s filing of an
EEOC Charge on May 26, 2011, Compl. ¶ 4; Brochin Cert. Ex. A, and his alleged harassment or
constructive discharge in October 2012, Compl. ¶¶ 6, 33, 53, which both occurred while the EEOC
investigation was pending.
Accordingly, Count III of the Complaint is dismissed without
prejudice, and Plaintiff may amend his Complaint to sufficiently allege facts which, if true, would
be sufficient to show (1) conduct that Defendant engaged in that Plaintiff alleges constituted
harassment and (2) a causal connection between Plaintiff’s engagement in a protected activity and
the adverse employment action(s) taken by Defendant.5 See Grayson v. Mayview State Hosp., 293
F.3d 103, 106 (3d Cir. 2002).
IV.
CONCLUSION
For the foregoing reasons, Defendant’s motion is granted in part and denied in part.
Specifically, Count II of the Complaint is dismissed for failure to exhaust administrative remedies,
5
Defendant also moves for dismissal of Count III of the Complaint (retaliation under the
ADA) based on a failure to exhaust administrative remedies. However, as discussed above,
Plaintiff has failed to plead sufficient facts in support of this claim, which prevents this Court from
determining whether Plaintiff’s retaliation claim “fall[s] ‘fairly within the scope of the prior EEOC
complaint, or the investigation arising therefrom,’” Mandel, 706 F.3d at 163 (quoting Antol, 82
F.3d at 1295), so as to excuse the requirement of filing a separate charge with the EEOC.
Accordingly, the Court will not address Defendant’s exhaustion argument with respect to the
retaliation claim at this time. However, if Plaintiff chooses to file an amended complaint to
sufficiently allege a prima facie case of retaliation, he should also allege facts that show that his
retaliation claim for harassment and constructive discharge was within the scope of the EEOC’s
investigation of his disability discrimination claim – beyond the mere fact that the harassment and
discharge occurred while the EEOC investigation was pending – such that it would have been
revealed in a reasonable investigation. See Robinson v. Dalton, 107 F.3d 1018, 1024 (3d Cir.
1997) (declining to adopt a per se rule that “any complaint of retaliation occurring during the time
when prior EEOC complaints are pending necessarily falls within the scope of those complaints”);
see also Young Cert. Ex. B (EEOC Final Determination noting that Plaintiff was “ultimately
separated from employment.”).
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and Count III of the Complaint is dismissed without prejudice for failure to state a prima facie
case of retaliation.
Dated: November 30, 2015
/s/ The Honorable Freda L. Wolfson
United States District Judge
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