HANDLE v. BRENNAN et al

Filing 66

OPINION filed. Signed by Judge Brian R. Martinotti on 1/11/2019. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
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Plaintiff,
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v.
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MEGAN J. BRENNAN and UNITED
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STATES POSTAL SERVICE,
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Defendants.
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____________________________________:
VICTORIA HANDLE,

Civil Action No. 3:15-cv-8071-BRM-TJB

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court is a Motion to Dismiss filed by Defendants Megan J. Brennan and United
States Postal Service (“Defendants”) seeking to dismiss Count Three of Plaintiff Victoria Handle’s
(“Plaintiff” or “Handle”) First Amended Complaint (“Amended Complaint”) pursuant to Federal
Rule of Civil Procedure 12(b)(6). (ECF No. 56.) Plaintiff filed an Opposition to Defendants’
Motion to Dismiss. (ECF No. 61.) On November 7, 2018, this Court heard oral argument on
Defendants’ Motion to Dismiss. For the reasons set forth below, Defendants’ Motion to Dismiss
is GRANTED.
I.

PROCEDURAL AND FACTUAL BACKGROUND
A. Factual Background

For the purposes of this Motion to Dismiss, the Court accepts as true all factual allegations
in the Amended Complaint and draws all inferences in the facts alleged in the light most favorable
to the Plaintiff. Handle asserts age and gender discrimination claims arising from her employment
with USPS, where she has worked since April 14, 1984. (Compl. (ECF No. 1).) Handle worked as

a supervisor of distribution operations at a USPS facility in Eatontown, New Jersey from 1984
until 2012. (Id. ¶ 3.) Some time in 2010 or 2011, Mary Ducey (“Ducey”) became Handle’s
supervisor and allegedly began discriminating against Handle due to her gender. (Id. ¶ 4.) For
example, Handle claims USPS needed to reassign one of the five supervisors at the Eatontown
facility to a facility in Trenton, and Ducey told Handle she would have to be transferred because
she was the only female among the five supervisors, despite being the most senior of the
supervisors. (Id. ¶ 5-6.) Handle was “upset” when she learned of the transfer and Ducey falsely
reported to the Postal Police that Handle was suicidal and a threat to herself and others. (Id. ¶ 7.)
Handle was required to leave work and spent several hours in the hospital due to Ducey’s report.
(Id.) Ducey told other USPS employees Handle had been hospitalized and had suffered a nervous
breakdown, and disclosed Handle’s confidential medical information to them. (Id. ¶ 9.)
On September 26, 2012, Handle was transferred to the Trenton facility, where she claims
she experienced pain and suffering as a result. (Id. ¶ 10.) Handle’s vacation schedule was changed
over her protests, and a less experienced male employee received the schedule she had requested.
(Id.) Her new supervisor, Yvette Jackson, harassed her by issuing baseless reprimands and warning
letters. (Id. ¶¶ 10-11.) Handle contends Jackson harassed her because she is a woman, is over the
age of forty, and had filed an EEO Complaint. (Id. ¶ 12.)
B. Administrative Proceedings
On August 21, 2012, Handle filed an Information for Pre-Complaint Counseling. (Decl. of
David F. Corrigan, Esq. in Opp’n to Ds.’ Mot. for J. on the Pleadings (“Corrigan Decl.”) (ECF
Nos. 39-2 and 41-1), Ex. A.)1 On November 6, 2012, USPS issued a Notice of Right to File, which

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Exhibits D, E, F, G, Q, R, and S of the Corrigan Declaration are filed under ECF No. 39-2, and
Exhibits A, B, C, H, I, J, K, L, M, N, O, and P are filed under ECF No. 41-1. For consistency, the
Court cites to the “Corrigan Decl.” without reference to the corresponding electronic filing
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informed Handle that she had the right to file a formal complaint. (Id., Ex. B.) On December 18,
2012, Handle filed her formal EEO Complaint of Discrimination, which she later amended three
times. (Id., Exs. C, E, F, & G.) USPS accepted twelve issues for investigation. (Id., Exs. E, F, and
G.) The twelve issues accepted for investigation were: (1) Handle’s selection for transfer from the
Eatontown facility; (2) Ducey’s report of Handle to the police, which led to Handle’s
hospitalization, and disclosure of Handle’s medical information to other employees; (3) Handle’s
placement on Emergency Placement status; (4) management’s refusal to reinstate Handle when
she was cleared to return to work; (5) management’s public embarrassment of Handle on two
separate instances; (6) denial of Handle’s requests for leave on Mother’s Day and Easter; (7)
management subjecting Handle to four pre-disciplinary interviews; (8) Handle was not granted
interviews for positions to which she applied; and (9)-(12) Handle was issued four separate
warning letters for delays of mail. (Id., Ex. G.)
On November 6, 2013, USPS issued a Final Agency Decision, which rejected all of
Handle’s claims of discrimination, retaliation, and disclosure of confidential medical information.
(Id., Ex. K.) On November 15, 2013, Handle appealed the Final Agency Decision to the Equal
Employment Opportunity Commission Office of Federal Operations (“EEOC OFO”). (Id., Ex. L.)
On June 10, 2015, the EEOC OFO issued a decision affirming the Final Agency Decision in part
and reversing in part. (Id., Ex. M.) Specifically, the EEOC OFO reversed the Final Agency
Decision on the second issue—the disclosure of Handle’s medical information—and remanded the
case to USPS. (Id.) On August 19, 2015, USPS issued a second Final Agency Decision in which
it awarded Handle $1,000.00 in non-pecuniary compensatory damages for the disclosure of her
medical information. (Id., Ex. O.) On September 17, 2015, Handle appealed the second Final

document number.
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Agency Decision, and on March 10, 2016, the EEOC OFO dismissed her appeal. (Id., Exs. P &
Q.)
C. Proceedings in this Lawsuit
On November 13, 2015, Handle filed her initial complaint, asserting: (1) a claim for sex
discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000E, et seq.
(Count One); (2) a claim for age discrimination in violation of the Age Discrimination in
Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621, et seq. (Count Two); (3) a
claim for illegal disclosure of confidential medical information in violation of the Americans with
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq. (Count Three); and (4) a claim for
retaliation (Count Four). (ECF No. 1, ¶¶ 15-28.)
On April 21, 2017, Defendants filed a Motion for Judgment on the Pleadings, or in the
alternative, seeking summary judgment. (ECF No. 21.) On June 5, 2017, Handle filed an
Opposition to Defendant’s Motion. (ECF No. 39.) On April 30, 2018, this Court issued an Opinion
and Order dismissing Counts One, Two, and Four with prejudice, and dismissing Count Three
without prejudice. (ECF Nos. 53 & 54.) Specifically, this Court found that Handle failed to exhaust
all remedies available to her, and alternatively failed to adequately plead that exhausting such
remedies would be futile. (ECF No, 53 at 8-10.) This Court provided Handle thirty days in which
to file an Amended Complaint with respect to Count Three. (ECF No. 54.)
On May 30, 2018, Handle filed an Amended Complaint, specifically adding allegations in
Paragraphs 26-35. (ECF No. 55.) On June 13, 2018, Defendants filed a Motion to Dismiss
Handle’s Amended Complaint. (ECF No. 56.) On August 6, 2018, Handle filed an Opposition to
Defendants’ Motion to Dismiss (ECF No. 61) and on August 13, 2018, Defendants filed a Reply
Brief in response to Handle’s Opposition. (ECF No. 62).

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II.

LEGAL STANDARDS

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
district court is “required to accept as true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable to the [plaintiff].” Phillips v. Cty. of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). “[A] complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007) (citations omitted). However, the plaintiff’s “obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A
court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan,
478 U.S. at 286. Instead, assuming the factual allegations in the complaint are true, those “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a probability
requirement.’” Id. (quoting Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).

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“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
However, courts are “not compelled to accept ‘unsupported conclusions and unwarranted
inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (quoting Schuylkill Energy
Res. Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997)), nor “a legal conclusion
couched as a factual allegation.” Papasan, 478 U.S. at 286.
While, as a general rule, the court may not consider anything beyond the four corners of
the complaint on a motion to dismiss pursuant to Rule 12(b)(6), the Third Circuit has held that “a
court may consider certain narrowly defined types of material without converting the motion to
dismiss [to one for summary judgment pursuant to Rule 56].” In re Rockefeller Ctr. Props. Sec.
Litig., 184 F.3d 280, 287 (3d Cir. 1999). Specifically, courts may consider any “‘document integral
to or explicitly relied upon in the complaint .’” In re Burlington Coat Factory Secs. Litig., 114
F.3d 1410, 1426 (3d Cir. 1997) (quoting Shaw v. Dig. Equip. Corp., 82 F.3d 1194, 1220 (1st Cir.
1996)).
III.

DECISION
A. Exhaustion of Administrative Remedies

“[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.” Marley v. Donahue, 133 F. Supp. 3d 706, 715 (D.N.J. 2015) (citing Wilson
v. MVM, Inc., 475 F.3d 166, 173 (3d Cir. 2007)). The exhaustion of administrative remedies

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requirement applies to claims asserted pursuant to Title VII, the ADEA, and the Rehabilitation
Act. Slingland v. Donahue, 542 F. App’x 189, 193 (3d Cir. 2013) (holding Title VII and ADEA
claims require administrative exhaustion); Wilson, 475 F.3d at 173 (holding that Rehabilitation
Act claims require exhaustion). In general, the process includes: (1) making contact with an EEO
counselor within forty-five days of the alleged discriminatory action; (2) filing a formal complaint
with the EEOC within fifteen days 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 days of the agency’s decision. Marley, 133 F. Supp. at 715, n.16 (citing 29 C.F.R.
§§ 1614.105-1614.109, 1614.401, 1614.407(a); see also Green v. Postmaster Gen., 437 F. App’x
174, 177-78 (3d Cir. 2011).
On August 19, 2015, the USPS issued a second Final Agency Decision in which it awarded
Handle $1,000.00 in non-pecuniary compensatory damages for the disclosure of her medical
information. (ECF No. 55 ¶ 30.) As part of the decision, the USPS notified Handle as follows:
This decision affirms the Agency’s final decision/action in part, but
it also requires the Agency to continue its administrative processing
of a portion of your complaint. You have the right to file a civil
action in an appropriate United States District Court within ninety
(90) calendar days from the date you receive this decision on both
that portion of your complaint which the commission has affirmed
and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file
a civil action after one hundred and eight (180) calendar days of the
date you filed your complaint with the Agency, or your appeal with
the Commission, until such time as the Agency issues its final
decision on your complaint.
(ECF No. 55 ¶ 31.)
In her Amended Complaint, Handle fails to mention that she filed an appeal of the August
19, 2015 Final Agency Decision on September 17, 2015. (ECF No. 39-1 ¶ 17; Corrigan Decl., Ex.
P.) Pursuant to 29 C.F.R. § 1614.407(d), “[a] complainant who has filed an individual complaint
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. . . is authorized under [T]itle VII, the ADEA and the Rehabilitation Act to file a civil action in
an appropriate United States District Court . . . [a]fter 180 days from the date of filing an appeal
with the Commission if there has been no final decision from the Commission.” Therefore, Handle
could not assert her Rehabilitation Act claim in United States District Court at any point before
March 15, 2016, which was 180 days after the date she filed her appeal, September 17, 2015.
Handle filed her complaint on November 13, 2015. (ECF No. 1.) Accordingly, Handle did not
exhaust her administrative remedies.
This Court previously found Handle’s substantial compliance argument unpersuasive (ECF
No. 53 at 9-10), and Handle’s Amended Complaint and Opposition Brief provide no additional
allegations or authority supporting a finding of substantial compliance. The Third Circuit has
affirmed the dismissal of Title VII claims where the plaintiff filed the complaint fewer than 180
days from their EEOC appeal. Wadha v. Sec’y Dep’t of Veterans Affairs, 396 F. App’x 881, 885
n.5 (3d Cir. 2010) (citing 29 CFR § 1614.407(d)). As such, Handle’s failure to exhaust
administrative remedies is not excused via the substantial compliance doctrine.
B. Futility
Handle argues that it would have been futile for her to exhaust her administrative remedies
given the facts of the case. (ECF No. 61-1 at 9-13.) A plaintiff seeking “to invoke the futility
exception to exhaustion . . . must ‘provide a clear and positive showing’ of futility before the
District Court.” Wilson, 475 F.3d at 175 (quoting D’Amico v. CBS Corp., 197 F.3d 287, 293 (3d
Cir. 2002)). In Harrow v. Prudential Ins. Co. of Am., 279 F.3d 244, 250 (3d Cir. 2002), the Third
Circuit provided insight as to the application of the futility doctrine, stating:
Whether to excuse exhaustion on futility grounds rests upon
weighing several factors, including: (1) whether plaintiff diligently
pursued administrative relief; (2) whether plaintiff acted reasonably
in seeking immediate judicial review under the circumstances; (3)
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existence of a fixed policy denying benefits; (4) failure of the
[agency] to comply with its own internal administrative procedures;
and (5) testimony . . . that any administrative appeal was futile.
Handle does not adequately plead futility pursuant to the factors listed in Harrow. Additionally,
Handle concedes that her first administrative appeal of a Final Agency Decision was successful,
thereby undermining any argument that an administrative appeal is necessarily futile. (ECF No.
55 ¶ 29.)
Handle argues that exhausting her administrative remedies was futile as the agency “had
repeatedly misrepresented what [she] said,” “delayed the proceedings,” and lied to her. (ECF No.
61-1 at 11.) On the contrary, Handle’s allegations of frustration with the administrative process do
not constitute a clear and positive showing that further pursuit of her administrative appeal was
futile. Handle’s allegations of misrepresentations are erroneous. Although not in her Amended
Complaint, Handle contends that she submitted a “detailed statement of damages, to the EEOCOFO” on July 6, 2015. (Id.) However, Handle never submitted these damages to the USPS,
therefore, it was not a misrepresentation for the USPS to assert that a damages sheet was never
submitted to it. This contention, coupled with her assertion of an unreasonable delay and various
other oversights, are Handle’s only grounds for arguing futility.
Handle has not adequately pursued administrative relief and did not act reasonably in
seeking judicial review. Handle has not pled any allegations of the existence of a fixed policy
denying benefits, nor that the USPS or the EEOC failed to comply with its own internal
administrative procedures. Finally, Handle also failed to point to any testimony or statements
indicating that an administrative appeal was futile. Accordingly, Handle has not proven futility
and, as such, her Amended Complaint is dismissed for failure to exhaust the administrative

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remedies available to her.2
IV.

CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED WITH
PREJUDICE as Plaintiff cannot amend the Amended Complaint to state a cause of action.

Date: January 11, 2019

/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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In her Opposition, Handle further argues that Defendants waived their right to raise the
affirmative defense of failure to exhaust administrative remedies. (ECF No 61-1 at 5-9.) Handle
previously raised this argument in her Opposition to Defendants’ First Motion to Dismiss (ECF
No. 39 at 17-21.) In its April 30, 2018 Opinion, this Court determined that Defendants did not
waive their affirmative defense of failure to exhaust administrative remedies. (ECF No. 53 at 6-8.)
As such, this issue need not be analyzed herein.
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