Taylor v. Postal Service (U.S.)

Filing 16

REPORT AND RECOMMENDATIONS re 9 Defendant's Motion to Dismiss for Lack of Jurisdiction. IT IS RECOMMENDED THAT Defendant's motion to dismiss 9 be GRANTED, that this case be dismissed with prejudice and closed. Objections to R&R due by 9/26/2017. Signed by Magistrate Judge Stephanie K. Bowman on 9/12/2017. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ANTHONY TAYLOR,

Case No. 1:17-cv-106

Plaintiff,

Dlott, J.
Bowman, M.J.

v.

POSTAL SERVICE (U.S.),
Defendant.

REPORT AND RECOMMENDATION
I. Background
On February 22, 2017, Plaintiff was granted leave to file a pro se complaint
against his employer, the United States Postal Service. In his initial complaint, Plaintiff
alleged only: “I was discriminated against, unfairly treated[,] unjustly punished[,] and
deprived of my rights to equal treatment under the law.”

(Doc. 3).

Although the

undersigned granted Plaintiff leave to file his complaint in forma pauperis, the
undersigned pointed out several deficiencies:
The lack of any detail in the complaint, combined with the lack of
information concerning a prior EEOC charge, supports the issuance of a
Report and Recommendation that this case be dismissed for failure to
exhaust administrative remedies and for failure to state any claim on initial
screening pursuant to 28 U.S.C. § 1915(e).
(Doc. 2 at 3). Rather than recommending dismissal on initial screening, however, the
undersigned directed Plaintiff to promptly correct those otherwise-fatal flaws. “As soon
as practicable, but not later than March 6, 2017, Plaintiff shall file an amended

statement of his claim that includes basic facts, along with a copy of any notice of his
right to sue.” (Id., emphasis original)
Plaintiff only partially complied with the Court’s Order.

Although he filed an

amended complaint that included as an exhibit a copy of his notice of his right to sue, he
failed to include any additional facts on the complaint form itself, and also failed to file
the amended complaint by March 6, 2017. Instead, Plaintiff did not file his amended
complaint until March 20, 2017, two weeks past the Court’s deadline.
On June 6, 2017, Defendant filed a motion to dismiss the complaint because the
Notice attached to the amended complaint reflects that Plaintiff failed to bring his action
within the ninety-day period required under 42 U.S.C. § 2000e-16(c). (Doc. 9). Plaintiff
filed a response in opposition to Defendant’s motion, to which Defendant has filed a
reply. (Docs. 14, 15). For the reasons that follow, the undersigned now recommends
that Defendant’s motion be GRANTED.
II. Analysis
A. Standard of Review
When reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, this Court is required to construe the complaint in the light most
favorable to the plaintiff, and must accept all well-pleaded material allegations in the
complaint as true. Erickson v. Pardus, 551 U.S. 89, 94 (citing Scheuer v. Rhodes, 416
U.S. 232, 236 (1974), additional citations omitted)(per curiam).

However, while a

plaintiff’s pro se complaint must be “liberally construed” and “held to less stringent
standards than formal pleadings drafted by lawyers,” the complaint still must “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id.,
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(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976), and Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotation omitted)).
To prevail against a motion to dismiss filed under Rule 12(b)(6), a plaintiff's
complaint “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, 129 S.Ct. 1937,
1949 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556). The Court must accept all well-pleaded factual allegations as true, but need not
“accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S.
at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). While a complaint need
not contain “detailed factual allegations,” it must provide “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 555). A pleading that offers “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of “further factual
enhancement.” Id. at 557.
The Court’s focus, on review of a motion to dismiss, is on the sufficiency of the
complaint itself. However, a court may consider exhibits attached to the complaint in
deciding a motion to dismiss. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir.
2001) (citing Nieman v. NLO, Inc., 108 F.3d 1546 (6th Cir. 1997)). Additionally, while a
court generally may not consider matters outside of the pleadings when ruling on a
12(b)(6) motion without converting it into a Rule 56 motion for summary judgment,
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“[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the
pleadings if they are referred to in the plaintiff's complaint and are central to [his]
claim.” Weiner v. Klais & Co., 108 F.3d 86, 89 (6th Cir. 1997) (quoting Venture Assocs.
Corp. v. Zenith Data Sys. Corp. ., 987 F.2d 429, 431 (7th Cir. 1993)).
B. Grounds For Dismissal
Defendant’s motion to dismiss argues that Plaintiff’s complaint should be
dismissed because he failed to file his civil complaint in this Court within the ninety day
time period required under 42 U.S.C. § 2000e-16(c).

The undersigned agrees that

Plaintiff’s civil complaint is time-barred.
As previously noted in the R&R granting Plaintiff leave to proceed in forma
pauperis in this case, the initial complaint, tendered on February 14, 2017, was so
devoid of any factual allegations against the Defendant that it failed to state any viable
claim.

But for this Court’s liberal construction of the pro se pleading as attempting to

state some form of employment discrimination claim, the complaint’s single sentence
amounted to no more than “an unadorned, the-defendant-unlawfully-harmed-me
accusation” that did not satisfy minimal pleading standards as defined under Iqbal. The
initial complaint failed to include any factual allegations at all, and failed to explain
whether Plaintiff was accusing the Defendant of discrimination based upon race,
gender, age, or some other classification.

Moreover, Plaintiff failed to comply with a

requirement that he allege and demonstrate that he had satisfied an essential
prerequisite to filing suit under 42 U.S.C. § 2000e-16(c), by filing a complaint with the
Equal Employment Opportunity Commission.

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Plaintiff partially complied with this Court’s order directing him to cure the
deficiencies of his initial complaint, by attaching to his amended complaint a copy of his
EEO charge, filed on April 11, 2015 with the EEOC. The exhibits attached to Plaintiff’s
complaint reflect that he alleged:

(1) discrimination based on retaliation and/or

harassment when, on December 12, 2014, Plaintiff’s manager made inappropriate
remarks to him about the facility nurse, and on December 17, 2014, when his supervisor
stared at Plaintiff angrily and yelled at him; and (2) discrimination based on race (African
American), sex (male), and retaliation when, on February 7, 2015, Plaintiff became
aware that he was passed over for a promotion. (Doc. 5-1 at 4).
After investigation, in a Final Agency Decision dated November 2, 2016, the
Postal Service determined that Plaintiff’s second claim, that he had been passed over
for promotion, was moot. Plaintiff had been promoted subsequent to the filing of his
claim, on November 14, 2015, and no damages were appropriate because he was not
eligible to be promoted prior to that date. In the alternative to its determination that the
claim was moot, the Agency determined that Plaintiff could not state any claim because
he was not qualified for the promotion at the earlier time, and therefore had failed to
prove the essential element of “adverse action.” (Doc. 5-1 at 13, 15).
Plaintiff alleged during the Postal Service’s investigation that he believed that his
supervisor’s December 2014 actions were undertaken in retaliation for Plaintiff’s
involvement in the EEO proceeding of a co-worker, in which Plaintiff provided a witness
statement. (Doc. 5-1 at 12). However, the Agency determined that Plaintiff also had
failed to make out a prima facie case on his claim of retaliation and/or harassment, even
assuming for purposes of initial evaluation that the supervisor’s conduct on December
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12 and 17 was sufficient to show “adverse treatment.” (Doc. 5-1 at 13) The Agency
found that Plaintiff had failed to make out a prima facie case of retaliation because the
seven-month gap between the alleged negative actions and the supervisor’s alleged
conduct “negates an inference of retaliation” and “is too attenuated and therefore
insufficient to establish a causal connection.” (Id.) The Agency also noted that Plaintiff
had failed to provide evidence of any disparate treatment, or any other evidence “that
affords a sufficient basis from which to draw an inference of discrimination.” (Id. at 1314).

Last but not least, the Agency found no evidence of pretext based upon

management’s non-discriminatory explanation for failing to promote Plaintiff at an earlier
date, or for his supervisor’s actions in December 2014.

(Doc. 5-1 at 17-18).

“Complainant’s allegations are not supported by the totality of the record and he has
failed to present any plausible evidence that would demonstrate that management’s
reasons for its actions were factually baseless or not its actual motivation.” (Id. at 18).
The Agency’s Final Decision clearly explained Plaintiff’s rights to appeal that
decision to the Director of the EEOC, within 30 days of receipt of the written decision.
The Notice of Appeal Rights further explained that, either after a final appeal to the
EEOC Director or in lieu of such an appeal, Plaintiff was permitted to “file a civil action in
an appropriate U.S. District Court within 90 calendar days of receipt of the Postal
Service’s final decision….” (Doc. 5-1 at 19). As stated, the Postal Service Agency’s
Final Decision was dated November 2, 2015.

The Defendant’s motion to dismiss

includes a U.S. P.S. Tracking receipt that reflects that the Final Agency Decision was
delivered to Plaintiff’s address of record (the same address listed in the complaint filed
in this Court) on November 5, 2016. (Doc. 9-1 at 1). Based upon the delivery date
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noted on the tracking receipt, the last day on which Plaintiff could have timely
commenced his federal civil case was February 3, 2017. However, Plaintiff did not
tender his complaint, attached as an exhibit to his motion to proceed in forma pauperis,
until February 14, 2017, which was eleven days after his final deadline for filing suit.
Even if the tracking receipt attached to Defendant’s motion is not considered by
this Court in the context of Defendant’s motion to dismiss, 1 Plaintiff’s suit would still be
untimely. “The Sixth Circuit has held that the statutory ninety-day filing period
commences on the fifth day following the EEOC’s mailing of a right to sue notification,
five days being a reasonable period to allow for mail delivery of the notice to the
claimant.” Anderson v. Hamilton Cty. Bd. of Commissioners, No. 1:05-cv-344, 2006 WL
2709767 at *3 (S.D. Ohio Sept. 20, 2006) (internal citation omitted). Therefore, ignoring
the tracking receipt, the undersigned would find that Plaintiff’s receipt of the Final
Agency Decision and commencement of the ninety-day period occurred not later than
November 7, 2016.

Accord Rembisz v. Lew, 830 F.3d 681, 682 (6th Cir. 2016)

(applying the same presumption of receipt of final agency action under 42 U.S.C. §
2000e-16(c)).

Using that later deadline, Plaintiff would have been required to

commence his civil suit not later than February 6, 2017, and his suit remains untimely. 2
In Plaintiff’s memorandum in opposition to Defendant’s motion, he argues –
without reference to any date or citation to any evidentiary exhibit such as an envelope
1

Because the Plaintiff was required to demonstrate receipt of a Notice of his right to sue (here, the Final
Agency Decision) as a prerequisite to filing suit, and attached the decision as an exhibit to his amended
complaint, the tracking receipt arguably may be considered in the context of this motion to dismiss without
converting the Defendant’s motion into one for summary judgment. However, the undersigned has
provided alternative grounds for dismissal should any reviewing court disagree.
2
As Defendant points out, the deadline for initiating suit was not the only deadline missed by Plaintiff.
Plaintiff also failed to timely respond to this Court’s order and did not file an amended complaint until two
weeks after the deadline specified by the Court.

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or affidavit – that “I received the EEOC mailing later than the date stated.” (Doc. 14).
Plaintiff’s vague and conclusory argument, unsupported by reference to any date at all,
and his failure to offer any rational explanation for why this Court should consider tolling
the deadline for the commencement of suit, is insufficient to defeat Defendant’s motion
to dismiss. See Adams v. Noble, 137 F. Supp.2d 1054, 1058-59 (S.D. Ohio 2001).
Dismissal is proper under Rule 12(b)(6) when a defendant raises a statute of
limitations defense and “it is apparent from the face of the complaint that the statute of
limitations has run.” Reed v. Ohio State Univ. Med. Ctr., 2012 WL 5378379, at *4 (S.D.
Ohio Oct. 31, 2012); see also Gordin v. England, 354 Fed. Appx. 975, 978 (6th Cir.
2009). The date of the Final Agency Decision (November 2, 2015) is apparent from the
face of the exhibit attached to Plaintiff’s amended complaint, and his presumed date of
receipt is established by case law. It is well established that “federal employees must
file a civil action for discrimination ‘[w]ithin 90 days of receipt of final action’ by the
agency.”

Rembisz v. Lew, 830 F.3d at 682 (quoting 42 U.S.C. §2000e-16(c)). 3

Plaintiff’s pro se status does not excuse him from complying with the applicable time
limitations to suit.

“Absent compelling equitable considerations, a court should not

extend limitations by even a single day.”

Graham-Humphreys v. Memphis Brooks

Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000). Therefore, Plaintiff’s suit is
time-barred.
3

In Rembisz, the Sixth Circuit affirmed the dismissal of suit in the context of a motion for summary
judgment, following consideration of a certified-mail receipt dated only one day outside the 90-day
statutory limit. If the presiding district judge believes that consideration of the tracking receipt is required,
but that such consideration converts the motion to one for summary judgment, the undersigned still would
recommend granting the motion, conditioned on Plaintiff’s failure to submit any contrary evidence of a
later receipt. Accord Ransdell v. U.S. Postal Service, 2017 WL 1190912 (E.D. Ky. March 30, 2017)
(electing to treat Rule 12(b)(6) motion as alternative motion for summary judgment, dismissing based
upon the plaintiff’s untimely submission of his EEO complaint).

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III. Conclusion and Recommendation
Accordingly, IT IS RECOMMENDED THAT Defendant’s motion to dismiss (Doc.
9) be GRANTED, that this case be dismissed with prejudice and closed.
s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ANTHONY TAYLOR,

Case No. 1:17-cv-106

Plaintiff,

Dlott, J.
Bowman, M.J.

v.

POSTAL SERVICE (U.S.),
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS
of the filing date of this R&R. That period may be extended further by the Court on
timely motion by either side for an extension of time. All objections shall specify the
portion(s) of the R&R objected to, and shall be accompanied by a memorandum of law
in support of the objections. A party shall respond to an opponent’s objections within
FOURTEEN (14) DAYS after being served with a copy of those objections. Failure to
make objections in accordance with this procedure may forfeit rights on appeal. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.
1981).

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