Printemps-Herget v. Brennan
Filing
39
Opinion and Order: For the reasons stated above, I GRANT in part and DENY in part Defendant's Motion for Summary Judgment 32 . Plaintiff Printemps-Herget's claims with respect to the alleged discriminatory harassment that took place in t ime before his termination from employment are DISMISSED with prejudice. His claims alleging discrimination and retaliation related to the specific incident of his termination from employment may proceed. Signed on 9/19/2019 by Judge Michael W. Mosman.(Mailed to Pro Se party on 9/20/2019.) (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ETHANE. PRINTEMPS-HERGET,
No. 3:18-cv-00476-MO
OPINION AND ORDER
Plaintiff,
V.
MEGAN J. BRENNAN, Postmaster
General of the U.S. Postal Service,
Defendant.
MOSMAN,J.,
This matter comes before me on Defendant's Motion for Summary Judgment [32].
Defendant claims Plaintiff failed to administratively exhaust all but one of his claims, and that
the remaining claim presents no genuine dispute of material fact. I agree with Defendant except
with respect to the claims pe1iaining to the specific incident of Plaintiffs termination from
employment. As to those claims, I find that Plaintiff did exhaust his administrative remedies.
Therefore, I GRANT in paii and DENY in part Defendant's Motion.
BACKGROUND
On August 17, 2013, Defendant United States Postal Service ("USPS") hired Plaintiff
Ethan E. Printemps-Herget to work as a temporary City Canier Assistant ("CCA"). Schweiner
Deel. [33]
,r 8. Eventually, he was conve1ied to a career position, subject to a ninety-day
probationary period. Id.
1 - OPINION AND ORDER
On September 24, 2013, Printemps-Herget filed an Equal Employment Opportunity
("EEO") complaint against USPS (the "September Complaint"), alleging disability and race
discrimination. Schweiner Deel. [33] Ex. 6 at 9. A month later, he withdrew the complaint after
mediation. Id.
About one year later, beginning on August 22, 2014, Printemps-Herget stopped appearing
for work. Schweiner Deel. [33] Ex. 2 at 2. According to USPS, he claimed that he was "unable to
work due to stress." Id. On October 28, 2014, USPS info1med him that his continued absence
was without authorization, but, according to USPS, Printemps-Herget "refused contact from
management and refused to come in for an investigative interview." Schweiner Deel. [33] Ex. 1
at 2; Schweiner Deel. [33] Ex. 2 at 2.
On November 4, 2014, Printemps-Herget filed another EEO complaint against USPS (the
"November Complaint"). Schweiner Deel. [33] Ex. 6 at 1. He alleged he was being subjected to
"discriminatory harassment" as retaliation for filing the September Complaint. Id. In paiiicular,
he alleged the following incidents of harassment:
1. On unspecified dates, management publicly disclosed that he was on extended
probation because of falsification;
2. On unspecified dates, management disclosed his medical information;
3. On an unspecified date, management delayed his uniform allowance;
4. On an unspecified date, he was transferred to another station; and,
5. On August 7, 2014, he was given a discussion in which the manager was abusive.
Id.
On December 12, 2014, USPS notified Printemps-Herget that he would be terminated
from employment effective December 13, 2014, for "[f]ailure to maintain your assigned
schedule." Schweiner Deel. [33] Ex. 3 at 1.
On March 12, 2015, Printemps-Herget sent a "PS F01m 2564-A" to the USPS EEO
Office alleging additional incidents of adverse treatment (the "March Complaint"). Schweiner
2 - OPINION AND ORDER
Deel. [33] Ex. 3. Specifically, he alleged "disability and possibly retaliation," describing the
relevant incident as his termination from employment at USPS. Id. at 1.
On March 23, 2015, the USPS EEO Office ruled on the March Complaint. See Schweiner
Deel. [33] Ex. 5. In their ruling, the EEO Office first described regulation 29 C.F.R §
1614.106(d) as one that "permits complainant's [sic] to amend a pending EEO complaint to add
claims that are like or related to those claims raised in the pending complaint. There is no
requirement that the complainant seek or receive counseling on these new claims." Id. at 1. The
EEO Office then decided that the March Complaint should be treated as an amendment to
Printemps-Herget's November Complaint pursuant to 29 C.F.R. § 1614.106(d), but that it should
nevertheless be dismissed. Id. at 1. Specifically, the EEO Office wrote that:
A review of your PS Form 2564-A reveals that the additional matters raised are
like or related to the matters raised in your formal complaint filed on November 4,
2014. Therefore, your new claim will be considered an amendment; however your
amended claim is hereby dismissed as discussed below.
Id. (emphasis added).
In explaining the dismissal, the EEO Office described that Printemps-Herget's "contact with the
EEO Counselor was untimely," being "well beyond the 45-day regulatory time frame" delineated
in 29 C.F.R. § 1614.105(a)(l). Id. at 2. This was so, according to the EEO Office, because
Printemps-Herget's March Complaint was filed more than 45 days after the alleged
discriminatory incident: his termination on December 13, 2014. Id.
On June 24, 2015, after completing its investigation of the claims contained in the
November Complaint (but not including the allegations made in the March Complaint involving
Printemps-Herget's termination) the USPS EEO Office issued its Final Agency Decision. See
Schweiner Deel. [33] Ex. 6 at 1, 17. USPS held that "the evidence does not support a finding that
the complainant was subjected to discrimination as alleged," and closed the complaint. Id. at 17.
3 - OPINION AND ORDER
Printemps-Herget appealed this decision to the Equal Employment Opportunity Commission
("EEOC") which upheld USPS's findings. Schweiner Deel. [33] Ex. 7 at 1. He then appealed the
EEOC's decision to the Office of Federal Operations ("OFO"), which affirmed the EEOC and
USPS decisions below. Id. at 1-3. Printemps-Herget subsequently turned to the federal courts.
This action began on March 19, 2019, when Printemps-Herget, proceeding without
counsel, filed a Complaint [2] in this court alleging discrimination based on disability under the
Rehabilitation Act. 1 Specifically, he alleges that USPS, beginning in November 2013, engaged in
a "campaign of harassment" against him involving various discriminatory actions, including and
ultimately culminating with his termination from employment on December 13, 2014. The
alleged discriminatory actions leading up to his termination include that:
1)
2)
3)
4)
USPS
USPS
USPS
USPS
failed to provide typical on-the-job training,
improperly kept him in a probationary period,
denied him safety equipment, and
denied him a uniform allowance and other benefits.
Id. at 5-6.
Defendant's Motion for Summary Judgment [32] addresses Printemps-Herget's allegations
involving the incident of his termination separate from the alleged incidents of harassment that
took place before Printemps-Herget's termination. I will proceed in similar fashion.
LEGAL STANDARD
Summary judgment is proper "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 oflaw." Fed. R. Civ. P.
1
As Defendant notes, while Printemps-Herget stated his claims as violations of the
Americans with Disabilities Act ("ADA"), the ADA does not apply directly to the federal
government as an employer. Thus, I will evaluate Printemps-Herget's claims under the
Rehabilitation Act which does cover federal employees and has shared standards with the ADA.
See 29 U.S.C. §§ 791(f), 794(d); Coons v. Secy of US. Dep 't of Treasury 383 F.3d 879, 884
(9th Cir. 2004).
4 - OPINION AND ORDER
56(a). The initial burden for a motion for summary judgment is on the moving party to identify
the absence of a genuine issue of material fact. Celotex C01p. v. Catrett, 477 U.S. 317,323
(1986). Once that burden is satisfied, the burden shifts to the non-moving paiiy to demonstrate,
through the production of evidence listed in Fed. R. Civ. P. 56( c)(1 ), that there remains a
"genuine issue for trial." Celotex, 477 U.S. at 324. The non-moving paiiy may not rely upon the
pleading allegations, Brinson v. Linda Rose Joint Venture, 53 F .3d 1044, 1049 (9th Cir. 1995)
(citing Fed. R. Civ. P 56(e)), or "unsuppmied conjecture or conclusory statements," Hernandez
v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). All reasonable doubts and
inferences to be drawn from the facts are to be viewed in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio C01p., 475 U.S. 574,587
(1986).
DISCUSSION
I.
Plaintiff's Claims Specific to the Termination of His Employment.
In its Motion for Summary Judgment [32], Defendant argues that Printemps-Herget's
claims sun-ounding his December 13, 2014, termination must be dismissed because of his
"failure to exhaust his administrative remedies." Def. 's Mot. Summ. J. [32] at 7. Specifically,
Defendant argues that Printemps-Herget ran afoul of29 C.F.R. § 1614.105(a)(l) because he was
terminated effective December 13, 2014, but "did not seek EEO counseling for that termination
until March 12, 2015." Id. at 8. Section 1614.105(a)(l) mandates that before filing a formal
complaint with an agency's EEO Office, a potential claimant must "initiate contact" with an
EEO counselor within 45 days of the alleged discriminatory action to try and informally resolve
the matter. 29 C.F.R. § 1614.105(a)(l).
"In order to bring a claim under the Rehabilitation Act, a federal employee must exhaust
available administrative remedies," which includes filing an EEO complaint. Cherosky 330 F.3d
5 - OPINION AND ORDER
at 1245. As Defendant notes, before formally filing a complaint, a complainant must comply
with the counseling requirements of§ 1614.105. This includes a timely consultation: "Failure to
comply with [29 C.F.R. § 1614.105(a)(l)] is 'fatal to a federal employee's discrimination
claim."' Cherosky 330 F.3d at 1245 (quoting Lyons v. England, 307 F.3d 1092, 1105 (9th Cir.
2002)).
But while it is undoubtedly the case that a new EEO complaint must meet the counseling
requirements of§ 1614.105, not all allegations of discrimination come before an EEO Office by
way of a new complaint. In accordance with 29 C.F.R. § 1614.106(d), "[a] complainant may
amend a complaint at any time prior to the conclusion of the investigation to include issues or
claims like or related to those raised in the complaint." (emphasis added). That raises the
question: When amending an existing, pending complaint pursuant to § 1614.106(d), must one
comply with the counseling requirements of§ 1614.105, including the 45-day requirement?
The USPS EEO Office was not a model of clarity when it ruled on Printemps-Herget's
March Complaint in its March 23, 2015, decision. As laid out above, the EEO Office held that
the March Complaint constituted an amendment to Printemps-Herget's November Complaint
pursuant to§ 1614.106(d), and it stated that for such amendments "[t]here is no requirement that
the complainant seek or receive counseling on [the] new claims." Schweiner Deel. [33] Ex. 5 at
1. But then it immediately proceeded to dismiss Printemps-Herget's amendment because he had
failed to seek counseling in a timely fashion. Id at 2. This makes no sense. For new claims added
via amendment, either a claimant is required to seek counseling-and must therefore do so in a
timely fashion--or there is no counseling requirement at all.
The parties have not cited any controlling Ninth Circuit precedent on this question. There
is, however, persuasive authority directly on point courtesy of the Eleventh and D.C. Circuits.
6 - OPINION AND ORDER
Both circuits agree that new claims that are "like or related" to those in an existing complaint,
and thus may be added to that complaint via an amendment pursuant to§ 1614.106(d), do not
have to meet the counseling requirements of§ 1614.105 (including the 45-day requirement). See
Weber v. Battista, 494 F.3d 179, 183 (D.C. Cir. 2007) (explaining that "[i]fthe new claim meets
[the] requirement[s]" of§ 1614.109(d), "then '[t]here is no requirement that the amendment be
subject to counseling."') (quoting Core v. Brownlee, Appeal No. 01A34550, 2004 WL 189570,
at* 1 (E.E.O.C. Jan. 23, 2004)); Ramirez v. United States, 686 F.3d 1239, 1246 n.4 (11th Cir.
2012) ("[A] claim 'like or related to' the original claim is not subject to the 45-day counseling
requirement.").
I agree with the position of the Eleventh and D.C. Circuits because I think it is the best
reading of the text of§§ 1614.105(a) and 1614.106(d). First,§ 1614.105(a) states that a
complainant "must consult a Counselor prior to filing a complaint to try to info1mally resolve the
matter." (emphasis added). If the authors of this section wanted to require counseling any time an
already-filed complaint was amended, it would have been easy to do so. 2 Second, there is
nothing in the text of§ 1614.106 linking the amendment process of§ 1614.106(d) with the
requirements of§ 1614.105. Third,§ 1614.107(a)(2) confirms this separateness. That section
states that an agency shall dismiss an entire complaint "that raises a matter that has not been
brought to the attention of a Counselor and is not like or related to a matter that has been brought
to the attention of a counselor." 29 C.F.R. § 1614.107(a)(2) (emphasis added). In other words, if
a matter has not been brought to the attention of a Counselor, but that matter is "like or related"
to a matter that already has been brought to the attention of a Counselor, the complaint will not
2
Congress might have written instead, for example, that a complainant "must consult a
Counselor prior to filing or amending a complaint." Here's another: "Every new allegation of
discrimination must first be discussed with a Counselor."
7 - OPINION AND ORDER
be dismissed. That is what occurs when someone properly files a complaint after going through
counseling, and then properly amends that complaint without going through counseling a second
time.
Because I hold that an amendment to an EEO complaint pursuant to § 1614.106(d) does
not need to meet the counseling requirements of§ 1614.105, the only remaining question is if
Printemps-Herget's March Complaint is properly construed as an amendment to his November
Complaint. On that question I agree with the EEO Office's March 23, 2015, decision. PrintempsHerget's November Complaint alleged he was facing retaliatory, discriminatory harassment for
filing his September Complaint. The March Complaint alleges his te1mination was both an
instance of disability discrimination and "possibly retaliation" for filing both his September and
November Complaints. Schweiner Deel. [33] Ex. 4 at 1. It is thus sufficiently related to the
claims in the November Complaint to be considered an amendment under§ 1614.106(d).
As Printemps-Herget's March Complaint was a proper attempt to amend his November
Complaint under§ 1614.106(d), he was not subject to the 45-day requirement of
§ 1614.105(a)(l). He thus did not fail to administratively exhaust his claims involving the
incident of his termination.
In its Reply brief [35], Defendant hints at the notion that it has raised two grounds for
summary judgment on the termination claims: 1) Printemps-Herget's failure to exhaust
administrative remedies, and 2) his failure to provide any excuse for his extended absence from
work. Def. 's Reply [35] at 2. But this is too little, too late. Nowhere in its Motion does
Defendant raise the second ground for summary judgment, and its glancing, inchoate reference
in its Reply is insufficient.
8 - OPINION AND ORDER
Therefore, Defendant's Motion for Summary Judgement [32] with respect to the claims
arising out of Printemps-Herget's December 13, 2014, termination is denied.
II.
Plaintiff's Discriminatory Harassment Claims That Preceded His Termination.
Defendant makes two arguments regarding the group of allegations that Printemps-
Herget asserts amounted to a discriminatory "campaign of harassment" against him and which
preceded his termination. First, Defendant argues that three of his allegations-that USPS 1)
failed to provide typical on the job training, 2) improperly kept him in a probationary period, and
3) denied him safety equipment-were not administratively exhausted, as Printemps-Herget
never aired these specific allegations in any EEO process before bringing them here. Def.' s Mot.
Summ. J. [32] at 8. Second, Defendant acknowledges that the remaining allegation-that USPS
discriminatorily denied him a uniform allowance-was administratively exhausted. Id. at 9. But
Defendant argues that the evidence presented thus far conclusively shows that PrintempsHerget' s delay in receiving a uniform allowance was the result of a station-wide delay that
affected all CCA's, rather than the result of discrimination against Printemps-Herget. Id.
I agree with both of Defendant's arguments. With respect to the first argument, as
described above, a plaintiff must exhaust his administrative remedies before bringing
discrimination claims under the Rehabilitation Act in federal court. Cherosky v. Henderson, 330
F.3d 1243, 1245 (9th Cir. 2003). Printemps-Herget did not raise the claims relating to training,
the probationary period, or the safety equipment in any of his EEO complaints. Thus, he cannot
raise them here.
As to Defendant's argument regarding the uniform allowance, Defendant met its initial
burden in presenting evidence which identified the absence of a genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). As described in USPS's Final Agency
9
OPINION AND ORDER
Decision evaluating Printemps-Herget's November Complaint, USPS Customer Service
Manager Kenneth Streicher testified that:
[Printemps-Herget] and all the other CCAs at the Piedmont Station experienced
delays in receiving their uniform allowances because, as the new person responsible
for administration of unifmm allowances, [Streicher] had never done the
administration for uniform allowance before; he had no experience with CCA
employees; and his requests for funding for the uniform program were denied due
to errors.
Schweicher Deel. [33] Ex. 6 at 14 (emphasis added).
I agree with the USPS EEO Office, the EEOC, and the OFO that this testimony constitutes a
legitimate, non-discriminatory explanation for the delay of Printemps-Herget's benefits. Because
Defendant met their initial burden, the burden of production shifts to Printemps-Herget to offer
sufficient evidence to establish that there remains a "genuine issue for trial." Celotex, 477 U.S. at
324. He has not done so. In his briefing responding to the present motion, Printemps-Herget
reasserts that certain employees "got the uniform allowance on time, out of turn, before Plaintiff
received the benefit," but cites no evidence to support this contention. Pl.'s Sur-reply to Def.'s
Mot. Summ. J. [3 8] at 2. As described above, this is not enough to survive summary judgment.
Therefore, Defendant's Motion for Summary Judgment [32] with respect to PrintempsHerget's claims of discriminatory harassment that preceded his termination is granted and these
claims are dismissed with prejudice.
II
II
II
II
II
II
10 - OPINION AND ORDER
CONCLUSION
For the reasons stated above, I GRANT in part and DENY in part Defendant's Motion for
Summary Judgment [32]. Plaintiff Printemps-Herget's claims with respect to the alleged
discriminatory harassment that took place in time before his termination from employment are
DISMISSED with prejudice. His claims alleging discrimination and retaliation related to the
specific incident of his termination from employment may proceed.
IT IS SO ORDERED.
DATED this-ti day of September, 2019.
11 - OPINION AND ORDER
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