WADE v. DONAHOE

Filing 12

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 9/4/12. 9/5/12 ENTERED AND COPIES MAILED TO PRO SE AND UNREP.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PATRICIA WADE
v.
PATRICK R. DONAHOE

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CIVIL ACTION

NO. 11-3795

-----------------------------------------------PATRICIA WADE
v.
PATRICK R. DONAHOE

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CIVIL ACTION

NO. 11-4584

MEMORANDUM OPINION
SAVAGE, J.

September 4, 2012

Pro se plaintiff Patricia Wade has filed two actions alleging various claims of
discrimination and retaliation arising out of her employment with the United States Postal
Service (“USPS”).1 In her first complaint, she alleges that the USPS violated Title VII by
subjecting her to a campaign of harassment aimed at impeding her entitlement to Federal
Employment Compensation Act (“FECA”) benefits in retaliation for her 2003 Equal
Employment Opportunity Commission (“EEOC”) activity.2 In the second complaint, she
claims that during its National Reassessment Program (“NRP”), the USPS violated Title
VII by subjecting her to retaliation and the Americans with Disabilities Act (“ADA”) and
1

Title VII provides that the “head of the departm ent, agency, or unit” that allegedly discrim inated
against a federal em ployee “shall be the defendant.” 42 U.S.C. § 2000e-16(c) (2003). W ade properly nam ed
Patrick R. Donahoe, the Postm aster General, as the defendant.
2
Com pl. No. 11-3795. W e shall use the term “FECA com plaint” to describe W ade’s claim s in this
com plaint.

According to W ade, she returned to work in 2003 after a successful lawsuit against the USPS for
“sexual harassm ent and physical assault.” Com pl. No. 11-3795, at 1.

Rehabilitation Act by discriminating against her based on a disability.3 Wade appears to
make additional claims under several other statutes and a host of regulations.4
The USPS moves to dismiss Wade’s Title VII claims in her FECA complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). It argues that we lack jurisdiction
because the Department of Labor (“DOL”) has exclusive authority to administer FECA and
to decide all questions arising under the statute. Alternatively, it contends that Wade has
failed to demonstrate any causal connection between the 2003 EEOC activity she
references in her complaints and the USPS’s alleged harassment beginning in October
2010 in the form of refusing to process and submit paperwork required for her to support
her claim for FECA benefits.
As to Wade’s NRP complaint, the USPS argues that she has not exhausted her
disability discrimination claims because the EEOC has held them in abeyance pending
resolution of a class action challenging the NRP.5 Seeking dismissal or alternatively
summary judgment on the Title VII claim that her treatment during the NRP was in
retaliation for her EEOC activity, the USPS argues Wade has presented no facts
demonstrating a causal relationship between that activity and her participation in the NRP.
After viewing the allegations in the complaints as true and in the light most favorable
to Wade, we shall grant the USPS’s motion as to the Title VII claims for failure to plead
facts supporting an inference of causation. Wade has presented no facts showing a
pattern of antagonistic behavior in the seven intervening years between her EEOC activity
3

Com pl. No. 11-4584. The term “NRP com plaint” will refer to this second com plaint.

4

On W ade’s m otion, we consolidated the two com plaints under Civil Action No. 11-3795.

5

The USPS concedes that W ade has exhausted her other claim s.
2

and the alleged campaign of retaliation. Nor do Wade’s allegations, viewed in their
entirety, support an inference of a causal nexus between her protected activity and the
alleged campaign of harassment. We shall also dismiss Wade’s disability discrimination
claims in her NRP complaint because they have been subsumed into a binding class action
pending before the EEOC. Therefore, we shall grant the motions to dismiss.

Background6
FECA Complaint
Wade suffered on-the-job injuries to her shoulders on February 18, 2006. After
returning from right shoulder surgery, she worked limited duty for four years. In March of
2009, Wade aggravated the injury to her left shoulder while at work, requiring rotator cuff
surgery.
To ensure receipt of workers’ compensation benefits under FECA while out of work
for surgery, Wade attempted to complete a leave slip.7 Although the exact process is not
clear from the pleadings, it appears that her direct supervisor had to sign the form, which
is forwarded with any necessary paperwork to the DOL. The DOL then determines
entitlement to FECA benefits.
Wade alleges that several USPS managers and supervisors harassed her by
making it difficult for her to complete her leave slip, and then not sending the necessary
paperwork to the DOL. As a result, she claims she did not receive some of her FECA
6

The recitation of the facts is based on W ade’s allegations in the two com plaints, which we accept
as true and from which we draw all inferences in her favor.
7

FECA provides a com prehensive workers’ com pensation schem e for federal em ployees. Nobel v.
United States, 216 F.3d 1229, 1234 (11th Cir. 2000).
3

benefits payments. According to Wade, after a supervisor, Martha Jenkins, refused to sign
the form, manager Cheryl Talmage told Wade that she would help her with her paperwork,
but failed to do so. Wade convinced manager Devola Sutton to sign her leave slip.
Another manager, Mitchell Petty, immediately destroyed it. Petty told Sutton that Wade
was not her concern, apparently because Sutton was not Wade’s direct supervisor.8
Although Petty offered to take her to her direct supervisor, Wade refused to go. Wade
ultimately delayed her surgery due to her difficulty in finding a manager or supervisor to
sign and process her leave slip.
Wade also alleges that supervisor Cynthia Davis, after agreeing to assist her, made
it difficult to meet with her, giving Wade a few hours notice of when she was available.
When Davis met with Wade on January 6, 2011, she signed the form and told Wade that
she would give the original to caseworker Diane Castro for processing and mail or email
a copy to Wade. However, Wade never received a copy from Davis or any indication that
Castro processed the leave slip.

According to Wade, Castro intentionally withheld

information from the DOL that would have resolved the leave slip dispute.
In an attempt to resolve the dispute and receive her missing FECA payments, Wade
wrote letters to manager Ivan Butts on March 3, 2011 and April 5, 2011 asking for his help
to ensure that Castro processed the leave slip. Wade claims Butts responded that the
delay was “not done without intent or malice.”9 On this basis, she includes Butts as a
participant in what she calls an “arbitrary group campaign that has been an intentional

8

See Com pl. No. 11-3795, at 4 (stating that Petty asked W ade why she did not ask her im m ediate
supervisor to sign the form ).
9

Id. at 8.
4

hindrance and obstruction to the processing of [her] Worker’s Compensation benefits.”10
It is unclear from Wade’s complaint how many FECA payments she is missing. She
states at one point that she has not received a payment for a two-week period.11 The
USPS confirms this, stating it discovered one claim for a two-week period that was initially
filed under the wrong claim number.12 However, Wade later alleges that she only received
two and a half payments while she was out of work from mid-November 2010 to April
2011.13
Wade claims that this behavior was harassment, created a hostile work
environment, and was in retaliation for her prior EEOC activity and for hiring a lawyer to
assist her with an injury claim, all in violation of Title VII.
Wade also references a “Bivens Claim,” the Privacy Act of 1974, federal criminal
statutes, and provisions from the Code of Federal Regulations. These claims fail as a
matter of law.

NRP Complaint
During the time Wade claims USPS employees were impeding her FECA
paperwork, the USPS initiated the NRP for limited duty employees in the facility where she
worked. Through the NRP, employees on limited duty were placed in “standby rooms,”

10

Id.

11

Id. at 7.

12

Def.’s Mem . in Supp. of Mot. to Dism iss or, in the alternative, for Sum m . J. 3 n.2. The USPS claim s
to have resubm itted the claim under the correct claim num ber.
13

Com pl. No. 11-3795, at 8.
5

pending an interview with the NRP panel to determine if a position consistent with the
employee’s medical restrictions was available within a fifty-mile radius. According to the
USPS, if the search was unsuccessful, employees were given a number of alternatives,
including continuing FECA benefits, leave, or retirement.14
Wade alleges that while awaiting her NRP interview, she was forced to sit in an
uncomfortable standby room for two weeks.

According to Wade, about a dozen

employees were assigned to the room on November 4, 2010, which was initially equipped
with tables, padded chairs, and a television. The following day, after a supervisor came
into the room and announced, “we’ve got to change this,” the padded chairs were replaced
with plastic ones and the tables were removed.15

The room was also partitioned,

apparently blocking the television. Wade alleges that one of the maintenance workers who
altered the room told a USPS employee in March of 2011 that he was instructed to make
the room as uncomfortable as possible.16 At this time, Wade and Sharon Jordan-Trowery,
both mail handlers, were the only employees remaining in the room. The other employees
assigned to the standby room, all mail clerks, had been placed in temporary work
assignments.
Wade also complains of the conditions in the room. She alleges that the room was
uncomfortably cold at times. The lights were controlled by a motion sensor, resulting in the
lights shutting off at times, such as when Wade and another employee fell asleep. At
some point, the room was locked, preventing any employee assigned to the room from
14

Def.’s Mot. to Dism iss 2.

15

Com pl. No. 11-4584, at 4.

16

Id. at 12.
6

leaving.
According to Wade, when she was the only employee assigned to the standby room
on November 7, 2010, co-workers, union stewards and supervisors came to speak with
her. These conversations ended badly, with Wade becoming angry and upset.
Wade states that she was humiliated during her assignment to the standby room,
which a union steward equated to a holding cell. She obtained medication to cope with the
stress she felt while in the room.
The NRP panel told Wade on November 17, 2010 that in light of her medical
restrictions, there was no work available. Wade pointed out to the panel that she was
working, despite her restrictions, before the USPS assigned her to the standby room. She
also provided the panel with a list of duties that she was able to perform but also informed
the panel that she would soon be unable to work due to her scheduled rotator cuff surgery.
Wade alleges that the panel rejected her suggestions, telling her that “there is not any job
that are [sic] necessary if the person doing them has restrictions; we only want full able
bodies.”17
Wade was sent home.

Yet, she continued to be eligible for, and at least

intermittently received, FECA payments.18 According to the USPS, Wade received FECA
benefits until she was cleared by her doctor to return to her regular job in August 2011.
Wade alleges her treatment in the standby room and during her NRP interview was
in retaliation for her EEOC activity and discriminatory based on her disability. As with her

17

Id. at 11.

18

Com pl. No. 11-3795, at 6.
7

FECA complaint, Wade alleges that the USPS violated several statutes and regulations
during the NRP.

Standards of Review
Motion to Dismiss
The jurisdictional challenge is brought under Fed. R. Civ. P. 12(b)(1). The motion
to dismiss for failure to state a claim is under Rule 12(b)(6). The standards are similar, but
not identical.
A complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), giving the defendant “fair notice of what
the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93
(2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although this
standard “does not require ‘detailed factual allegations,’ . . . it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 555).
A complaint may be dismissed if the plaintiff fails to plead “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 plaintiff must allege facts
that indicate “more than a sheer possibility that a defendant has acted unlawfully.” Id.
Pleading only “facts that are ‘merely consistent with’ a defendant's liability” is insufficient
and cannot survive a motion to dismiss. Id. (quoting Twombly, 550 U.S. at 557).
In determining whether the complaint meets the sufficiency test under Iqbal and
Twombly, we apply a three-step analysis. Burtch v. Milberg Factors, Inc., 662 F.3d 212,
8

221 (3d Cir. 2011). First, we identify the elements of the plaintiff’s cause of action. Id.
(quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). Second, we
discard conclusory statements, leaving only factual allegations. Id. (quoting Santiago, 629
F.3d at 130). Third, assuming the truth of the well-pleaded factual allegations, we
determine whether they plausibly give rise to an entitlement for relief.

Id. (quoting

Santiago, 629 F.3d at 130).
When considering a motion to dismiss for failure to state a claim under Rule
12(b)(6), all well-pleaded allegations in the complaint are accepted as true and viewed in
the light most favorable to the plaintiff. Holk v. Snapple Beverage Corp., 575 F.3d 329,
334 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008)). We may also consider documents attached to the complaint. Buck v. Hampton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citation omitted). Additionally, the pro
se plaintiff's pleadings must be considered deferentially, affording her the benefit of the
doubt where one exists. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citing
Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002)). With these standards in mind, we
shall accept as true the facts as they appear in Wade’s complaint and draw all possible
inferences from these facts in her favor.
A motion to dismiss under Rule 12(b)(1) attacking the court's jurisdiction is treated
similarly to a Rule 12(b)(6) motion. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176
(3d Cir. 2000). However, a jurisdictional motion challenging the factual underpinnings of
a court's jurisdiction under Rule 12(b)(1) requires less deference to the plaintiff's complaint.
CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). Because a “factual attack” in a
Rule 12(b)(1) motion addresses the court's power to hear the case, there is no
9

presumption of truthfulness and we may consider materials outside the complaint to
determine whether the exercise of federal jurisdiction is proper. Id. at 139, 145.
The plaintiff has the burden of persuading the court that it has jurisdiction. Gould,
220 F.3d at 178. However, consistent with the deferential standard, we shall keep Wade’s
pro se status in mind when we examine the facts relevant to subject matter jurisdiction
under Rule 12(b)(1). Int'l Ass'n of Machinists & Aerospace Workers v. Nw. Airlines, Inc.,
673 F.2d 700, 711 (3d Cir.1982) (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549
F.2d 884, 891 n. 16 (3d Cir.1977)) (noting that there is a flexible form of the jurisdictional
inquiry at the trial court level).
We start with the jurisdictional challenge. If we lack jurisdiction to hear Wade’s Title
VII claims in her FECA complaint, we do not reach the adequacy of the complaint under
Iqbal and Twombly. If jurisdiction exists, we proceed to an evaluation of the complaint to
determine whether Wade has stated a cause of action entitling her to relief.

FECA Complaint
Jurisdiction to Review Title VII Claims
FECA precludes judicial review of benefits decisions made by the DOL. 5 U.S.C.
§ 8128(b);19 see also Sw. Marine, Inc. v. Gizoni, 502 U.S. 81, 90 (1991) (FECA contains
an “‘unambiguous and comprehensive’ provision barring any judicial review of the

19

§ 8128(b) reads: “The action of the Secretary or his designee in allowing or denying a paym ent
under this subchapter is– (1) final and conclusive for all purposes and with respect to all questions of law and
fact; and (2) not subject to review by another official of the United States or by a court by m andam us or
otherwise.”

10

Secretary of Labor’s determination of FECA coverage.”). The USPS relies on § 8128(b)
to argue we lack subject matter jurisdiction to review Wade’s claim that the USPS harassed
her while delaying her FECA paperwork in retaliation for her EEOC activity. Wade
counters that she is not challenging a decision by the DOL because her eligibility for FECA
benefits is not at issue. Instead, she maintains that the USPS is preventing the DOL from
making a benefits decision, thereby delaying her benefits in retaliation for her protected
activity.
FECA’s exclusivity provision does not preclude all Title VII actions. Miller v. Bolger,
802 F.2d 660, 663-64 (3d Cir. 1986). In Miller, the plaintiff-employee alleged that he was
repeatedly assaulted at work in retaliation for his testimony on behalf of a co-worker
alleging discriminatory employment practices. Id. at 661. After filing a FECA claim for
injuries resulting from one of the assaults, Miller also initiated a Title VII retaliation claim.
Id. The Third Circuit reasoned that FECA’s exclusivity provision does not bar a Title VII
retaliation claim because the remedies available under Title VII are different than those
under FECA. Id. at 665-66. The Court noted that Congress intended FECA as an
alternative to suits for tortious workplace injuries. In other words, as its legislative history
confirms, FECA was intended only as a substitute for statutes like the Federal Tort Claims
Act. Id. at 663. A recovery under Title VII does not constitute “damages . . . for injury” as
defined by FECA. Thus, a Title VII claim may not trigger FECA’s jurisdictional bar. Id.
Following Miller, several courts have held that the recovery or denial of FECA
benefits does not preclude a related suit for injuries stemming from discrimination or
retaliation. See Nichols v. Frank, 42 F.3d 503, 515-16 (9th Cir. 1994), abrogated on other
grounds as recognized in Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir. 1999);
11

Latham v. Brownlee, No. 03-933, 2005 WL 578149, at *6 (W.D. Tex. Mar. 3, 2005); Dubee
v. Henderson, 56 F. Supp. 2d 430, 433-34 (D. Vt. 1999); Karnes v. Runyon, 912 F. Supp.
280, 285 (S.D. Ohio 1995); Taylor v. Sec. of Navy, 852 F. Supp. 343, 351-52 (E.D. Pa.
1994); Johnson v. Sullivan, 764 F. Supp. 1053, 1063 (D. Md. 1991); George v. Frank, 761
F. Supp. 256, 258-59 (S.D.N.Y. 1991). As recently observed by one court, “the great
weight of authority holds that recovery of FECA benefits does not preclude subsequent
claims for discrimination.” Montana v. Donahoe, No. 10-212, 2011 WL 3862213, *8 (W.D.
Tex. Sept. 1, 2011).
Nonetheless, a plaintiff may not avoid FECA’s jurisdictional bar by characterizing
what is essentially a FECA claim as a Title VII action. For example, in Lockett v. Potter,
No. 10-4061, 2007 WL 496361, *1 (N.D. Ohio Feb. 12, 2007), the plaintiff alleged that
USPS employees made false statements to the DOL in retaliation for his prior EEOC
activity. The DOL relied on these statements to deny the plaintiff’s benefits application.
Id. at *2. The court held that Lockett’s claim would require it to review the factual and legal
basis for the DOL’s decision – an inquiry precluded by FECA’s jurisdictional bar. Id.; see
also Foulke v. Potter, No. 10-4061, 2011 WL 127119, at *2-3 (E.D.N.Y. Jan. 10, 2011)
(same); Madison v. Potter, No. 08-479, 2011 WL 66136, at *4 (N.D. Tex. Jan 10, 2011)
(dismissing for lack of jurisdiction plaintiff's claim that the DOL's delay in processing her
FECA claim was discriminatory); Alamguer v. White, No. 01-1103, 2002 WL 31396123, at
*4 (W.D. Tex. Sept. 13, 2002) (dismissing for lack of jurisdiction plaintiff's claim that the
DOL conspired with her employer to suspend her FECA benefits in violation of Title VII and
the Rehabilitation Act because her claims would require judicial review of the DOL’s FECA
decision).
12

Wade is not alleging that she was denied FECA benefits because USPS managers
and supervisors misled the DOL. Instead, she avers that they have prevented the DOL
from making factual or legal findings on some of her claims by not sending the DOL the
necessary paperwork. Resolving this issue does not require a review of any benefits
determination made by the DOL. See Moss v. Potter, No. 06-1498, 2007 WL 1521210,
at *3 (W.D. Pa. May 24, 2007) (holding FECA's exclusivity provision did not divest court of
subject matter jurisdiction over plaintiff's Title VII claim that USPS employees withheld
medical documentation from the DOL in retaliation for a previous EEOC complaint because
plaintiff was challenging and seeking relief from USPS’s retaliatory actions), aff’d on other
grounds, No. 07-2779, 2007 WL 2900551 (3d Cir. Oct. 3, 2007). Wade’s Title VII claim
is independent from any determination the DOL ultimately makes. Her claim does not
implicate any factual or legal determinations made by the DOL.
Wade’s Title VII claims are not limited to the USPS’s alleged failure to forward her
completed paperwork to the DOL. She also alleges that USPS employees harassed her
while she was trying to obtain the signature necessary to complete her leave slip. FECA
does not bar review of this claim. Accordingly, we have subject matter jurisdiction to review
Wade’s Title VII claims.

Title VII Claims
Title VII prohibits discrimination based on race, color, religion, gender, or national
origin, 42 U.S.C. § 2000e–2(a) (2003), or retaliation for opposing an unlawful employment

13

practice or participating in an enforcement proceeding. 42 U.S.C. § 2000e-3(a) (2003).20
The USPS maintains that Wade has failed to allege facts connecting the USPS’s
harassment and delay in processing her FECA claims to her EEOC activity. We agree.
It is unclear whether Wade seeks to proceed under a hostile work environment
theory, a retaliatory harassment claim predicated on a hostile work environment, or a
retaliation claim.21 In light of her pro se status, we shall analyze her allegations under each
theory, beginning by reviewing the elements.
To state a hostile work environment claim, Wade must show that: (1) she suffered
intentional discrimination because of her race, gender, or national origin;22 (2) the
discrimination was severe or pervasive; (3) the discrimination detrimentally affected her;
(4) the discrimination would detrimentally affect a reasonable person of the same race,
gender, or national origin in that position; and (5) the existence of respondeat superior
liability. Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006), overruled in part on other
grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
In the absence of “direct evidence,” Wade must establish her prima facie case of
retaliation by showing that: (1) she engaged in a protected activity; (2) the USPS took an

20

"Coverage of Title VII extends to United States Postal Service em ployees." Miller, 802 F.2d at 662
(citing 42 U.S.C. § 2000e-16).
21

For exam ple, W ade alleges “a good dose of the harassm ent that I am receiving has a great deal
to do with the fact that the Postal Service is retaliating against m e for Prior Equal Em ploym ent Opportunity
activity and hiring a lawyer.” Com pl. No. 11-3795, at 9. She also alleges that her “Postal Service facility
continues to behave as if it is ok and legal to treat m e adversely, cam paign harassm ent, create a hostile work
environm ent, assault, abuse, experim ental torture, force em ploym ent term ination and im pede Federal
Em ployee Com pensation Act claim s regardless of any past or future judgm ents m ade against them .” Id.
22

The Third Circuit has recognized a hostile work environm ent claim predicated on retaliation. Griffin
v. Harrisburg Prop. Servs., Inc., 421 F. App’x 204, 207 (3d Cir. 2011); Devore v. Cheney Univ. of Pa., No. 11274, 2012 W L 10322 (E.D. Pa. Jan. 3, 2012).
14

adverse employment action against her subsequent to the activity; and (3) there was a
causal connection between her activity and the USPS’s actions. Marra v. Phila. Hous.
Auth., 497 F.3d 286, 300 (3d Cir. 2007); Moore v. City of Phila., 461 F.3d 331, 340-41 (3d
Cir. 2006) (citation omitted). A claim for retaliatory harassment, typically based on the
actions of co-workers instead of supervisors, requires that Wade also show there is a basis
for employer liability. Jensen, 435 F.3d at 449.
Wade need not establish a prima facie case in her complaint. Fowler v. UPMC
Shadyside, 578 F.3d 203, 213 (3d Cir. 2009). However, we must examine the factual
allegations in light of the elements of each alleged cause of action to determine whether
Wade has set forth a plausible claim. Khalik v. United Air Lines, 671 F.3d 1188, 1192
(10th Cir. 2012) (citing Twombly, 550 U.S. at 570 and Swierkiewicz v. Sorema N.A., 534
U.S. 506, 515 (2002)). Under whichever theory she seeks to pursue, Wade must establish
a causal connection between her protected activity and the USPS’s actions.
Wade does not state a Title VII claim merely by alleging that she believes the
actions she challenges were in retaliation for her EEOC activity. Sangi v. Warren Hosp.,
No. 10-4571, 2011 WL 4857933, at *2 (D.N.J. Oct. 11, 2011); Foy v. Wakefern Food Corp.,
No. 09-1683, 2010 WL 147925, at *4 (D.N.J. Jan. 7, 2010); Lott v. Children’s Hosp. of
Phila., No. 10-4088, 2010 WL 5186167, at *2 (E.D. Pa. Dec. 22, 2010); Stevenson v.
USPS, No. 04-5971, 2008 WL 108891, at *6 (D.N.J. Jan. 9, 2008). Although the Third
Circuit has noted “that the quantum of facts that a discrimination complaint should contain
may bear further development,” Guirguis v. Movers Specialty Servs., Inc., 346 F. App’x
774, 776 n.6 (3d Cir. 2009), a plaintiff must include facts in her complaint that support more
than a “mere possibility” that the actions taken by the USPS were caused by a retaliatory
15

animus. Iqbal, 550 U.S. at 557-58.
Wade may support an inference of causation by pleading facts showing: (1)
temporal proximity between her EEOC activity and the USPS’s impeding her FECA claims;
(2) a pattern of antagonism in the intervening period; or (3) that the allegations in their
entirety point to some causal relationship. Jensen, 435 F.3d at 450; see also BurgessWalls v. Brown, No. 11-275, 2011 WL 3702458, at *8 (E.D. Pa. Aug. 22, 2011) (dismissing
plaintiff’s retaliation claim for failing to allege, in the absence of temporal proximity or a
pattern of antagonistic behavior, facts connecting her protected activity to the adverse
employment actions).
The timing of Wade’s 2003 EEOC activity and the USPS’s alleged obstruction of her
FECA claims seven years later is not suggestive of retaliation. As she alleges, the USPS
began harassing her by refusing to sign and process some of her FECA claims in October
2010. The passage of approximately seven years, without any intervening adverse
employment actions, does not support a reasonable inference that USPS supervisors and
managers were harassing Wade in retaliation for her EEOC activity. See Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (per curiam) (observing that courts finding
an inference of causation based solely on temporal proximity require that the timing be
“very close” and holding that the passage of twenty months suggested “no causality at all”).
Wade also alleges that the USPS retaliated against her for hiring an attorney.
Although she does not state in her FECA complaint when and why she hired an attorney,
she alleges in her EEOC Complaint No. 1C191000911, which she attached to her
complaint in this action, that she hired an attorney in 2009 to “receive treatment and
approval by the Department of Labor.” Her attorney was not engaged to represent her in
16

any Title VII activity. Although closer in time than her 2003 EEOC activity, hiring an
attorney to assist with the processing of a FECA claim is not a protected activity under Title
VII. Johnston v. Henderson, 144 F. Supp. 2d 1341, 1354 n.5 (S.D. Fla. 2001).
Wade has alleged no facts showing that there was a pattern of antagonism against
her in the period between her 2003 EEOC activity and when the USPS began obstructing
the processing of her FECA claims in October 2010. Without a pattern of antagonism in
this intervening period, Wade’s allegations that several USPS employees waited seven
years before conspiring to engage in a campaign to harass her and obstruct some of her
FECA benefits does not state a plausible claim for relief.
Wade’s allegations, viewed in their entirety, do not support an inference of
causation. See Jensen, 435 F.3d at 450 (observing that in hostile work environment and
retaliatory harassment claims, the court should examine the entire scenario to determine
if it supports an inference of causation) (citations omitted). As evidence of the campaign
of harassment, she describes several incidents, which we briefly recount.
Wade claims that manager Michael Petty reprimanded a manager who signed
Wade’s leave slip and tore up the slip in front of Wade. She also claims that although
supervisor Cynthia Davis promised to help process Wade’s paperwork, she made it difficult
to meet with her. After Davis eventually met with Wade, she gave Wade’s form to
caseworker Diane Castro, who Wade claims withheld the information from the DOL. Wade
complained of Castro’s lack of assistance in processing her claim to manager Ivan Butts.
According to Wade, Butts wrote in a letter that “[t]his is not done without intent or malice.”
To connect these actions to her 2003 EEOC activity, Wade alleges “a good dose
of the harassment that I am receiving has a great deal to do with the fact that the Postal
17

Service is retaliating against me for my prior EEOC activity and hiring a lawyer.” Despite
this conclusion, there are no factual allegations in her lengthy complaint to support or infer
the conclusion that the USPS was retaliating against her for her 2003 EEOC activity.
The most significant fact Wade alleges is that Butts told her the USPS’s delay in
processing her FECA claims was “not done without intent or malice.” Viewed with her
other allegations, this supports an inference that some USPS employees hold animus
toward her. However, animus, standing alone, is insufficient to state a claim under Title
VII. The animus must be related to the plaintiff’s Title VII protected status or conduct.
Moore, 461 F.3d at 342 (“Many may suffer . . . harassment at work, but if the reason for
that harassment is one that is not proscribed by Title VII, it follows that Title VII provides
no relief.”) (citation omitted); see also Bradley v. Aria Health, No. 10-5633, 2011 WL
2411026, at *3 (June 15, 2011) (dismissing plaintiff’s complaint because although he
pleaded facts supporting an inference of pretext, plaintiff included no facts to support an
inference that the pretext was a cover for discrimination). There are no facts connecting
any animus to Wade’s 2003 or any other EEOC activity in her complaint. Consequently,
Wade has not stated a plausible claim entitling her to relief.
Wade also mentions that the USPS is trying to “force employment termination.”
Assuming this is a reference to a constructive discharge claim, the claim fails.
“Constructive discharge occurs when an employer knowingly permit[s] conditions of
discrimination in employment so intolerable that a reasonable person subject to them
would resign.” Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 n.4 (3d Cir. 2006)
(citations omitted). The USPS’s alleged harassment and delay of some of Wade’s FECA
claims does not rise to the level of severity required to state a constructive discharge
18

claim.23

As with her other retaliation-based claims, Wade has not alleged facts

demonstrating a connection between her protected activity and her alleged discharge.
Therefore, she has not stated a claim for constructive discharge.

Additional Claims
Referring to several other federal statutes and regulations, Wade argues that the
USPS’s conduct violated federal law. Wade also mentions a Bivens claim, but does not
specify what constitutional right the USPS violated.
Title VII precludes Wade’s Bivens claim.24 Title VII is the “exclusive, pre-emptive
administrative and judicial scheme for the redress of federal employment discrimination.”
Brown v. Gen. Servs. Admin., 425 U.S. 820, 828-29 (1976). It “precludes actions against
federal officials for alleged constitutional violations as well as actions under other federal
legislation.” Francis v. Mineta, 505 F.3d 266, 271 (3d Cir. 2007) (quoting Owens v. United
States, 822 F.2d 408, 410 (3d Cir. 1987)); see also Mitchell v. Chapman, 343 F.3d 811,
825 (6th Cir. 2003) (“[I]t is well-settled that USPS employees may not allege Bivens claims
arising out of their employment relationship with the USPS.”) (citations omitted); RiveraRosario v. U.S. Dep’t of Agric., 151 F.3d 34, 38 (1st Cir. 1998) (“The Supreme Court has
indicated that where the gravamen of the claim is Title VII discrimination, the only remedy
available is under Title VII.”) (citing Brown, 425 U.S. 820). Therefore, the Bivens claim fails

23
Sim ilarly, W ade’s allegations fall short of stating a claim for a hostile work environm ent because
she has not alleged facts indicating severe or pervasive discrim ination in retaliation for her EEOC activity.
24

"A Bivens action, which is the federal equivalent of the § 1983 cause of action against state actors,
will lie where the [federal] defendant has violated the plaintiff's rights under color of federal law." Sarullo v.
U.S. Postal Serv., 352 F.3d 789, 794 n.3 (3d Cir. 2003) (quotation om itted).
19

as a matter of law.
Wade also asserts that the USPS “has shown disregard to the Privacy Act of 1974
and amended 5 U.S.C. [§] 8101(6)25 where they are intentionally refusing to provide the
necessary information (submitting CA-7's) to determine whether benefits are being paid
properly.”26 Wade does not identify which provision of the Privacy Act she claims the
USPS has violated. Because this leaves the USPS to examine every potential cause of
action under the statutory scheme, Wade has not given the USPS fair notice of her Privacy
Act claim. Therefore, the claim fails to satisfy the pleading requirements of Fed. R. Civ.
P. 8. See Williams v. Potter, 384 F. Supp. 2d 730, 734 (D. Del. 2005) (dismissing pro se
plaintiff’s complaint alleging violations of the Privacy Act for failure to meet the
requirements of Rule 8 because plaintiff failed to indicate which provision of the Act the
defendant violated).
Moreover, the facts Wade alleges do not state a claim under the Privacy Act. The
Act prohibits the disclosure of personal information without consent, 5 U.S.C. § 552a(b),
and allows individuals to access their records and correct inaccuracies. § 552a(d). Wade
alleges that the USPS is withholding information from the DOL. There is no provision in
the Privacy Act that prohibits such conduct.
Citing three criminal statutes, 18 U.S.C. §§ 1001, 1920 and 1922, Wade argues that
she is entitled to punitive damages and that some USPS employees should serve jail time.
These statutes do not create a private cause of action upon which Wade may sue the

25

Section 8101 provides definitions for Chapter 81 – Com pensation for work injuries. Section 8101(6)
defines “widow.” W ade refers to the statute “as am ended,” but it is unclear to what am endm ent she refers.
26

Com pl. No. 11-3795, at 10.
20

USPS. Abou-Hussein v. Gates, No. 08-783, 2010 WL 2574084, at *1 (D.C. Cir. June 11,
2010) (holding 18 U.S.C. § 1001 is a criminal statute that does not create a private cause
of action), cert. denied, 131 S. Ct. 1055 (2011); Rogerson v. United States, No. 08-5060,
2009 WL 1361875, at *1, *5 (D.S.D. May 13, 2009) (holding § 1920 does not create a
private cause of action); see also 20 C.F.R. § 10.16 (“Enforcement of [18 U.S.C. §§ 1001,
1920, and 1922] that may apply to claims under the FECA is within the jurisdiction of the
Department of Justice”).
Wade also cites the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. §§ 38013812 (2006) (“PFCRA”). The PFCRA allows federal departments and agencies “to pursue
administrative actions against individuals for false, fictitious or fraudulent claims for benefits
or payments under a federal agency program.” Orfanos v. Dep’t of Health and Human
Servs., 896 F. Supp. 23, 24-25 (D.D.C. 1995). The scheme was enacted to “provide
federal agencies which are the victims of false, fictitious, and fraudulent claims and
statements with an administrative remedy to recompense such agencies for losses
resulting from such claims and statements . . . .” Program Fraud Civil Remedies Act of
1986, Pub. L. No. 99-509, 100 Stat. 1874 § 6102(b); see also Graham Cnty. Soil and
Water Conservation Dist. v. U.S. ex rel. Karen T. Wilson, 130 S. Ct. 1396, 1409 n.17
(2010) (observing that the PFCRA is “addressed to federal administrative remedies”). It
does not provide relief to individuals. Hence, Wade cannot rely on the PFCRA to recover
against the USPS.
Wade mentions several provisions in the Code of Federal Regulations. 20 C.F.R.
§10.16 lists 18 U.S.C. §§ 1001, 1920, and 1922. Like the cited criminal provisions, the
regulation does not provide a private cause of action. Instead, it expressly states that the
21

Department of Justice has jurisdiction to enforce those statutes. 20 C.F.R. § 10.16.
20 C.F.R. § 10.111, also cited by Wade, is a FECA-implementing regulation.
Schmidt v. Shah, 696 F. Supp. 2d 44, 65 (D.D.C. 2010). FECA “does not provide a cause
of action against a government employer who fails to comply with these regulations.” Id.
Similarly, 29 C.F.R. § 22.1, et seq. are implementing regulations for the PFCRA.
Therefore, neither the PFCRA nor its implementing regulations provide a private cause of
action under the facts Wade alleges in her complaint.

National Reassessment Program Complaint
Title VII Claims
Wade claims that her treatment during the NRP was in retaliation for her EEOC
activity. As with the Title VII claims in her FECA complaint, Wade has not pleaded facts
indicating a causal relationship between her 2003 EEOC activity and her experience in the
NRP in late 2010. There is no temporal proximity. Wade has not alleged a pattern of
antagonism in the seven years following her EEOC activity that could provide a causal link.
Nor do her factual allegations, viewed in their entirety, support an inference of a causal
relationship.
During the time she claims USPS employees were interfering with the processing
of her FECA paperwork, Wade was assigned to a standby room as part of the USPS’s
NRP. Wade alleges that for two weeks, she was forced to sit in the room to await her NRP
interview. According to Wade, the USPS intentionally made the room uncomfortable by
replacing padded chairs with plastic ones, removing tables, partitioning the room, blocking
access to a television, locking the room for a period of time, making the room cold, and
22

controlling the lights in the room with a motion sensor. Wade states that she was
humiliated and stressed during her assignment to the standby room, requiring her to seek
medication.
When a supervisor or manager came to the standby room to talk to Wade, the
conversations ended badly, resulting in her becoming angry and sometimes crying. For
example, Wade recounts a conversation with manager Tommy Franklin when he came to
the standby room to explain the NRP process to Wade. The conversation ended with
Wade feeling “rage and shock” and telling Franklin that he was not on her side because
he had not written a letter of recommendation as he had agreed.27
According to Wade, her NRP interview did not go any better. The panel found that
that there was no work available that could accommodate her medical restrictions. After
some frustrating interactions with the panel members, Wade was sent home.
To link her experience during the NRP process to her protected activity, Wade
claims that she is viewed as a trouble-maker for her past EEOC activity.28

Wade

“believe[s] that the managers had knowledge of [her] prior legal activity against the post
office and that [she is] treated differently than other employees and was retaliated against
because of it.”29
Like she did with her other claims, Wade makes bald conclusory assertions without
any factual allegations. Her assertions, based on her belief and not facts, do not support
an inference of retaliatory animus. It appears that but for one day of her time in the
27

Com pl. No. 11-4584, at 7-8.

28

Id. at 14.

29

Id.
23

standby room, she was joined by other mail handlers.30 There are no facts supporting her
allegation that she was singled out during the NRP process. Although other employees
assigned to the room were often placed on temporary work assignments, these employees
were not mail handlers.
To support an inference of causation, Wade references three other employees she
claims were similarly situated. She alleges that one employee continued to do the same
limited duty job as Wade had done before her assignment to the standby room, but this
employee was not required to sit in the standby room before being sent home on
November 18, 2010. Wade also points to two USPS employees working in a different
facility who were “treated more favorably during the NRP process as comparison with the
standby room standards.”31 However, there are no allegations that could demonstrate that
these employees were similarly situated to Wade. Therefore, her comparator allegations
are insufficient to show a causal nexus.
Wade’s allegation that someone at the USPS ordered the standby room to be made
as uncomfortable as possible is troubling. However, the presence of other limited duty
employees assigned to the stand-by room weighs against an inference of retaliation
against Wade. Moreover, the alleged statements by the NRP panel that in light of Wade’s
scheduled surgery, they only wanted “full able bodies”32 relates to Wade’s abilities at the
time and is not suggestive of retaliation.

30

See, e.g., id. at 10 (“There were the usual two or three of us m ail-handlers Sharon W atkins, Sharon
Jordan-Trowery, and m yself in the room .”).
31

Pl.’s Mot. 2.

32

Com pl. No. 11-4584, at 11.
24

Wade’s two complaints, viewed together, do not support an inference of causation.
In the absence of facts connecting Wade’s EEOC activity to her treatment during the NRP,
we shall dismiss Wade’s Title VII claims.

Disability Discrimination
Wade also alleges that through the NRP process, the USPS discriminated against
her based on her disability, in violation of the ADA and Rehabilitation Act. The EEOC held
Wade’s disability discrimination claims in abeyance because they fall within the “McConnell
Class,” a class action pending before the EEOC. As stated in the EEOC’s final agency
decision for Wade’s claims, which she attached to her NRP complaint, the McConnell
Class alleges that the USPS discriminated against disabled employees through the NRP
because it failed to engage in an interactive process and did not accommodate class
members’ disabilities.33
Congress has granted the EEOC authority to establish procedures for adjudicating
discrimination claims. See 42 U.S.C. § 2000e-16(b) (2003) (“[T]he [EEOC] . . . shall issue
such rules, regulations, orders and instructions as it deems necessary and appropriate to
carry out its responsibilities under this section.”). Pursuant to this authority, the EEOC has
promulgated regulations for class actions. See generally 29 C.F.R. §1614.204; E.E.O.C.
Management Directive 110, Chapter 8, Nov. 9, 1999. When a class action is pending, the
EEOC subsumes individual complaints into a class action alleging similar claims.

33

EEOC Decision No. 1C-191-0023-11, at 2 n.1 (Feb. 15, 2011).
25

Management Directive 110, Chapter 8, Part III.C.;34 Mack v. Gonzales, No. 06-350, 2007
WL 196791, at *2 (D. Colo. Jan. 23, 2007) (holding the EEOC has the authority to
subsume individual complaints within a related class action). Subsumed claimants may
not opt out of class membership. Management Directive 110, Chapter 8, Part V.C.
(“[C]lass members may not ‘opt-out’ of the defined class.”);35 see also id. at Part X.C.
(same).
There is no contention or suggestion that the EEOC erred in holding Wade’s
disability discrimination claims in abeyance pending adjudication of the McConnell Class.
In fact, Wade told the Court during the Rule 16 conference that she had reached out to
class counsel to participate in the class. We agree that Wade’s disability discrimination
claims were properly subsumed into the McConnell class and placed in abeyance pending
resolution of the class claims. Johnson v. Rubin, 105 F.3d 665 (Table), 1997 WL 14348,
at *2-3 (9th Cir. 1997) (holding the EEOC properly placed individual claims subsumed in
an EEOC class action in abeyance pending resolution of the class action).
Wade, a member of the McConnell Class, will not be permitted to individually litigate
her claims in this forum while the class action is ongoing before the EEOC. Allowing a
member of an EEOC class action to pursue individual claims in federal court would
essentially permit class members to opt out of the class in contravention of the procedures

34

The relevant portion of the provision reads: “An individual com plaint that is filed before or after the
class com plaint is filed and that com es within the definition of the class claim (s), will not be dism issed but will
be subsum ed within the class com plaint. If the class com plaint is dism issed at the certification stage, the
individual com plaint m ay still proceed, unless the sam e or another basis for dism issal applies. . . .”
35

The regulation continues: “[H]owever, [class m em bers] do not have to participate in the class or file
a claim for individual relief. All class m em bers will have the opportunity to object to any proposed settlem ent
and to file claim s for individual relief if discrim ination is found.”
26

promulgated by the EEOC at Congress’s behest. Cf. Wetzel v. Liberty Mut. Ins. Co., 508
F.2d 239, 252-53 (3d Cir. 1975) (allowing members of a binding class action to opt out and
individually litigate their claims “would defeat the fundamental objective of [Rule 23](b)(2),
to bind the members of the class with one conclusive adjudication”). Moreover, individual
adjudication of her claims could interfere with the administration of the class action and
risks inconsistent results. Based on these concerns, dismissal without prejudice of Wade’s
subsumed claims is appropriate. See Horns v. Whalen, No. 90-6068, 1991 WL 78, at *1
(4th Cir. Jan. 2, 1991) (“This Circuit as well as several other courts of appeals and district
courts have held that it is not an abuse of discretion for a court to decline jurisdiction over
an issue pending in another court, particularly in the instance of a class action.”).
We note that the EEOC procedures subsuming individual claims into a related
pending class action do not have the protections incorporated in Rule 23(b). See, e.g.,
Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998) (discussing the importance
in ensuring that significant individual issues do not pervade the entire action in a binding
Rule 23(b)(2) class action). However, unlike binding class actions under Rule 23(b)(1) and
(2), Wade may later pursue her individual claims even if class-wide discrimination is not
found. 29 C.F.R. § 1614.204(l)(2). If class-wide discrimination is found, Wade may
present her claim at the remedy stage. Management Directive 110, Ch. 8, Part III.C. At
that point, Wade will have the benefit of a presumption that she was the victim of
discrimination. 29 C.F.R. § 1614.204(I)(3). If the USPS contests her individual claim, it
would have to prove by clear and convincing evidence that she is not entitled to relief. Id.
These protections further support our dismissal, without prejudice, of Wade’s subsumed
disability discrimination claims.
27

Additional Claims
As in her FECA complaint, Wade cites several statutes and regulations to argue that
the NRP violated federal law. We shall dismiss these additional claims.
Wade claims that she was not paid properly “according to Title 5 United States
Code and Fair Labor Standards Act section 551.431.” She does not refer to any specific
provision in Title 5. Therefore, her Title 5 claim is dismissed because it does not give the
USPS fair notice of the claim and the grounds on which it rests. Erickson v. Pardus, 551
U.S. 89, 93, (2007) (quoting Twombly, 550 U.S. at 555).
We shall also dismiss Wade’s Fair Labor Standards Act claim. We assume Wade’s
reference to “section 551.431" is to 5 C.F.R. § 551.431, the regulation promulgated by the
Office of Personnel Management to implement the Fair Labor Standards Act. The
regulation distinguishes between standby and on-call employees. Id. Stand-by employees
are entitled to compensation, on-call employees are not. Id.; U.S. Dept. of Navy v. FLRA,
962 F.2d 1066, 1068 (D.C. Cir. 1992). Wade does not allege that the USPS labeled her
an on-call employee in an attempt to avoid paying her for her time in the standby room.
In fact, she was compensated for her time in the stand-by room. Therefore, she does not
state a claim under the Fair Labor Standards Act.
Wade cites 5 C.F.R. §§ 353.301(d) and 353(d)36 and 29 C.F.R. §§ 1614.103(a)(b)(3)
and 1614.203. Wade argues that these regulations support her assertion that the USPS

36

There is no 5 C.F.R. § 353(d), however, W ade quotes language approxim ating that of § 353.301(d).
28

discriminated against her based on her disability.37 Because these claims fall within the
McConnell Class, they will be dismissed without prejudice.
Wade also references two provisions of the “Employee Labor Manual.” What
source Wade is referring to is unclear. Assuming it is a USPS manual, it does not provide
a cause of action.

Punitive Damages against the USPS under Title VII
In both complaints, Wade seeks punitive damages. We agree with the USPS that
Wade may not seek punitive damages under Title VII.38 Title VII’s exemption of punitive
damages to government agencies applies to the USPS. Robinson v. Runyon, 149 F.3d
507, 517 (6th Cir. 1998); Baker v. Runyon, 114 F.3d 668, 670-72 (7th Cir. 1997); Jeffries
v. Potter, No 06-707, 2008 WL 2607856, at *3 (D. Del. July 1, 2008) (order granting partial
motion to dismiss). Therefore, Wade may not recover punitive damages.

Conclusion
Wade’s Bivens claim, her Fair Labor Standards Act claim, her claims under the
PFCRA, 18 U.S.C. §§ 1001, 1920, and 1922, and 20 C.F.R. §§ 10.16 and 10.111 shall be
dismissed with prejudice.

Her ADA, Rehabilitation Act, and any related disability

discrimination claims are dismissed without prejudice to her right to pursue them as a class
member in the on-going class action before the EEOC.
37
For instance, W ade alleges the USPS violated Section 353.301(d) because it did not engage in an
interactive process to accom m odate W ade's restrictions.
38

W e have already concluded that the provisions that W ade cites providing for crim inal fines do not
give her a private cause of action.
29

Wade’s Title VII claims are dismissed without prejudice. She may amend her
complaint with respect to those claims only.

30