SMITH v. DONAHOE

Filing 23

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE ELIZABETH T. HEY ON 1/15/2013. 1/16/2013 ENTERED AND COPIES E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ESTES SMITH
v.
PATRICK R. DONAHOE,
Postmaster General

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CIVIL ACTION

NO. 12-2639

MEMORANDUM AND ORDER
ELIZABETH T. HEY, M.J.

January 15, 2013

Plaintiff, an employee at the United States Postal Service, filed a three-count
amended complaint against the Postmaster General. Doc. 9-2. Count I alleges a due
process violation based on the denial of a hearing in Plaintiff’s whistleblower reprisal
investigation. Count II alleges disability discrimination in violation of the Rehabilitation
Act, 29 U.S.C. § 791(b), and Count III alleges retaliatory discrimination in violation of
the same provision.
Defendant has filed a motion to dismiss the amended complaint, arguing that
sovereign immunity bars the constitutional claim stated in Count I, and that Plaintiff
failed to administratively exhaust his claims in Counts II and III before the Equal
Employment Opportunity Commission (“EEOC”). See Doc. 14. In response, Plaintiff
has withdrawn Count I, see Doc. 19 at 2 n.1, 16,1 and counters that he did, in fact,
administratively exhaust his claims, and that his disability discrimination and retaliation

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Pinpoint citations to documents that have been electronically filed with the court
refer to the ECF pagination.

claims in Counts II and III fall within the scope of the charge he filed with the EEOC.
See id. at 6-16.2
I.

FACTS AND PROCEDURAL HISTORY
According to the amended complaint, on November 4, 2000, Plaintiff was given a

rehabilitation job assignment, limiting his lifting due to medical restrictions. Doc. 9-2 ¶
7, 10, 11. On April 20, 2009, Plaintiff initiated an EEO complaint against his supervisor,
Janet Felix, for issuing him a letter of warning while not issuing warnings to other
employees outside his class of disability. Id. ¶ 79. On May 27, 2009, at approximately
6:30 p.m., Plaintiff found a hidden bag of mail in the supervisor’s office. Id. ¶ 12. After
seeking guidance on what to do, Plaintiff took the mail to the Lindbergh Center in his
personal vehicle. Id. ¶ 20. Sometime between May 29, 2009, and June 5, 2009, Felix
issued Plaintiff an “Emergency Placement in Off-duty Status,” requiring him to take three
days without pay and giving him a reassignment of job duties which exceeded the
physical limitations of his rehabilitation job assignment. Id. ¶ 23-25. Plaintiff alleges
that the decision to modify his job duties was motivated by his disability and was
causally connected to his EEO complaint. Id. ¶¶ 76, 82.
On August 27, 2009, Plaintiff filed a complaint with the EEOC (“the EEOC
Complaint”) in which he noted that his supervisor had a “resentment and hostility to
those . . . with disability.” Doc. 14-1 at 2 (EEOC Complaint attached as Exh. A to

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The case was referred to me upon the consent of the parties by the Honorable
William H. Yohn. See Doc. 18.
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Defendant’s motion).3 He checked boxes on the form indicating that he had been
discriminated against on the basis of his sex, age, retaliation, and disability. Id. In an
addendum to the EEOC Complaint, Plaintiff complained that he had been issued a letter
of warning on March 23, 2009, and had been placed in an off-duty status on June 3, 2009.
Doc. 19 at 23 (addendum to EEOC Complaint attached as Exh. B to Plaintiff’s response).
On September 24, 2009, the EEOC sent Plaintiff a notice that it would investigate
the issues relating to the June 3, 2009 placement on off-duty status, but advised that the
investigation would not include the letter of warning issued on March 23, 2009. See Doc.
14-2 (Partial Acceptance/Partial Dismissal Letter dated Sept. 24, 2009, attached as Exh.
B to Defendant’s motion). On March 15, 2012, Plaintiff received a final agency decision
granting him the right to file a civil action. Doc. 12 ¶ 39.
On May 15, 2012, Plaintiff filed a complaint in federal court. See Doc. 1. After
the court granted Defendant’s motion to dismiss, see Docs. 4 & 5, and granted Plaintiff’s
motion for reconsideration, see Docs. 6 & 8, Plaintiff filed an amended complaint. See

In considering a motion to dismiss, the court may consider an “undisputedly
authentic” document. Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993). The Third Circuit has also stated that the district court may
consider “a document integral to or explicitly relied upon in the complaint,” In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997), or “documents
whose contents are alleged in the complaint and whose authenticity no party questions.”
Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). In the
context of an employment discrimination suit, this includes the EEOC complaint and
related EEOC documents. McInerney v. Moyer Lumber & Hardware, Inc., 244 F.Supp.
2d 393, 396 (E.D. Pa. 2002); Dixon v. Phila. Hous. Auth., 43 F.Supp. 2d 543, 544-45
(E.D. Pa. 1999); Foust v. FMC Corp., 962 F.Supp. 650, 652 (E.D. Pa. 1997). Here, the
parties have attached the EEOC Complaint, an addendum to that Complaint, the EEOC
investigation report, and the right to sue letter to their pleadings and motion papers. I
have considered each of these documents in the disposition of this motion.
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Doc. 12. On November 14, 2012, Defendant filed a motion to dismiss the amended
complaint, arguing among other things, that Plaintiff failed to exhaust his administrative
remedies with respect to the second and third counts of the amended complaint. See Doc.
14. Plaintiff responded, Defendant filed a Reply, and Plaintiff filed a Sur-Reply. See
Docs. 19, 21 & 22.
II.

LEGAL STANDARD
Defendant has sought to dismiss the action for lack of subject matter jurisdiction

pursuant to Federal Rule of Civil Procedure 12(b)(1) rather than pursuant to Rule
12(b)(6) for failure to state a claim upon which relief can be granted. See Doc. 14 at 4-5.
The distinction is not merely one of semantics. When considering a factual challenge
brought pursuant to Rule 12(b)(1), no presumption of truthfulness attaches to plaintiff’s
allegations and the existence of an issue of material fact does not bar the court’s
consideration of the jurisdictional claim. Turicento, S.A. v. Am. Airlines Inc., 303 F.3d
293, 300 (3d Cir. 2002); Anjelino v. N.Y. Times Co., 200 F.3d 73, 87 (3d Cir. 1999). In
considering a motion brought pursuant to Rule 12(b)(6), the court is to accept the facts
alleged in the complaint as true and draw all reasonable inferences in the plaintiff’s favor.
Anjelino, 200 F.3d at 87 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
Although Plaintiff has not objected to Defendant’s citation to Rule 12(b)(1) for
authority to dismiss the complaint, the Third Circuit has held that a motion challenging a
failure to exhaust administrative remedies in an employment case is properly considered
under Rule 12(b)(6). In Anjelino. the Third Circuit rejected the district court’s reliance
on Rule 12(b)(1), determining that motions to dismiss based on failure to exhaust and
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timeliness did not test the court’s subject matter jurisdiction and thus were properly
considered under Rule 12(b)(6).
We conclude that the District Court erred in considering the
Times’ failure to exhaust and timeliness defenses as grounds
for dismissal under Rule 12(b)(1) for lack of subject matter
jurisdiction. Although it is a “basic tenet” of administrative
law that a plaintiff should timely exhaust all administrative
remedies before seeking judicial relief, the purpose of this
rule is practical, rather than a matter affecting substantive
justice in the manner contemplated by the District Court. The
rule is meant to “provide courts with the benefit of an
agency’s expertise, and serve judicial economy by having the
administrative agency compile the factual record.” Robinson
v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). Failure to
exhaust is “in the nature of statutes of limitation” and do[es]
not affect the District Court’s subject matter jurisdiction.”
Hornsby [v. United States Postal Serv.], 787 F.2d [87], 89 [3d
Cir. 1986)] (citing Zipes v. Trans World Airlines, Inc. 455
U.S. 385, 392-98 (1982)). The characterization either of lack
of exhaustion or of untimeliness as a jurisdictional bar is
particularly inapt in Title VII cases, where the courts are
permitted to equitably toll filing requirements in certain
circumstances. Robinson, 107 F.3d at 1021 (citing Bowen v.
City of New York, 476 U.S. 467, 482 (1986)).
Anjelino, 200 F.3d at 86. Relying on Anjelino, I will analyze Defendant’s motion under
Rule 12(b)(6). See also Slingland v. Donahoe, Civ. No. 11-4591, 2012 WL 4473231, at
*2 (E.D. Pa. Sept. 27, 2012) (Stengel, J.) (motion to dismiss on exhaustion grounds
properly construed under Rule 12(b)(6) not 12(b)(1)); Deserne v. Madlyn & Leonard
Abramson Ctr. for Jewish Life, Inc., Civ. No. 10-3694, 2010 WL 4665915, at *1 n.1
(E.D. Pa. Nov. 17, 2010) (O’Neill, J.) (motion to dismiss claim for failure to exhaust
administrative remedies governed by Rule 12(b)(6) not 12(b)(1)); Saylor v. Del. Dept. of
Health and Soc. Servs., 569 F. Supp.2d 420, 421 n.1 (D. Del. 2008) (Robinson, J.)
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(reconstruing Rule 12(b)(1) motion as 12(b)(6) utilizing Anjelino); Tlush v. Mfrs. Res.
Ctr., 315 F. Supp.2d 650, 654 (E.D. Pa. 2002) (Brody, J.) (relying on Anjelino to
consider motion to dismiss for failing to exhaust administrative remedies under Rule
12(b)(6)); Wood v. Central Parking Sys. of Pa., Inc. Civ. No. 99-3022, 2000 WL 873310,
at *2 (E.D. Pa. June 23, 2000) (specifically rejecting argument that Anjelino applied only
to a claim of untimely filing); but see Falzett v. Pocono Mountain Sch. Dist., 150 F.
Supp.2d 699, 701 & n.2 (M.D. Pa. 2001) (Caputo, J.) (noting that Rule 12(b)(1) is
appropriate mechanism for motion to dismiss for failure to exhaust administrative
remedies in IDEA case because exhaustion in that context is jurisdictional); Dugan v,
Coastal Indus., Inc., 96 F. Supp.2d 481, 485 n.4 (E.D Pa. 2000) (Reed, J.) (Anjelino does
not prohibit reliance on Rule 12(b)(1) where it is clear from face of pleadings that
administrative remedies have not been exhausted under Federal Tort Claims Act).
Having determined that Defendant’s challenge to the complaint is properly
construed as a motion to dismiss for failure to state a claim upon which relief can be
granted pursuant to Rule 12(b)(6), I will now review the standards applicable to such
consideration. A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint.
Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Although Rule 8 requires only that the
complaint contain “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Fed. R . Civ. P. 8(a)(2), and to “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests,” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley, 355 U.S. at 47), plaintiffs must provide “more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
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action will not do.” Id. Similarly, “naked assertions devoid of further factual
enhancement” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555).
Read together, Twombly and Iqbal set forth a two-part analysis that federal courts
should utilize when presented with Rule 12(b)(6) motions. First, the factual and legal
elements of a claim should be separated, with the court accepting all well-pleaded facts as
true and disregarding any legal conclusions. See Iqbal, 556 U.S. at 678-79. Second, the
court must then determine whether the facts alleged in the complaint are sufficient to
show that the plaintiff has a “plausible claim for relief.” Id. at 679. “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.” Williams v.
Collins, Civ. No. 12-1149, 2012 WL 6058299, at *2 (E.D. Pa. Dec. 5, 2012) (quoting
Iqbal, 556 U.S. at 678). In making this determination, the court must accept as true any
reasonable inferences that may be drawn from plaintiff's allegations, and view those facts
and inferences in the light most favorable to plaintiff. See Rocks v. Philadelphia, 868
F.2d 644, 645 (3d Cir.1989). The Third Circuit has summarized the post-Twombly
standard as follows: “‘[S]tating . . . a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element. . . . This ‘does not impose a
probability requirement at the pleading stage,’ but instead ‘simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the necessary
element.” Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting
Twombly, 550 U.S. at 556). “Thus, to survive a motion to dismiss under Rule 12(b)(6), a
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plaintiff must allege facts sufficient to ‘nudge [his] claims across the line from
conceivable to plausible.’” Id. (quoting Twombly, 550 U.S. at 570).
III.

DISCUSSION
Discrimination on the basis of disability or in retaliation for protected activity is

prohibited by the Rehabilitation Act of 1973. 29 U.S.C. §§ 791, 794. The Rehabilitation
Act, like Title VII, has an administrative exhaustion requirement. Spence v. Straw, 54
F.3d 196, 200 (3d Cir. 1995) (citing McGuinness v. U. S. Postal Serv., 744 F.2d 1318,
1320 (7th Cir. 1984)). “The filing of a formal complaint with the EEOC and the receipt
of a right to sue letter prior to bringing suit ‘are essential parts of the statutory plan,
designed to correct discrimination through administrative conciliation and persuasion if
possible, rather than by formal court action.’” Burg v. U. S. Dept. of Health & Human
Servs., Civ. No. 07-cv-2992, 2010 WL 5136107, at *4 (E.D. Pa. Dec. 15, 2010) (quoting
Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976)). A party has
exhausted all claims that were “fairly within the scope of the prior EEOC complaint, or
the investigation arising therefrom.” Kovoor v. School Dist. of Phila., 211 F.Supp. 2d
614, 620 (E.D. Pa. 2002) (quoting Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996);
Walters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984)); see also Mandel v. M&Q
Packaging Corp., No. 11-3193, slip op. at 8 (3d Cir. Jan. 14, 2013) (“parameters of the
civil action in the district court are defined by the scope of the EEOC investigation which
can reasonably be expected to grow out of the charge of discrimination”).
Contrary to Defendant’s statement that the Plaintiff’s EEO Complaint “alone
defines the scope of any District Court claims,” see Doc. 14 at 12, the relevant inquiry is
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whether the claims presented to the federal court were within “the scope of the EEOC
investigation which [could] reasonably be expected to grow out of the charge of
discrimination.” Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir. 1978) (quoting
Ostapowicz, 541 F.2d at 398-99 (3d Cir. 1976)); see also Catagnus v. Aramark Corp.,
235 F.Supp. 2d 413, 417 (E.D. Pa. Nov. 15, 2002) (same). Utilizing this standard, the
Third Circuit has concluded that a hostile work environment claim was not within the
scope of the EEOC charge that alleged gender discrimination with no facts to suggest a
hostile work environment. Barzanty v. Verizon PA, Inc., 361 Fed. Appx. 411, 414 (3d
Cir. 2010). In contrast, the Honorable William Yohn of this court concluded that a
retaliation claim had been administratively exhausted where, despite the plaintiff’s failure
to check the box for retaliation or specifically use the word retaliation, the Plaintiff stated
in his EEO charge that he had encountered racial and disability discrimination after filing
a discrimination charge with the EEOC. Hartwell v. Lifetime Doors, Inc., Civ. No. 052115, 2006 WL 381685, at *18 (E.D. Pa. Feb. 16, 2006).
In the amended complaint, Plaintiff brings claims of disability discrimination and
retaliation based on that fact that his job duties were changed on June 5, 2009. See Doc.
12 ¶¶ 72-75, 81-82. Defendant contends that Plaintiff has not exhausted his claims
because he did not raise the modification of his job duties in the EEOC Complaint. See
Doc. 14 at 5, 12. Defendant is incorrect, because Plaintiff’s claims were within the scope
of the EEOC investigation that reasonably grew out of his complaint.

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In his EEOC Complaint, Plaintiff checked the boxes for disability discrimination
and retaliation, and alleged that his supervisor was biased against him on account of his
disability:
Before the ticket was served Ms. Felix had disclose [sic] in
the morning session with carrier Steve Woods Jr. her dislike
for Rehabs, there [sic] time in service and that she had no
control over their form 50’s. Steve sat me down earlier part
of the year and discuss [sic] this with me. After she wrote me
up for a ticket, I was sure that she had a resentment and
hostility to those of [us] with disability.
Doc. 14-1 at 2. Also, in the addendum to the EEOC Complaint, Plaintiff specifically
mentioned a March 23, 2009 warning letter and his placement in off-duty status on June
3, 2009, as the bases for his complaint. See Doc. 19 at 23. Although he did not
specifically mention the change in job duties in the EEOC Complaint, Plaintiff identified
the date of the alleged discrimination as “3/16-present,” indicating ongoing acts of
discrimination beyond the suspension period and the date of the warning letter. Doc. 141 at 2. Furthermore, the EEOC investigative summary evidences the fact that the agency
was aware of his modified job duties upon his return after his suspension. See Doc. 22-1
at 10, 13 (EEOC Investigative Summary attached as Exh. B to Plaintiff’s sur-reply). This
chain of events supports the conclusion that the claims regarding Plaintiff’s job
modification were within the scope of the EEOC investigation.
In addition, courts have treated as exhausted claims that were not specifically
mentioned in the EEOC charge “where there was a close nexus between the facts
supporting the claims raised in the charge and those in the complaint.” Howze v. Jones &
Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984). Here, I find that there is a
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close nexus between the facts supporting the claims in the EEOC Complaint and those
stated here. In the EEOC Complaint, Plaintiff specifically complained of his suspension,
allegedly based upon his disability and retaliation. Upon his return to work after that
suspension, his job duties were modified, which he also claims was based on his
supervisor’s intolerance for “rehabs,” i.e., postal employees working with disabilities,
and in retaliation for his earlier EEO activity. See Doc. 12 ¶¶ 75, 79, 81-82.
Considering Plaintiff’s indication in the EEOC Complaint that the discrimination
was ongoing and that his supervisor had a “resentment and hostility” toward postal
employees with disabilities, and considering the timing of the change in job duties and
the common basis for the complaint of discrimination, I conclude that Plaintiff has
exhausted his administrative remedies with respect to Counts II and III in the Amended
Complaint. I will therefore deny Defendant’s motion to dismiss. An appropriate order
follows.

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ESTES SMITH
v.
PATRICK R. DONAHOE,
Postmaster General

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CIVIL ACTION

NO. 12-2639

ORDER
AND NOW, this 15th

day of January, 2013, upon consideration of

Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint, the response, reply, and
sur-reply, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY
ORDERED that Plaintiff’s request to WITHDRAW Count I of the Amended Complaint
is GRANTED, and the Motion to Dismiss (Doc. 14), properly considered as one filed
pursuant to Federal Rule of Civil Procedure 12(b)(6), is DENIED.

BY THE COURT:
/s/ELIZABETH T. HEY
____________________________________
ELIZABETH T. HEY
UNITED STATES MAGISTRATE JUDGE

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