Duhart v. United States Postal Service

Filing 15

ORDER GRANTING 7 MOTION to Dismiss filed by United States Postal Service, AND DENYING 13 MOTION to Change Venue filed by Neekhoach Yisreal Duhart, signed by Chief Judge William C Griesbach on 06/08/2017. Because the plaintiffs untimely EEO Complaint is construed as a failure to exhaust administrative remedies, he has failed to state a Title VII claim and the dismissal is with prejudice. The Clerk is directed to enter judgment forthwith. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NEEKHOACH YISREAL DUHART,
Plaintiff,
v.

Case No. 17-CV-192

UNITED STATES POSTAL SERVICE,
Defendant.

ORDER

Plaintiff Neekhoach Duhart, proceeding pro se, filed this action against the United States
Postal Service (“USPS”), alleging retaliatory discharge and race discrimination in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Specifically, Duhart
alleges that a USPS employee discriminated by calling him “black boy,” his supervisors took no
action in response and harassed him for taking scheduled breaks, and he was terminated in
retaliation for reporting the harassment. This court has jurisdiction pursuant to 28 U.S.C. § 1331.
The case is before the court on USPS’s Rule 12(b)(6) motion to dismiss Duhart’s complaint
with prejudice. USPS argues that the complaint should be dismissed because Duhart failed to
exhaust all his administrative remedies before filing suit and thus has failed to state a claim upon
which relief can be granted. Duhart also filed a motion for change of venue. For the reasons stated
herein, USPS’s motion to dismiss is granted and Duhart’s motion for change of venue is denied.

ALLEGATIONS OF THE COMPLAINT
According to the allegations of the complaint, Duhart began working as a Mail Handler
Assistant with USPS on November 28, 2016. Compl., ECF No. 1 at 6. On December 4, 2016, he
saw a fellow Mail Handler Assistant harming USPS property and asked if she needed help. Id. at
8. The employee responded with an expletive and referred to Duhart as “black boy.” Id. Duhart
reported the incident to his supervisors, but they took no action. Duhart further alleges that his
supervisors harassed him for taking scheduled, personal breaks during his shifts. Id. at 9. Duhart
was terminated on December 8, 2016, which was during a 90-day probationary period. Id. at 6-7.
He claims that USPS terminated him in retaliation to his reporting the harassment. Id. at 9-10.
Upon termination, on December 8, 2016, Duhart filed an EEO pre-complaint. Compl., No.
1-2 at 26. Duhart participated in mediation on January 18, 2017, but the parties failed to resolve
the dispute. Compl., at 11; ECF No. 1-2 at 28-29. On January 30, 2017, Duhart received notice to
file a formal administrative complaint (“EEO Complaint”) within 15 days of receipt. Compl., at 7;
ECF No. 1-2 at 30. Instead of promptly filing his EEO Complaint, Duhart filed his complaint in
this action on February 10, 2017, but did not file his EEO Complaint until February 17, 2017. ECF
No. 8-4 at 21; ECF No. 8-5. By letter dated April 5, 2017, the USPS EEO Investigative Services
Office dismissed Duhart’s EEO complaint for being untimely. ECF No. 8-6.

LEGAL STANDARD
A motion to dismiss tests the sufficiency of the complaint to state a claim upon which relief
can be granted, and does not decide the merits of the case. Gibson v. City of Chi., 910 F.2d 1510,

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1520 (7th Cir. 1990); see Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss under Rule
12(b)(6), the Court must accept all well-pleaded factual allegations as true and draw all inferences
in the light most favorable to the non-moving party. Guitierrez v. Peters, 111 F.3d 1364, 1368-69
(7th Cir. 1997); Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1991). When extrinsic evidence
outside the pleadings is submitted with a Rule 12(b)(6) motion to dismiss, the court must either
convert the motion into one for summary judgment under Fed. R. Civ. P. 56, or exclude the
documents attached to the motion to dismiss and continue under Rule 12(b)(6). Levenstein v.
Salafsky, 164 F.3d 345, 347 (7th Cir. 1998). However, under the incorporation-by-reference
doctrine, “if a plaintiff mentions a document in his complaint, the defendant may then submit the
document to the court without converting the defendant’s 12(b)(6) motion to a motion for summary
judgment.” Brownmark Films, LC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir. 2012); see also
Williams v. Curran, 714 F.3d 432, 436 (7th Cir. 2013) (“[A] court may consider . . . documents that
are attached to the complaint, documents that are central to the complaint and are referred to in it,
and information that is properly subject to judicial notice.”).

ANALYSIS
USPS asserts that Duhart failed to exhaust his administrative remedies before filing suit in
federal court. Under Title VII, employees of federal agencies must follow specific procedures
before filing a legal claim. 29 C.F.R. § 1614.105. Someone who believes they have been
discriminated against must first consult a counselor within 45 days of the alleged discrimination.
29 C.F.R. § 1614.105(a). If the initial counseling does not resolve the dispute, the counselor must
give written notice of the employee’s right to file an EEO Complaint. 29 C.F.R. § 1614.105(d).
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The complaint must be filed within 15 days of receiving the written notice.

29 C.F.R.

§ 1614.106(b); Ester v. Principi, 250 F.3d 1068, 1071 (2001) (“One administrative remedy federal
employees must pursue is the filing of a formal complaint of discrimination within 15 days of
receiving notice of the right to do so.”). If these potential remedies all fail, the employee may
pursue legal action in federal court once he receives a right-to-sue letter from the Equal Employment
Opportunity Commission (“EEOC”). Hill v. Potter, 352 F.3d 1142, 1145 (7th Cir. 2003). Failure
to exhaust these administrative remedies precludes the employee’s right to relief. Reynolds v.
Tangherlini, 737 F.3d 1093, 1099 (7th Cir. 2013).
In support of its motion to dismiss, USPS filed Duhart’s EEO Complaint and postmarked
envelope. ECF No. 8-4 at 21; EFC No. 8-5. Because the obligation of the plaintiff to exhaust all
administrative remedies before filing suit is central to Duhart’s claim, the court may take notice of
the EEO Complaint and postmarked envelope without converting this Rule 12(b)(6) motion into
a motion for summary judgment. These documents conclusively establish that Duhart did not file
his EEO Complaint with the agency within the 15 days allowed. The complaint was thereafter
dismissed on the ground that it was untimely, and Duhart has not appealed that dismissal. Having
failed to exhaust his administrative remedies, his Title VII lawsuit must be dismissed. When a
plaintiff’s exhaustion of administrative remedies is untimely, a court dismisses the Title VII claim
without ruling on the merits. Ester v. Prinicipi, 250 F.3d at 1071. While there are situations where
a plaintiff can show waiver, estoppel, or equitable tolling so as to avoid dismissal, Duhart has made
no such showing here or offered any explanation that could give rise to such a defense.
The plaintiff is generally granted leave to amend the complaint when a claim is dismissed
if there is a problem that can potentially be cured. Indep. Tr. Corp. V. Stewart Info. Services Corp.,
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665 F.3d 930, 943 (7th Cir. 2012); see Fed. R. Civ. P. 15(a)(1). Because Duhart cannot correct this
error, the motion to dismiss is granted with prejudice.

VENUE
Duhart also filed a motion to change venue on the basis that he no longer resides within the
state of Wisconsin. As his claim has been dismissed under Rule 12(b)(6), the motion to change
venue will be denied as moot. Even if it were not moot, the motion to change venue would be
denied. It is the place where the action arose, not where the plaintiff later moves that determines
the proper venue. In any event, the motion to change venue is denied.

CONCLUSION
For the reasons given above, USPS’s motion to dismiss is GRANTED and Duhart’s motion
to change venue is DENIED. Because the plaintiff’s untimely EEO Complaint is construed as a
failure to exhaust administrative remedies, he has failed to state a Title VII claim and the dismissal
is with prejudice. The Clerk is directed to enter judgment forthwith.
SO ORDERED at Green Bay, Wisconsin this 8th day of June, 2017.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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