CLAIRE C. CECCHI, District Judge.
This matter comes before the Court on the motion of Defendants Megan J. Brennan in her official capacity as Postmaster General, Beth Cobert, Acting Director, U.S. Office of Personnel Management, and the United States Postal Service ("USP$" and collectively "Defendants") to dismiss Plaintiff Daniel J. McGinty's ("Plaintiff') Amended Complaint. ECF No. 29. The Court decides the motion without oral argument pursuant to Federal Rule of Civil Procedure 78. for the reasons set forth below, the Court grants Defendants' motion.
On April 5, 1981, Plaintiff was honorably discharged from the United States Air force with a service-connected disability. Amended Complaint ("Compl.") ECF No. 19 at 3. In August 1981, Plaintiff became employed with the USPS with a veteran's preference. Id. On May 4, 1990, Plaintiff resigned his position at the USPS. Id. By that point, he had accumulated 375.62 hours of unused sick leave, among other benefits. Id.
On August 20, 1994, Plaintiff was reemployed by USPS. Id. On february 3, 1997, Patricia A. Johnson, a Human Resources Specialist at USPS, sent a letter informing Plaintiff that he was given credit for his prior employment and that all ofhis previously accrued benefits were reinstated with the exception of the sick leave balance of 375.62 hours. Id. The letter cited USPS's Employee and Labor Relations Manual ("ELM") Section 513.72, applicable to reemployment, as the basis for not reinstating the unused sick leave balance. Id. at 4. ELM 513.72 reads: "Sick leave may be recredited upon reemployment provided there is not a break in service in excess of 3 years."
On February 12, 2002, Plaintiff filed a claim for occupational bilateral carpal tunnel injuries for which he received medical benefits through the Office of Workers' Compensation Programs ("OWCP") of the United States Department of Labor. Id. at 37, Ex. M.
On March 9, 2015, Plaintiff was charged leave without pay for medical leave. Id. at 71, Ex. S. On March 12, 2015, Plaintiff requested pre-complaint counseling from a USPS Equal Employment Opportunity ("EEO") Counselor. Id. at Ex. N. Plaintiff filed an EEO Complaint of Discrimination in the Postal Service on June 1, 2015 (the "EEO Complaint"). See id. at 73, Ex. S. The only allegation in his EEO Complaint was that the ELM regarding reemployment, specifically ELM 513.73, fails to include disabled American veterans, and as a result, the Agency failed to credit back to Plaintiff 375.62 hours of previously earned sick leave. Id.
On June 22, 2015, a Dismissal of Formal EEO Complaint (the "EEO Dismissal") was issued by EEO Services Analyst Christine Muringer in Plaintiffs case, Agency Case Number 1B-073-0013-15. See Id. at 4, 75-78, Ex. T. The EEO Dismissal was made solely on the basis that his EEO Complaint was untimely. Id. at 75-78, Ex. T. Specifically, the EEO Services Analyst found that a "discrete act" of discrimination was alleged to have taken place on August 20, 1994, when Plaintiff was reemployed by USPS. Id. Accordingly, under 29 C.F.R. § 1614.105(a)(1), Plaintiff had 45 days from that date to contact an EEO Counselor. Id. As Plaintiff did not contact an EEO Counselor until March 12, 2015—more than 20 years later—the EEO Dismissal found the EEO Complaint to be untimely. Id. Lastly, the EEO Dismissal informed Plaintiff of his right to appeal to the Equal Employment Opportunity Commission ("EEOC") or to file a civil action in lieu of appealing to the EEOC. Id.
Pursuant to 29 C.F.R. § 1614.407(c), Plaintiff timely filed this civil action within 90 days of receipt of the EEO Dismissal on September 15, 2015 against Defendant Megan J. Brennan and USPS. ECF No. 1. On November 25, 2015, Defendants filed a motion to dismiss, which the Court granted with leave to amend on June 29, 2016. See ECF Nos. 14, 15. On July 18, 2016, Plaintiff filed an Amended Complaint and added Defendant Beth Cobert, Acting Director of the U.S. Office of Personnel Management and Does 1-5 to the action. ECF No. 19. On September 7, 2016, Defendants filed the instant motion to dismiss. ECF No. 26.
For a complaint to survive dismissal pursuant to federal Rule of Civil Procedure 12(b)(6), it "must contain sufficient factual matter, accepted as true, to `state a claim to reliefthat is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ati. Corp. V. Twombly, 550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "A pleading that offers labels and conclusions will not do. Nor does a complaint suffice if it tenders naked assertion[sJ devoid of further factual enhancement." Iqbal, 556 U.S. at 67$ (internal citations omitted).
A pro se litigant's complaint is held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Courts have a duty to construe pleadings liberally and apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). A pro se complaint "can only be dismissed for failure to state a claim if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citing Haines, 404 U.S. at 520-21); Bacon v. Minner, 229 F. App'x 96, 100 (3d Cir. 2007).
In the Amended Complaint, Plaintiff appears to allege a claim of employment discrimination based upon his disability. As the Rehabilitation Act is the exclusive remedy for federal employees to claim disability discrimination, the Court will construe Plaintiffs claim as such. See Spence v. Straw, 54 F.3d 196, 197 (3d Cir. 1995). Defendants move to dismiss the Amended Complaint on the grounds that Plaintiff has failed to exhaust his administrative remedies
Rehabilitation Act claims are subject to the McDonnell Douglas burden-shifting framework. See Wishkin v. Potter, 476 F.3d 180, 184-85 (3d Cir. 2007). Under this framework, a plaintiff in a discrimination case must first establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie case of disability discrimination under the Rehabilitation Act, a plaintiff must show that: (1) he has a disability within the definition provided by the Americans with Disabilities Act; (2) he is otherwise qualified to perform the essential functions of his position; and (3) he has suffered an adverse employment decision because of that disability. Freeman v. Chertoff 604 F.Supp.2d 726, 731 (D.N.J. 2009). Here, Plaintiff fails to allege that he suffered an adverse employment decision because his disability.
The Rehabilitation Act only "allows a plaintiff to recover if he or she [was] deprived of an opportunity to participate in a program solely on the basis of disability." CG v. Penn. Dep `t Educ., 734 F.3d 229, 235-36 (3d Cir. 2013). It is insufficient for Plaintiff to allege that he is disabled and that he suffered an adverse employment decision. Rather, the disability must be the cause of the adverse employment decision. Here, Plaintiff does not contend that he was denied his accumulated sick leave hours because he was disabled. Instead, Plaintiff alleges that USPS used the incorrect ELM to determine whether his sick leave should be credited.
In a supplemental brief to this Court, Plaintiff alleges that the "[aJpplicable law is the Federal Erroneous Retirement Coverage Corrections Act" ("FERCCA").
Having reviewed the parties' submissions, the Court grants Defendants' motion to dismiss. To the extent the deficiencies in the Complaint can be cured, Plaintiffwill be given thirty (30) days to file an amended complaint. An appropriate order accompanies this Opinion.
