JON D. LEVY, Chief District Judge.
The Defendants, Postmaster General Megan Brennan and the United States Postal Service, move for a partial judgment on the pleadings as to five of the claims asserted in Plaintiff Millie Pelletier's complaint.
The motion (ECF No. 10) also asserts that the United States Postal Service is misjoined as a party-defendant under Fed. R. Civ. P. 21 because Pelletier's federal employment discrimination claims lie exclusively against the Postmaster General, Megan Brennan, in her official capacity.
A motion for judgment on the pleadings under Fed. R. Civ. P. 12(c) is "treated in much the same way" as a motion to dismiss under Rule 12(b)(6). Kando v. R.I. State Bd. of Elections, 880 F.3d 53, 58 (1st Cir. 2018). Therefore, I treat the following facts alleged in the complaint as true for purposes of the motion for judgment on the pleadings. See id.
Pelletier began working for the United States Postal Service ("the Postal Service") as a mail handler in 1986. She has held various positions within the Postal Service since then, including positions in sales beginning in 1997. Pelletier's current title is International Sales Specialist, level EAS-21, though she has not worked since March 2016, when her medical team advised her that she could no longer work. The complaint alleges that Pelletier sustained several injuries between 1999 and 2016, at least some of which were work-related. The complaint further alleges discrimination in multiple forms, beginning around 2000, and continuing through when Pelletier last worked, in 2016.
In 1997, Pelletier, who is Franco-American and has French-Canadian ancestry, became the first Postal Service employee to be domiciled abroad when she was given an expatriate assignment in Montreal, Canada. After she successfully completed that year-long detail and returned to the United States, Pelletier developed injuries related to her work, which were diagnosed in 1999 and 2001. Her initial diagnoses included bilateral carpal tunnel, extensor tendinosis with shoulder and neck involvement, and a herniated disc. She underwent several surgeries for those conditions in 2000, 2001, and 2002. The complaint alleges that the Postal Service failed to fully comply with the restrictions that Pelletier's doctors recommended after her surgeries, causing her conditions to worsen.
In 2006, Pelletier relocated from Maine to Washington, D.C., after she was awarded a position as a Global Account Specialist, level EAS-21, with the Postal Service's Inbound Global Business Team. She was the only female member of a five-person sales team. Pelletier worked in Washington, D.C., between 2006 and 2009, during which one of her male coworkers regularly called her "Barbie Doll" in front of other coworkers. ECF No. 1 ¶ 60. Another coworker called her a "soft woman" and asked her to perform secretarial work for him, though that was not part of Pelletier's job responsibilities. Id. ¶¶ 71-72. Pelletier relocated to Virginia for a temporary detail in a level EAS-23 position from 2009 to 2010. Colleagues continued to call her "Barbie Doll." Id. ¶ 79.
When Pelletier relocated to Virginia in 2009, the complaint alleges that she was no longer afforded injury accommodations. Pelletier relocated again in 2010, when she returned to Maine and resumed a level EAS-21 position. The position required the same job responsibilities as the level EAS-23 position she had temporarily held in Virginia, but at a lower pay level. The District Sales Manager, Anthony Gibson, secured office space for Pelletier in the Carrier Annex in Saco, rather than at the District Office in Portland. The complaint alleges that the first time that Pelletier met with Gibson, he and another manager commented on Pelletier's "ethnic origin" and told her she was "not really French." Id. ¶ 100. The complaint also alleges that Gibson "isolated and targeted female employees," including Pelletier, id. ¶¶ 104, 106, 133-34, and treated Pelletier differently than other employees because of her disabilities, see, e.g., id. ¶¶ 176-79.
In 2012, Pelletier experienced an exacerbation of her injuries and underwent surgery for nerve impingement of the neck and left shoulder. Pelletier was also diagnosed with a new condition in her left shoulder during the surgery. She was out of work for six months. Before she returned to work, Pelletier provided medical documentation to the Postal Service recommending new restrictions and accommodations. The recommended accommodations included voice activation software for Pelletier's computer, an adjustable work station, a safer vehicle, an indoor parking space, and an office in Portland.
Beginning in 2013, Pelletier filed five claims with the Equal Employment Opportunity Commission (EEOC), alleging discriminatory treatment by the Postal Service.
On April 23, 2013, Pelletier experienced pain and aggravated numbness in her neck, shoulder, arms and hands while she was driving in her work vehicle to meet with a customer. She immediately sought medical attention and was given a medical note for two weeks of leave from work. In response, a manager (or managers—the complaint does not specify) informed her that she would need to use her sick leave for the absence. After Pelletier returned to work, Gibson placed his hand on Pelletier's injured shoulder after a meeting and asked her whether it really hurt. These events led Pelletier to initiate the EEOC grievance process for the first time on June 1, 2013, in a filing alleging disability discrimination.
In support of Pelletier's claim of disability discrimination, the informal EEOC complaint alleges that (1) a Postal Service Leave Specialist improperly placed Pelletier on leave without pay status when she was out for medical treatment and also prevented her from buying back leave; (2) there was a delay in the installation of her voice activation software; (3) her manager provided no assistance with the software issue and instead responded to her medical restrictions with sarcasm; (4) she was isolated in her Saco office with no technology or sales support, unlike similarly situated employees in other states; and (5) she was expected to meet the same goals as employees in higher EAS-level positions who were paid more than she was. Pelletier alleged that these conditions combined to create a hostile work environment.
The two-week period during which Pelletier could have filed a formal complaint in her first EEOC case lapsed on July 15, 2013. The following evening, Gibson called Pelletier and told her not to report to work the next day because he had no work available that would accommodate her restrictions. On August 12, 2013, Pelletier filed a new EEOC complaint alleging discrimination on the basis of sex and retaliation for her prior EEOC activity. Later that year, Pelletier settled the retaliation claim with the Postal Service. As part of the settlement, Pelletier agreed to withdraw her claims of "discrimination based on sex (female), physical disability (neck) and . . . retaliation for prior EEO activity," and waive her "rights to any further appeal of [her] complaint through the EEO process." ECF No. 9-4 at 2.
In the fall of 2014, the Postal Service posted job announcements for two sales positions, one level EAS-23 and one level EAS-24, with the Global Direct Entry/International Inbound Team. Pelletier applied for both positions and was interviewed. She received the top scores and was deemed the top qualified candidate for both positions. She was notified on March 13, 2015, however, that she had not been selected for either position. When she asked the selecting official, supervisor Frank Cebello, why she had not been chosen, he told her that he was "being pressured," that no one had been selected from within the Postal Service, and that the jobs would be reposted externally. ECF No. 1 ¶ 245. The complaint alleges that Gibson had sent Cebello emails saying that "if we can't deny [Pelletier] the job due to her injury, we can because she doesn't have a corporate credit card," or that they could "perhaps get her on [her] performance then." Id. ¶ 246.
The two positions ultimately were not filled through the external hiring process. Two sales positions were then posted internally again under slightly different job titles, with nearly identical responsibilities and qualifications, and with a Mandarin language requirement. The domicile requirement for each position was also changed, one to California and the other to New York. The complaint does not allege that Pelletier applied for either of the reposted positions.
Pelletier filed a pre-complaint with the EEOC on April 19, 2015, alleging that Cebello had discriminated against her by denying her opportunities for promotion. She alleged that her gender, age, disability, ethnicity, and previous EEOC activity were the basis for that discrimination. Pelletier reiterated those allegations in a formal EEOC complaint, which she filed on July 24, 2015.
In early 2016, several events transpired that Pelletier alleges were in retaliation for her earlier EEOC activity. First, in mid-February 2016, Pelletier's manager notified her that she had been rated a "non-contributor" for fiscal year 2015, and that she would not be receiving the standard two percent raise that had been distributed in January. Then, on March 1, 2016, Pelletier's manager placed her on a Performance Improvement/Coaching Plan, which is a preliminary step to disciplinary action. Finally, on March 3, Pelletier was informed that she had been scheduled for a Plan and Review with her manager and his superiors. She alleges that when she asked to have an advocate present for the Plan and Review, her manager threatened to issue her a Letter of Warning. Pelletier filed an EEOC complaint based on these allegations on June 8, 2016.
Also, in mid-2016, Pelletier discovered that Gibson had failed to submit the employer's portion of an injury claim form to the Office of Workers' Compensation Programs (OWCP) back in 2013, after Pelletier had been diagnosed with a new shoulder injury, which had been discovered during her 2012 surgery. Pelletier then filed another EEOC pre-complaint in June 2016, claiming that Gibson's failure to properly file the required paperwork constituted discrimination based on physical disability, gender, and age.
In late 2016, Pelletier requested a hearing before an EEOC Administrative Law Judge (ALJ) for her July 2015 failure to promote claim. The ALJ granted Pelletier's request to consolidate the July 2015 failure to promote claim with the June 2016 retaliation claim, but denied Pelletier's request to also consolidate her final claim filed in June 2016, which alleged a failure to properly submit documentation to OWCP, with the other two claims. Early in the proceedings, Pelletier had an opportunity to amend the claims or issues before the ALJ, and Pelletier did so in a filing that sought to clarify the factual bases for her failure to promote and retaliation claims. The ALJ then issued several case management orders, culminating in an order on December 27, 2016, outlining the pending claims. That order identified the pending claims to include only Pelletier's claims for failure to promote and retaliation.
The parties were given the opportunity to engage in discovery beginning on December 28, 2016. On February 9, 2018, after discovery had concluded, the Postal Service moved to dismiss or for summary judgment. Pelletier did not file an opposing motion for summary judgment because she believed that there were genuine disputes as to material facts that made summary judgment inappropriate. The ALJ granted summary judgment in favor of the Postal Service. The order focused solely on the issues outlined in the December 27, 2016 order: the failure to promote and retaliation claims.
As stated above, a motion for judgment on the pleadings under Rule 12(c) is analyzed using the same standard as a motion to dismiss under Rule 12(b)(6). Kando, 880 F.3d at 58. Therefore, judgment on the pleadings is appropriate if the complaint fails to state a plausible claim for relief. Doe v. Brown Univ., 896 F.3d 127, 130 (1st Cir. 2018). In evaluating the motion, I take the well-pleaded facts in the complaint as true and draw all "reasonable inferences therefrom in the light most favorable to the nonmovant (here, the plaintiff)." Id. In the Rule 12(c) context, the well-pleaded facts in the complaint may be supplemented by "facts drawn from documents fairly incorporated in the pleadings." Kando, 880 F.3d at 58. (internal quotation marks omitted). Courts "do not credit . . . legal labels or conclusions, or statements that merely rehash elements of the cause of action." Lemelson v. Bloomberg L.P., 903 F.3d 19, 23 (1st Cir. 2018).
Motions under Rule 12(c) must be carefully evaluated, as "hasty or imprudent use of this summary procedure by the courts violates the policy in favor of ensuring to each litigant a full and fair hearing on the merits of his or her claim or defense." 5C Charles Alan Wright, et al., Federal Practice & Procedure § 1368 (3d ed. 2018). Judgment on the pleadings is appropriate "only if the properly considered facts conclusively establish that the movant is entitled to the relief sought." Kando, 880 F.3d at 58.
The Postmaster General first argues that each of the claims asserted in the complaint is generally limited by the EEOC's 45-day limitations period, requiring federal employees to contact the appropriate EEOC Counselor "within 45 days of the date of the matter alleged to be discriminatory[.]" 29 C.F.R. § 1614.105(a)(1) (West 2019). Pelletier contacted an EEOC counselor on April 19, 2015, regarding the claims from which this suit arises. Therefore, the Postmaster General contends that the events that took place more than 45 days earlier—March 5, 2015—should be excluded from the case. Pelletier responds that (1) the continuing violation doctrine permits recovery based on events that took place outside the 45-day window, and (2) even if those events are not actionable, they remain relevant because they provide context for the actionable facts.
The timeliness of events asserted in the complaint is an issue that is not appropriately decided on a motion for judgment on the pleadings under Rule 12(c). The Postmaster General's motion seeks relief in the nature of an in limine order establishing the relevant time period for each claim. However, questions of whether certain events are timely and actionable, the continuing violation doctrine, and relevancy involve mixed questions of law and fact that are more appropriately resolved either at the summary judgment stage, through a motion in limine, or by a jury. Furthermore, even if I did conclude that all of the events that occurred before March 5, 2015, are not timely, the Postmaster General would not be entitled to judgment in her favor on that basis as to any of the eight counts asserted in the complaint. I therefore deny the motion for judgment on the pleadings in this respect.
The Postmaster General next argues that Pelletier's failure to accommodate claim (Count 1 ¶ 329) is barred because she failed to assert such a claim in either of the EEOC complaints underlying this suit. Filing an EEOC complaint "does not open the courthouse door to all claims of discrimination." Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 71 (1st Cir. 2011). "[T]he scope of a civil action is not determined by the specific language of the charge filed with the agency," however, and it "may encompass acts of discrimination which the [administrative] investigation could reasonably be expected to uncover." Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 31-32 (1st Cir. 2009) (quoting Davis v. Lucent Techs., Inc., 251 F.3d 227, 233 (1st Cir. 2001)). "Simply stated, the scope of the investigation rule permits a district court to look beyond the four corners of the underlying administrative charge to consider collateral and alternative bases or acts that would have been uncovered in a reasonable investigation." Id. at 32.
The two formal EEOC complaints that form the basis for this litigation are Pelletier's July 2015 failure to promote complaint and her June 2016 retaliation complaint. As detailed above, Pelletier's July 2015 failure to promote complaint alleged that she was denied a promotion on the basis of national origin, sex, age, and disability, as well as retaliation for prior EEOC activity. The July 2015 failure to promote complaint does not include any allegations about the Postal Service's failure to accommodate Pelletier's disability, and the only relief requested was a promotion to one of the sales positions that Pelletier had been denied.
The June 2016 EEOC complaint alleged that Pelletier was retaliated against for filing the July 2015 complaint. The June 2016 retaliation complaint includes two allegations that can be construed as referencing a failure to accommodate: (1) that Pelletier was expected to work "12 hour days without an overnight," which risked "further injury," and (2) that Pelletier had been asked to do work while out on leave under the Family and Medical Leave Act (FMLA). ECF No. 9-5 at 2. In addition, the pre-complaint form that Pelletier filed in March of 2016 states that she was "being made to feel uncomfortable, harassed, and threatened" if she asked for time away from work to go to doctor's appointments and that her job expectations put her "at risk of exacerbation of [her] known disability." Id. at 4. The investigation that resulted from the June 2016 retaliation complaint, therefore, could reasonably be expected to uncover failures by the Postal Service to accommodate Pelletier's disability. Thus, the Postmaster General's assertion that Pelletier failed to exhaust administrative remedies as to her failure to accommodate claim (Count 1 ¶ 329) is unavailing.
The Postmaster General also asserts that the complaint fails to state a claim for national origin discrimination, age discrimination, violation of the Privacy Act, and violation of the NO FEAR Act.
Title VII requires that "[a]ll personnel actions affecting employees" in the Postal Service "be made free from any discrimination based on . . . national origin." 42 U.S.C.A. § 2000e-16(a) (West 2019). National origin "refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came." Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973), superseded by statute on other grounds, 8 U.S.C.A. § 1324b(a)(1)(B) (West 2019). To prevail on a claim of discrimination based on national origin under Title VII, a plaintiff must "show that the motive to discriminate was one of the employer's motives, even if the employer also had other, lawful motives that were causative in the employer's decision." Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 343 (2013). But-for causation is not the test. Id.
The complaint alleges that Pelletier "was unlawfully discriminated against when she was denied promotion[s] to positions she was qualified for" based on her French-Canadian national origin. ECF No. 1 ¶ 352. Because that allegation states a legal conclusion, I must disregard it in evaluating the sufficiency of the claim. Pelletier's claim that she was discriminated against based on her national origin is, however, supported by several well-pleaded facts in the complaint: (1) Pelletier was told by Anthony Gibson and another manager that she was "not really French" around the time she relocated to Maine,
Viewing the allegations in the light most favorable to Pelletier, it is plausible that part of the Postal Service's motive in not promoting her in 2015 was discriminatory animus based on her national origin. The selecting official for the inbound sales positions, Cebello, told Pelletier that the reason she wasn't promoted to either of the positions was that he was being "pressured." Id. ¶ 245. It appears that at least some of that pressure came from Gibson, the same manager who made derogatory remarks to Pelletier about her French-Canadian national origin by telling her that she was "not really French." Id. ¶ 100. It is also plausible, as Pelletier claims, that the Mandarin language requirement was added to later job postings specifically to exclude her from eligibility. Under that theory, the addition of the language requirement is itself an adverse employment action based on Pelletier's French-Canadian heritage and French language skills, so the fact that she did not apply for the re-posted positions is not determinative. Therefore, it is plausible that Gibson harbored discriminatory animus towards Pelletier based on her French-Canadian heritage, which played a role in the Postal Service's decisions to not promote her and to add a Mandarin language requirement to the inbound sales positions so as to exclude Pelletier from eligibility.
I therefore conclude that the complaint states a claim for national origin discrimination under Title VII (Count 4).
"The federal sector provision of the ADEA provides that `[a]ll personnel actions affecting employees . . . who are at least 40 years of age . . . in the United States Postal Service . . . shall be made free from any discrimination based on age.'" Gómez-Pérez v. Potter, 452 F. App'x 3, 7 (1st Cir. 2011) (quoting 29 U.S.C.A. § 633a(a) (West 2019)).
The complaint alleges only one incident involving comments about Pelletier's age. Sometime in 2015,
Furthermore, remarks in the workplace about an employee's retirement plans, standing alone, do not generally support a claim for age discrimination. See Wallace v. O.C. Tanner Recognition Co., 299 F.3d 96, 100 (1st Cir. 2002) ("None of the inquiries from [the plaintiff's direct superiors] about his retirement plans had significant probative value; they were brief, stray remarks unrelated to the termination decisional process."); Shorette v. Rite Aid of Me., Inc., 155 F.3d 8, 13 (1st Cir. 1998) (characterizing a question from the plaintiff's manager about "how old he was and when he planned to retire" as "a textbook example of an isolated remark which demonstrates nothing" in terms of age-based animus); see also Doucette v. Morrison Cty., Minn., 763 F.3d 978, 986 (8th Cir. 2014) ("[A]sking a question about someone's retirement plans is not inherently discriminatory."); Lefevers v. GAF Fiberglass Corp., 667 F.3d 721, 724 (6th Cir. 2012) ("[Q]uestions concerning an employee's retirement plans do not alone constitute direct evidence of age discrimination."). The complaint does not allege any other overt statements related to Pelletier's age. With respect to age discrimination, therefore, Pelletier has not met the pleader's burden of stating a claim to relief that is plausible, rather than merely possible. See In re Curran, 855 F.3d 19, 27 (B.A.P. 1st Cir. 2017). "The plausibility requirement demands something more than facts showing that a claim is conceivable." Id.
I therefore conclude that the complaint does not state a claim for age discrimination (Count 5).
The complaint briefly mentions alleged violations of both the Privacy Act, 5 U.S.C.A. § 552a (West 2019), and the NO FEAR Act, Pub. L. No. 107-174, 116 Stat. 566 (2002). The Postmaster General challenges those claims to the extent the complaint asserts them. Pelletier has clarified that she is not asserting claims under either Act. Therefore, the Postmaster General's request for judgment on those claims is moot.
For the reasons stated above, it is
Elhanafy v. Shinseki, No. 10-CV-3192 (JG)(JMA), 2012 WL 2122178, at *11 (E.D.N.Y. June 12, 2012) (internal citations omitted) (collecting cases); see also Vázquez-Rivera v. Figueroa, 759 F.3d 44, 47 (1st Cir. 2014).
