SIMANDLE, Chief Judge:
In this employment discrimination and retaliation litigation, pro se Plaintiff,
Plaintiff's 10-count Complaint alleges, in particular, that the Postal Service: (1) subjected her to a hostile and abusive work environment in violation of Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act (hereinafter, "Count I"); (2) engaged in ultra vires conduct (hereinafter, "Count II"); (3) violated her constitutional right to privacy (hereinafter, "Count III"); (4) infringed upon her Fourth Amendment Rights in violation 42 U.S.C. § 1983 (hereinafter, "Count IV"); (5) committed mail fraud in violation 18 U.S.C. § 1341 (hereinafter, "Count V"); (6) violated the Family Medical Leave Act and the Americans with Disabilities Act (hereinafter, "Count VI"); (7) infringed upon her First Amendment Rights in violation 42 U.S.C. § 1983 (hereinafter, "Count VII"); (8) violated the Equal Protection Clause (hereinafter, "Count VIII"); (9) subjected her to reprisal in retaliation for engaging in protected activities (hereinafter, "Count IX"); and (10) violated the Rehabilitation Act (hereinafter, "Count X"). (See generally id.)
The Postal Service now moves to dismiss all of Plaintiff's claims [see Docket Item 20], except for that of retaliation arising out of discipline imposed in 2009, on the grounds that Plaintiff failed to first exhaust administrative remedies, and because many of Plaintiff's claims fail to be cognizable as independent causes of actions (or, indeed, even a cause of action at all), and/or are untimely.
For the reasons that follow, the Postal Service's motion to dismiss will be granted, and all Counts of Plaintiff's Complaint will be dismissed in their entirety with prejudice, except for Count IX, a Title VII claim for retaliation arising out of actions taken and discipline imposed by the Postal Service in the late summer and fall of 2009.
Plaintiff started her thirty-year postal career on November 29, 1980 at the Post Office in Sewell, New Jersey, and served seemingly without incident for nearly twenty-five years.
Plaintiff's employment problems, as alleged, specifically appear to have begun in 2005, following an internal investigation into the conduct of then-Postmaster, Evelyn Hunley. (Id. at 35 ¶ 11.) In connection with the investigation, Plaintiff provided "truthful[ ]" testimony, but disclosed information "not" in Ms. Hunley's "favor." (Id. at 35 ¶ 11.) She informed investigators, in particular, that Ms. Hunley "peddl[ed]" her own business while on Postal Service time by selling "Pre-Paid Legal out of the Sewell Post Office Facility" in violation of "Postal Policy." (Id.; see also Ex. 68 to Compl.)
Shortly thereafter, Postal Service management, and specifically Ms. Hunley, allegedly subjected her to an array of retaliatory conduct for her "`whistleblower' comments," including dismissing her from the Safety Director position, denying numerous requests for overtime, and constantly scrutinizing her job performance. (Compl. at 36 ¶¶ 15-16, 38 ¶ 26, 39 ¶ 31, 40.) In addition, the Postal Service imposed formal discipline against her on two occasions: first for accruing overtime without prior authorization from management (see Ex. 64 to Compl.), and then for "experienc[ing] an at-fault motor vehicle accident." (Ex. 66 to Compl.) The first resulted in the issuance of a written warning, while the second led to the imposition of a seven (7) day "no-time-off suspension." (Id.)
Then, on November 28, 2005, Plaintiff received a "14 calendar day no-time-off suspension" for violating the Postal Service's "Standards of Conduct." (Compl. at 40 ¶ 34; see also Ex. 68 to Compl.) The suspension charged her, in particular, with becoming disruptive, raising her voice, and acting in a threatening manner towards her supervisor, during a conversation that occurred on November 10, 2005. (See Compl. at 39 ¶ 30, 40 ¶ 35; see also Ex. 69 to Compl.) Following issuance of the suspension, Plaintiff challenged the suspension under the Postal Service's grievance procedures (see Ex. 69 to Compl.), claiming that management "singled [her] out
In the following year, Plaintiff approached the Officer-in-Charge of the Sewell facility, with allegations that another supervisor, Tony Tropiano, sexually harassed her. (See id. at 42 ¶ 43.) Rather than offer Plaintiff assistance, however, the Management of the Sewell Facility allegedly retaliated against her by subjecting her to various work evaluations, issuing various warning letters for "
Indeed, Plaintiff filed a workers' compensation Claim for "`stress and anxiety caused by harassment [on] the job.'" (Ex. 73 to Compl.) On January 4, 2007, however, the U.S. Department of Labor denied her claim for compensation benefits, on the basis that she failed to demonstrate "a medical condition caused or aggravated by compensable factors of employment." (Ex. A to Compl.; see also Compl. at 54 ¶ 82.) In support of its denial, the Department of Labor acknowledged Plaintiff's complaints of workplace abuse and misconduct, but found no "supportive evidence" to buttress her assertions, and deemed Plaintiff's "emotional reaction" (i.e., stress and anxiety) to the otherwise "proper" actions of management "self-generated" and "not compensable" through the workers' compensation scheme. (Ex. A to Compl.)
Following the adverse workers' compensation decision, Plaintiff filed an Equal Employment Opportunity (hereinafter, "EEO" or "EEOC") Complaint on February 27, 2007, alleging that she had been denied workers' Compensation on account of her sex, age, and mental disability.
After an incident in which Sewell management convened a "floor talk and accused [all mail carriers] of time wasting practices," Plaintiff initiated another EEO proceeding in September 2007, charging the Postal Service with discrimination on the basis of age and gender. (Ex. E to Compl.; see also Compl. at 58 ¶ 104.) Because an inquiry revealed that "service talks" constitute a routine practice, the EEOC declined to take any further action, but again advised Plaintiff of her right to file a formal Complaint. (Ex. E to Compl.) Plaintiff, however, did not pursue this claim through a formal Complaint. Rather, after her supervisor "disapproved" her request for annual leave, Plaintiff filed a third EEO charge on January 4, 2008, alleging that the Postal Service discriminated against her on account of her "extreme stress and anxiety" and age. (Id.; Compl. at 59 ¶ 105.) After an inquiry into the alleged misconduct, the EEOC again declined to take any further action (but, as always, advised Plaintiff of the procedure to seek additional review through the EEO process).
Then, on April 28, 2008, Plaintiff suffered a workplace injury to her finger, and again requested workers' compensation benefits for her injury, as well as covered leave under the Family and Medical Leave Act (hereinafter, "EMLA"). (See Compl. at 60 ¶ 110; Ex. G to Compl.) After allegedly being denied both benefits, Plaintiff attempted to initiate another EEO proceeding on May 3, 2008, charging the "unknowledgeable" and "incompetent" management with harassment and intimidation. (Compl. at 60 ¶ 111.) Plaintiff, however, submitted her EEO forms directly to the EEOC, rather than to the Postal Services' internal EEO investigative services, and so the EEOC returned her forms without further action and with instructions concerning appropriate submission. (See Ex. G to Compl.) Following resubmission, the EEO action proceeded through the administrative process, until its dismissal with prejudice at Plaintiff's request by the Administrative Judge. (See Ex. R to Compl.)
In the months that followed this complaint, namely, July, August, September, and October of 2008, Plaintiff received a series of official reprimands and "no-time-off" suspensions for "
Plaintiff initiated a union grievance and EEO proceeding on the following day, December 2, 2008, charging the Postal Service with retaliation based upon prior EEO activity, and discrimination on account of Plaintiff's age and gender. (See Ex. L to Compl.) Following an investigation into Plaintiff's union grievance (see, e.g., Ex. P to Compl.), the grievance-arbitration team determined that management lacked "just cause to issue a Notice of Removal,"
Plaintiff's employment continued without significant (or at least documented) incident until August 24, 2009, at which time her "second-level manager" dismissed her from work for the day, for acting "belligerently" towards him and otherwise "causing a disturbance" within the Sewell facility. (Ex. 55 to Compl.; Compl. at 12 ¶ 13.) Shortly thereafter, the Sewell Postmaster, Ms. Hunley, placed Plaintiff on "off-duty status without pay," following her "verbal tirade and threatening actions towards the Postmaster" on October 5, 2009. (Exs. 5 & 55 to Compl.; Compl. at 16 ¶ 23.) As a result of these episodes, the Postal Service issued Plaintiff a Notice of Removal on October 20, 2009 for "
Following her removal, Plaintiff filed a union grievance and a companion EEO appeal. (See, e.g., Ex. 10 to Compl.) Through the union grievance procedure, Plaintiff obtained a settlement that again rescinded and expunged the Notice of Removal, enabling her to return to active duty and to receive an award of back pay from the effective date of removal until her return to active duty.
Meanwhile, the investigation and review of Plaintiff's EEO Complaint concerning the October 20, 2009 Notice of Removal (alleging discrimination based upon retaliation) continued, and following a lengthy investigative process, the Administrative Judge conducted a hearing on April 26-27,
Plaintiff timely filed this action, and the pending motion followed.
Under Federal Rule of Civil Procedure 12(b)(6), the court must "`accept all factual allegations as true, construe the Complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the Complaint, the plaintiff may be entitled to relief.'" Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir.2012) (citations omitted).
In applying this standard to pro se pleadings and other submissions, as here, the Court must liberally construe the well-pleaded allegations, and draw all reasonable inferences in favor of the pro se litigant. Higgs, 655 F.3d at 339 (3d Cir. 2011); Capogrosso, 588 F.3d at 184. Despite this liberality, however, a pro se complaint must still "contain sufficient factual matter, accepted as true," to "`state a [plausible] claim to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
As stated above, Plaintiff's Complaint contains a bevy of claims resulting from her lengthy employment with the Postal Service. For the reasons that follow, Counts I, II, III, IV, V, VI, VII, VIII, and X of Plaintiff's Complaint will be dismissed with prejudice, on an array of grounds.
In Counts I, IX, and X, Plaintiff alleges that the Postal Service subjected her to a hostile work environment and to retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (hereinafter, "Title VII"),
Specifically, a federal employee seeking redress for unlawful workplace discrimination and/or retaliation must first exhaust administrative remedies against the federal employer prior to filing suit in federal court.
The exhaustion requirements applicable in this instance generally required "both consultation with an agency counsel" and the filing an EEO complaint and subsequent federal complaint "within the required times." Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir.1997). Specifically, Plaintiff had to obtain a final agency decision, appeal that decision through conclusion to the EEOC, and then institute a civil action in an appropriate federal district court within
Here, Plaintiff's Complaint delineates a long history of EEO activity from 2005 to 2009, but alleges full administrative exhaustion and the timely filing of a federal action only in relation to her Title VII claim for retaliatory discipline in the fall of 2009. Indeed, the voluminous pleading filed by Plaintiff reflects a litany of EEO activity, but provides no facts to show the requisite exhaustion of administrative remedies as to her claims of workplace discrimination and/or retaliation in 2006 to 2008, nor her EEO claims subsequent to the 2009 claim for retaliation. (See generally Compl.)
Indeed, although Plaintiff relies upon allegations of job-related discrimination and/or retaliation dating back as early as November 2005, her own pleading reflects that she did not even initiate her first EEO proceeding until 2007. Similarly, Plaintiff pursued multiple EEO complaints in 2007, but did not pursue them to final agency decision (despite receiving instructions on the appropriate process), and then voluntarily withdrew a subsequent EEO complaint in 2008. These claims have, accordingly, not been exhausted, and the time for such exhaustion has long since expired.
The Court, however, reaches a different result in relation to Plaintiff's December 5, 2009 EEO complaint for retaliation in violation of Title VII (but not the RA and/or ADEA), following the Postal Service's issuance of a Notice of Removal on October 20, 2009. (See, e.g., Ex. 55 to Compl.) Indeed, the Postal Service concedes that Plaintiff fully exhausted this EEO complaint and timely filed this action as to this Title VII retaliation claim following the EEOC's December 13, 2013 final decision. (See generally Ex. 58 to Compl.) This EEO complaint narrowly concerns conduct that occurred on August 24, 2009, October 5, 2009, and October 20, 2009, and in turn, sets the contours of what survives for purposes of this litigation.
For all of these reasons, Count IX, a claim for retaliation in violation of Title VII, will be permitted to proceed. However, Counts I and X, claims for a hostile work environment in violation of Title VII, the RA, and the ADEA, must be dismissed with prejudice.
In Count II of her Complaint, Plaintiff alleges that the Postal Service engaged in "ultra vires conduct" that violated the Privacy Act, 5 U.S.C. § 552a, and the Health Insurance Portability and Accountability Act of 1996, Pub.L. No. 104-191, 110 Stat. 1936 (hereinafter, "HIPAA"), by "disclosing Plaintiff's protected health information" without her knowledge or consent. (Compl. at 5.)
The Privacy Act aims "`to protect the privacy of individuals identified in government information systems by regulating the collection, maintenance, use and dissemination of personal information and prohibiting unnecessary and excessive exchange of such information within the government to outside individuals.'" N'Jai v. Pittsburgh v. Bd. of Public Educ., 487 Fed.Appx. 735, 737 (3d Cir.2012). The Act, in turn, creates a private cause of action when a federal agency "fails to comply with any provision of this section ... in such a way as to have an adverse [e]ffect on an individual." 5 U.S.C.
Here, Plaintiff's Complaint contains no information from which to divine the basis for her Privacy Act claim, much less any identification of the improperly disclosed record.
As a result, Count II must be dismissed with prejudice.
Plaintiff's Complaint, as stated above, contains a bevy of constitutional claims, all stemming from her allegations of workplace discrimination and/or retaliation. (See generally Compl.) Counts III, IV, VII, and VIII specifically claim that the Postal Service acted with "discriminatory animus" and/or singled her out for "irrational differential treatment [and] retaliatory conduct," in violation of her constitutional rights under the First and Fourth Amendments, and the Equal Protection Clause of the Constitution. (See Compl. at 6, 8-9,
Nevertheless, in a variety of contexts squarely applicable here, the Supreme Court has concluded "that a precisely drawn, detailed statute pre-empts more general remedies." Brown v. Gen. Servs. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1967). Indeed, extant authority reflects that Title VII, the ADEA, and the Rehabilitation Act provide the exclusive remedy for claims of discrimination and/or retaliation in federal employment, and foreclose a federal employee plaintiff from asserting parallel constitutional claims. See, e.g., Brown, 425 U.S. at 835, 96 S.Ct. 1961 (finding that Title VII "of the Civil Rights Act of 1964, as amended, provides the exclusive judicial remedy for claims of discrimination in federal employment"); Hildebrand v. Allegheny Cnty., 757 F.3d 99, 110 (3d Cir.2014) (finding that the ADEA provides the "exclusive
Because Plaintiff's constitutional claims solely arise out of her allegations of workplace discrimination and/or retaliation, the Court finds these claims barred. See Fullman v. Potter, 480 F.Supp.2d 782, 794 (E.D.Pa.2007) (finding the plaintiff's constitutional claims barred, because they arose out of alleged discrimination related to an individual's federal employment); Allen v. Crosby, 416 F.Supp. 1092, 1098 (E.D.Pa.1976) (dismissing the plaintiff's employment-related claims under 42 U.S.C. § 1981, and the Fifth and Thirteenth Amendments); Hersh v. Dep't of Navy, 456 F.Supp. 227, 229 (E.D.Pa.1978) (dismissing the plaintiff's employment-related claims under 42 U.S.C. §§ 1981, 1983, as well as the First, Fourth, and Fifth Amendments); Harley v. Paulson, No. 07-3559, 2008 WL 5189931, at *3 n. 1, 2008 U.S. Dist. LEXIS 112607, at *6 n. 1 (D.N.J. Dec. 9, 2008) (dismissing a First Amendment retaliation claim, on the grounds that Title VII provided the exclusive remedy for federal employees' claims of employment discrimination).
As a result, Counts III, IV, VII, and VII must be dismissed with prejudice.
In Count V of her Complaint, Plaintiff alleges that Defendants acted in violation of 18 U.S.C. § 1341, a statute directed at criminal liability for mail fraud.
Nevertheless, the federal criminal laws do not provide private individuals with any cause of action. Indeed, "there is no private cause of action for a violation of the federal mail and wire fraud statutes." Addlespurger v. Corbett, 461 Fed.Appx. 82, 87 (3d Cir.2012); Jones v. TD Bank, 468 Fed.Appx. 93 (3d Cir.2012) (finding that the federal mail fraud statute did not provide plaintiff with private right of action); Wisdom v. First Midwest Bank, 167 F.3d 402, 408 (8th Cir.1999) (joining the Fifth and Sixth Circuits in finding no private cause of action for mail fraud).
As a result, Count V must also be dismissed with prejudice.
Count VI of Plaintiff's Complaint alleges that the Postal Service violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (hereinafter, the "ADA"),
Likewise, Plaintiff's claim for violations of the FMLA is untimely and must be dismissed. Indeed, an FMLA claim must be brought no later than two (2) years after "the last event" of the alleged violation.
As a result, Count VI must be dismissed with prejudice.
For all of these reasons, the Postal Service's motion to dismiss will be granted, and Plaintiff's Complaint will be dismissed in its entirety with prejudice, except for Count IX, which states a Title VII claim for retaliatory discipline in the fall of 2009. An accompanying Order will be entered.