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Washington v. Donahoe

United States District Court, Fourth Circuit

December 12, 2013

DEBBIE WASHINGTON,
v.
PATRICK R. DONAHOE, et al.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for review in this employment discrimination case are six motions. Plaintiff Debbie Washington filed a motion for an ex parte hearing (ECF No. 42), and two motions to amend her pleadings (ECF Nos. 46 and 53). Defendant Ellen S. Saltzman filed a motion to dismiss. (ECF No. 21). Defendant Patrick R. Donahoe, Postmaster General of the United States, filed a motion to dismiss or, in the alternative, for summary judgment. (ECF No. 39). Finally, Defendants Alton Branson, Timothy W. Dowdy, Robert Harnest, William Jacobs, and Robert Williams filed a motion to dismiss. (ECF No. 47). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, one of Plaintiff's motions to amend the pleadings will be granted and the other will be denied as moot. Plaintiff's motion for an ex parte hearing will be denied. Defendants' motions will be granted.

I. Background

The following facts are either set forth in the complaint, evidenced by documents referenced or relied upon in the complaint, or are matters of public record of which the court may take judicial notice.[1]

Plaintiff was a mail carrier for the United States Postal Service ("USPS") and a member of the local chapter of the National Association of Letter Carriers ("NALC"), a union. On June 30, 1989, she injured her knee on-the job. She applied for, and was granted, workers' compensation benefits. Her last day at work was August 22, 2000, although she remained an employee of USPS for many years after.

On February 28, 2009, USPS involuntarily reassigned Plaintiff because of her long term absence. Plaintiff filed a grievance which was resolved by the USPS-NALC Dispute Resolution Team in her favor, finding that Plaintiff cannot be denied the right to work based solely on her long term absence. The decision stated that Plaintiff shall be allowed to return to work once she submits the proper documentation to determine in what capacity she should be returned.

USPS terminated Plaintiff's employment on September 4, 2009 for "Unacceptable Attendance/Failure to be Regular in Attendance/Absence without Permission." Plaintiff received her termination notice on September 9, 2009. Per the terms of the contract between USPS and NALC, Plaintiff had fourteen days to file a grievance, i.e., September 23, 2009. The notice of removal letter sent to Plaintiff set forth the fourteen-day deadline. Plaintiff first told her Shop Steward that she wanted to file a grievance on September 28, 2009. On March 19, 2010, an arbitration hearing before Defendant Ellen Saltzman was held as to whether USPS had just cause to terminate Plaintiff's employment. The hearing was bifurcated, with Arbitrator Saltzman first hearing argument as to whether the grievance was filed timely. In an opinion dated May 23, 2010, Arbitrator Saltzman found that the grievance was filed untimely and dismissed the case.

Further, Saltzman found undisputed that the Union was diligent in bringing forth Plaintiff's grievance once it received notice from Plaintiff that she wished to proceed. Arbitrator Saltzman held that USPS and the Union came to a contractual agreement concerning the deadline for filing grievances which USPS had not waived in this case. Consequently, she was bound to effectuate the contract and dismiss the grievance. (ECF No. 21-4). Plaintiff's termination became effective on June 23, 2010.

Plaintiff also filed a complaint with USPS's Equal Employment Opportunity ("EEO") office, alleging that USPS subjected her to discrimination on the bases of race, sex, religion, color, physical disability, age, and reprisal for prior EEO activity when, since 2000, USPS allegedly denied her a reasonable accommodation by preventing Plaintiff from working since 2000 and placing Plaintiff in an unassigned position. Following informal counseling, USPS closed the case and gave Plaintiff a Notice of Right to File ("NORF"). Per federal law, Plaintiff's deadline to file a formal complaint was fifteen days after receiving the NORF. Her complaint was filed on September 11, 2009, approximately forty-five days after she received her NORF. USPS dismissed the complaint because Plaintiff was untimely. Plaintiff appealed that decision to the EEOC's Office of Federal Operations ("OFO"), which upheld USPS's decision on July 1, 2011. (ECF No. 39-1, at 9-11). Plaintiff requested reconsideration. In an opinion dated November 20, 2012, OFO denied reconsideration, finding that Plaintiff provided no new evidence or information to establish that their prior decision involved a clearly erroneous interpretation of material fact or law. ( Id. at 12-13).

On January 10, 2013, Plaintiff filed a pro se complaint in the United States District Court for the District of Columbia. (ECF No. 1). Plaintiff's complaint is unclear as to her claims against the multiple Defendants, but it appears that she is contending that her employment termination violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Rehabilitation Act, 29 U.S.C. § 701, et seq. On January 30, 2013, the D.C. District Court transferred the case to this court, finding that the venue provisions of Title VII make this court the proper venue. (ECF No. 4). Plaintiff was granted leave to proceed in forma pauperis on February 7, 2013. (ECF No. 6). Plaintiff filed an amended complaint on February 22, 2013. (ECF No. 9). Her amended complaint adds Defendants Saltzman, Branson, Dowdy, Harnest, Jacobs, and Williams. Her claim against Defendant Saltzman appears to be that she conducted the arbitration hearing in an unfair manner because Plaintiff was not allowed to present personally her position, instead only her union representatives were allowed to speak. Finally, Plaintiff appears to claim that Defendants Jacobs, Harnest, Dowdy, Williams, and Branson), as her union representatives ("Union Defendants"), did not properly represent her in her grievance hearing.

On May 9, 2013, Defendant Saltzman filed a motion to dismiss. (ECF No. 21). Defendant Donahoe filed a motion to dismiss or, in the alternative, for summary judgment on June 17, 2013. (ECF No. 39).[2] The Union Defendants filed a motion to dismiss on July 15, 2013. (ECF No. 47). In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the clerk of court mailed a letter to Plaintiff on the same day of each of these filings, notifying her that a dispositive motion had been filed and that she was entitled to file opposition material or risk entry of judgment against her. (ECF Nos. 22, 40, 48). Plaintiff opposed Defendant Saltzman's motion on May 29, 2013 (ECF No. 35); Defendant Donahoe's motion on July 5, 2013 (ECF No. 43); and the Union Defendants' motion on August 1, 2013 (ECF No. 52). Defendant Saltzman and the Union Defendants filed replies on June 13, 2013 and August 15, 2013, respectively. (ECF Nos. 38 and 54). Defendant Donahoe did not elect to file a reply.

Plaintiff's motions include one motion for an ex parte hearing filed on July 5, 2013 (ECF No. 42), and two motions to amend her pleadings, filed on July 10, 2013 and July 15, 2013. (ECF Nos. 46 and 47). The only opposition to any of these motions was filed by Defendant Saltzman in opposition to Plaintiff's motion for an ex parte hearing. (ECF No. 44).

II. Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A plaintiff's complaint need only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Rule 8(a)(2) still requires a showing, ' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than "a formulaic recitation of the elements of a ...


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