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Ross v. Brennan

United States District Court, D. Maryland, Southern Division

June 23, 2016

HARVEY ROSS, Plaintiff,


          PAUL W. GRIMM, District Judge.

         Plaintiff Harvey Ross, pro se, is an employee of the United States Postal Service ("USPS") and has brought a complaint against the Megan Brennan, Postmaster General of the USPS, for its handling of a June 28, 2011, Proposed Notice of Removal. I have read Ross's complaint, which lacks clarity, as challenging a previous Equal Employment Opportunity ("EEO") decision where the USPS was found liable and the USPS's decision awarding Ross $5, 000 in damages. Defendant has filed a motion to dismiss. Def.'s Mot., ECF No. 19.[1] Because I treat Ross's complaint as challenging both the Equal Employment Opportunity Commission's ("EEOC") liability decision and the USPS's damages decision regarding the June 28, 2011, Proposed Notice of Removal and because Ross filed his complaint on March 20, 2015, after the 90-day deadline of the initial September 22, 2014, EEOC decision, I will dismiss Ross's complaint as time barred.

         I. BACKGROUND

         Ross is a mechanic at the USPS, where he has worked since 1987. Compl. 7, ECF No. 1. He brought this claim for "on-going hostile atmosphere to retrieve past EEO mediated agreements and other monies and benefits owed" under Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, 794(c). Id. at 1. Ross's complaint is rambling and difficult to follow. Although he refers to an on-going hostile atmosphere, these actions appear related to two agency decisions that Ross is challenging. Sept. 22, 2014, Decision, Compl., Ex. 1, ECF No. 1-1; Dec. 18, 2014, Decision, Def.'s Mot., Ex. 3, ECF No. 19-4.[2] I am treating Ross's complaint as only challenging these decisions, even though he lists other EEO activity that predates these decisions as background for his current claims and references other potential claims for on-going issues.[3]

         On May 3, 2011, Ross was working in his position as a mechanic for the USPS. See Compl. 12. There seems to have been some confusion between Ross and his supervisor with respect to Ross going on break. See id. at 12-13. While Ross was on break, a call came in for certain maintenance to be done, and a page went out to Ross. See id. Ross, who had a transceiver with a dead battery, did not receive the page. See id. As a result, the maintenance work was delayed. See id.; see also Sept. 22, 2014 Decision 2.[4]

         Following this incident, on June 28, 2011, Ross's supervisor issued a Proposed Notice of Removal. See Compl. 14. On October 27, 2011, Ross filed an EEO complaint alleging discrimination on the basis of race, national origin, and age as well as reprisal for prior protected EEO activity. See Sept. 22, 2014, Decision. The USPS denied Ross's complaint, and he appealed. See id. The EEOC reviewed Ross's appeal and found that he was "entitled to a finding of discrimination on the basis of retaliation and is entitled to full relief. Because we are rendering our decision on the basis of retaliation, we need not address the Agency's failure to address [Ross's] claims of race, national origin or age discrimination." Id. at 4. As part of its decision, the EEOC remanded Ross's complaint to the USPS to investigate the extent to which Ross was entitled to compensatory damages and to issue a final decision with respect to these damages. Id. at 5. The EEOC decision informed Ross clearly that

[t]his is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have a right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision.

Id. at 7.

         In compliance with the EEOC decision, the USPS rendered its final decision on Ross's entitlement with respect to compensatory damages in connection with the events surrounding the June 28, 2011, Proposed Notice of Removal. See Dec. 18, 2014, Decision. Based on its review, the USPS determined "that an award of $5, 000.00 in non-pecuniary compensatory damage is warranted." Id. at 7. Ross filed his claim in this Court on March 20, 2015.


         Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it fails to state a claim upon which relief can be granted." Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose "is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.'" Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, " Fed.R.Civ.P. 8(a)(2), and must state "a plausible claim for relief, " as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " Iqbal, 556 U.S. at 678-79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Plaintiff is proceeding pro se, and his complaint is to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, liberal construction does not absolve Plaintiff from pleading plausible claims. See Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md. 1981) (citing Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir. 1977)). I must accept the facts as alleged in Plaintiffs' complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011).

         When reviewing a motion to dismiss, "[t]he court may consider documents attached to the complaint, as well as documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed." Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI Int'l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009); see also Fed.R.Civ.P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."). Moreover, where the allegations in the complaint conflict with an attached written instrument, "the exhibit prevails." Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991); see Azimirad v. HSBC Mortg. Corp., No. DKC-10-2853, 2011 WL 1375970, at *2-3 (D. Md. Apr. 12, 2011). If the documents that the Court considers exceed this scope, the Court must treat the motion as a motion for summary judgment. Fed.R.Civ.P. 12(d); Syncrude Canada Ltd. v. Highland Consulting Group, Inc., 916 F.Supp.2d 620, 623 (D. Md. 2013). In considering Defendant's motion to dismiss, I have only looked at those exhibits attached to Ross's pleadings or those exhibits attached to the parties' filings with respect to this motion that are integral to the amended complaint and whose authenticity has not been disputed.

         Ross has brought this action under Title VII, the ADEA, and the Rehabilitation Act. See Compl. 1.[5] Under Title VII, the ADEA, and the Rehabilitation Act, Ross must have filed this action "[w]ithin 90 says of receipt of the Commission's final decision on an appeal." See 29 C.F.R. § 1614.407. "The ninety-day period is not jurisdictional, but instead is treated as a statute of limitations period. Nevertheless, the ninety-day timing requirement is strictly enforced." Shelton v. Atlantic Bingo Supply Co., No. DKC-11-0952, 2011 WL 4985277, at *1 (D. Md. Oct. 17, 2011) (internal citations omitted); see also Laber v. Geren, 316 Fed.App'x 266, 270 (4th Cir. 2009) (per curiam) (" Laber II ").

         "Title VII does not authorize a federal-sector employee to bring a civil action alleging only that the OFO's remedy was insufficient. Rather, in order properly to claim entitlement to a more favorable remedial award, the employee must place the employing agency's discrimination at issue." Laber v. Harvey,438 F.3d 404, 423 (4th Cir. 2006) (en banc) (footnote omitted) (" Laber I "). As Ross is pro se, I will construe his complaint liberally as challenging not just the amount of the ...

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