United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. GRIMM, District Judge.
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. 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.
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. 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, 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
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
Id. at 7.
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.
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).
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.
has brought this action under Title VII, the ADEA, and the
Rehabilitation Act. See Compl. 1. 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
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