ALLENTOWN – In a lawsuit from a former postal worker who claimed he was discriminated against and fired for being gay and HIV-positive, counsel for Postmaster General Louis DeJoy says the plaintiff’s case should be dismissed for his not making Equal Employment Opportunity contact within the required 45-day window.
John Doe first filed a complaint on Dec. 13, 2019 in the U.S. District Court for the Eastern District of Pennsylvania, versus the United States Postal Service and Postmaster General Megan Brennan, alleging wrongful termination based on disability and sexual orientation.
(Later, the USPS and additional defendants Qiana Reid and another John Doe individual were dismissed from the case – while new Postmaster General Louis DeJoy was added as a defendant.)
Doe said he began working for the USPS in 2007 as a letter carrier and alleges in his complaint that he was bullied, disciplined more harshly than other employees and experienced verbal abuse by co-workers, including being called a “fruitcake”, “homo” and a “sick f—t.”
He alleged he was fired last Aug. 9, 2019 over allegations of harassment, for which he was later found not guilty.
On Feb. 14, the USPS and Brennan filed a motion to dismiss the complaint with prejudice for failure to state a claim, charging that exclusive remedies provided by Title VII and the Rehabilitation Act cover the plaintiff’s discrimination claims and neither defendant was personally involved in the conduct alleged.
UPDATE
As proceedings continued and the original defendants were dismissed, a second amended version of the complaint was filed on Aug. 21, which added DeJoy as a defendant.
Attorneys for DeJoy filed a motion to dismiss the twice-amended case on Sept. 4.
“The Court should dismiss this action alleging violations of Title VII and the Rehabilitation Act because Doe failed to timely initiate the administrative process as required under Title VII (which also applies to his Rehabilitation Act claims),” the motion stated.
“Although Doe’s wrongful termination claims in Counts I, III, and V accrued when, on June 14, 2019, he received a notice of removal stating an effective date of July 20, 2019, he failed to initiate EEO [counselor] within 45 days of (at the very latest) the effective date set out in that notice. With respect to his hostile-work environment claims in Counts II, IV, and VI, no conduct that could support such a claim occurred within 45 days prior to his initial EEO contact because, during that period, he was no longer reporting for work at any postal service facility.”
According to counsel for DeJoy, Doe cannot save his claims by asserting the doctrine of equitable tolling and that to invoke the doctrine, the governing regulation “requires him to establish that he was not notified or did not otherwise know of the 45-day period for initiating EEO contact, that he did not know that the alleged harassment or wrongful termination had occurred, or that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits.”
“The excuses Doe offers do not fit into these categories; because he cannot make any the required showing, his equitable tolling argument fails. Because Doe did not make timely initial EEO contact in accordance with the governing regulation, and that failure cannot now be cured, his claims are forever barred, and they must be dismissed with prejudice.”
Doe seeks reinstatement, back and front pay, a trial by jury and all other just relief.
The plaintiff is represented by Justin Robinette of The Law Offices of Eric Shore, in Philadelphia.
The defendant is represented by Rebecca Santoro Melley of the U.S. Attorney’s Office, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:19-cv-05885
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com