ALLENTOWN – An unnamed gay man who is HIV-positive is urging a federal judge not to toss his lawsuit against his former employer, the U.S. Postal Service.
On Sept. 18, the John Doe plaintiff filed his opposition to the motion to dismiss of Postmaster General Louis Dejoy, who says the case should be tossed because the plaintiff did not notify the Equal Employment Opportunity of his complaints within a required 45-day window.
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.
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.”
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.”
Doe says he attempted to utilize the union grievance process after his firing and that the official day he left the USPS was a month later than DeJoy now claims to permit him to resign rather than being fired.
“And, Doe does not recollect being notified of the 45-day timeframe to contact an EEO counselor, let alone during the subject timeframe in which Defendant is using against Doe here, nor at any point during which Defendant did deign to tell the Plaintiff that the date of July 20, 2019 was being extended thirty (30) days to August 19, 2019 to permit Doe the ability to resign in lieu of being fired after twelve (12) years of loyal service,” the opposition says.
“At that time, Doe was never notified of the 45-day timeframe.”