ALLENTOWN – A federal judge has denied the attempt of the U.S. Postal Service to dismiss an amended discrimination lawsuit brought by an anonymous gay man and former employee who is HIV-positive.
Plaintiff John 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 Postmaster General Louis DeJoy filed a motion to dismiss the twice-amended case on Sept. 4.
Meanwhile, on Sept. 18, Doe filed his opposition to the motion to dismiss of 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.
“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.
UPDATE
On Nov. 4, U.S. District Court for the Eastern District of Pennsylvania Judge Joseph F. Leeson Jr. ordered that the USPS would not be permitted to dismiss Doe’s second amended complaint.
“The Court finds all but one of Doe’s arguments – the issue of actual or constructive notice of the 45-day period for initiating EEO contact, which is addressed below – to be without merit. Regarding Section 1614.105(a)(2)’s second set of circumstances – that Doe did not and should not have known that the discriminatory conduct or personnel action occurred – his arguments are belied by the allegations in the SAC, which indicate Doe was aware of myriad instances of alleged discriminatory conduct well before he received the Aug. 10, 2019 text messages,” Leeson said.
“Doe’s argument as to Section 1614.105(a)(2)’s third set of circumstances – that despite due diligence, Doe was prevented by circumstances beyond his control from initiating timely EEO contact – is similarly without merit. The argument that alleged confusion about the appropriate commencement date of the limitations period, even in light of the Step B Decision, cannot plausibly be considered covered by this equitable tolling provision. Nor does Doe provide any legal support for this contention. Finally, in the absence of any unique circumstances, the Court does not find the regulation’s fourth set of circumstances – the so- called ‘catch all’ provision – to be satisfied here.”
Rather, the one argument Leeson found to be persuasive was the question of whether or not Doe had notice regarding 29 C.F.R. Section 1614.105(a)(1)’s 45-day limitations period for initiating contact with an EEO counselor, without which Doe might be entitled to equitable tolling of that period.
“The EEO record before the Court does not contain a copy of the EEO poster that USPS claims was posted at Doe’s place of work prior to his termination, nor does it provide any other information about its contents or posted location. Additionally, there is no other evidence before the Court which it could consider at this stage of the proceedings as to Doe’s constructive (or actual) notice of 29 C.F.R. Section 1614.105(a)(1)’s 45-day limitations period,” Leeson added.
“For these reasons, and in abundance of caution as to Doe’s rights, the Court declines to dismiss the second amended complaint at this early date on the basis of Doe’s failure to timely initiate contact with an EEO counselor. Rather, the Court will, in its discretion, permit a brief period for discovery into the limited issue of Doe’s actual or constructive notice regarding the 45-day limitations period. If, after discovery into the issue, USPS is capable of producing evidence sufficient to show that Doe had actual or constructive notice of the limitations period, then in light of the previous findings and conclusions contained in this opinion, Doe’s second amended complaint will be dismissed for Doe’s failure to timely exhaust his administrative remedies.”
The plaintiff is represented by Justin F. Robinette of the Law Offices of Eric A. 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