Bullock v. Donohoe , 71 F. Supp. 3d 31 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIC L. BULLOCK, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1543 (CRC)
)
)
PATRICK R. DONOHOE, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Plaintiff Erik Bullock is a former letter carrier in the District of Columbia who
was fired in May 2010 on the grounds that he lied about his absence from work while
he was incarcerated. Bullock alleges, however, that he was “targeted for removal by
[his] supervisors” after he broke his left ankle in June 2000 because he “could no
longer deliver [his] route in the timely manner that was expected of [him].” Compl. at
3. Proceeding pro se, Bullock sues the Postmaster General of the United States Postal
Service for discrimination and retaliation in violation of the Rehabilitation Act of
1973, 29 U.S.C. § 701 et seq., which prohibits federal employers from discriminating
on the basis of disability and retaliating against individuals for exercising rights under
the Act. 1
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“The Rehabilitation Act, 29 U.S.C. § 701 et seq. requires a federal employer or an
employer who receives federal funding to comply with the standards set forth in the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq.,” which includes an anti-retaliation
provision. Kendall v. Donahoe, 913 F. Supp. 2d 186, 190-91 (W.D.Pa. 2012) (quoting 42 U.S.C.
§ 12203(a)) (other citations omitted).
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Defendant moves to dismiss the complaint under Rule 12(b)(6) of the Federal
Rules of Civil Procedure on the sole basis that the complaint is untimely filed. Def.’s
Mot. to Dismiss [Dkt. # 9]. For the following reasons, the motion will be granted in
part and denied in part.
I. BACKGROUND
While employed by the Postal Service, Bullock was incarcerated from October
23, 2009 to December 14, 2009. He alleges that he informed his supervisor of his
status during a “very short” telephone call from prison in November 2009. 2 Compl. at
3. Plaintiff was fired by notice dated May 10, 2010, for “unacceptable conduct and
unacceptable attendance/AWOL,” based on what were found to be false reasons
Bullock had provided for his absence and Bullock’s submission of fraudulent medical
documentation. Compl. Attach., ECF pp. 7-11 (EEOC Decision at 1-3); Def.’s Mot.,
Ex. 2 (NALC/USPS Step B Decision).
Bullock’s union, the National Association of Letter Carriers (NALC), pursued a
grievance and Bullock filed an EEO charge. NALC resolved the grievance on July 12,
2010, at Step B of the dispute resolution process upon “concur[ring] that Management
did have Just Cause to remove [plaintiff] from the USPS.” Step. B Dec. at 3. The
EEOC rendered its final adverse decision on May 9, 2013, and informed plaintiff
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The administrative record contradicts plaintiff’s allegation. During EEO
proceedings, plaintiff’s supervisor stated that during the call, plaintiff requested sick leave for an
extended absence; the supervisor referred the matter to the Agency’s Office of Inspector General
upon surmising from the background noise during the call that plaintiff was incarcerated.
Compl. Attach., ECF pp. 21 -30 (Admin. Judge’s Summ. Dec. at 3). The Administrative Judge
found: “There is no reasonable way to accept the [plaintiff’s] word that he told [his supervisor]
he was incarcerated, and that he had no knowledge of the fraudulent doctor’s statements. There
is too much evidence contrary to his assertions.” Dec. at 9.
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about his right to file a civil lawsuit within 90 days of his receipt of the decision. See
EEOC Dec. at 4.
The Clerk of Court first received Bullock’s complaint and application to
proceed in forma pauperis on August 29, 2013, see Compl. Attach, ECF pp. 199, 200
(Clerk’s stamps), but scratched out that date apparently because the submission was
defective. In a form Order dated September 9, 2013, plaintiff was informed that his
papers were being returned as non-compliant with the Federal Rules of Civil
Procedure and the Local Rules of this Court. He was further told: “If you wish to file
a new case please review the enclosed instructions.” Pl.’s Response to Mot. to
Dismiss [Dkt. # 11] at ECF p. 23. This action was formally filed on October 8, 2013,
upon the Court’s granting of plaintiff’s in forma pauperis application dated September
19, 2013. See Dkt. # 2.
II. LEGAL STANDARD
In deciding the defendant’s motion to dismiss under Rule 12(b)(6), the Court
may consider the documents attached to the complaint and those incorporated by
reference without triggering the conversion requirement of Fed. R. Civ. P. 12(d).
Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). The Court may
also consider “documents upon which the plaintiff's complaint necessarily relies even
if the document is produced not by the plaintiff in the complaint but by the defendant
in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehab.Servs., 68 F. Supp. 2d
117, 119-20 (D.D.C. 2011) (citations and internal quotation marks omitted).
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III. ANALYSIS
As part of his opposition, Bullock has produced a postage receipt purporting to
show the Clerk of Court’s receipt of a mailing on July 30, 2013. Defendant
acknowledges the receipt might render the Rehabilitation Act claim timely, but
questions its authenticity in light of (1) discrepancies between the date of the receipt
and the date of his complaint, and (2) findings that Bullock submitted fraudulent
documents to the Postal Service in the past, which factored into his dismissal.
Nevertheless, defendant requests that the pending motion be either denied in part
without prejudice or held in abeyance so that the parties may conduct discovery on the
timeliness of the Rehabilitation Act claim. See Def.’s Reply to Pl.’s Resp. in Opp’n
to Mot. to Dismiss at 1-2; see also Legille v. Dann, 544 F.2d 1 (D.C. Cir. 1976) (proof
of mailing documents to the court creates rebuttable presumption of timely delivery).
Defendant also contends that, to the extent plaintiff is alleging that his union
breached its duty of fair representation, this claim should be dismissed now as
untimely under the six-month statute of limitations applicable to hybrid claims
brought under Section 301 of the Labor Management Relations Act. See Mem. of P.
& A. in Support of Def.’s Mot. to Dismiss at 1-2, 11-14; Def.’s Reply at 3-5; see also
Cephas v. MVM, Inc., 520 F.3d 480, 485 (D.C. Cir. 2008) (“The employee may bring
his [hybrid § 301/fair representation] action against the employer, the union, or
both[.]”) (citing DelCostello v. Int’l Broth of Teamsters, 462 U.S. 151, 165 (1983)).
The breach of a union’s duty of fair representation is an unfair labor practice
that “is governed by the six-month [limitations] provision of § 10(b)” of the National
Labor Relations Act. DelCostello, 462 U.S. at 172. Accord George v. Local Union
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No. 639, Intern. Broth. of Teamsters, 100 F.3d 1008, 1014 (D.C. Cir. 1996) (affirming
district court’s application of “the six-month statute of limitations of section 10(b) to .
. . duty of fair representation claims”). Plaintiff’s claim arose in July 2010 when the
union issued its Step B Decision finding just cause for his removal. It is not at all
clear from the complaint’s allegations that plaintiff is bringing a hybrid claim but the
Court agrees that any such claim presented three years after accrual is time-barred.
Accordingly, it is
ORDERED that Defendant’s Motion to Dismiss is GRANTED as to any duty
of fair representation claim and DENIED as to the Rehabilitation Act claim; and it is
further
ORDERED that limited discovery on the timeliness of the Rehabilitation Act
claim shall commence immediately and conclude by December 1, 2014. Thereafter,
defendant shall have until December 22, 2014, to file a summary judgment motion,
plaintiff shall have until January 23, 2015, to file an opposition, and defendant shall
have until February 6, 2015, to file any reply.
____________s/_______________
CHRISTOPHER R. COOPER
DATE: October 14, 2014 United States District Judge
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