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Thweatt v. Brennan

United States District Court, E.D. Virginia, Richmond Division

February 5, 2019

NAOMI M. THWEATT, Plaintiff,


          Henry E. Hudson Senior United States District Judge

         (Reviewing Defendant's Motion to Dismiss as a Motion for Summary Judgment and Granting Summary Judgment for Defendant)

         Naomi M. Thweatt (pro se "Plaintiff) filed this action against Megan J. Brennan ("Defendant") in her official capacity as Postmaster General of the United States Postal Service ("Postal Service"). Plaintiffs Complaint (ECF No. 5) alleges discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA"). This matter comes before the Court on Defendant's Motion to Dismiss (ECF No. 9), which contains a notice consistent with the requirements of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), see E.D. Va. Local Civ. R. 7(K), as well as a supporting Memorandum of Law (ECF No. 10). Subsequently, Plaintiff filed a letter with the Court (ECF No. 11), which the Court construes as Plaintiffs Response in Opposition to the Motion to Dismiss. Accordingly, the Court finds this matter is ripe for review, and the Court will dispose of it without a hearing, see E.D. Va. Local Civ. R. 7(J). For the reasons detailed below, the Court has reviewed Defendant's Motion as one for summary judgment and will grant summary judgment in Defendant's favor.

         I. BACKGROUND

         Plaintiff is an African-American female who works as a mail clerk at the Postal Service's Richmond Processing and Distribution Center, located in Sandston, Virginia. (Compl. 3-4.) On August 29, 2017, Plaintiff contacted a Postal Service Equal Employment Opportunity ("EEO") counselor to initiate pre-complaint counseling. (Compl., Ex. 1 ("PL's Ex."), ECF No. 5-1 at 29.) In her pre-complaint counseling, Plaintiff made three separate allegations: (1) on August 15, 2017, Plaintiff learned that she had not been paid for work on August 5, 2017 and August 11, 2017; (2) on August 22, 2017, Plaintiffs request for emergency annual leave ("EAL") was denied and she was marked as away without leave ("AWOL") for the hours she was absent; and (3) on an unspecified date, Plaintiff was taken off the clock for the last two hours of her tour. (Memo. Supp. Def.'s Mot., Ex. 1 ("Def.'s Ex. 1"), ECF No. 10-1 at l.)[1]

         On November 27, 2017, the Postal Service EEO counselor sent Plaintiff a letter (the "November 2017 letter") informing Plaintiff that there was no resolution to her counseling request, and, as a result, Plaintiffs inquiry would expire if she did not take further action. (Id.) In the alternative, Plaintiff could file a formal EEO complaint with the Postal Service's National EEO Investigative Services Office ("NEEOISO"). (Id.)

         The November 2017 letter stated, "If you opt to file a formal complaint, you have 15 days from the date of receipt of this letter to file a timely formal complaint. Your complaint could be subject to dismissal in accordance with 29 CFR Part 1614.107 if not filed within the 15 day time limit." (Id.) Attached to the November 2017 letter, the EEO counselor provided Plaintiff with a Postal Service Form 2579-A, a "Notice of Right to File Individual Complaint," id. at 5, as well as Form 2565 for filing a "EEO Complaint of Discrimination in the Postal Service," id. at 3-4. Defendant has attached to her Memorandum in Support a Postal Service delivery confirmation, which was signed by Plaintiff, confirming that she received these materials on December 2, 2017. (Def.'s Ex. 2, ECF No. 10-2.)

         On January 24, 2018, more than a month after Plaintiff received the November 2017 letter, Plaintiff sent a handwritten inquiry to the Postal Service, alleging she filed a formal complaint on December 11, 2017 and inquiring about its status ("January 2018 letter"). (Def.'s Ex. 3, ECF No. 10-3 at 1.) With the January 2018 letter, Plaintiff attached a copy of an unsigned Form 2565 ("formal EEO complaint" or "formal complaint")[2] and a signed Form 2579-A. (Id. at 2-3.) Both forms were dated December 9, 2017. (Id.) The January 2018 letter and Plaintiffs formal complaint were postmarked on January 24, 2018, and the Postal Service NEEOISO received the items on January 29, 2018. (Def.'s Ex. 4, ECF No. 10-4.)

         On February 14, 2018, the NEEOISO dismissed Plaintiffs formal EEO complaint because it was untimely filed after the 15-day deadline. (Id. at 29, 32-33.) The Notice of Dismissal stated, "The envelope containing your formal complaint contained a clear postmark of January 24, 2018, which was 53 daysafter the last day of the period as per 29 C.F.R. 1614.604(d)." (Id. at 33 (emphasis in original).) Plaintiff appealed the Notification of Dismissal to the Equal Employment Opportunity Commission's ("EEOC") Office of Federal Operations ("OFO"), and OFO affirmed the dismissal of Plaintiffs untimely formal complaint.


         It is well established that "Title VII directs federal employees to exhaust administrative remedies before filing suit" in federal court. Stewart v. Iancu, 912 F.3d 693, 699 (4th Cir. 2019) (citing Pueschel v. United States, 369 F.3d 345, 353 (4th Cir. 2004)). However, this requirement does not deprive a federal court of subject matter jurisdiction in all cases. As the Supreme Court has stated, "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Jones v. Calvert Grp., Ltd., 551 F.3d 297, 301 n.2 (4th Cir. 2009) (noting that the untimeliness of an administrative charge does not impact federal jurisdiction over a Title VII claim).

         Applying these principles, "a motion to dismiss for failure to timely exhaust administrative remedies must be considered under Rule 12(b)(6)... or converted to a motion for summary judgment under Rule 56," if, as in this case, materials outside the pleadings are presented to and not excluded by the Court. Stores v. Brennan, No. 7:16-cv-88, 2016 WL 4939362, at *2 (W.D. Va. Sept. 14, 2016) (emphasis added) (first citing Fed.R.Civ.P. 12(d); then citing Tewksbury v. Ottaway Newspapers, Inc., 192 F.3d 322, 325 n.l (2d Cir. 1999) (converting defendant's motion to one for summary judgment where the defendant submitted material extrinsic to the complaint); and then citing Rohan v. Networks Presentation LLC, 175 F.Supp.2d 806, 809 (D. Md. 2001) (same)). In addition, where a party has notice that a motion to dismiss may be treated as a motion for summary judgment, based upon the offering of exhibits beyond the pleadings, see Fed. R. Civ. P. 12(d), a court is not formally required to notify the parties that the motion will be treated as one for summary judgment. See Laughlin v. Metro. Washington Airports Autk, 149 F.3d 253, 261 (4th Cir. 1998).

         Rule 56 of the Federal Rules of Civil Procedure states that a court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. The relevant inquiry in summary judgment analysis is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so onesided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The Court, in reviewing the matter, must view the facts in the light most favorable to the non-moving party. See Id. at 255; see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         III. ...

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