United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendant Postmaster General
Megan Brennan's MOTION TO DISMISS (ECF No. 6). Anthony
Richard Harris has not filed a response to the motion to
dismiss, and the time to do so has expired. For the following
reasons, the MOTION TO DISMISS (ECF No. 6) will be granted,
but the dismissal will be without prejudice.
is an employee of the United States Postal Service
("USPS") as a rural mail carrier. ECF No. 7 at 3.
Harris filed an Equal Employment Opportunity
("EEO") complaint. He initially requested
pre-complaint processing on October 26, 2017, and he was
issued a notice of right to file an individual complaint of
discrimination on November 25, 2017. ECF No. 7, Ex. 3 at 2-3.
He filed a formal EEO complaint on November 29, 2017,
claiming that he was the subject of discrimination. ECF No.
7, Ex. 2 at 1. In the EEO complaint, Harris alleged that he
was a victim of discrimination based on his age, race, and
disability whenW(U [o]n July 21, 2017, his
[Department of Labor, Office of Worker's Compensation
Programs ("OWCP")] form 5c was altered; (2) [o]n or
about August 8, 2017, his life insurance was reduced by OPM
but OWCP refuses [sic] to make the adjustments to his
compensation; (3) [o]n September 16, 2017, he received a
modified job offer that stated he needed to accept or refuse
the job by a date that predated his receipt of the offer; and
(4) [o]n October 17, 2017, a doctor's report was sent to
OWCP stating that he is [sic] psychologically unfit to
claims were reviewed by an EEO Services Analyst who
determined: (1) that Harris's first two claims were
untimely because Harris did not initiate contact with a
counselor within 45 days of the alleged discriminatory
incident, ECF No. 7, Ex. 3 at 2 (citing 29 C.F.R. §
1614.107(a)(2); 29 C.F.R. § 1614.105(a)(1)); and (2)
that Harris had alleged discrimination related to policies
under the OWCP and that the EEO process was not the proper
forum in which to resolve claims about policy because those
matters must be adjudicated by the Department of Labor.
Id. at 2-3. Therefore, the EEO Services Analyst
concluded that Harris failed to state a claim. Id.
at 3 (citing 29 C.F.R. § 1614.107(a)(1)). The Office of
Federal Operations at the Equal Employment Opportunity
Commission ("OFC-EEOC") agreed with the EEO
Services Analyst and held that Harris's first two claims
were untimely and that his second two failed to state a
claim, because Harris was challenging actions "directly
related to the adjudication of his worker's compensation
claim." ECF No. 7, Ex. 2 at 2. In its denial, dated
April 12, 2018, the OFC-EEOC noted, "You have the right
to file a civil action in an appropriate United States
District Court within ninety (90) calendar
days from the date that you receive this
decision." Id. at 3.
proceeding pro se, filed this complaint on May 18, 2018. His
complaint is sparse and conclusory. As the basis for federal
question jurisdiction, Harris contends that his case arises
under "Title VII of the Civil Rights Act of 1964 (Title
VII), as Amended, 42 U.SC. [sic] § 2000 et seq., Section
501 of the Rehabilitation Act of 1973 as Amended, 29 U.S.C.
§ 791 et seq., and The Age Distrimination [sic] in
Employment Act of 1967 (ADEA) As Amended, 29 U.S.C. §
621 et seq." ECF No. 1 at 3. As the basis for his claim,
Harris says only that his "Claim is Based on The Extreme
Harrasment [sic] and Threats That I Endured From July-13-2017
Thru Dec-1-2017 From my Ageny [sic] and Employer U.S. Postal
Service That has caused Emotional Distress and has worsened
my service connected PTSD To The point of not being able to
work." ECF No. 1 at 4.
filed a motion to dismiss under Fed. R. Civ. P.12(b)(1) for
lack of subject matter jurisdiction and Fed.R.Civ.P. 12(b)(6)
for failure to state a claim. ECF No. 6.
Brennan's Subject Matter Jurisdiction Challenge is Better
Suited as a Failure to State a Claim Challenge.
a lack of subject matter jurisdiction means that a court has
no power to hear a case, see Arbaugh v. Y&H
Corp., 54 6 U.S. 500, 514 (2006), the Court addresses
Brennan's challenge here first. Brennan argues that
Harris's failure to exhaust his administrative remedies
means that the Court lacks subject matter jurisdiction. But
the Fourth Circuit held otherwise in Zografov v.
V.A. Medical Center, 779 F.2d 967 (4th Cir. 1985). In
Zografov, the Fourth Circuit held that a plaintiff s
failure to exhaust could subject that plaintiff to estoppel,
but it concluded that the failure to exhaust administrative
regulations did not affect the district court's subject
matter jurisdiction. Id. at 969.Therefore, even
assuming that Harris failed to exhaust his remedies (which it
appears that he has, at least for his first two alleged
discriminatory actions), the Court would consider
Brennan's defense under Rule 12(b)(6) for failure to
state a claim rather than Rule 12(b)(1) for lack of subject
the Court grants the motion to dismiss on a separate Rule
12(b)(6) ground-that Harris fails to state a claim because he
alleges no facts as to how Brennan or anyone at USPS
discriminated against him-the Court need not decide whether
Harris failed to exhaust his remedies. Thus, the Court will
not grant Brennan's motion to dismiss based on subject
Legal Standard for Rule 12(b)(6)
considering a motion to dismiss under Rule 12(b)(6), the
Court accepts all well-pleaded allegations as true and views
the complaint in the light most favorable to the plaintiff.
Philips v. Pitt Cty. Mem'1 Hosp., 572 F.3d 176,
180 (4th Cir. 2009). But the Court does not need to accept
the plaintiff's legal conclusions drawn from those facts.
Id. The Court can take judicial notice of matters of
public record, and it can consider documents attached to the
complaint and motions to dismiss "so long as they are
integral to the complaint and authentic." Id.
Rule of Civil Procedure 8(a)(2) requires "a short and
plain statement of the claim showing that the pleader is
entitled to relief" to "give the defendant fair
notice of what the . . . claim is and the grounds upon which
it rests." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). A complaint attacked by a Rule 12(b)(6)
motion to dismiss does not require detailed factual
allegations. But it does require "more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Id. The complaint
"must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.