Barnhouse v. Brennan

STEPHANIE BARNHOUSE, Plaintiff, v. MEGAN J. BRENNAN, in her official capacity as Postmaster General, Defendant.

Case No. 2:17-cv-879

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

March 28, 2019

JUDGE ALGENON L. MARBLEY

Magistrate Judge Vascura

OPINION AND ORDER

This matter is before the Court on Defendant's partial Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) and Defendant's partial Motion for Summary Judgment, in the alternative, under Federal Rule of Civil Procedure 56. (ECF No. 14). For the following reasons, Defendant's Motion to Dismiss is GRANTED in part. Plaintiff's Counts II and IV are DISMISSED for lack of subject matter jurisdiction. Plaintiff's Count V is DISMISSED without prejudice for lack of subject matter jurisdiction. Defendant's Motion to Dismiss certain claims under Counts I and III for failure to state a claim is DENIED. Defendant's Motion for Summary Judgment is MOOT. (ECF No. 14).

I. BACKGROUND

A. Factual Background

Plaintiff, Stephanie Barnhouse, is an employee of the United States Postal Service ("USPS") at the Post Office in New Concord, Ohio. (ECF No. 1 at ¶ 8). Plaintiff is under the supervision of the New Concord Postmaster, Janis Spillman. (ECF No. 1 at ¶ 8). Plaintiff asserts that in the "summer of 2014," she applied "for but was not selected for Job No. 95196364, a full- time carrier position, and a less experienced and less senior male was awarded the position, all as a result of sex discrimination." (ECF No. 1 at ¶ 9). Her non-selection, according to Plaintiff, was the result of Postmaster Spillman's failure and/or refusal "to properly document Plaintiff's earned rating/ranking as [a Rural Carrier Associate] (a test which she took and passed) until after Plaintiff was denied the position." (ECF No. 1 at ¶ 10). Plaintiff alleges that, because of Postmaster Spillman's actions, she filed both internal complaints and a complaint with the EEO asserting sex discrimination. (ECF No. 1 at ¶ 11).

Plaintiff claimed that Postmaster Spillman began to retaliate against her, following the filing of her EEO complaint. (ECF No. 1 at ¶ 12). Plaintiff asserted, for example, that Postmaster Spillman "refused to place Plaintiff as the priority or seniority substitute carrier on the substitute list even though she was entitled to such ranking," and that Postmaster Spillman "retaliated by borrowing substitutes from other locations rather than permitting Plaintiff to serve as a substitute, resulting in loss of work and loss of income." (ECF No. 1 at ¶¶ 12-13). Plaintiff further asserted that Postmaster Spillman "retaliated by refusing to permit Plaintiff to return to work" on September 2, 2014 following her approved Family Medical Leave Act ("FMLA") leave, retaliated by "attempting to remove Plaintiff from her position permanently, and retaliated by initiating disciplinary actions on purported misconduct. (ECF No. 1 at ¶¶ 14-16). Finally, according to Plaintiff, following her "numerous union grievances about the hostile work environment, sex discrimination and/or retaliatory conduct," she was followed, her personal mail was "opened and/or damaged or not delivered at all," and she was subject to internal discipline for supposed misconduct, all at the direction of Postmaster Spillman. (ECF No. 1 at ¶ 17).

B. Procedural Background

Plaintiff first initiated contact with the Equal Employment Opportunity Commission ("EEOC") on July 29, 2014 and filed her first "informal complaint" with the USPS on August 6, 2014. (ECF No. 14, Ex. A). In this complaint, Plaintiff alleged that she was unable to bid on a rural carrier job position and it was ultimately awarded to Kevin Gregg, another carrier. (ECF No. 14, Ex. A). Plaintiff filed a second informal EEO complaint with the USPS on September 3, 2013, alleging that, on August 13 and 14, 2014, Plaintiff was scheduled to work, while another carrier, Bob Robsen, was not. (ECF No. 14, Ex. 2). Plaintiff filed a third informal EEO complaint on September 12, 2014, alleging that she was not permitted to return to work after her approved FMLA leave ended. (ECF No. 14, Ex. 3). USPS notified Plaintiff on October 17, 2014 that her pre-complaint processing was complete, and she could proceed with a formal complaint. (ECF No. 14, Ex. 4). Plaintiff filed her formal EEO complaint with the National EEO Investigative Services Office (NEEOISO) on October 25, 2014. (ECF No. 14, Ex. 5). Additionally, Plaintiff filed a fourth informal EEOC complaint with USPS on October 25, 2014, alleging that Postmaster Spillman directed a mail carrier to not deliver Plaintiff's personal mail. (ECF No. 14, Ex. 6).

On November 17, 2014, Plaintiff was informed by USPS that her formal EEO complaint was accepted for investigation regarding her claims of sex discrimination and retaliation with respect to two charges: "(1) Between June 25, 2014 and July 4, 2014, you attempted to bid online for position No. 95196364 and you were not selected; and (2) On September 2, 2014, you were not allowed to return to work." (ECF No. 14, Ex. 7). At the same time, USPS informed Plaintiff that her claim that "[o]n October 3, 4, 2014, your postmaster told Rt. #3 Carrier not to deliver your certified mail to you" was dismissed. (ECF No. 14, Ex. 7). Plaintiff filed a request to amendher formal EEO complaint on December 16, 2014 to include a new claim concerning the notice of removal she received on November 11, 2014. (ECF No. 14, Ex. 8). USPS accepted Plaintiff's notice to amend and included this claim in its investigation. (ECF No. 14, Ex. 9).

USPS concluded its investigation and sent a copy of its Investigative Report to Plaintiff on March 19, 2015. (ECF No. 14, Ex. 11). USPS informed Plaintiff that she could request a hearing before an administrative judge or that she could request a final agency decision without a hearing. (ECF No. 14, Ex. 11). Plaintiff requested a hearing before an EEOC administrative judge. (ECF No. 14, Ex. 11).

The administrative judge issued a Scheduling Order on October 11, 2016. (ECF No. 14, Ex. 3). However, Plaintiff withdrew her request for a hearing before the EEOC. (ECF No. 14, Ex. B). The EEOC thus dismissed her complaint as withdrawn on July 7, 2017. (ECF No. 14, Ex. B). USPS issued a Notice of Final Action and informed Plaintiff that she could file civil suit in federal court within 90 days. (ECF No. 14, Ex. 6). Plaintiff timely filed this suit.

II. STANDARD OF REVIEW

A. Federal Rule of Civil Procedure 12(b)(1)

When subject matter jurisdiction is challenged pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff has the burden of proving jurisdiction. Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990) (citing Rogers v. Stratton Industries, Inc., 798 F.2d 913, 915 (6th Cir. 1986)). Federal Rule of Civil Procedure 12(b)(1) motions to dismiss based upon subject matter jurisdiction generally come in two varieties: (1) a facial attack on subject matter jurisdiction; and (2) a factual attack on subject matter jurisdiction. See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990) (identifying the two types of 12(b)(1) motions to dismiss). Facial attacks on subject matter jurisdiction "merelyquestion the sufficiency of the pleading." Id. A facial attack on subject matter jurisdiction is reviewed under the same standard as a 12(b)(6) motion to dismiss. Id. In a factual attack on subject matter jurisdiction, a court "must . . . weigh the conflicting evidence to arrive at the factual predicate that subject matter jurisdiction exists or does not exist." Id. See also Nat'l Assoc. of Minority Contractors v. Martinez, 248 F. Supp.2d 679, 681 (S.D. Ohio 2002).

B. Federal Rule of Civil Procedure 12(b)(6)

The Court may dismiss a cause of action under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." Such a motion "is a test of the plaintiff's cause of action as stated in the complaint, not a challenge to the plaintiff's factual allegations." Golden v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). The Court must construe the complaint in the light most favorable to the non-moving party. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). The Court is not required, however, to accept as true mere legal conclusions unsupported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although liberal, Rule 12(b)(6) requires more than bare assertions of legal conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993) (citation omitted). Generally, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In short, a complaint's factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

C. Federal Rule of Civil Procedure 56

Federal Rule of Civil Procedure 56(a) provides, in relevant part, that summary judgment is appropriate "if the movant shows that there is no genuine issue as to any material fact and themovant is entitled to judgment as a matter of law." In evaluating such a motion, the evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be drawn in the non-moving party's favor. United States Sec. & Exch. Comm'n v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citing Tysinger v. Police Dep't of City of Zanesville, 463 F.3d 569, 572 (6th Cir. 2006)). This Court then asks "whether 'the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Patton v. Bearden, 8 F.3d 343, 346 (6th Cir. 1993) (q...