Doe v. DeJoy

JOHN DOE, Plaintiff, v. LOUIS DEJOY, POSTMASTER GENERAL,UNITED STATES POSTAL SERVICE, Defendant.

No. 5:19-cv-05885

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

March 1, 2021

OPINION

USPS's Motion for Summary Judgment, ECF No. 38—GRANTED

Joseph F. Leeson, Jr. United States District Judge

I. INTRODUCTION

This is an employment discrimination action brought under Title VII of the Civil Rights Act of 1964 ("Title VII") and Section 504 of the Rehabilitation Act of 1973 ("Section 504"). Plaintiff John Doe ("Doe"),¹ who was a letter carrier with the United States Postal Service ("USPS"),² claims he was harassed by coworkers and eventually terminated on account of his sexual orientation and HIV-positive status. The Court has issued multiple Opinions and Orders in this case to date resolving several preliminary issues. See ECF Nos. 17-18, 27-28, 34-35. Themost recent Opinion, issued November 4, 2020, addressed USPS's second motion to dismiss Doe's pleadings. See ECF No. 34. In that Opinion, the Court found that the ability of Doe to proceed on his remaining claims hangs on the resolution of a single issue: whether Doe had actual or constructive notice of a certain limitations period—specifically, the period of time within which he was obligated to commence the administrative pre-complaint process as set forth by federal regulation.³ The Court concluded that it could not resolve this issue on the record before it. It therefore directed the parties to engage in fact discovery followed by summary judgment motion practice, both limited to the single issue of whether Doe had actual or constructive notice of the relevant 45-day limitations period. See ECF No. 34 at 21-23.

The parties have concluded their fact discovery into the issue of notice and USPS now moves for summary judgment, contending that the undisputed facts leave no question that Doe had constructive notice of the limitations period. Doe opposes the motion. Upon consideration of the parties' submissions and the undisputed factual record, and for the reasons set forth below as well as in the Opinion issued November 4, 2020, the Court agrees that there can be no genuine dispute that Doe had constructive notice of the 45-day limitations period. He is therefore not entitled to an extension of the limitations period. Because Doe has failed to timely exhaust hisadministrative remedies, his claims cannot proceed, and USPS's motion for summary judgment is granted.

II. THE UNDISPUTED MATERIAL FACTS⁴

Doe was employed by USPS as a letter carrier from 2007 until mid-2019. USPS's Statement of Undisputed Material Facts ("USPS SOMF"), ECF No. 39, ¶ 1. During his tenure with the Postal Service, Doe worked at the Allentown-Postal Road Facility. Id. ¶ 2. His last day appearing for work at the Allentown-Postal Road Facility was April 22, 2019, on which date Doe was "place[d] in an emergency, off-duty non-pay status" effective April 20, 2019. Id. On June 12, 2019, a "notice of removal" was issued for Doe's allegedly inappropriate conduct; the notice stated that Doe's removal was effective July 20, 2019. Id. Doe initiated contact with a USPS Equal Employment Opportunity ("EEO") counselor for pre-complaint processing on September 9, 2019. See ECF No. 31-9 at 2.

The "No FEAR Act"—formally titled the "Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002"—requires each federal agency to provide notice, including written notice and training, to its employees to inform them of the rights and protections available to them under federal antidiscrimination and whistleblower protection laws. USPS SOMF ¶ 4. As part of his employment, Doe received No FEAR Act training on August 6,2016, and June 20, 2018. Id. ¶ 3.⁵ These trainings included the presentation of information regarding the need for USPS employees who believe they were discriminated against to contact an EEO counselor within 45 days of the perceived discriminatory conduct. Id. ¶ 5.⁶ The No FEAR Act trainings also directed employees to USPS "Poster 72," and USPS "Publication 133," which are discussed in the succeeding paragraphs. Id. ¶ 6.⁷ Doe does not recall completing the No FEAR Act trainings. See Doe's Answer to USPS's SOMF ("Doe Answer"), ECF No. 43, ¶ 5.⁸

USPS "Poster 72," titled "Equal Employment Opportunity Is The Law," provides information to USPS employees about USPS's obligation to afford equal employment opportunity to employees and applicants, regardless of their membership in a protected class.USPS SOMF ¶ 7. Poster 72 also provides information to USPS employees about what to do if they believe they have been discriminated against because of membership in a protected class, including when and how to begin the EEO process by initiating contact with an EEO counselor within 45 days of the alleged discrimination. Id. Both the current version of Poster 72, which is dated November 2018, and the prior version of Poster 72, which is dated March 2012, contain the following language related to the need to initiate EEO contact within 45 days of perceived discrimination:

You must bring individual and class action complaints to the attention of the EEO office by requesting counseling within 45 calendar days of the date of the alleged discriminatory act; within 45 calendar days of the date you knew or reasonably should have known about the discrimination; or if a personnel action is involved, within 45 calendar days of its effective date. If you bring an individual complaint and later believe that your case has class-action implications, you may move for class certification at any reasonable point during the processing of your original complaint.

Id. ¶¶ 13, 16. Since at least early 2016, Poster 72—either the March 2012 version or the November 2018 version—has been displayed, as required, on the "Permanent Postings" employee bulletin board at the Allentown-Postal Road facility. Id. ¶ 8.⁹ The Permanent Postings bulletin board is located just inside the employee entrance to the facility next to the employee break room, and employees regularly walk by the bulletin board when entering or existing the facility. Id. ¶¶ 9-12.¹⁰

In addition to the No FEAR Act trainings and Poster 72, USPS's Employee and Labor Relations Manual ("ELRM") is a source of information pertaining to the relevant 45-day limitations period. USPS SOMF ¶ 17. Pursuant to the ELRM's transmittal letter, the purpose of the ELRM is to provide information to USPS employees to help them "understand[ ] and implement[ ] the programs and processes that contribute to" the Postal Service's goals of "maintaining a skilled and ready workforce that is diverse, engaged, efficient, and safe." Id. Section 666.22 of the March 2019 version of the ELRM, as well as all versions of the ELRM going back through at least March 2016, provide as follows:

Equal Employment Opportunity Complaint Procedures

Any employee or applicant may file a complaint alleging discrimination based on race, color, religion, sex, age (40+), national origin, disability, or alleging reprisal based on protected EEO activity within 45 days of the event believed to be discriminatory. For details, see Publication 133, What You Need to Know About EEO.

Id. ¶ 18.

USPS "Publication 133," referenced in the training materials above and in the ELRM, additionally provides information on "Beginning the EEO Process in a Timely Manner." USPS SOMF ¶ 19. Page 5 of the November 2018 version of Publication 133 provides as follows:

To begin the precomplaint process, you must contact the Postal Service Equal Employment Opportunity Office through the online Postal Service EEO efile application at https://efile.usps.com or by writing to: NEEOISO - EEO Contact Center, PO Box 21979, Tampa, FL 33622-1979, within 45 calendar days of the alleged discriminatory action, or in the case of a personnel action, within 45 calendar days of the effective date of the action. See 29 CFR 1614 105. A written request to initiate the precomplaint process will be considered timely if it is postmarked within 45 calendar days of the alleged discriminatory action, or in the case of a personnel action, within 45 calendar days of the effective date of the action.

Id.

III. THE SUMMARY JUDGMENT STANDARD

Rule 56(a) of the Federal Rules of Civil Procedure provides 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(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The moving party bears the initial burden of establishing that no genuine issue of material fact exists. Bacon v. Avis Budget Grp., Inc., 357 F. Supp. 3d 401, 412-13 (D.N.J. 2018). In determining if the moving party has satisfied this burden, the Court is obliged to construe all facts and factual inferences in the light most favorable to the non-moving party. See United States ex rel. Simpson v. Bayer Corp., 376 F. Supp. 3d 392, 401 (D.N.J. 2019); Boyle v. Cty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by 'showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Bacon, 357 F. Supp. 3d at 413 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).

Where the movant shows a prima facie entitlement to summary judgment, the burden shifts to the non-movant to point to record evidence creating a genuine issue of material fact. See FED. R. CIV. P. 56(e); Davis v. Quaker Valley Sch. Dist., No. 13-1329, 2016 WL 912297, at *8 (W.D. Pa. Mar. 10, 2016), aff'd, 693 F. App'x 131 (3d Cir. 2017). "[T]he non-moving party may not merely deny the allegations in the moving party's pleadings; instead he must show where in the record there exists a genuine dispute over a material fact." Gibson-Reid v. Lendmark Fin. Ser...