Moore v. DeJoy

600 F.Supp.3d 332

Murdise MOORE, Plaintiff,

v.Louis DEJOY, Defendants.

18-CV-9967 (RWL)

United States District Court, S.D. New York.

Signed April 27, 2022

Murdise Moore, New York, NY, Pro Se.

Ilan Stein, U.S. Attorney's Office, New York, NY, for Defendants.

DECISION AND ORDER: MOTION TO DISMISS

ROBERT W. LEHRBURGER, United States Magistrate Judge.

Plaintiff, a retired employee of the United States Postal Service ("USPS" or "Postal Service"), proceeding pro se, alleges that her manager discriminated against her on the basis of her age and that she was subject to a hostile work environment. The Amended Complaint advances claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ; the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq ; the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"); and the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. ("NYCHRL"). The Court previously dismissed Plaintiff's NYSHRL and NYCHRL claims. The Postal Service (of which Defendant Louis DeJoy is the Postmaster General) now moves to dismiss any hostile work environment claim because Plaintiff did not exhaust any such claim at the administrative level. For the reasons set forth below, the Court GRANTS the Postal Service's motion and dismisses Plaintiff's remaining claims with prejudice.

FACTUAL BACKGROUND¹

In her initial complaint Plaintiff alleged that her manager at Fordham Post Office, Patricia Henry, announced that Plaintiff and her colleagues "weren't doing [their] jobs," that "fifth graders could do [their] jobs," and that "it was her way or the highway and that she would take [their] jobs." Henry allegedly "threatened us/me stating loudly on the workfloor at the ... post office that anyone attempting to use sicktime ... would be penalized by having earned pay docked." Henry told Plaintiff "on approximately 5 different dates that [she] should retire." Plaintiff further alleged that she took sick leave in December 2017 but that Henry denied her use of sick leave for the time taken. Plaintiff asserted that a supervisor, Aida Santana-Putter, called Plaintiff's doctor to verify whether Plaintiff was indeed sick. Plaintiff also alleged that in late December 2017, and in January or February 2018, she spoke with an EEOC representative to report the disallowance of her use of sick leave. In January 2018, Plaintiff allegedly received a letter from the Postal Service requiring her to return the salary she had been paid for the period for which her sick leave had been disallowed. Plaintiff asserted that she filed grievances, which were denied, and filed an appeal with the National Labor Relations Board ("NLRB"). (Compl. pp. 8-9.² )

In her Amended Complaint, Plaintiff advances some of the same allegations as in her original Complaint. She claims that Henry began working as the manager of the Fordham Post Office in early 2017, whereupon she told employees that she was there to "clean house," and that it was "[her] way or no way at all." Plaintiff was allegedly told, on May 17, 2017, to "quit or retire." In November 2017, Plaintiff allegedly called in sick for the period from November 27 through December 1, and then again for the period December 2 through December 9. As in the original Complaint, she alleges that she was initially paid for the period of sick leave from December 2 through December 9, 2017, but that the Postal Service later asked her to return $945 after her sick leave was disapproved. (Amend. Compl. at 8.³ )

Plaintiff does introduce some new allegations in the Amended Complaint. She asserts that she faced "constant harassment" from Henry, as a result of which she was "a nervous [w]reck all the time" and suffered from "sleepless nights," hair loss, and a "nervous stomach" that required her to "constantly tak[e] medicine." (Amend. Compl. at 6.) She also claims that, in June 2018, she "came back to the station after completing [her] route as [she] walked to the back of the station to put [her] outgoing mail in the bin ... Ms. Henry came out of the office and said to [her,] ‘look the old lady is back.’ " And on September 8, 2018, Henry allegedly shouted to her, "you old mother fucking bitch" as Plaintiff returned from her break. (Amend. Compl. at 9.)

PROCEDURAL HISTORY

The procedural history includes two administrative Equal Employment Opportunity ("EEO") proceedings as well as the proceedings in the instant case.⁴

A. The First EEO Case: Absence Without Leave Claims

On December 11, 2017, Plaintiff contacted the Postal Service's EEO office, complaining of an incident on December 2, 2017 ("EEO AWOL Case"). (Flanagan Decl. ¶ 5, Ex. A.) Plaintiff alleged that she was discriminated against on the basis of race, sex, physical disability, and retaliation when she was charged 40 hours of AWOL and when her supervisor telephoned her doctor to inquire about her illness (the "AWOL Claims"). That is consistent with forms Plaintiff completed for pre-complaint counseling on December 11, 2017 and February 1, 2018.⁵ (Flanagan Decl., Exs. B, C.)

On May 29, 2018, Plaintiff filed a formal "EEO Complaint of Discrimination in the Postal Service" ("EEO Complaint"). (Flanagan Decl., Ex. F.) On June 22, 2018, the Postal Service issued a "Partial Acceptance/Partial Dismissal Of Formal EEO Complaint," in which it noted that Plaintiff raised three issues with respect to her discrimination complaint: (1) "On December 2, 2017 through December 9, 2017, you were charged forty (40) hours of Absent without Leave"; (2) "On January 8, 2018, the supervisor called your physician inquiring about your medical condition"; and (3) "On an unspecified date, you received a Letter of Demand for $945.89." (Flanagan Decl., Ex. G at 1.) The Postal Service accepted for investigation the first two claims; it dismissed the third claim because it involved "a collateral attack on a matter within the jurisdiction of the Debt Collection Act." (Flanagan Decl., Ex. G at 3.)

The Partial Acceptance/Partial Dismissal expressly informed Plaintiff that, if she did not agree with the accepted issues as defined, she "must provide a written response specifying the nature of your disagreement within seven (7) calendar days of receipt of this letter ...." It further explained: "any notification of disagreement with the defined accepted issues is not an opportunity or forum to raise additional, unrelated allegations of discrimination" and that "[a]dditional unrelated issues must be pursued through established procedures with your local EEO Office." (Flanagan Decl., Ex. G at 2.) Plaintiff did not file a written response, nor did she present additional issues. The EEO investigation therefore concerned only the charge of 40 hours of AWOL and the call to Plaintiff's physician inquiring about her alleged medical condition.

On November 28, 2018, the Postal Service issued a final agency decision concerning the unfair-labor practice claim regarding Plaintiff's having been charged 40 hours of AWOL for her absence from work between December 2 and December 9, 2017. (Flanagan Decl., Exs. H, I.) Plaintiff filed an appeal on December 27, 2018. (Flanagan Decl., Ex. J.) In that appeal, for the first time, Plaintiff alleged that "Mrs. Henry has constantly made remarks to me about my age and retirement," including "on or about September 8, 2018," when Mrs. Henry allegedly "called [her] an old mother fucking bitch." (Flanagan Decl., Ex. J at 10.) On August 29, 2019, the EEOC affirmed the final agency decision, concluding that "Complainant has not shown that discrimination or reprisal occurred." (Flanagan Decl., Ex. K.) In its decision, the EEOC noted that Plaintiff's allegations of discrimination involved the AWOL Claims. The EEOC's decision made no reference to Plaintiff's allegations asserted for the first time on appeal, and noted that Plaintiff "failed to participate in the investigation [by failing to file an affidavit] and therefore failed to rebut the agency's articulated reasons for its actions [relating to the AWOL Claims]." (Flanagan Decl., Ex. K at 2.)

B. The Second EEO Case: Henry Conduct And Comments

On September 27, 2018, Plaintiff contacted the Postal Service's EEO office again, this time complaining of alleged improper conduct and comments by Patricia Henry (the "Second EEO Case"). (Flanagan Decl. ¶ 15.) Plaintiff filed a Form 2564-A ("Information for Pre-Complaint Counseling"), which the agency received on November 9, 2018, in which she alleged that, when she was walking back from her break on September 8, 2018, Patricia Henry "ranted to me screaming your break is over you old mother fucking bitch." (Flanagan Decl., Ex. L at 1.) She further alleged that, on September 19, 2018, Henry said, "the old lady came back," in reference to Plaintiff. Plaintiff indicated that she was represented by counsel. (Flanagan Decl., Ex. L at 2.)

On December 13, 2018, an EEO Dispute Resolution Specialist, Listra A. Charles, sent Plaintiff a notice stating that she had concluded the processing of Plaintiff's claim and informing Plaintiff that she could either "do nothing at which point your inquiry will expire and no further action will be taken on your counseling request, or you can elect to file a formal complaint." (Flanagan Decl., Ex. M at 1.) The notice informed Plaintiff that she had 15 days from the date of receipt to file a formal complaint. The notice and forms provided to Plaintiff expressly informed her that if she did decide to file a formal complaint, she "must" send the appropriate forms to "NEEOISO-Formal Complaint; U.S. Postal Service; P.O. Box 21979; Tampa, FL 33622-1979" ("Formal Complaint Office") (Id. ; see also Supp. Flanagan Decl. ¶¶ 8-11 and Exs. 2-4 (showing that multiple forms provided to Plaintiff on multiple occasions consistently identified the address to which a formal complaint had to be sent).) Plaintiff never filed a formal complaint with the Formal Complaint Office for the Second EEO Case. Instead, on January...