Pelky v. Dejoy

1

TAMELA PELKY, Plaintiff, v. LOUIS DEJOY, Defendant.

No. 1:22-cv-901

United States District Court, W.D. Michigan, Southern Division

April 20, 2023

REPORT AND RECOMMENDATION

SALLY J. BERENS U.S. MAGISTRATE JUDGE

Plaintiff Tamela Pelky, proceeding pro se, has sued United States Postmaster General Louis DeJoy, alleging that the United States Postal Service (USPS) discriminated against her on the basis of a work-related disability by issuing disciplinary actions, including a notice of removal. (ECF No. 1 at PageID.2-4.) Defendant has responded with a Motion to Dismiss or for Summary Judgment (ECF No. 12), arguing that Pelky's claim is subject to dismissal because she failed to exhaust her administrative remedies. Pelky has failed to respond to Defendant's motion within the time permitted by Western District of Michigan Local Civil Rule 7.2(c).^[1]

Having fully reviewed the motion and supporting materials, pursuant to 28 U.S.C. § 636(b)(1)(B), I recommend that the Court GRANT the motion and dismiss Pelky's complaint.

I. Background

Prior to 2017, Pelky was employed by the USPS at its Traverse City Processing and Distribution Facility. She alleges that she injured her back on September 19, 2014, while performing her duties at work. (ECF No. 1 at PageID.2.) Pelky missed multiple days of work due to her injury. On October 21, 2014 the plant manager sent Pelky a 5-Day Notice indicating that she had been absent from work since October 11, 2014, and requiring her to return to work or submit satisfactory documentation for her absences. (Id. at PageID.2; ECF No. 1-4.) Management sent Pelky another 5-Day Notice on July 31, 2015, indicating that she had been absent from work since July 22, 2015, and requiring her to return to work or submit satisfactory medical documentation. (ECF No. 1 at PageID.2; ECF No. 1-5.) Both notices warned Pelky that disciplinary action, up to and including discharge, would be taken for noncompliance.

On September 1, 2015, the USPS sent Pelky a Letter of Warning citing over 240 hours of absence and noting that Pelky had failed to submit appropriate medical documentation to the Office of Worker's Compensation Programs (OWCP). (ECF No 1 at PageID.2; ECF No. 1-5 at PageID.25-26.) On November 30, 2015, the USPS sent Pelky a Notice of Suspension of 14 Days or Less, effective January 2, 2016, which cited another 140 hours of absence during October and November 2015. (ECF No. 1 at PageID.2; ECF No. 1-6.) In January 2016, Plaintiff filed an informal Equal Employment Opportunity (EEO) complaint alleging that her discipline constituted disability-based discrimination. (ECF No. 13-1 at PageID.121, 125-28.) Pelky's union and the USPS settled the informal complaint with an agreement that the September 1, 2015 Letter of Warning and November 30, 2015 Notice of Suspension would be combined into a Letter of Warning dated November 30, 2015. It was also agreed that the disciplinary action would be rescinded if the Department of Labor/OWCP determined that the absences were work-related.

(ECF No. 1 at PageID.3; ECF No. 1-7.) Pelky did not file a formal EEO complaint. (ECF No. 131 at PageID.121.) In March 2016, Pelky applied for disability retirement under the Federal Employees Retirement System. (ECF No. 1 at PageID.3; ECF No. 1-11; ECF No. 1-12.) On July 15, 2016, the USPS sent Pelky a Notice of Suspension of 14 Days, citing over 700 hours in unscheduled absence during 2016. (ECF No. 1 at PageID.3; ECF No. 1-13.)

On October 14, 2016, the USPS sent Pelky a Notice of Removal for failure to meet attendance requirements for her position. The Notice cited 400 hours of absence between July and September 2016, and made the removal effective as of November 26, 2016. (ECF No. 1 at PageID.3; ECF No. 1-17.) Pelky filed a grievance through her union, which was eventually settled pursuant to a Pre-Arbitration Settlement rescinding the October 14, 2016 removal and removing a 14-day suspension from Pelky's record. (ECF No. 13-2 at PageID.194, 196.) In May 2017, the Office of Personnel Management approved Pelky's application for disability retirement. (ECF No. 1-12.)

Pelky filed two formal EEO complaints relating to the foregoing events. First, in January 2017, she contacted an EEO counselor, which resulted in an April 20, 2017 formal EEO complaint. (ECF No. 13-1 at PageID.121, 135-37.) The USPS issued a final agency decision on October 24, 2017, finding no discrimination. (Id. at PageID.122, 140-56.) Pelky took no further action on her complaint. (Id. at PageID.122.) Pelky filed another formal EEO complaint in May 2018. (Id. at PageID.122, 166-67.) However, the complaint was dismissed on September 21, 2020, for failure to comply with the applicable time limits and because the issues she raised were duplicative of those she raised in her 2017 formal EEO complaint. (Id. at PageID.122, 170-71.) On September 25, 2020, the USPS issued a Notice of Final Action implementing the September 21, 2020 dismissal. (Id. at PageID.122, 176-77.) Pelky appealed the decision to the Equal Employment Opportunity Commission (EEOC) Office of Federal Operations, which affirmed the dismissal on February 2, 2022. (Id. at PageID.123, 181, 183-85.) Pelky's request for reconsideration was denied on June 27, 2022. (Id. at PageID.123.)

II. Motion Standard

Defendant moves for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively, for summary judgment under Federal Rule of Civil Procedure 56. While exhaustion of administrative remedies is a precondition to filing suit in federal court, see Brown v. General Servs. Admin., 425 U.S. 820, 832 (1976), “[f]ailure to exhaust administrative remedies in a timely manner is an affirmative defense, and the defendant bears the burden of pleading and proving this failure.” Lockett v. Potter, 259 Fed.Appx. 784, 786 (6th Cir. 2008) (citing Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997)); see also Bushong v. Delaware City Sch. Dist., 851 Fed.Appx. 541, 545 (6th Cir. 2021). A motion to dismiss is not the proper vehicle for considering an affirmative defense unless the defense appears on the face of the complaint. American Premier Underwriters, Inc. v. National R.R. Passenger Corp., 839 F.3d 458, 464 (6th Cir. 2016); see also Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012) (noting that although “a motion under Rule 12(b)(6), which considers only the allegations in the complaint, is generally an inappropriate vehicle for dismissing a claim based upon the statute of limitations[,] . . . sometimes the allegations in the complaint affirmatively show that the claim is time-barred”). Here, Pelky's complaint does not address exhaustion, one way or the other. Thus, I find it appropriate to analyze Defendant's motion under the summary judgment standard.

Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Material facts are facts that are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party. Id. The court must draw all inferences in a light most favorable to the non-moving party but may grant summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

Generally, where the non-moving party fails to respond to a motion for summary judgment, “the district court must, at a minimum, examine the moving party's motion for summary judgment to ensure that it has discharged its initial burden.” Miller v. Shore Fin. Servs., Inc., 141 Fed.Appx. 417, 419 (6th Cir. 2005) (citing Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir. 1998)).

III. Discussion

Defendant contends that to the extent Pelky's claim is construed as a claim of disability discrimination under the Rehabilitation Act, 29 U.S.C. § 701 et seq., it is subject to dismissal because Pelky failed to exhaust her administrative remedies.^[2] Defendant contends that Pelky cannot satisfy the exhaustion requirement because any claim based on her 2017 EEO complaint is time-barred, and Pelky failed to exhaust her administrative remedies as to the 2018 EEO complaint.

It is well established that “[f]ederal employees claiming discrimination by a government agency are required to exhaust their administrative remedies before filing suit in federal court, including exhaustion of administrative remedies laid out in applicable federal regulations.” Adams v Potter, No. 06-CV-14933, 2007 WL 1098539, at *2 (E.D. Mich. Apr. 11, 2007) (citing, among others, Fisher v. Harvey, No. 1:05-CV-102, 2006 WL 849868m at *4-5 (E.D. Tenn. Mar. 31, 2006)). Federal employees are required to exhaust claims under the Rehabilitation Act before filing suit in federal court. Smith v. United States Postal Serv., 742 F.2d 257 (6th Cir. 1984). First, the employee must initiate contact with an EEO counselor within 45 days of the alleged discriminatory action or effective date of the personnel action. 29 C.F.R. § 1614.105(a)(1). Next, the employee must file a complaint of discrimination with the employing agency, 29 C.F.R. § 1614.106(a), and await receipt of a final agency decision, 29 C.F.R. § 1614.110. The employee may appeal the agency's final action to the EEOC within 30 days of the final action. 29 C.F.R. § 1614.402(a). The employee may file suit in federal court within (1) 90 days of notice of final agency action, 29 C.F.R. § 1614.407(b); (2) 180 days of filing her EEO complaint if the...