Pena v. U.S. Postal Serv.

ISRAEL PENA, Plaintiff, v. UNITED STATES POSTAL SERVICE, et al., Defendants.

Case No. 18-cv-03923-JCS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 14, 2019

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT

Re: Dkt. No. 21

I. INTRODUCTION

Plaintiff Israel Pena initiated suit against his employer United States Postal Service and Postmaster General of the United States Megan J. Brennan (collectively, "USPS"), as well as several unidentified and unserved Doe Defendants, for unlawful employment practices and retaliation under Title VII, the Rehabilitation Act, and the Age Discrimination in Employment Act ("ADEA"). Pena appears as a pro se litigant.¹ USPS moves to dismiss Pena's six claims for failure to exhaust administrative remedies or sufficiently state a claim for relief. The Court held a hearing on the Motion on Friday, December 21, 2018 and stayed discovery pending its ruling or until the next case management conference. See Dkt. No. 32. For the reasons stated below, the Motion is GRANTED.²

II. BACKGROUND

A. Factual Allegations³

Israel Pena began working as a USPS letter carrier in April 1984 and served as anemployee in this position for over thirty years. 1st Am. Compl. ("FAC," dkt. 7) ¶¶ 19-20. Pena is a 60-year-old Hispanic male. Id. ¶ 19 & Ex. D. He suffered from a right knee injury in late 2010 and had surgery to repair his knee in September 2010. Id. ¶ 22. Pena resumed his normal work in January 2011. Id. In March 2011, Pena's then supervisor, Postmaster Anna Karmelita, told Pena he was going to be assigned a "park and loop" route which meant the route "requires the letter carrier to walk and carry a satchel in order to deliver mail." Id. ¶ 24. Pena informed Karmelita that he had been having pain in his knee and did not believe he could do the route. Id. Karmelita told Pena he would need a doctor's note. Id. On March 16, 2011, Pena obtained a doctor's note stating that "until further notice" he "[could] not deliver mail using a satchel" or engage in the "constant activity of going in and out of [a] vehicle." Id. ¶ 25 & Ex. B. Pena provided Karmelita this note the next business day. Id. ¶ 25. Pena remained on his regular route and adhered to these limitations throughout 2011. Id.

In January 2012, Pena's new supervisor, Warner Lopez, approached Pena to assign him a new route. Id. ¶ 26. Pena "advised Lopez of his doctor's note on file . . . [and] Lopez appeared to be angry, stomped his feet and walked away." Id. Lopez returned on February 24, 2012, and "insisted" that Pena work a route incompatible with Pena's medical instruction. Id. ¶ 27. On March 2, 2012, Lopez informed employees at Pena's USPS office that "a satchel must be used and that handcarts would not be permitted" on all park and loop routes. Id. ¶ 28. "On March 10, 2012[,] Lopez gave [Pena] a direct order [to] . . . complete a route and perform duties contrary to [Pena's] physician's directive." Id. ¶ 29. Pena complied with Lopez's order "because he believed that he would be insubordinate if he refused." Id. That day Pena "sustained injuries to his knee [while] completing his duties." Id. On March 15, 2012, Lopez again directly ordered Pena "to complete a route and perform duties contrary to [Pena's] physician's directive" which caused him to "severely injur[e] his knee." Id. ¶ 31. Pena was assigned office duties the following day until around April 15, 2012. Id. ¶ 32.

Pena requested mediation by the USPS Equal Employment Opportunity office ("EEO") in April 2012, and on May 4, 2012, Pena, Lopez, and Karmelita signed an EEO mediation agreement placing Pena on "modified work activity" until May 15, 2012. Id. ¶ 34 & Ex. C. Pena alleges that "additional acts of discrimination and harassment were committed against [him] by management . . . in June of 2012." Id. ¶ 35. On October 8, 2012, Pena received a new doctor's note describing his same physical limitations. The note prohibited Pena from "carry[ing] a satchel, []or conduct[ing] activities that required him to repetitively enter/exit his vehicle." Id. ¶ 36.

"In February 2013, [Pena] wrote a letter to the postmaster general [sic]⁴ complaining of his injury resulting from [the] discriminatory practices and harassment he ha[d] been experiencing in his office."⁵ Id. ¶ 37. "On February 13, 2013, [Pena] was interviewed by an employee from human resources . . . [and] on that same day, [Pena]'s vehicle was vandalized." Id. In April 2013, "District Manager Rosemary Fernandez and Director of Human Resources Irma Zine further threatened [Pena] stating that if he sent another grievance letter to the Postmaster General he would be fired," id. ¶ 41, and "[o]n August 9, 2013, Lopez and Postmaster Karmelita directed [Pena] to get out of his vehicle and deliver mail to a residence." Id. ¶ 42. Pena disclosed to his doctor on October 11, 2013 "that Lopez had been forcing him, through intimidation and other tactics[,] to perform tasks that he [was] expressly forbidden to do." Id. ¶ 43. Two months later, Lopez was promoted and became Pena's direct supervisor. Id. ¶ 44.

In February 2014, Lopez told Pena of a "'change' to [Pena's] physician's directive" that now allowed Pena "to enter and exit his vehicle, but no more than two time[s] per hour," despite Pena having "no knowledge of this purported change." Id ¶ 45. Pena requested another investigation "by the Inspector General's office" in April 2014, and "around May 2014, [Pena] was threatened by Postmaster Jason Kirrane, who warned [Pena] that if he contacted the InspectorGeneral's office again in order to pursue a charge of discrimination, [he] would be terminated from his position." Id. ¶¶ 47-48. That same month, Lopez told Pena on several occasions that he would "find out" if Pena was performing inadequately at his job and would subject Pena to disciplinary actions. Id. ¶ 49.

Pena submitted another doctor's note on May 24, 2014. Id. ¶ 50 & Ex. F. However, he later received a USPS letter stating that the last medical note received by USPS was dated April 7, 2014. Id. ¶ 51. Pena went on medical leave in October 2014, receiving as disability payments 75% of his regular wages. Id. ¶ 52.

B. Procedural History

Pena requested pre-complaint counseling on April 2, 2012. Id. ¶ 33; Riddle Decl. (dkt. 21-1) Ex. D. The parties then signed an EEO settlement agreement on May 4, 2012. FAC ¶ 34. On November 29, 2017, Pena again initiated contact with the USPS's EEO. Id. ¶ 13; see also Riddle Decl. Ex. D. On February 27, 2018, the EEO issued a "Notice of Right to File" a formal complaint, FAC Ex. D., and Pena filed a formal administrative complaint on March 12, 2018, id. Ex. F. See also Riddle Decl. Ex. A. On or around April 5, 2018,⁶ Pena received a final agency decision dismissing his EEO claims and granting him a right to either sue in federal court or appeal the agency's decision to the Equal Employment Opportunity Commission ("EEOC"). FAC ¶ 16; see also Riddle Decl. Ex. D. On June 29, 2018, Pena filed his civil lawsuit against USPS alleging disability, age, and racial discrimination, harassment, retaliation, and a hostile workplace.

C. Claims

Pena asserts the following six claims, numbered one through seven and omitting a claim four. See FAC ¶¶ 58-100. As his first claim, Pena asserts that USPS violated the Rehabilitation Act of 1973, 29 U.S.C. § 501, based on physical disability discrimination and failure to accommodate. FAC ¶¶ 58-68. Pena alleges that he suffered from knee strain caused and "exacerbated by the wrongful conduct [of USPS]" which "result[ed] in the surgical replacement of [Pena's] left knee." Id. ¶ 62. Pena further contends that he "made periodic requests" foraccommodations in "a light duty job" prior to taking medical leave, but USPS either refused the requests or quickly revoked accommodations after allowing them for a short time. Id. ¶¶ 64-65, 67.

In his second claim, Pena asserts harassment by his USPS supervisors who Pena alleges, among other things, "implemented strict policies with respect to [his] job assignment . . . [that] failed to reasonably accommodate [his] handicap" and were "unduly burdensome." Id. ¶¶ 69-71. Pena also claims that his supervisor instructed him to undertake work in direct contradiction to his doctor's medical advice, id. ¶¶ 72-75, that his "request[s] to examine his personnel file" were ignored, id. ¶¶ 77-78, and that USPS failed to take action against the harassment despite its knowledge of it, id. ¶¶ 79-81.⁷

Pena asserts retaliation and failure to prevent retaliation in his third claim, based on the parties' prior EEO mediation agreement, which Pena alleges USPS "failed to fulfill its[] obligations" under. Id. ¶¶ 82-95. Pena further alleges that USPS personnel "intentionally and maliciously removed [Pena's most recent doctor's note] from [his] personnel file." Id. ¶ 89.⁸

In Pena's fifth claim he asserts a hostile and abusive working environment in violation of Title VII, the Rehabilitation Act, and the ADEA, because "the stated reasons for [USPS's] conduct were not the true reasons, but instead were pretext to hide the [USPS's] discriminatory animus." Id. ¶¶ 96-97.

Pena similarly bases his sixth claim for age discrimination in violation of the ADEA, 29 U.S.C. § 621, and his seventh claim for race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq., on the allegations that USPS's stated reasons for its conduct were pretext. Id. ¶¶ 98-100.

D. Motion to Dismiss

USPS brings this motion to dismiss Pena's claims in their entirety as time-barred and insufficiently pled. USPS argues that this Court does not have subject matter jurisdiction over Pena's claims because Pena's claims were not timely filed and therefore not exhausted. Mot. (dkt. 21) at 7. USPS asserts that Pena did not exhaust his administrative remedies because he failed to substantially comply with the applicable 45-day counselor contact limitations period and the 30 and...