Rivera v. Brennan

ALEXANDER RIVERA, Plaintiff, v. MEGAN J BRENNAN, U.S. POSTMASTER GENERAL, Defendant.

CIVIL NO. 18-2028 (GAG)

UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO

August 2, 2021

OPINION & ORDER

Pending before the Court is the United States Postal Service's ("USPS" or "Defendant") motion to dismiss Alexander Rivera's ("Rivera" or "Plaintiff") complaint for failure to state a claim upon which relief can be granted. (Docket No. 43). Plaintiff opposed. (Docket No. 47). Rivera, a USPS employee, alleges that his procedural due process rights were infringed when USPS dismissed with prejudice his administrative complaint as untimely given that USPS's Equal Employment Opportunity ("EEO") dispute resolution specialist allegedly failed to properly deliver him the necessary documents to file the administrative complaint. (Docket No. 1 at 6, ¶ 28). For the ensuing reasons, the Court GRANTS Defendant's motion to dismiss at Docket No. 43 under FED. R. CIV. P. 12(b)(1) and 12(b)(6).

I. Relevant Factual and Procedural Background

On January 18, 2018, Rivera received a Letter of Warning, in lieu of a fourteen-day suspension, from his USPS supervisor because he failed to satisfactorily perform his duties by not delivering mail and failing to report a delay in mail to a post office operations manager as previously instructed. (Docket Nos. 1 at 3, ¶ 11; 43-1 at 2; 47 at 4). On February 14, 2018, Rivera filed a pre-complaint¹ with the EEO Postal System and Procedure (the "Agency") in compliance with USPS's regulations. (Docket Nos. 1 at 3, ¶ 11; 43-1 at 2-4). The pre-complaint alleges both that the USPS disparately treated Rivera comparing him with another employee regarding the delays in mail, and that the USPS retaliated against him because of his Debt Collection Act case from April 18, 2016, which he alleges is protected EEO activity.² (Docket No. 43-1 at 2).

In the pre-complaint, Rivera listed Alfredo Acevedo ("Counsel Acevedo") as his attorney. (Docket No. 43-1 at 4). The Agency assigned Dispute Resolution Specialist ("DRS") Patricia Wiebush Perez, ("DRS Wiebush Perez") to Rivera's case. Id. ¶ 12. On March 15, 2018, DRS Wiebush Perez sent an email communication to Counsel Acevedo to inquire about whether Rivera was interested in participating in Resolve Employment Disputes Reach Equitable Solutions Swiftly ("REDRESS"), an alternate resolution program the Agency offers to employees in the EEO pre-complaint stage. (Docket No. 43 at 2).

On May 11, 2018, after DRS Wiebush Perez tried to follow up with Counsel Acevedo to obtain a response, Rivera personally informed her that he wanted to move forward with the formal administrative EEO complaint. (Docket Nos. 43 at 2-3). In her response on the same day, DRS Wiebush Perez informed Rivera that the relevant documents would be sent to Counsel Acevedo. Id. DRS Wiebush Perez also informed Rivera that she had gotten permission from Counsel Acevedo to contact him personally, as "the attorney informed her of not being able to contact [Rivera]." (Docket Nos. 1 ¶ 19; 47-1).

On May 14, 2018, DRS Wiebush Perez informed Rivera that she would send the original complaint to Counsel Acevedo and a copy to him. (Docket No. 47 at 4). The document was sent toCounsel Acevedo on May 15, 2018, where it was received and signed on May 18, 2018, by "A. Acebedo [sic]." (Docket Nos. 43 at 3; 43-2 at 2).

On August 15, 2018, after allegedly receiving neither a written decision nor notice regarding his complaint, Rivera contacted DRS Wiebush Perez to ask when he would receive the aforementioned document from the Agency. (Docket No. 47 at 4). The next day, DRS Wiebush Perez responded to Rivera, informing him that the document had been sent to his counsel on May 15, 2018, but she did "not see it showing as received." (Docket No. 47-3). DRS Wiebush Perez further informed Rivera that she would re-send the document, proclaimed that the time frame for the pre-complaint was based on the date the document was signed, and told Mr. Rivera: "[Y]ou will not be dismissed for[] timeliness based on not receiving the initial paperwork." (Docket Nos. 47 at 5; 47-2 at 2). Rivera requested DRS Wiebush Perez to send the document by email to new counsel that assumed his legal representation at the time. (Docket No. 47-2 at 1) DRS Wiebush Perez informed Rivera that such document could not be sent via email, but that she would provide Rivera with a tracking number to monitor the documents' delivery progress sent to the address on record. Id. On August 25, 2018, Rivera emailed DRS Wiebush Perez to inquire about the status of the document and its corresponding tracking number, alleging that he still had not received either of them. (Docket No. 47-3).

On September 20, 2018, alleging he had not received any documentation, Rivera filed a formal administrative EEO complaint³ alleging "discrimination based on retaliation" when (1) "[o]n January 18, 2018, he was issued a Letter of Warning in lieu of 14 Day Suspension" and (2) "on unspecified date(s), his request to have [Agency's] management comply with his complement in function 2 (Carriers) and function 4 (Clerks) was not addressed." (Dockets No. 43 at 3; 47 at 6). OnOctober 12, 2018, Rivera received a notice of dismissal from his formal EEO complaint, referencing its untimely filing in accordance with 29 C.F.R. § 1614.107(a)(2). (Docket No. 1 at 2, ¶ 6).

On December 29, 2018, Plaintiff filed the above-captioned complaint alleging the Agency "failed to give proper notice of its [sic] decision of May 15, 2018," and thus failed "to comply with the due process." (Docket No. 1 at 5, ¶ 25). He argues that the Agency violated his due process rights by failing to provide a rationale for dismissing his pre-complaint with prejudice for timeliness, because DRS Wiebush Perez told him that he would not be dismissed "for the [sic] timeliness based on not receiving the initial paperwork." Id. at 6, ¶¶ 26-29. Rivera attempts to bolster his argument by explaining that the Agency knew that he was "acting on his [own] behalf." Id.

II. Motion to Dismiss: 12(b)(1)

a. Standard of Review

As courts of limited jurisdiction, federal courts must resolve questions related to their subject-matter jurisdiction before addressing the merits of a case. Destek Grp. V. State of N.H. Pub. Utils. Comm'n, 318 F.3d 32, 38 (1st Cir. 2003). The party asserting jurisdiction has the burden of demonstrating the existence of federal jurisdiction. Viqueira v. First Bank, 140 F.3d 12, 16 (1st Cir. 1998). "[A] federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding on the merits." Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577 (1999). "The requirement that jurisdiction be established as a threshold matter is inflexible and without exception; for jurisdiction is power to declare the law, and without jurisdiction the court cannot proceed at all in any cause." Marathon Oil Co., 526 U.S. at 577 (citing Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 94-95 (1998)). If it appears the Court at any time lacks the statutory or constitutional power to adjudicate the case, it must dismiss the action, even in the absence of a challenge from any party. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); Nowak v. Ironworkers Local 6 Pension Fund,81 F.3d 1182, 1187 (2d Cir. 1996); see also FDIC v. Cabán-Muñiz, 216 F. Supp. 3d 255, 257 (D.P.R. 2016).

When considering a Rule 12(b)(1) motion to dismiss, the Court may consider all pleadings submitted by the parties. Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996). The Court "is not restricted to the face of the pleadings but may consider extra-pleading materials, such as affidavits and testimony to resolve factual disputes concerning the existence of jurisdiction." Fernández Molinary v. Industrias la Famosa, Inc., 203 F. Supp. 2d 111, 114-15 (D.P.R. 2002) (citing Land v. Dollar, 330 U.S. 731, 735 (1947)).

The Court has expressed that the "[p]ertinent inquiry is whether the challenged pleadings set forth allegations sufficient to demonstrate that the subject matter jurisdiction of the Court is proper." Marrero v. Costco Wholesale Corp., 52 F. Supp. 3d 437, 439 (D.P.R. 2014). As previously stated, in reviewing this motion, the Court must construe the complaint liberally and treat all well-pleaded facts as true, "according the plaintiff the benefit of all reasonable inferences." Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995). Dismissal is be proper if the facts alleged reveal a jurisdictional defect not otherwise remediable. Sumitomo Real Estate Sales (N.Y.), Inc. v. Quantum Dev. Corp., 434 F. Supp. 2d 93, 95 (D.P.R. 2006). The Court has discretion as to the manner in which preliminary questions of jurisdiction are to be resolved. Torres Vázquez v. Com. Union Ins. Co., 417 F. Supp. 2d 227, 233, n. 3 (D.P.R. 2006).

A Rule 12(b)(1) challenge comes in two forms: (1) defendants can challenge the pleader's compliance with FED. R. CIV. P. 8(a)(1), or (2) defendants can challenge the Court's actual subject matter jurisdiction, regardless of the formal sufficiency of the pleadings. Torres Vázquez, 417 F. Supp. 2d at 236. A pleading alleges that subject matter jurisdiction is defective under FED. R. CIV. P. 8(a)(1) "when allegations in the complaint are insufficient to show that the federal court hasjurisdiction over the subject matter of the case." Torres Vázquez, 417 F. Supp. 2d at 236-37, n. 7. Thus, the complaint is defective and must be dismissed despite the existence of actual subject matter jurisdiction, unless the deficiency is cured. Torres Vázquez, 417 F. Supp. 2d at 236, n. 7.

b. Legal Analysis and Discussion

In the above-captioned complaint, Rivera argues that his due process rights were violated when his administrative complaint was dismissed as untimely because he never received the necessary documentation from the Agency to file the formal administrative complaint. Rivera states that "[t]his Court has jurisdiction to entertain the...