Simpson v. DeJoy

Pedro A. Simpson, Plaintiff, v. Louis DeJoy, Postmaster General,United States Postal Service Defendant.

No. CV-20-00495-PHX-DWL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

June 14, 2021

ORDER

Pedro A. Simpson ("Simpson") has sued his former employer, the United States Postal Service (the "Agency").¹ Now pending before the Court is the Agency's motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. For the following reasons, the motion is granted in part and denied in part and the Agency is granted leave to file a successive dismissal motion.

BACKGROUND

I. Underlying Facts

The following facts, which are presumed true, are derived from the First Amended Complaint ("FAC") (Doc. 35) and from documents incorporated by reference in thecomplaint or subject to judicial notice.

In 1976, Simpson began his career with the Agency. (Doc. 35 at 2 ¶ 1.)² In 1992, Simpson became the Arizona District IT Manager. (Id.) Simpson served in this role until he submitted a petition for retirement on July 1, 2019, shortly after his sixtieth birthday. (Id. at 3 ¶ 4.)

In March 2016, Simpson underwent surgery for cancer. (Id. at 3 ¶ 1.) At the start of his illness, Simpson only shared news of his condition with his supervisor, District Manager John DiPeri ("DiPeri"). (Id.) By the summer of 2018, Simpson had "been through some 6-7 surgeries." (Id.)

In 2018, DiPeri was detailed to a different region. (Id. at 3-4 ¶ 1.) Gail Hendrix ("Hendrix"), a District Manager from Missouri, replaced him. (Id.) Hendrix "very quickly began a campaign to eliminate [Simpson] from his job," starting with "task[ing] [him] with meaningless assignments." (Id.)

In the summer of 2018, Hendrix "forced [Simpson] into a Reasonable Accommodation Process intended to return him to his office." (Id. at 4 ¶ 3.) During this process, Simpson "met with the District Reasonable Accommodation Committee" ("DRAC"), which consisted of Human Resources Manager Lerene Wiley ("Wiley") and "two employees from her team." (Id.) Simpson "provided detailed information about his . . . disability" and ultimately came to an agreement with DRAC, which the Agency memorialized in a letter on June 27, 2018. (Id.) In addition to "articulating [Simpson's] and [Wiley's] agreement," the letter "[]unexpectedly[] grant[ed] authority over the 'specific details'" to the District Manager. (Id.)

On July 9, 2018, Simpson returned to work and "worked an office schedule based on the spirit of his agreement" with DRAC. (Id. at 4-5 ¶ 3.) Upon Simpson's return to work, Richard "Marty" Chavez ("Chavez"), the new District Manager, met with Simpson and informed him that "he was monitoring [Simpson's] office time by [his] badge entryand exit records" and that any work from home would not count. (Id. at 5 ¶ 4, first.)³ Chavez suggested that Simpson start reporting to work at 5:00 a.m., which he agreed to and began doing. (Id.) "Additionally, based upon the IT needs of the District, [Simpson] diligently continued to work from home, including afternoons, evenings, weekends, and holidays." (Id.)

At some point, Chavez told Simpson that if "he did not like the requirement [of being monitored], [Simpson] should appeal it to the Western Area." (Id. at 5 ¶ 4, second.) Simpson did so, but because more than 10 days had elapsed since Simpson entered into the agreement with DRAC, "the Western Area HR Manager denied [the] appeal." (Id.) Following this appeal, the Agency "made [Simpson's] work environment extremely and increasingly hostile toward" him. (Id. at 5-6 ¶ 5.) Despite this, Simpson chose not to file an Equal Employment Opportunity ("EEO") complaint because he was "waiting[] out the horrific environment in which [the Agency] placed him absent his legitimate District Manager" and because "[f]iling EEOs against an acting DM when one's DM is returning is only career suicide." (Id. at 6 ¶ 7.)

In June 2019, the Agency held a meeting in Avondale, Arizona. (Id. at 6 ¶ 6.) "At the same time, the District was preparing for a promotional upward mobility event in Albuquerque," for which the "District promoters selected a non-postal site." (Id.) Two days before the event, Renee Jones-Chaney ("Jones-Chaney"), the Tucson Plant Manager, "demanded support from District IT," including a list of demands, "which District IT has never provided nor are capable of providing." (Id.) Simpson replied to Jones-Chaney that "District IT could not deliver her demands" because, "[f]or off-site events, District IT support is limited to access to the USPS network and interfacing with the contracted site's IT group to coordinate what they must deliver." (Id. at 7 ¶ 2.) Jones-Chaney in turn complained to Chavez, who "instructed [Simpson] to provide everything on [Jones-Chaney's] list." (Id.)

On June 5, 2019, Simpson sent an email to Chavez and informed him that, to complywith Jones-Chaney's demands, "the District would be required to spend funds, Chavez would have to approve the funds, and neither [Simpson] nor District IT would violate Federal purchasing laws (and Western Area Purchasing Guidelines)." (Id. at 7 ¶ 3; 10 ¶ 1.)

In response to this email, Simpson received a letter on June 6, 2019, placing him "off duty on an emergency basis" without pay, and he was escorted off the premises. (Id. at 8 ¶ 2, 10-12 ¶ 1.) That same day, Simpson sent an email to Chavez stating that he was "deprived of [his] right to a clear statement and an explicit statement of [his] rights" because he could not access the two Employee and Labor Relations Manual ("ELM") provisions cited as reasons for his placement on emergency off-duty status. (Id. at 10-12 ¶ 1.) Simpson stated that the email would "serve as [his] Notice of Appeal pursuant to all of [his] legal rights without any waiver" and requested that Chavez "provide [him] with information about how to contact an EEO Specialist." (Id., emphasis omitted.) Simpson stated that Chavez's actions were "clearly retaliatory" for working under a reasonable accommodation agreement. (Id.) Simpson also demanded his right to sick leave under the Family Medical Leave Act ("FMLA") and stated that he would begin taking FMLA sick leave the next day. (Id.) The Agency "has never placed a manager who reports directly to the District Manager in an emergency off duty status without pay in the history of the Arizona District" as organized in 1992. (Id. at 8 ¶ 4.)

Chavez "and the entire team of senior managers . . . ignored [Simpson's] request demanding . . . appeal rights and . . . request for information about how to file [an EEO] Complaint." (Id. at 8 ¶3.) Nevertheless, on June 13, 2019, Simpson "filed his EEO Complaint via the USPS online EEO system." (Id.) Ultimately, at some point, Post Office Operations Manager Tina Sweeney ("Sweeney") "rescinded the letter placing [Simpson] in an off duty status without pay." (Id. at 12 ¶ 2.)

Simpson complains that the Agency "never granted [him] his Due Process rights before constructively terminating [his] employment"; "never invited [him] to a Fact Finding"; "never returned [his] USPS identification/security entry badge, his agency smartphone, or his key to his office"; "never advised [him] about how to reach an EEOcounselor or about how to file an Agency EEO complaint"; and "forced [him] to submit a petition for retirement." (Id.) Simpson also alleges that he "continues to suffer greatly from the negligent and intentional infliction of emotional [d]istress" caused by the Agency and states that he "has suffered from great emotional distress including . . . anxiety, related body rashes, increased sleep disorder, and a requirement to seek psychiatric consultation and counseling." (Id. at 10 ¶ 6.)

II. Procedural History

A. Administrative Proceedings

On September 25, 2019, Simpson filed a formal discrimination complaint with the Agency's EEO. (Doc. 37-1 at 7-15.)⁴

On October 10, 2019, the Agency's EEO accepted Simpson's complaint for investigation. (Doc. 37-1 at 17.) The acceptance notice seemed to suggest that the EEO was only agreeing to investigate one specific claim—that Simpson had been subjected to a hostile work environment that resulted in his constructive discharge. (Id. ["Specific Issue(s): You alleged you had been subjected to a hostile work environment beginning in June 2018 resulting in your . . . constructive discharge . . . based on Race . . . , Color . . . , National Origin . . . , Age . . . , Retaliation . . . , Physical Disability . . . , Mental Disability . . . , and Genetic Information . . . ."].)

On February 6, 2020, the Agency's EEO issued a finding of no discrimination. (Doc. 1 at 12-46.)⁵ Notably, although the final decision addressed whether Simpson had been subjected to a hostile work environment resulting in his constructive discharge (id. at 37-45), it was not limited to that issue. Instead, it also addressed whether Simpson had separately asserted valid claims for disability discrimination (id. at 26-28), retaliation (id. at 28-30), disparate treatment (id. at 30-32), and age discrimination (id. at 32-36).

B. This Action

On March 3, 2020, Simpson filed the complaint. (Doc. 1.)

On June 1, 2020, the Agency filed an answer. (Doc. 23.)

On August 19, 2020, the Court held the scheduling conference. (Doc. 30.) During it, the Agency raised concerns about the clarity of the complaint. (Id.) In light of those concerns, Simpson requested, and the Court granted, leave to file the FAC. (Id.)

On September 21, 2020, Simpson filed the FAC. (Doc. 35.)

On October 5, 2020, the Agency filed the motion to dismiss. (Doc. 37.) The motion has since become fully briefed and neither side requests oral argument. (Docs. 39, 40.)

DISCUSSION

I. Legal Standards

A. Rule 12(b)(1)

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a defendant may move to dismiss an action for "lack of subject-matter jurisdiction." "[I]n reviewing a Rule 12(b)(1) motion to dismiss for lack of jurisdiction, we take the allegations in the plaintiff's complaint as...