Tyson v. Brennan

277 F.Supp.3d 28

Howard T. TYSON, Sr., Plaintiff,

v.Megan J. BRENNAN, Postmaster General, Defendant.

No. 16–cv–2087 (KBJ)

United States District Court, District of Columbia.

Signed September 30, 2017

Howard T. Tyson, Sr., Bowie, MD, pro se.

Johnny Hillary Walker, III, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

Pro se plaintiff Howard T. Tyson, Sr., a former employee of the United States Postal Service ("USPS" or "Postal Service"), has filed the instant employment discrimination action against Defendant Megan Brennan, the U.S. Postmaster General (in her official capacity).¹ The complaint appears to contend that the Postal Service discriminated against Tyson on the basis of his disability and also retaliated against him for engaging in a protected activity, when it issued a notice of proposed suspension to him after he surreptitiously used his mobile phone to record his supervisor. (Compl., ECF No. 1, at 1–2 ¶¶ 1–5.)² As relief, Tyson asks "that the agency be made to surrender[ ] the sum of $100,000[,]" in addition to punitive damages of $75,000. (Id. at 9.)

Before this Court at present is USPS's motion to dismiss Tyson's complaint. (See Def.'s Mot. to Dismiss ("Def.'s Mot."), ECF No. 12; Mem. in Supp. of Def.'s Mot. ("Def.'s Mem."), ECF No. 12–1). USPS argues that Tyson's discrimination claim—which the Postal Service interprets as having been brought under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 – 796l (see Def.'s Mem. at 5)—fails because Tyson has not established that any adverse action was taken against him, or that the Postal Service took any action against him with discriminatory or retaliatory intent (id. at 8–13). The Postal Service further maintains that Tyson has not pled facts showing that he engaged in a protected activity (which is a prerequisite for stating a valid retaliation claim) and that Tyson failed to exhaust his administrative remedies with respect to his retaliation claim. (Id. at 13–14.)

For the reasons explained below, this Court concludes that the allegations contained in Tyson's complaint are insufficient to state a plausible claim for disability discrimination in violation of the Rehabilitation Act, because he has not pled facts showing that he suffered an actionable adverse action, and therefore his discrimination claim must be dismissed. And the same fate awaits Tyson's claim for retaliation, because Tyson concedes that he has failed to exhaust administrative remedies with respect to his retaliation claim—which, in the Rehabilitation Act context, is a jurisdictional defect that cannot be overcome—the retaliation claim must be dismissed as well.

Accordingly, USPS's motion to dismiss Tyson's entire complaint will be GRANTED . A separate Order consistent with this Memorandum Opinion will follow.

I. BACKGROUND

A. Facts³

Tyson is a former employee of the United States Postal Service who was working in a limited duty status due to back surgery in the spring of 2015 when the events at issue in this case took place. (See Compl. at 2 ¶ 2.)⁴ Tyson alleges that his supervisor, Brian Kim, approached him in March 2015, and questioned him about overtime that Tyson purportedly had worked the prior evening; Kim apparently believed that USPS policy prohibited Tyson from working overtime while he was on limited duty status. (See id. at 3–4 ¶ 2.) Two hours later, after Tyson's union chair had confirmed to Kim that Tyson's work was "regulated[,]" Kim allegedly approached Tyson again, and "suggested that [Tyson] owe[d Kim] a dollar for doing overtime" (id. )—an amount that Tyson allegedly paid to Kim. (See id. ) Tyson interpreted Kim's comments as suggesting that Tyson would not be permitted to work overtime hours unless he paid Kim. (See Id. at 2 ¶ 3; Id. at 3–4 ¶ 2.)⁵

On April 2, 2015, Tyson allegedly observed "Kim's extended hand, rubbing his middle finger and thumb, which indicated money." (Id. at 4–5 ¶ 3.) The complaint contends that Kim "continued to request money" from Tyson, and that Tyson "felt threatened, and that [he] had to do something, or else this was going to get rough." (Id. ) Tyson's solution was to "turn [his] phone on recording" so that he could document Kim's conduct and report it to management. (Id. )

One month later, on May 3, 2015, Tyson allegedly approached General Manager Kelvin Williams regarding the April incident. (See Id. ) Williams asked to hear the recording but Tyson declined to share it, stating that he "need[ed] to pray about this[.]" (Id. ) Later, when Tyson was unable to contact Williams, he reached out to Manager Yolanda Sanders instead. (See Id. at 5 ¶ 4.) According to Tyson's complaint, "[a]fter Sanders heard the recording[,] she left the room and came back [and] instructed [Tyson] to not share [the recording] with any one [sic] else." (Id. ) Sanders then reported these events to Phyllis Busch (see Id. ), and on June 3, 2015, Burch issued the notice of proposed suspension at issue in this case, which provides:

On April 6, 2015, while assigned to the Flat Sequencing Sorter ... you were in a conversation with Supervisor Brian Kim. You recorded with your personal cellular telephone ... some of the conversation between you two without the permission of Supervisor Brian Kim....

Your conduct as outlined above is unacceptable and is in violation of the following postal rules and regulations including, but not limited to[,] the USPS Capital District (HR–11–SH–011) dated March 15, 2011 and the Employee and Labor Relations Manual (ELM) sections:

665.11 Loyalty ....

665.16 Behavior and Personal Habits ... [and]

667.2 Interception of Oral or Wire Communications by Postal Employees ....

(Notice of 7–Day Suspension (June 3, 2015) ("Suspension Notice"), Ex. 1 to Compl., ECF No. 1, at 10–11.) The Suspension Notice advised Tyson of his "right to file a grievance within 14 days of [his] receipt of th[e] notice." (Id. at 12.)

B. Procedural History

In August of 2015, Tyson filed an administrative complaint regarding the Suspension Notice. (See EEO Compl. of Discrimination in the Postal Serv. (Aug. 20, 2015) ("EEO Compl."), Ex. 2 to Def.'s Mem., ECF No. 12–3.) In his administrative complaint, Tyson referred to himself as "a whistleblower[,]" and in the section of the complaint form that asks what "Type of Discrimination You Are Alleging[,]" Tyson checked the box for "Disability" discrimination and specified "Physical." (Id. at 2.) Tyson also checked the box for "Retaliation[,]" but next to this designation he also handwrote "No[.]" (Id. )⁶ The Postal Service issued its final decision on Tyson's administrative complaint on January 22, 2016. (See Final Agency Decision, Agency Case No. 1K–206–0035–15 ("Final Agency Decision"), Ex. 4 to Def.'s Mem., ECF No. 12–5.) In that decision, the EEO analyst specifically remarked that "[d]uring the course of this investigation, [Tyson] withdrew his claim of retaliation[.]" (Id. at 2.) And she further concluded that "the evidence does not support a finding that [Tyson] was subjected to discrimination as alleged." (Id. at 12.)

Tyson filed the complaint in the instant action on October 20, 2016, alleging that the Postal Service discriminated and retaliated against him when it issued the Suspension Notice. (See generally Compl.) The Postal Service has moved to dismiss Tyson's complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that Tyson has failed to state a claim for either discrimination or retaliation in violation of the Retaliation Act, both because the allegations of the complaint are insufficient to give rise to any such claim (see Def.'s Mem. at 8–13), and because Tyson's retaliation claim is "unexhausted" (id. at 13).

USPS's motion is now ripe for the Court's review. (See Pl.'s Opp'n to Dismiss, ECF No. 20 ("Pl.'s Opp'n"); Reply in Supp. of Def.'s Mot. to Dismiss, ECF No. 21; Pl. in Opp'n to Dismiss, ECF No. 22).⁷

II. LEGAL STANDARDS

A. Motions To Dismiss Under Federal Rule Of Civil Procedure 12(b)(6)

A motion under Rule 12(b)(6) raises the question of whether the complaint contains "sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Harris , 791 F.3d at 68 (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). The Supreme Court has explained that the key to making this evaluation is determining whether the allegations are sufficient to permit a "reasonable inference that the defendant is liable for the misconduct alleged[.]" Matrixx Initiatives, Inc. v. Siracusano , 563 U.S. 27, 46, 131 S.Ct. 1309, 179 L.Ed.2d 398 (2011) (internal quotation marks and citation omitted). In this regard, the "court must accept as true all of the allegations contained in a complaint[,]" but this tenet "is inapplicable to legal conclusions." Harris , 791 F.3d at 68 (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). This means that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (alteration in original) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). In addition, Rule 12(b)(6)"places th[e] burden on the moving party" to show that the complaint is legally insufficient. Cohen v. Bd. of Trustees of the Univ. of the Dist. of Columbia , 819 F.3d 476, 481 (D.C. Cir. 2016) (citing 5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2015) ).

When analyzing a motion to dismiss brought under Rule 12(b)(6), the court must limit its analysis to the four corners of the complaint, as well as any "documents attached as exhibits or incorporated by reference, documents upon which the plaintiff's complaint necessarily relies, and facts of which the Court may take judicial notice." Vasser v. McDonald , 228 F.Supp.3d 1, 9 (D.D.C. 2016). Among the documents that are subject to judicial notice in the context of an employment discrimination case are the plaintiff's administrative complaint and the...