The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
Angela McAlister alleges that she was fired from her job at the U.S. Postal Service, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, and the United States Constitution, after she yelled at her supervisor and shoved him backwards during an altercation over a leave slip. Because Ms. McAlister's claims under Title VII were not timely filed, they will be dismissed. Further, Ms. McAlister fails to state a claim for any Constitutional violation. As the Second Amended Complaint fails to state a claim on which relief can be granted, defendants' motion to dismiss will be granted.
Angela McAlister began employment at the Postal Service in 1980. In 2005, she was a mail processing clerk at the Curseen-Morris facility on Brentwood Road in Washington, D.C. On September 1, 2005, Ms. McAlister was working a shift that ran from 5:00 am to 1:30 pm. Compl. ¶ 5.*fn1 She became ill and asked to go to the medical unit but then learned that the medical unit was closed. Ms. McAlister submitted a leave slip to her supervisor, Defendant Robert Fauntleroy, informing him that the medical unit was closed. Id. Mr. Fauntleroy said the medical unit was open, took the leave slip from Ms. McAlister, and started to scratch out the reason given by Ms. McAlister for requesting leave. According to Ms. McAlister:
Ms. McAlister took the leave slip back from Fauntleroy. Fauntleroy responded by grabbing the leave slip out of Ms. McAlister's hands and turning his back to her with the leave slip in his hands. Ms. McAlister attempted to retrieve the leave slip from Fauntleroy while yelling at Fauntleroy that he could not snatch anything out of her hand. Ms. McAlister made two attempts to retrieve her leave slip. Fauntleroy later crushed the leave slip into a ball in his hands.
Compl. ¶ 5. The defendants' version of the events includes a few additional details:
Mr. Fauntleroy stated when he informed her the leave slip was not accurate she grabbed the leave slip out of Mr. Fauntleroy's hand. Mr. Fauntleroy then grabbed the leave slip back from Ms. McAlister. At this time, Ms. McAlister then pushed Mr. Fauntleroy in his upper-body and proceeded to hit him multiple times in the shoulder with enough force knocking him backward. Ms. McAlister continued pushing and hitting Mr. Fauntleroy and swung at him in a slapping motion . . . . While Ms. McAlister was hitting and pushing Mr. Fauntleroy she was yelling at him that he cannot take anything out of her hand. Ms. McAlister's husband, Herman McAlister, who is also a postal employee, was present and was able to restrain his wife from continuing the assault on Mr. Fauntleroy. Ms. McAlister was escorted out of the building by her husband before the postal police arrived on the scene.
Defs.' Mem. in Support of Mot. to Dismiss, or in the Alternative, for Summ. J. [Dkt. # 24] ("Defs.' Mem."), Ex. A (9/14/2005 Investigative Memorandum) at 1. A witness concurred with this description of events. Id. at 1--2. Mr. McAlister "admitted he saw his wife put her hand on Mr. Fauntelroy's back." Id. at 3. Ms. McAlister does not dispute the defendants' version of events, but she blames Mr. Fauntleroy for starting the ruckus, because he allegedly snatched the leave slip from her hands.
Ms. McAlister was placed on emergency off-duty status without pay on September 1, 2005.*fn2 Compl. ¶ 5. The Postal Service scheduled Ms. McAlister for a pre-disciplinary interview for 12:00 am (midnight) on September 26, 2005. Id.; Defs.' Mem., Ex. F (Notice of Pre-Disciplinary Interview). Ms. McAlister called at 11:00 pm to inquire about the interview, but no one answered the phone. Compl. ¶ 5. Ms. McAlister did not appear for the interview. Ms. McAlister was issued a notice of removal on October 17, 2005. Id.; Defs.' Mem., Ex. G (Notice of Removal). No action was taken against Mr. Fauntleroy for grabbing the leave slip from Ms. McAlister. Compl. ¶ 5.
Ms. McAlister further alleges that "[a]s [a] result of Ms. McAlister's prior [Equal Employment Opportunity ("EEO")] complaints against the USPS, Defendants Potter and Fauntleroy pursued criminal charges against Ms. McAlister." Compl. ¶ 7.*fn3 This allegedly entailed sending two Postal Inspectors to her home, who screamed at her through her front door, broke her storm door, and left threatening messages on her answering service. Id. This caused Ms. McAlister to call the Prince George's County Police Department. Later, when Ms. McAlister went to the District of Columbia Metropolitan Police Department "to find out about her complaint," the Postal Inspectors "arrested, handcuffed and dropped [her] on the sidewalk." Id. Ms. McAlister was later taken to a hospital and handcuffed to a wheelchair. Id. She was charged with assault on Mr. Fauntleroy and spent twenty-one hours in a jail in the District of Columbia. Id.
Ms. McAlister timely filed a formal complaint of discrimination based on sex, age, disability and retaliation with the EEO office at the Postal Service.*fn4 In the EEO process, Ms. McAlister sought to have the emergency off-duty, non-pay status and the removal notice rescinded and removed from her personnel records; to receive make-whole relief for all monies and benefits; and to receive reimbursement for medical expenses and repairs to her home. EEO Investigation Report. Following an investigation, Ms. McAlister requested a hearing before an EEOC Administrative Judge. Defs.' Mem., Ex. J ("Final Agency Decision") at 1. The parties submitted briefs and on September 12, 2006, the Administrative Judge "issued a decision without a hearing, finding that the agency did not discriminate" against Ms. McAlister. Id. The EEO office at the Postal Service reviewed the decision and issued its Notice of Final Action on September 25, 2006, implementing the Administrative Judge's decision. The Postal Service's final decision was appealed for de novo review by the Equal Employment Opportunity Commission ("EEOC"), which issued its final determination on August 28, 2008, sustaining the agency's finding of no discrimination. Id. For present purposes, it is notable that the EEOC decision also advised Ms. McAlister that, "[y]ou have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision." Id. at 2 (emphasis in original).
On January 4, 2007, Ms. McAlister filed a complaint with the United States District Court for the District of Columbia similar to the instant Complaint. Ms. McAlister's initial case was dismissed without prejudice on August 7, 2008, for failure to exhaust administrative remedies because she filed it before the expiration of 180 days after her October 23, 2006 appeal of the Postal Service's final agency decision to the Office of Federal Programs at the EEOC. See McAlister v. Potter, 570 F. Supp. 2d 24 (D.D.C. 2008). Ms. McAlister filed the immediate Complaint on December 3, 2008, ninety-seven (97) days after the EEOC issued its August 28, 2008 decision on her appeal.
In the instant matter, Ms. McAlister claims violations of Title VII and her constitutional rights. Count I of the Complaint alleges that the Postal Service discriminated against Ms. McAlister based on her gender and retaliated against her because of her prior protected activity. Compl. ¶ 13. Ms. McAlister claims she was discriminated against on the basis of her sex when she was issued a notice of removal on October 17, 2005, and subsequently terminated because, in a prior incident where a male supervisor allegedly struck a male letter carrier in the chest, both were only sent home for one day with pay. Id. ¶ 8. She also points to the fact that no action was taken against Mr. Fauntleroy for snatching the leave slip from her, whereas she was terminated for her behavior. Id. ¶ 5. Count II alleges that the defendants violated her Fourth Amendment rights to be free from unreasonable searches and seizures when the Postal Inspectors visited her home, yelled at her through the door, broke her storm door, left threatening messages on her answering service, and then later arrested her and dropped her on the sidewalk. Id. ¶ 16.*fn5
Count III alleges a violation of the due process clause of the Fifth Amendment because Ms. McAlister was removed from her job in a summary fashion "without procedural and substantive process due her." Id. ¶ 20. The conduct of the Postal Inspectors is also alleged under Count III to violate Ms. McAlister's due process rights. Count IV alleges that Messrs. Potter and Fauntleroy "deprived McAlister of due process and a name-clearing hearing to which she was entitled under the Due Process Clause" when her pre-disciplinary hearing was scheduled for midnight and she was terminated without a hearing. Id. ¶ 23. Count V advances a claim under 42 U.S.C. § 1983 against Messrs. Potter and Fauntleroy for alleged violations of Ms. McAlister's constitutional rights, "including her ...