United States District Court, D. Columbia.
ERIC L. BULLOCK, Plaintiff,
PATRICK R. DONOHOE, Defendant
ERIC L. BULLOCK, Plaintiff, Pro se, Baltimore, MD.
For PATRICK R. DONOHOE, Postmaster General, United States Postal Service, Defendant: William Mark Nebeker, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Civil Division, Washington, DC.
MEMORANDUM OPINION AND ORDER
CHRISTOPHER R. COOPER, United States District Judge.
Plaintiff Erik Bullock is a former letter carrier in the District of Columbia who was fired in May 2010 on the grounds that he lied about his absence from work while he was incarcerated. Bullock alleges, however, that he was " targeted for removal by [his] supervisors" after he broke his left ankle in June 2000 because he " could no longer deliver [his] route in the timely manner that was expected of [him]." Compl. at 3. Proceeding pro se, Bullock sues the Postmaster General of the United States Postal Service for discrimination and retaliation in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., which prohibits federal employers from discriminating on the basis of disability and retaliating against individuals for exercising rights under the Act.
Defendant moves to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the sole basis that the complaint is untimely filed. Def.'s Mot. to Dismiss [Dkt. # 9]. For the following reasons, the motion will be granted in part and denied in part.
While employed by the Postal Service, Bullock was incarcerated from October 23, 2009 to December 14, 2009. He alleges that he informed his supervisor of his status during a " very short" telephone call from prison in November 2009. Compl. at 3. Plaintiff was fired by notice dated May 10, 2010, for " unacceptable conduct and unacceptable attendance/AWOL," based on what were found to be false reasons Bullock had provided for his absence and Bullock's submission of fraudulent medical documentation. Compl. Attach., ECF pp. 7-11 (EEOC Decision at 1-3); Def.'s Mot., Ex. 2 (NALC/USPS Step B Decision).
Bullock's union, the National Association of Letter Carriers (NALC), pursued a grievance and Bullock filed an EEO charge. NALC resolved the grievance on July 12, 2010, at Step B of the dispute resolution process upon " concur[ring] that Management did have Just Cause to remove [plaintiff] from the USPS." Step. B Dec. at 3. The EEOC rendered its final adverse decision on May 9, 2013, and informed plaintiff about his right to file a civil lawsuit within 90 days of his receipt of the decision. See EEOC Dec. at 4.
The Clerk of Court first received Bullock's complaint and application to proceed in forma pauperis on August 29, 2013, see Compl. Attach, ECF pp. 199, 200 (Clerk's stamps), but scratched out that date apparently because the submission was defective. In a form Order dated September 9, 2013, plaintiff was informed that his papers were being returned as non-compliant with the Federal Rules of Civil Procedure and the Local Rules of this Court. He was further told: " If you wish to file a new case please review the enclosed instructions." Pl.'s Response to Mot. to Dismiss [Dkt. # 11] at ECF p. 23. This action was formally filed on October 8, 2013, upon the Court's granting of plaintiff's in forma pauperis application dated September 19, 2013. See Dkt. # 2.
II. LEGAL STANDARD
In deciding the defendant's motion to dismiss under Rule 12(b)(6), the Court may consider the documents attached to the complaint and those incorporated by reference without triggering the conversion requirement of Fed.R.Civ.P. 12(d). Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059, 378 U.S.App.D.C. 355 (D.C. Cir. 2007). The Court may also consider " documents upon which the plaintiff's complaint necessarily relies even if the document is produced not by the plaintiff in the complaint ...