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Tyson v. Brennan

United States District Court, District of Columbia

September 30, 2017

HOWARD T. TYSON, SR., Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster General, 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. Facts[3]

         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. ...


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