United States District Court, District of Columbia
N. MCFADDEN UNITED STATES DISTRICT JUDGE.
Donald Brett, a former automotive mechanic for the United
States Postal Service, has sued the United States Postmaster
General, Megan Brennan, under the Rehabilitation Act of 1973
for employment discrimination on the basis of disability and
for retaliation on the basis of protected activity. Ms.
Brennan has moved for dismissal of the Amended Complaint or,
alternatively, for partial summary judgment. Mr. Brett has
moved for discovery. Because some of Mr. Brett's claims
are unexhausted but most of his remaining claims are
adequately pled, the Postmaster General's motion to
dismiss will be granted in part and dismissed in part. Given
the dismissal of Mr. Brett's unexhausted claims, Ms.
Brennan's alternative motion for summary judgment as to
these claims will be dismissed as moot. Mr. Brett's
motion for discovery will be dismissed as moot to the extent
that it responds to the Postmaster General's alternative
motion for summary judgment, without prejudice to the filing
of discovery motions related to Mr. Brett's remaining
to the Amended Complaint, Mr. Brett began working for the
United States Postal Service (USPS) in 1977 and did not
exhibit performance deficits, take extended leave for
work-related injuries, or file workers' compensation
claims until November 2008, when he ruptured his bicep in a
workplace accident and was placed on medical disability by
his doctor. Compl. ¶¶ 6, 8, 10. Mr. Brett then
initiated a workers' compensation claim by submitting
forms to Al Trent, who became his second-line supervisor that
same month. Id. at ¶¶ 9-10. When Mr. Brett
returned to work on light-duty status on or about May 27,
2009, he learned that his worker's compensation claim had
never been processed. Id. at ¶¶ 11-12.
Although he thought he had been on worker's compensation
leave due to his injury, he was informed that he had actually
been placed on sick leave and that his time away from work
had exhausted his sick leave. Id. at ¶ 12. Mr.
Brett repeatedly sought workers' compensation leave, but
Mr. Trent refused his requests. Id. at ¶ 13.
Brett needed to obtain leave because he was scheduled for
surgical procedures for both of his legs in June and
September 2009. Id. at ¶ 16. Mr. Brett
attempted to buy back his sick leave, but was
"impeded" by the fact that Monnie Preston, the
benefits claims specialist whom he contacted, refused to take
his calls and timely process his paperwork. Id. at
¶ 14-15. In order to communicate the urgency of his need
for the paperwork to be processed, Mr. Brett provided medical
documentation to Ms. Preston, to Mr. Trent, and to Kevin
West, who was a supervisor-in-training, or 204B supervisor,
under Mr. Trent's supervision and direction. Id.
at ¶¶ 17-19. Mr. Brett also met with Mr. Trent and
wrote a letter to Mr. Trent and Ms. Preston, copying a
workers' compensation claims examiner, complaining that
Mr. Trent and Ms. Preston were impeding his efforts by lying
to him, mishandling his claim, and needlessly complicating
the process. Id. at ¶¶ 20-21. Mr. Brett
was unable to buy back his sick leave. Id. at ¶
Brett was also unsuccessful in his attempts to have future
sick leave advanced. On June 18 and June 24, 2009, Mr. Brett
requested that his sick leave be advanced to allow him to
undergo surgery. Id. His first surgery took place on
June 30, 2009. Id. at ¶ 23. One week after the
surgery, Mr. Trent denied Mr. Brett's request for advance
sick leave. Id. at ¶ 24. Mr. Brett then
submitted an additional request for advance sick leave due to
complications that required a more extended recovery.
Id. at ¶ 26. Mr. Trent denied this request as
well. Id. at ¶ 27.
he recovered from his first surgery and returned to work, Mr.
Brett accidentally hit his head as he entered a postal truck.
Id. at ¶ 28. Although he only suffered a
superficial injury, he reported the accident and went to his
doctor because he was on blood-thinners due to his recent
surgery. Id. at ¶ 29. Mr. Trent and Jordan
Hart, a 204B supervisor acting at Mr. Trent's direction,
initiated a Pre-Disciplinary Investigation (PDI) into Mr.
Brett's accident as an "unsafe work practice."
Id. at ¶¶ 35, 43. The PDI led Mr. Trent
and Mr. Hart to issue Mr. Brett a Notice of Proposed 14-Day
Suspension on July 30, 2009. Id. at ¶ 40.
Although this would have been the first disciplinary action
against Mr. Brett in his entire career in the USPS, it was
the most severe punishment possible short of
termination. Id. at ¶¶ 41-42. Mr.
Hart told Mr. Brett he did not want to issue the suspension
and that the decision had been Mr. Trent's. Id.
at ¶ 61.
grieved the proposed suspension with his union and, on August
11, 2009, initiated EEO counseling based not only on the
proposed suspension but also on the mishandling of his
workers' compensation claim, the obstruction of his
efforts to buy back his sick leave, and the denial of his
requests for advanced sick leave. Id. at
¶¶ 44, 46. Mr. Brett's managers were advised of
his EEO complaint on November 9, 2009, and the EEO charge
became formal on November 24, 2009. Id. at
¶¶ 48-49. Mr. Brett amended his EEO administrative
complaint four times. Id. at ¶ 50.
months immediately after Mr. Brett's managers became
aware of his EEO complaint, Mr. Brett continued to experience
difficulties with his health and with his managers. On
January 27, 2010, Mr. Brett developed severe flu symptoms
and, because he was in negative leave status, submitted a
request for advanced sick leave. Id. at ¶
51-52. Mr. Trent denied the leave request and designated Mr.
Brett's status as absent without leave, or AWOL.
Id. at ¶ 54-55. On January 28, 2010, Mr. Brett
brought a doctor's note to his then-204B supervisor, John
Bowser, but Mr. Bowser did not inform him that he was on AWOL
status. Id. at ¶ 56-57. On February 1, 2010,
Mr. Brett returned to work and found that a PDI had been
initiated into his AWOL status. Id. at ¶ 59. On
February 5, 2010, Mr. Brett received a Notice of Proposed
14-Day Suspension from Mr. Trent and Mr. Bowser based on his
having been AWOL and based on the prior suspension.
Id. at ¶ 60. Mr. Bowser told Mr. Brett that he
did not want to give him the suspension and that the decision
had been Mr. Trent's. Id. at ¶ 61. Mr.
Trent later denied Mr. Brett's request to re-designate
the time that he was deemed AWOL so that it would be counted
toward his annual leave. Id. at ¶ 75. On
February 8, 2010, Mr. Trent initiated yet another PDI, this
time because Mr. Brett used a snow-blower when Mr. Trent
thought he was still on light-duty status because of his
bicep injury. Id. at ¶ 65.
February 19, 2010, Mr. Trent lodged a complaint against Mr.
Brett with the Postal Inspection Service based on the fact
that Mr. Brett had submitted a workers' compensation
claim earlier that month after slipping on ice and breaking
four ribs at work. Id. at ¶¶ 66-67, 69.
Mr. Trent falsely alleged that this was Mr. Brett's tenth
workers' compensation claim. Id. at ¶ 69.
As a result, Mr. Brett became the target of a criminal
investigation and was put under surveillance, apparently to
determine whether he was in fact healthy and had submitted a
fraudulent workers' compensation claim. Id. at
¶¶ 74, 78. The agency determined that Mr.
Brett's activities, including "sitting at a
Starbucks, " were inconsistent with his compensation
claim. Id. at ¶ 78. Because of the Postal
Inspection Service's findings of purported misconduct,
Mr. Brett was placed on off-duty status in May and June of
2010. Id. at ¶ 77. On or about June 15, 2010,
Mr. Trent proposed that Mr. Brett be terminated based on the
criminal investigation, and the USPS sustained his proposal
on September 3, 2010 based on the criminal investigation, Mr.
Brett's prior AWOL status, and Mr. Brett's two
suspensions. Id. at ¶¶ 78, 90. Believing
that he had no effective recourse, Mr. Brett submitted his
resignation preemptively. Id. at ¶ 81.
Brett alleges that similarly situated employees without
disabilities and without EEO complaints were not disciplined,
or at least not disciplined like he was, for "similar
occurrences, job-related accidents and leave requests."
Id. at ¶ 63. He also alleges that Mr. Trent has
a "record of lodging false and vengeful complaints with
the office of the Postal Inspector to enact revenge and
punish employees for opposing his employment practices."
Id. at ¶ 82. At the time that Mr. Trent denied
Mr. Brett's final sick leave request and designated Mr.
Brett as being AWOL, Mr. Trent was also working on an
affidavit in response to Mr. Brett's EEO complaint.
Id. at ¶ 58. Mr. Trent submitted a supplemental
affidavit to the EEO investigator nine days after denying Mr.
Brett's request to count the time that he was designated
AWOL against his annual leave. Id. at ¶¶
75-76. One day after Mr. Trent submitted the supplemental
affidavit, Mr. Brett agreed to have his EEO complaint
submitted for Alternative Dispute Resolution, but Mr. Trent
refused to schedule a settlement conference. Id. at
Brett's administrative complaints were ultimately
dismissed, and the EEOC issued a Final Agency Decision
affirming the dismissal on July 2, 2015. Id. at
¶ 84. On October 2, 2015, Mr. Brett brought this action
in federal court against his employer, the Postmaster
General. His initial Complaint alleged discrimination and
retaliation based on disability, age, and race under Title
VII, the Rehabilitation Act, and the Age Discrimination in
Employment Act. Judge Ketanji Brown Jackson determined that
it was "nearly impossible to render a determination on
the merits" because of the lack of clarity regarding the
claims at issue and the legal standards governing the
Postmaster General's response to the Complaint. Op. at 3.
Accordingly, the Court directed Mr. Brett to file an Amended
Complaint, which Mr. Brett did on March 13, 2017. As stated
above, the Postmaster General has moved for dismissal of the
Amended Complaint or, alternatively, for partial summary
judgment, and Mr. Brett has moved for discovery. These
motions are now before me.
courts are courts of limited jurisdiction" and therefore
"possess only that power authorized by Constitution and
statute." Kokkonen v. Guardian Life Ins. Co. of
America, 511 U.S. 375, 377 (1994). Accordingly,
jurisdiction is a prerequisite that must be satisfied before
proceeding to the' merits, and a federal court must
dismiss any action over which it determines that it lacks
jurisdiction. Moms Against Mercury v. FDA, 483 F.3d
824, 826 (D.C. Cir. 2007); see also Fed. R. Civ. P.
12(h)(3). On a motion to dismiss for lack of jurisdiction
under Federal Rule of Civil Procedure 12(b)(1), the plaintiff
bears the burden of establishing jurisdiction. Georgiades
v. Martin-Trigona, 729 F.2d 831, 833 n.4 (D.C. Cir.
1984). A plaintiff may rely on facts outside the pleadings to
satisfy this burden, as "the court may consider the
complaint supplemented by undisputed facts evidenced in the
record, or the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts."
Herbert v. Nat'l Acad. of Scis., 974 F.2d 192,
197 (D.C. Cir. 1992).
addition to challenging jurisdiction, a defendant may move to
dismiss a complaint on the ground that it "fail[s] to
state a claim upon which relief can be granted."
Fed.R.Civ.P. 12(b)(6). To withstand such a motion, a
complaint must contain sufficient factual allegations that,
if true, "state a claim to relief that is plausible on
its face." Bell Atl Corp. v. Twombly, 550 U.S.
544, 570 (2007). In evaluating a motion to dismiss pursuant
to Rule 12(b)(6), the Court must construe the complaint in
the light most favorable to the plaintiff and accept as true
all reasonable factual inferences drawn from .well-pled
factual allegations. See In re United Mine Workers of Am.
Emp. Benefit Plans Litig.,854 F.Supp. 914, 915 (D.D.C.
1994). The Court must limit its consideration to "the
facts alleged in the complaint, any documents either attached
to or incorporated in the complaint and matters of which [the
court] may take judicial notice." Hurd v. District
of Columbia Gov't,864 F.3d 671, 678 (D.C. Cir.
2017) (quoting EEOC v. St. Francis Xavier Parochial
Sch,117 F.3d 621, 624 (D.C. Cir. 1997)). Considering
other facts would convert the motion to ...