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Brett v. Brennan

United States District Court, District of Columbia

March 19, 2018

DONALD BRETT, Plaintiff,
MEGAN J. BRENNAN, in her official capacity as United States Postmaster General, Defendant.



         Plaintiff 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 claims.

         I. BACKGROUND

         According 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.[1] 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.

         Mr. 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 ¶ 22.[2]

         Mr. 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.

         After 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.[3] 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.

         Mr..Brett 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.

         In the 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.

         On 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.

         Mr. 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 ¶ 72.

         Mr. 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.


         "Federal 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).

         In 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 ...

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