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Perez v. Brennan

United States District Court, S.D. Texas, Brownsville Division

November 17, 2017

Rodolfo Perez, Plaintiff,
Megan Brennan, Postmaster General of the United States, U.S. Postal Services, Defendant.


          Andrew S. Hanen United States District Judge

         Before the Court are Defendant's Motion to Dismiss [Doc. No. 9], Plaintiff's Response to Defendant's Motion to Dismiss [Doc. No. 15], and Defendant's Reply to Plaintiff's Response to Defendant's Motion to Dismiss [Doc. No. 18]. For the following reasons, the Court grants the Defendant's motion in part and denies it in part.

         I. Background

         Plaintiff Rodolfo Perez (“Plaintiff”) is a former employee of the United States Postal Service. [Doc. No. 1, at 2]. He has brought suit against the Defendant, Megan Brennan, Postmaster General of the United States (“Defendant”). [Id.]. Plaintiff began working for the Postal Service in 1982, and was last employed as a City Letter Carrier. [Id.]. According to the pleadings, Plaintiff is Hispanic, of Mexican-American heritage. [Id.].

         Plaintiff alleges that, when Jeffery Jenkins began working as the Postmaster of the Brownsville post office in the fall of 2007, he created a hostile work environment. [Id.]. Plaintiff claims that in September 2012 he received a subpoena and gave testimony in another case also apparently concerning racial animus at the post office, where he says he testified about Postmaster Jenkins's ongoing race discrimination and retaliation. [Id. at 3]. He also says he was “currently engaged in his own EEO complaint of discrimination and retaliation” at that time. [Id.].

         On December 26, 2012, the day after Christmas, Plaintiff claims that his first-level supervisor, Jose Delgado, accused him of coming to work drunk and ordered him to go home. [Doc. No. 9-5, at 3]. Plaintiff says he was not drunk or impaired and complains that management “allowed [him] to drive himself home, ” but apparently does not dispute that he smelled of alcohol or that he had consumed some amount of alcohol. [Doc. No. 1, at 3]. On December 28, 2012, Plaintiff's superiors conducted a Pre-Disciplinary Interview with him, and on January 24, 2013, he was issued a seven-day suspension for the alleged on-duty impairment. [Id. at 4].

         Plaintiff also alleges that he was issued a letter of warning on January 22, 2013, which admonished him for unacceptable attendance. [Id. at 3]. Plaintiff claims he had taken off “less than three days due to illness, ” and that he provided medical documentation for his absence. [Id.]. The letter rebuked Plaintiff for taking five days of unscheduled sick leave between October 12, 2012, and January 8, 2013, and approximately 6 and ½ hours of unscheduled leave when he was sent home the day after Christmas. [Doc. No. 9-5, at 4].

         Plaintiff alleges that Postmaster Jenkins called the Hispanic and Mexican-American employees of the post office “lazy, ” although he does not say when this occurred. [Doc. No. 1, at 3]. Plaintiff claims that he was constructively discharged, effective February 1, 2013. [Id. at 4].

         On Mach 8, 2013, Plaintiff filed an equal employment opportunity (“EEO”) complaint with the Postal Service. [Doc. No. 9-6, at 1]. He raised the following issues: 1) discrimination based on race and national origin, 2) retaliation, and 3) harassment. [Id.]. On April 1, 2013, he received a letter (“the acceptance letter”) from the Postal Service, notifying him which of the issues he raised had been accepted for investigation. [Id. at 5]. The letter informed him that the Postal Service would investigate his discrimination and retaliation claims, but the harassment issue he raised had not been accepted. [Id.]. The letter told him that if he disagreed with the decision regarding the harassment claim, he could respond in writing within seven days. [Id.]. Plaintiff did not respond. [Id.].

         After the investigation resulted in the denial of his two accepted claims, the Postal Service notified Plaintiff that he could request a hearing before an Administrative Law Judge (“ALJ”) from the Equal Employment Opportunity Commission (“the EEOC”), which he did. [Doc. No. 9-6, at 2]. On April 7, 2016, the ALJ issued a summary judgment decision (“the ALJ decision”) against Plaintiff, and also specifically noted that Plaintiff's harassment claim was not before the ALJ for adjudication. [Doc. No. 9-5, at 1, 10].

         He appealed that decision, and on November 17, 2016, the EEOC affirmed the ALJ (“the EEOC appeal decision”). [Doc. No. 9-6, at 1]. That decision, too, informed him that his claims had been denied, except for his harassment claim, which was not before the Commission either. [Id. at 5].

         On February 21, 2017, Plaintiff filed this lawsuit. [Doc. No. 1]. In his complaint, Plaintiff asserts three claims, each in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”): (1) he claims that the Defendant discriminated against him because of his race and national origin, (2) he claims that the Defendant retaliated against him because of testimony he gave in another discrimination case and because of his own EEO complaints, and (3) he claims that the Defendant fostered a hostile work environment. [Doc. No. 1, at 4-6]. Defendant asks this Court to dismiss Plaintiff's claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

         II. Legal Standard

         A. 12(b)(6) Standard

         Under Federal Rule of Civil Procedure 12(b)(6), a court should dismiss a complaint that “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A complaint “‘does not need detailed factual allegations, ' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.'” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a 12(b)(6) motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombley, 550 U.S. at 570). The plausibility standard “is not akin to a probability requirement, ” though it does require more than simply a “sheer possibility” that a defendant has acted unlawfully. Id. at 678.

         B. 12(b)(1) Standard

         Rule 12(b)(1) requires a court to dismiss claims for which the court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). “Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). A court must accept all factual allegations in the plaintiff's complaint as true when ruling on the motion to dismiss for lack of subject matter jurisdiction. Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001).

         C. Documents ...

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