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McDowell v. Potter

January 29, 2008


The opinion of the court was delivered by: Nora Barry Fischer United States District Judge


I. Nature of Lawsuit

On November 2, 2007 Plaintiff Tracy McDowell ("Plaintiff") filed a Complaint against John E. Potter, Postmaster General, U.S. Postal Service ("Defendant"). Specifically, Plaintiff's complaint alleged violations of Title VII of the Civil Rights Act, 42 U.S.C. 2000(e)-16, et seq., for hostile work environment (Count I), sex discrimination (Count II), and retaliation (Count III). Defendant filed a partial motion to dismiss two of Plaintiff's hostile work environment claims for failure to state a claim upon which relief can be granted. In particular, Defendant seeks to dismiss Plaintiff's 2003 and 2004 hostile work claims asserting that she failed to exhaust her administrative remedies as to said claims, rendering them untimely. As to Plaintiff's 2003 and 2004 claims at issue in the this case, Plaintiff first filed a complaint with the EEO on July 29, 2004 alleging she was subjected to harassment and a hostile work environment. (Docket No. 16-2 at p. 9). As stated in the Postal Services final decision regarding Plaintiff's July 29, 2004 discrimination complaint, Plaintiff alleged the following:

"(1) on March 14, 2004, Supervisor Bartka*fn1 issued her a Letter warning for Failure to Follow Standard Operating Perocedures; (2) on June 17 2004, Supervisor Bartka denied her request for leave without pay; (3) on July 9, 2004, she was spoken to in a rude manner by Supervisor Bartka (4) on July 14, 2004, her request for leave for a religious observance was denied by Supervisor Bartka; (5) on July 25, 2004 Officer- in-Charge Klamet gave her an official discussion for leaving her work area during the first hour of work; (6) on July 29, 2004, Supervisors Ziros and Klamet subjected her to a pre-disciplinary interview; and subsequently, on August 19, 2004, she was issued a Letter of Warning, dated August 6, 2004, for Unacceptable Conduct/Conduct Unbecoming a Postal Employee, Failure to Follow Instructions, and Failure to Follow Standard Operating Procedures; (7) on July 29, 2004, Supervisor Ziros told her "we are going to get you one way or another, we're going to get you"; and (8) beginning on December 2003, through the end of July 2004, she was subjected to sexual harassment by Postmaster Perry". (Docket No. 16-2 at p. 9).

II. Standard

Under Bell Atlantic v. Twombly,---U.S.---, 127 S.Ct. 1955, 167 L.ED.2d 929, a complaint must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) if the Plaintiff fails to allege "enough facts to state a claim to relief that is plausible on its face." Id. "In determining the sufficiency of the complaint the court must accept all of plaintiffs' well-pled material allegations as true and draw all reasonable inferences therefrom in favor of plaintiffs." McCliment v. Easton Area School Dist., Civil Action No. 07-0472, 2007 WL 2319768, at *1 (E.D. Pa. Aug. 10, 2007) (citing Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997)). However, a court will not accept bald assertions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir.2002); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 n. 8 (3d Cir.1997). Nor must the court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp., 127 S.Ct. at 1965 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

While a court's review of a motion to dismiss is ordinarily limited to the contents of the complaint, including any attached exhibits, a court may consider some evidence beyond a complaint on a motion to dismiss "including public records (including court files, orders, records and letter of official actions or decision of government agencies and administrative bodies), documents essential to plaintiff's claim which are attached to defendant's motion, and items appearing in the record of the case." Core Const. & Remediation, Inc. v. Village of Spring Valley, NY, No. Civ.A. 06-CV-1346, 2007 WL 2844870, at *2 (E.D. Pa. Sept. 27, 2007) (citing Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1380 n.1 and n.2 (3d Cir. 1995)) (internal citation omitted). "In addition, factual allegations within documents described or identified in the complaint may be considered if the plaintiff's claims are based upon those documents. Woods v. Medlock, No. 06-1590, 2008 U.S. Dist. WL 123845, at *2 (W.D. Pa. Jan. 9, 2008). A district court may consider these documents, as well as indisputably authentic documents, without converting a motion to dismiss into a motion for summary judgment. Id.

In this case, Defendant has properly placed before the Court Exhibit A*fn2 because Plaintiff references the information contained in this exhibit in her complaint.*fn3

III. Analysis

A. Failure to Exhaust Administrative Remedies

It is well established that a plaintiff claiming employment discrimination must raise and exhaust any administrative remedies provided by the Civil Rights Act of 1964 before instituting an action in Federal District Court. Brown v. General Services Administration, 425 U.S. 823, 832 (1976). In order to file a timely claim, a formal complaint of discrimination must be filed with the agency that allegedly discriminated against the complainant within 15 days of receipt of notice of the right to do so. 29 C.F.R. § 1614.106(a). Further, a Title VII claimant must initiate an action in federal court within 90 days of the receipt of the notice of a final agency action or after 180 days from the date of filling the original action when no agency decision has been reached. 42 U.S.C. § 2000e-16(c) (2003). Failure to comply with these procedural requirements is grounds for dismissal of a tardy complaint and constitutes a failure to exhaust all required administrative remedies. See Donovan v. Henderson, PMG, 45 Fed. Appx. 178, 179 (3d Cir. 2002); Johnson v. Gober, Sect'y Dept. Vet. Affairs, 83 Fed. Appx. 455, 460 (3d Cir. 2003).

Defendant asserts that Plaintiff failed to timely exhaust her administrative remedies for her 2003 and 2004 alleged discriminatory incidents described in her July 29, 2004 complaint to the EEO.*fn4 Specifically, Defendant states that Plaintiff failed to file a formal complaint of discrimination within 15 days of receiving notice of her right to sue, as well as failing to file a civil action with this Court within 90 days of such notice. (Docket No. 16 at p. 6). Hence, Plaintiff's failure to comply with such procedural limitations renders her 2003 and 2004 allegations time-barred. Id.

This Court finds Defendant's argument to be persuasive. Plaintiff initiated an administrative complaint, Agency No. 4C-150-0096-04, as to her 2003 and 2004 claims, which was dismissed on December 7, 2004 by the EEO because she failed to file a formal complaint within 15 days of receiving her notice of the right to do so by the EEO counselor. (Docket No. 16-2 at p. 10). The Court finds the claims made in the administrative complaint parallel the 2003-2004 claims made in the instant suit. In addition, within the EEO dismissal, Plaintiff was advised that the dismissal was a final agency decision, and that she may file a civil action in an appropriate U.S. District Court within 90 calendar days of her receipt of this decision. Id. at p. 11. Plaintiff did not ...

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