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March 30, 2010



I. Introduction

Plaintiff, Marilyn Smith, filed this action pro se, essentially alleging racial, age and disability-related discrimination arising from her probationary employment with the Defense Logistics Agency (DLA) at the Defense Distribution Depot Susquehanna, Pennsylvania (otherwise known as "Defense Depot Susquehanna, Pennsylvania" or "DDSP"). DDSP is a facility under the Defense Distribution Center (DDC), a part of DLA, in turn a part of the Department of Defense (DOD). Plaintiff has named as defendants "DOD DLA DDSP" as a single entity; Robert M. Gates, the Secretary of Defense; JoAnn Schopman, the point of contact (POC) for employment matters in the DDC; Kenneth McDowell, a supervisory distribution facilities specialist; Carrie Lemelle, a co-worker of Plaintiff; Bryan Ward, a DDSP supervisor; Andrew Simpson, another DDSP supervisor; Claire Stealy; Greg Palese, a DDSP supervisor; Tracy Joynt; Debra Johnson; Cathy Sheely; and Scott Stada.*fn1

We granted Plaintiff in forma pauperis status. On June 16, 2009, upon an initial screening of her several complaints and her motion to file another amended complaint, we dismissed some claims and allowed the following ones to proceed: (1) a racial discrimination claim under Title VII, but only against Secretary Gates; (2) a disability claim based upon jaundice, under the Rehabilitation Act (RA), 29 U.S.C. § 791, but against only defendant Gates; (3) an age discrimination claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a, but against only defendant Gates; (4) a First Amendment retaliation claim for discharging Plaintiff after she filed a grievance against Carrie Lemelle, her co-worker, but only against the individual defendants Ward, Simpson, Stada, Palese, Johnson and Schopman; (5) a retaliation claim under the Pennsylvania Constitution, based on the same allegations supporting the First Amendment claim, also against only defendants Ward, Simpson, Stada, Palese, Johnson and Schopman; and (6) a claim under Pennsylvania's statutory prohibition on discrimination on the basis of race, age and disability against all defendants except Claire Stealy. As to Stealy, we dismissed her from the action as no allegations had been made against her.

We are considering the defendants' motion to dismiss and their motion for summary judgment. In both motions, the defendants contend that the only claims Plaintiff is entitled to adjudicate on the merits in this case are federal claims of employment discrimination based on national origin and EEO retaliation in the refusal to rehire her in March 2008 and in her May 2008 removal from the employment certification list. On these claims, the defendants argue in their summary-judgment motion there is no evidence that Plaintiff was discriminated against on the basis of national origin or because she had exercised her EEO rights. In their motion to dismiss, the defendants argue that the federal constitutional claim and the state constitutional and statutory-discrimination claims are barred because a federal employee challenging workplace discrimination is limited to her rights under federal employment-discrimination statutes and the Civil Service Reform Act. Additionally, Plaintiff cannot pursue her federal employment-discrimination claims (other than, as noted above, her claims for the March 2008 refusal to hire and the May 2008 removal from the employment certification list) because she failed to properly exhaust her administrative remedies on those claims.

Upon review of the parties's positions, we agree with the defendants, but differ slightly in our reasoning for granting summary judgment.

II. Standards of Review

On a motion to dismiss, "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., F.3d,, 2010 WL 715562, at *2 (3d Cir. 2010)(quoted case omitted). "[T]he general rule [is] that a motion to dismiss for failure to state a claim is to be evaluated only on the contents of the pleadings." Id. at, 2010 WL 715562, at *7. However, there are exceptions to that rule, and one is for matters of public record. On a motion to dismiss, we can consider matters of public record, even though they are outside the pleadings. Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006). In that regard, agency documents issued in connection with administrative proceedings dealing with employment-discrimination claims qualify as public records.

See EEOC v. Bimbo Bakeries USA, Inc., No. 09-1872, 2010 WL 598641, at *1 n.2 (M.D. Pa. Feb. 27, 2010); Mandel v. M&Q Packaging Corp., No. 09-42, 2009 WL 2579308, at *3 (M.D. Pa. Aug. 18, 2009); Faibisch v. Univ. of Minnesota, 304 F.3d 797, 802-03 (8th Cir. 2002)(in deciding a motion for judgment on the pleadings, observing that "district courts regularly look upon EEOC charges as matters of public record"). We will thus look to the agency filings made in connection with Plaintiff's discrimination claims in resolving the defendants' motion to dismiss.

As for summary judgment, we should grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2).

III. Background

The defendants' summary-judgment record and a few of Plaintiff's submissions establish the following background, although we base it mostly on the defendants' evidence, which Plaintiff has not rebutted.

Plaintiff was a probationary employee for DLA as a Wage Grade 5 Materials Handler when she was terminated, effective May 5, 2007. The termination letter, dated April 30, 2007, stated the reason as "quarreling or inciting to quarrel" with a co-worker, defendant Carrie Lemelle. It also informed her that if she believed sex, race, age, disability or national-origin discrimination was the reason for her discharge, she could file a discrimination complaint and that the complaint had to be "communicated" to the EEO Human Services Officer within forty-five days of her receipt of the termination letter. (Doc. 28, CM/ECF pp. 26-27). Before her discharge, Plaintiff had written a letter, dated January 16, 2007, complaining to defendant Simpson about Lemelle's treatment of her in the workplace. (Doc. 34, Pl.'s Opp'n Br. to Summ. J. Mot., ¶¶ 2 and 3 and Ex. 1).

According to a DLA memorandum on Plaintiff's "EEO Complaint History," dated July 9, 2008, Plaintiff contacted the DDSP EEO counselor on May 7, 2007, about her discharge, raising the issue of sex, race and color. According to this memorandum, an EEO pre-complaint mediation was held on August 8, 2007. (Doc. 28, CM/ECF p. 95). On the same day, Plaintiff signed a document indicating she wished to discontinue the pre-complaint procedure and acknowledging this meant she could not pursue litigation over her discharge. (Doc. 27, CM/ECF p. 35).

Plaintiff later applied for two jobs at DLA/DDSP. The first one was as a Materials Handler. By way of a notice, dated January 12, 2008, she was informed she had not been selected for that position. (Doc. 27, CM/ECF p. 37). The second job was as a Distribution Process Worker, under Vacancy Announcement DDSP-08-175030, dated March 3, 2008. (Doc. 29, CM/ECF p. 21; doc. 27, CM/ECF pp. 7-8). On March 18, 2008, Smith was sent a notice that she had not been selected for that position either. (Doc. 27, CM/ECF p. 66, the agency's June 5, 2008, letter-notice re claims that would proceed).

On March 28, 2008, Smith sought EEO counseling regarding her May 2007 termination, which was docketed as Case No. DLAN-08-0760. (Doc. 27, CM/ECF pp. 32-33). On April 18, 2008, Plaintiff filed a Formal EEO Complaint regarding her May 2007 termination. (Doc. 27, CM/ECF pp. 24-30).*fn2 She gave her national origin as a United States citizen as the reason she was discriminated against. (Id., p. 24). She appears to have also grounded the claim on an improper firing based on her quarreling with her co-worker Lemelle. (Id., p. 25). Plaintiff later amended the complaint to charge that she had been harassed at the August 8, 2007, pre-complaint mediation, (id., p. 27), that her January 12, 2008, non-selection as a material handler was improper, (id., p. 36), that defendant Simpson had defamed her in connection with her May 2007 termination, (id., p. 27), and that her March 18, 2008, non-selection was improper. (Doc. 27, CM/ECF pp. 66-68). All of the claims were grounded in national origin discrimination and retaliation for prior EEO activity. (Id.).

By letter dated May 28, 2008, Smith was subsequently removed from the certification list of eligible employees for Distribution Process Worker. (Doc. 27, CM/ECF p. 66; doc. 29 CM/ECF p. 35). The reason for removal was the selecting office's objection based on Plaintiff's "previous conduct within the same agency." (Doc. 27, CM/ECF p. 66; see also doc. 29, p. 35). Plaintiff amended her EEO complaint to challenge this decision. (Doc. 27, CM/ECF pp. 66-68).

The June 5, 2008, letter-notice advised Plaintiff that the agency had made the following determinations regarding her claims. It would not be adjudicating her May 2007 termination claim because it had already been processed in 2007, culminating in the August 2007 mediation where Plaintiff agreed to discontinue her claim. In support, the agency cited 29 C.F.R. § 1614.107(a)(1), which provides that the agency shall dismiss a complaint if it states a claim already decided by the agency.*fn3 Alternatively, assuming that the claim had been presented for the first time when Plaintiff contacted the agency on March 27, 2008,*fn4 the agency decided it was untimely because § 1614.105(a)(1) required Plaintiff to contact the EEO counselor within forty-five days of the discriminatory act. (Doc. 27, CM/ECF p. 67).

The agency would also not be adjudicating her claim contesting her January 12, 2008, non-selection for the materials-handler position because the March 27 initial contact on that claim was also untimely, coming more than forty-five days after the discriminatory act. In support, the agency cited § 1614.107(a)(2), requiring dismissal of a complaint not meeting the time deadline in § 1614.105(a)(1). (Doc. 27, CM/ECF p. 68).*fn5

The agency also rejected the harassment claim regarding the August 8, 2007, mediation because Plaintiff had not alleged a harm to a condition of employment and hence had failed to state a claim as required by § 1614.107(a)(1). Additionally, § 1614.107(a)(8) required dismissal of a claim that ...

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