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Zawoysky v. Charles E. Kelly Support Facility USAR Installation

May 17, 2010

JOSEPH ZAWOYSKY, JR., PLAINTIFF,
v.
CHARLES E. KELLY SUPPORT FACILITY (CEK) USAR INSTALLATION, DEFENDANT.



The opinion of the court was delivered by: Ambrose, District Judge

OPINION and ORDER OF COURT

SYNOPSIS

Defendant, Charles E. Kelly Support Facility (CEK) USAR Installation, has filed a Motion to Dismiss pro se Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket No. 7). Pro se Plaintiff filed a Brief in Opposition. (Docket No. 9). As set forth more fully below, after careful consideration of the Motion and related filings, said Motion (Docket No. 7) is granted.

OPINION

I. Background

At the time pro se Plaintiff filed his Complaint, he was a civilian army employee working at the Charles E. Kelly U.S. Army Reserve Support Facility. The Complaint asserts that Plaintiff was subject to unsafe working conditions due to improper maintenance of the ventilation system, including the removal of asbestos in November of 2000. (Docket No. 1, p. 1). Plaintiff became ill in March of 2001 and by July of 2001, Plaintiff was in a coma for two to three weeks. Id. He returned to work on a partial basis in April of 2002. Id. In 2003, Plaintiff started to think about filing a lawsuit, but decided to wait until he retired. (Docket No. 1, pp. 1-2). Then, during an EEO meeting in July of 2008, Plaintiff was told he had 45 days to file a complaint. Id., at p. 2. As a result, Plaintiff filed an EEO Complaint in August of 2008.*fn1

On October 17, 2008, Plaintiff's EEO Complaint*fn2 was dismissed as untimely pursuant to 29 C.F.R. §1614.107(a)(a). (Docket No. 1-8, p. 1). Plaintiff filed a timely appeal with the EEOC. Id. The EEOC affirmed the agency's final decision dismissing Plaintiff's Complaint on the basis of timeliness on April 16, 2009. Id., at p. 3. Plaintiff then filed a request for reconsideration, which was denied on June 4, 2009, because the request failed to meet the requirements for reconsideration set forth in 29 C.F.R. §1614.405(b). (Docket No. 1-9, p. 1).

On September 1, 2009, Plaintiff filed his Complaint in this Court. (Docket No. 1). On March 5, 2010, Defendant filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment. (Docket No. 7). The briefing for the same is complete.

II. Legal Discussion

A. Standard of Review*fn3

Failure to exhaust "constitutes a possible ground for dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Phillips v. Sheraton Society Hill, 163 Fed.Appx. 93, 2005 WL 3484200 (3d Cir. Dec. 21, 2005). When deciding whether to grant or deny a 12(b)(6) motion the Supreme Court has held:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atlantic Co. v. Twombly, 550 U.S. 544, 555 (2007) (cites and footnote omitted); see also, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (a plaintiff's factual allegations must be enough to raise a right to relief above the speculative level).

Most recently, in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Supreme Court held, ". . . a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the ...


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