The opinion of the court was delivered by: Savage, J.
Pro se plaintiff Patricia Wade has filed two actions alleging various claims of discrimination and retaliation arising out of her employment with the United States Postal Service ("USPS").*fn1 In her first complaint, she alleges that the USPS violated Title VII by subjecting her to a campaign of harassment aimed at impeding her entitlement to Federal Employment Compensation Act ("FECA") benefits in retaliation for her 2003 Equal Employment Opportunity Commission ("EEOC") activity.*fn2 In the second complaint, she claims that during its National Reassessment Program ("NRP"), the USPS violated Title VII by subjecting her to retaliation and the Americans with Disabilities Act ("ADA") and
Rehabilitation Act by discriminating against her based on a disability.*fn3 Wade appears to make additional claims under several other statutes and a host of regulations.*fn4
The USPS moves to dismiss Wade's Title VII claims in her FECA complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). It argues that we lack jurisdiction because the Department of Labor ("DOL") has exclusive authority to administer FECA and to decide all questions arising under the statute. Alternatively, it contends that Wade has failed to demonstrate any causal connection between the 2003 EEOC activity she references in her complaints and the USPS's alleged harassment beginning in October 2010 in the form of refusing to process and submit paperwork required for her to support her claim for FECA benefits.
As to Wade's NRP complaint, the USPS argues that she has not exhausted her disability discrimination claims because the EEOC has held them in abeyance pending resolution of a class action challenging the NRP.*fn5 Seeking dismissal or alternatively summary judgment on the Title VII claim that her treatment during the NRP was in retaliation for her EEOC activity, the USPS argues Wade has presented no facts demonstrating a causal relationship between that activity and her participation in the NRP.
After viewing the allegations in the complaints as true and in the light most favorable to Wade, we shall grant the USPS's motion as to the Title VII claims for failure to plead facts supporting an inference of causation. Wade has presented no facts showing a pattern of antagonistic behavior in the seven intervening years between her EEOC activity and the alleged campaign of retaliation. Nor do Wade's allegations, viewed in their entirety, support an inference of a causal nexus between her protected activity and the alleged campaign of harassment. We shall also dismiss Wade's disability discrimination claims in her NRP complaint because they have been subsumed into a binding class action pending before the EEOC. Therefore, we shall grant the motions to dismiss.
Wade suffered on-the-job injuries to her shoulders on February 18, 2006. After returning from right shoulder surgery, she worked limited duty for four years. In March of 2009, Wade aggravated the injury to her left shoulder while at work, requiring rotator cuff surgery.
To ensure receipt of workers' compensation benefits under FECA while out of work for surgery, Wade attempted to complete a leave slip.*fn7 Although the exact process is not clear from the pleadings, it appears that her direct supervisor had to sign the form, which is forwarded with any necessary paperwork to the DOL. The DOL then determines entitlement to FECA benefits.
Wade alleges that several USPS managers and supervisors harassed her by making it difficult for her to complete her leave slip, and then not sending the necessary paperwork to the DOL. As a result, she claims she did not receive some of her FECA benefits payments. According to Wade, after a supervisor, Martha Jenkins, refused to sign the form, manager Cheryl Talmage told Wade that she would help her with her paperwork, but failed to do so. Wade convinced manager Devola Sutton to sign her leave slip. Another manager, Mitchell Petty, immediately destroyed it. Petty told Sutton that Wade was not her concern, apparently because Sutton was not Wade's direct supervisor.*fn8
Although Petty offered to take her to her direct supervisor, Wade refused to go. Wade ultimately delayed her surgery due to her difficulty in finding a manager or supervisor to sign and process her leave slip.
Wade also alleges that supervisor Cynthia Davis, after agreeing to assist her, made it difficult to meet with her, giving Wade a few hours notice of when she was available. When Davis met with Wade on January 6, 2011, she signed the form and told Wade that she would give the original to caseworker Diane Castro for processing and mail or email a copy to Wade. However, Wade never received a copy from Davis or any indication that Castro processed the leave slip. According to Wade, Castro intentionally withheld information from the DOL that would have resolved the leave slip dispute.
In an attempt to resolve the dispute and receive her missing FECA payments, Wade wrote letters to manager Ivan Butts on March 3, 2011 and April 5, 2011 asking for his help to ensure that Castro processed the leave slip. Wade claims Butts responded that the delay was "not done without intent or malice."*fn9 On this basis, she includes Butts as a participant in what she calls an "arbitrary group campaign that has been an intentional hindrance and obstruction to the processing of [her] Worker's Compensation benefits."*fn10
It is unclear from Wade's complaint how many FECA payments she is missing. She states at one point that she has not received a payment for a two-week period.*fn11 The
USPS confirms this, stating it discovered one claim for a two-week period that was initially filed under the wrong claim number.*fn12 However, Wade later alleges that she only received two and a half payments while she was out of work from mid-November 2010 to April 2011.*fn13
Wade claims that this behavior was harassment, created a hostile work environment, and was in retaliation for her prior EEOC activity and for hiring a lawyer to assist her with an injury claim, all in violation of Title VII.
Wade also references a "Bivens Claim," the Privacy Act of 1974, federal criminal statutes, and provisions from the Code of Federal Regulations. These claims fail as a matter of law.
During the time Wade claims USPS employees were impeding her FECA paperwork, the USPS initiated the NRP for limited duty employees in the facility where she worked. Through the NRP, employees on limited duty were placed in "standby rooms," pending an interview with the NRP panel to determine if a position consistent with the employee's medical restrictions was available within a fifty-mile radius. According to the USPS, if the search was unsuccessful, employees were given a number of alternatives, including continuing FECA benefits, leave, or retirement.*fn14
Wade alleges that while awaiting her NRP interview, she was forced to
sit in an uncomfortable standby room for two weeks. According to Wade,
about a dozen employees were assigned to the room on November 4, 2010,
which was initially equipped with tables, padded chairs, and a
television. The following day, after a supervisor came into the room
and announced, "we've got to change this," the padded chairs were
replaced with plastic ones and the tables were removed.*fn15
The room was also partitioned, apparently blocking the
television. Wade alleges that one of the maintenance workers who
altered the room told a USPS employee in March of 2011 that he was
instructed to make the room as uncomfortable as possible.*fn16
At this time, Wade and Sharon Jordan-Trowery, both mail
handlers, were the only employees remaining in the room. The other
employees assigned to the standby room, all mail clerks, had been
placed in temporary work assignments.
Wade also complains of the conditions in the room. She alleges that the room was uncomfortably cold at times. The lights were controlled by a motion sensor, resulting in the lights shutting off at times, such as when Wade and another employee fell asleep. At some point, the room was locked, preventing any employee assigned to the room from leaving.
According to Wade, when she was the only employee assigned to the standby room on November 7, 2010, co-workers, union stewards and supervisors came to speak with her. These conversations ended badly, with Wade becoming angry and upset.
Wade states that she was humiliated during her assignment to the standby room, which a union steward equated to a holding cell. She obtained medication to cope with the stress she felt while in the room.
The NRP panel told Wade on November 17, 2010 that in light of her medical restrictions, there was no work available. Wade pointed out to the panel that she was working, despite her restrictions, before the USPS assigned her to the standby room. She also provided the panel with a list of duties that she was able to perform but also informed the panel that she would soon be unable to work due to her scheduled rotator cuff surgery. Wade alleges that the panel rejected her suggestions, telling her that "there is not any job that are [sic] necessary if the person doing them has restrictions; we only want full able bodies."*fn17
Wade was sent home. Yet, she continued to be eligible for, and at least intermittently received, FECA payments.*fn18 According to the USPS, Wade received FECA benefits until she was cleared by her doctor to return to her regular job in August 2011.
Wade alleges her treatment in the standby room and during her NRP interview was in retaliation for her EEOC activity and discriminatory based on her disability. As with her FECA complaint, Wade alleges that the USPS violated several statutes and regulations during the NRP.
The jurisdictional challenge is brought under Fed. R. Civ. P. 12(b)(1). The motion to dismiss for failure to state a claim is under Rule 12(b)(6). The standards are similar, but not identical.
A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), giving the defendant "fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Although this standard "does not require 'detailed factual allegations,' . . . it demands more than an unadorned, ...