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Cirillo v. Donahoe

United States District Court, E.D. Pennsylvania

March 31, 2014

PATRICK R. DONAHOE, Postmaster General Defendant.



I. Introduction

Plaintiff Anthony Cirillo brings the within action on the basis that Defendant Patrick Donahoe, Postmaster General of the United States Postal Service ("USPS"), breached a settlement agreement that resolved discrimination and retaliation claims previously brought before the Equal Employment Opportunity Commission ("EEOC") by Plaintiff. For the reasons that follow, Defendant's Motion to Dismiss will be granted.

II. Background

a. Factual History

Plaintiff was employed by the USPS as an electronics technician at the Philadelphia Processing and Distribution Center until April 7, 2008. (Second Am. Compl. ¶ 3). On January 5, 2007, Plaintiff was observed drinking at a local bar during work hours by one of his supervisors. (Second Am. Compl. ¶ 4). Plaintiff subsequently tested positive for alcohol and on January 31, 2007, was suspended for fourteen days for violations of USPS policies including: absence without leave, violation of the Postal Service's no tolerance policy for alcohol, and performing no work while on time records. (Second Am. Compl. ¶ 4).[1]

In response to the suspension, Plaintiff filed a grievance and initiated EEOC proceedings. The parties agreed to an informal mediation process known as Resolve Employment Disputes Reach Equitable Solutions Swiftly ("REDRESS") and settled Plaintiff's grievance on March 22, 2007. (Second Am. Compl. ¶¶ 5-6). Under the settlement agreement, Plaintiff's suspension was modified from fourteen unpaid days to seven paid days in exchange for Plaintiff's termination of the pending EEOC proceedings. (Second Am. Compl. ¶ 7). It was further agreed that Plaintiff's record would be expunged one year after the date of the incident. (Second Am. Compl. ¶ 7).

Little more than one year after the first incident, Plaintiff was again caught drinking during work hours at the same local bar by one of his supervisors. (Second Am. Compl. ¶ 9; Def.'s Mem., Ex. 5).[2], [3] On March 6, 2008, Plaintiff was issued a Notice of Removal from federal employment, effective April 7, 2008. (Second Am. Compl. ¶ 9; Def.'s Mem. Ex. 5). In the Notice, Plaintiff's supervisor stated that he paged Plaintiff several times in the building. (Def.'s Mem. Ex. 5). When Plaintiff did not respond, Plaintiff's supervisor checked Plaintiff's clock rings and found that he was clocked in. (Def.'s Mem. Ex. 5). Plaintiff's supervisor stated in the Notice of Removal: "Do [sic] to a prior incident of you being found at Hasting's Bar, located at 7417 Buist Avenue, while on the clock and out of the building I decided to check there." (Def.'s Mem. Ex. 5). There is no specific mention in the Notice of Removal of the January 2007 incident which was the subject of the Settlement Agreement. (Def.'s Mem. Ex. 5).

b. Procedural History

On November 7, 2012, Plaintiff filed his initial Complaint with this Court as a pro se litigant. Said Complaint was a form that simply indicated Plaintiff was suing Defendant for age discrimination allegedly stemming from "breach of EEO Agreement." (Doc. No. 1 at 3). Defendant filed a Motion to Dismiss (Doc. No. 9), which prompted Plaintiff to file an Amended Complaint (Doc. No. 10). Defendant again filed a Motion to Dismiss but recognizing the implications of a litigant who is proceeding pro se, as well as the fact that this Court could not properly address either side's position based upon Plaintiff's filings thus far, Defendant's Motion was again denied without prejudice so that Plaintiff could retain counsel and file a proper Complaint. Plaintiff did in fact retain private counsel, who ultimately filed the Second Amended Complaint now at issue. (Doc. No. 17). Plaintiff's Second Amended Complaint makes no reference to any discriminatory actions by Defendant; namely, the original age discrimination claim presented in both the initial Complaint and First Amended Complaint. Instead, the Second Amended Complaint's sole claim is for Breach of Contract because Plaintiff believes Defendant improperly made reference to Plaintiff's expunged disciplinary record in its second Notice of Removal. (Second Am. Compl. ¶ 10.) It is Plaintiff's position that he is entitled to damages in the form of lost wages and reinstatement to his former position. (Second Am. Compl. ¶ 14). In response thereto, Defendant has filed the instant Motion to Dismiss.

III. Standard of Review

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), courts must "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." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation and citation omitted). After the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . at 678 (citing Twombly , 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678; accord Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) ("All civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.") (internal quotation omitted).

III. Discussion

Plaintiff maintains that his supervisor's stated reason for looking for Plaintiff at Hasting's Bar in 2008 breached the Settlement Agreement. (Second Am. Compl. ¶ 10).[4] Plaintiff further believes that his termination was a direct result of the ...

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