The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court on a partial motion to dismiss, or, in the alternative, a partial motion for summary judgment, by Defendants John E. Potter, the Post Master General for the United States Postal Service, Eastern Area, and Brian Stewart, Plant Manager of the Philadelphia Logistics and Distribution Center for the U.S. Postal Service (Eastern Area), (collectively, "Defendants") against Plaintiff Johnniemae Green ("Plaintiff"), an employee of the United States Postal Service ("USPS") and her husband, Norman Green*fn1 [Docket Item 21]. Plaintiff has brought suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Age Discrimination in Employment Act ("ADEA"). Plaintiff alleges that her employer, the USPS, has discriminated against her because she is African-American, female and over forty, and that Defendants retaliated against Plaintiff for her previous complaints to the Equal Employment Opportunity Commission ("EEOC").
Defendants have moved to dismiss only parts of Plaintiffs' present suit. Specifically, they ask the Court to dismiss Mr. Green's claims for loss of consortium, all claims against Stewart and the USPS, all claims under Section 1981, and all claims arising out of a June, 2007 involuntary reassignment of Mrs. Green (Am. Compl. ¶¶ 86-102). They have not sought dismissal or summary judgment on Plaintiffs Title VII and ADEA claims arising out of alleged incidents of discrimination and retaliation between June, 2004 and June, 2006. Plaintiffs have agreed to dismiss Mr. Green as a party plaintiff and Brian Stewart and the USSP as party defendants. Plaintiffs have similarly agreed to dismiss all claims under Section 1981. Thus the sole issue to be decided here is whether Plaintiff is barred from seeking relief under Title VII and the ADEA for claims arising out of her June, 2007 job reassignment due to her failing to exhaust her administrative remedies relating to that incident. The Court, for the reasons discussed below, will grant Defendant's partial motion to dismiss and converted motion for partial summary judgment and prohibit Plaintiff from pursuing claims arising from the June, 2007 reassignment.
Plaintiff is an African American female, born on July 16, 1951. (Am. Compl. ¶ 13.) Plaintiff was an employee of Defendant USPS at all relevant times. (Id. ¶ 14.) Defendant USPS is a federal government service agency organized and existing under the laws of the United States, which operates Logistics and Distribution Centers, including the Philadelphia Logistics and Distribution Center ("Philadelphia L&DC") located at 2279 Center Square Road, Swedesboro, New Jersey. (Id. ¶ 15.) Plaintiff worked at the mail processing division for more than twenty-six years. (Id. ¶¶ 19-20.) The positions she held at USPS included: Clerk and Supervisor in the Priority Mail Department; SPBS Supervisor; Customer Service Supervisor; Manager, Mail Processing on Tours One and Three and grade level twenty-two at the Wilmington, Delaware facility; Acting General Supervisor for the Philadelphia Processing Center; and Acting Manager, Distribution Operations ("MDO") for the South Jersey Processing Distribution Center. (Id. ¶¶ 22, 24.) In 2001, Plaintiff became an MDO for the Philadelphia L&DC, which was classified as job grade level twenty-one. (Id. ¶ 23.) Plaintiff alleges that she received excellent performance reviews and met high productivity goals while at both facilities. (Id. ¶ 25.) In June, 2004, Plaintiff had been working as the Tour Three MDO for about one year at the Philadelphia L&DC, working from 4:00 p.m. until 12:30 a.m., and therefore was entitled to "night differential pay." (Id. ¶¶ 26-27)
1. First Alleged Incident of Discrimination
In June, 2004, Plant Manager, and Plaintiff's direct supervisor, Brian Stewart, had a level seventeen supervisor summon Plaintiff to his office. (Id. ¶ 28.) According to Plaintiff, Mr. Stewart told her that she was "to have no further dealings with the processing of mail or managing of employees." (Id. ¶ 29.) Plaintiff alleges that he proceeded to tell her that "she would be assigned to a work detail to address the high rate of missorts and to improve service and quality of the facility as the Acting Quality Improvement Manager." (Id. ¶ 30.) Mr. Stewart allegedly gave Plaintiff no justification for the reassignment of Plaintiff's detail and duties, nor did he give Plaintiff the opportunity to accept or decline the detail. (Id. ¶ 32.)
Plaintiff contends that instead of assigning Thomas Bissell, a white, male, level seventeen supervisor, to the position of Quality Manager, which was "expected" to be filled by a level seventeen supervisor, Mr. Stewart assigned Mr. Bissell to the superior detail of Acting Tour One MDO. (Id. ¶ 35.) Mr. Stewart then moved a Tour One MDO, Theresa Bonhage, a white female, into Plaintiff's former position of Tour Three MDO. (Id.) Moreover, Plaintiff asserts that white and male employees, when put on these temporary assignments, or "details," were typically permitted to continue receiving "night differential pay" if they were entitled to receive it in their permanent position. (Id. ¶ 37.) However, Plaintiff states that she did not receive the night differential pay which she received in her prior position. (Id. ¶ 38.)
Plaintiff allegedly contacted Mr. Andrew Keen, Human Resource Manager, to complain of Mr. Stewart's reassignment, to request being moved to another job assignment. (Id. ¶ 42.) Plaintiff contends that Mr. Keen told her that she would have to speak with Mr. Stewart about moving to another position. (Id. ¶ 43.) Plaintiff believes that Mr. Stewart was made aware of this complaint, and that because of the complaint, she was kept on her new detail instead of being reinstated in her prior position. (Id. ¶ 44-45.)
Plaintiff alleges that after she initiated the administrative complaint, Mr. Stewart claimed that he offered her the Quality Improvement Manager position so that she could take care of her husband in the evenings. (Id. ¶ 39.) However, Plaintiff maintains that she never requested a schedule change or accommodation, nor did her husband's health require her presence at home during the evenings. (Id. ¶ 40.)
On March 16, 2005, Plaintiff sent Mr. Stewart an e-mail asking if he had considered returning her to her position as MDO on Tour Three, to which he responded that he had not. (Id. ¶¶ 45-46.) On April 8, 2005, Plaintiff made a second request to be reinstated in her previous position, which Mr. Stewart did not grant; nor did he grant any subsequent verbal requests. (Id. ¶¶ 47-48.) Plaintiff alleges that Mr. Stewart arranged for Mr. Bissell as well as other MDOs to receive cross-training on other tours, while denying that training to Plaintiff. (Id. ¶¶ 49-50.) Plaintiff additionally alleges that Mr. Stewart, in a conversation with two white male co-workers, stated that Plaintiff looked like a "black gorilla." (Id. ¶ 51.)
Plaintiff alleges that on or about December 22, 2005, Defendant USPS issued a memo indicating that all former Priority Mail Processing Centers would be restructured as Logistics and Distribution Centers. (Id. ¶ 53.) All Area Operations Vice Presidents were provided with the standard structure for the new Logistics and Distribution Centers. (Id.) Plaintiff alleges that Mr. Stewart had been informed of the pending restructuring earlier and had moved Plaintiff to the Quality Improvement detail so that he could effectuate his plan to demote Plaintiff and promote a less qualified white male. (Id. ¶ 54.)
As part of the restructuring and realignment, the MDO grade level twenty-one positions were eliminated. (Id. ¶ 55.) Five new positions were created. (Id. ¶ 56.) Those positions included: (1) MDO, grade level twenty-two, Tour Three; (2) MDO, level twenty, Tour Three; (3) MDO, level twenty, Tour One; (4) MDO, level nineteen, Tour Two; and (5) Logistics and Distribution Specialist, level nineteen. (Id.) All of the employees who were impacted by the realignment were eligible to apply for the vacant positions. (Id.) Plaintiff applied for four of the positions. (Id. ¶ 59.) Her first choice was MDO, grade level twenty-two, Tour Three; her second choice was MDO, level twenty, Tour Three; her third choice was MDO, level twenty, Tour One; and her fourth choice was MDO, level nineteen, Tour Two. (Id.) Seven other candidates applied for the five vacant positions. (Id.) Mr. Stewart was named the selecting officer for the positions. (Id. ¶ 61.) At that time, Mr. Stewart was not working in the plant, but was detailed to the position of Acting In-Plant Support Manager in the Eastern Area Office located in Pittsburgh, Pennsylvania. (Id. ¶ 62.)
Mr. Stewart returned to the plant to conduct the interviews for the newly created positions on June 9, 2006. (Id. ¶ 63.) Plaintiff alleges that despite the fact that she had notified USPS about Mr. Stewart's biased conduct, no other high-level supervisor participated in the interview process to ensure that it was fairly administered. (Id. ¶ 64.) Plaintiff was selected for her third choice position, MDO level twenty, Tour One, an overnight shift with less managerial responsibilities than a Tour Three position,*fn2 despite her claim that she was the most experienced and most qualified candidate.*fn3 (Id. ¶¶ 65, 72.) Additionally, Plaintiff alleges that several of the candidates who applied, including Thomas Bissell,*fn4 were not eligible to apply for the positions because their positions had not been affected by the restructure. (Id. ¶ 70.)
Mr. Stewart, however, selected Mr. Bissell, a white male, for the top position of Lead MDO, level twenty-two, Tour Three. Mr. Stewart selected Ms. Bonhage, a white female who is younger than Plaintiff, for the MDO, level twenty, Tour Three position. (Id. ¶ 71.) Mr. Stewart alleges that his selections were based solely on the candidates' performance in the interviews that he conducted on June 9, 2006, in which he asked all candidates the same twenty-five questions. (Id. ¶ 75.) However, Plaintiff alleges that Mr. Stewart's reliance on the interviews is merely pretext, because based on his interview notes, the candidates were not placed in their positions in accordance with the level of their performance in answering the questions. (Id. ¶ 76.)
Plaintiff has alleged that other USPS employees have approached her to express their concern about her demotion. (Id. ¶ 81.) Plaintiff also alleges that as a result of Mr. Stewart's discriminatory actions, there is a perception among Plaintiff's co-workers, peers and current supervisors that she was demoted because she was incompetent in performing her duties, whereas Plaintiff maintains she was not deficient in her work. (Id. ¶ 82.)
Plaintiff's additional requests to be moved from the overnight shift to the Tour Two MDO position and to be detailed to a supervisor position on Tour Two were denied. (Id. ¶¶ 84-85.) Plaintiff alleges that as a result of Mr. Stewart's discrimination and retaliation, Plaintiff has suffered physical injury, embarrassment, emotional distress, mental anguish, humiliation, loss of self-esteem and financial hardship. (Id. ¶ 86.)
2. Second Alleged Incident of Discrimination
Plaintiff received a letter in or about June 2007, dated June 11, 2007, signed by James E. Hull, Manager, Distribution Networks, informing her that she was being involuntarily assigned from the Philadelphia L&DC in Swedesboro, NJ to the Philadelphia Air Mail Facility in Philadelphia, PA, effective June 23, 2007. (Def. Exh. D-4, p. 2; Pl. Compl. Ans. ¶ 86.) Plaintiff was informed that she was being reassigned because her daughter, Sylvia Gaston, who had in May 2006 been assigned to Philadelphia L&DC as an Associate Supervisor, created a "problematic arrangement" and "was creating issues involving employees and union representatives claiming harassment and retaliation resulting from [the] familiar relationship [with Plaintiff] and actions as a[n] MDO." (Id. ¶ 88.) However, Plaintiff allegedly had a meeting in or about May 2007, attended by Frank Pierantozzi, Andrew Keen, Plaintiff and Ms. Gaston, whereby it was decided that if Plaintiff or Ms. Gaston should be reassigned or detailed to another facility, it should be Ms. Gaston who is reassigned or detailed. (Id. ¶ 89.) Plaintiff alleges that for many years, in two separate postal facilities, Plaintiff and Ms. Gaston had worked together without issue or incident. (Id. ¶ 90.)
Plaintiff requested that she be detailed to the available Tour Two MDO position in the Philadelphia L&DC, which she said would have resulted in no operational or physical contact with Ms. Gaston. (Id. ¶ 91.) This request was denied by Frank Pierantozzi, the acting plant manager after Mr. Stewart left on a detail. (Id. ¶ 92.) Plaintiff requested that she be detailed to an available assignment in the Processing Center in Bellmawr, NJ, which was denied by Mr. Pierantozzi. (Id. ¶ 93.) Plaintiff alleges that her involuntary reassignment resulted in there being no black managers assigned to the Philadelphia L&DC. (Id. ¶ 95.) Following Plaintiff's reassignment, her position at the Philadelphia L&DC was filled by Frank Pierantozzi, a white male who was younger than Plaintiff. (Id. ¶ 96.) This assignment resulted in a promotion for Mr. Pierantozzi. (Id. ¶ 97.) Additionally, Plaintiff alleges that following her reassignment, Len Holmquist, a white male younger and less experienced than Plaintiff, was awarded the Tour Two MDO position that Plaintiff requested instead of being involuntarily reassigned. (Id. ...