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Cross v. Donahoe

United States District Court, Third Circuit

August 23, 2013



CLAIRE C. CECCHI, District Judge.


This matter comes before the Court on the motion of Patrick Donahoe, Postmaster General ("Defendant"), to dismiss the Complaint of Bridgett Cross ("Plaintiff') pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court has considered the submissions made in support of and in opposition to the instant motion.[1] The Court decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. Based on the reasons that follow, Defendant's motion to dismiss is granted without prejudice. Plaintiff is granted thirty days to file an Amended Complaint which cures the pleading deficiencies discussed below.


A. Factual Background

Plaintiff was employed as a Health and Resource Management Specialist with the Postal Service. (Compl. ¶ 8.) Beginning in April 2008, Plaintiff sustained a foot injury, which she alleges was public knowledge in the workplace. and she returned to work in or around May 2009 on a part time basis. (Compl. ¶¶ 10-11.) Plaintiff resumed full time hours in or around June 2009 until October 1, 2009, when she had foot surgery. (Compl. ¶¶ 12-13.) She returned from the foot surgery on or around November 1, 2009. (Compl. ¶ 14.) In June 2010, Plaintiff requested permission to work in Defendant's Kilmer, New Jersey office because of that facility's handicap features, but she was denied this transfer. (Compl. ¶ 15.) Plaintiff alleges that during the time of her employment, she was denied training, promotional, and lateral opportunities due to her disability. (Compl. ¶ 16.)

Plaintiff asserts the following causes of action: (1) discrimination in violation of Title VII and the Americans with Disabilities Act ("ADA"); (2) retaliation under Title VII; (3) hostile work environment under Title VII; and (4) common law retaliation. (Compl. ¶¶ 17-38.) With respect to Count One, plaintiff alleges that Defendant's harassment was "so severe and pervasive that no reasonable person could be expected to tolerate such conduct." (Compl. ¶ 18.) With respect to Count Two, Plaintiff alleges that Defendant's conduct was prompted by and undertaken as a form of retaliation for Plaintiff's "legitimate actions and assertions of protected rights and interests." (Compl. ¶ 23.) With respect to Count Three, Plaintiff alleges that Defendant facilitated a hostile work environment with "intolerable conditions pursuant to which Plaintiff could not reasonably be expected to work." (Compl. ¶ 29.) In addition, Plaintiff alleges that as a result of this hostile work environment she was constructively discharged and forced to resign. (Compl. ¶ 31.) With respect to Count Four, [2] Plaintiff alleges that Defendant's actions were prompted by and in retaliation of her "legitimate actions and assertions of protected rights and interests." (Compl. ¶ 34.) With respect to all four counts, Plaintiff alleges that as a direct and proximate result of the Defendant's actions she has endured "severe emotional pain and suffering." (Compl. ¶¶ 21, 27. 32, 38.)

B. Procedural History

On July 8, 2010, Plaintiff first contacted an Equal Employment Opportunity ("EEO") counselor from the Postal Service about alleging a claim of discrimination based on race and disability.[3] See Declaration of Eriberto Cedeno ("Cedeno Decl."), ¶ 2; Exhibit A (iComplaints Form) at 3; Exhibit B (Information for Pre-Complaint Counseling) at 1. On July 16, 2010, the National EEO Investigative Service Office ("NEEOISO") received Plaintiffs "Information for Pre-Complaint Counseling" form dated July 13, 2010. See Cedeno Decl. ¶ 3; Exhibit B (Information for Pre-Complaint Processing) at 1. Plaintiff claimed she was discriminated against based on race and physical disability because her injury compensation claim was "challenged" by her manager, her requests for a reasonable accommodation transfer and opportunities to crosstrain were denied, her request to join the "National Reassessment Team" was denied, and she was demeaned at work. See id. at 1-2. She elaborates on these allegations with anecdotes from her work experiences in the description section of this counseling form. Id.

On August 6, 2010 Pamela Zuczek, an EEO counselor, sent Plaintiff a Notice of Right to File, which Plaintiff received on August 14, 2010. See id. 4; Exhibit C (Notice of Right to File) at 1. On August 23, 2010, NEEOISO received Plaintiffs "EEO Complaint of Discrimination in the Postal Service, " which was dated August 19, 2010. See id. ¶ 5; Exhibit D (EEO Complaint) at 1-3. Plaintiffs complaint specifically checked the boxes for race and disability discrimination, and reiterated the claims from her "Information for Pre-Complaint Processing" form; specifically, the challenge to Plaintiffs injury compensation claim, the denial of a reasonable accommodation transfer, the denial of opportunities to cross-train, and the denial of a request to join the "National Reassessment Team." See id.

On September 8, 2010, NEEOISO accepted some, but not all, of Plaintiff's claims raised by her EEO complaint through the issuance of a formal decision. See id. 6; Exhibit E (Decision) at 1-9. The claims that were accepted by NEEOISO continued before the Equal Employment Opportunity Commission (the "EEOC") and were ultimately dismissed on March 22, 2012 because Plaintiff chose to proceed with her case in this Court. See id. ¶ 7; Exhibit F (Order of Dismissal) at 1. No EEO complaints were ever filed with respect to Plaintiffs claims of retaliation or hostile work environment. See Cedeno Decl. ¶ 8.


For a complaint to survive dismissal pursuant to Federal Rule of Civil Procedure 12(h)(6), it "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. See Phillips v. Cnty. of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555. Furthermore, "[a] pleading that offers labels and conclusions' ...

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