United States District Court, D. South Carolina, Columbia Division
Laura K. Addison, Plaintiff,
Megan J. Brennan, Postmaster General, United States Postal Service, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, Magistrate Judge.
Laura K. Addison ("Plaintiff"), proceeding pro se, filed this fee-paid employment action against Megan J. Brennan, Postmaster General of the United States Postal Service ("Defendant"). [ECF No. 1]. This matter comes before the court on Defendant's motion to dismiss, or in the alternative for summary judgment. [ECF No. 34]. Plaintiff having responded to the motion [ECF No. 39], it is ripe for disposition.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). Because the motion is dispositive, this report and recommendation is entered for the district judge's consideration. For the reasons that follow, the undersigned recommends the district court grant Defendant's motion to dismiss.
I. Factual and Procedural Background
Plaintiff stated the following in the "Statement of the Claim" portion of her complaint: "I was removed from my job November 24, 2012, until May 4[, ] 2013 illegally. After union process and contacting an attorney I got my job back without back pay. I got my job back but endured tremendous hardship. Management had no evidence I did anything wrong." [ECF No. 1 at 3].
To ensure subject matter jurisdiction over Plaintiff's claims, the court issued Plaintiff special interrogatories related to exhaustion of her administrative remedies. [ECF No. 20]. Plaintiff responded to the interrogatories and attached the dismissal of her complaint by the Equal Employment Opportunity Commission ("EEOC"). [ECF No. 23]. According to the EEOC dismissal, Plaintiff alleged discrimination based on race (white), color (white), religion (Baptist), sex (female), age (almost 50), and national origin (American). [ECF No. 23-1 at 1]. As relevant to the instant complaint,  Plaintiff alleged the following discriminatory acts: (1) she was issued a notice of removal on October 1, 2012, and (2) she was placed on leave without pay ("LWOP") on November 24, 2010. Id. The dismissal notes that Plaintiff requested pre-complaint processing on May 30, 2013. Id. Plaintiff's EEOC complaint was dismissed as untimely because she did not initiate contact with an EEO counselor within 45 days of her claims of discrimination based on her notice of removal and placement on LWOP. [ECF No. 23-1 at 2-3]. Specifically, Plaintiff initiated contact with the EEOC 241 days after the notice of removal and 187 days after being placed on LWOP.
According to the dismissal, on April 16, 2013, Defendant and the union entered into a settlement agreement that reduced Plaintiff's notice of removal to a long-term suspension without pay. Id. at 4. The dismissal notes that Plaintiff indicated in her EEOC complaint that she was filing as a last resort to obtain her back pay. Id.
The dismissal also stated: "In lieu of filing an appeal with the Equal Employment Opportunity Commission, you may file a civil action in an appropriate U.S. District Court within 90 calendar days of your receipt of this decision." Id. at 7 (emphasis in original). The dismissal is dated August 20, 2013. Id. Plaintiff states in her answers to the court's interrogatories that she received the EEOC decision in August 2013. [ECF No. 23]. Plaintiff filed her complaint in this court eight months later, on April 30, 2014. [ECF No. 1].
A. Standards on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), "a complaint 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)). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support" the legal conclusion. Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001). Furthermore, in analyzing a Rule 12(b)(6) motion to dismiss, a court may consider "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Defendant argues that Plaintiff's Title VII claims are barred because she failed to contact an EEOC officer within 45 days of the alleged adverse action. [ECF No. 34-1 at 2-4]. Plaintiff was on LWOP status beginning November ...