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Pelletier v. Brennan

United States District Court, D. Maine

February 28, 2019

MILLIE PELLETIER, Plaintiff,
v.
MEGAN BRENNAN, Postmaster General, and UNITED STATES POSTAL SERVICE, Defendants.

          ORDER ON DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS

          JON D. LEVY CHIEF U.S. DISTRICT JUDGE.

         The Defendants, Postmaster General Megan Brennan and the United States Postal Service, move for a partial judgment on the pleadings as to five of the claims asserted in Plaintiff Millie Pelletier's complaint.[1] The complaint includes eight counts, several of which assert multiple claims. The Defendants specifically challenge Pelletier's claims for failure to accommodate under the Rehabilitation Act, (Count 1 ¶ 329); national origin discrimination under Title VII (Count 4); age discrimination under the Age Discrimination in Employment Act (ADEA) (Count 5); violation of the Notification and Federal Employee Antidiscrimination and Retaliation Act (NO FEAR Act) (Compl. ¶ 341); and violation of the Privacy Act (Compl. ¶ 307). I grant the motion for partial judgment on the pleadings with respect to the age discrimination claim (Count 5) and deny the motion as to all other challenged claims.

         The motion (ECF No. 10) also asserts that the United States Postal Service is misjoined as a party-defendant under Fed.R.Civ.P. 21 because Pelletier's federal employment discrimination claims lie exclusively against the Postmaster General, Megan Brennan, in her official capacity.[2] Pelletier concedes that the Postmaster General is the only proper defendant. I therefore dismiss the United States Postal Service as a defendant.

         I. FACTUAL BACKGROUND

         A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) is “treated in much the same way” as a motion to dismiss under Rule 12(b)(6). Kando v. R.I. State Bd. of Elections, 880 F.3d 53, 58 (1st Cir. 2018). Therefore, I treat the following facts alleged in the complaint as true for purposes of the motion for judgment on the pleadings. See id.

         Pelletier began working for the United States Postal Service (“the Postal Service”) as a mail handler in 1986. She has held various positions within the Postal Service since then, including positions in sales beginning in 1997. Pelletier's current title is International Sales Specialist, level EAS-21, though she has not worked since March 2016, when her medical team advised her that she could no longer work. The complaint alleges that Pelletier sustained several injuries between 1999 and 2016, at least some of which were work-related. The complaint further alleges discrimination in multiple forms, beginning around 2000, and continuing through when Pelletier last worked, in 2016.

         A. Early Injuries and Alleged Discrimination

         In 1997, Pelletier, who is Franco-American and has French-Canadian ancestry, became the first Postal Service employee to be domiciled abroad when she was given an expatriate assignment in Montreal, Canada. After she successfully completed that year-long detail and returned to the United States, Pelletier developed injuries related to her work, which were diagnosed in 1999 and 2001. Her initial diagnoses included bilateral carpal tunnel, extensor tendinosis with shoulder and neck involvement, and a herniated disc. She underwent several surgeries for those conditions in 2000, 2001, and 2002. The complaint alleges that the Postal Service failed to fully comply with the restrictions that Pelletier's doctors recommended after her surgeries, causing her conditions to worsen.

         In 2006, Pelletier relocated from Maine to Washington, D.C., after she was awarded a position as a Global Account Specialist, level EAS-21, with the Postal Service's Inbound Global Business Team. She was the only female member of a five-person sales team. Pelletier worked in Washington, D.C., between 2006 and 2009, during which one of her male coworkers regularly called her “Barbie Doll” in front of other coworkers. ECF No. 1 ¶ 60. Another coworker called her a “soft woman” and asked her to perform secretarial work for him, though that was not part of Pelletier's job responsibilities. Id. ¶¶ 71-72. Pelletier relocated to Virginia for a temporary detail in a level EAS-23 position from 2009 to 2010. Colleagues continued to call her “Barbie Doll.” Id. ¶ 79.

         When Pelletier relocated to Virginia in 2009, the complaint alleges that she was no longer afforded injury accommodations. Pelletier relocated again in 2010, when she returned to Maine and resumed a level EAS-21 position. The position required the same job responsibilities as the level EAS-23 position she had temporarily held in Virginia, but at a lower pay level. The District Sales Manager, Anthony Gibson, secured office space for Pelletier in the Carrier Annex in Saco, rather than at the District Office in Portland. The complaint alleges that the first time that Pelletier met with Gibson, he and another manager commented on Pelletier's “ethnic origin” and told her she was “not really French.” Id. ¶ 100. The complaint also alleges that Gibson “isolated and targeted female employees, ” including Pelletier, id. ¶¶ 104, 106, 133-34, and treated Pelletier differently than other employees because of her disabilities, see, e.g., Id. ¶¶ 176-79.

         In 2012, Pelletier experienced an exacerbation of her injuries and underwent surgery for nerve impingement of the neck and left shoulder. Pelletier was also diagnosed with a new condition in her left shoulder during the surgery. She was out of work for six months. Before she returned to work, Pelletier provided medical documentation to the Postal Service recommending new restrictions and accommodations. The recommended accommodations included voice activation software for Pelletier's computer, an adjustable work station, a safer vehicle, an indoor parking space, and an office in Portland.

         B. Administrative Claims

         Beginning in 2013, Pelletier filed five claims with the Equal Employment Opportunity Commission (EEOC), alleging discriminatory treatment by the Postal Service.

         1. First EEOC Filing Made in June 2013

         On April 23, 2013, Pelletier experienced pain and aggravated numbness in her neck, shoulder, arms and hands while she was driving in her work vehicle to meet with a customer. She immediately sought medical attention and was given a medical note for two weeks of leave from work. In response, a manager (or managers-the complaint does not specify) informed her that she would need to use her sick leave for the absence. After Pelletier returned to work, Gibson placed his hand on Pelletier's injured shoulder after a meeting and asked her whether it really hurt. These events led Pelletier to initiate the EEOC grievance process for the first time on June 1, 2013, in a filing alleging disability discrimination.[3]

         In support of Pelletier's claim of disability discrimination, the informal EEOC complaint alleges that (1) a Postal Service Leave Specialist improperly placed Pelletier on leave without pay status when she was out for medical treatment and also prevented her from buying back leave; (2) there was a delay in the installation of her voice activation software; (3) her manager provided no assistance with the software issue and instead responded to her medical restrictions with sarcasm; (4) she was isolated in her Saco office with no technology or sales support, unlike similarly situated employees in other states; and (5) she was expected to meet the same goals as employees in higher EAS-level positions who were paid more than she was. Pelletier alleged that these conditions combined to create a hostile work environment.

         2. Second EEOC Complaint Filed in August 2013

         The two-week period during which Pelletier could have filed a formal complaint in her first EEOC case lapsed on July 15, 2013. The following evening, Gibson called Pelletier and told her not to report to work the next day because he had no work available that would accommodate her restrictions. On August 12, 2013, Pelletier filed a new EEOC complaint alleging discrimination on the basis of sex and retaliation for her prior EEOC activity. Later that year, Pelletier settled the retaliation claim with the Postal Service. As part of the settlement, Pelletier agreed to withdraw her claims of “discrimination based on sex (female), physical disability (neck) and . . . retaliation for prior EEO activity, ” and waive her “rights to any further appeal of [her] complaint through the EEO process.” ECF No. 9-4 at 2.

         3. Third EEOC Complaint Filed in July 2015

         In the fall of 2014, the Postal Service posted job announcements for two sales positions, one level EAS-23 and one level EAS-24, with the Global Direct Entry/International Inbound Team. Pelletier applied for both positions and was interviewed. She received the top scores and was deemed the top qualified candidate for both positions. She was notified on March 13, 2015, however, that she had not been selected for either position. When she asked the selecting official, supervisor Frank Cebello, why she had not been chosen, he told her that he was “being pressured, ” that no one had been selected from within the Postal Service, and that the jobs would be reposted externally. ECF No. 1 ¶ 245. The complaint alleges that Gibson had sent Cebello emails saying that “if we ...


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