Carpenter v. DeJoy

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

CHARLES CARPENTER, SR., )

Plaintiff,

v. No. 4:22-cv-00601-JAR

LOUIS DEJOY, ;

Defendant.

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiff Charles Carpenter, Sr. for

leave to commence this civil action without prepayment of the required filing fee. (Docket No. 2).

Having reviewed the motion, the Court finds that it should be granted. See 28 U.S.C. § 1915(a)(1).

Additionally, for the reasons discussed below, the Court will direct the Clerk of Court to issue

process on defendant Louis DeJoy as to plaintiffs Rehabilitation Act claim. However, plaintiff's

claim under the Americans with Disabilities Act will be dismissed.

Legal Standard on Initial Review

Under 28 U.S.C. § 1915(e)(2), the Court is required to dismiss a complaint filed in forma

pauperis if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. To

state a claim, a plaintiff must demonstrate a plausible claim for relief, which is more than a “mere

possibility of “misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (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.” Jd. at 678. Determining whether

a complaint states a plausible claim for relief is a context-specific task that requires the reviewing

court to draw upon judicial experience and common sense. Jd. at 679. The court must “accept as

true the facts alleged, but not legal conclusions or threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements.” Barton v. Taber, 820 F.3d 958, 964 (8" Cir.

2016). See also Brown v. Green Tree Servicing LLC, 820 F.3d 371, 372-73 (8 Cir. 2016) (stating

that court must accept factual allegations in complaint as true, but is not required to “accept as true

any legal conclusion couched as a factual allegation”).

When reviewing a pro se complaint under 28 U.S.C. § 1915(e)(2), the Court must give it

the benefit of a liberal construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). A “liberal

construction” means that if the essence of an allegation is discernible, the district court should

construe the plaintiff's complaint in a way that permits his or her claim to be considered within

the proper legal framework. Solomon v. Petray, 795 F.3d 777, 787 (8" Cir. 2015). However, even

pro se complaints are required to allege facts which, if true, state a claim for relief as a matter of

law. Martin v. Aubuchon, 623 F.2d 1282, 1286 (8" Cir. 1980). See also Stone v. Harry, 364 F.3d

912, 914-15 (8 Cir. 2004) (stating that federal courts are not required to “assume facts that are

not alleged, just because an additional factual allegation would have formed a stronger

complaint”). In addition, affording a pro se complaint the benefit of a liberal construction does not

mean that procedural rules in ordinary civil litigation must be interpreted so as to excuse mistakes

by those who proceed without counsel. See McNeil v. United States, 508 U.S. 106, 113 (1993).

The Complaint

Plaintiff is a self-represented litigant who brings this civil action pursuant to the Americans

with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973 (RA). (Docket No. 1 at 1-

2). He names United States Postmaster General Louis DeJoy as defendant. (Docket No. 1 at 2). In

the complaint, plaintiff asserts that he suffered harassment, retaliation, a failure to accommodate

his disability, and termination of his employment. (Docket No. 1 at 4). More specifically, plaintiff

alleges that he was injured on the job, and that “management never came to the scene of the injury

in a timely manner,” yet “contested everything.” (Docket No. | at 5). Due to his injury, he states

that he was terminated from his employment. As such, he is seeking “compensation from [his]

date of injury.” (Docket No. 1 at 7).

Concerning his administrative remedies, plaintiff asserts that he has filed a charge of

discrimination with the Equal Employment Opportunity Commission (EEOC), and has received a

Notice of Right-to-Sue Letter. (Docket No. 1 at 3). Attached to the complaint is a portion of a Final

Agency Decision dated April 11, 2022. (Docket No. 1-2 at 1-2). The agency decision determined

that “the evidence [did] not support a finding that the complainant was subjected to discrimination

as alleged,” and closed the complaint “with a finding of no discrimination.” (Docket No. 1-2 at 2).

The Final Agency Decision includes notice of plaintiff's right to file a civil action. (Docket No. 1-

2 at 1). Also attached is a portion of a Notice of Final Action in plaintiff's case, dated March 9,

2022. (Docket No. 1-2 at 2-3). The Court has reviewed both these exhibits and will treat them as

part of the pleadings.'

Discussion

Plaintiff is a self-represented litigant who brings this civil action against Postmaster

General DeJoy, alleging violations of the RA and the ADA. For the reasons discussed below, the

Court will direct the Clerk of Court to issue process on defendant as to plaintiff's RA claim.

However, plaintiff's claim under the ADA will be dismissed.

! See Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is part of the pleading for

all purposes”). See also Reynolds v. Dormire, 636 F.3d 976, 979 (8 Cir. 2011) (stating that “while ordinarily, only

the facts alleged in the complaint are considered in determining whether it states a claim, materials attached to the

complaint as exhibits may be considered in construing the sufficiency of the complaint”); and Pratt v. Corrections

Corp. of America, 124 Fed. Appx. 465, 466 Cir. 2005) (explaining that “the district court was required to consider

the allegations not only in [plaintiff's] pro se complaint, but also in his motion to amend, his response to defendants’

motion to dismiss, and the attachments to those pleadings”).

A. Rehabilitation Act Claim

Congress enacted the RA as a comprehensive federal program, similar to the ADA, meant

to ensure that individuals with disabilities would not be denied benefits from or be subjected to

discrimination under any program or activity that receives federal funding. Argenyi v. Creighton

Univ., 703 F.3d 441, 448 (8" Cir. 2013). The RA provides, in relevant part, “that no otherwise

qualified individual with a disability in the United States shall, solely by reason of her or his

disability, be excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance.” Wojewski v.

Rapid City Reg’l Hosp., Inc., 450 F.3d 338, 344 (8 Cir. 2006). By its terms, the RA applies

specifically to alleged disability discrimination by the United States Postal Service. See 29 U.S.C.

§ 794(a).

In order to seek relief under the RA, a plaintiff must first exhaust his or her administrative

remedies. Frye v. Aspin, 997 F.2d 426, 428 (8"" Cir. 1993) (stating “that a plaintiff suing under the

Rehabilitation Act must exhaust administrative remedies”). See also McAlister v. Secretary of

Health & Human Servs., 900 F.2d 157, 158 (8 Cir. 1990) (‘Administrative remedies must be

exhausted before a federal employee may bring an employment □ naOn claim against a

federal employer”); and Gardner v. Morris, 752 F.2d 1271, 1278 (8"" Cir. 1985) (explaining that

the RA incorporated by reference provisions of Title VII of the Civil Rights Act of 1964, which

require plaintiff to exhaust administrative remedies before filing a discrimination claim in court).

The court must liberally construe an administrative charge for exhaustion purposes; however, a

court will not invent a claim that was simply not made. Cottrill v. MFA, Inc., 443 F.3d 629, 635

(8" Cir. 2006).

Here, plaintiff alleges that he suffers from a disability that occurred during the course of

his employment, and that his employer terminated him on the basis of this disability. The Court

must accept plaintiffs allegations as true and make all reasonable inferences in his favor. See Jones

v. Douglas Cty. Sheriff's Dep’t, 915 F.3d 498, 499 (8 Cir. 2019). Furthermore, the Court notes

that plaintiffs pro se complaint is held to less stringent standards than formal pleadings drafted by

lawyers. Jackson v. Nixon, 747 F.3d 537, 541 (8" Cir. 2014). ,

With regard to exhaustion, plaintiff asserts that he has filed a charge of discrimination with

the EEOC, and that he has received a right-to-sue letter. Attached to the complaint is part of a final

agency decision, which appears to indicate that plaintiff filed a charge of discrimination, though

his complaint was closed. This document also gives notice to plaintiff of his right to sue within

either 90 or 180 days, depending on whether he appealed. Plaintiff filed this civil action on June

3, 2022, 53 days after the April 11, 2022 right-to-sue letter. For purposes of initial review, it thus

appears that plaintiff has exhausted his administrative remedies. Therefore, the Clerk of Court will

be directed to issue process on defendant as to plaintiff's claim under the RA.

B. Americans with Disabilities Act Claim

In this case, plaintiff appears to have been an employee of the United States Postal Service.

The ADA, however, specifically excludes the United States from its definition of “employer.” See

42 U.S.C. § 12111(5)(B) (providing that “[t]he term ‘employer’ does not include...the United

States, a corporation wholly owned by the government of the United States, or an Indian tribe”).

In other words, as a former federal employee, plaintiff is not allowed to recover separately under

the ADA. See Carroll v. Potter, 163 Fed. Appx. 450, 450 (8 Cir. 2006) (agreeing with district

court that plaintiff “could not file suit under the ADA to redress alleged discrimination during his

tenure as a federal employee”); Loos v. Napolitano, 665 F.Supp.2d 1054, 1058 (D. Neb. 2009)

.

(stating that plaintiff's remedy for disability discrimination in her federal employment is the RA,

and that claims under the ADA must be dismissed for failure to state a claim); Jones v. Potter, 488

F.3d 397, 403 (6 Cir. 2007) (stating that the RA, not the ADA, “constitutes the exclusive remedy

for a federal employee alleging disability-based discrimination”); and Mannie v. Potter, 394 F.3d

977, 982 (7" Cir. 2005) (stating that postal employee had no remedy for employment

discrimination under ADA because she was a federal employee; rather, her claims had to be

evaluated under the RA). Because plaintiff can only recover under the RA, the claim under the

ADA must be dismissed.

C. Motion for Appointment of Counsel

Plaintiff has filed a motion for appointment of counsel. (Docket No. 3). In civil cases, a pro

se litigant does not have a constitutional or statutory right to appointed counsel. Ward v. Smith,

721 F.3d 940, 942 (8" Cir. 2013). Rather, a district court may appoint counsel in a civil case if the

court is “convinced that an indigent plaintiff has stated a non-frivolous claim...and where the

nature of the litigation is such that plaintiff as well as the court will benefit from the assistance of

counsel.” Patterson v. Kelley, 902 F.3d 845, 850 (8" Cir. 2018). When determining whether to

appoint counsel for an indigent litigant, a court considers relevant factors such as the complexity

of the case, the ability of the pro se litigant to investigate the facts, the existence of conflicting

testimony, and the ability of the pro se litigant to present his or her claim. Phillips v. Jasper Cty.

Jail, 437 F.3d 791, 794 (8 Cir. 2006).

After reviewing these factors, the Court finds that the appointment of counsel is not

warranted at this time. Plaintiff has demonstrated, at this point, that he can adequately present his

claims to the Court. Additionally, neither the factual nor the legal issues in this case appear to be

complex. The Court will entertain future motions for appointment of counsel as the case

progresses.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs motion for leave to proceed in forma pauperis

(Docket No. 2) is GRANTED.

IT IS FURTHER ORDERED that plaintiff's motion for appointment of counsel (Docket

No. 3) is DENIED at this time.

IT IS FURTHER ORDERED that the Clerk of Court is directed to issue process or cause

process to issue on defendant Louis DeJoy, Postmaster General of the United States Postal Service,

475 L’Enfant Plaza SW, Washington, D.C. 20260-3100, as to plaintiffs claim under the

Rehabilitation Act.

IT IS FURTHER ORDERED that the Clerk of Court is directed to issue process or cause

process to issue on Merrick Garland, United States Attorney General, U.S. Department of Justice,

950 Pennsylvania Ave. NW, Washington, D.C. 20530-0001, as to plaintiff's claim under the

Rehabilitation Act.

IT IS FURTHER ORDERED that the Clerk of Court is directed to issue process or cause

process to issue on Sayler A. Fleming, United States Attorney, Thomas F. Eagleton Courthouse,

111 South 10" Street — Room 20.333, St. Louis, MO 63102, as to plaintiffs claim under the

Rehabilitation Act.

IT IS FURTHER ORDERED that plaintiffs claim under the Americans with Disabilities

Act is DISMISSED without prejudice. A separate order of partial dismissal will be entered

herewith.

IT IS FURTHER ORDERED that an appeal from this order of partial dismissal would

not be taken in good faith.

él

Dated this _( ‘day of Lasgaedl , 2022.

vous J ROSS

STATES DISTRICT JUDGE

)