Evan v. Brennan

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DEBORAH A. EVAN,

Plaintiff CIVIL ACTION NO. 3:20-CV-49

v.

(MEHALCHICK, M.J.)

POSTMASTER GENERAL LOUIS

DEJOY et al.,

Defendants

ORDER

This is a pro se civil rights action, initiated upon the filing of the original fee-paid

complaint in this matter by Plaintiff Deborah A. Evan (“Evan”) on January 10, 2020,

asserting claims against Defendants Postmaster General Louis DeJoy and Eric Wanyo

(collectively, “Defendants”). On September 17, 2020, Evan filed a supplement1 to her

complaint.2 (Doc. 11). Presently before the Court is Defendants’ motion to dismiss and/or

1 Evan filed a supplement to the amended complaint on September 17, 2020. (Doc.

11). Federal Rule of Civil Procedure 15(d) allows a party to file and serve a supplemental

pleading with leave of the court. Evan failed to file a motion requesting leave prior to the

supplemental pleading being filed. Therefore, any claims raised in the supplement pleading

cannot be considered and are dismissed. Stockton v. McGinley, No. 1:22-CV-00902, 2023 WL

27346, at *5 (M.D. Pa. Jan. 3, 2023) (dismissing claims raised in plaintiff’s supplemental

pleading where plaintiff failed to file a motion requesting leave prior to filing supplement).

2 When Evan initially filed her complaint, Megan J. Brennan was the Postmaster

General for the United States Postal Service. (Doc. 22, at 1). Evan, instead, served Louis

DeJoy, the current Postmaster General of the United States Postal Service. (Doc. 13; Doc.

22, at 1). Therefore, the Defendants are now Postmaster General Louis DeJoy (“DeJoy”) and

Eric Wanyo (“Defendants”).

motion for summary judgment. (Doc. 41). On July 19, 2021, the parties consented to proceed

before the undersigned United States Magistrate Judge pursuant to Fed. R. Civ. P. 73 and 28

U.S.C. § 636(c). (Doc. 29). For the following reasons, Defendants’ motion shall be

GRANTED. (Doc. 41).

I. BACKGROUND AND PROCEDURAL HISTORY

Evan, a United Stated Postal Service (USPS) employee, filed this employment

discrimination case on January 10, 2022, alleging her supervisor, Wayno, subjected her to

various work conditions. (Doc. 1, at 11). Specifically, Evan alleges that on July 15, 2019,

Wanyo spoke unprofessionally to Evan, argued with Evan and badgered and stalked her on

multiple occasions. (Doc. 1, at 3-4). Evan also alleges that Wayno told her that he “wasn’t

her personal assistant,” sent Wayno home without pay, and disapproved her Family and

Medical Leave Act (FMLA) leave. (Doc. 1, at 3-4). Evan alleges that she has been diagnosed

with midsternal chest pain, anxiety, depression, and stress. (Doc. 1, at 4). Evan seeks

compensatory damages and the FMLA leave returned to her. (Doc. 1, at 5). Liberally

construed, Evan’s complaint alleges a cause of action for harassment and hostile work

environment under Title VII of the Civil Rights act of 1964 (“Title VII”). (Doc. 1).

Defendants filed a motion to dismiss or, in the alternative, for summary judgment on

May 9, 2022, and a brief in support of their motion to dismiss on June 6, 2022, along with a

corresponding statement of facts. (Doc. 41; Doc. 44; Doc. 45). On June 9, 2022, Evan filed a

motion for entry of default and a motion for default judgment. (Doc. 46; Doc. 47). On

February 24, 2023, the Court denied Evan’ motion for entry of default and/or default

judgment and ordered Evan to file her brief in opposition to Defendants’ motion to dismiss

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and/or motion for summary judgment (Doc. 41) on or before Friday, March 3, 2023. (Doc.

52).

On March 14, 2023, Evan filed a brief in opposition to Defendants’ motion to dismiss

and/or motion for summary judgment, and Defendants filed a reply brief to Evan’s motion

on that same day.3 (Doc. 53; Doc. 54). The motion has been fully briefed and is ripe for

disposition. (Doc. 41).

II. LEGAL STANDARD

Defendants framed this motion as one seeking dismissal under Rule 12(b)(6) of the

Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to

Rule 56 based on Evan’s failure to exhaust. (Doc. 41). When a party moves to dismiss, but

where “matters outside the pleadings are presented to and not excluded by the court, the

motions shall be treated as one for summary judgment and disposed of as provided in Rule

56.” Fed. R. Civ. P. 12(d). Typically, when a court converts a motion to dismiss into a motion

for summary judgment under Rule 56, notice must be given to all parties of the court’s intent

to do so. Garcia v. Newtown Twp., No. 09-CV-3809, 2010 WL 785808, at *3 (E.D. Pa. March

5, 2010). However, if a motion to dismiss has been filed with an alternative request for

3 Pursuant to Pa. M.D. Local Rule 7.6, Evan had until March 3, 2023, to file a response

to Defendants’ motion to dismiss and/or for summary judgment. Her March 14, 2023,

submission is untimely and without leave of Court. Nonetheless, given Evan’s pro se status,

the Court will consider her brief in opposition. Morales v. Stanton, No. 3:18-CV-0852, 2020

WL 5215132, at *1 (M.D. Pa. Sept. 1, 2020) (considering pro se plaintiff’s untimely

submission). Furthermore, because Evan has not filed a response to Defendants’ statement of

material facts, the Court deems admitted the facts submitted by the Defendants. See Fed. R.

Civ. P. 56(e); see also Pa. M.D. Local Rule 56.1.

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summary judgment, the Court of Appeals for the Third Circuit has found that the alternative

filing is sufficient to “place the parties on notice that summary judgment might be

entered.” Latham v. United States, 306 F. App’x 716, 718 (3d Cir. 2009) (citing Hilfirty v.

Shipman, 91 F.3d 573, 578-79 (3d Cir. 1996)). Accordingly, the Court finds that it is

appropriate to treat Defendants’ motion as one for summary judgment.

Summary judgment should be granted only if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence “is such

that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at

248. In deciding a summary judgment motion, all inferences “should be drawn in the light

most favorable to the non-moving party, and where the non-moving party’s evidence

contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co.

of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

A federal court should grant summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).

The Court need not accept mere conclusory allegations, whether they are made in the

complaint or a sworn statement. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). In

deciding a motion for summary judgment, the court’s function is not to make credibility

determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249.

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Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249.

“Although the party opposing summary judgment is entitled to the ‘benefit of all

factual inferences in the court’s consideration of a motion for summary judgment, the

nonmoving party must point to some evidence in the record that creates a genuine issue of

material fact.’ “ Velentzas v. U.S., No. 4: 07-CV-1255, 2010 WL 3896192, at *7 (M.D. Pa. Aug.

31, 2010) (quoting Goode v. Nash, 241 F. App’x 868, 869 (3d Cir. 2007) (citation omitted); see

also Beenick v. LeFebvre, 684 F. App’x 200, 206 (3d Cir. 2017) (stating the purpose of requiring

parties to cite to particular parts of the record in their briefs about a motion for summary

judgment is to “assist the court in locating materials buried in a voluminous record”)

(quoting Fed. R. Civ. P. 56(c)(1)(A)). The opposing party “cannot rest solely on assertions

made in the pleadings, legal memorandum, or oral argument.” Velentzas, 2010 WL 3896192,

at *7 (quoting Goode, 241 F. App’x at 868). If the non-moving party “fails to make a showing

sufficient to establish the existence of an element essential to [the non-movant’s] case, and on

which [the non-movant] will bear the burden of proof at trial,” Rule 56 mandates the entry of

summary judgment because such a failure “necessarily renders all other facts

immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jakimas v. Hoffmann–La

Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

III. DISCUSSION

Defendants move to dismiss Evan’s complaint on three grounds, arguing: 1) the Court

should dismiss Eric Wanyo as a Defendant as the only proper defendant in a federal

employee’s Title VII action is the head of the appropriate agency; 2) Evan’s discrimination

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claims should be dismissed because she failed to exhaust her administrative remedies; and 3)

Evan’s complaint failed to state a claim for relief. (Doc. 44, at 2).

In opposition, Evan “opposes the motion and brief filed by the defendant for lack of

evidence no merit to support their evidence.” (Doc. 53, at 1). Evan failed to oppose any issues

raised. (Doc. 53, at 1-4). Rather, Evan reiterated the facts in her complaint and supplement.

(Doc, 53, at 2-4).

A. THE POSTMASTER GENERAL IS THE ONLY PROPER DEFENDANT

Defendants argue the only proper defendant in Evan’s Title VII action is the

Postmaster General under 42 U.S.C. 2000e-16 and that the Court should dismiss Defendant

Wanyo from the lawsuit. (Doc. 44, at 2-3).

On the outset, for federal employment discrimination actions brought under Title VII

“the head of the department, agency, or unit, as appropriate, shall be the defendant.” 42

U.S.C. 2000e-16(c). Wilson v. Potter, 159 F. Appx. 415, 417(3d Cir. 2005); Appleby v. Brennan,

No. 1:16-CV-1491, 2018 WL 7443130, at *9 (M.D. Pa. Dec. 18, 2018), report and

recommendation adopted, No. 1:16-CV-1491, 2019 WL 913810 (M.D. Pa. Feb. 25, 2019)

(affirming the District Court’s dismissal of the agency and all Postal Service employees other

than the Postmaster General in multifarious discrimination claim including disability

discrimination).

For these reasons, the Court will dismiss any claims against Defendant Wayno with

prejudice.

B. EEOC EXHAUSTION

A plaintiff must exhaust all required administrative remedies before filing an action

for employment discrimination under Title VII, the ADEA and the ADA. Mandel v. M & Q

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Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013) (quoting Robinson v. Dalton, 107 F.3d 1018,

1020 (3d Cir. 1997)); Purtill v. Harris, 658 F.2d 134, 138–39 (3d Cir. 1981); Churchill v. Star

Enters., 183 F.3d 184, 190 (3d Cir. 1999). To exhaust, a plaintiff must file a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”) and receive

a right-to-sue letter. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 163 (3d Cir. 2013). Like

a statute of limitations, a failure to exhaust administrative remedies is an affirmative

defense. Slingland v. Donahoe, 542 F. App’x 189, 191 (3d Cir. 2013) (citing Robinson, 107 F.3d

at 1021, 1022). Defendants argue allegations supporting Evan’s harassment claims based

upon sex, retaliation, and disability stated in paragraphs two through 12 of the complaint are

time-barred and subject to dismissal for failing to timely appeal the EEOC decision to the

Office of Federal Operations (“OFO”). (Doc. 44, at 9-10).

Evan alleges that on July 15, 2019, Wanyo spoke unprofessionally to her and badgered

and stalked her on multiple occasions. (Doc. 1, at 3-4). Evan also alleges that Wayno told her

that he “wasn’t her personal assistant,” sent her home without pay, and disapproved her

FMLA leave. (Doc. 1, at 3-4). Identical allegations were stated in the EEOC matter for agency

case number 4C-170-0086-18. (Doc. 45-1, at 32-33). On July 24, 2019, a final agency decision

was issued, informing Evan that she was required to file her “appeal within 30 calendar days

of receipt this decision.” (Doc. 45, ¶¶ 9-11); (Doc. 45-1, at 1-2, 63-64). On August 29, 2019,

Evan filed an appeal. (Doc. 45, ¶ 13); (Doc. 45-1, at 69). The OFO dismissed Evan’s appeal

as untimely. (Doc. 45, ¶ 15); (Doc. 45-1, at 70).

The Court finds Evan failed to timely to timely exhaust her administrative remedies in

connection with her appeal to the Commission. Brown v. GSA, 425 U.S. 820, 829-834

(1976) (dismissal upheld where the complainant did not file judicial complaint within 30 days

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of the final agency action as required by 42 U.S.C. § 2000e–16(c)). Here, Evan failed to file a

timely appeal of the Board’s July 24, 2019, decision because she did not file her administrative

appeal with the EEOC within the thirty-day period prescribed by EEOC regulations. (Doc.

45-1, at 70). Nor did she file this civil action in federal court within ninety days of the receipt

of the Final Agency Decision. (Doc. 1).

After a plaintiff receives a Final Agency Decision, he may appeal the decision to the

EEOC within 30 days of receipt, see 29 C.F.R. §§ 1614.401(a), 1614.402(a), and then file a

civil action in the district court within ninety days of receipt of the EEOC’s final decision of

an appeal. See 29 C.F.R. § 1614.407. These deadlines function as a statute of limitations, and

once expired, generally bar a plaintiff from seeking judicial review. See Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 95 (1990); Winder v. Postmaster Gen. of U.S., 528 F. App’x 253, 255 (3d

Cir. 2013) (noting that the failure to bring a claim within the EEO limitations period generally

bars relief).

In this case, more than ninety days elapsed between Evan’s receipt of the Final Agency

Decision and her filing of this complaint. (Doc. 1). Furthermore, Evan did not file a timely

administrative appeal with the EEOC. (Doc. 45-1, at 69). To be timely filed with the EEOC,

an administrative appeal of the Final Agency Decision must be postmarked within thirty days

of receipt of the decision. 29 CFR § 1614.402. Evan filed an appeal with the EEOC on August

29, 2019, one day later than the 30-day time limit set forth in the EEOC regulation. (Doc. 45-

1, at 69-71).

Additionally, Evan has failed to state any equitable reason for disregarding the

statutory requirement. (Doc. 1); (Doc. 53); Lewis v. DeJoy, No. 1:21-CV-195, 2021 WL

4317992, at *5 (M.D. Pa. Sept. 23, 2021), aff’d sub nom. Lewis v. Postmaster Gen. of United States,

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No. 21-2958, 2022 WL 109007 (3d Cir. Jan. 12, 2022) (dismissing plaintiff’s disability and

employment discrimination case where plaintiff failed to make a showing of the type of an

extraordinary circumstance necessary to warrant tolling of the limitations); Green v. Postmaster

Gen. of U.S., 437 F. App’x 174, 178 (3d Cir. 2011) (concluding plaintiff was not entitled to

equitable tolling despite allegations that during the period for initiating an action with the

EEO, she was severely depressed).

Accordingly, the Court must dismiss Evan’s claims under Title VII for failure to

exhaust administrative remedies. Brown, 425 U.S. at 829–834 (dismissal upheld where the

complainant did not file judicial complaint within 30 days of the final agency action as

required by 42 U.S.C. § 2000e–16(c)); Miller v. Rosenker, 578 F. Supp. 2d 67, 71 (D.D.C. 2008)

(finding plaintiff failed to exhaust her administrative remedies because he did not file his

administrative appeal with the EEOC within the thirty-day period prescribed by EEOC

regulations).

C. TITLE VII CLAIMS

In the alternative, Defendants argue that Evan’s complaint fails state a claim upon

which relief can be granted. (Doc. 44, at 12). Specifically, Defendants aver the allegations

contained in Evan’s complaint fail to state a claim for age, sex, and disability discrimination

and retaliation under Title VII, the Age Discrimination in Employment Act 1967, 29 U.S.C.

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§§ 621-634 (“ADEA”) and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§

12112-12117.4

Evan alleges that Wanyo, her supervisor, harassed her on several occasions during

July and August of 2018. (Doc. 1, at 3-4). The creation of a hostile work environment through

harassment, this Court has long recognized, is a form of proscribed discrimination. Vance v.

Ball State University, 570 U.S. 421, 452 (2013). “To succeed on a hostile work environment

claim [against the employer], the plaintiff must establish that 1) the employee suffered

intentional discrimination because of [his protected characteristic], 2) the discrimination was

severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the

discrimination would detrimentally affect a reasonable person in like circumstances, and 5)

the existence of respondeat superior liability.” Stroud v. Susquehanna Cty., No. CV 3:17-2183,

2018 WL 3727388, at *7 (M.D. Pa. Aug. 6, 2018); Mandel, 706 F.3d at 167.

4 As stated, Defendants argue Evan’s complaint does not state a claim for relief under

the ADA or ADEA. (Doc. 44, at 12-13). However, Evan’s complaint does not reference the

ADA or ADEA at all, and the Court declines to construe it to include an ADA or ADEA

claim, as it alleges no facts at all that might support recovery under such a legal theory. Reaves

v. Rossman, No. 3:21-CV-01282, 2022 WL 18539772, at *1 (M.D. Pa. July 1, 2022), report and

recommendation adopted, No. 3:21-CV-1282, 2023 WL 1348508 (M.D. Pa. Jan. 31, 2023)

(declining to construe plaintiff’s complaint under the ADA, where complaint alleged no facts

to support recovery under Act); Rowbottom v. City of Harrisburg, Civil Action No. 19-cv-00657,

2020 WL 6866262, at *4 (M.D. Pa. Jan. 23, 2020) (“[T]he review of a pro se complaint focuses

on whether the facts alleged state a claim under any legal theory, not just those explicitly named

in the complaint.”), report & recommendation adopted by 2020 WL 4696714 (M.D. Pa. Aug. 13,

2020).

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Evan alleges that she was harassed by Wanyo when he spoke unprofessionally to her

and badgered and stalked her around the office on two occasions. (Doc. 1, ¶¶ 2, 4, 10). Evan

alleges Wanyo called her a liar and told her he wasn’t her personal assistant when she

requested help. (Doc. 1, ¶¶ 3-4). Evan also alleges that Wanyo denied her FMLA sick leave.

(Doc. 1, ¶ 10). Harassment is actionable under Title VII only if it is so severe or pervasive as

to alter the conditions of the victim’s employment and create an abusive working

environment. Whether an environment is sufficiently hostile or abusive must be judged by

looking at all the circumstances, including the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with an employee’s work performance. Eldeeb v. Potter,

675 F. Supp. 2d 521, 523 (E.D. Pa. 2009); Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 509

(2001).

An employer’s liability for such harassment may depend on the status of the harasser.

“The basis of an employer’s liability for a hostile work environment claim depends on whether

the harasser is the victim’s supervisor or coworker.” Mandel, 706 F.3d at 169 (citing Huston,

568 F.3d at 104 (3d Cir. 2009)). An employer is vicariously liable to a victimized employee

“for an actionable hostile environment created by a supervisor with immediate (or

successively higher) authority over the employee.” Hitchens v. Montgomery Cty., 278 F. App’x

233, 235–36 (3d Cir. 2008) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998)).

If, on the other hand, “the person charged with creating the hostile environment is the

plaintiff’s co-worker, and not a supervisor, liability exists [only] where the [employer] knew

or should have known of the harassment and failed to take prompt remedial action.” Hitchens,

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278 F. App’x at 236 (quoting Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999))

(internal quotation marks omitted).

Here, Evan has not plausibly alleged that the harassment was “severe or pervasive

enough to create an objectively hostile or abusive work environment—an environment that a

reasonable person would find hostile or abusive.” Wright v. Providence Care Ctr., LLC, 822 F.

App’x 85, 96 (3d Cir. 2020) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The

accused conduct must be “so severe or pervasive as to constitute an objective change in the

conditions of employment.” Sanchez v. SunGard Availability Servs. LP, 362 F. App’x 283, 287

(3d Cir. 2010) (citing Faragher, 524 U.S. at 787; Greer v. Mondelez Global, Inc., 590 F. App’x.

170, 173 (3d Cir. 2014) (“‘Mere offensive utterances’ are insufficient to create a hostile

environment, even if they engender offensive feelings in an employee”) (quoting Faragher, 524

U.S. at 786) (“[T]he ordinary tribulations of the workplace,” however, “such as the sporadic

use of abusive language, gender-related jokes, and occasional teasing” cannot evidence a

hostile work environment.) Faragher, 524 U.S. at 788.

Additionally, Evan’s Title VII claims fail for the separate reason that she has not

alleged that any harassment she suffered was discriminatory—i.e., based on her gender or

other protected characteristic. Though Evan details accounts of workplace disputes, Evan has

not provided a basis to infer that any of the incidents occurred “because of” her gender or

other protected characteristic. Greer v. Mondelez Glob., Inc., 590 F. App’x 170, 173 (3d Cir.

2014). Thus, Evan’s hostile work environment claim fails. Greer, 590 F. App’x at 173; Shaw

v. United States Postal Serv., No. CV 18-651, 2018 WL 5885900, at *6 (E.D. Pa. Nov. 9, 2018)

(dismissing plaintiff’s claims where plaintiff failed to allege that any of the workplace

harassment she suffered was discriminatory).

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Accordingly, Evan’s Title VII claims will be dismissed.

IV. LEAVE TO AMEND

The Third Circuit has instructed that district courts generally must permit a curative

amendment if a complaint filed pro se is vulnerable to dismissal for failure to state a claim,

unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d

103, 108 (3d Cir. 2002). However, the Third Circuit has also acknowledged that a district

court has “substantial leeway in deciding whether to grant leave to amend.” Lake v. Arnold,

232 F.3d 360, 373 (3d Cir. 2000). As the Court lacks jurisdiction over Evan’s claims,

amendment would be futile.

V. CONCLUSION

Based on the foregoing, Defendants’ motion to dismiss and/or motion for summary

judgment be GRANTED. (Doc. 41).

Dated: March 20, 2023 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

Chief United States Magistrate Judge

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