Opinion
CIVIL ACTION NO. 00-1 230 SECTION "L"(3)
January 18, 2001
ORDER AND REASONS
Pending before the Court is Defendants' Motion to Dismiss and/or For Summary Judgment. Plaintiff Leo Griffin, appearing pro se, has also submitted a Motion to Dismiss and/or For Summary Judgment. Plaintiff's Motion requests that this case be allowed to proceed to trial and provides the Court with documents related to the Plaintiff's resignation and the subsequent EEO proceeding. The Court construes Plaintiff's Motion as an opposition to the Defendant's Motion to Dismiss and/or for Summary Judgment. After a review of the pleading and the applicable law, for the following reasons, the Defendants' Motion to Dismiss and/or For Summary Judgement is GRANTED.
Background
Mr. Griffin was hired by the Postal Service as a disabled veteran in 1985. On April 14, 1999, he voluntarily resigned from the Postal Service. Defendants submitted a copy of Mr. Griffin's resignation form as "Attachment A" to their motion. The resignation form shows that it was submitted on April 14, 1999 and that its became effective on April 16, 1999. On April 22, 1999, the Postal Service finalized the processing of Mr. Griffin's resignation and issued a notification of personnel action in accordance with the resignation request. On May 4, 1999, Mr. Griffin requested reinstatement to his former position. The Postal Service did not reinstate him.
Mr. Griffin argues that he was not reinstated because his supervisor was not satisfied with his attendance record while he was a Postal Service employee. He states that his disability and other medical problems required him to take time off from work on several occasions and that failure to reinstate him for using sick leave amounts to discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). In his amended complaint, Mr. Griffin makes additional state law claims for intentional infliction of emotional distress, humiliation and embarrassment, and failure to train and/or supervise employees.
Mr. Griffin requested an EEO counselor on May 13, 1999 to assist him pursing his reinstatement request. Plaintiff filed a formal EEO complaint. The complaint was initially accepted for investigation, but was eventually dismissed as untimely pursuant with EEOC regulations at 29 C.F.R. § 1614.107 (a)(2).
Standard of Review
A district court can grant a motion for summary judgment only when 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'! Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24 and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 247-48.
When considering a motion to dismiss under Federal Rule of Civil Procedure I 2(b)(6) for failure to state a claim upon which relief can be granted, a district court must accept the factual allegations of the complaint as true and resolve all ambiguities or doubts regarding the sufficiency of the claim in favor of the plaintiff. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993). Unless it appears "beyond a doubt that the plaintiff can prove no set of facts in support of his claim," the complaint should not be dismissed for failure to state a claim. Id. at 284-85 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). However, conclusory allegations or legal conclusions masquerading as factual conclusions will not defeat a motion to dismiss. See Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995) (citing Fernandez-Montes, 987 F.2d at 284).
Analysis
Mr. Griffin named both William J. Henderson, the Postmaster General, and William Henry, a Postal Service employee, as defendants. The only appropriate defendant in an employment discrimination case against the Postal Service is William J. Henderson in his capacity as Postmaster General and all claims against Mr. Henry must be dismissed. See Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988); Lamb v. United States Postal Serv., 852 F.2d 845 (5th Cir. 1988).
William Henry was incorrectly identified as Irving Henry in the Amended Complaint.
Mr. Griffin's complaint states two basic causes of action, one under the ADA and the other under various state tort laws. The ADA is not the appropriate statute for this discrimination claim. As a federal sector employee, Mr. Griffin's claim of discrimination in connection with his employment must arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, or the Rehabilitation Act, 29 U.S.C. § 794, et seq. See, e.g., Brown v. General Services Administration, 425 U.S. 820 (1976); Prewitt v. United States Postal Serv., 662 F.2d 292, 304 (5th Cir. 1981); Batiste v. Henderson, 2000 WL 264001 (E.D. La. 2000). Any claim for disability discrimination in connection with his employment must arise under the Rehabilitation Act. See Prewitt, 662 F.2d at 304; Batiste, 2000 WL 264002 *1, n. 1 (noting that under the ADA, 42 U.S.C. § 1211 1(5)(B), the term `employer' does not include the United States).
However, even if the Court construes Mr. Griffin's complaint to plead a cause of action under the Rehabilitation Act, the defendants are entitled to summary judgment. To establish a prima facie case of employment discrimination based on disability under the Rehabilitation Act, plaintiff must show that he was the subject of adverse employment action because of his disability or that he was adversely treated solely as a result of his disability. See Magee v. United States Postal Serv., 903 F. Supp. 1022, 1026 (W.D.La. 1995), aff'd 79 F.3d 1145 (5th Cir. 1996); Clair v. Chater, 1995 WL 608472 (E.D. La. 1995). However, the Postal Services' failure to reinstate Mr. Griffin is not an adverse employment action or even adverse treatment.
An "adverse employment action" is an employment decision by an employer that effects the terms, privileges, duration, or conditions of employment. See, e.g., Yerdon v. Henry, 91 F.3d 370, 378 (2d Cir. 1996)). Examples of actionable adverse actions are disciplinary demotion, termination, unjustified evaluations, loss of normal work assignments, and the extension of an employees probationary period. See Bennett v. Henderson, 15 F. Supp.2d 1097, 113 (D.Kan. 1998). To receive an adverse personnel action, a person must have a certain relationship with the employer, such as a job applicant or a current employee. Here, Mr. Griffin's relationship to the Postal Service was that of a former employee who voluntarily resigned. A federal employee is free to resign at any time, to set the effective date of the resignation, and to have the reasons for resigning entered into the employee's official records. 5 C.F.R. § 7 15.202(a). However, after its effective date, an agency has no obligation to allow a former employee to withdraw the resignation or to give any reason for refusing to do so. See Robinson v. United State Postal Serv., 50 M.S.P.R. 433, 437 (1991); Anderson v. Office of Personnel Mgmt., 11 M.S.P.R. 60, 64 (1982). As a former employee requesting reinstatement to a Postal Service position without going through the Postal Service's normal hiring processes, Mr. Griffin is not in a relationship with the Postal Service where he could receive an adverse personnel action or where the Postal Service's failure to reinstate him is any kind of adverse action based on his disability. It is not an adverse action at all; the Postal Service had no duty to reinstate Mr. Griffin after the effective date of his resignation. If Mr. Griffin wishes to be employed by the Postal Service, he must go through the normal application process.
Mr. Griffin does not allege that his resignation was involuntary or that he was constructively discharged from the Postal Service.
The defendant is also entitled to summary judgment as to the state law claims. Mr. Griffin has not provided any evidence that the Postal Service's failure to reinstate him amounted to intentional infliction of emotional distress, humiliation and embarrassment or from the failure to properly train and supervise employees.
Conclusion
For the forgoing reasons, IT IS ORDERED that Defendants' Motion to Dismiss and/or for Summary Judgment is GRANTED.