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Friend v. Hegarty

United States District Court, N.D. California, San Jose Division

March 29, 2017

JEFFREY FRIEND, Plaintiff,
v.
JOHN HEGARTY, et al., Defendants.

          ORDER GRANTING DEFENDANT BRENNAN'S MOTION TO DISMISS WITHOUT LEAVE TO AMEND RE: DKT. NO. 32

          HOWARD R. LLOYD United States Magistrate Judge

         Pro se plaintiff Jeffrey Friend is a former employee of the U.S. Postal Service (USPS) who claims that USPS[1] discriminated against him based on a disability in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq. and because of his race (Caucasian) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. He also sues the National Postal Mail Handlers Union (Union), and John Hegarty (the Union's former national president), for alleged breach of the duty of representation. In sum, plaintiff claims that he was wrongfully disciplined and then terminated, and that the union defendants failed to give him the assistance he claims they were obliged to provide.

         All defendants have moved to dismiss the complaint. In this order, the court addresses the USPS's motion.[2] Pursuant to Fed.R.Civ.P. 12(b)(1), USPS moves to dismiss the Rehabilitation Act claim, arguing that plaintiff failed to exhaust his administrative remedies. Pursuant to Fed.R.Civ.P. 12(b)(6), USPS moves to dismiss the Title VII claim as untimely. Plaintiff opposes the motion. Upon consideration of the moving and responding papers, as well as the oral arguments presented, this court grants the USPS's motion without leave to amend.[3]

         BACKGROUND

         The following background facts are drawn from Friend's First Amended Complaint (FAC), the operative pleading:

         Friend worked as a mail handler at the main post office facility in San Jose. He says he sustained a head injury in a 2008 bicycle accident that caused him to become easily startled. Plaintiff alleges that while he sorted mail at a flat sorter machine, he was harassed by various co-workers who would sneak up behind him and startle him, causing him to recoil or jump backwards, sometimes nearly colliding with co-workers or parts of the sorting machine.

         The FAC further alleges that, concerned for his safety, plaintiff filed a grievance with shop steward Richard Mendoza in 2011, requesting that management prohibit managers other than immediate supervisors from approaching employees on the work floor. Mendoza reportedly told plaintiff that management agreed to that request in writing. Nevertheless, Friend alleges that sometime later in 2011, a manager snuck up behind him while he was sorting mail at the flat sorter machine. To avoid being startled by co-workers, Friend says he then changed his body position while sorting mail so that he more frequently faced the main thoroughfare on the work floor.

         When questioned by Supervisor Rey Valdez about his changed body position, plaintiff explained it was because his co-workers had not been adequately trained on workplace etiquette and safety issues, including how to approach a machinist. Plaintiff asked Valdez to rectify the situation, but Valdez reportedly refused to provide such training because plaintiff was “the only one complaining.” (FAC ¶ 30). Valdez allegedly also forbade Friend from filling out a safety form (used to report hazards) and from reporting to a shop steward that Valdez refused to permit plaintiff from filling out a safety form.

         Friend says he continued to sort mail with modified body positioning. And, it was around this time that Friend says that Valdez and Marita Mangahas (another supervisor) directed him to a back room at the post office for a meeting during which they criticized his work performance. Friend says that the supervisors denied his request to have a shop steward present at that meeting. Thereafter, Friend's supervisors allegedly persisted in trying to have Friend change his body positioning at the flat sorter machine; and, plaintiff says that he subsequently was ordered to leave the premises. Friend reported the situation to a shop steward; and, three days later, he was reinstated to his position with back pay.

         Upon his return to work, Friend says he met with shop steward Tom Anderson for the purpose of filing four grievances based on (1) management's refusal to let him fill out a safety form; (2) violation of the Zero Tolerance on Workplace Violence/Harassment policy; (3) his prior reported hazard of approaching machinists from behind remained unaddressed; and (4) management's alleged violation of a Union-Management agreement prohibiting non-immediate supervisors from initiating altercations on the work floor. Friend further alleges that about a month later, he asked shop steward Mendoza about the status of his grievances and was told that none of them had been filed.

         On January 8, 2012, Friend says that Donna Gabriel, a fellow mail handler, crept up behind him while he was facing the flat sorter machine, causing him to reflexively spin around and push Gabriel away. Following a USPS investigation, Friend was fired on March 6, 2012. USPS contends that plaintiff was fired for assaulting Gabriel.

         Plaintiff filed a grievance to contest his termination. In late 2012 or early 2013, the Union assigned one Reuben Martin to represent him. An arbitration was held on June 7, 2013. On July 29, 2013, the arbitrator affirmed USPS's decision to terminate plaintiff's employment.

         The FAC alleges that following the July 29, 2013 arbitration decision, “Plaintiff diligently communicated with Union representatives Maria Cruz and Ernie Grijalva regarding the next steps in the appeal process.” (FAC ¶ 55). On September 21, 2013, Grijalva allegedly “wrote to Mr. Friend to explain that he had responded to EEO decision in a timely manner with the assistance of an attorney retained by the Union.” (Id. ¶ 57.1).

         The FAC next alleges that on April 1, 2015, the U.S. Equal Employment Opportunity Commission (EEOC) issued its decision adverse to Friend in his Appeal No. 0120133126. Plaintiff says that at that time, he was homeless and was “suffering from a disabling medical condition, exacerbated by his termination and resulting homelessness.” (FAC ¶¶ 59-60).

         Friend received a copy of the EEOC's decision on May 1, 2015. (FAC ¶ 61). Several weeks later, on May 26, 2015, he says he “wrote to the EEOC to ask whether the Union filed a timely request for reconsideration of the April 1, 2015 decision, ” claiming that the Union had provided him no information about the case. (FAC ¶ 62). The following day, Friend says the EEOC responded that no request for reconsideration had been filed. (Id. ¶ 63).

         About a month later, on or around June 29, 2015, Friend allegedly “wrote to the EEOC by certified mail, to request a civil court hearing for EEOC Appeal No. 0120133126.” (FAC ¶ 64). Friend alleges that he received no response to that letter and that on August 31, 2015 he again wrote to the EEOC, stating:

I have received no response from EEOC for months after I responded to their decision on Appeal No. 0120133126 via certified mail. I was informed that I was entitled to a civil court hearing, and may receive a court-appointed attorney for said matter at no cost. Will you give me any updated information on whether said request has been granted, and when it will occur?

(Id. ¶ 65). On September 1, 2015, the EEOC allegedly responded:

To file a civil action, you need to go to the appropriate federal district court. To search for the appropriate federal district court where you can file a civil action, you should check the U.S. Court's homepage, www.uscourts.gov. To request appointment of an attorney, you need to direct your request to the court, not the Commission.

(FAC ¶ 66).

         This lawsuit followed.

         Friend's original complaint was filed on September 30, 2015. Defendants moved to dismiss, arguing that plaintiff's claims were untimely and that the complaint failed to state a claim for relief. Those motions were deemed moot when Friend timely ...


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