United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT BRENNAN'S MOTION TO
DISMISS WITHOUT LEAVE TO AMEND RE: DKT. NO. 32
R. LLOYD United States Magistrate Judge
plaintiff Jeffrey Friend is a former employee of the U.S.
Postal Service (USPS) who claims that USPS 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.
defendants have moved to dismiss the complaint. In this
order, the court addresses the USPS's
motion. 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.
following background facts are drawn from Friend's First
Amended Complaint (FAC), the operative pleading:
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.
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
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.
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.
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.
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.
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.
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).
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).
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).
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
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).
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