United States District Court, N.D. California
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS WITH
PREJUDICE DOCKET NO. 36
M. CHEN UNITED STATES DISTRICT JUDGE.
move to dismiss Plaintiff Brian Thompson's First Amended
Complaint for failure to state a claim. Plaintiff did not
file a brief in opposition but has filed a declaration. This
matter is appropriate for resolution without oral argument.
See Local Civ. R. 7-1(b). The motion hearing
scheduled for 1:30 p.m. on May 24, 2018 is
VACATED. For the reasons below,
Defendants' motion is GRANTED and all
claims are DISMISSED.
FACTUAL AND PROCEDURAL BACKGROUND
fuller description of Mr. Thompson's allegations, the
Court refers to its January 25, 2018 order granting
Defendant's motion to dismiss. See Docket No.
29. In short, Mr. Thompson is a former U.S. Postal Service
(“USPS”) employee with an auto-immune disorder
that interfered with his work. In relevant part, Mr. Thompson
began calling in sick due to flare-ups on January 9, 2015.
See First Amended Complaint (“FAC”)
¶ 22. Mr. Thompson claims that he provided intermittent
updates and doctor's notes to USPS, see FAC
¶¶ 23-25, but USPS sent him a “Notice of
Removal” letter on April 1, 2015 stating that his
removal would be effective May 9, 2015. Id. ¶
27. On May 4, 2015, he filed a formal grievance regarding the
Notice of Removal with his labor union. Id. ¶
34. While his grievance was pending but after the effective
date of the notice of removal, Mr. Thompson began requesting
reasonable accommodations from the USPS's Reasonable
Accommodations Committee. Id. ¶¶ 39-41.
Although he was provided a packet of forms to complete, which
he filled and submitted, the committee never acted upon his
request (or at least did not inform him of any action on it).
November 15, 2015, Mr. Thompson's primary care doctor
cleared him to return to work full-time as of December 15,
2015, but when he informed his supervisor, he was told that
he had been relieved from his duties and informed of a labor
arbitration hearing to be held December 3, 2015. Id.
¶ 42. It was at that time that Mr. Thompson claims he
learned that he had been terminated. He alleges that while on
medical leave for his CVID flare-ups, he also “suffered
from severe emotional and mental decline” that
prevented him from “fully understand[ing] that USPS
intended to actually remove him from his position.”
Id. ¶¶ 49-50. He states that he was
“under the sincere belief that he remained employed by
USPS, ” id. ¶ 51, and that he was
“operating under the assumption that USPS had made a
mistake that, with sufficient documentation, would be
corrected.” Id. ¶ 52. His “physical
and mental incapacity, and lack of information regarding the
process, led him to believe that he was not 'really
fired' until he received notice of the arbitration
Thompson brings claims for disability discrimination and
retaliation, breach of contract, and denial of due process
all arising out of his termination. The Court's prior
holding with respect to each claim will be summarized as
Disability and Retaliation Discrimination
Plaintiff's claims for race and disability discrimination
and retaliation under the Rehabilitation Act and Title VII of
the Civil Rights Act of 1964, the Court previously held that
Mr. Thompson had failed to exhaust his administrative
remedies by timely initiating the Equal Employment
Opportunity process. See Docket No. 29 at 5-7. In
particular, the 45-day limitations period began to run on
April 1, 2015 (the date the Notice of Removal was issued),
but Mr. Thompson did not contact an EEO counselor until March
1, 2016. Id. at 6. The Court gave Plaintiff leave to
amend to attempt to state facts supporting equitable tolling.
Id. at 7.
Thompson has not pled facts to support equitable tolling.
First, equitable tolling may “excuse a claimant's
failure to comply with the time limitations where she had
neither actual nor constructive notice of the filing
period.” Johnson v. Henderson, 314 F.3d 409,
414 (9th Cir. 2002) (quotation omitted). The record indicates
that Mr. Thompson had actual notice; he does not dispute he
received the Notice of Removal. Moreover, on at least one
prior occasion, Mr. Thompson filed (or directed the filing
of) an EEO complaint regarding a Notice of Removal he
received in 2010. See Wang Decl., Ex.
That is sufficient to conclude that Plaintiff was familiar
with the process. See Gill v. Gen. Servs. Admin.,
No. 14-cv-02999-MEJ, 2014 WL 6469377, at *4 (N.D. Cal. Nov.
18, 2014) (“Previous experience with the administrative
EEO process alone is enough to put [plaintiff] on notice of
the filing requirement.”). Moreover, Plaintiff does not
allege that he was unaware of the 45-day filing period.
Plaintiff therefore may not invoke ignorance of the filing
deadline to justify his late claim.
Plaintiff has not shown that his delay was justified by,
e.g., incapacitation that prevented him from making
a timely claim. See Seattle Audobon Soc. v.
Robertson, 931 F.2d 590, 595 (9th Cir. 1991) (equitable
tolling may apply when “extraordinary circumstances
beyond plaintiffs' control made it impossible to file the
claims on time”). Though it is not the case that a
plaintiff must be “completely . . . disabled” to
warrant equitable tolling as Defendants suggest, equitable
tolling should not be awarded when a plaintiff is
nevertheless “able to file paperwork, converse with
doctors, write a letter detailing her claim, and hire legal
counsel.” Tatum v. Schwartz, 405 Fed.Appx. 169
(9th Cir. 2010). Here, multiple factors weigh against
equitable tolling to March 1, 2016 (the date Plaintiff
actually initiated the EEO process). Plaintiff was able to
file a union grievance on May 4, 2015, within 45 days of
receiving the Notice of Removal; he began requesting
reasonable accommodations from the USPS's Reasonable
Accommodations Committee in June 2015 (9 months before filing
an EEO complaint); he personally attended a labor arbitration
hearing on December 3, 2015; and his doctor cleared him for
return to work fulltime as of December 15, 2015. Mr. Thompson
has therefore not demonstrated that he was so continuously
incapacitated that he could not initiate the EEO process
earlier than March 1, 2016.
Mr. Thompson has not shown that his delay was excusable for
other reasons. For example, “[i]f a reasonable
plaintiff would not have known of the existence of a possible
claim within the limitations period, then equitable tolling
will serve to extend the statute of limitations for filing
suit until the plaintiff can gather what information he
needs.” Johnson, 314 F.3d at 414. Mr. Thompson
clearly knew of his potential claim as early as May 4, 2015,
when he filed the union grievance. At that time, he knew the
absences related to his medical disability were the basis for
USPS's Notice of Removal. Indeed, he attests that when he
received the notice of removal, “I knew that the law
doesn't allow people to [be] fired while they are on
medical leave and I had confirmation that I was on medical
leave.” Thompson Decl. ¶ 11. Though Mr. Thompson
claims that he thought the notice of removal was a
“mistake, ” that is belied by the fact that he
filed a union grievance shortly after receiving it.
Id. ¶ 9. His belief “that he was not
'really fired' until he received notice of the
arbitration decision” in December 2015, id.
¶ 52, is unreasonable in light of the clear language of
the Notice of Removal. See Docket No. 32, Ex. A at 1
(“This is advance written notice that you will be
removed from the Postal Service effective close of business
May 9, 2015.”).
Mr. Thompson has failed to demonstrate that equitable tolling
of his discrimination and retaliation claims is warranted.
The Court therefore DISMISSES these claims
(Counts I, II, and III) with prejudice.