By Virginia Lawyers Weekly – April 11, 2023
Where a federal employee must consult with an EEO officer with 45 days of an alleged discriminatory act and must file a formal written complaint within 15 days of receiving notice from the EEO counselor of the right to file a complaint, and a postal employee failed to plead facts showing she complied with these requirements, her Title VII claims were dismissed.
Melissa Wailes, proceeding pro se, filed suit against the Postmaster General of the United States and others alleging illegal employment practices and discrimination in violation of Title VII of the Civil Rights Act of 1964 and the Family and Medical Leave Act, or FMLA. In her amended complaint, Wailes, a postal employee, alleges that defendants misrepresented, in a job posting, the hours and schedule of a position she accepted and also improperly disciplined her. Defendants move to dismiss the amended complaint.
Exhaustion of a Title VII claim requires a federal employee to comply with all applicable filing deadlines, including consulting with an EEO counselor within 45 days of the alleged discriminatory act. Then the employee must file a formal written complaint within 15 days of receiving notice from the EEO counselor of the right to file a complaint. Failure to file a formal complaint within this period is grounds for the agency to dismiss the complaint. Likewise, a federal employee’s failure to comply with the 15-day time limit “constitutes grounds for dismissal” of a Title VII claim in federal court.
Wailes filed an informal complaint dated Dec. 3, 2020, including claims of discrimination because the Postal Service failed to pay her relocation expenses, improperly changed her hours without notice and issued her two discipline letters. She received the notice of right to file a formal EEO complaint on Feb. 16, 2021.
Wailes filed a second informal complaint on July 21, 2021, again including claims of discrimination because the Postal Service failed to pay her relocation expenses and improperly changed her hours without notice. After her informal complaint was not resolved, Wailes filed a formal complaint on Oct. 21, 2021 which the Postal Service dismissed as untimely because Wailes made her request for pre-complaint counseling more than 45 days after the alleged discriminatory acts.
Wailes’s failure to make a timely request for pre-complaint counseling constitutes grounds for dismissal for failure to exhaust administrative remedies. Wailes failed to plausibly allege that she exhausted her administrative remedies regarding her claims, and likewise provided nothing to dispute that she failed to timely exhaust her administrative remedies. Accordingly, Wailes has failed to exhaust administrative remedies for her relocation expenses and job hours claims.
Defendants also move to dismiss on the grounds that several allegations in the amended complaint have not been administratively exhausted, as Wailes “never contacted an EEO counselor about these issues, never filed an informal or formal complaint, and has not engaged at all in the administrative process.” Specifically, these allegations involve overtime hours, complaints regarding workers compensation benefits and posting a job “with the same hours and days off.” Wailes has not plausibly alleged that she exhausted her administrative remedies as to these claims; thus, to the extent that Wailes seeks to bring these claims under Title VII in this federal lawsuit, they are barred, because they were not raised in the EEOC process.
Wailes also alleges that the defendants violated her rights and disciplined her under the FMLA, which discipline was later removed. Wailes alleges this “cost [her] loss of the other job opportunities.” The defendant argues that “Wailes’s FMLA discipline claim … has not been exhausted, warranting dismissal.” However, the FMLA does not require administrative exhaustion.
Defendants also argue that, because the Postal Service corrected its mistake regarding “disciplining Wailes in relation to protected FMLA leave” that moots “any complaint she might have.” However, I am considering the exhibits submitted by defendants only to determine administrative exhaustion and cannot determine whether her claim would be moot at this stage. Further, Wailes alleges the FMLA violation cost her job opportunities.
Still, I find that Wailes fails to state a claim under the FMLA. Wailes fails to allege the required elements to state either an interference or retaliation claim under the FMLA, as she merely summarily states, without factual support, that defendants violated the FMLA.
Defendant’s motion to dismiss granted.
Wailes v. DeJoy, Case No. 7:22-cv-12, March 29, 2023. WDVA at Roanoke (Ballou). VLW 023-3-157. 14 pp.
Source: Virginia Lawyers Weekly