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Centeno v. Brennan

United States District Court, S.D. Ohio, Western Division, Dayton

January 9, 2018

JOSE A. CENTENO, Plaintiff,
v.
POSTMASTER GENERAL MEGAN J. BRENNAN, et al., Defendants.

          District Judge Walter H. Rice

          REPORT AND RECOMMENDATION [1]

          Sharon L. Ovington United States Magistrate Judge

         I. Introduction

         Plaintiff Jose A. Centeno is a former letter carrier for the United States Postal Service. He asserts in his Second Amended Complaint that (1) Defendants failed to accommodate his eye disability in violation of the Rehabilitation Act of 1973; (2) Defendants retaliated against him in violation of Title VII of the Civil Rights Act of 1964; (3) his eye illness and injury and eventual loss of sight constitute personal injuries compensable under the Federal Tort Claims Act; and (4) Defendant Dawn Grilliott intentionally inflicted emotional distress upon him.[2]

         The case is presently pending upon Defendants' Third Motion to Dismiss (Doc. #33), Centeno's Response in Opposition (Doc. #47), Defendants' Reply (Doc. #52), and the record as a whole.

         The factual background alleged in Centeno's original Complaint has been previously described. (Doc. #15). Centeno's Second Amended Complaint presents many of the same facts. Accordingly, the previous factual description, id., is incorporated herein by reference.

         II. Rule 12(b)(6) Standards

         Defendants contend that dismissal of Centeno's discrimination and retaliation claims is warranted under Fed.R.Civ.P. 12(b)(6) due to his failure to exhaust his administrative remedies before filing the present case. (Doc. #33, PageID #455; see Steiner v. Henderson, 354 F.3d 432, 435 (6th Cir. 2003) (and cases cited therein)). In this context, the Court “construe[s] the complaint in the light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all reasonable inferences in favor of the plaintiff.” Bickerstaff v. Lucarelli, 830 F.3d 388, 396 (C.A.6 (Ohio), 2016)

         III. Procedural Matters

         Presently, the most significant information Centeno has added in his Second Amended Complaint tells the tale of his administrative activities, initially with the Postal Service, later with the Equal Employment Opportunity Commission. Centeno supports his Second Amended Complaints with documents from those administrative proceedings, including (in part) a copy of the September 2013 Settlement Agreement (the Settlement Agreement) between Centeno and the Postal Service; letters his attorney sent to the Postal Service-including a letter to the Postal Service's Equal Employment Opportunity (EEO) Manager; Centeno's EEO Pre-Complaint Counseling Form; the Postal Service's decision (in July 2015), finding no violation of the Settlement Agreement, and the EEOC Office of Federal Operation's decision, finding the Postal Service violated the terms of the Settlement Agreement. (Doc. #27, Exhibits 1-7).

         Defendants do not challenge Centeno's reliance on these documents. They have likewise attached documents from the administrative proceedings, namely, Centeno's EEOC charge, his notice of appeal, his supporting brief (and Exhibits attached to it), and the EEOC's notice to Centeno's counsel. (Doc. #33, Exhibits A-D). Although Centeno correctly points out that, in general, such extra-pleading documents cannot be considered when resolving a motion to dismiss under Fed.R.Civ.P. 12(b)(6).[3] But, he does not ask the Court to convert Defendants' Rule 12(b)(6) Motion to a motion for summary judgment under Fed.R.Civ.P. 56. This gives some pause. May the Court consider the extra-pleading documents without converting Defendants' Rule 12(b)(6) Motion to a motion for summary judgment?

         The parties do not address this question, potentially leaving its answer murky and depriving the Court of the benefits gained by mutually zealous representation. Their reliance on extra-pleading documents is also somewhat mystifying when District Judge Rice previously explained, “[t]o the extent that Plaintiff alleges that Defendant's breach of the Settlement Agreement is so material that he should no longer be bound by the promises he made in that Agreement, this issue is more appropriately addressed in the context of a motion for summary judgment.”[4] (Doc. #18, PageID #233). To be fair, Judge Rice's decision did not specifically preclude the parties' present choice to litigate their dispute under Rule 12(b)(6) rather than Rule 56.

         Regardless, the parties' reliance on the documents related to the Agency's (Postal Service's) EEO proceedings and the subsequent EEOC proceedings contain facts consistent with or confirming the Second Amended Complaint's tale of administrative activities. Centeno, moreover, has not challenged either the authenticity of the extra-pleading documents or Defendants' reliance on them in support of their Motion to Dismiss. For these reasons, the Court may consider the EEO and EEOC documents attached to the Second Amended Complaint and Defendants' Motion to Dismiss without converting it to a Motion for Summary Judgment. See Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (proper to consider EEOC charge attached to Complaint); see also Weiner, 108 F.3d at 89 (“[A] defendant may introduce certain pertinent documents if the plaintiff fails to do so…. Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document upon which it relied.”); Clark v. Donahoe, 2012 WL 3224097, at *4 (S.D. Ohio Aug. 6, 2012) (the court may take judicial notice of administrative decisions as matters of public record).

         IV. Factual Background

         Accepting as true the factual allegations in Centeno's Second Amended Complaint, and drawing all reasonable inference in Centeno's favor, see Bickerstaff v, 830 F.3d at 396, reveals the following.

         A. Centeno's Agency (EEO) Proceedings

         When Centeno first asked the Postal Service to accommodate his eye disability, they granted his request, thus allowing him to administer eye drops during his work breaks. This meant that Centeno was entitled to take a thirty-minute lunch plus two breaks (ten minutes each) to administer his eye medication. Later, a new Customer Service Manager ended Centeno's accommodation. Centeno responded by filing a complaint of disability discrimination with the Postal Service's Equal Employment Opportunity office. On September 18, 2013, Centeno and the Postal Service entered into a written settlement agreement (Settlement Agreement). Centeno “resumed working in the manner he had when he was previously accommodated.” (Doc. #27, PageID# 381). All's well that ends well; or so it seemed.

         Centeno alleges that a first breach of the Settlement Agreement occurred but the parties' informally resolved it. In late 2014, another breach of the Settlement Agreement occurred in when acting labor relations specialist Dawn Grilliott informed Centeno “that his agreed upon accommodation would no longer be honored and instead his lunch period would be extended from thirty … to sixty … minutes.” Id. at 381. In response, Centeno took the following steps:

1. April 28, 2014: He sent a letter, through counsel, to the District Human Resources Manager, stating that the Postal Service was violating Settlement Agreement by charging him for a sixty-minute lunch. Id. at 376, 397.
2. March 13, 2015: He had not received a response to his letter, and he consequently used the Postal Service's EEO hotline to request counseling. Id. at 377.
3. May 22, 2015: Centeno, through counsel, filed a Pre-Complaint Counseling form alleging that the Postal Service breached the September 2013 settlement agreement by denying him comfort breaks and requiring him to take a sixty-minute lunch. Id. at 377, 398-400.
4. July 2, 2015: Centeno's counsel sent a letter to the EEO Compliance Manager informing her of the breach. Id. at 377, 401.
5. July 13, 2015: The Postal Service sent a letter to Centeno telling him that his requests for EEO counseling “will be processed as a breach allegation … and will not be processed as a new counseling request.” Id. at 377, 402. This letter also informed him, among other things, that the Postal Service ...

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