United States District Court, S.D. Ohio, Western Division, Dayton
JOSE A. CENTENO, Plaintiff,
POSTMASTER GENERAL MEGAN J. BRENNAN, et al., Defendants.
District Judge Walter H. Rice
REPORT AND RECOMMENDATION 
L. Ovington United States Magistrate Judge
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.
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.
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.
Rule 12(b)(6) Standards
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)
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,
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). 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?
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.” (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
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).
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.
Centeno's Agency (EEO) Proceedings
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.
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,
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.
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 ...