United States District Court, D. Nevada
ORDER DEFENDANT'S MOTIONS TO DISMISS (ECF NO.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
case is before the Court on a renewed Motion to Dismiss (ECF
No. 106) filed by Defendant USPS Postmaster General Megan J.
reasons stated below, the Motion to Dismiss is GRANTED in
part and DENIED in part.
raises the following claims in her Amended Complaint (ECF No.
8), against the Postmaster General and against individual
Defendant employees of the United States Postal Service
(USPS), in their official capacities: a.) a hostile work
environment claim based on race discrimination under Title
VII of the Civil Rights Act, 42 U.S.C. § 2000e et
seq.; b.) a race discrimination claim under Title VII;
c.) a race discrimination claim under, 42 U.S.C. § 1981;
d.) a gender discrimination claim under Title VII; e.) an Age
Discrimination in Employment Act (ADEA) claim, 29 U.S.C.
§ 62 et seq.; f.) a retaliation claim under
Title VII; and g.) a disability discrimination claim under
the Rehabilitation Act, 29 U.S.C. § 794.
following factual allegations are taken from Plaintiff's
complaint. Lola McGee is an African-American woman and is a
former federal employee with over 11 years of federal
employment. Most recently, McGee worked at the USPS as a
Supervisor and Acting Manager in Customer Service. On
September 10, 2009, following alleged discrimination by the
USPS, Ms. McGee was allegedly forced into medical disability
alleges that she suffers from major depression,
post-traumatic stress disorder, anxiety disorder, panic
disorder, and peripheral sensory neuropathy. McGee claims
that various employees and supervisors at the USPS retaliated
and discriminated against her from approximately 2004 to 2009
based on her disability, race, age, and gender. As a result,
McGee suffered emotional distress and adverse health
case, the Court ordered limited jurisdictional discovery to
determine whether equitable tolling should apply to
McGee's claims, in response to Defendant's original
Motion to Dismiss which argued lack of subject matter
jurisdiction. See Young v. U.S., 769 F.3d 1047, 1052
(9th Cir. 2014) (“Allegations of jurisdictional facts .
. . are not afforded presumptive truthfulness; on a motion to
dismiss for lack of subject matter jurisdiction, the court
may hear evidence of those facts and resolve factual disputes
where necessary.”) (citations and quotation marks
omitted).; see also Boschetto v. Hansing, 539 F.3d
1011, 1020 (9th Cir. 2008) (“[Jurisdictional discovery]
may be appropriately granted where pertinent facts bearing on
the question of jurisdiction are controverted or where a more
satisfactory showing of the facts is necessary.”)
(citations and internal quotation marks omitted). The Court
finds the following facts to be undisputed, based on this
• On November 1, 2008, McGee filed her first EEO
complaint, in which she alleged various counts of
discrimination and workplace retaliation dating back to 2005.
The National EEO Investigative Services Office (NEEOISO) of
USPS dismissed all claims occurring prior to July 10, 2008,
as untimely. Plaintiff's remaining claims were for
harassment and hostile work environment, charging of sick
leave hours, and non-selection for a managerial position. On
August 11, 2009, NEEOISO issued its Final Agency Decision,
finding no discrimination regarding the 2008 complaint.
• On May 27, 2009, Plaintiff filed a second EEO
complaint, alleging discrimination based on sex, physical and
mental disability, and retaliation for denial of a lateral
transfer requested on April 9, 2009. On October 21, 2009, the
NEEOISO issued a Final Agency Decision finding no
discrimination regarding the 2009 complaint.
• McGee was advised, in each final decision, of her
right to appeal the EEO decisions within thirty days, but did
not file appeals.
• Between August 2009 and August 2011, McGee sent
fifteen letters related to or regarding her claims against
the USPS, to various parties, including the NEEOISO, her