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McGee v. Donahoe

United States District Court, D. Nevada

October 10, 2017

LOLA MCGEE, Plaintiff,
v.
PATRICK R. DONAHOE, et al . Defendants.

          ORDER DEFENDANT'S MOTIONS TO DISMISS (ECF NO. 106)

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This case is before the Court on a renewed Motion to Dismiss (ECF No. 106) filed by Defendant USPS Postmaster General Megan J. Brennan.

         For the reasons stated below, the Motion to Dismiss is GRANTED in part and DENIED in part.

         II. BACKGROUND

         McGee 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.

         III. FACTUAL ALLEGATIONS

         The 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 retirement.

         McGee 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 consequences.

         In this 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 jurisdictional discovery:

• 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 ...

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