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McGee v. Brennan

United States District Court, D. Nevada

September 23, 2019

LOLA MCGEE, Plaintiff,
MEGAN J. BRENNAN, United States Postal Service Postmaster General, et al Defendants.




         Before the Court are Plaintiff Lola McGee’s Motion to Compel re Proposed Discovery, Motion for Sanctions re Scheduling Order, and Motion for Sanctions re Discovery. ECF Nos. 224, 226, 241. Also before the Court are Defendant Megan J. Brennan’s Motion to Withdraw as Attorney and Motion for Summary Judgment. ECF Nos. 231, 241. The Court denies Plaintiff’s Motions and grants Defendant’s Motions.


         Plaintiff Lola McGee (“McGee”), a pro se party, filed the following claims in her Amended Complaint (ECF No. 8), against the Postmaster General[1] 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. § 621 et seq; f) a retaliation claim under Title VII; and g) a disability discrimination claim under the Rehabilitation Act, 29 U.S.C. § 794. The Court ordered limited jurisdictional discovery in response to Defendants’ first motion to dismiss for lack of subject matter jurisdiction. ECF No. 57. The discovery was conducted and Defendants filed a renewed motion to dismiss. ECF No. 106. On October 10, 2017, the Court partially granted Defendants’ motion to dismiss and dismissed all of McGee’s claims as time-barred with the exception of her ADEA age claim and her race discrimination claim under 42 U.S.C. § 1981. ECF No. 166. The Court then granted Defendants’ Motion to Dismiss McGee’s section 1981 claims on July 18, 2018, pursuant to White v. General Service Administration, 652 F.2d 913, 916-17 (9th Cir. 1981), which provides that claims brought under 42 U.S.C. § 2000e-16 (Title VII) are the exclusive remedy for a federal employment discrimination action . ECF No. 213. McGee filed a motion to compel re discovery and a motion for sanctions in September 2018. ECF Nos. 224, 226. Defendants filed a motion to withdraw as attorney later that month. ECF No. 231. Finally, Defendants moved for summary judgment on December 13, 2018. ECF No. 239. The summary judgment motion was fully briefed. ECF Nos. 245, 250.


         The Court makes the following findings of undisputed and disputed facts, incorporating by reference its factual findings from the Court’s previous Order (ECF No. 166), and Plaintiff and Defendant’s statements of undisputed facts in their briefing for the instant motion for summary judgment and other documents in the record.

         a. Undisputed Facts

         Plaintiff Lola McGee is a former United States Postal Service (USPS) employee. She was born in 1962. She was employed by USPS from 1998 through September 10, 2009. During her time at USPS, McGee applied for 17 positions and was denied for all of them.

         In 2008, she applied for a promotion to a position of Manager, Customer Services at Huntridge Station in 2008. The position ultimately went to Thomas Jack, who was born in 1954. McGee also applied for a position of Manager, Customer Services, at King Station in 2008. That position also went to Thomas Jack. McGee also applied for promotions at Sunrise Station and Winterwood Station. The managerial position at Sunrise station went to Samson Pillus, who was born in 1955.

         On November 1, 2008, McGee filed her first EEOC (Equal Employment Opportunity Commission) 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. McGee 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 district manager, and Senator Harry Reid’s office. McGee filed her appeal of the 2008 and 2009 EEO decisions on September 6, 2011, almost two years past the 30-day deadline to appeal. On November 9, 2012, the EEOC dismissed McGee’s appeal, finding that it was untimely filed. The EEOC noted that McGee had argued that the reason for her delay was because she was “severely ill and in mental turmoil.”

         However, the EEOC found that this explanation was too general to justify a finding of incapacitation that would allow an untimely appeal. On December 4, 2012, McGee requested reconsideration of the EEOC’s denial of her appeal. On reconsideration, McGee argued that her mental state was very debilitating, and that she was unable to keep up with her appeals. She provided a letter from her treating psychiatrist dated November 20, 2012, in which the psychiatrist states that McGee had been his patient since May 5, 2010. The psychiatrist’s letter stated that McGee was unable to file her appeal because of her depression. On May 31, 2013, the EEOC denied McGee’s request for reconsideration. The EEOC found that McGee had not shown that she was so incapacitated by her condition that she was unable to meet the time limits. The EEOC relied on the fact that McGee had sent letters to the USPS and the USPS’s National Equal Employment Office on September 12, 2009, November 11, 2009, and October 5, 2010, which the EEOC said demonstrated that she was capable of addressing her discrimination claims during that period.

         b. ...

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