United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
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
Lola McGee (“McGee”), a pro se party, filed 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.
§ 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.
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.
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
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.
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.
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.
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.”
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.