United States District Court, E.D. Louisiana
JOHN D. KILLIAN,
PATRICK R. DONAHOE, POSTMASTER GENERAL
SALLY SHUSHAN, Magistrate Judge.
DEFENDANT'S MOTION TO DISMISS (Rec. doc. 8)
On August 27, 2014, John D. Killian, Jr. ("Killian"), filed a complaint against Patrick R. Donahoe, Postmaster General of the United States Postal Service ("USPS"), alleging causes of action under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 and 794, and retaliation under Title VII, 42 U.S.C. §2000e. Rec. doc. 1. USPS filed a motion to dismiss for lack of jurisdiction. Rec. doc. 8. The parties consented to proceed before the assigned Magistrate Judge. Rec. doc. 13.
The parties agree that under Gilbert v. Donahoe, 751 F.3d 303 (5th Cir. 2014), cert. den. 135 S.Ct. 251 (October 6, 2014), the Court lacks jurisdiction over the Rehabilitation Act claim. Rec. docs. 8 and 12 at 5. The motion to dismiss is granted as to it.
USPS contends that Killian failed to exhaust his administrative remedies regarding the retaliation claim. Killian acknowledges the exhaustion requirements. Rec. doc. 12 at 7.
Ordinarily, an employee may not base a Title VII claim on an action that was not previously asserted in a formal charge of discrimination to the EEOC, or that could not reasonably be expected to grow out of the charge of discrimination.
Filer v. Donley, 690 F.3d 643, 647 (5th Cir. 2012). Killian contends that the retaliation claim could reasonably be expected to grow out of the charge of discrimination.
Killian was employed as an Electronic Technician 11 at the New Orleans Processing and Distribution Center. He received his work assignments from an Oklahoma postal facility. He was required to answer telephone requests from other post offices to assist in repairing mail processing equipment. Rec. doc. 1 at 2. He was over 70. He suffered from a back problem and needed a walker. Id.
In January 2011, he began having difficulties entering the room for morning maintenance meetings, where he and other technicians received assignments, announcements and safety talks. Because of the configuration of the door to the meeting room and the fact that other technicians tended to sit close to it, Killian had difficulty entering the room. Id. at 3. He notified management, who taped the door way to designate six foot clearance for his entrance and exit from the meeting room. Id.
On March 8, 2012: (1) Killian tapped the foot of a co-employee, Michael Burris, as Killian entered the room; (2) Burris kicked the walker; and (3) it fell over. Id . On April 6, 2012, he became aware that a co-worker made a statement concerning the March 6 incident that Killian viewed as threatening. Id . On April 12 and 19, 2012, his access to the meeting room was obstructed by people standing in the taped area. Id . On May 22, 2012, Killian requested that the taped area be increased by two feet ...