The opinion of the court was delivered by: Seybert, District Judge
On September 13, 2006, pro se Plaintiff Arliss Tulin ("Plaintiff") commenced this action against Defendant United States Postal Service ("Defendant" or "USPS"). Plaintiff does not specifically allege a cause of action or violation of federal law, and this Court's jurisdiction is not clear from the face of the Complaint. Presently pending are (1) Defendant's motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure for failure to exhaust administrative remedies, failure to name the proper defendant and failure to state a claim for employment discrimination, and (2) Plaintiff's motions, (Docket Entries 18 and 21), to amend his Complaint. For the reasons discussed herein, Defendant's motion to dismiss pursuant to Rule 12(b)(6) is GRANTED and Plaintiff's motions to amend are GRANTED.
As noted, Plaintiff filed his two-page, hand-written Complaint on September 13, 2006. Defendant filed its motion to dismiss on April 24, 2007. Prior to filing his opposition, which was due on May 11, 2007, Plaintiff sent a letter, dated May 1, 2007, which the Court construed as a request for leave to amend. (Docket Entry 18.) By Order dated May 8, 2007, the Court set a briefing schedule for Plaintiff's motion to amend and reminded Plaintiff that his opposition to Defendant's motion to dismiss was due May 11, 2007. In the meantime, Plaintiff sent a second letter, dated May 14, 2007, requesting to amend his Complaint. (Docket Entry 21.)
Plaintiff failed to file a memorandum of law in support of his motions to amend or in opposition to Defendant's motion to dismiss. Rather, by letter dated June 15, 2007, Plaintiff indicated that he had "no counter-argument" and made one request: that the Court get him reinstated in the Brooklyn or New York City Post Office as a part-time employee. (Docket Entry 23.) Based on Plaintiff's June 15 letter, by Order dated June 27, 2007, the Court deemed the motions fully briefed and indicated that they would be decided on their merits. Additionally, the Court advised Plaintiff that it does not have the authority to reinstate Plaintiff with Defendant.
The facts set forth in this Order are taken from the Complaint and are presumed to be true for the purposes of deciding the pending motion to dismiss.
Plaintiff alleges that, on April 21, 2005, he attended a job interview with Defendant at 65 Maxess Road, Melville, Long Island. (Compl.) After the interview was complete, Plaintiff was advised that because he had been previously employed with the post office, his personnel folder would have to be retrieved, which takes approximately two to three weeks. (Id.) Approximately five months later, Plaintiff was advised by letter that there was a hiring freeze on all clerical positions. (Id.)
While Plaintiff contends the Defendant never sent him a disqualification letter, Plaintiff also affirms that Defendant has "no grounds to disqualify [him] even though [he has] a shabby employment record. Plus after being out of the postal service for 25 years they have to give you a fresh start and erase your past employment record." (Id.)
Initially, Plaintiff sought two years' pension credit and two years' back pay. (Id.) In a letter, dated May 1, 2007, which the Court construed as a request to amend the Complaint, Plaintiff indicated that he wanted to modify the suit to "drop the 2 yrs. of back pay and just keep the 2 yrs. of pension credit time" so that he could get a small pension and health care. (Docket Entry 18.) In his second request to amend, dated May 14, 2007, Plaintiff, once again, amended the relief requested to one year of pension credit with respect to the year 2006. (Docket Entry 21.) In his May 14 letter, Plaintiff explained that he already had four years and four months' credit towards a pension and that he only needs a total of five years' credit to be eligible for a small pension and health care. (Id.)
Defendant moves to dismiss the Complaint on ...