The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
This action, brought by pro se Plaintiff Elliot Cates ("Cates") against current or former employees of the United States Postal Service ("USPS"),*fn1 relates to the circumstances of Cates' termination from probationary employment with the USPS in 2001. Defendants' move to dismiss Cates' Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. For the following reasons, Defendants' motion to dismiss is GRANTED.
In 2001, Cates applied for a position as a part time flexible motor vehicle operator with the USPS. (Amended Complaint filed September 10, 2008 ("Am. Compl.") IV. C. at 1; Exhibit to Am. Compl., "PS Form 50: Notification of Personnel Action.") Because the position entailed operation of a motor vehicle, Cates was required to complete and sign PS Form 2480, titled "Driving Record For Positions that Require Driving." (Id.; Ex. to Am. Compl. (hereinafter "PS Form 2480.")) PS Form 2480 directs applicants to describe motor vehicle accidents in which they have been involved during the previous five years. Although Cates had been involved in five motor vehicle accidents between the months of January and November 2001 while employed as a shuttle driver for a company called New York Airport Service, Cates did not list any accidents on the PS Form 2480. (Am. Compl. IV.B. at 1; PS Form 2480.) He signed the form and by so doing, certified that the statements made therein were "true, complete, and correct to the best of [his] knowledge and belief and made in good faith." (Id.) Cates contends that the omission was an unintentional oversight and that several times during the application process he was instructed by USPS personnel to sign forms and complete them at later time. (Am. Compl. IV. C. at 1.)
In late November 2001, "after being sworn in [as a postal employee]," Cates informed USPS human resource specialist Defendant Cheryl Williams that he had been terminated by his previous employer, New York Airport Service. (Am. Comp. IV. C at 1.C.) When Williams inquired into the reason for his termination, Cates informed Williams that his former employer had "got wind of [him] coming to the Postal Service" and the owner of the company told him that "'even though every accident may not have been [his] fault'" he was let go pursuant to a company policy to terminate employees who were involved in too many accidents. (Id.) Thereafter, Cates provided the USPS a list of the accidents in which he had been involved while employed as a driver for New York Airport Service. (Id.)
On December 17, 2001, Williams sent Cates a letter notifying him that his employment with the USPS was terminated, effective as of November 23, 2001, for his failure to disclose the accidents on the PS Form 2480. (Ex. to Am. Compl., Letter from Cheryl D. Williams to Elliot Cates, dated December 17, 2001 (hereinafter the "December 17 Letter")). Defendant Vanessa Duncan-Smith, also a USPS human resource specialist, signed the letter, indicating her concurrence with the notice of termination. The December 17 Letter cited the USPS' Employment and Placement Handbook, EL-312, Section 522 which provides that "[i]ntentionally false statements" made in connection with an application for employment are a basis for "disqualification for employment." (Id.) The December 17 Letter also stated that information obtained by the USPS after Cates' hire demonstrated that Cates was liable for three of the five accidents in the year 2001. (Id.) Consequently, the December 17 Letter informed Cates that he was "disqualified for consideration for any position requiring driving in the United States Postal Service." (Id.)
After his termination, Cates filed an EEO Complaint that led to mediation with the USPS on February 25, 2002. (See Am. Compl. IV. C. at 2, referring to "mediation settlement agreement 2/25/02 EEO Case No: (1A-100-0010-02)"). The mediation resulted in a settlement agreement that was signed by Cates and Defendant Toniette Henry, a USPS Human Resources Official, on February 25, 2002. (See Decl. of Carolina Fornos, dated September 8, 2008, Ex. C, "Settlement Agreement Form" dated 2/25/02, USPS Case No. 1A-100-0010-02, hereinafter the "Settlement Agreement.")*fn2 The Settlement Agreement provided that the USPS would reevaluate Cates' eligibility for employment as a motor vehicle operator if he supplied, by April 15, 2002, either proof of a satisfactory driving history while employed with New York Airport Service or documentation from the company's insurance carrier that demonstrated he was not at fault for more than one accident during the period of his employment. (Id.) Cates acknowledges that he did not supply the requisite documentation from his former employer by the April 15, 2002 deadline set by the Settlement Agreement. (Am. Compl. IV. C. at 2.) Cates claims that the delay was caused by his former employer's refusal to supply the documentation in a timely manner, but he contends that the documentation ultimately obtained from New York Airport Service establishes that the accidents were "unreportable" and that no "liability claims" were filed. (Am. Compl. IV. C. at 1.) Cates attached to his Amended Complaint a letter dated March 18, 2002 from New York Airport Service's insurance carrier that confirms that no claims made under the company's policy named Cates as liable for an accident between February 15, 2001 and April 25, 2001, when the policy was cancelled for nonpayment. (Ex. to Am. Compl.) A separate exhibit to Cates' Amended Complaint suggests that this letter was mailed to Defendant Toniette Henry by a member of Senator Charles Schumer's staff on April 2, 2002. (Ex. to Am. Compl.)
On May 13, 2002, Cates wrote to the USPS to complain that the USPS was in breach of the Settlement Agreement and to request that the USPS specifically implement its terms. (See Fornos Decl. Ex. D, U.S. Equal Employment Opportunity Commission Decision, Agency No. 1A-100-0010-02, dated January 23, 2003 ("EEOC Decision")). On August 23, 2002, the USPS issued a decision that found Cates had failed to comply with the terms of the Settlement Agreement by failing to provide documentation about his driving record on or before April 15, 2002. (Id.) Cates appealed to the Equal Employment Opportunity Commission ("EEOC") which upheld the USPS's administrative decision in a written decision dated January 23, 2003. (Id.) In its decision, the EEOC found that the Settlement Agreement did not obligate the USPS to reconsider Cates' employment because Cates had admittedly failed to furnish the necessary documentation about his driving record within the time specified. (Id.) The EEOC Decision further noted that the documentation supplied by Cates did not establish that Cates met the USPS's requirements for positions requiring operation of a motor vehicle. (Id.) The EEOC Decision granted Cates the right to file a civil action within ninety calendar days of the date Cates was in receipt thereof. (Id.)
To his Amended Complaint Cates has attached four letters from the USPS that indicate Cates has applied for and been denied employment with the USPS on at least four occasions between January 2006 and May 2008. (Exs. to Am. Compl.; Pl.'s Aff. in Opp'n. to Mot. at 2.) In each instance, the USPS based its decision not to rehire Cates on his earlier termination "for cause." (Exs. to Am. Compl.)
On January 22, 2008, Cates filed this action against John Potter, the Postmaster General, together with individual Defendants Williams, Duncan-Smith and Henry for "A) Employment Discrimination (Reprisal, Alcoholism) and B) Civil Right [sic] Violations -- Defamation of Character, unsubstantiated information." (Compl. II. B.) On September 10, 2008, Cates filed an Amended Complaint that removed Potter as a defendant and revised his allegations against the individual Defendants. The Amended Complaint lists the following as the basis for federal question jurisdiction: "A) Employment Placement Handbook, EL-312, Section 522, Intentional false statements, deception or fraud in application, etc. -- Contradiction; B) Civil Right [sic] Violation -- Defamation of Character, unsubstantiated accusations" The Amended Complaint seeks the following relief:
A) asking the defendants to justify before [a] court of law proving my intentions were to deceive the U.S. Postal Service; B) asking Court to order U.S. Postal Service to expunge those unsubstantiating [sic] remarks on my P.S. Form 50 and replace with resignation; . . . C) [monetary compensation including] reimbursement of lost wages since 2001 retroactive including retirement benefits [and] $5,000,000 for durest, [sic] anxieties, depression, lost time; D) Letter of apology from the 'New York District' or USPS itself; [and] E) Immediate reinstatement [to the USPS].
Defendants now move to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted.
Under Rule 12(b)(6), a complaint must be dismissed if there is a "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007). However, to survive dismissal a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly,127 S.Ct. 1955, 1965 (2007).
In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must "'limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.'" Newman & Schwartz v. Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662 (2d Cir. 1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991). Also properly considered are "documents plaintiffs had either in [their] possession or had knowledge of and upon which they relied in bringing suit." Goldstein v. Pataki, 516 F.3d 50, 53 n1. (2d Cir. 2008) (internal citations and quotation marks omitted).*fn3
"A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (quoting Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) (internal citations omitted)). Courts must interpret pro se pleadings "'to raise the strongest arguments that they suggest.'" Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996). Although they should be generously construed, pro se pleading "must still abide by the Federal Rules of Civil Procedure." Jones v. Consumer Information Dispute Resolution 2007 WL 2398811, 1 (S.D.N.Y. 2007)(citing McNeil v. United States, 508 U.S. 106, 113 (1993)).
At root, Cates sues to clear his name and obtain relief from the lasting effects of the stated basis for his termination in 2001 which continue to frustrate his efforts to secure employment with the USPS.*fn4 Construed generously, to the extent that Cates claims that he was not afforded a sufficient opportunity to establish that he did not intentionally falsify his application and that he in fact met the USPS requirements for positions that require driving, the Amended Complaint asserts a procedural due process claim under the U.S. Constitution.*fn5
Namely, the Amended Complaint can be, when liberally construed, read to allege a so-called "stigma-plus" claim that the USPS defamed Cates in the course of his termination without affording him adequate opportunity to clear his name, depriving him of his liberty interest in his professional reputation without due process of law. See Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004) (citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1972))
The Defendants do not construe the Amended Complaint to assert a "stigma-plus" due process claim, but rather read it to assert a tort claim for defamation.*fn6 Although the Amended Complaint contains no allegation that the USPS discriminated against Cates on the basis of his race, gender, religion or national origin, the Defendants also construe the Amended Complaint to assert employment discrimination claims under Title VII of the Civil Rights Act of 1964. Cates' Original Complaint lists "Employment Discrimination (Reprisal, Alcoholism)" as a basis for federal court jurisdiction. To the extent this claim is re-alleged in the Amended Complaint, the Court liberally construes this pleading to assert a claim under the Rehabilitation Act, which covers claims of disability discrimination against federal employers such as the USPS. The Court also ...