Arnold v. Tulino

Background

Sheon Arnold, proceeding without a lawyer, sued Doug Tulino and the United States Postal Service over alleged employment discrimination. Arnold alleged that the defendants rejected his applications for entry-level management positions because he is African American, possibly because of his national origin, and because he is a veteran. He alleged that he applied for 98 positions over more than 40 months, but the evidence showed that he applied for 61 positions. He sought hiring or promotion, back pay, retroactive pay, compensatory damages, punitive damages, and other relief.

Arnold asserted claims under Title VII of the Civil Rights Act, 42 U.S.C. §§ 1981 and 1983, the New York Constitution, veterans’ preference laws, the Jobs for Veterans Act, the Civil Service Reform Act, and New York State and New York City human-rights laws. The defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6) and moved for partial summary judgment under Rule 56. A motion for summary judgment asks whether undisputed evidence requires judgment without a trial; a motion under Rule 12(b)(6) asks whether the complaint states a legally valid claim.

Title VII claims involving 58 job postings

The court recommended granting partial summary judgment on the Title VII claims involving 58 job postings. A federal employee generally must contact an equal-employment counselor within 45 days of the alleged discriminatory act before pursuing a Title VII lawsuit. The evidence showed that Arnold did not make timely counselor contact for 58 of the 61 positions he actually applied for. Arnold did not dispute that he failed to complete this process for those positions and instead argued that the applications could serve as background evidence of a broader discriminatory practice.

The court concluded that Arnold had not provided evidence creating a genuine factual dispute about exhaustion. It therefore recommended summary judgment for the defendants on the Title VII claims involving those 58 postings and recommended that Arnold not be allowed to replead those claims.

The three remaining Title VII claims

For the three job postings for which Arnold did complete the administrative process, the court recommended dismissal under Rule 12(b)(6) for failure to state a claim. The court said that Arnold alleged protected-status membership and adverse employment decisions, but did not provide enough facts to support a reasonable inference that race or national origin motivated the decisions.

The court noted that Arnold relied largely on a “gut feeling,” a possible pattern of discrimination, his belief that interviews went well, and assertions that candidates with lower ratings were selected. He did not identify the selected candidates’ qualifications or races, provide facts linking the decisions to his race or national origin, or explain the relevant facts for each position. The court also considered materials indicating that Arnold consistently scored “0” on knowledge, skills, and abilities questions and that no applicant with such a score received an interview.

The court nevertheless recommended allowing Arnold to amend his complaint solely as to these three job postings. It recommended that the court review any amended complaint before requiring a response from the defendants and, if the amended complaint still failed to state a claim, require Arnold to explain why those claims should not be dismissed.

Other claims

The court recommended dismissing Arnold’s other claims under Rule 12(b)(6), rather than for lack of subject-matter jurisdiction. It explained that the absence of a valid cause of action is generally a failure to state a claim, not a limit on the court’s power to hear a case.

The court concluded that:

- Section 1981 does not provide a discrimination claim against federal employers. - Section 1983 applies to state or local actors, not federal officials or federal agencies. - The New York Constitution, the New York State Human Rights Law, and the New York City Human Rights Law do not provide the asserted discrimination claims against federal employers in this case. - The Veterans’ Preference Act, the Vietnam Era Veterans’ Readjustment Assistance Act, and the Jobs for Veterans Act do not provide Arnold with a private right to sue under the theories asserted. - The cited Civil Service Reform Act provisions do not provide a private right of action, and covered employees must use the applicable administrative process, including proceedings before the Merit Systems Protection Board where applicable. - Executive Order 11521 does not create a private right of action. - Any claim under the Veterans’ Employment Opportunities Act had not been administratively exhausted because Arnold did not allege that he filed a complaint with the Department of Labor or pursued an appeal to the Merit Systems Protection Board.

Recommendation and status

Judge Sarah Netburn recommended granting the defendants’ motion for partial summary judgment on the 58 unexhausted Title VII claims and granting the defendants’ motion to dismiss the complaint in its entirety, while permitting a limited amendment concerning the three exhausted job postings. This was a report and recommendation addressed to Judge Gregory H. Woods, not a final order by the district judge. The opinion states that the parties had 14 days after service to file objections.