Brown v. Brennan

Background

Misty Danielle Brown, who was representing herself, sued Megan Brennan, identified in the opinion as the Postmaster General of the United States Postal Service. Brown alleged employment retaliation under Title VII of the Civil Rights Act of 1964 based on an appeal she filed with the Equal Employment Opportunity Commission’s Office of Federal Operations in August 2014. The appeal related to an earlier disability-discrimination complaint. The opinion noted that the earlier proceeding involved disability discrimination under the Rehabilitation Act, but Brown’s current complaint identified Title VII as the statute supporting her retaliation claims.

Brown alleged two retaliatory acts. First, she alleged that the Postal Service changed eight hours of approved dependent sick leave to leave without pay and did not pay her for that time. She later requested emergency advance pay, but the Postal Service offered a pay adjustment that Brown alleged would have delayed payment by two to four weeks. Second, she alleged that the Postal Service failed to provide timely notice of her work schedule and assignments between September 27 and October 9, 2014. Her grievance about the assignments was resolved through the Postal Service’s internal grievance process in December 2014.

Motion and governing standard

Brennan moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(6) permits dismissal when a complaint does not state a legally sufficient claim. The court explained that although the motion also cited lack of subject-matter jurisdiction, the defendant’s substantive argument was that Brown had failed to state a Title VII retaliation claim, so the court analyzed the motion under Rule 12(b)(6).

To state a Title VII retaliation claim, Brown had to allege that she engaged in protected activity, suffered an adverse employment action, and had a causal connection between the protected activity and the adverse action. The court construed her self-represented pleadings liberally, but concluded that the complaint did not adequately plead the required elements.

Protected activity

The court agreed with the defendant that Brown had not clearly identified protected activity under Title VII. A retaliation claim under a particular statute generally must be based on activity protected by that same statute. The complaint referred generally to prior Equal Employment Opportunity activity and an appeal, but did not identify the statute or the type of discrimination involved in the underlying activity.

The court recognized that Brown’s earlier proceeding involved disability discrimination under the Rehabilitation Act and that her current action likely arose under the same statute, although her opposition did not clearly say so. Because the Rehabilitation Act and Title VII retaliation standards are analyzed under the same standard, the court concluded that this pleading defect might be cured by amendment.

Adverse employment actions

For the sick-leave allegation, the court concluded that the alleged action was not final. Brown alleged that the Postal Service offered a pay adjustment after she brought the issue to her supervisor’s attention. Although Brown refused the adjustment because she believed it would delay payment and place her in a higher tax bracket, the court concluded that the alleged harm was limited to a possible two-to-four-week delay in payment for eight hours of wages. Under the authorities the court applied, that was not plausibly an action that would deter a reasonable employee from pursuing a discrimination charge.

For the assignment-notice allegation, the court likewise concluded that the alleged action was not final because Brown’s grievance was resolved by requiring the Postal Service to post a weekly schedule. The court acknowledged that the conduct had an adverse personal impact on Brown and that she said it caused her never to return to work. But the applicable test was objective: the question was whether the conduct would deter a reasonable employee from engaging in protected activity, not whether it deterred Brown personally. The court held that the allegations did not satisfy that test.

Disposition

The court granted Brennan’s motion to dismiss with leave to amend. Brown was permitted to replead her retaliation claims, but was not permitted to add other claims. Any amended complaint had to identify whether the retaliation claims were brought under Title VII or the Rehabilitation Act, describe the underlying protected activity, and allege facts supporting a plausible inference that Brown suffered an adverse employment action in retaliation for her appeal.

The court gave Brown 21 days to file an amended complaint. It stated that failure to meet that deadline would result in dismissal of the complaint with prejudice. This order disposed of Docket No. 20.