                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


ERIC L. BULLOCK,                     )
                                     )
              Plaintiff,             )
                                     )
              v.                     )      Civil Action No. 13-1543 (CRC)
                                     )
                                     )
PATRICK R. DONOHOE,                  )
                                     )
              Defendant.             )


                           MEMORANDUM OPINION AND ORDER

       Plaintiff Erik Bullock is a former letter carrier in the District of Columbia who

was fired in May 2010 on the grounds that he lied about his absence from work while

he was incarcerated. Bullock alleges, however, that he was “targeted for removal by

[his] supervisors” after he broke his left ankle in June 2000 because he “could no

longer deliver [his] route in the timely manner that was expected of [him].” Compl. at

3. Proceeding pro se, Bullock sues the Postmaster General of the United States Postal

Service for discrimination and retaliation in violation of the Rehabilitation Act of

1973, 29 U.S.C. § 701 et seq., which prohibits federal employers from discriminating

on the basis of disability and retaliating against individuals for exercising rights under

the Act. 1




       1
               “The Rehabilitation Act, 29 U.S.C. § 701 et seq. requires a federal employer or an
employer who receives federal funding to comply with the standards set forth in the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq.,” which includes an anti-retaliation
provision. Kendall v. Donahoe, 913 F. Supp. 2d 186, 190-91 (W.D.Pa. 2012) (quoting 42 U.S.C.
§ 12203(a)) (other citations omitted).


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       Defendant moves to dismiss the complaint under Rule 12(b)(6) of the Federal

Rules of Civil Procedure on the sole basis that the complaint is untimely filed. Def.’s

Mot. to Dismiss [Dkt. # 9]. For the following reasons, the motion will be granted in

part and denied in part.

I. BACKGROUND

       While employed by the Postal Service, Bullock was incarcerated from October

23, 2009 to December 14, 2009. He alleges that he informed his supervisor of his

status during a “very short” telephone call from prison in November 2009. 2 Compl. at

3. Plaintiff was fired by notice dated May 10, 2010, for “unacceptable conduct and

unacceptable attendance/AWOL,” based on what were found to be false reasons

Bullock had provided for his absence and Bullock’s submission of fraudulent medical

documentation. Compl. Attach., ECF pp. 7-11 (EEOC Decision at 1-3); Def.’s Mot.,

Ex. 2 (NALC/USPS Step B Decision).

       Bullock’s union, the National Association of Letter Carriers (NALC), pursued a

grievance and Bullock filed an EEO charge. NALC resolved the grievance on July 12,

2010, at Step B of the dispute resolution process upon “concur[ring] that Management

did have Just Cause to remove [plaintiff] from the USPS.” Step. B Dec. at 3. The

EEOC rendered its final adverse decision on May 9, 2013, and informed plaintiff




       2
               The administrative record contradicts plaintiff’s allegation. During EEO
proceedings, plaintiff’s supervisor stated that during the call, plaintiff requested sick leave for an
extended absence; the supervisor referred the matter to the Agency’s Office of Inspector General
upon surmising from the background noise during the call that plaintiff was incarcerated.
Compl. Attach., ECF pp. 21 -30 (Admin. Judge’s Summ. Dec. at 3). The Administrative Judge
found: “There is no reasonable way to accept the [plaintiff’s] word that he told [his supervisor]
he was incarcerated, and that he had no knowledge of the fraudulent doctor’s statements. There
is too much evidence contrary to his assertions.” Dec. at 9.

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about his right to file a civil lawsuit within 90 days of his receipt of the decision. See

EEOC Dec. at 4.

      The Clerk of Court first received Bullock’s complaint and application to

proceed in forma pauperis on August 29, 2013, see Compl. Attach, ECF pp. 199, 200

(Clerk’s stamps), but scratched out that date apparently because the submission was

defective. In a form Order dated September 9, 2013, plaintiff was informed that his

papers were being returned as non-compliant with the Federal Rules of Civil

Procedure and the Local Rules of this Court. He was further told: “If you wish to file

a new case please review the enclosed instructions.” Pl.’s Response to Mot. to

Dismiss [Dkt. # 11] at ECF p. 23. This action was formally filed on October 8, 2013,

upon the Court’s granting of plaintiff’s in forma pauperis application dated September

19, 2013. See Dkt. # 2.

II. LEGAL STANDARD

      In deciding the defendant’s motion to dismiss under Rule 12(b)(6), the Court

may consider the documents attached to the complaint and those incorporated by

reference without triggering the conversion requirement of Fed. R. Civ. P. 12(d).

Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C. Cir. 2007). The Court may

also consider “documents upon which the plaintiff's complaint necessarily relies even

if the document is produced not by the plaintiff in the complaint but by the defendant

in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehab.Servs., 68 F. Supp. 2d

117, 119-20 (D.D.C. 2011) (citations and internal quotation marks omitted).




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III. ANALYSIS

      As part of his opposition, Bullock has produced a postage receipt purporting to

show the Clerk of Court’s receipt of a mailing on July 30, 2013. Defendant

acknowledges the receipt might render the Rehabilitation Act claim timely, but

questions its authenticity in light of (1) discrepancies between the date of the receipt

and the date of his complaint, and (2) findings that Bullock submitted fraudulent

documents to the Postal Service in the past, which factored into his dismissal.

Nevertheless, defendant requests that the pending motion be either denied in part

without prejudice or held in abeyance so that the parties may conduct discovery on the

timeliness of the Rehabilitation Act claim. See Def.’s Reply to Pl.’s Resp. in Opp’n

to Mot. to Dismiss at 1-2; see also Legille v. Dann, 544 F.2d 1 (D.C. Cir. 1976) (proof

of mailing documents to the court creates rebuttable presumption of timely delivery).

      Defendant also contends that, to the extent plaintiff is alleging that his union

breached its duty of fair representation, this claim should be dismissed now as

untimely under the six-month statute of limitations applicable to hybrid claims

brought under Section 301 of the Labor Management Relations Act. See Mem. of P.

& A. in Support of Def.’s Mot. to Dismiss at 1-2, 11-14; Def.’s Reply at 3-5; see also

Cephas v. MVM, Inc., 520 F.3d 480, 485 (D.C. Cir. 2008) (“The employee may bring

his [hybrid § 301/fair representation] action against the employer, the union, or

both[.]”) (citing DelCostello v. Int’l Broth of Teamsters, 462 U.S. 151, 165 (1983)).

      The breach of a union’s duty of fair representation is an unfair labor practice

that “is governed by the six-month [limitations] provision of § 10(b)” of the National

Labor Relations Act. DelCostello, 462 U.S. at 172. Accord George v. Local Union



                                            4
No. 639, Intern. Broth. of Teamsters, 100 F.3d 1008, 1014 (D.C. Cir. 1996) (affirming

district court’s application of “the six-month statute of limitations of section 10(b) to .

. . duty of fair representation claims”). Plaintiff’s claim arose in July 2010 when the

union issued its Step B Decision finding just cause for his removal. It is not at all

clear from the complaint’s allegations that plaintiff is bringing a hybrid claim but the

Court agrees that any such claim presented three years after accrual is time-barred.

       Accordingly, it is

       ORDERED that Defendant’s Motion to Dismiss is GRANTED as to any duty

of fair representation claim and DENIED as to the Rehabilitation Act claim; and it is

further

       ORDERED that limited discovery on the timeliness of the Rehabilitation Act

claim shall commence immediately and conclude by December 1, 2014. Thereafter,

defendant shall have until December 22, 2014, to file a summary judgment motion,

plaintiff shall have until January 23, 2015, to file an opposition, and defendant shall

have until February 6, 2015, to file any reply.



                                                  ____________s/_______________
                                                  CHRISTOPHER R. COOPER
DATE: October 14, 2014                            United States District Judge




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