United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge
Neekhoach Duhart, proceeding pro se, filed this
action against the United States Postal Service
(“USPS”), alleging retaliatory discharge and race
discrimination in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”). Specifically, Duhart alleges that
a USPS employee discriminated by calling him “black
boy, ” his supervisors took no action in response and
harassed him for taking scheduled breaks, and he was
terminated in retaliation for reporting the harassment. This
court has jurisdiction pursuant to 28 U.S.C. § 1331.
case is before the court on USPS's Rule 12(b)(6) motion
to dismiss Duhart's complaint with prejudice. USPS argues
that the complaint should be dismissed because Duhart failed
to exhaust all his administrative remedies before filing suit
and thus has failed to state a claim upon which relief can be
granted. Duhart also filed a motion for change of venue. For
the reasons stated herein, USPS's motion to dismiss is
granted and Duhart's motion for change of venue is
OF THE COMPLAINT
to the allegations of the complaint, Duhart began working as
a Mail Handler Assistant with USPS on November 28, 2016.
Compl., ECF No. 1 at 6. On December 4, 2016, he saw a fellow
Mail Handler Assistant harming USPS property and asked if she
needed help. Id. at 8. The employee responded with
an expletive and referred to Duhart as “black
boy.” Id. Duhart reported the incident to his
supervisors, but they took no action. Duhart further alleges
that his supervisors harassed him for taking scheduled,
personal breaks during his shifts. Id. at 9. Duhart
was terminated on December 8, 2016, which was during a 90-day
probationary period. Id. at 6-7. He claims that USPS
terminated him in retaliation to his reporting the
harassment. Id. at 9-10.
termination, on December 8, 2016, Duhart filed an EEO
pre-complaint. Compl., No. 1-2 at 26. Duhart participated in
mediation on January 18, 2017, but the parties failed to
resolve the dispute. Compl., at 11; ECF No. 1-2 at 28-29. On
January 30, 2017, Duhart received notice to file a formal
administrative complaint (“EEO Complaint”) within
15 days of receipt. Compl., at 7; ECF No. 1-2 at 30. Instead
of promptly filing his EEO Complaint, Duhart filed his
complaint in this action on February 10, 2017, but did not
file his EEO Complaint until February 17, 2017. ECF No. 8-4
at 21; ECF No. 8-5. By letter dated April 5, 2017, the USPS
EEO Investigative Services Office dismissed Duhart's EEO
complaint for being untimely. ECF No. 8-6.
motion to dismiss tests the sufficiency of the complaint to
state a claim upon which relief can be granted, and does not
decide the merits of the case. Gibson v. City of
Chi., 910 F.2d 1510, 1520 (7th Cir. 1990); see
Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss
under Rule 12(b)(6), the Court must accept all well-pleaded
factual allegations as true and draw all inferences in the
light most favorable to the non-moving party. Guitierrez
v. Peters, 111 F.3d 1364, 1368-69 (7th Cir. 1997);
Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir.
1991). When extrinsic evidence outside the pleadings is
submitted with a Rule 12(b)(6) motion to dismiss, the court
must either convert the motion into one for summary judgment
under Fed.R.Civ.P. 56, or exclude the documents attached to
the motion to dismiss and continue under Rule 12(b)(6).
Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir.
1998). However, under the incorporation-by-reference
doctrine, “if a plaintiff mentions a document in his
complaint, the defendant may then submit the document to the
court without converting the defendant's 12(b)(6) motion
to a motion for summary judgment.” Brownmark Films,
LC v. Comedy Partners, 682 F.3d 687, 690 (7th Cir.
2012); see also Williams v. Curran, 714 F.3d 432,
436 (7th Cir. 2013) (“[A] court may consider . . .
documents that are attached to the complaint, documents that
are central to the complaint and are referred to in it, and
information that is properly subject to judicial
asserts that Duhart failed to exhaust his administrative
remedies before filing suit in federal court. Under Title
VII, employees of federal agencies must follow specific
procedures before filing a legal claim. 29 C.F.R. §
1614.105. Someone who believes they have been discriminated
against must first consult a counselor within 45 days of the
alleged discrimination. 29 C.F.R. § 1614.105(a). If the
initial counseling does not resolve the dispute, the
counselor must give written notice of the employee's
right to file an EEO Complaint. 29 C.F.R. § 1614.105(d).
The complaint must be filed within 15 days of receiving the
written notice. 29 C.F.R. § 1614.106(b); Ester v.
Principi, 250 F.3d 1068, 1071 (2001) (“One
administrative remedy federal employees must pursue is the
filing of a formal complaint of discrimination within 15 days
of receiving notice of the right to do so.”). If these
potential remedies all fail, the employee may pursue legal
action in federal court once he receives a right-to-sue
letter from the Equal Employment Opportunity Commission
(“EEOC”). Hill v. Potter, 352 F.3d 1142,
1145 (7th Cir. 2003). Failure to exhaust these administrative
remedies precludes the employee's right to relief.
Reynolds v. Tangherlini, 737 F.3d 1093, 1099 (7th
support of its motion to dismiss, USPS filed Duhart's EEO
Complaint and postmarked envelope. ECF No. 8-4 at 21; EFC No.
8-5. Because the obligation of the plaintiff to exhaust all
administrative remedies before filing suit is central to
Duhart's claim, the court may take notice of the EEO
Complaint and postmarked envelope without converting this
Rule 12(b)(6) motion into a motion for summary judgment.
These documents conclusively establish that Duhart did not
file his EEO Complaint with the agency within the 15 days
allowed. The complaint was thereafter dismissed on the ground
that it was untimely, and Duhart has not appealed that
dismissal. Having failed to exhaust his administrative
remedies, his Title VII lawsuit must be dismissed. When a
plaintiff's exhaustion of administrative remedies is
untimely, a court dismisses the Title VII claim without
ruling on the merits. Ester v. Prinicipi, 250 F.3d
at 1071. While there are situations where a plaintiff can
show waiver, estoppel, or equitable tolling so as to avoid
dismissal, Duhart has made no such showing here or offered
any explanation that could give rise to such a defense.
plaintiff is generally granted leave to amend the complaint
when a claim is dismissed if there is a problem that can
potentially be cured. Indep. Tr. Corp. V. Stewart Info.
Services Corp., 665 F.3d 930, 943 (7th Cir. 2012);
see Fed. R. Civ. P. 15(a)(1). Because Duhart cannot
correct this error, the motion to dismiss is granted with
also filed a motion to change venue on the basis that he no
longer resides within the state of Wisconsin. As his claim
has been dismissed under Rule 12(b)(6), the motion to change
venue will be denied as moot. Even if it were not moot, the
motion to change venue would be denied. It is the place where
the action arose, not where the plaintiff ...