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Bowers v. Brennan

United States District Court, W.D. Michigan, Southern Division

February 17, 2017

TROY E. BOWERS, Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster General of the United States, Defendant.

          OPINION

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE.

         This case stems from the termination of Plaintiff's employment with the United States Postal Service. Plaintiff is a United States Army veteran who was rated as disabled by the United States Department of Veteran Affairs after his honorable discharge in 1997. Plaintiff was hired by the Postal Service in 2002 and worked as a supervisor at the Muskegon Post office until his termination in 2015. The United States Postal Service, Office of Inspector General conducted an investigation into Plaintiff's misuse of his work computer, ultimately concluding that Plaintiff frequently visited eBay and Gmail websites, and used employee access to track shipments of items he sold on eBay.

         The Postal Service issued Plaintiff a Notice of Removal in February 2014, informing Plaintiff that the Postal Service intended to terminate his employment because of his misuse of his computer. In March 2014, the Service issued a Letter of Decision, terminating Plaintiff effective April 5, 2014. This Letter was rescinded, but the February Notice of Removal remained in effect until the Service issued a second Letter of Decision in October 2014. Plaintiff appealed the decision to the Merit System Protection Board. An ALJ held hearings on Plaintiff's appeals, affirming the Service's removal based on misuse of his computer and finding that the removal was not based on intentional discrimination. Plaintiff appealed the ALJ's decision to the full MSPB. The Board affirmed the ALJ's finding that Plaintiff was properly terminated for misusing his computer and not because of discrimination.

         Plaintiff filed a pro se complaint, “claiming discrimination based on disabling condition.” (ECF No. 1 at PageID.3.) Plaintiff then moved for default judgment. (ECF No. 12.) Defendant moved to dismiss for failure to state a claim and for lack of subject matter jurisdiction. (ECF No. 9.)

         Motion for Default Judgment

         Plaintiff moved for a default judgment on the basis that Defendant failed to timely respond to the complaint. (ECF No. 12.) Plaintiff's summons was served on the U.S. Attorney's Office on October 24, 2016, meaning that Defendant had 60 days from October 25 to respond. (ECF No. 6.) As per Rule 6, the deadline would normally be December 23, 2016, but the Clerk's office was closed on December 23 and December 26, in observance of Christmas. “[I]f the clerk's office is inaccessible…on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday.” Fed.R.Civ.P. 6(a)(3)(A). The first accessible day after December 23 was December 27, the day on which Defendant filed her motion to dismiss. (ECF No. 9.)

         Defendant's response to the summons was timely. Plaintiff's motion for default will be denied.

         Motion to Dismiss

         Defendant argues that Plaintiff's disability discrimination claim should be dismissed because the complaint fails to sufficiently plead that he was disabled for the purposes of the ADA. A prima facie disability discrimination claim under the Rehabilitation Act requires that the plaintiff establish

(1) he or she is disabled;
(2) he or she is otherwise qualified for the position, with or without reasonable accommodation;
(3) he or she suffered an adverse employment decision;
(4) the employer knew or had reason to know of the plaintiff's disability, and
(5) the position remained open while the employer sought other applicants or the disabled ...

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