United States District Court, D. Minnesota
Michelle Neumann and Caitlin Grom for Plaintiff.
David Fuller, Assistant United States Attorney, for Defendant.
REPORT AND RECOMMENDATION
FRANKLIN L. NOEL, Magistrate Judge.
THIS MATTER came before the undersigned United States Magistrate Judge on April 4, 2014 on Defendant's motion to dismiss (ECF No. 16). Pursuant to this Court's previous Order, an evidentiary hearing was held on July 14, 2014 to resolve factual disputes at issue in this case. See Order, ECF No. 39. For the reasons discussed below, the Court concludes that the Government's motion to dismiss should be DENIED.
After years of alleged discrimination based on national origin, Haaland brought this suit against Donahoe, the Postmaster general, on two counts: (1) retaliation under Title VII and (2) harassment. Compl. 4, ECF No. 1. In short, Haaland alleges that he did not receive a promotion for which he is qualified because his supervisor refused to properly consider his candidacy. Id. at 5. The Government moves to dismiss Haaland's complaint under Rule 12(b)(1) for lack of subject matter jurisdiction or, in the alternative, under 12(b)(6) for failure to state a claim. Proceeding under Rule (12)(b)(1), the Court ordered an evidentiary hearing to resolve the factual dispute about whether Haaland timely filed his complaint.
Title VII provides that a plaintiff may bring a civil action in the appropriate U.S. District Court "[w]ithin 90 days of receipt of notice of final action taken by a[n]... agency." 42 U.S.C. § 2000e-16(c) (emphasis added). The parties dispute the date that Haaland received the Equal Employment Opportunity Commission's Notice of Final Action (the "Final Notice"). See ECF No. 1-1 at 2. The Government points to a delivery confirmation that indicates the letter arrived at the Montrose Post Office, where Haaland has a P.O. Box, on April 1, 2013. Def's Mem. Mot. Dismiss at 6, ECF No. 17. Haaland maintains that he did not receive the Final Notice until April 19, 2013. Pl.'s Opp'n Mem. to Def.'s Mot. to Dismiss at 5, ECF No 35. Haaland filed his complaint on July 12, 2013. Compl., ECF No. 1. Thus, if April 1 is deemed the Final Notice receipt date, then Haaland's Complaint was filed 11 days late. On the other hand, if April 19 is deemed the Final Notice receipt date, his complaint was timely filed six days prior to the 90-day statutory deadline.
II. EVIDENTIARY HEARING TESTIMONY
A. Testimony of Anthony Frolik.
At the hearing, U.S. Postal employee Anthony Frolik testified on behalf of the Government. Frolik serves as an Operations Program Specialist for the Northland District, which covers Minnesota and Western Wisconsin. Draft Tr. 4. Frolik testified about his previously submitted sworn declaration, which describes the Postal Service's Track and Confirm system. See ECF No. 40. Frolik's declaration details the procedure whereby a bar code is printed on the shipping label of items delivered by the U.S. Postal Service. Id. The bar coded labels are scanned at various points in the delivery process, including upon "arrival" to a local post office and "delivery" to a recipient's P.O. Box. Id. The Track and Confirm record for the Final Notice sent to Haaland shows a delivery date of April 1, 2013. Gov.'s Ex. 2. Frolik also stated that he found the system to be "generally reliable." Draft Tr. at 6. Frolik acknowledged that mis-deliveries "could conceivably happen" but that to the best of his knowledge, "once we scan a piece delivered that is addressed to a P.O. box, we place it in the box. We do not set it aside and keep it within our possession." Id. at 10.
On cross-examination, Frolik acknowledged that the Track and Confirm system does not require the recipient's signature, and that there is no way to know when a postal employee places a piece of mail in a designated mail box. Id. at 13. Frolik also testified that it is possible that a Postal employee could place mail in the wrong P.O. Box. Id. at 14. The Postal Service has no electronic system to track mis-deliveries. If and when mis-delivered mail is returned to the post office, the postal employee is expected to record the mis-delivery in the log book. Id. 15-16.
B. Testimony from Plaintiff David Kariem Haaland.
Haaland testified that he has used a post office box at the Montrose Post Office for more than 20 years. Id. at 21. Haaland checks his P.O. Box six days per week, everyday except Sunday. Id. Haaland testified that he received the Final Notice on April 19, 2013. Id. at 23. Upon receipt of the notice, Haaland wrote April 19 on the envelope but then-unaware that the date of receipt might be important-Haaland later threw away that envelope. Id. at 24.
Haaland also testified that he frequently had trouble with timely delivery of mail to his P.O. Box. Id. at 26. He testified that mail addressed to him has been delivered to other P.O. Box numbers and that he often receives mail in his P.O. Box that is addressed to others. Id. at 26-29. In support of this claim, Haaland submitted a photo copy of an envelope of a piece of mail that was delivered to him on June 20, 2014, but is addressed to "Retailer 105973/THE UGLY BAR/PO BOX 276." Pl's. Ex. 2. Haaland noted that his P.O. Box number is 275, a one digit difference. Draft Tr. 27. Haaland also described the previous mis-delivery of a piece of mail that he was expecting. Because he knew the package should arrive on a certain date, Haaland had reason to track the package and inquire with the Montrose postal workers about its whereabouts. Id. at 29. That package was delayed, but ...