Soto v. Brennan

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-1523
JOSE SOTO,
Plaintiff, Appellant,
v.
MEGAN J. BRENNAN, Postmaster General of the U.S. Postal Service,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark G. Mastroianni, U.S. District Judge]
Before
Lynch, Selya, and Barron,
Circuit Judges.
Nicole Bluefort and Law Offices of Nicole M. Bluefort on brief
for appellant.
Karen L. Goodwin, Assistant U.S. Attorney, and Carmen M.
Ortiz, United States Attorney, on brief for appellee.
March 13, 2017
Per curiam. Jose Soto appeals from the district court's
dismissal of his four-count complaint alleging that his former
employer, the United States Postal Service ("USPS"), engaged in
retaliation, race discrimination, and wrongful discharge against
him. Soto's claims arise from his unsuccessful filing for workers'
compensation after being injured in a motor vehicle accident on
April 29, 2010, and from the subsequent termination of his USPS
employment for the stated reasons of "failure to follow
instructions, failure to satisfactorily perform his duties,
falsification of time, and unacceptable conduct between April 17
and April 30, 2010." In addition to appealing from the dismissal
of these claims, Soto argues that he was repeatedly denied due
process throughout the Equal Employment Opportunity ("EEO")
process and proceedings before the district court, an assertion
not made before the district court.
The district court construed the USPS's motion to
dismiss or, in the alternative, motion for summary judgment as a
motion to dismiss and granted that motion in its entirety. In its
order granting the USPS's motion, the court did not address Count
I, which appealed the denial of Soto's second EEO complaint,
because the parties agreed that the count had dropped from the
case. The court then dismissed Count II, which alleged race
discrimination under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., for failure to exhaust administrative
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remedies. Soto had not raised the claim in either of the two EEO
complaints he had earlier filed. As to Count III, which claimed
that the USPS failed to process his workers' compensation papers
as retaliation for his initiation of EEO counseling in violation
of Title VII, the district court found that the claim was meritless
for two reasons. First, because Soto's initiation of EEO
counseling (on May 28, 2010) took place after the alleged failure
to process his workers' compensation papers (for which he submitted
supporting documentation on May 1, 2010), the timeline did not
give rise to an inference of retaliation. Second, because record
evidence showed that the Office of Workers' Compensation Programs
had actually considered and denied Soto's workers' compensation
claim, the USPS's alleged retaliation did not result in materially
adverse harm to Soto. Finally, the district court dismissed Count
IV, which alleged wrongful discharge, by relying on the EEO
decisions that found that the USPS had committed no wrong in
terminating Soto.
On de novo review, we affirm. It does not matter whether
the district court treated the USPS's motion as one for Rule
12(b)(6) dismissal or one for summary judgment because both parties
put undisputed official documents before the district court, and
the complaint referred to many of those documents. Further, the
parties agreed before the district court that Count I had dropped
from the case. As to the remaining three counts, we summarily
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affirm substantially on the district court's reasoning. See 1st
Cir. R. 27.0(c). Finally, Soto cannot make his due process claim
for the first time on appeal without having raised it in his
complaint or in the district court. See United States v. Slade,
980 F.2d 27, 30 (1st Cir. 1992).
So ordered.
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