Opinion
CIVIL ACTION NO. SA-99-CA-1502-OG
February 26, 2001
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Introduction
The matters before me are defendant Department of the United States Air Force's original and supplemental motions to dismiss pursuant to FED. R. Civ. P. 12(b)(1) and (b)(6), or alternatively, for summary judgment (Docket Entries, 15 18). Defendant's motions are premised on two grounds: (1) that plaintiff, Bobby J. Davis ("Davis") failed to exhaust the administrative remedies afforded to him as a federal employee by failing to file a charge of discrimination as required by the applicable regulations issued by the Equal Employment Opportunity Commission ("EEOC"); and (2) that due to Davis' filing of bankruptcy under Chapter 7 (later changed into a Chapter 13 proceeding) before initiating the instant suit, Davis lacks standing to pursue his discrimination claims in the instant suit, as those claims properly belong to his bankruptcy trustee. Davis failed to respond to defendant's original motion within the time provided in the Federal Rules of Civil Procedure.
In the interests of justice, defendant filed a supplemental motion to dismiss and brought to the court's attention a recent bankruptcy case that may weaken its standing argument as it applies to Chapter 13 bankruptcy proceedings. Docket entry 18, at 1 (citing In re Bowker, 245 B.R. 192, 193 (Bankr. D.N.J. 2000)). Because it is my recommendation that defendant's motion to dismiss should be granted based on Davis' failure to exhaust his administrative remedies, I need not determine how this fairly recent bankruptcy law development impacts defendant's argument on standing.
As a result, and in consideration of his pro se status, I entered a show cause order extending his response time and advising him of the applicable standards by which defendant's motion would be analyzed. Due to Davis' failure to file a response within the time provided in my show cause order, defendant immediately filed a motion for involuntary dismissal pursuant to FED. R. Civ. P. 41(b). Again, I entered a second show cause order asking Davis to provide me, in writing, the reasons why this case should not be dismissed for failure to prosecute.
Docket entry 16.
Docket entry 17.
Docket entry 20.
In response to my second show cause order and defendant's dispositive motions, Davis filed a brief two-page statement. Significantly, for purposes of this lawsuit, Davis conceded in his response that he did not file an administrative charge of discrimination within the time provided by the EEOC regulations. Davis also stated in his response that the reason why he has not been actively prosecuting the instant case was because his house caught on fire on April 14, 2000 and that he chose to have the United States Postal Service withhold his mail pending completion of his house renovation. A review of the docket sheet reveals that Davis did not notify the district clerk's office of his house fire, nor provided an alternative change of address.
Docket entry 21.
Id . at 1.
Id .
Having reviewed the entire record in this case, including the arguments raised by defendant in support of dismissal and/or summary judgment and Davis' response thereto, as well the applicable case and statutory law, it is my recommendation that defendant's motions should be granted.
I have jurisdiction to enter this Memorandum and Recommendation under 28 U.S.C. § 636(b) and the District Court's Order referring all pretrial matters in this proceeding to me for disposition by order, or to aid in their disposition by recommendation where my authority as a Magistrate Judge is statutorily constrained.
II. Factual and Procedural Background
In this employment discrimination action, plaintiff Davis alleges that defendant intentionally discriminated against him because of his race (Black), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). According to his complaint and documents purportedly submitted to defendant's EEO office, Davis began temporary employment with defendant in March of 1997 as an electrician. Davis' temporary assignment was for two years. Davis contends that from the beginning of his employment with defendant he was racially harassed by his immediate supervisor, who frequently used the "N" word in his presence and who opposed any kind of career advancement for plaintiff because of his racial animus against him, There is no record, however, that Davis ever complained to the defendant's EEO office about the purported racial harassment prior to his termination.
42 U.S.C. § 2000e-16. Even though Davis appears to have alleged handicap discrimination during the informal stages of his EFO administrative complaint, he failed to assert the claim in his federal court complaint. Docket entry 9.
In March of 1998, Davis suffered an on-the-job injury to his head. Davis underwent medical treatment for his injury which included neurological examinations. He was eventually diagnosed as suffering from a tumor known as pituitary macro adenoma. He subsequently underwent a surgical resection of the tumor. On September 28, 1998, Davis returned to work with a letter from his neurosurgeon containing specific instructions regarding his post-operative physical limitations. On October 16, 1998, Davis' neurosurgeon completed a notice of medical examination report which recommended medical restrictions on Davis' return to full-time work. The restrictions provided that Davis not be positioned in high places where he had to continually lower his head, or work in an environment that would expose him to dust or chemical solvents. According to the neurosurgeon's report, these restrictions were to apply for at least four more months, and it further noted that if no growth of the tumor occurred, Davis was expected to fully recover in five years.
On November 6, 1998, defendant evaluated Davis to determine his fitness for duty as an electrician. The evaluation consisted of a patient interview, review of supporting documentation from his neurosurgeon and review of his position description. Based on the evaluation, defendant determined that Davis was not able to perform the essential functions of his job as an electrician. For example, defendant concluded that as an electrician, Davis would be required to bend and work in cramped conditions and perform work at various sites on the base where he would be exposed to solvents and/or dust. In addition, the medical restrictions were expected to apply for at least another four months, placing him close to the expiration of his term of employment. Defendant further noted that Davis' medical restrictions were to be strictly followed, not only to ensure Davis' safety but that of other employees as well. Based on the evaluation, on November 20, 1998, defendant terminated Davis' temporary appointment because of his medical inability to perform the full range of duties as an electrician. Davis alleges that his termination had nothing to do with his medical limitations, which undisputably hindered his ability to perform as an electrician, but was because of his race.
Pursuant to the administrative requirements for the filing of employment discrimination actions by federal employees, Davis, on January 4, 1998, made a written request for an informal complaint of discrimination, seeking alternative dispute resolution ("ADR") and counseling. On February 5, 1999, the defendant's EEO office issued Davis a Notice of Final Interview. The Notice informed Davis of his right to file a complaint of discrimination within 15 days from receipt of the Notice. Davis, by his signature, acknowledged having received the Notice on the same day it was issued. According to undisputed summary judgment evidence submitted by defendant, Davis failed to file a complaint of discrimination within the allotted time. As a result, defendant's EBO office administratively closed Davis' case.
Docket entry 18, Sworn Declaration of Christine Arreola, defendant's EEO Manager, Attachment 1.
Docket entry 18, Arreola's Sworn Declaration Attachment 3.
Id .
Id .
See Arreola's Sworn Declaration, attached to Docket entries 15 18; and Docket entry 21.
Davis filed the instant lawsuit on December 28, 1999, alleging discriminatory termination and harassment. He seeks compensatory relief "for the neglect, time away from work, glasses broken, being unemployed due to a work-related injury and [sic] the document Form 50 stating being terminated without reason, filing Chapter 13, and not informing [him] of cival [sic] rights."
Docket entry 9, at 5.
III. Jurisdiction
The court has original jurisdiction pursuant to 28 U.S.C. § 1331 1343.IV. Issue Presented
1. Whether Davis has failed to exhaust his administrative remedies available to him before filing suit.
V. Analysis
1. Applicable standardBecause defendant's original and supplemental motions refer to matters outside the pleadings, I will treat them as motions for summary judgment for all purposes.
The applicable standard in deciding a motion for summary judgment is set forth in FED. R. Civ. P. 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
FED.RCIv.P. 56(c); Cetotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. In an employment discrimination case such as this one, the court focuses on whether a genuine issue of material fact exists as to whether the defendant intentionally discriminated against the plaintiff. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
See La Pierre v. Benson Nissan, Inc., 86 F.3d 444, 447 (5th Cir. 1996) (citing Armstrong v. City of Dallas, 997 Fid 62, 65-66 (5th Cir. 1993)).
Anderson, 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Id., Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.
Celotex Corp., 477 U.S. at 323.
Edwards v. Aguillard, 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp., 477 U.S. at 325.
Id .
Anderson, 477 U.S. at 257.
The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nomnoving party's pleadings. Rather, the nonniovant must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. The court will look at the record in the light most favorable to the nonmovant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial.
FED R.Civ.P. 56(e); Anderson, 477 U.S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp., 477 U.S. at 324; Fields v. City of South Houston, Texas, 922 F.2d 1183, 1187 (5th Cir. 1991); Neff v. American Dairy Oueen Corp., 58 F, 3d 1063, 1065 (5th Cir. 1995), cert. denied, 516 U.S. 1045 (1996).
Hibernia Nat'l Bank v. Carner, 997 F.2d 94, 97 (5th Cir. 1993). See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a nonmovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994)).
Celotex Corp., 477 U.S. at 322 ("In such situation, there can be `no genuine issue as to any material fact,' since a complete failure of the proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."). Id . at 323.
Accordingly, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
See Fields, 922 F.2d at 1187.
2. Davis has failed to timely exhaust his administrative remedies
It is well-established that the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 ("Title VII"), provides the exclusive remedy to a federal employee for claims of job discrimination and harassment on the basis of race. Davis, who was a temporary civilian employee working as an electrician for the Department of the United States Air Force, Randolph Air Force Base, in San Antonio, Texas, was a federal employee within the reach of the statute.
Lopez v. Louisiana National Guard, 733 F. Supp. 1059, 1065 (E.D. La. 1990) (discussing 29 C.F.R. § 1613 et seq . the former section dealing with job discrimination in the federal sector), aff'd, 917 F.2d 561 (1990) (citations omitted).
5 U.S.C.A. § 102 (West 2000) (defining military departments to include the Department of the United States Air Force). Further, it appears that the administrative requirements provided in the EEOC regulations apply to all employees, whether permanent or temporary. 28 C.F.R. § 1614.103 (7)(c-d) (2000).
Lopez, 733 F. Supp. at 1066 fn.14.
In enacting 42 U.S.C. § 2000e-16, Congress made no statutory provisions for the time limits within which an aggrieved employee must file an administrative complaint of discrimination with his employing agency. Pursuant to its delegated powers under the statute, however, the EEOC promulgated regulations that specifically address the issue. These EEOC regulations mandate that if the parties do not resolve the matter at the pre-complaint counseling stage, the aggrieved employee has the right to file a discrimination complaint. The discrimination complaint, however, must be filed within 15 days of receipt of the notice of the right to file a discrimination complaint. The Civil Rights Act requires that federal employees timely exhaust administrative remedies before filing an employment discrimination suit under Title VII. The requirement that an individual alleging a violation of Title VII first seek redress from the administrative agency is not a mere technicality or random regulation promulgated by Congress. Rather, this requirement furthers the goal of vesting central responsibility of providing nondiscrimination in employment with the federal agencies and officials engaged in the hiring, firing, and promoting of personnel.
See Henderson v. United States Veterans Administration, 790 F.2d 436, 439 (5th Cir. 1986); and Cooper v. Lewis, 644 F.2d 1077, 1081 (5th Cir. Unit A 1981).
42 U.S.C. § 2000e-16(b). The EEOC regulations governing the federal sector are embodied in 29 C.F.R. § 16 14.101 et seq . (2000). Section 1614.103(a) provides: "[i]ndividual . . . complaints of employment discrimination and retaliation prohibited by Title VII (discrimination on the basis of race, color, religion, sex and national origin) . . . shall be processed in accordance with this part." Id . The court is required to give great deference to the EEOC's interpretation of the procedural regulations it has promulgated on timeliness within the administrative process under § 2000e-16. See Cooper, 644 F.2d at 1084.
29 C.F.R. § 1614.105(d). This section provides: "The notice shall inform the complainant of the right to file a discrimination complaint within 15 days of receipt of the notice, of the appropriate official with whom to file a complaint and of the complainant's duty to assure that the agency is informed immediately if the complainant retains counsel or a representative." Id .
29 C.F.R. § § 1614. 105(d) 1614.106(b); and Tidmore v. D'Amours, No. CIV.A. 3:95-CV-192BN, 1995 WL 928923 (S.D. Miss. Dec. 7, 1995) (granting dismissal for failure to meet 15-day regulatory filing deadline).
See Brown v. General Services Admin., 425 U.S. 820, 829-833 (1976); Fitzgerald v. Secretary United States Department of Veteran Affairs, 121 F.3d 203, 206 (5th Cir. 1997); and Doe v. Garrett, 903 F.2d 1455, 1459-61 (11th Cir. 1990), cert. denied, 111 S.Ct. 1102 (1991).
Barnes v. Levitt, 118 F.3d 404, 408-09 (5th Cir. 1997), cert denied, 523 U.S. 1136 (1998) ("The purpose of exhaustion is to give the agency the information it needs to investigate and resolve the dispute between the employee and the employer"); Kizas v. Webster, 707 F.2d 524, 544 (D.C. Cir. 1983), cert. denied, 464 U.S. 1042 (1984).
In this case, are view of the record reveals that Davis properly contacted the defendant's EEO agency within 45 days of his termination, as required by 29 C.F.R. § 1614.105(a)(1). The EEOC regulations provide that if the EEO inquiry cannot be resolved within 30 days from the complainant's initial contact, the EEO Counselor must give the complainant a notice "no later than the thirtieth day after contacting the [EEO] Counselor, of the right to file a discrimination complaint within 15 days of receipt of the notice." It is undisputed that Davis, who received his Notice of Final Interview on February 5, 1999, failed to comply with the 15-day regulatory deadline for the filing of a discrimination complaint. As a result, the defendant EEO agency administratively closed his case, in accordance with the EEOC regulations.
Section 1614.105(a)(1) provides: "An aggrieved person must initiate contact with a Counselor . . ., within 45 days of the effective date of the [personnel action]." Id. See Docket entry 18, Arreola's Sworn Declaration Attachment 1.
29 C.F.R. § 1614.105(d) 1614.106(b).
Docket entry 15, at 6-7, docket entry 18, at 2 Arreola's Sworn Declaration and related attachments; and docket entry 21.
Id . 29 C.F.R. § 1614.107(2) provides: "(a) Prior to a request for a hearing in a case, the agency shall dismiss an entire complaint: (2) That fails to comply with the applicable time limits contained in §§ 1614.105, 1614.106. . . ." Id .
Even though Davis attached to his federal court complaint what purported to be his formal administrative complaint of discrimination, dated February 26, 1999, the defendant, through the sworn testimony of its EEOC manager, alleges that such complaint was never filed with the officials authorized to receive such complaints (i.e., Arreola or Colonel Stephen T. Fenton, Vice Commander, 12th Flying Training Wing). Morever, Davis has admitted that he failed to file a timely formal complaint of discrimination. Further, there is no indication that the February 26, 1999 document was ever acknowledged as received and/or filed with the proper officials at defendant's EEO office. Even, assuming, arguendo, that the February 26, 1999 document was filed as Davis' formal complaint of discrimination, it was six days too late.
Docket entry 18, Arreola's Sworn Declaration Attachment 3.
Docket entry 21.
Id . According to 29 C.F.R. § 1614.106(e), "The agency shall acknowledge receipt of a complaint . . . in writing and inform the complainant of the date on which the complaint was filed." Id . Further, it should be noted that according to his Notice of Final Interview, Davis was specifically instructed to use "DD Form 2655, Complaint of Discrimination in the Federal Government." Davis' February 26, 1999 purported complaint was on "AF Form 1790." See Attachment to Original Complaint, docket entry 9.
Based on the uncontroverted summary judgment evidence brought forth by defendant, there is no genuine issue of material fact with respect to Davis' failure to exhaust his administrative remedies in compliance with the EEOC regulations. Davis has conceded that much in his brief response to defendant's motions.
Docket entry 21.
VI. Recommendation
Based on the foregoing, it is my recommendation that the District Court GRANT defendant's original and supplemental motions to dismiss and/or for summary judgment which I have converted for all purposes as motions for summary judgment (Docket Entries 15 18). Davis has failed to establish a genuine issue of material fact with respect to his failure to timely exhaust his administrative remedies. Consistent with this recommendation, defendant's motion for involuntary dismissal, pursuant to Fao. R. Civ. P. 41(b) (Docket Entry 17) should be DENIED AS MOOT .VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either(1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and FED. R. Civ. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn, 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).