Opinion
No. 02-74544
September 03, 2003
OPINION AND ORDER
Before the Court is Defendant's motion to dismiss or, in the alternative, motion for summary judgment. Plaintiff Dale Furby claims that Defendant discriminated against him based on his age, race, color and sex when it terminated him from his Casual Letter Carrier position with the United States Postal Service. Defendant counters that it terminated Mr. Furby for falsely stating in his employment application that he had never been convicted of a crime. The motion will be decided as a summary judgment motion. Because Plaintiff failed to exhaust his administrative remedies and because there is no evidence of discrimination, this motion for summary judgment is granted.
BACKGROUND
Plaintiff applied for employment with the Postal Service on October 28, 1997. The employment application specifically asked whether he had ever been convicted of a crime. Plaintiff responded "No." Along with his employment application, he signed an affidavit stating that he was aware that the Postal Service had the authority to terminate his employment at any time should it determine that he falsified any information contained in his application for employment. He further signed a statement reminding him that he must pay special attention to the question on the employment application concerning convictions for past crimes and that he should ask personnel staff if he had any questions.
Defendant hired Plaintiff on November 10, 1997 as a Causal Letter Carrier in Detroit, Michigan. On December 15, 1997, the Postal Service informed Plaintiff by letter that a review had disclosed that he had falsely denied ever having been convicted of a crime on his employment application. As explained in this letter, the Postal Service had discovered that Plaintiff had been arrested for a traffic offense — Driving Under the Influence — on February 20, 1983 and was convicted and sentenced for this offense on May 10, 1984. The Postal Service terminated Plaintiff on December 19, 1997 for falsely denying that he had even been convicted of a crime.
As explained by Defendant, "Casuals" are non-career employees used as a limited term supplemental work force and whose appointments cannot exceed two 90-day terms of employment in a calendar year. They are not union members and are not entitled to Postal Service employment benefits.
On May 19, 1998 — five months after his termination — he met with a Postal Service Equal Employment Opportunity counselor and filed an informal administrative complaint of discrimination. He filed a formal complaint on August 25, 1998. On October 6, 1998, the Postal Service dismissed Plaintiff's administrative complaint based on his untimely contact with an EEO counselor. On August 13, 2002, after an investigation, the United States Equal Employment Opportunity Commission affirmed the Postal Service's dismissal of his administrative complaint because he failed to timely exhaust his administrative remedies. On November 14, 2002, Plaintiff filed this instant case alleging race, color, sex and age discrimination under Title VH, 42 U.S.C. § 2000e et seq., in connection with his termination.
STANDARD OF REVIEW
The usual summary judgment standard applies: a motion under Fed.R.Civ.P. 56 may be granted if the pleadings and all supporting documentation 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. The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Talley v. Bravo Pitino Restaurant. Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995). However, the moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, "the burden on the moving party may be discharged by "showing1 — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The court must view all the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant's favor. See Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984).
Once the moving party discharges its burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. See Fed.R.Civ.P. 56(e); Talley, 61 F.3d at 1245. To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue. Consequently, a nonmovant must do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission to the jury of the dispute over the fact. See Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F. Supp. 214, 217 (E.D. Mich. 1990).
LAW AND ANALYSIS
Federal employees must exhaust their administrative remedies under Title VII before bringing suit in federal court. See Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir. 1992). The regulations governing administrative remedies require that aggrieved federal employees contact an agency EEO counselor within forty-five days of the alleged discriminatory event. See 29 C.F.R. § 1614.105(a)(1). If complainants fail to meet this time limit, their complaints are subject to dismissal.See 29 C.F.R. § 1614.107(a)(2), (b).
To determine whether a complainant has satisfied the timeliness requirement of 29 C.F.R. § 1614.105(a)(1), the Supreme Court has held that the forty-five-day filing period begins to run when the aggrieved employee first knew or reasonably should have known of the discriminatory conduct or practices of which he or she complains. See Delaware State College v. Ricks, 449 U.S. 250, 259-62 (1980). Thus, the forty-five days in which a complainant must contact an EEO counselor begins when the complainant should reasonably suspect discrimination. See id, at 258 ("the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful") (citation omitted); Benford v. Frank, 943 F.2d 609, 612 (6th Cir. 1991) (holding that employee must contact EEO office within forty-five days of the day on which reasonable suspicions of discrimination arose).
As explained in Phillips v. Cohen, 3 Fed. Appx. 212, 216 (6h Cir. 2001) (unpublished), failure to file a timely charge with an EEO counselor does not require the dismissal of the aggrieved employee's Title VII action, however. "This is because the time limits for filing set out in 29 C.F.R. § 1614.105(a)(1) are not jurisdictional, but are rather in the nature of a statute of limitations which may be subject to waiver, estoppel, or equitable tolling." Id. (citations omitted). Nonetheless, courts have cautioned against reading the timely filing requirement out of Title VII through liberal application of the doctrine of equitable tolling, and have approved the use of equitable principles only under limited circumstances. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984); Puckett v. Tennessee Eastman Co., 889 F.2d 1481, 1487 (6th Cir. 1989).
Here, Plaintiff did not contact an EEO counselor until five months after his termination-the alleged discriminatory event. Defendant terminated Mr. Furby on December 19, 1997 and he should have contacted an EEO counselor by February 2, 1998 (45 days after the effective date of his termination). Yet, he waited until May 19, 1998 before contacting an EEO representative, although he stated in his deposition that he suspected no later than a month after his termination that he had been a victim of discrimination. In his response, Mr. Furby — who is appearing pro se, explains that he was not aware of the forty-five day requirement. While we have no reason to doubt Mr. Furby's sincerity, the Postal Service claims that there were notices explaining his rights on the bulletin boards inside the Postal Office where he worked. In any event, Mr. Furby provides no compelling reason that we should toll or excuse his failure to timely exhaust administrative remedies.
Furthermore, he presents no evidence of discrimination or discriminatory-animus by any of the decision-makers involved in his termination. Mr. Furby explains that he mistakenly thought that he only had to report traffic offenses for the past five years. He maintains that he was not aware that his ticket for driving under the influence was a misdemeanor. Because it had occurred fourteen years before he filled out his employment application and was related to driving, he erroneously neglected to disclose it. Again, we have no reason to doubt Mr. Furby's sincerity on this point. Yet, he still has not submitted any evidence to establish discrimination or even a prima facie case for discrimination.
In Title VII actions, the plaintiff bears the initial burden of establishing a prima facie case of discrimination by the defendant. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). A plaintiff may establish a prima facie case of discrimination either by presenting direct evidence of intentional discrimination by the defendant, Terbovitz v. Fiscal Court, 825 F.2d 111, 114-15 (6th Cir. 1987), or by showing the existence of circumstantial evidence which creates an inference of discrimination, McDonnell Douglas, 411 U.S. at 802. Under the latter approach, the plaintiff must show (1) that he is a member of a protected group, (2) that he was subject to an adverse employment decision, (3) that he was qualified for the position, and (4) that he was replaced by a person outside of the protected class. Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992). The fourth element may also be satisfied by showing that similarly situated non-protected employees were treated more favorably. Id. at 582-83. Once the plaintiff has established a prima facie case, which creates a presumption that the defendant unlawfully discriminated against the plaintiff, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the plaintiffs rejection. Texas Dep't of Community Affairs v. Burdine. 450 U.S. 248, 254-56 (1981). If the defendant offers a legitimate reason, the burden shifts back to the plaintiff to demonstrate that the discrimination was a determinative factor in his termination.
Even if we felt that the Postal Service reacted too harshly to his claimed mistake — or even if the Postal Service made a mistake in terminating him — this does not mean that he was subjected to unlawful discrimination. With respect to his prima facie case, Plaintiff has failed to identify a single, similarly-situated non-protected employee who was treated more favorably. See Talley v. Bravo Pitino Restaurant, 61 F.3d 1241, 1246 (6h Cir. 1995). While he claims that two unnamed African-American females whose performance was less satisfactory than his were not terminated, this is entirely irrelevant. Plaintiff was not terminated for performance-related problems but rather because he falsified an employment application. He knows of no other employee who falsified his or her employment application and was not terminated.
Even if he established a prima facie case of discrimination, he cannot overcome his employer's legitimate, non-discriminatory reason for his termination in that he falsified his employment application. Again, an unwise or mistaken employment decision (assuming there was a mistake) is not synonymous with discrimination. See Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) ("[A]s long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect.") Because Plaintiff has failed to submit any evidence demonstrating a genuine issue of material fact supporting his claims of discrimination — and because he failed to exhaust his administrative remedies — we grant Defendant's motion for summary judgment.
ORDER
It is hereby ORDERED that Defendant's/moticjh for summary judgment is GRANTED.