Opinion
Civil Action No. 99-2653, Section: "E"(4)
April 17, 2001
ORDER AND REASONS
Before the Court for its consideration is a Partial Motion to Dismiss and/or Alternatively For Summary Judgment (doc. #19), flied by the defendant, seeking to dismiss the plaintiffs claim filed pursuant to Title VII. 42 U.S.C. § 2000e-16(a). The plaintiff opposes the Partial Motion for Summary Judgment and also filed a Cross-Motion for Summary Judgment (doc. #25). Both motions are addressed herein.
This matter is before the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636 (c) and upon the written consent of the parties. See doc. #4.
I. Factual Summary
Carla Langley ("Langley") worked for the Minerals Management Service ("MMS"), Gulf of Mexico OCS Region, Office of the Regional Director ("ORD") as a Staff Assistant, GS-301-12 from March 4, 1996, through February 9, 1998. On January 13, 1998, Langley contacted her Equal Employment Officer counselor, Jo Anne Ransford, and filed an informal complaint against her supervisor, Chris Oynes ("Oynes"), the Regional Director of the Gulf of Mexico OCS Region ("GOMR"). During the informal complaint process, Langley alleged that Oynes failed to promote her through accretion of duties pay ("ADP") and that he refused to pay or approve compensatory time and overtime. She also contends that she asserted other forms of disparate treatment.
Defendant's Exhibit "A," Tab 3, Bates #34; See also Statement of Langley, Defendant's Exhibit "A", Tab 4, p. 5, Bates #70.
Plaintiffs Opposition to the Partial Motion for Summary Judgment, p. 1.
Langley alleges that on January 23, 1998, Oynes reassigned her to the position of staff physical scientist with the MMS. She contends that he removed her state coordination duties, which were allegedly consistent with GS-13 duties, in retaliation for her complaint to the EEO counselor. She further alleges that her duties were given to a GS-13 male worker, who was also performing state coordination duties. Langley also complains that upon her reassignment, she was issued a new telephone number on February 25, 1998, in retaliation for her LEO complaint. She alleges, however, that the customary practice of the GOMR was to allow reassigned employees to retain their phone number.
Defendant's Exhibit "A," Statement of Langley, p. 5, Bates #10.
Defendant's Exhibit "A," Tab 1.
Rec. doc. #1.
Defendant's Exhibit "A," Tab 1.
On May 12, 1998, Langley filed a formal complaint against the MMS with the Department of Equal Opportunity. The complaint was forwarded to and received by the United States Department of Interior on May 28, 1998. Langley challenged the alleged disparate salary, hostile work environment, retaliation, and disparate treatment on the basis of her sex which resulted in the loss of wages because she was not compensated for work performed. She alleged that in April 1996, Oynes informed her that he did not allow compensatory time or overtime for any of his immediate employees. Consequently, Langley alleges that she did not request to be compensated for working "after hours" until October 25, 1997. Further, she alleges that in November 1997, the ORD timekeeper, Mora Matherne, informed her that male coworkers received compensatory time "under the table." A. The Informal Grievance
Defendant's Exhibit A, Tab 4, Bates #63.
Id. at Tab 1, Attachment A, p. 6.
The record shows that Langley instituted a grievance procedure with an LEO counselor on January 18, 1998. During the informal grievance process she was represented by Dale E. Williams, a local attorney. In the grievance she alleged that she experienced gender based discrimination and that she was subject to reprisal because she complained.
Id. at Tab 2, Bates #33.
Id. at Tab 2, Bates #34.
On June 6, 1998, the LEO counselor reported that Langley complained that since March 1996, she had worked more than 80 hours per pay period without compensation. She told the EEC counselor that she learned that Mark Rouse, a person with similar duties as Langley, received compensation time "under the table." Langley also told the LEO counselor that she believed Gynes received overtime and compensatory.
Id. at Tab 3, Bates #36.
Id.
Id.
Oynes told the LEO counselor that he rescinded Rouse's compensatory time beginning October 1997. He indicated that Rouse worked to repay the time because it was not consistent with department policy. The LEO counselor noted that Langley had received approved compensatory time for pay period 9612. On January 26, 1998, Oynes issued a memorandum to his staff reminding them of the overtime policy.
Id. at Tab 3, Bates #36.
Oynes also advised the EEO counselor that he changed Langley's telephone number, because he did not want public inquiries going to her due to their sensitive nature. He also told the EEO counselor that he would discuss the proper procedures for identifying and forwarding calls to Langley with his support staff.
Regarding Langley's promotion, Oynes indicated that he knew of some of her responsibilities, yet he denied that she performed work similar to a GS-13 employee. He denied that she handled assignments at the higher grade level. He also advised the counselor that "state people" were complaining about Langley's work. He noted that Langley claimed that they were engaging in back stabbing.
Id. at Tab 3, Bates #37.
Id.
Id.
The LEO counselor reported that she was unsuccessful in resolving the dispute and noted that the agency maintained that there was no conspiracy and that they were simply following procedure. The record indicates that on March 16, 1998, the LEO counselor issued a notice to Langley advising her of the right to file a discrimination complaint with either the Secretary of the Interior, its LEO office, the MMS or its LEO officer. Langley received the notice on April 30, 1998 and on May 8, 1998, signed the notice indicating that her reprisal action had been excluded from the notice by the LEO counselor. B. The Lawsuit
Id. at Tab 3, Bates #39.
Id. at Tab 4, Bates #41.
Id. at Tab 3, Bates #42.
On August 30, 1999, Langley filed suit against the Secretary of the Department of the Interior ("the Secretary"), seeking declaratory, injunctive and equitable relief, including back pay for alleged gender discrimination, consisting of performing GS-13 duties for GS-12 compensation and performing work without compensatory time being granted to her, while it was granted to male employees. She also alleged that she was subjected to reprisal as a result of her complaints about the inequities, all in violation of Title VII, 42 U.S.C. § 2000-e 16 (c).
Congress provided, in pertinent part, that: "[w]ithin thirty days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employment Opportunity Commission upon an appeal from a decision or order of such department, agency, or unit . . . an employee . . . may file a civil action . . . in which . . . the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. § 2000e-16 (c)
Thereafter, the Secretary of the Department of the Interior filed the instant motion pursuant to Rule 12(b)(1), Rule 12(b)(6) and alternatively Rule 56 of the Federal Rules of Civil Procedure, contending that:
(1) Langley failed to timely submit her claim concerning overtime, compensatory time and hostile work environment to the LEO counselor within 45 days of the date of each incident, thereby depriving this Court of subject matter jurisdiction over the claims;
(2) Langley's claims concerning the reassignment which resulted in the removal of GS-13 duties, the failure to provide copies of her time and attendance records and the assignment of a new telephone number do not constitute adverse employment actions, such that she fails to state a claim for gender discrimination; and
(3) the hostile environment claim should be dismissed because Langley cannot demonstrate that the conduct was "severe or pervasive" so as to create an objectively hostile environment.II. Standard of Review A. The Rule 12(b)(1) Standard
A motion under Rule 12(b)(1) should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2nd Cir. 1996).
When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. Under Rule 12(b)(1), a court has wide discretion to review affidavits, and other documents outside of the pleadings, as well as to conduct a limited Evidentiary Hearing, in order to resolve disputed jurisdictional facts. In such instances, a court's reference to evidence outside of the pleadings does not convert the motion to a Rule 56 summary judgment motion. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).
However, a court is required to convert a Rule 12(b)(1) Motion to Dismiss into a Rule 12(b)(6) motion or a Rule 56 summary judgment motion when resolution of the jurisdictional question is intertwined with the merits of the case. Holt, 46 F.3d at 1003. The jurisdictional question is deemed to be intertwined with the merits of the case, if the same statute which provides the court with subject matter jurisdiction, also forms the basis for a substantive claim. Id.
B. The Rule 56 Standard
Summary judgment is appropriate where "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. R. CIV. P. 56(c). The court's task is not to resolve disputed issues of fact, but to determine whether there exists any factual issues to be tried. See Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). In making this determination, all of the facts must be viewed in the light most favorable to the non-moving party. Id. at 248.
However, the non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion. Williams v. Borough of W Chester, 891 F.2d 458, 460 (3rd Cir. 1989). The non-moving party cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Id.; see also Saunders v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991).
III. Defendant's Motion A. Timely Exhaustion of Administrative Remedies
The Secretary contends that Langley failed to timely and properly exhaust her administrative remedies with respect to her hostile environment claims and her claim that the defendant failed to grant her compensatory time and overtime. Langley, on the other hand, contends that the claims were timely submitted for informal resolution.
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. Title VII grants an aggrieved federal employee the right to file suit in federal district court. See 42 U.S.C. § 2000e-16 (c). However, before bringing suit, an employee must exhaust his administrative remedies against his federal employer. Brown v. General Servs. Admin., 425 U.S. 820, 832-33 (1976).
If a federal employee fails to exhaust his administrative remedies, the district court cannot adjudicate the employee's Title VII claim. See Porter v. Adams, 639 F.2d 273, 276 (5th Cir. 1981) (noting that exhaustion is "an absolute prerequisite" to suit under § 2000e(16); Edwards v. Department of the Army, 708 F.2d 1344, 1346 (8th Cir. 1983). Similarly, if an EEOC charge is untimely filed, a suit based upon the untimely charge should be dismissed absent a defense of waiver, estoppel, or equitable tolling. Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 476-77 (5th Cir. 1991) See also Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992).
Templeton v. Western Union Tel. Co., 607 F.2d 89, 91 (5th Cir. 1979) (per curiam); see also National Ass'n of Gov't Employees v. City Pub. Serv., 40 F.3d 698, 711 (5th Cir. 1994)("[C]ourts have no jurisdiction to consider Title VII claims as to which the aggrieved party has not exhausted administrative remedies").
Regardless of whether the time limit is jurisdictional or merely a statute of limitations, it can be equitably tolled. Irwin v. Department of Veterans Affairs, 498 U.S.89, 95-96 (1990). However, Langley bears the burden of proving that equitable tolling is warranted. Hood v. Sears Roebuck and Company, 168 F.3d 231, 232 (5th Cir. 1999).
Under the purview of Title VII, the EEOC has promulgated regulations designed to resolve claims of discrimination at the administrative level; these regulations set forth procedures by which federal employees must pursue charges of discrimination. Federal employees claiming unlawful discrimination must first consult an EEO counselor within the employing agency within 45 days of the date of the alleged discriminatory action. See Title 29 C.F.R. § 1614. 105(a)(1).
1. Overtime and Compensatory Time
Langely testified during the investigative phase of her complaint that in April 1996 she requested compensatory time or overtime compensation at the onset of a major project. She also testified that she learned in November 1997 that her co-workers were receiving compensatory time, whereas she was not allowed compensatory time despite having worked 12 to 15 hours a day.
Langley Statement, Tab 6, p. 10, Bates #75.
Id. at p. 21, Bates #86.
The record indicates, however, that Langley consulted a EEO counselor on January 12, 1998, more than 45 days of the alleged discriminatory incidents which occurred in April 1996 and November 1997, respectively. Langley, therefore, failed to timely exhaust her administrative remedies regarding the compensatory time and overtime discrimination.
Langley does not contend that equitable tolling should apply? Rather, she contends that the continuous violation doctrine applies so as to render her claims timely. For the reasons, assigned below, the Court disagrees with the plaintiff's position. The Court finds that it lacks subject matter jurisdiction over Langley's overtime and compensatory time claims.
Equitable relief is extended only sparingly, as when the plaintiff has been induced or tricked by his adversary's conduct into allowing the filing deadline to pass. It does not extend to excusable neglect. Hogan v. United Sales of America, No. 99-0868, 1999 WL 1138529 (E.D. La. Dec. 7, 1999).
2. Hostile Work Environment
Langley testified that in 1996 while she was pregnant, Oynes became irate and yelled at her because she was not in a position to provide him with a satisfactory response regarding the Internet project.
Langley Statement, Tab 6, p. 81, Bates #146.
Langley testified that in November 1997, after she spoke with Oynes, her work environment began to deteriorate. She testified that on November 24, 1997, Oynes told her that she was paranoid and insecure. She further testified that after she filed the informal grievance and during her performance evaluation, Oynes privately mentioned to Langley's coworker that Langley was paranoid and insecure.
Id. at p. 77, Bates #142.
Id.
She stated that she overheard Oynes using profanity in the work place in early 1998 and that even though the statement was not made directly to her she was offended. In January 1998, after she filed the LEO complaint, she was working on an assignment directly from Oynes when he raised his voice to the secretary commenting about Langley. Langley claimed that she overheard his comment. Langley generally states that his demeanor was intimidating.
Id. at p. 80, Bates #145.
Id. at p. 87. Bates #157.
Langley clearly was aware in April 1996 and November 1997 of the incidents which allegedly created a hostile work environment. Yet, she did not assert a charge regarding these incidents until January 13, 1998, more than 45 days after the alleged incidents. Therefore, the Court does not have jurisdiction over Langley's hostile work environment claims arising out of the April 1996 and November 1997 statements.
B. Adverse Emvlovment Action
The Secretary contends that Langley's claims regarding the removal of her higher grade duties, failure to provide copies of her time and attendance records and the assignment of a new telephone number are not adverse employment actions. Therefore, the Secretary contends that these claims should be dismissed because they are not cognizable under Title VII as retaliation claims.
Langley contends that Oynes' failure to provide her with copies of her time and attendance records and changing her telephone number upon her reassignment comprise a continuous hostile environment and not separate personnel actions creating a retaliation claim. On the other hand, Langley contends that the removal of her GS-13 duties after she filed an informal LEO charge is an independent retaliation claim which stands on its own.
Plaintiff's Memorandum, p. 13.
Id.
Title VII makes it an "unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this sub chapter . . ." 42 U.S.C. § 2000 (e)(3)(a). A plaintiff must allege and prove three elements in order to establish a retaliation claim: (1) the employee has engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action. Mattern v. Eastman Kodak Co., 104 F.3d 702, 705 (5th Cir.) cert. denied, 522 U.S. 932 (1997).
The Fifth Circuit has analyzed the "adverse employment action" element in a stricter sense than some other circuits to include only " ultimate" employment decisions. An "adverse employment action" does not address every decision made by employers that arguably might have some tangential effect upon those ultimate decisions." Mattern, 104 F.3d at 707 (quoting Dollis v. Rubin, 77 F.3d 777, 781-82 (5th Cir. 1995) (per curiam)). Ultimate employment decisions include acts "such as hiring, granting leave, discharging, promoting, and compensating." Mattern, 104 F.3d at 707.
In Mattern, the plaintiff claimed that she was retaliated against when she was required to climb scaffolding in a fire protection suit that was too large and when a telephone message was not given to her. Id. at 705. The Mattern Court found that the actions complained of by the plaintiff consisting of an employer's visit to the plaintiff's home during her sick leave, a verbal threat of being fired, a reprimand for not being at her assigned station, a missed pay increase, and being placed on "final warning" did not constitute "adverse employment actions, " because of their "lack of consequence." Id.
The Court declined to "expand the definition of "adverse employment action' to include events such as disciplinary filings, supervisors' reprimands, and even poor performance by the employee — anything which might jeopardize employment in the future." Id.
In the case at bar, the plaintiff claims that the changing of her telephone number and her employer's failure to provide her with copies of her time and attendance records are evidence of retaliation. Applying the standard set forth in this Circuit, the Court finds that these actions do not constitute ultimate employment decisions. Therefore, the retaliation claim arising out of the alleged failure to provide her with copies of time and attendance records and the changing of her telephone number upon reassignment is subject to dismissal.
Regarding the claim arising out of the removal of GS-13 duties, Langley contends that this employment action resulted in her not being able to receive compensation commensurate with the higher tasks she routinely performed. Cf. Mattern, 104 F.3d at 709 (acknowledging, without deciding, that missing a pay increase might constitute an "adverse employment action" for purposes of Title VII); see also Cos grove v. Greater New Orleans Expressway Com'n, No. 97-0423, 1998 WL 915861 (E.D. La. Dec 30, 1998). Accordingly, the Secretary's request to dismiss Langley's claim arising out of the removal of the GS-13 duties is DENIED.
C. Hostile Environment Claim
The Secretary also seeks dismissal of Langley's hostile environment claim because the conduct was not "severe or pervasive" to create an objectively hostile environment. The plaintiff contends that the request to dismiss her hostile environment claim should be denied because the evidence in this case reveals that she received GS-12 pay for GS-13 work. She contends that males who performed GS-13 work received more income, she was denied overtime and compensatory time and was refused a promotion to GS-13 through the accretion of duties pay.
Defendant's Memorandum, p. 16.
The relevant issue in this case relates only to the third prong of a hostile environment claim. In Harris v. Forklift Systems, Inc., the Supreme Court held that "the conduct in question must be judged by both an objective and a subjective standard: the conduct must be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and the victim must subjectively regard that environment as abusive." Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).
Harris directs the lower court to look at all of the circumstances in order to determine whether a work environment is hostile or abusive, including: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; (4) whether the conduct unreasonably interfered with the plaintiff's work performance; and (5) what psychological harm, if any, resulted. Id. at 23. See also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81-82 (1998) ("[t]he real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed"); Smith v. First Union Nat'l Bank, 202 F.3d 234, 242 (4th Cir. 2000) (citing Harris, 510 U.S. at 23); Williams v. General Motors Corp., 187 F.3d 553, 562-63 (6th Cir. 1999) (evidence of sexually related remarks, foul language, and mean and inequitable treatment by co-workers gave rise to a jury question, because impact of separate successive incidents may accumulate to create a hostile environment); Jackson v. Quanex Corp., 191 F.3d 647, 660 (6th Cir. 1999) (it is improper to consider each offensive event in isolation, "as the very meaning of "environment' is "[t]he surrounding conditions, influences or forces which influence or modify'").
Whether Langley experienced unlawful discrimination — in the employer's environment — must be determined based on "the simple test of whether the evidence shows "treatment of a person in a manner which but for that person's sex would be different.'" City of Los Angeles, Dep't of Water Power v. Manhart, 435 U.S. 702, 711 (1978).
It is clear that Langley has set forth several allegations regarding her work environment. She complains that Oynes provided overtime and compensatory leave to males and not females, that he compensated males at a GS-13 level, that she overheard and was subjected to inappropriate verbal comments at the hands of her supervisor and coworkers and that she was intimidated by his physical gestures. She further points to the fact that the agency has previously been held to have discriminated against another female. Considering the environment as a whole, the Court cannot say that the surrounding conditions were not severe or pervasive as a matter of law. The defendant's request for a dismissal of the plaintiff's hostile working environment claim is therefore DENIED.
Exhibit "A," Tab 6, pgs. 78-83, Bates #143-148.
IV. Langley's Cross Motion
Langley also filed a Cross Motion for Summary Judgment, contending that she is entitled to judgment as a matter of law on the following issues:
1. That her duties before January 23, 1998, were duties performed by GS-13 employees;
2. That she was retaliated against for filing her informal EEO complaint;
3. That she was discriminated against in not receiving an accretion of duties pay to GS-13;
4. That she was discriminated against, because she did not receive overtime and compensatory time which is allegedly owed to her; and
5. That her allegations regarding the failure to pay her compensatory and overtime, the refusal of her request for accretion of duties pay, retaliation and hostility are events in an ongoing continuous violation or tort.A. Duties Equivalent to GS-13
Langley contends that she is entitled to summary judgment as a matter of law regarding her claim that the duties she performed were equal to GS-13 duties. The Secretary has not filed an opposition memorandum to the plaintiff's cross motion for summary judgment.
According to Langley, her state coordination duties were the same as a co-employee, Mark Rouse's, state duties which were GS-13 grade supporting. She further contends that her outreach or communications duties were the same as another co-employee, Mr. Goeke's, a GS-13 male employee in the Florida office. The Court notes that while the plaintiff seeks a judgment as a matter of law on this issue, she also indicates that she has not received supporting documentation on the issue. The motion for summary judgment regarding the equal duties issue is therefore DENIED.
P1aintiff's List of Uncontested Facts, p. 6.
B. Retaliation Claim
Langley next contends that she is entitled to judgment as a matter of law on her claim that she was retaliated against by Oynes because she filed the informal LEO charge. While Langley asserts that her duties were pulled from her within one week of the LEO charge being instituted, the Court is unable to confirm the timing as she failed to submit any documentary evidence in support of this issue. Therefore, Langley's request for a judgment as a matter of law on her claim that she was retaliated against by Oynes because she filed an informal EEO charge is DENIED.
C. Discrimination Claim
Next, Langley contends that she was discriminated against because she was not given an accretion of duties pay increase. She further contends that she was discriminated against because she was refused compensatory time and overtime.
The Court previously dismissed Langley's retaliation claims for overtime pay because she failed to submit them for administrative review. The Court further observes that Langley also seeks to apply the continuous violations doctrine, so as to render the claims timely. For the reasons assigned below, however, the Court finds that they are not timely.
The plaintiff generally contends that she was discriminated against because she did not receive an accretion of duties pay to GS-13. She alleges that her duties were the same as males who were compensated at the GS-13 level and that similarly situated males were promoted to the GS-13 level.
The plaintiff again has failed to provide the Court with sufficient information so that a determination or comparison could be made regarding the duties she performed and the GS-13 duties performed by male employees. Therefore, the request for a judgment as a matter of law on the issue of whether Langley was discriminated against because she was not given an accretion of duties pay is DENIED.
D. Continuing Violation Doctrine
The plaintiff contends that her claims that she did not receive compensatory time and overtime, the refusal of her request for accretion of duties pay, the alleged retaliation and hostility claims are an ongoing continuous tort. As a result she contends that these claims are timely.
The "continuing violation" doctrine does not automatically apply to every claim of continuing workplace harassment. Where the incidents in question are discrete and severe, they should be enough to place the employee on notice that his or her legal rights have been violated and that a claim has accrued. See, e.g., Webb v. Cardiothoracic Surgery Associates of North Texas, 139 F.3d 532, 538 (5th Cir. 1998) (citing Messer v. Meno, 130 F.3d 130, 134-35 (5th Cir. 1997)) (incidents of alleged sexual harassment including supervisor's sexual approaches and invitations at an out-of-town business meeting and the supervisor's touching of employee's inner thigh under her skirt triggered employee's duty to assert her rights and thus would not be saved by the "continuing violations" doctrine).
An inquiry into whether an alleged series of incidents constitutes a "continuing violation" and thus exempts the plaintiff's claims from the normal time limitations "turns on the facts and context of each particular case." Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). The factors for the Court's consideration are: (1) do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation; (2) are the alleged acts recurring . . . or more in the nature of an isolated work assignment or employment decision; and (3) does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate? Id.
The Fifth Circuit applied this analysis in Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998). Huckabay claimed that he was subjected to a hostile work environment in which he was called racially derogatory terms and otherwise ridiculed and treated unfairly because of his race. He also alleged that he was demoted and not promoted due to his race. The employer, however, asserted that the claims were time-barred. In response, Huckabay argued that the "continuing violation" doctrine applied, such that his claims were in fact timely.
The Fifth Circuit concluded that a hostile work environment claim may be a "continuing violation" where the workplace harassment has continued into the actionable period because a hostile work environment claim is "not the kind of violation that — like a discrete instance of discriminatory conduct — would put a worker on notice that his rights had been violated." Id. at 239.
On the other hand, the Court held that a demotion and a failure to promote are "isolated occurrences apart from the continuously hostile environment." Id. at 240. The Court explained that "these discrete adverse actions, though [discriminatory] . . ., cannot be lumped together with the day-to-day pattern of . . . harassment, for they were isolated occurrences that should have put [the plaintiff] on notice that a claim accrued." Id.
In this case, Langley contends that the refusal to provide her with copies of her time and attendance records, the failure to pay her overtime, the failure to promote her and the removal of her GS-13 duties are acts which require the application of the continuous violations doctrine. If the continuous violations doctrine applies then Langley's claims arising out of the refusal to provide her with copies of her time and attendance records and the failure to pay her overtime are timely.
Title 29 C.F.R. § 1614.105 (a)(1) required Langley to initiate contact with the EEO counselor within 45 days of the date of the alleged discriminatory action. The continuing violation theory requires the same type of discriminatory acts to occur both inside and outside the limitations period. See Berry, supra, at 979.
The claim challenging Oynes failure to promote Langley and the removal of the GS-13 duties occurred in January 1998 and the EEO charge was also filed during the same time period. However, the claims arising out of the failure to provide Langley with copies of her time and attendance records and the denial of overtime and compensatory time occurred in 1996 and 1997 respectively, years before the EEO charge was filed.
Langley testified that in November 1997, Ms. Mora Matherne, the timekeeper on Oynes' staff, told her that Mark Rouse, a co-worker, was receiving compensatory time "under the table." She concedes that she never submitted any written requests for compensatory or overtime leave. Yet, on January 16, 1998, she e-mailed Oynes and requested the opportunity to meet with him to discuss the reason why she was not granted overtime or compensatory time in the past. Langley acknowledges that these claims arose before she filed her EEOC charge.
Langley Statement, Tab 6 p. 7, Bates 72.
Id. at p. 20, Bates 85.
Id. at p. 24, Bates 89.
Id. at p. 28, Bates 93.
The acts which occurred inside the limitations period involved the alleged promotion denial and removal of the GS-13 duties. The acts which occurred outside the limitations period involved the compensatory time, overtime and the refusal to provide copies of her time and attendance records.
Langley has not offered a valid connection between the acts to suggest a hostile work environment. As noted in Huckabay, the failure to promote is an isolated occurrence. Huckabay, 142 F.3d at 240. Likewise, the removal of the GS-13 duties is an isolated occurrence, such that neither claim could be combined with the claims occurring outside the limitations period. The plaintiff's request for application of the continuous violations doctrine is DENIED.
Accordingly, for the reasons assigned herein,
IT IS ORDERED that the defendant's Partial Motion to Dismiss and/or Alternatively For Summary Judgment (doc. #19) is GRANTED IN PART AND DENIED IN PART as follows:
1. The request to dismiss the plaintiff's claims challenging the granting of overtime, compensatory time, and hostile environment arising out of the April 1996 and November 1997 statements is GRANTED, in so much as the plaintiff failed to timely exhaust her administrative remedies, thereby depriving this Court of subject matter jurisdiction.
2. The request to dismiss the plaintiff's retaliation claim arising out of the defendant's alleged failure to provide copies of her time and attendance records and the assignment of a new telephone number on the grounds that they are not adverse employment actions is GRANTED.
3. The request to dismiss the plaintiff's retaliation claim challenging the removal of the alleged GS-13 duties on the grounds that it does not constitute an adverse employment decision is DENIED.
4. The request for summary judgment challenging Langley's ability to demonstrate that the conduct as a whole created an objectively hostile work environment is DENIED.IT IS FURTHER ORDERED that the Plaintiff's Cross Motion for Summary Judgment (doc. #25) is DENIED.