Opinion
CIVIL 8:00CV351; CIVIL 8:00CV485
June 5, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendants' motions to dismiss claims or for partial summary judgment, Filing No. 22 in 8:CV351; Filing No. 21 in 8:00CV485, and on defendants' motions for dismissal of individual defendants and to substitute William J. Henderson as the sole defendant, Filing No. 13 in 8:CV351; Filing No. 11 in 8:00CV485.
Facts
These are consolidated actions for discrimination in employment. In his complaints Thomas McMahon alleges that defendants William J. Henderson, Postmaster General of the United States, and Jean Roemer and Ed Goforth, postal employees, discriminated against him on the basis of his disability, his sex, and in retaliation for engaging in a protected activity. He asserts claims under the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e; the Civil Rights Act of 1864, 42 U.S.C. § 1981; the Rehabilitation Act, 29 U.S.C. § 791; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101; and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. §§ 48-1101 and 20-148.
Specifically, he alleges discrimination in defendants' refusal to employ him in the West Point, Nebraska, post office facility and his transfer to the Wayne, Nebraska, post office facility. He contends that defendants provided employment and work hours to females with less seniority than he, and also alleges that he was passed over for appointment to three positions. He also alleges that defendants refused to reasonably accommodate his physical limitations. He further alleges he was threatened with termination and was subjected to a hostile work environment and harassment.
Defendants move to dismiss the individual defendants and also move to dismiss the ADA claim, the Section 1981 claim and state law claims for lack of subject matter jurisdiction. Defendants also assert that McMahon's Title VII hostile environment claim and his failure to promote claims were not presented in his EEO complaint and are thus barred for failure to exhaust administrative remedies. Defendants also move to dismiss McMahon's claim for punitive damages.
In support of its motion for summary judgment, defendants have submitted the affidavit of Gary Beasley, Postal Service Manager of EEO Dispute Resolution, Central Plains District, with McMahon's EEO complaints and other documentation attached. The evidence shows that McMahon filed two EEO complaints in 1996 and 1998. In the 1996 complaint, McMahon alleged disability discrimination and sex discrimination and asserted, "I am being kept out of the West Point office" and "[d]octors have restricted the use of a satchel as my only liability." In the 1998 EEO complaint, McMahon again alleged sex and disability discrimination and also alleged retaliation, referring to "three refusals" to give him "any of the open positions in the West Point, Nebraska facility." McMahon also referred to the Postal Service's failure to accommodate his need for a pull cart in that complaint. He also asserted that he was not aware of the vacancies "until long after the final position was filled." Beasley's affidavit also states that McMahon was not selected for positions in the West Point facility on November 15, 1997; January 17, 1998; and February 14, 1998. The precomplaint form attached to the affidavit shows that McMahon first contacted an EEO counselor on April 17, 1998. In that form, McMahon refers to harassment.
DISCUSSION
It is not entirely clear, with respect to the various claims, whether defendants move to dismiss for lack of subject matter jurisdiction under Fed R. Civ P. 12(b)(1), for failure to state a claim under Fed.R.Civ.P. 12(b)(6) or for summary judgment under Fed.R.Civ.P. 56. The distinction is important and rests on longstanding policy and pragmatic considerations. See Trimble v. Asarco, Inc., 232 F.3d 946, 954 (8th Cir. 2000) (noting that the factual posture of these kinds of pretrial dispositive motions can be critical). Jurisdictional issues, whether they involve questions of law or fact, are for the court to decide. Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (noting that in a factual as opposed to facial attack on jurisdiction, the court may proceed under Rule 12(b)(1) as it never could under Rule 12(b)(6) or Rule 56, the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case; no presumptive truthfulness attaches to the plaintiff's allegations; the existence of disputed material facts does not preclude the court from evaluating for itself the merits of jurisdictional claims; and the plaintiff has the burden of proving that jurisdiction does in fact exist). In contrast, in either a facial attack to jurisdiction or a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court restricts itself to the face of the pleadings and "the general rule is that a complaint should not be dismissed `unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. at 729 n. 6 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Defendants' motion to dismiss the ADA claim can properly be treated as a motion to dismiss for lack of subject matter jurisdiction. The Postal Service is not subject to suit under the ADA. 42 U.S.C. § 12111(5) (B) ("the term `employer' does not include the United States or a corporation wholly owned by the United States"). Accordingly, the United States has not consented to suit under the ADA and has not waived its sovereign immunity. See, e.g., Brown v. General Servs. Admin., 425 U.S. 820, 826 n. 8 (1976) (discussing waiver of sovereign immunity in regard to Title VII). Sovereign Immunity is a jurisdictional question. Hage v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1043 (8th Cir. 2000). McMahon's remedy for disability discrimination is a claim under the Rehabilitation Act. See 29 U.S.C. § 794(a) ("No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability . . . be subjected to discrimination under any program or activity conducted . . . by the United States Postal Service"). The court thus finds that defendants' motion to dismiss McMahon's ADA claim for lack of subject matter jurisdiction should be granted.
Defendants' motions to dismiss McMahon's 42 U.S.C. § 1981 claims can also be treated as a motion to dismiss for lack of subject matter jurisdiction. Title VII is the exclusive remedy for claims of discrimination in federal employment. Mathis v. Henderson, 243 F.3d 446, 449 (8th Cir. 2001). Other claims cannot be maintained because they are preempted by Title VII. Id. Since the exclusivity of the Title VII remedy is premised on sovereign immunity, it is jurisdictional and subject to 12(b)(1) dismissal. See Brown v. General Servs. Admin., 425 U.S. at 826 n. 8 (noting sovereign immunity would bar a claim against a federal agency for damages under Section 1981). The court thus finds that McMahon's Section 1981 claims should be dismissed for lack of subject matter jurisdiction.
McMahon's state law claims are similarly subject to dismissal as preempted by Title VII. When the same set of facts supports a Title VII claim and a non-Title VII claim against a federal employer, Title VII preempts the non-Title VII claims. Mathis, 243 F.3d at 450-51 (stating "[w]e are unwilling — and under Brown, unable — to give a plaintiff carte blanche to creatively plead as many state-law causes of action as she believes she may sustain against her supervisor, in addition to her Title VII claim, when, at bottom, her claim is for [employment discrimination]"). The court finds McMahon's state law claims should be dismissed for lack of subject matter jurisdiction.
Sovereign immunity also bars McMahon's claim for punitive damages. The Postal Service is a government agency that is expressly exempt from imposition of punitive damages under the statute that amended Title VII to allow punitive damages awards. 42 U.S.C. § 1981a(b)(1). See Robinson v. Runyon, 149 F.3d 507, 516 (6th Cir. 1998); Baker v. Runyon, 114 F.3d 668, 670 (7th Cir. 1997). Accordingly plaintiff's claim for punitive damages will be dismissed for lack of subject matter jurisdiction.
The defendants next contend that the plaintiff's claims of hostile environment discrimination should be dismissed because the plaintiff did not exhaust administrative remedies by presenting those claims to the EEOC. Defendants also contend that McMahon's claims that he was not selected for three open positions in the West Point facility and was retaliated against are time-barred because he failed to contact an EEO counselor within 45 days of the alleged action.
Defendants' motion to dismiss certain claims for failure to exhaust administrative remedies cannot be treated as a motion to dismiss for lack of subject matter jurisdiction. In order to initiate a claim under Title VII, a party must timely file a charge of discrimination with the EEOC and receive a right-to-sue letter. Stuart v. General Motors Corp., 217 F.3d 621, 630 (8th Cir. 2000). However, the timely filing of a charge with the EEOC is not a jurisdictional requirement and is subject to equitable tolling, waiver, and estoppel. Walker v. St Anthony's Med. Ctr., 881 F.2d 554, 556-57 (8th Cir. 1989). This principle extends to suits against the federal government. Warren v. Department of the Army, 867 F.2d 1156, 1158 (8th Cir. 1989).
Because defendants have submitted documents outside the pleadings, the motion will be considered under standards applicable to a motion for summary judgment under Fed.R.Civ.P. 56. McMahon has been afforded an opportunity to respond. Summary judgment is appropriate if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The court views the facts and the inferences to be drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party resisting a properly supported summary judgment motion may not rest upon the mere allegations or denials of the pleadings, but by affidavit or otherwise as provided by Rule 56 must set forth specific facts showing the existence of a genuine issue for trial. Dancy v. Hyster Co., 127 F.3d 649, 653 (8th Cir. 1997); see also Fed.R.Civ.P. 56(e).
Exhaustion of administrative remedies entitling a claimant to bring a cause of action, under both the Rehabilitation Act and Title VII, requires a claimant to give notice of all claims of discrimination in the administrative complaint. Stuart, 217 F.2d at 630 (Title VII); Morgan v. United States Postal Serv., 798 F.2d 1162, 1165 (8th Cir. 1986) (Rehabilitation Act). To determine whether an allegedly discriminatory action falls within the scope of a claim, the administrative complaint must be construed liberally in order to further the remedial purposes of applicable legislation and "a plaintiff `may seek relief for any discrimination that grows out of or is like or reasonably related to the substance of the allegations in the administrative charge.'" Stuart, 217 F.3d at 631 (quoting Nichols v. American Nat Ins. Co., 154 F.3d 875, 886-87 (8th Cir. 1998). The purpose of filing the charge is to provide the EEOC with an opportunity to investigate and attempt to resolve the controversy through conciliation before permitting the aggrieved party to pursue a lawsuit. Cobb v. Stringer, 850 F.2d 356, 358 (8th Cir. 1988). The breadth of the civil suit is, therefore, as broad as the scope of any investigation that reasonably could have been expected to result from the initial charge of discrimination. Stuart, 217 F.3d at 631.
The only reference to a hostile environment claim in the EEO filings is the solitary and conclusory use of the word "harassment" in McMahon's precomplaint form. McMahon has not alleged any facts in support of the hostile environment claim. The subject of McMahon's EEOC complaint is limited to the Postal Service's discrete acts of failing to appoint him to openings at the West Point facility and failure to accommodate his disability. The court finds that McMahon's hostile environment claim is not "like or reasonably related to" the claims that are the subject of his EEO complaints. See Tart v. Behan Lumber Co., 31 F.3d 668, 673 (8th Cir. 1994), 31 F.3d at 673 (disallowing a hostile environment discrimination claim brought in conjunction with a discriminatory discharge claim because the incidents supporting each were distinct); Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 223 (8th Cir. 1994) (refusing to consider a discrimination claim where the EEOC charge, alleging retaliation for filing a previous EEOC complaint, did not hint of race discrimination).
Defendants also contend that McMahon's claims regarding the three instances when he was no appointed to the West Point facility are time-barred. Defendants have shown that McMahon's EEOC complaints were filed outside the applicable tolling period. McMahon has not refuted that fact, but the EEOC complaints show that there are issues of equitable tolling and continuing violation. The court finds there remain genuine issues of material fact with respect to whether McMahon's claims are time-barred.
Defendants also move to dismiss the individual defendants and to substitute the Postmaster General as the sole defendant. The Postmaster General is the only properly named defendant in an employment discrimination suit against the Postal Service. Morgan, 798 F.2d at 1165 n. 3 (Rehabilitation Act); McGuinness v. United States Postal Serv., 744 F.2d 1318, 1322 (7th Cir. 1984) (cited with approval in Morgan). Accordingly, the court finds that the claims against Jean Roemer and Ed Goforth in their individual capacities should be dismissed.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT:
1. Defendant's motions to dismiss or for partial summary judgment, Filing No. 22 in 8:CV351; Filing No. 21 in 8:00CV485, are granted in part;
2. Plaintiff's claims under the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e; the Civil Rights Act of 1864, 42 U.S.C. § 1981; the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101; and the Nebraska Fair Employment Practices Act, Neb. Rev. Stat. §§ 48-1101 and 20-148, are dismissed;
3. Plaintiff's Title VII hostile environment claim is dismissed;
4. Plaintiff's claim for punitive damages is dismissed;
5. Plaintiff's claims against Jean Roemer and Ed Goforth are dismissed;
6. Defendants' motions for summary judgment in their favor on plaintiff's claims of discrimination in three instances of failure to be appointed to the West Point, Nebraska, facility are denied.