Opinion
CIVIL ACTION No. 04-960 SECTION "K"(5).
August 26, 2004
Before the Court is a Motion to Dismiss (Rec. Doc. 3) filed by defendant Anne M. Veneman, Secretary, United States Department of Agriculture. Having reviewed the pleadings, memoranda, and relevant law, the Court GRANTS defendant's motion, for reasons stated below.
I. BACKGROUND
Plaintiff Vivian O. Piper filed her initial Complaint in the instant action pursuant to Title VII for alleged mistreatment. See Rec. Doc. 1. Her original Complaint included workplace non-promotion allegations. See id. at ¶ V. Plaintiff alleges the mistreatment was based upon her race, sex, age, and reprisal. Id. at page 1.
As required by law, plaintiff sought administrative relief prior to filing the instant action by filing a complaint with the Equal Employment Opportunity Commission ("EEOC"). See Defendant's Exhibit A, Declaration of Donald R. Lewis; see also 42 U.S.C.A. § 2000e-16; 29 C.F.R. § 1614.105. Specifically, Piper claimed:
1. On the basis of race (Black), age (DOB: 9/20/47), sex (female) and reprisal (prior EEO activity) the Complainant was not selected for the position of Supervisory Systems Accountant, GS-510-14, as advertised under Vacancy Announcement No. NFC-99-014 on February 17, 1999;
2. On the basis of race, age, sex and reprisal the Complainant was issued a "Fully Successful," rather than a "Superior" performance appraisal rating for FY-99, dated October 5, 1999;
3. On the basis of age, race and reprisal the Complainant was not selected for the positions of Supervisory Systems Accountant, GS-510-14 as advertised under Vacancy Announcement No. NFC-00-095, and a Supervisor Computer Specialist, GS-334-13, advertised under Vacancy Announcement No. NFC-00-063 on August 17, 2000; and
4. On the basis of sex, race and reprisal the Complainant failed to receive a $500.00 case award on October 16, 2000.See Rec. Doc. 1, Complaint, at ¶ V.
As a result of her filing the administrative complaint, defendant conducted an investigation and issued a Final Agency Decision ("FAD"). See Defendant's Exhibit A-1, Final Agency Decision; see also 29 C.F.R. §§ 1614.106-110. In the FAD, the agency determined that the evidence gathered through the investigation indicated that discrimination did not occur. See Exhibit A-1, Final Agency Decision, at page 25.
The FAD also informed Plaintiff that if she was not satisfied with the decision, she must either appeal to the EEOC within thirty (30) days or commence a civil action within ninety (90) days. Id., see also 42 U.S.C. § 2000e-16(c); 29 C.F.R. §§ 1614.402, 1614.407. Plaintiff filed an appeal to the EEOC. See Defendant's Exhibit A-2. The EEOC affirmed defendant's final agency decision because it found that the preponderance of the evidence of record did not establish that discrimination occurred. Id. The EEOC decision also informed Plaintiff that she had ninety (90) days from receipt of the EEOC decision on appeal to commence a civil action. Id.; see also 42 U.S.C. 2000e-16(c). The EEOC decision notes that, for timeliness purposes, there is a presumption that the decision was received within five (5) calendar days after it was mailed. Id.
Plaintiff filed the instant lawsuit on April 5, 2004. See Rec. Doc. 1. Her Complaint prays for declaratory relief, compensatory damages, including back pay, and attorney's fees. See Rec. Doc. 1, Complaint, at ¶ VII.
On July 2, 2004, defendant filed the instant motion to dismiss the claims plead in the original Complaint on the basis that they were not timely filed. Thereafter, on July 23, 2004, plaintiff filed an Amending and Supplemental Complaint alleging additional claims. See Rec. Doc. 8.
II. LAW ANALYSIS
A motion to dismiss filed under Federal Rule of Civil Procedure 12(b)(1) challenges the subject matter jurisdiction of a federal district court. A claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the court lacks the statutory or constitutional power to adjudicate the claim. See Home Builders Assoc., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). A 12(b)(1) motion may be appropriate when a plaintiff's claim is barred by sovereign immunity, as well as in the typical situation where a defendant alleges that there is no diversity of citizenship between the parties, jurisdictional amount, and/or the plaintiff's claim does not involve a federal question. See 5A Charles A. Wright Arthur R. Miller, Federal Practice and Procedure, § 1350 (2d ed. 2003).
Because federal courts are courts of limited jurisdiction, absent jurisdiction conferred by statute, they lack the power to adjudicate claims. See e.g., Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998). Thus, a federal court must dismiss an action whenever it appears that subject matter jurisdiction is lacking. Stockman, 138 F.3d at 151.
In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, "a court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001); Barrera-Montenegro v. United States, 74 F. 3d 657, 659 (5th. Cir. 1996). Thus, unlike a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court is entitled to consider disputed facts as well as undisputed facts in the record. See Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986). Uncontroverted allegations of the complaint, however, must be accepted as true. Den Norske Stats Oljeselskap As, 241 F.3d at 424.
As a general rule, the federal government, including its subdivisions, is "immune from suit unless express permission to sue it has been granted by Congress. Wright Miller, § 1427, at 194. Therefore, in an action instituted by the government a counter-claim, like any other claim against the United States, can be interposed only when the government has waived its immunity from suit on that claim." Id. The Supreme Court has noted that waivers of government immunity must be express and will be construed strictly in favor of the government. Library of Congress v. Shaw, 478 U.S. 310, 318, 106 S.Ct. 2957, 2963 (1986).
In order to determine whether the government has waived its immunity for detention damages, the statutes relevant to plaintiff's claims must be examined. In 1972, Congress amended Title VII of the Civil Rights Act of 1964 and waived the government's sovereign immunity for suits alleging discrimination in a government workplace on the basis of race, sex, color, religion or national origin. 42 U.S.C. § 2000e-16. This statute was enacted to "create an exclusive, preemptive administrative and judicial scheme for the redress of federal employment discrimination." Brown v. General Services Administration, 425 U.S. 820, 829 (1976).
However, Title VII is not an unconditional waiver of sovereign immunity. Federal employees may bring Title VII employment discrimination lawsuits in federal court only if they first timely exhaust administrative remedies as defined by statute and regulations promulgated thereunder. Brown, 425 U.S. at 835; see also 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.101 et seq. Exhaustion of EEOC administrative remedies is a prerequisite for a district court's subject matter jurisdiction over a federal sector employee's employment discrimination case. See Randel v. United States Department of the Navy, 157 F.3d 392, 395 (5th Cir. 1998); Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990).
Under the purview of Title VII, the EEOC has promulgated regulations designed to resolve claims of discrimination at the administrative level. See Capers v. Henderson, 153 F. Supp.2d 846, 849 (E.D. La. 2001). These regulations set forth procedures by which federal employees must pursue charges of discrimination. Id. The relevant regulation mandates the time period within which an employee may seek relief in a federal district court. 29 C.F.R. § 1614.407(a).
Defendant contends that this Court lacks subject matter jurisdiction over plaintiff's claims because they are untimely under 42 U.S.C. 2000e-16(c). According to the government, plaintiff failed to timely file the instant action in this Court pursuant to 42 U.S.C. 2000e-16(c) because she failed to file this instant action within 90 days of receipt of the appeal decision from the EEOC.
42 U.S.C. § 2000e-16 states in relevant part:
(c) Civil action by employee or applicant for employment for redress of grievances; time for bringing action; head of department, agency, or unit as defendant
Within 90 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 on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge with the department, agency, or unit or with the Equal Employment Opportunity Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title, in which civil action the head of the department, agency, or unit, as appropriate, shall be the defendant.42 U.S.C. § 2000e-16.
As to the claims specifically plead in plaintiff's original Complaint (Rec. Doc. 1), the EEOC's decision is dated and certified as mailed on November 12, 2003. See Defendant's Exhibit A-2, at page 3. Plaintiff was informed that she must file suit within ninety (90) days from the receipt of the decision. Id., at page 2. Nevertheless, plaintiff filed her Complaint on April 5, 2004, approximately 140 days after she received a copy of the Decision from the EEOC. Clearly, these claims were not filed timely under 42 U.S.C. § 2000e-16. Accordingly, this Court has no jurisdiction to entertain plaintiff's discrimination claims as plead in the initial Complaint and must dismiss those claims pursuant to Federal Rule of Civil Procedure 12(b)(1).
As to the claims set forth in her Amending and Supplemental Complaint (Rec. Doc. 8), dismissal under Rule 12(b)(1) is not appropriate. Defendant acknowledges this fact in the Reply Memorandum (Rec. Doc. 12), stating that the motion to dismiss does not address plaintiff's new claims. Attached to her amended Complaint, plaintiff has filed a copy of the Final Agency Decision dated July 2, 2004, which demonstrates that the amended claims have only recently ripened. Thus, for reasons stated above,
IT IS ORDERED that defendant's Motion to Dismiss (Rec. Doc. 3) is hereby GRANTED as to all claims plead in plaintiff's initial Complaint (Rec. Doc. 1). Plaintiff's claims plead in the Amending and Supplemental Complaint (Rec. Doc. 8) are not dismissed.