Opinion
Civ. No. AW-99-916.
September 24, 1999.
MEMORANDUM OPINION
Presently before the Court is Defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). No hearing is deemed necessary. Local Rule 105.6 (D. Md.). Upon consideration of the motion and opposition thereto, and for the reasons stated below, the Court will grant Defendant's Motion to Dismiss.
BACKGROUND
Plaintiff, Chung Shin, is a Korean-American man who is employed by the Defendant, U.S. Department of Health and Human Services ("DHHS"). He is currently a Management Analyst (Team Leader) GS-343-14. Since 1993, Shin has applied for three announced GS-15 vacancies. Shin's claim in the instant case concerns his non-selection for the latest vacancy in 1996 for a position as Manager, Special Initiatives, Program Support Center. The Complaint alleges that Plaintiff was not promoted to this GS-15 level managerial position despite the fact that he was more qualified than others being considered. Plaintiff claims he was ultimately denied the promotion to the position because of his race and national origin in violation of 42 U.S.C. § 2000e et seq. ("Title VII").
On April 17, 1997, as mandated by 29 C.F.R. § 1614.105(a)(1), Mr. Shin made contact with a Food and Drug Administration Equal Employment Opportunity ("EEO") counselor. As required, Plaintiff met with an EEO counselor, Jeffrey McGuire, on May 22, 1997. At that meeting, Shin was instructed that he had a right to file a formal complaint with the EEO office within 15 days. At the completion of the meeting, Shin signed the EEO Counseling Report ("Report"), indicating that he had been advised of his rights and that he had received a notice of his right to file a formal administrative complaint. Shin claims that the counselor told him that he could file his formal complaint by e-mail. On that same day, Shin e-mailed a note to Carlos O'Kieffe, the acting EEO Manager, communicating his desire to file a formal administrative complaint, and Shin filed the Report with the EEO office. On June 30, 1997, the secretary (Katrice Barber) for the current EEO Manager (Don Innis) informed Shin that the Report was not sufficient as a formal complaint filing. Shin then filed the proper complaint on that day. After the filing of his formal administrative complaint, more than 180 days elapsed without the agency making a final determination as to his allegations. Therefore, Shin filed his complaint with this Court.
Pending before this Court is Defendant's Motion to Dismiss, and Plaintiff's opposition thereto. Defendant seeks dismissal of this action on the ground that Plaintiff failed to properly exhaust his administrative because he did not file a formal administrative complaint within fifteen (15) days of receiving notification by the EEO counselor of his right to file such a complaint.
DISCUSSION
I. Standard of Review for Motion to Dismiss
It is well established that a motion to dismiss under Rule 12 (b)(6) of the Federal Rules of Civil Procedure should be denied 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. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Schatz v. Rosenberg, 943 F.2d 485 (4th Cir. 1991), cert. denied, 503 U.S. 936 (1992). However, the function of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the complaint, and not the facts that support it. See Neitzeke v. Williams, 490 U.S. 319, 326-27, 109 S. Ct. 1827 (1989). Thus, in determining whether to dismiss the complaint, this Court must view the well-pleaded material allegations in a light most favorable to the plaintiff, with the alleged facts accepted as true. See Chisolm v. TranSouth Financial Corp., 95 F.3d 331, 334 (4th Cir. 1996); Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994), cert. denied, 514 U.S. 1107 (1995); see also 5A Wright Miller,Federal Practice and Procedure: Civil 2d, § 1357, at 304-21 (1990).
II. Exhaustion of Administrative Remedies
This Court has previously announced that, "[p]rior to filing a Title VII claim, a claimant must pursue and exhaust administrative remedies with the EEOC or its state equivalent." Riley v. Technical and Management Services Corp., Inc., 872 F. Supp. 1454, 1459 (D. Md. 1995), aff'd, 79 F.3d 1141 (4th Cir. 1996) (citing Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992)). The "long settled rule of judicial administration [is] that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Campbell v. Federal Express Corp., 918 F. Supp. 912, 918-19 (D. Md. 1996). The law is clear that a district court must dismiss a Title VII claim if the plaintiff fails to exhaust administrative remedies within the prescribed time period. See, e.g., Murphy v. West, 945 F. Supp. 874, 876-77 (D. Md.), aff'd, 172 F.3d 863 (4th Cir. 1999) (Table opinion); Jakubiak v. Perry, 101 F.3d 23, 26-27 (4th Cir. 1996); Nealon v. Stone, 958 F.2d 584, 589-90 (4th Cir. 1992). Federal regulations require that an employee file an individual complaint of discrimination within 15 days after the receipt of the notice of the right to file a discrimination complaint, issued by the agency. See 29 C.F.R. § 1614.105(d) and 1614.106(b) (1999); Blount v. Shalala, 32 F. Supp.2d 339, 341 (D. Md. 1999). When a plaintiff fails to meet an administrative requirement such as this, the Court must dismiss that plaintiff's judicial action. See Irwin v. Veterans Administration, 498 U.S. 89 (1990); Long v. Ringling Bros., Barnum Bailey Combined Shows, Inc., 9 F.3d 340, 342 (4th Cir. 1993).
In the instant case, Plaintiff received notice of his right to file a discrimination complaint on May 22, 1997, and did not file his formal EEO Complaint of Discrimination until June 30, 1997. These facts are not in dispute. The fact that Plaintiff sent an e-mail message to the EEO office and filed the Counseling Report does not support Plaintiff's argument that he properly filed his formal complaint within the requisite time period. The e-mail message is not the proper form for a complaint, nor does it contain the substantive material necessary for formal administrative complaints. Although Plaintiff contends that he was instructed to e-mail his complaint, the courts charge plaintiffs with the duty to confirm instructions concerning the administrative process. See e.g., Robinson v. Dalton, 107 F.3d 1018 (3d Cir. 1997) (granting a motion to dismiss where plaintiff, who failed to meet the filing deadline, had not confirmed advice he allegedly received from an EEO counselor). Also, the Counseling Report does not satisfy the regulations' filing requirements. Shin signed the Report which notified him of his right to file a formal complaint within 15 days. The Report did not indicate that he should file the Report itself. Most importantly, the regulations do not allow for such an interpretation. The Report serves as notice to the complainant of the right to file a formal complaint. See 29 C.F.R. § 1614.105(d). As such, Plaintiff has failed to exhaust his administrative remedies within the requisite 15-day time period. See Blount, 32 F. Supp.2d at 341 (granting a motion to dismiss where the formal administrative complaint was filed one day beyond the 15-day limitations period); Gilliard v. Runyon, AW-97-0001 (D. Md. 1997) (unpublished) (dismissing suit for failure to comply with 15-day requirement); Baker v. Runyon, 951 F. Supp. 90, 91 (E.D.N.C. 1996), aff'd, 96 F.3d 1438 (4th Cir. 1996) (dismissing discrimination action because complaint was filed five days late).
Courts have recognized an exception to the strict application of limitations periods. Title VII deadline provisions are subject to equitable estoppel, but "[f]ederal courts have typically extended equitable relief only sparingly." See Irwin, 498 U.S. 89 at 96 (1990). A plaintiff may proceed with his case despite missing the deadline by showing waiver, estoppel, or equitable tolling. See Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982); Lipscomb v. Clearmont Construction, 930 F. Supp. 1105, 1106 (D. Md. 1995). The government, however, cannot be estopped from asserting the 15-day time limit as grounds for a motion to dismiss if "plaintiff has made no showing of affirmative misconduct on the part of the government." Zografov v. V.A. Medical Center, 779 F.2d 967, 969 (4th Cir. 1985) (citing Schweiker v. Hansen, 450 U.S. 785, 788 (1981)).
To qualify for the exception, Shin must show that the Defendant engaged in affirmative misconduct with the intention to mislead or deceive him into missing the deadline. See Weick v. O'Keefe, 26 F.3d 467, 470 (4th Cir. 1994) ; Blount, 32 F. Supp. 2 d. at 341; Baker, 951 F. Supp. at 91. Shin does not allege, and this Court has not found, anything in his opposition that would suggest such bad faith acts to warrant the tolling of the limitations period. Shin does not contend that the Defendant in any way caused him to miss the 15-day filing deadline. Plaintiff only presents his mistaken belief that he had complied with the regulations. Thus, the Court finds the doctrine of equitable estoppel inapplicable to this case.
As a related matter, Plaintiff suggests that Defendant's acceptance of the untimely formal complaint for investigation in some way precludes Defendant's motion on this issue. This argument, however, is not viable under current law. "A federal agency does not waive its right to object to untimely filings merely by accepting a complaint for investigation." Blount, 32 F. Supp.2d at 341 (citing Rowe v. Sullivan, 967 F.2d 186, 191 (5th Cir. 1992); Boyd v. United States Postal Service, 752 F.2d 410, 414 (9th Cir. 1985)). Thus, Defendant is in no way precluded from presenting the argument that Plaintiff failed to exhaust the administrative remedies required for Title VII suits.
In conclusion, after careful review, the Court will grant Defendant's Motion to Dismiss. The Court concludes that Plaintiff did not meet the statutory requirements for exhaustion of his administrative remedies. The Plaintiff cannot prove any set of facts which would entitle him to relief because he is barred from seeking relief in this Court under Title VII as a result of his failure to exhaust his administrative remedies. In accordance with the above cited legal standards, the Court will dismiss Plaintiff's cause of action.
A separate Order consistent with this Opinion will follow.