Opinion
CIVIL ACTION NO: 00-1876 SECTION: "J"(1).
December 15, 2000.
APPEARANCES: Submitted on briefs
HEARING ON MOTION
MOTION: DEFENDANT'S MOTION TO DISMISS
GRANTED
The plaintiff, David Taylor ("Taylor") filed this action pursuant to Title VII against his former employer, William J. Henderson, Postmaster General, United States Postal Service (the "Postal Service"). Taylor alleges discriminatory treatment in connection with his termination from the Postal Service. Rec. doc. 1. This matter was referred to the undersigned for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon the written consent of all parties. Rec. doc. 6.
The Postal Service moved to dismiss Taylor's complaint. Rec. doc. 3. The undersigned converted the motion to dismiss to a motion for summary judgment and the parties were given an opportunity to supplement their filings. Rec. doc. 10. Taylor filed a supplemental memorandum, but no additional evidence. Rec. doc. 11. The defendant did not supplement its motion.
The Postal Service makes two arguments: first, Taylor was required to contact the EEO office within 45 days from the date he became aware of the alleged discrimination, but Taylor did not do so for more than 14 months; and second, Taylor was required to file his lawsuit within 90 days of receiving notice of an agency's final action, but did not file until 92 days after receiving such notice.
In his supplemental memorandum Taylor argues that he "exhausted all other remedies" before filing his complaint. Rec. doc. 11 at p. 3. He shows that he filed a grievance complaint. After it was determined that it was not arbitrable, he filed with the EEOC. He states that he did not abandon the administrative process and prematurely file suit. Although he does not explicitly say so, in effect he argues that the time limit was equitably tolled during the grievance and arbitration proceeding. He also contends that the filing of this action was within the 90 day limit, because he believes he did not receive his right to sue letter until March 31, 2000, or less than ninety days before suit was filed on June 27, 2000. Rec. doc. 11 at pp. 4-5.
The record shows that Taylor has failed on numerous occasions to take action necessary to preserve his employment with the Postal Service or to preserve his rights to bring this Title VII action.
Taylor was employed by the Postal Service in Shreveport. The last day that Taylor reported to duty for work was May 22, 1996. On June 11, 1996, Taylor was notified by certified letter to contact his supervisor "immediately and provide documentation covering the entire period" of his absence. Although Taylor signed for this letter on June 21, 1996, he did not contact a manager until more than three weeks later on July 17, 1996. The Postal Service received documentation from Taylor indicating that he could not work and needed back surgery within two weeks. The Postal Service sent Taylor via certified mail a notice showing that he qualified for twelve weeks of leave under the Family Medical Leave Act, but that he needed to provide status reports every thirty days. Taylor signed for this notice on August 1, 1996. Appendix pp. 5-6, Notice of Proposed Removal attached to Rec. doc. 3.
Taylor presents a request for light duty assignment. It is signed by Lt. Mark Scott at Barksdale Air Force base and refers to an examination on May 22, 1996. It states that Taylor was unable to perform his regular work and unable to do light duty. He could not lift or carry more than five pounds. Exhibit A to Rec. doc. 9.
In October, 1996 Taylor sought compensation and contended that his condition was job related. This was rejected by the U.S. Department of Labor on November 27, 1996. Taylor did not provide any documentation to the Postal Service covering his absence and made no other contact with it. Taylor was considered AWOL for the absence from August 14, 1996 (the expiration of the 12 weeks of leave), through the April 15, 1997, the date of the Notice of Proposed Removal. Appendix pp. 5-6 to Rec. doc. 3.
Taylor presented his claim for compensation. It is dated May 21, 1996, but bears a notation that it was hand carried to the Postal Service in October, 1996. He describes the illness as related to herniated discs. It also shows surgery was scheduled "for September 27, 1996. Exhibit B to Rec. doc. 9.
On April 28, 1997, Taylor appeared at the Postal Service. Taylor presented a letter from a doctor with a prognosis on his back, but the letter did not link Taylor's condition to his work. On May 1, 1997, the Postal Service issued a Letter of Decision, where it determined that the charge as stated in the Notice of Proposed Removal was supported by the evidence. Taylor was removed from the Postal Service effective May 20, 1997. The letter stated that Taylor did not provide any documentation as requested at any time after the expiration of his 12 weeks leave. Appendix pp. 7-9, Letter of Decision attached to Rec. doc. 3.
On April 29, 1998, an arbitrator concluded that the grievance filed on behalf of Taylor was not arbitrable. The procedure required that Taylor discuss the grievance with his immediate supervisor within 14 days of first learning of its cause. The Postal Service contended that Taylor's grievance was untimely and the arbitrator agreed. The time began to run when the Notice of Proposed Removal was received on April 15, 1997. Taylor did not initiate the grievance until May 13, 1997. Appendix pp. 10-16, Arbitration Award dated April 29, 1998, attached to Rec. doc. 3.
Finally on July 21, 1998, Taylor made his initial contact with the EEO Counseling office. Taylor claimed that he was discriminated against when his physical disability was not considered as a factor in the decision to remove. Appendix pp. 17-19, EEOC Counselor Inquiry Report attached to Rec. doc. 3. Taylor prepared a form where he stated that on April 29, 1998, after he had become aware of his herniated discs, he immediately presented information from his physician. He contended that his forms were mishandled, and he was "technically terminated." Appendix pp. 20-22 to Rec. doc. 3.
The Postal Service replied that Taylor was required to bring the alleged discriminatory act to the attention of the EEO Counselor within 45 days of the date of such act. Taylor did not contact the EEO Counselor until July 21, 1998; more than 14 months after his termination on May 20, 1997. The Postal Service said the record was void of any credible explanation for Taylor's failure to timely contact the EEO Counselor. There were EEO posters on display at the Shreveport postal facility. The EEO rules and procedures were explained to Taylor during his new employee orientation. Taylor's claim to the EEO Counselor was dismissed as untimely. Appendix pp. 24-26, Final Agency Decision, dated March 12, 1999, attached to Rec. doc. 3.
Taylor sought review with the EEOC. He argued that his removal was not effective until May 20, 1998. Appendix p. 27 to Rec. doc. 3. This ignores the plain statement in the Letter of Decision that his removal was effective on May 20, 1997. Appendix pp. 7-8 to Rec. doc. 3. The EEOC dismissed Taylor's complaint and said that he presented no persuasive evidence to warrant an extension of the time limit for initiating EEO contact. App. pp. 28-30 to Rec. doc. 3. Taylor sought reconsideration of this decision, but it was denied and mailed on March 22, 2000. Appendix, pp. 31-36 to Rec. doc. 3. The denial shows that it was received by the Appeals Processing Center on March 27, 2000. Appendix p. 34 to Rec. doc. 3. The certificate of mailing states that for timeliness purposes the EEOC presumes that the decision will be received within 5 calendar days after it was mailed. Appendix p. 36 to Rec. doc. 3. Taylor's complaint at paragraph 2 states that he received it "on or about March 27, 2000. Rec. doc. 1. Taylor filed this complaint in proper person on June 27, 2000. Rec. doc. 1. Since then counsel has appeared for Taylor.
Rule 56 provides in pertinent part that summary judgment will be granted when". . . 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 a judgment as a matter of law."
The pleadings, depositions, admissions, and answers to interrogatories, together with affidavits, must demonstrate that no genuine issue of material fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986).Lujan v. National Wildlife Federation 497 U.S. 871, 888, 110 S.Ct. 3177, 3189 (1990). To that end, the court must "review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). Where the record taken as whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); Washington v. Allstate Ins. Co., 901 F.2d 1281 (5th Cir. 1990).
Furthermore, the party moving for summary judgment must "demonstrate the absence of a genuine issue of material fact," but need not negate the elements of the nonmovant's case.Celotex, 477 U.S. at 323, 1065 S.Ct. at 2553; see Lujan, 497 U.S.at 885-86, 110 S.Ct. at 3187. If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response. If the movant does, however, meet this burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 325, 106 S.Ct. at 2553-54.
This burden is not satisfied with "some metaphysical doubt as to the material facts," Matsushita 475 U.S. at 586, 106 S.Ct. at 1356, by "conclusory allegations," Lujan 497 U.S. at 871-73, 110 S.Ct. at 3180, by "unsubstantiated assertions," Hopper v. Frank 16 F.3d 92 (5th Cir. 1994), or by only a "scintilla" of evidence, Davis v. Chevron U.S.A., Inc., 14 F.3d 1082 (5th Cir. 1994). The court resolves factual controversies in favor of the nonmoving party, but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts. The court does not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts. See Lujan, 497 U.S. at 888, 110 S.Ct. at 3188. Summary judgment is appropriate in any case "where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993). If the nonmoving party fails to meet this burden, the motion for summary judgment must be granted.
Federal regulations govern the procedures for the exhaustion of administrative remedies. 29 C.F.R. § 1614.105(a)(1) required that Taylor initiate contact with the EEO counselor within 45 days of the date of the allegedly discriminatory action. A plaintiffs failure to notify an EEO counselor of his complaint in a timely fashion bars the plaintiffs claim, absent a defense of waiver, estoppel, or equitable tolling. Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992). 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). Taylor bears the burden to prove that equitable tolling is warranted. Hood v. Sears Roebuck and Company, 168 F.3d 231, 232 (5th Cir. 1999). The undisputed facts show that Taylor has failed to carry that burden.
Taylor was terminated by the Postal Service effective May 20, 1996. He did not contact an EEO counselor until July 21, 1998, or fourteen months later. Taylor's participation in the grievance and arbitration procedure does not constitute equitable tolling. See International Union of Electrical Workers v. Robbins Myers, 97 S.Ct. 441, 447-49 (1976), Dade v. Southwestern Bell Tel. Co., 942 F. Supp. 312, 318 (S.D.Tex. 1996) ("the running of the period for filing a discrimination claim is not tolled while the claimant participates in arbitration procedures, under a collective bargaining process") and McNeil v. Atchison. Topeka Santa Fe Ry. Co., 986, 989 F. Supp. 986 (S.D.Tex. 1995) ("the running of a limitations period for filing a discrimination claim is not tolled while the employee exhausts his remedies under a grievance procedure").
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 States of America, 1999 WL 1138529, *5 (E.D.La.).
The Postal Service's exhibits show and Taylor does not dispute that he was informed of the proper procedure for preserving his claim when he went through orientation as a new employee. Taylor does not dispute that there were posters throughout the facility describing the procedure to be followed for bringing a complaint. Taylor has offered no evidence that he was unaware of the deadline, nor has Taylor shown that he was in anyway prevented from contacting an EEO counselor within 45 days of his termination. Taylor's claim is time barred.
It is unnecessary to consider the Postal Service's second argument as to whether Taylor's suit is also time barred because it was not filed with 90 days of the receipt of the EEOC's denial of his request for reconsideration.
It is ORDERED that the defendant's motion to dismiss (Rec. doc. 3) which was converted to a motion for summary judgment (Rec. doc. 10) is GRANTED.