Opinion
No. 1:01CV00427
March 24, 2003
MEMORANDUM OPINION
Plaintiff Donald B. Truesdale ("Plaintiff"), acting pro se, asserts claims of race discrimination and retaliation (for prior protected activity) pursuant to Title VII, 42 U.S.C. § 2000e, et seq. against Defendant John E. Potter, Postmaster General of the United States Postal Service ("Postal Service"), following his discharge due to alleged improper conduct and sexual harassment. This matter is before the court on the Postal Service's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Rule 12(b)(6)"), or in the alternative, Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons stated herein, Defendant's motion to dismiss will be denied and Defendant's motion for summary judgment will be granted.
I. FACTUAL BACKGROUND
Plaintiff, a black male, was employed as a letter carrier and occasionally as a temporary supervisor at the Concord, North Carolina Post Office of the United States Postal Service from 1983 until his discharge in 1999. Prior to the allegations giving rise to his discharge, Plaintiff had neither been counseled nor disciplined by the Postal Service for improper conduct or sexual harassment. In fact, Plaintiff had established a "clean record" during his 16-year employment history with the Postal Service. (Compl. ¶ 4.)
On or about August 6, 1999, however, Plaintiff's employment record was marked with the first of many allegations of sexually inappropriate behavior. One of the Postal Service's female city carriers, Ms. Lisa Phillips, reported to the Officer in Charge ("OIC") postmaster, Mr. Wayne Dunn, that Plaintiff had engaged in multiple instances of sexually inappropriate conduct approximately one-and-one-half to two years prior to her report. Shortly thereafter, Mr. Dunn reported Ms. Phillips' allegations to Mr. Charles McDaniel, Plaintiff's immediate supervisor. Mr. McDaniel responded by placing Plaintiff on paid administrative leave. Mr. McDaniel then contacted the human resources department of the Postal Service to conduct an investigation of the allegations.
Notably, Mr. McDaniel had never handled a sexual harassment case as a supervisor before the allegations involving Plaintiff.
In August and September 1999, eight female Postal Service carriers and one female Postal Service supervisor submitted sworn statements regarding Plaintiff's alleged sexually inappropriate conduct. These women cited instances of sexually inappropriate comments and conduct upon investigation of Ms. Phillips' accusations. Specifically, Ms. Phillips reported that Plaintiff had approached her twice from behind while she was gathering mail, and once while she was loading her truck. (Mem. Supp. Def.'s Mot. Summ. J. Ex. A. Attach. 1A.) On all three occasions, Plaintiff covered her eyes with his hands and rubbed his groin against her buttocks. (Id.) Ms. Amy Carter, Ms. Linda Chapman-Fridie, Ms. Kimberly Wright, and Ms. Nancy Daley reported the same conduct as Ms. Phillips. (Mem. Supp. Def.'s Mot. Summ. J. Ex. A. Attach. 1C, 1D, 1F, 1G.) Ms. Mary Roxanne Peterson reported that Plaintiff had pinched her buttocks on one occasion. (Mem. Supp. Def.'s Mot. Sum. J. Ex. A. Attach. 1B.) Ms. Wright reported that Plaintiff had told her he would move her into his residence and/or ask her out while his girlfriend was out of town. (Mem. Supp. Def.'s Mot. Summ. J. Ex. A. Attach. 1F.) Ms. Donna Hathcock, the only supervising employee, and Ms. Gwen Whitley reported that Plaintiff came up behind them, covered their eyes, and said, "guess who it is?," similar to Ms. Phillips' and the other female employees' accounts, but that no other physical contact occurred. (Mem. Supp. Def.'s Mot. Summ. J. Ex. A. Attach. 1H, 1I.) Ms. Whitley also stated that Plaintiff brushed her buttocks with his hand on another occasion. (Mem. Supp. Def.'s Mot. Summ. J. Ex. A. Attach. 1I.) Ms. Chapman-Fridie reported that on one occasion, Plaintiff tried to look down her blouse. (Mem. Supp. Def.'s Mat. Summ. J. Ex. A. Attach. 1D.)
Plaintiff asserts that the female employees were "solicited" by management with the intent to gather evidence of Plaintiff's sexually inappropriate conduct. No factual basis in the record supports this assertion. The record reflects that Ms. Phillips provided her supervisor with the names of other women whom she believed had been exposed to Plaintiff's sexually inappropriate behavior based on her personal conversations with these women. (Mem. Supp. Def.'s Mot. Summ. J. Ex. A. Attach. 1A.) At least four of the women named by Ms. Phillips were interviewed by the Postal Service.
Ms. Daley's account included Plaintiff grabbing her breasts while he approached her from behind. (Mem. Supp. Def.'s Mot. Summ. J. Ex. A. Attach. 1G.)
All of the women indicated that they did not welcome Plaintiff's comments and/or conduct, that they perceived his behavior to be inappropriate, and that they did not think Plaintiff was aware that he was making women feel uncomfortable because of the recurring nature of these instances. Most of the women noted that when they communicated to Plaintiff that his behavior was unwelcome, he either walked away without saying anything, or apologized and then walked away. None of the women reported the conduct to management immediately because they believed that either they had diffused the problem themselves, they did not want to lose their own jobs, they did not think they would be believed, or they did not want Plaintiff to lose his job. All of the women reported receiving either sexual harassment training in the form of lectures by guest speakers, written policy guides and flyers concerning the Postal Service's "zero tolerance" for sexual harassment, or verbal statements by supervisors on what constitutes sexual harassment.
The female employees' views on the severity of Plaintiff's actions and comments varied. Ms. Peterson stated that she did not perceive Plaintiff's conduct to be "sexual harassment" unless he repeated such conduct. (Mem. Supp. Def.'s Mot. Summ. J. Ex. A. Attach. 1B.)
After reviewing these sworn statements in the form of an investigative memorandum, Mr. McDaniel conducted an interview with Plaintiff, the union steward, and a witness. On the basis of the investigative memorandum, Plaintiff's interview, and several Postal Service policies, Mr. McDaniel concluded that from 1995 to July 1999, Plaintiff had exhibited improper conduct by making sexually inappropriate comments to several female employees, and Plaintiff violated the Postal Service's policy on sexual harassment by initiating inappropriate and unwelcome physical conduct with several female employees. Mr. McDaniel issued Plaintiff a notice of removal on November 10, 1999, and he was removed from the Postal Service on December 13, 1999.
During the interview, Plaintiff stated that "[i]f they were friends, I may have covered their eyes and said guess who." (Mem. Supp. Def.'s Mat. Summ. J. Ex. A Attach. 2.)
The United States Postal Service Policy on Sexual Harassment states, in pertinent part, that "the penalty for engaging in sexual harassment is severe discipline, including discharge . . . [s]exual harassment . . . includes deliberate or repeated unsolicited remarks with a sexual connotation or physical contacts of a sexual nature that are unwelcome to the recipient." (Mem. Supp. Def.'s Mot. Summ. J. Ex. A Attach. 2.) The agreement between the Postal Service and its major unions, entitled "Joint Statements on Violence and Behavior in the Workplace," states that "there is no excuse for and will be no tolerance of harassment. . . ." (Id.)
II. PROCEDURAL HISTORY
Prior to filing his complaint in this court, Plaintiff appealed his removal by pursuing arbitration and by filing a complaint of discrimination with the Equal Employment Opportunity Commission ("EEOC"). An arbitration hearing was held on Plaintiff's appeal, and the arbitrator ruled that Plaintiff was removed for just cause. Subsequently, an administrative law judge ruled against Plaintiff after a hearing on his discrimination claims. The Postal Service implemented the administrative law judge's finding of no discrimination in a final agency decision delivered to Plaintiff. On April 20, 2001, within 90 days after receipt of the final agency decision, Plaintiff submitted a complaint to this court seeking compensatory damages and lost wages based on his race discrimination and retaliation claims, as well as an application to proceed in forma pauperis, and submitted a letter to the court requesting an attorney. On April 25, 2001, Magistrate Judge Eliason issued an order denying Plaintiff's request to proceed in forma pauperis, granting him 30 days in which to pay the filing fee, and allowing him four months in which to comply with service of process on the Postal Service. The clerk's office filed Plaintiff's complaint on April 25, 2001, one day after the 90-day window prescribed by Congress in 42 U.S.C. § 2000e-16(c) to bring a civil claim following an agency's final action.
Plaintiff was represented by an attorney at the hearing before the administrative law judge.
III. MOTION TO DISMISS STANDARD
A court should dismiss a case for failure to state claim upon which relief can be granted "only in very limited circumstances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989). When considering a motion to dismiss, the court must evaluate the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded factual allegations. Randall v. United States, 30 F.3d 518, 522 (4th Cir. 1994). Dismissal should not be granted "unless it appears certain that the plaintiff can prove no set of facts which would support its claim and would entitle it to relief." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993).
IV. ANALYSIS
Title VII provides that an employee may file a civil action "[w]ithin 90 days of receipt of notice of final action taken by a department, agency,. . . or by the [EEOC]. . . ." 42 U.S.C. § 2000e-16(c). The Postal Service argues that Plaintiff's failure to timely file his complaint with the court within 90 days of receipt of the final agency decision warrants dismissal of his claim under Rule 12(b)(6). A statute of limitations defense is appropriate when raised in a motion to dismiss for failure to state a claim. See Pantry Pride Enters., Inc. v. Glenlo Corp., 729 F.2d 963, 965 (4th Cir. 1984); Williams v. Enterprise Leasing Co. of Norfolk/Richmond, 911 F. Supp. 988, 992 (E.D. Va. 1995). Therefore, the court must consider whether Plaintiff filed his complaint beyond the statutory limitations prescribed by Congress.
The Postal Service incorrectly cited May 25, 2001, as the filing date of Plaintiff's complaint in its memorandum in support of its motion for summary judgment. Plaintiff's complaint was actually filed on April 25, 2001.
The Supreme Court has held that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132 (1982). If the date of receipt of the final agency decision is not disputed, the 90-day filing period commences the day the final agency decision is received. Prophet v. Armco Steel, Inc., 575 F.2d 579, 580 n. 1 (5th Cir. 1978) ("For purposes of computing this 90-day limitation period the first day is omitted and last day counted."). Generally, the date the complaint is filed is not disputed when the submission and filing dates are the same and within the 90-day filing period. Compliance with the statute is at issue when the submission date of the complaint is within the 90-day filing period, but the filing date of the complaint is beyond it.
The Fourth Circuit applies a case-by-case analysis to determine when the 90-day filing period commences for discrimination claims. Harvey v. City of New Bern Police Dep't, 813 F.2d 652, 654 (4th Cir. 1987); Grey v. Henderson, 169 F. Supp.2d 448, 451 (M.D.N.C. 2001). If reasonable grounds exist for an equitable tolling of the filing period, the court will thoroughly examine such factors. Harvey, 813 F.2d at 654. Although equitable tolling of statutory deadlines is not a commonly granted form of relief, and not extended to claims of excusable neglect, equitable considerations in cases similar to the case at bar have been given significant weight by other courts.
Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 458 (1990).
In White v. Steak Ale of Little Rock, Inc., the court held that the plaintiff's complaint should not be dismissed because it was filed on the date it was presented to the clerk's office with his application to proceed in forma pauperis. 839 F. Supp. 23, 24 (E.D. Ark. 1993). The fact that the plaintiff's application was not granted until 94 days after the plaintiff received his right-to-sue letter was inconsequential to the plaintiff's timely submission of his complaint to the court. In Robinson v. City of Fairfield, the court held that when a plaintiff files an application for appointment of an attorney and to proceed in forma pauperis, the date the clerk actually receives the application is the date of commencement of the action for statutory purposes. 750 F.2d 1507, 1509 n. 2 (11th Cir. 1985); see also 4 Matthew Bender, Employment Discrimination ¶ 21:17 (2002) ("[A]s long as the complaint is received within the ninety-day period, the action is timely even if it is not technically filed by the clerk until sometime thereafter.").
839 F. Supp. 23 (E.D. Ark. 1993).
750 F.2d 1507 (11th Cir. 1985).
In this case, the date of receipt of the final agency decision, April 24, 2001, is not in dispute. Rather, the parties disagree as to whether the complaint was filed within 90 days of this date. Similar to the plaintiffs in White and Robinson, Plaintiff here submitted his complaint and application to proceed in forma pauperis on the 86th day of the 90-day filing period. The complaint was filed by the clerk's office one day after the 90-day filing period had expired. The mere fact that Plaintiff is proceeding pro se does not justify noncompliance with the filing statute. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 1726 (1984). Yet, Plaintiff should not be penalized under the filing statute because of the court's internal process in considering his in forma pauperis application. The court holds that the filing statute should be equitably tolled by one day because Plaintiff timely submitted his complaint to the court. See Fletcher v. Runyon, 980 F. Supp. 720, 721 n. 2 (S.D.N.Y. 1997) ("it is the Court . . . and not the Clerk's Office that determines whether a complaint is timely."). Defendant's motion to dismiss will be denied because Plaintiff has complied with the statutory requirements of 42 U.S.C. § 2000e-16(c).
V. SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is appropriate if an examination of the pleadings, affidavits, and other proper discovery materials viewed in the light most favorable to the non-moving party, indicates that there exists no genuine issue of material fact. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552 (1986). The essential question for the court's determination is whether the evidence "is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512 (1986). Unless the non-moving party comes forward with specific facts demonstrating a genuine issue for trial, summary judgment is proper as a matter of law.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986).
VI. ANALYSIS
The court must determine whether the Postal Service is entitled to summary judgment on Plaintiff's claims of race discrimination and retaliation.
The court cannot consider Plaintiff's Attachments 7-12 in deciding the motion for summary judgment because Plaintiff did not file these attachments with his Memorandum in Opposition to Defendant's Motion for Summary Judgment. Although these documents were attached to Plaintiff's Memorandum in Support of Plaintiff's Motion for Hearing, this pleading was stricken without prejudice by an order dated June 3, 2002. Plaintiff had an opportunity to file the proper documents on or before June 18, 2002, and did not do so.
For a plaintiff to prevail on a race discrimination claim based on indirect proof, he or she must satisfy the three-step proof scheme established by McDonnell Douglas v. Green: (1) the plaintiff has the burden of establishing a prima facie case by a preponderance of the evidence, (2) if the plaintiff is successful, the burden of production shifts to the defendant to offer a legitimate, non-discriminatory reason for the action to rebut the plaintiff's prima facie case, and (3) if the defendant meets this burden of production, the plaintiff must show that the defendant's proffered reason is a pretext for discrimination. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 1093-94 (1981). At all times, the plaintiff bears the burden of persuasion in showing that he or she was victimized by the defendant's intentional discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2747 (1993).
411 U.S. 792 (1973). The McDonnell Douglas court noted, however, that strict application of the proof scheme is not intended for every factual situation. See McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. This is especially true when, as in this case, the plaintiff's claim stems from a discriminatory disciplinary action, as opposed to a discriminatory hiring action. Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir. 1985).
The first prong of the analysis, establishing a prima facie case of discriminatory discharge, requires proof of four additional elements: (1) plaintiff is a member of a protected group, (2) plaintiff's job performance is satisfactory, (3) plaintiff was discharged despite his or her job performance, and (4) similarly situated employees were treated more favorably. Williams v. Cerberonics, Inc., 871 F.2d 452, 455 (4th Cir. 1989). The parties do not dispute the existence of the first three elements; the last element is the sole contested issue.
In support of the final element of Plaintiff's prima facie case, he alleges that similarly situated employees were also accused of sexual harassment and were treated differently by the Postal Service because of their race. In his complaint, Plaintiff states that three white employees were also accused of sexual harassment within the same office. (Compl. ¶ 4.) The accusations concerning Mr. Jerry Williamson, one of the white employees, occurred at the same time as Plaintiff's, but Mr. Williamson was only given a "letter of warning" and remained employed by the Postal Service. (Id.)
Although the Fourth Circuit has provided little direct guidance in identifying similarly situated employees, other circuits have held that a plaintiff must show that he or she was similarly situated to other employees from outside his protected class in all relevant aspects. Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir. 2000); Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam). In discriminatory discharge cases, one essential factor that both the plaintiff and the other employees must show to be considered "similarly situated" is discipline by the same supervisor. See Radue, 219 F.3d at 617-18; Brown v. Runyon, 1998 U.S. App. LEXIS 3237, at *6 (4th Cir. Feb. 27, 1998); Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). Other relevant factors include whether the employees were subject to the same standards, and whether they engaged in similar conduct without mitigating circumstances that would differentiate their conduct from that of other employees. Radue, 219 F.3d at 618.
There is no indication in the record that the three white employees had the same supervisor as Plaintiff, or that their alleged inappropriate conduct was similar to the allegations of Plaintiff's inappropriate behavior. To the contrary, during the administrative hearing, Mr. McDaniel, Plaintiff's immediate supervisor, stated that Plaintiff's case of sexual harassment was the only one he had ever handled. (Mem. Supp. Def.'s Mot. Summ. J. Ex. Attach. 4 at 165.) Mr. McDaniel never disciplined another employee for improper conduct of sexual harassment before he disciplined Plaintiff. (Id.) Because none of the three white employees were disciplined by the same supervisor as Plaintiff, and the white employees' conduct was not shown to be similar in any respect to Plaintiff's conduct, the court cannot find that these employees were similarly situated to Plaintiff. Therefore, Plaintiff cannot prevail on his prima facie case of discrimination.
Even if Plaintiff could establish a prima facie case of discriminatory discharge based on his race, substantial evidence exists that the Postal Service discharged him for a legitimate, non-discriminatory reason. Sexual misconduct is a legitimate and non-discriminatory reason for an employer to discharge an employee. See Watkins v. Turnage, 1989 WL 90556, *4 (4th Cir. Aug. 11, 1989). The record reflects multiple accounts of Plaintiff's repeated inappropriate sexual comments and conduct, and two different types of administrative review affirming Mr. McDaniel's decision to discharge Plaintiff. Plaintiff's bald allegation that the arbitrator's factual findings were distorted as a result of the Postal Service's allegedly flawed investigation are not supported by any evidence in the record. For these reasons, there is no genuine issue of material fact in determining whether Plaintiff was discharged because of his race. This court will grant the Postal Service's motion for summary judgment on Plaintiff's race discrimination claim.
Plaintiff also alleges that the Postal Service's investigation and the administrative review of his discharge relied on such distorted facts that his discharge was not justified by a legitimate business concern. Specifically, Plaintiff argues that the Postal Service's affidavits are fictional because the information was solicited from postal employees who perceived the contact to be friendly or incidental, specific dates on which sexual harassment occurred were not provided, and most of the incidents were never reported to management according to the Postal Service's sexual harassment policy. With the exception of the undisputed fact that the female Postal Service employees did not report the incidents to management immediately, Plaintiff has not submitted any evidence to the court to support any of these allegations.
For a plaintiff to prevail on a retaliatory discharge claim, the same sequence of proof must be followed as in the discriminatory discharge claim. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), abrogated on other grounds, Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775 (1989). The prima facie case, however, consists of the following elements: (1) plaintiff engaged in a protected activity, (2) plaintiff's employer took an adverse employment action against plaintiff, and (3) a causal connection existed between the protected activity and the adverse employment action. Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). The parties do not dispute the existence of the first two elements of the prima facie case of retaliation; the third element is the one at issue.
Plaintiff has offered insufficient evidence to support the third element of his prima facie case of retaliation. He merely alleges that because of his engagement in "previous EEO activity," he was deliberately retaliated against with "absolute intent" to "destroy [his] postal career." (Compl. ¶ 4.) At most, the record reflects that the Postal Service had knowledge about prior complaints Plaintiff filed with the EEOC. (Mem. Supp. Def.'s Mot. Summ. J. Ex. A Attach. 4.) An employer's mere knowledge that an employee has filed an EEC complaint, without more, is insufficient as a matter of law to establish evidence of retaliation. Williams, 871 F.3d at 457. Without a causal connection, there is no genuine issue of material fact in determining whether Plaintiff was discharged in retaliation for prior EEO activity. The court will grant the Postal Service's motion for summary judgment on Plaintiff's retaliatory discharge claim.
VII. CONCLUSION
For the reasons set forth above, the court will deny Defendant's Motion to Dismiss and will grant Defendant's Motion for Summary Judgment.
A judgment in accordance with this memorandum opinion shall be filed contemporaneously herewith.
JUDGMENT
For the reasons set forth in the memorandum opinion entered contemporaneously herewith,
IT IS ORDERED that Defendant's Motion to Dismiss [11-1] is denied.
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment [11-2] is granted.