Summary
dismissing a plaintiff's claim for lack of jurisdiction because her elected forum was initially the Office of Compliance
Summary of this case from Halcomb v. Office of Senate Sergeant-At-ArmsOpinion
Civil Action No. 03-0949 (RWR).
March 31, 2005
MEMORANDUM OPINION
Plaintiff Afssar Pari Delfani, a female Muslim United States citizen of Iranian descent and former employee of defendant United States Capitol Guide Board, filed a six-count amended complaint alleging that defendant discriminated against her on the basis of race, national origin, religion and gender by terminating her from employment and by creating a hostile work environment in retaliation for her complaints to the Equal Employment Office ("EEO"), in violation of the Congressional Accountability Act ("CAA"), 2 U.S.C. §§ 1301 et seq. (2000). Defendant has filed a motion to dismiss, arguing under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) that the court lacks subject matter jurisdiction over some of the claims because plaintiff elected to proceed first through administrative channels, and that other counts were not adequately exhausted and fail to state a claim. Plaintiff opposes, arguing that her withdrawn complaint in the administrative channel does not foreclose relief here under the CAA's election of remedies provision and that her claims are fully exhausted and cognizable under the CAA. Because plaintiff's complaint filed and withdrawn with the Office of Compliance constitutes an election under the CAA for all claims asserted here, defendant's motion to dismiss will be granted.
Defendant has also moved under Rule 12(f) to strike plaintiff's request for punitive damages, which plaintiff does not oppose. The issue is moot given the disposition of the motion to dismiss.
BACKGROUND
Plaintiff was hired by defendant in 1998 as a tour guide with the United States Capitol Guide Board to give tours of the Capitol Building and perform administrative tasks. Plaintiff asserts that she was an exemplary employee, receiving numerous commendations and positive performance ratings until September 2001. Shortly before September 11, 2001, defendant took annual leave and returned in early October to a workplace environment she deemed discriminatory. Plaintiff alleges that co-workers continually insulted her and made derogatory statements about Muslims and individuals of Middle Eastern descent. Plaintiff asserts that a supervisor chastised her more than once as being "heartless" for failing to call him and her co-workers to say how sorry she was for the tragic events of September 11, 2001. She also claims to have heard her supervisors making racist comments and jokes during the year after September 11.Her complaints to those supervisors allegedly were unavailing and resulted in further harassment and discrimination. For example, plaintiff asserts that her supervisor, for no valid reason, refused to let her attend a special event at the Capitol to which she had been invited. Plaintiff also alleges that after a co-worker snatched plaintiff's documents from a printer and threw them at plaintiff, plaintiff's supervisor screamed at plaintiff and told her to leave the premises. Upon returning to work the next day, she claims, she complained of her treatment and was summarily fired.
Plaintiff filed a Formal Request for Counseling in September 2002 in accordance with the procedures set forth in the CAA, alleging that she had been subject to a hostile work environment and discrimination based on her Middle Eastern and Muslim status. After completing counseling, plaintiff sought mediation which concluded on January 27, 2003. On April 18, 2003, plaintiff filed a complaint with the Office of Compliance. On April 29, 2003, plaintiff filed her complaint here in this case. Plaintiff filed a motion in her agency proceeding on May 9, 2003 to withdraw her administrative complaint filed with the Office of Compliance, which was granted by the hearing officer on May 20, 2003.
Plaintiff amended her complaint filed in this case to allege six counts. Counts I through IV allege discrimination based on race, national origin, religion and gender, respectively, in violation of the CAA, 2 U.S.C. § 1311. Count V raises a hostile work environment claim under § 1302. Count VI claims retaliation for discrimination complaints in violation of § 1302. Defendant has moved to dismiss all counts.
DISCUSSION
Defendant moves to dismiss each count under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Before a court may address the merits of a complaint, it must be assured that it has the authority to exercise jurisdiction over the claims. See Scott v. England, 264 F. Supp. 2d 5, 8 (D.D.C. 2002) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)). The plaintiff bears the burden of establishing that the court has subject matter jurisdiction.Forrester v. United States Parole Comm'n, 310 F. Supp. 2d 162, 167 (D.D.C. 2004); see also McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936) (noting that the plaintiff "must carry throughout the litigation the burden of showing that he is properly in the court"). Because subject matter jurisdiction focuses on the court's authority to hear the claim, a court must "conduct a careful inquiry and make a conclusive determination whether it has subject matter jurisdiction or not," 5A Charles A. Wright Arthur R. Miller, Federal Practice Procedure: Civil 2d ("Wright Miller") § 1350 (1990), by examining the complaint and, "where necessary, . . . [by] consider[ing] the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted). If the defendant facially challenges the basis for subject matter jurisdiction, the plaintiff's factual allegations are assumed to be true, though a defendant's challenge to the jurisdictional facts requires a resolution of those disputed facts. See Wright Miller, § 1350; see also Artis v. Greenspan, 223 F. Supp. 2d 149, 154 (D.D.C. 2002). "It is a firmly established rule that subject matter jurisdiction is tested as of the time of the filing of the complaint." Rosa v. Resolution Trust Corp., 938 F.2d 383, 392 n. 12 (3d Cir. 1991) (citing, among other cases, Rosado v. Wyman, 397 U.S. 397, 402 (1970)).
A defendant may move to dismiss a claim under Rule 12(b)(1) for plaintiff's failure to exhaust her administrative remedies that are a condition precedent to filing suit, Scott, 264 F. Supp. 2d at 9, or when sovereign immunity bars a claim. Wright Miller § 1350. The United States and its agencies enjoy sovereign immunity from suit unless Congress has waived it. Lane v. Pena, 518 U.S. 187, 192 (1996). That waiver must be "unequivocally expressed in statutory text, . . . and will not be implied[.] Moreover, [it] will be strictly construed . . . in favor of the sovereign." Id.
I. COUNTS I THROUGH IV: ELECTION OF PROCEEDINGS
The CAA creates a cause of action for certain covered employees of the legislative branch, including Capitol Guide Service employees, 2 U.S.C. § 1301(3)(C), for discrimination based on "race, color, religion, sex, or national origin. . . ." Id. § 1311(a)(1); see also Harris v. Office of the Architect of the Capitol, 16 F. Supp. 2d 8, 8 (D.D.C. 1998). The CAA provides a three-step process by which an aggrieved employee may seek redress for perceived employment discrimination for which the sovereign immunity of the United States is waived. 2 U.S.C. § 1401. Thus "any claims pursuant to [the dispute-resolution process set forth in the CAA] must adhere to the terms that condition such a waiver." Halcomb v. Office of the Senate Sergeant-at-Arms of the United States Senate, 209 F. Supp. 2d 175, 179 (D.D.C. 2002).
An alleged violation must be vetted through (1) a counseling period with the Office of Compliance, id. § 1402, and (2) mediation, id. § 1403, before a covered employee may (3) elect either a formal complaint and hearing process before the Board of Directors for the Office of Compliance subject to judicial review in the Federal Circuit, or judicial action in a district court of the United States. Id. §§ 1407, 1408; see also Halcomb, 209 F. Supp. 2d at 178 (noting that counseling and mediation are jurisdictional prerequisites to filing suit in federal district court).
In accordance with § 1401, section 1404 of the CAA specifies the procedures for that "[e]lection of proceeding" and states that
Section 1401 provides that "the procedure for consideration of alleged violations of [the CAA] consists of (1) counseling as provided in section 1402 of this title; (2) mediation as provided in section 1403 of this title; and (3) election, as provided in section 1404 of this title, of either (A) a formal complaint and hearing . . . or (B) a civil action in a district court. . . ." 2 U.S.C. § 1401.
Not later than 90 days after a covered employee receives notice of the end of the period of mediation, but no sooner than 30 days after receipt of such notification, such covered employee may either (1) file a complaint with the Office [of Compliance] in accordance with section 1405 of this title, or (2) file a civil action in accordance with section 1408 of this title in the United States district court for the district in which the employee is employed or for the District of Columbia. 2 U.S.C. § 1404; see also Banks v. Office of Senate Sergeant-at-Arms, 222 F.R.D. 7, 12 (D.D.C. 2004) ("Once counseling and mediation have ended, the employee must make an election. He can either file an action in district court or initiate an administrative proceeding. . . ."); Moore v. Capitol Guide Bd., 982 F. Supp. 35, 37 (D.D.C. 1997) ("It is only after completion of mediation that the employee may elect either to file a complaint with the [Office of Compliance] or to file a civil action. . . ."). If a covered employee elects to proceed with a civil action, the "district courts of the United States shall have jurisdiction over any civil action commenced under section 1404 . . . by a covered employee who has completed counseling under section 1402 of this title and mediation under section 1403 of this title. A civil action may be commenced by a covered employee only to seek redress for a violation for which the employee has completed counseling and mediation." 2 U.S.C. § 1408.
Here, the parties contest what effect an election of proceeding through the Office of Compliance has on the jurisdiction of a federal court to entertain an action brought under the CAA. Defendant contends that plaintiff made an election when she filed on April 18, 2003 a complaint with the Office of Compliance, which divested this court of jurisdiction over Counts I through IV filed on April 29, 2003. (Def.'s Stmt. of P. A. in Supp. of its Mot. to Dismiss ("Def.'s Stmt.") at 9.) Plaintiff argues that no provision in the CAA "predicate[s] this court's jurisdiction on the existence or lack of existence of simultaneous jurisdiction with the Office of Compliance[,]" and also states that filing and then withdrawing a complaint in the Office of Compliance is no bar to bringing a civil suit within the time limits set forth in § 1404. (Pl.'s Opp'n to Def.'s Mot. to Dismiss ("Pl.'s Opp'n") at 10, 12.)
It is undisputed that the allegations in Counts I through IV are, in substance, the same as those raised in the complaint filed in the Office of Compliance. In addition, Count V alleges a "hostile environment (for opposing discrimination based on race, national origin, religion and gender)." Plaintiff alleged a hostile environment in her Office of Compliance complaint as well. To the extent that the allegation mirrors Count V, that count will be treated the way Counts I through IV are. (See Def.'s Mem. Ex. 4 ("Office of Compliance Complaint") at 3 (describing hostile comments and "violently demeaning work environment").)
As with any question of statutory interpretation, "[t]he preeminent canon of statutory interpretation requires [a court] `to presume that [the] legislature says in a statute what it means and means in a statute what it says there.'" BedRoc Ltd., LLC v. United States, et al., 124 S. Ct. 1587, 1593 (2004) (quoting Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-254 (1992)). Matters of statutory interpretation therefore "begin with the statutory text, and end there as well if the text is unambiguous." Id. "It is well established that `when the statute's language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms.'" Lamie v. United States Trustee, 124 S. Ct. 1023, 1030 (2004) (citations omitted).
The unambiguous language of section 1408 limits the court's jurisdiction to matters "commenced under section 1404 of [the CAA,]" which in turn permits an employee to "either (1) file a complaint with the Office [of Compliance] . . . or (2) file a civil action. . . ." 2 U.S.C. §§ 1404, 1408 (emphasis added). Although plaintiff argues that nothing in the language of § 1408 renders the administrative or judicial processes mutually exclusive, section 1408 makes clear that jurisdiction lies over actions that conform with the election procedures of section 1404 which, in turn, limits a covered employee to filing either an administrative action or a civil action. "Canons of construction ordinarily suggest that terms connected by a disjunctive be given separate meanings, and a statute written in the disjunctive is generally construed as setting out separate and distinct alternatives." In re Espy, 80 F.3d 501, 505 (D.C. Cir. 1996) (internal quotation marks and citations omitted). The language of the statute plainly requires an employee to make a choice between alternatives, and therefore forecloses the possibility of parallel proceedings in both administrative and adjudicative fora.
The disjunctive interpretation is particularly compelling where, as here, the provision is related to the United States's waiver of sovereign immunity since such waivers must be strictly construed.
The interpretation is consistent with other statutes which set forth alternative fora for dispute resolution as well. For example, the Contracts Dispute Act, 41 U.S.C. § 601 et seq., permits a contractor to appeal a contracting officer's decision to an agency board of contract appeals, id. § 607, or, "in lieu of appealing the decision . . . to an agency board, . . . bring an action directly on the claim to the United States Claims Court." Id. § 609(a)(1). The Contracts Dispute Act uses a different formulation for the alternative choices, replacing a disjunctive "or" with "in lieu of," but is nevertheless interpreted as a binding election-of-forum provision. It "is an `either-or' alternative, and, as such, does not provide a contractor with dual avenues for contesting a contracting officer's adverse decision." Nat'l Neighbors, Inc. v. United States, 839 F.2d 1539, 1542 (Fed. Cir. 1988).
Under the Federal Labor-Management Relations Act, 5 U.S.C. §§ 7101-35, an aggrieved employee may raise a complaint "under a statutory procedure or the negotiated procedure, but not both."Id. § 7121(d). The decision to pursue either avenue is irrevocable. See Vinieratos v. United States, 939 F.2d 762, 768 (9th Cir. 1991). Although this Act makes more explicit that the forum selection choices are mutually exclusive, the common interpretation of the disjunctive "or" makes clear that the language of section 1408 (and 1404) requires a similar result.
Any arguable ambiguity in § 1408 about whether a covered employee must elect only one forum in which to proceed with her claims is clarified by the legislative history of the CAA. See, e.g., BedRoc, 124 S. Ct. at 1598 (noting that legislative history may be "one of the most useful tools of judicial decisionmaking") (Stevens, J. dissenting). Congress expressed that "[a]n individual who has made a timely request for counseling and mediation, has completed those procedures, and has elected not to file a complaint with the Office [of Compliance], may file a complaint in the United States district court. . . ." 141 Cong. Rec. S622, S630 (Jan. 9, 1995) (analyzing § 1408 and "jurisdiction"). By negative implication, where, as here, an individual has filed a complaint with the Office of Compliance, that individual may not file concurrently a complaint in a civil action.
That plaintiff's administrative complaint was withdrawn and dismissed during the pendency of this action does not change the analysis. Subject matter jurisdiction must exist at the time the complaint is filed. Rosa, 938 F.2d at 392 n. 12. When plaintiff filed her complaint here on April 29, 2003, she had already elected to file with the Office of Compliance her discrimination complaint. Plaintiff did not seek to withdraw her agency complaint until May 15, 2003, and it was not dismissed until May 20, 2003. At the outset of this civil action, plaintiff had parallel proceedings pending in both fora, a result neither consistent with the language of §§ 1404 and 1408 nor in accord with Congressional intent. She offers no support for the proposition that she could maintain simultaneous proceedings in both the Office of Compliance and this court. Because the claims in Counts I through IV were first filed with the Office of Compliance, this court lacks jurisdiction over them, and defendant's motion to dismiss those counts will be granted.
Thus, any hostile environment claim in Count V likewise will be dismissed. See note 3, supra.
II. COUNTS V and VI: RETALIATION
Although plaintiff titles Count V as a "hostile work environment claim," she suggests in the substance set forth for that Count that she is putting forth a retaliation claim for opposing putatively discriminatory conduct. (Compl. ¶ 53 ("Defendant retaliated against Plaintiff for opposing discrimination . . . to which she had been and were being subjected. . . .").) Counts V and VI identify 2 U.S.C. §§ 1301 and 1302 as creating the causes of action, but as defendant notes, it is § 1317 which creates a cause of action for retaliation. Defendant argues that both Counts V and VI should be dismissed for asserting, in part, non-existent causes of action under the wrong statutory citations. However, given that plaintiff's allegations are sufficient to put defendant on notice of her retaliation claims, and given the liberal pleading and amendment standards set forth in Rules 8 and 15, the complaint will be construed as alleging a cause of action in Counts V and VI under § 1317. Cf. Harrison v. Rubin, 174 F.3d 249, 253 (D.C. Cir. 1999) (reversing lower court for denying motion to amend a complaint because amendments to "clarify legal theories or make technical corrections" should freely be permitted).
Defendant argues that any retaliation claim must be dismissed because plaintiff failed to engage in counseling and mediation sessions, and thereby failed to exhaust administrative remedies. (Def.'s Mem. at 19-21.) Plaintiff counters that "the facts of the [retaliatory conduct] were included in the counseling and mediation" (Pl.'s Opp'n at 21), and that plaintiff discussed in her counseling session her "complaint of unlawful termination because of her prior complaints." (Pl.'s Opp'n to Def.'s Mot. to Dismiss of Nov. 17, 2003 at 26.) Plaintiff states that she
fully explained [at counseling] her complaints of discrimination and the retaliatory method in which she believed she was terminated. Ms. Theresa James [the Office of Compliance counselor], while in this counseling session, was the person who filled out the Formal Request for Counseling. . . . Although [plaintiff] and Ms. James discussed the timeline of events, including that [plaintiff] had complained about her supervisors and was terminated in response, Ms. James did not check the retaliation box for [plaintiff].
(Id. at 28.) In addition to plaintiff's express indication that she had raised retaliation in her counseling session, plaintiff argues that the retaliation claim is sufficiently "like or related" to the original complaint of discrimination that the court should deem her claim to be exhausted. (Pl.'s Opp'n at 21.)
The exhaustion dispute need not be resolved. Plaintiff's claims for retaliation are barred for the same reason that her discrimination claims must be dismissed as well. By plaintiff's own admission, the retaliation allegations were raised in the counseling and mediation sessions. Plaintiff makes no showing that she intended to bifurcate her discrimination and retaliation claims that had been subject to the single counseling and single mediation sessions by electing in April 2003 to file the discrimination claims through the Office of Compliance and to file a retaliation claim here. Although plaintiff did not check off a box in her counseling, mediation and Office of Compliance complaints that indicated that she was raising a retaliation claim, as plaintiff notes, she did allege those facts and allege those retaliation claims there. Whatever allegations plaintiff proffered during her counseling and mediation sessions — including, as plaintiff admits, the allegations of retaliation — those same allegations were the subject of plaintiff's complaint before the Office of Compliance. As such, for the same reasons that Counts I through IV will be dismissed, plaintiff's retaliation claims will be dismissed for lack of subject matter jurisdiction.
CONCLUSION
Because this civil action raises claims that plaintiff had elected to pursue in an administrative complaint filed with the Office of Compliance before she brought her claims here, her election deprived this court of subject matter jurisdiction over her claims. Thus, defendant's motion to dismiss the complaint will be granted. A final Order accompanies this Memorandum Opinion.