Opinion
04 CV 1899 (JG).
December 17, 2004
EDWIN F. FERNANDEZ, pro se, Staten Island, New York,
ROSLYNN R. MAUSKOPF, United States Attorney, Eastern District of New York, Brooklyn, New York.
By: Steven M. Warshawsky, Assistant United States Attorney, New York, New York, Attorney for Defendant.
MEMORANDUM AND ORDER
Plaintiff Edwin F. Fernandez brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. ¶ 2000e et seq., claiming that he was discriminated against on the basis of race, gender, and national origin. The crux of Fernandez's claim is that employees of the United States Customs Service unlawfully refused to reinstate Fernandez to the position of Canine Enforcement Officer following his recovery from an on-the-job injury that occurred on August 5, 1999. Fernandez alleges that this refusal was discriminatory, and was in part retaliation against him for having previously brought claims alleging discrimination.
The United States Customs Service is now called the United States Bureau of Customs and Border Protection, and is part of the Department for Homeland Security. It will be referred to in this memorandum as the "Customs Service" or "the Agency."
Defendant moves to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion is granted.
BACKGROUND
The following facts are relevant for the purposes of this motion. I assume them to be true, as I must in deciding this motion. See Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995).
These facts are culled from the exhibits attached to Fernandez's complaint and his affidavit in opposition to defendant's motion. I am mindful that Fernandez is representing himself pro se, and have liberally construed his complaint and affidavit. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (explaining that pro se complaints are held to less stringent standards).
1. Pre-Grievance Events
Fernandez, a male of Puerto Rican origin, was injured on August 5, 1999 while working as a Canine Enforcement Officer (CEO) for the Customs Service. Fernandez slipped at the dog kennel, fell down a set of stairs, and injured his neck, shoulder, and back. As a result of Fernandez's injuries, he was unable to continue to work as a CEO for some time. During his recovery, Fernandez was examined by several doctors to ascertain his ability to return to work and his eligibility for workers' compensation. Fernandez maintained an extensive correspondence with the Customs Service regarding the possibility of returning to work.
On July 11, 2000, Fernandez was examined by Dr. Michael Carciente. Carciente concluded that he "saw no contraindications for [Fernandez] to return to work as a canine enforcement officer, from a neurological perspective." On July 18, 2000, Fernandez was examined by Dr. Andrew Weiss, who concluded that Fernandez had fully recovered and was capable of returning to work without restrictions. In a letter dated September 21, 2000, Dr. Igor Stiler stated that Fernandez could return to work, but was subject to certain limitations, including not lifting more than 20 pounds, not standing or sitting in one position for more than 20 minutes, and not squatting on a repeated basis. On September 25, 2000, Fernandez faxed Dr. Stiler's September 21, 2000 letter to the Customs Service as his "return to work notice." On September 27, 2000, Supervisory CEO Mike Fisher called to tell Fernandez that there was no light duty work available in the canine unit, and that Fernandez needed a doctor's letter stating when Fernandez would be able to return to full duty work.
On November 6, 2000, Richard Jacobowitz, the Injury Compensation Coordinator for the Customs Service, requested that Dr. Stiler review the description of the CEO position, and state, among other things, whether and when Fernandez could return to full duty employment. In response, Dr. Stiler wrote on November 28, 2000 that Fernandez had a herniated disc, a permanent injury that would prevent Fernandez from returning to full duty employment.
On November 14, 2000, Kathleen M. Haage, the New York/Newark Area Director for the Customs Service, noting that the Service had yet to receive responses to several inquiries regarding Fernandez's medical condition, stated by letter that Fernandez had three options: (1) to return to his position on a full-time basis, or to light duty work "as stipulated in the local agreement;" (2) to apply for disability retirement; or (3) to resign with an option to apply for disability retirement within one year. By letter dated December 4, 2000, Fernandez explained to Haage that he had not received her November 14, 2000 letter until November 25, 2000 (the November 14, 2000 letter had requested a response within 15 days), and he enclosed (1) an October 19, 2000 note from Dr. Stiler stating that Fernandez could resume work with several restrictions; and (2) Haage's November 14, 2000 letter, indicating in the space provided that he would return to work on December 6, 2000, and was requesting a light duty assignment. Fernandez received no response from Haage to his letter.
In March, April, and May 2001, Fernandez wrote to Haage, enclosing letters from several doctors stating that Fernandez could resume full duty work. For example, on May 4, 2001, Fernandez wrote to Haage, enclosing a letter dated April 25, 2001 from Dr. Andrew Feldman, the Director of Sports Medicine at Saint Vincent's Hospital, which stated that Fernandez was able to return to full duty work, with no restrictions. In this May 4, 2001 letter to Haage, Fernandez stated that he had been "persecuted discriminated and retaliated because of previous EEO cases filed against one of your canine officer supervisor[s]."
On April 20, 2001, Fernandez received a letter from the Employment Standards Administration Office of Workers' Compensation Programs, explaining that because of a conflict in medical opinion between Drs. Stiler and Carciente regarding Fernandez's diagnosis, an appointment had been made for Fernandez to see Dr. Sanford Wert on April 30, 2001. Fernandez was subsequently examined by Wert on that date. Fernandez was told both by a representative of the National Treasury Employee Union (NTEU) and by the Customs Service that he would be reinstated as a CEO if Dr. Wert stated that he could perform such work. Dr. Wert, apparently assuming that Fernandez was working as a CEO, concluded that (1) Fernandez is "working in his pre-accident occupation in a normal capacity and may continue to do so;" (2) Fernandez has no objective evidence of any "frank disability;" and (3) because of a disc herniation, Fernandez "may experience mild intermittent episodes of discomfort in the lumbar spine."
After receiving Dr. Wert's report, Fernandez reported to work on July 18, 2001. Upon arriving at work, he was told by Acting Assistant Edwin Hotchkiss that he had been terminated, though Fernandez had never received any notification to that effect. On that same day, Fernandez wrote to Haage, asking when he could return to his position.
In an August 17, 2001 letter to Fernandez, Haage directed Fernandez to report to work at 6 World Trade Center as a Customs Entry Program Specialist, a unique position that only reached the GS-09 journeyman level. Haage wrote: "The U.S. Customs Service is making this job offer in good faith. The Agency is not obligated to return you to your date-of-injury position. The reason that our obligation ceases is the fact that your recovery time exceeded one year."
2. Grievance Proceedings and Subsequent Events
On September 7, 2001, Larry Tanacredi, the President of the NTEU Chapter 161, wrote to Haage requesting a formal dispute resolution meeting to ascertain why Fernandez was not reinstated in his former position as a CEO.
On October 24, 2001, Fernandez was advised that the filing of the NTEU grievance precluded Fernandez from utilizing the "the EEO process." Fernandez was advised that if he was dissatisfied with the result of the grievance proceedings, he could appeal to the "EEO counselor" within 45 days of completion of the grievance process.
On October 31, 2001, Fernandez filed an informal complaint with the Department of the Treasury Equal Opportunity Program. He filed a formal complaint on November 15, 2001. By letter dated December 13, 2001, the formal complaint was dismissed pursuant to EEOC regulations as set forth in 29 CFR § 1614.107(a)(4): because the matter had been raised in a negotiated grievance procedure that permitted allegations of discrimination, Fernandez was precluded from bringing a proceeding regarding the same matter under the EEOC's statutory provisions. The dismissal notification letter stated that Fernandez could appeal the final decision of the grievance proceedings to the EEOC, and could also appeal the decision dismissing the complaint.
On November 26, 2001, Tanacredi again wrote to Haage requesting a dispute resolution meeting. The letter recognized the unavoidable delays caused by the events of September 11, 2001, including the fact that Fernandez had been assigned to work at 6 World Trade Center. Arbitration in Fernandez's case was invoked on August 22, 2002. On January 26, 2003, Fernandez appointed Ralph Talarico, Assistant Counsel of the National Treasury Employees Union, to be his designated representative for the arbitration proceedings. At some point between this date and December 11, 2003, the Agency offered Fernandez a settlement whereby he would be reinstated as a CEO at Kennedy Airport (if he met the physical requirements), would retain his prior seniority and grade, and would be eligible for a promotion to the GS-11 grade level. The settlement offer was provide to Hernandez in December 2003 at Talarico's office. Fernandez told Talarico that the settlement agreement was "just another trap door to termination by the agency."
On December 11, 2003, Talarico wrote to Fernandez, enclosing the settlement agreement, and explaining, among other things, that the union had determined the settlement to be more than sufficient, and that it provided more relief than would have been available through arbitration. The letter stated that Talarico had previously told Fernandez of the importance of executing the deal in a timely fashion so that Fernandez would be eligible for the next CEO training class that was scheduled to commence in January, 2004. Talarico apparently sent follow up letters on December 20, 2003, and February 3, 2004. All the letters apparently explained that should Fernandez not respond, the NTEU would withdraw Fernandez's pending arbitration.
Fernandez alleges that he was contacted approximately twelve times by Talarico, who yelled and threatened him regarding signing the agreement. On February 2, 2004, Fernandez met with Peter Appel, the NTEU Vice-President at JFK airport, who, after Fernandez refused to sign the agreement, tore it into pieces.
Fernandez alleges that he asked Talarico for a copy of the settlement agreement so he could obtain legal advice from another attorney. Fernandez further alleges that Talarico refused to give him a copy, and told Fernandez that if he did not sign the agreement Talarico would tear the agreement up. I note, however, that Fernandez has attached a letter from Talarico, which states that Talarico was enclosing a copy of the settlement agreement. Ex. 30(a)-(b). Further, Fernandez has attached a copy of the settlement agreement. Ex. 30 (f)-(h). In any event, Fernandez's allegations regarding the conduct of Talarico or Appel, who are not parties to this action, have no bearing on the disposition of this motion.
By letter dated March 8, 2004, Talarico informed Fernandez that his arbitration was being withdrawn because of his failure to contact the NTEU office, and because the settlement offer provided more relief than Fernandez could have obtained through arbitration. On March 24, 2004, Talarico informed the Agency that he had presented the Agency's settlement to Fernandez, that the offer had been refused, and that the union was withdrawing the arbitration.
At some point after February 2004, Fernandez contacted the EEOC, and was advised that he could not file a complaint with the EEOC because his earlier EEOC complaint, filed on November 15, 2001, was dismissed "because [Fernandez] was engaged in a negotiated grievance procedure." Pl.'s Aff. in Opp. to Mot. to Dismiss, at 14.
On May 5, 2004, this action was commenced under Title VII. In his form complaint, Fernandez alleged that discrimination had been ongoing since 1987. Fernandez checked off the following types of discriminatory conduct: termination of employment, unequal terms and conditions of employment, and retaliation. In addition, Fernandez added, under the heading "other acts:" "harassment-non sexual," hostile work environment, and disparate treatment. Fernandez attached voluminous correspondence to his complaint, and also alleged the following specific facts to support his claim of discrimination:
1. Violation of UNION and AGENCY AGREEMENT of my reinstatement to original Canine Officer position upon Dr. Sanford R. Wert's Medical Certification decision. My Canine position was terminated after the doctor's Medical Certification decision was obtained.
2. Possession of documentation where Agency admits to derogatory/slanderous remarks to fellow employees. See
3. EEOC # 99-3089R.
4. EEOC findings of Harassment-Non-Sexual and a Hostile Work Environment.
5. I was reassigned to be used as a pawn to punish another supervisor.
6. Union refused to negotiate their proposed settlement agreement.
Compl. at 4.
DISCUSSION
A. The Standard for a Motion to Dismiss Under Rule 12(b)(6)
Dismissal under Rule 12(b)(6) may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (quotation marks omitted). A federal court's task in determining the sufficiency of a complaint is "necessarily a limited one." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The appropriate inquiry is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Id.; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) ("a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding. Moreover, claims lacking merit may be dealt with through summary judgment under Rule 56.") (quotation marks omitted).
B. Fernandez's claims
1. The Failure to Reinstate
The Agency argues that Fernandez is precluded from bringing a claim under Title VII alleging discriminatory conduct related to the refusal of the Agency to reinstate him to his former position. Because I agree that Fernandez is so precluded, I do not reach the merits of his claim.
A federal employee who is covered by a collective bargaining agreement that permits claims of discrimination to be raised in the grievance process has a choice when bringing such a claim: he can either raise the claim pursuant to the union's negotiated grievance procedure, or he may follow the Agency's statutory procedure. See 5 U.S.C. § 7121(d); 29 C.F.R. § 1614.301(a). The employee may not, however, do both. Id.; cf. Wright v. Snow, No. 02 Civ. 7615 (TPG), 2004 WL 1907687, at *4 (S.D.N.Y. August 25, 2004) (explaining that this election procedure is a "special" rule governing claims of discrimination brought by federal employees who are covered by collective bargaining agreements). Whichever route an employee chooses, he must exhaust that administrative remedy before pursuing his claim in federal court. O'Dwyer v. Snow, No. 00CIV8918(LTS)FM, 2004 WL 444554, at *7 (S.D.N.Y. March 10, 2004).
29 C.F.R. § 1614.301(a) reads, in pertinent part: "When a person is employed subject to 5 U.S.C. 7121(d) and is covered by a collective bargaining agreement that permits allegations of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or a grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both.
"An election to proceed under a negotiated grievance procedure is indicated by the filing of a timely written grievance," 29 C.F.R. 1614.301(a), whereas the election to proceed under the statutory scheme is indicated by the filing of a written complaint. Id. The initial choice between the statutory scheme or the negotiated grievance process is an irrevocable one. See O'Dwyer, 2004 WL 444534, at *8 (explaining that a written grievance, filed before an EEOC complaint, constituted an irrevocable election by the employee to pursue her claim through the union procedures) ( citing Vinieratos v. United States, 939 F.2d 762, 768 (9th Cir. 1991)). Thus, the option an employee chooses is the one he first initiates. See 5 U.S.C. § 7121(d). Moreover, the election occurs "irrespective of whether the agency has informed the individual of the need to elect." 29 C.F.R. § 1614.301(a).
U.S.C. § 7121(d), reads, in part, "[a]n employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first."
An employee who opts for the negotiation process must exhaust the grievance procedure before bringing an action in this Court. O'Dwyer, 2004 WL 444534, at *8. If an employee files a claim with the EEOC prior to exhausting the grievance procedure, that claim shall be dismissed. See 29 C.F.R. § 1614.301(a) (any complaint filed with the EEOC on the same matter "shall be dismissed without prejudice to the complainant's right to proceed through the negotiated grievance procedure including the right to appeal to the Commission from a final decision. . . . The dismissal of such a complaint shall advise the complainant of the obligation to raise discrimination in the grievance process and of the right to appeal the final grievance decision to the Commission."); 29 C.F.R. § 1614.107(a)(4) ("Prior to a request for a hearing in [an employment discrimination] case, the agency shall dismiss an entire complaint . . . [w]here the complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination.").
Here, it is undisputed that Fernandez's initial election was to pursue his claim of discrimination through a negotiated grievance process. On September 7, 2001, the NTEU submitted a written grievance on Fernandez's behalf to Area Director Haage, requesting a formal dispute resolution meeting to address the reasons why Fernandez was not reinstated in his former position as CEO. See Ex. 25, Letter dated September 7, 2001 from Larry Tanacredi to Kathleen Haage; Ex. 29(a), Letter dated December 13, 2001 from Dorian M. Morley, director of Department of Treasury Complaint Center, to Fernandez. It is also undisputed that Fernandez was covered by a collective bargaining agreement that permitted allegations of discrimination to be raised in a negotiated grievance procedure.
According to an EEO Counseling Report submitted by Fernandez with his complaint: "On October 24, 2001, [Fernandez] was advised that filing of NTEU grievance indicates that he has elected to pursue this matter via non-EEO process. The same issue cannot be pursued through the EEO process at this time. [Fernandez] was advised that he could contact an EEO counselor within 45 days of completion of grievance process (final action)." Ex. 26(f). Fernandez nevertheless filed a formal EEOC complaint on November 15, 2001. On December 13, 2001, Fernandez was informed by letter from the Department of Treasury that his complaint was dismissed: "In accordance with the [EEOC] regulations at 29 CFR § 1614.107(a)(4), I am dismissing the complaint of discrimination filed on November 15, 2001 because the matter was raised in a negotiated grievance procedure that permits allegations of discrimination." See Ex. 29. The letter set forth the regulations discussed above, and explained that because "the filing of the written grievance predates the formal complaint, any allegations of discrimination must be raised in the grievance process. The final decision on the grievance may be appealed to the EEOC." Id.
Fernandez continued to pursue relief through the negotiated grievance procedure for over a year. On March 8, 2003, Fernandez was notified that the union was withdrawing his application. Fernandez has not disputed the Agency's assertion that he did not file an appeal with the Agency in connection with this withdrawal. Decl. of Tara A. Barry in Supp. of Def.'s Mot. to Dismiss ¶ 5. Likewise, Fernandez has not disputed the fact that after the dismissal of his EEOC complaint in December 2001, Fernandez filed no appeals with the EEOC. See id. ¶ 6 (declarant "confirmed with the [EEOC] that following Agency's decision to dismiss Plaintiff's formal EEO complaint in December 2001, Plaintiff did not file any appeals with the EEOC.").
Having chosen to follow the negotiated grievance procedure, Fernandez was responsible for exhausting it before bringing a claim in this court. Fernandez did not do so. Although apparently unhappy with the settlement offer and the unwillingness of the union to negotiate further on his behalf, Fernandez did not appeal the result of the grievance process to the EEOC. Accordingly, he is precluded from bringing such a claim in this court. See Johnson v. Peterson, 996 F.2d 397, 400-401 (D.C. Cir. 1993) (after pursuing the negotiated grievance procedure, the failure to appeal the arbitrator's award to the EEOC precluded employee from bringing suit in district court; claim properly dismissed for failure to exhaust administrative remedies); O'Dwyer, 2004 WL 444534, at *8 (having failed to exhaust grievance procedure, plaintiff barred from pursuing claims in district court).
Fernandez contends that equitable doctrines warrant that his claim not be dismissed, even if he has failed to exhaust administrative requirements. See Pl's Aff. at 15 (noting that the Supreme Court has held that the limitations under Title VII, do not affect the Court[`s] subject matter jurisdiction so they are subject to waiver."); see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (explaining that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that . . . is subject to waiver, estoppel, and equitable tolling."). Although, as noted, equitable principles can in some circumstances excuse an untimely EEOC filing, the Supreme Court has made it clear that "[p]rocedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants." Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (while courts may evaluate whether it would be proper to apply equitable doctrines, they must be applied "sparingly."); Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) ("equitable tolling is only appropriate in rare and exceptional circumstances, in which a party is prevented in some extraordinary way from exercising his rights." (quotation marks and alterations omitted).
In determining whether equitable tolling is appropriate, I must consider whether Fernandez "(1) has acted with reasonable diligence during the time period [he] seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply." Id. at 80-81 (quotation marks omitted). Fernandez has not shown, however, that he acted with reasonable diligence, nor that there are extraordinary circumstances at play.
Fernandez apparently believes that he was discriminated against in the grievance process, that the settlement offer was a "trap door," and that the union was not acting as a good faith negotiator on his behalf. Fernandez was told, however, on October 24, 2001, that the filing of the NTEU grievance indicated that he elected to pursue the matter through the non-EEO process, and that he could contact an EEO counselor within 45 days of completion of the grievance process Ex. 26(f). Additionally, after filing his EEOC complaint, Fernandez was informed that though his complaint was being dismissed because of his election, the final decision on the grievance may be appealed to the EEOC." Id. See Ex. 29(a). Thus, Fernandez had clear notice of the procedures which he must follow, and he has not established any "extraordinary circumstances" that prevented him from following them. Likewise, Fernandez has not identified any factor that would warrant waiver of the exhaustion requirement. Accordingly, I decline to apply these equitable doctrines to this case.
2. Other Claims of Discrimination
As discussed above, Fernandez is barred from bringing a claim in this court regarding the Agency's failure to reinstate him to his CEO position because he first decided to pursue relief through the NTEU's negotiated grievance procedure and failed to exhaust that procedure. This bar is quite broad. Under 5 U.S.C. § 7121(d), an aggrieved employee "may raise the matter under a statutory procedure or the negotiated procedure, but not both." (emphasis added); see also 29 C.F.R. § 1614.301(a). The word "matter" in this context "refers to the conduct underlying the claim, as opposed to the legal allegations in the claim." Wright, 2004 WL 1907687, at *5 (emphasis in original). In his complaint and affidavit, Fernandez suggests that he is raising other claims of discrimination besides claims grounded in the Agency's refusal to reinstate him to his former position as a CEO. Specifically, Fernandez has stated that there was a finding by the EEOC of "Harassment-Non-Sexual" and a Hostile Work Environment; that Fernandez has possession of "documentation where Agency admits to derogatory/slanderous remarks to fellow employees;" that Fernandez was "reassigned to be used as a pawn to punish another supervisor;" and that the union refused to negotiate the settlement agreement." Fernandez also states that he "has been discriminated against since 1987 on the basis of race, sex, and national origin." Pl.'s Aff. in Opp'n at 2.
It is abundantly clear, however, from the extensive documentation that Fernandez has provided with his complaint, that the allegedly discriminatory conduct at issue here is the failure to reinstate. For example, the October 31, 2001 EEO counseling report states that "the basis of complainant is retaliation for previous participation in the EEO process. The issue is reassignment." Ex. 26(e) (emphasis added). All of the almost 100 pages of exhibits attached to the complaint refer solely to this issue of Fernandez's reinstatement. Fernandez suggests that a statement he made in his May 4, 2001 letter to Haage supports his assertion that discriminatory conduct other than the failure to reinstate is at issue. In that letter, Fernandez wrote, "I have been persecuted discriminated and retaliated [sic] because of previous EEO cases filed against one of your canine officer supervisor." Ex. 15(c). The subject of this letter, however, was Fernandez's request for reinstatement; the claim of retaliation one that was within the scope of the negotiated grievance process.
To the extent that Fernandez is alleging in this case discriminatory conduct that may fall outside of the broad scope surrounding the Agency's failure to reinstate him to his former position, any such claim is dismissed for failure to state a claim upon which relief can be granted. Fernandez has failed to exhaust administrative remedies, such as filing a formal complaint with the EEOC, to address any such conduct, and equitable doctrines that could waive the exhaustion requirement do not apply here.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss this case in its entirety is granted.So Ordered.