Opinion
CIVIL ACTION FILE NO. 1:07-CV-1881-RWS-JFK
01-24-2008
ROWLAND HARLEY, Plaintiff, v. ELAINE CHAO, Secretary of Labor, United States Department of Labor, Defendant.
FINAL REPORT AND RECOMMENDATION
Plaintiff Rowland Harley filed the above-styled employment discrimination action, as amended, against Defendant Elaine Chao, Secretary of Labor, on September 5, 2007. [Doc. 16]. Plaintiff alleges that Defendant subjected him to discrimination based on race and sex, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e, et seq. [Id.]. Plaintiff, in addition to other relief sought, contends that he is entitled to the full amount of attorney's fees, $56,524.23, requested but not awarded for representation during the administrative proceedings. [Id.]. Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendant has moved for summary judgment [Doc. 22] on Plaintiff's claims based upon the pleadings, statement of material facts, exhibits, and discovery materials submitted by the parties.
Defendant brought the motion in the alternative, that is, seeking dismissal pursuant to Fed. R. Civ. P. 12(b) for failure to state a claim or as a motion for summary judgment. [Doc. 22]. Because the parties rely on materials in addition to the pleadings in moving for and opposing Defendant's motion, which the court will consider, the court is required to treat the motion as one for summary judgment. See Fed. R. Civ. P. 12(b); Property Management & Investments, Inc. v. Lewis, 752 F.2d 599, 604 (11th Cir. 1985) ("once the court decides to accept matters outside the pleading, it must convert the motion to dismiss into one for summary judgment").
1. Facts
When evaluating the merits of a motion for summary judgment, the court must view the evidence and factual inferences in a light most favorable to the non-moving party. See Rollins v. TechSouth. Inc., 833 F.2d 1525, 1528 (11th Cir. 1987). However, unsupported self-serving statements by the party opposing summary judgment are insufficient to avoid summary judgment. See Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 714 (11th Cir. 1984). Therefore, the evidence presented by the parties having been evaluated in accordance with the foregoing principles, the following facts are deemed to be true for the limited purpose of evaluating Defendant's motion [Doc. 22] for summary judgment.
Unless otherwise indicated, the court draws the undisputed facts from Defendant's "Statement of Material Facts as to Which There is no Genuine Issue to be Tried." (Cited to as: Defendant's SMF). The court accepts as admitted those facts in Defendant's statement that Plaintiff has not "specifically controverted" with citation to relevant portions of the record. L.R. 56.1B.(2), N.D. Ga. Plaintiff has denied or disputed several of Defendants' factual statements by contending that the facts are not material. As will be evidenced in the discussion of Plaintiff's claims, the facts cited by Defendant are material and, for the most part, dispositive of Plaintiff's claims. Those denials by Plaintiff based on misspellings or other typographical errors in Defendant's statements, but which are not otherwise explained or supported - either in Plaintiff's statement of facts or response brief - with citation to the record will not be considered by the court.
Plaintiff Rowland Harley is a black male, who, at the time of the events giving rise to the Amended Complaint herein, was an applicant for employment as a Wage and Hour Compliance Specialist in Defendant's Wage and Hour Division. [Defendant's SMF ¶ 1]. Plaintiff submitted an application for the May 1998 position announcement, AT-98-130, which sought a Wage and Hour Compliance Specialist at grade level GS-05, -07, or -09, for the Wage Hour District Office in Charlotte, North Carolina. [Defendant's SMF ¶ 2]. Plaintiff was not selected for the position, which was filled by Ellen Bishop, a white female. [Defendant's SMF ¶ 3]. Ms. Bishop was selected on October 9, 1998. [Defendant's SMF ¶ 4].
However, on September 24, 2001, Plaintiff was hired by Defendant as a Wage and Hour Compliance Specialist in the Wilmington, North Carolina, Wage Hour Field Office, a part of the Raleigh, North Carolina, District Office, as a GS-05. [Defendant's SMF ¶ 3 n.2].
After his non-selection for this position, Plaintiff filed a complaint alleging discrimination based on race and sex with Defendant's Office of Civil Rights ("OCR"). [Defendant's SMF ¶ 5]. Following an investigation by OCR, Plaintiff requested and received a hearing before an Administrative Judge of the Equal Employment Opportunity Commission ("EEOC"). [Defendant's SMF ¶ 6; Doc. 22, Ex. 2 at 1]. The hearing was held on November 19, 2002, before Administrative Judge Wendell Sims in Charlotte, North Carolina. [Defendant's SMF ¶ 7]. At the conclusion of the hearing, Judge Sims entered preliminary findings that Defendant had discriminated against Plaintiff based on race but not on the basis of sex. [Defendant's SMF ¶ 8]. As a part of the proceedings, Plaintiff submitted an application for attorney's fees in the amount of $56,524.23, which included the affidavit of his attorney, Eric Michaux, supporting the fee application and an itemized statement. [Defendant's SMF ¶¶ 9-10]. On January 13, 2003, Judge Sims entered a written opinion confirming his previous oral findings and, along with other relief, awarding attorney's fees to Plaintiff in the amount of $17,185.00. [Defendant's SMF ¶ 11; Doc. 22, Ex. 2].
There is a discrepancy between the affidavit which states the reasonable hourly rates as $175/hour for Mr. Michaux and $120/hour for his associates and the itemized statement which sets Mr. Michaux's rate at $185/hour and the associates' rate at $140/hour. [Defendant's SMF ¶¶ 9-10].
On February 28, 2003, Defendant's Director of OCR declined to follow Judge Sims' decision and appealed to the EEOC's Office of Federal Operations ("OFO"). [Defendant's SMF ¶ 12]. Plaintiff cross-appealed challenging solely the amount of attorney's fees awarded by Judge Sims. [Defendant's SMF ¶ 13]. Plaintiff did not challenge the finding that no sex discrimination occurred, stating " . . . [c]omplainant excepts and therefore appeals from that portion of the decision awarding him attorney's fees in the amount of $17,185.00. . . ." [Defendant's SMF ¶ 14]. In Plaintiff's statement of opposition to the Agency's appeal and in support of his partial appeal, Plaintiff concluded his brief as follows:
For the reasons set [sic] above, the AJ's decision on all matters but the attorney fee question is both based on substantial evidence and free from legal error. For that reason, the Bench Decision should be affirmed. The attorney fee portion of the Bench Decision is fatally flawed, however, in that it improperly reduced the amount requested by Mr. Harley and, in so doing, presented no reasons whatever for taking that step. . . .[Doc. 22, Ex. 10 at 33]. The OFO designated this challenge to the Judge Sims' ruling as Appeal No. 07A30077. [Defendant's SMF ¶ 15].
On September 30, 2003, the OFO affirmed Judge Sims' decision and denied the appeals of both Plaintiff and Defendant, finding specifically that the decision to award attorney's fees of $17,185.00 was supported by substantial evidence. [Defendant's SMF ¶ 16]. Plaintiff and Defendant moved for reconsideration of the OFO decision. [Defendant's SMF ¶ 17]. On January 22, 2004, the OFO denied both motions for reconsideration in Appeal No. 07A30077. [Defendant's SMF ¶ 18]. After advising Plaintiff that "[t]his decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision[,]" Plaintiff was instructed that he had "the right to file a civil action in an appropriate United States District Court within ninety (90) days from date that you receive this decision." Plaintiff was further advised, "Failure to do so may result in the dismissal of your case in court." [Defendant's SMF ¶ 20; Doc. 22, Ex. 5]. In accordance with the relief granted by the OFO, Plaintiff was promoted to GS-12, step 2; was permitted to relocate from Wilmington, North Carolina, to Charlotte, North Carolina; was offered and accepted back pay of $139,783.11, along with accrued annual and sick leave; was offered and accepted compensatory damages of $5,000.00; was offered and received professional costs of $2,387.73; and was offered and accepted attorney's fees of $17,185.00. [Defendant's SMF ¶ 21].
In the final agency decision denying the requests for reconsideration entered on January 22, 2004, Plaintiff was directed to submit his request for attorney's fees related to the administrative appeal directly to Defendant. [Defendant's SMF ¶ 19]. On March 2, 2004, Defendant received an application from Defendant's attorney, Mr. Michaux, for attorney's fees for handling Plaintiff's administrative appeal in the amount of $8,608.14. [Defendant's SMF ¶ 22]. On May 19, 2004, Defendant's OCR awarded attorney's fees to Plaintiff in the amount of $4,434.95 and advised Plaintiff that he had thirty days to appeal the decision concerning the amount of fees for the administrative appeal. [Defendant's SMF ¶ 24]. On July 17, 2004, Plaintiff filed an appeal with the EEOC; however, the due date for any appeal concerning the fee award for Plaintiff's administrative appeal was June 23, 2004. [Doc. 22, Ex. 9 at 2 n.1]. For that reason, Appeal No. 01A45076, was dismissed as untimely on February 9, 2006. [Doc. 22, Ex. 9 at 1]. On May 23, 2006, Plaintiff requested reconsideration of the dismissed appeal. [Id.]. On June 9, 2006, finding that the request for reconsideration was untimely, the Commission dismissed Plaintiff's request and issued the final decision in Appeal No. 01A45076, advised Plaintiff there was no further right of administrative appeal, and advised Plaintiff that he had "the right to file a civil action in an appropriate United States District Court within ninety (90) days from date that you receive this decision." Plaintiff was further advised, "Failure to do so may result in the dismissal of your case in court." [Defendant's SMF ¶ 26; Doc. 22, Ex. 9 at 1-2].
On September 12, 2006, Plaintiff filed a complaint in the United States District Court for the Middle District of North Carolina alleging that the EEOC Administrative Judge's award of $17,185.00 in attorney's fees, in lieu of the $56,524.23 requested for representation during the initial administrative process, was in error. Plaintiff's complaint sought as relief the full amount of those attorney's fees. [Defendant's SMF ¶ 27; Doc. 1]. In support of the claim for relief, Plaintiff recounted the history of the administrative process. However, Plaintiff failed to include the facts (following the parties' request for reconsideration of the EEOC's September 30, 2003, order [Doc. 1, ¶¶ 10-11]), that on January 22, 2004, the final agency decision issued enforcing the decision finding that Plaintiff was discriminated against based on his race and awarding him, along with other relief, attorney's fees in the amount of $17,185.00, and advising Plaintiff that he had ninety days to file a civil complaint in federal court. [Doc. 1, ¶¶ 5-12]. Plaintiff also failed to include facts detailing the administrative process concerning the separate fee request for handling the administrative appeal resulting in the second final agency decision issued on June 9, 2006. [Id.]. Omitting these facts, Plaintiff relied on the June 9, 2006, notice of right to file a civil action for his allegation that he was entitled "to file a civil action with respect to the award of attorney fees in the amount of $17,185.00 within ninety days of June 9, 2006." [Doc. 1,¶ 13].
Defendant moved to dismiss the complaint arguing that: (1) Plaintiff could not seek increased relief without placing the EEOC's discrimination findings in issue; and (2) venue was improperly laid in the Middle District of North Carolina. [Defendant's SMF ¶ 28]. On January 8, 2007, Plaintiff sought leave of court to file an amended complaint. [Defendant's SMF ¶ 29]. On August 7, 2007, the District Court in the Middle District of North Carolina issued an order denying Defendant's motion to dismiss, however, granting the motion for change of venue and transferring the case to this court. The District Court also granted Plaintiff's motion to amend the complaint. [Defendant's SMF ¶ 30; Doc. 13; Harley v. Chao, 503 F. Supp. 2d 763 (M.D.N.C. 2007)]. In reaching its decision, the District Court's recitation of facts was taken from the facts asserted in Plaintiff's complaint, which were accepted as true. Harley, 503 F. Supp. 2d at 765-66. Accordingly, the District Court (as had Defendant) assumed that Plaintiff's complaint was timely filed based on the June 9, 2006, right to sue notice. Id. at 766-67. Agreeing that Plaintiff could not seek partial relief in lieu of a de novo review all the claims presented during the administrative process, the District Court nevertheless declined to dismiss the complaint finding that Plaintiff could file an amended complaint bringing in the discrimination claims because those claims related to the pending and timely filed claim for additional attorney's fees. Id. at 769-772.
Further citations to the District Court decision will be to the F.Supp.2d cite.
On September 5, 2007, in this District, Plaintiff filed an amended complaint alleging that he had been the victim of race and sex discrimination in the 1998 selection for the position of Wage and Hour Specialist. Plaintiff requested relief, including awarding Plaintiff a GS-05 position retroactive to 1998, back pay and any additional benefits due him, including attorney's fees in the amount of $56,534.23 for the EEOC proceeding. [Defendant's SMF ¶ 31; Doc. 16]. Plaintiff again set forth the administrative procedural history and again failed to include the facts (following the parties' request for reconsideration of the EEOC's September 30, 2003, order [Doc. 16, ¶¶ 17-18]), that on January 22, 2004, the final agency decision issued enforcing the decision finding that Plaintiff was discriminated against based on his race, awarding him, along with other relief, attorney's fees in the amount of $17,185.00, and advising him that he had ninety days to file a civil complaint in federal court. [Doc. 16, ¶¶ 13- 19]. Plaintiff also failed to include facts detailing the administrative process concerning the separate fee request for handling the administrative appeal resulting in the second final agency decision issued on June 9, 2006. [Id.]. Omitting these facts and stating that he received this notice on June 14, 2006, Plaintiff relied on the June 9, 2006, notice of right to file a civil action for his allegation that he was entitled "to file a civil action within ninety days of June 14, 2006." [Id., ¶¶ 19-20].
Plaintiff alleged in the amended complaint that: "The failure of the final EEOC disposition on appeal to find a wrongful act of sex discrimination against Mr. Harley was wrongful and erroneous." [Doc. 16, ¶ 29].
Plaintiff has already received all the relief requested in the complaint with the exception of $39,339.23 in attorney's fees, the difference between the $56,534.23 sought by Plaintiff and the $17,185.00 awarded during the administrative process. [Defendant's SMF ¶ 32].
Additional facts will be set forth as necessary in the discussion of Plaintiff's claims.
II. Summary Judgment Standard
The court should grant a motion for summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. The movant carries his burden by showing the court that there is "an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325,106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). "Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The nonmovant is then required "to go beyond the pleadings" and present competent evidence in the form of affidavits, depositions, admissions and the like, designating "specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S. Ct. at 2553. Generally, "[t]he mere existence of a scintilla of evidence" supporting the nonmovant's case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). Resolving all doubts in favor of the nonmoving party, the court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id.
While the evidence and factual inferences are to be viewed in a light most favorable to the non-moving party, see Rollins, 833 F.2d at 1529; Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir. 1987), the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The non-moving party must come forward with specific facts showing there is a genuine issue for trial. See id. at 587. An issue is not genuine if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2511; accord Young v. General Foods Corp., 840 F.2d 825, 828 (11th Cir. 1988). Similarly, substantive law will identify which facts are material. See Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. Thus, to survive a motion for summary judgment, the non-moving party must come forward with specific evidence of every element essential to its case, so as to create a genuine issue for trial. See Celotex, 477 U.S. at 323, 106 S. Ct. at 2553; Rollins, 833 F.2d at 1528.
III. Discussion
Defendant seeks summary judgment on the grounds that the claims asserted in Plaintiff's complaint, for relief based on alleged race and sex discrimination and for award of the full attorney's fee for the initial administrative hearing, are not timely because the complaint was not filed within ninety days of receipt of the January 22, 2004, final agency decision and right to sue notice. [Doc. 22 at 8]. Defendant also contends that summary judgment should be granted because Plaintiff cannot seek partial relief, that is, only the attorney fees not awarded below, and because Plaintiff cannot seek de novo review of all of his claims as he has accepted and not relinquished the relief awarded during the administrative process. [Id. at 11]. Plaintiff has responded opposing the motion for summary judgment, first asserting that based on the law-of-the-case doctrine and judicial estoppel principles, Defendant cannot bring the instant challenge to the amended complaint. [Doc. 23 at 6, 10]. Plaintiff then asserts, ignoring the fact of and not addressing the January 22, 2004, final agency decision and right to sue notice, that the initial complaint filed on September 12, 2006, was timely and that the relation back doctrine allows for the assertion of the additional claims in the amended complaint. [Doc. 23 at 14]. Finally, Plaintiff argues that acceptance of the relief awarded during the administrative process does not foreclose bringing the claims in federal court. [Doc. 23 at 17].
In Plaintiff's response brief, counsel again misstate the administrative record in recounting the procedural history of the case. [Doc. 23 at 2-4]. The court reminds counsel of their obligation as officers of the court to fully and fairly state the record, even if harmful to their client's position, and to represent as facts only those statements borne out by the record. Counsels' statements, especially at page 4 of the response brief, are not borne out by the record facts and, frankly, constitute a blatant misstatement of the record before this court. [Doc. 23 at 4].
a. Law-of-the-Case Doctrine
Plaintiff contends that the Middle District of North Carolina court decision denying Defendant's motion to dismiss the original complaint and allowing Plaintiff to file an amended complaint constitutes the law of this case which should not be reconsidered by this court. [Doc. 23 at 6]. Defendant opposes application of the doctrine. [Doc. 29 at 11]. The court finds that the law-of-the-case doctrine is not applicable to the circumstances presented by this litigation.
"The law-of-the-case doctrine holds that subsequent courts will be 'bound by the findings of fact and conclusions of law made by the court of appeals in a prior appeal of the same case.'" Culpepper v. Irwin Mortgage Corp., 491 F.2d 1260, 1271 (11th Cir. 2007) (citation omitted). "The purpose of the doctrine is to bring an end to litigation, and to protect against the agitation, or re-litigation, of settled issues." Id. "It is clear, however, that 'a court's previous rulings may be reconsidered as long as the case remains within the jurisdiction of the district court.' . . . Consequently, 'law of the case applies only where there has been a final judgment.'" Vintilla v. United States, 931 F.2d 1444, 1445 (11th Cir. 1991) (citation omitted). And, while "the doctrine bars reconsideration of settled issues, . . . [the Court of Appeals has] stated that the law-of-the-case rule is not an inexorable command, nor does it 'require rigid adherence to rulings made at an earlier step of a case in all circumstances.'" Culpepper, 491 F.3d at 1271 (citation omitted). Additionally, the doctrine does not apply when the following exceptions are found: (1) new and substantially different evidence emerges in subsequent proceedings; (2) new controlling authority has been rendered making a contrary decision of law applicable; and (3) the earlier ruling was clearly erroneous and would work a manifest injustice if implemented. Id.; see also Klay v. All Defendants, 389 F.3d 1191, 1197-98 (11th Cir. 2004).
In situations such as that in this case, that is, involving the transfer of the litigation from one district judge to another, the transfer is not to be treated as an opportunity to re-litigate all of the prior rulings; however, "the second district judge may reconsider the first judge's rulings when final judgment has not yet been entered." Technical Resource Services, Inc. v. Dornier Medical Systems, Inc., 134 F.3d 1458, 1465 n.9 (11th Cir. 1998). In this regard, "reconsideration of a prior holding is not improper if the court is convinced that the prior decision is clearly erroneous and would work manifest injustice." Harley v. Health Center of Coconut Creek, 518 F. Supp. 2d 1364, 1368 (S.D. Fla. 2007).
Reconsideration is proper in this case because there is no final judgment and, more importantly, because two of the exceptions to the rule apply: (1) there is new evidence before this court; and (2), based on that evidence, the first decision is clearly erroneous and would work manifest injustice unless revisited. The decision of the District Court in the Middle District of North Carolina was based on the false assumption - a result of Plaintiff's material factual omissions in the original complaint - that the original complaint seeking a full award of the $56,524.23 in attorney's fees was timely filed as required by Title VII. Harley, 503 F. Supp. 2d at 766-67. However, as discussed more fully infra, based on the undisputed facts presented in this record, the original complaint was not timely filed; therefore, the relation-back theory applied by the District Judge is not applicable - there were no timely claims in the original complaint for the discrimination claims to relate back to in an amended complaint. Id. at 769-72. Furthermore, as discussed infra, the claims added to the amended complaint would have been untimely in and of themselves even if asserted in the original complaint. Accordingly, the District Court's decision is erroneous and allowing that decision to stand, given the conduct of Plaintiff in failing to fully apprise that District Judge of the history of the administrative proceedings, would be manifestly unjust to Defendant.
For these reasons, the court finds that the law-of-the-case doctrine is not applicable to the facts of this case.
b. Judicial Estoppel
Plaintiff next contends that the court should apply the doctrine of judicial estoppel to prohibit Defendant from arguing that the statute of limitations forecloses bringing any of the claims in the amended complaint. [Doc. 23 at 10]. According to Plaintiff, because Defendant did not argue that the claims were not timely, even if brought in the original complaint filed in North Carolina, that argument can not be made before this court. [Id.]. Defendant opposes application of the doctrine and asserts, quite correctly, that if there is a party with "unclean hands" in this litigation against whom the doctrine should be applied, it is Plaintiff not Defendant. [Doc. 29 at 12-13]. The court agrees with Defendant that judicial estoppel should not be invoked to foreclose consideration of the statute of limitations argument presented to this court.
"Judicial estoppel is an equitable doctrine invoked at the court's discretion." Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir. 2002). "Under this doctrine, a party is precluded from 'asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding. Judicial estoppel is an equitable concept intended to prevent the perversion of the judicial process.'" Id. (citation omitted). In order to protect the integrity of the judicial process, "'[j]udicial estoppel is applied to the calculated assertion of divergent sworn positions. The doctrine is designed to prevent parties from making a mockery of justice by inconsistent pleadings.'" Id. (citation omitted). The intent required for application of the doctrine is that of "'cold manipulation and not an unthinking or confused blunder. . .' and involves "'intentional contradictions, not simple error or inadvertence.'" Ajaka v. BrooksAmerica Mortgage Corp., 453 F.3d 1339, 1345 n.7 (11th Cir. 2006) (citation omitted).
Two factors are considered in this circuit to determine whether the doctrine is applicable: "'First, it must be shown that the allegedly inconsistent positions were made under oath in a prior proceeding. Second, such inconsistencies must be shown to have been calculated to make a mockery of the judicial system.'" Burnes, 291 F.3d at 1285 (citation omitted). Recently, in New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001), the Supreme Court enumerated a non-exhaustive set of factors for courts to consider in deciding whether to apply the doctrine: "(1) whether the present position is 'clearly inconsistent' with the earlier position; (2) whether the party succeeded in persuading a tribunal to accept the earlier position, so that judicial acceptance of the inconsistent position in a later proceeding creates the perception that either court was misled; and (3) whether the party advancing the inconsistent position would derive an unfair advantage on the opposing party." Burnes, 291 F.3d at 1285 (citing New Hampshire, 532 U.S. at 750-51, 121 S. Ct. at 1815). The Eleventh Circuit Court of Appeals found that these factors are consistent with this circuit's test and that the factors allow courts "sufficient flexibility in determining the applicability of the doctrine of judicial estoppel based on the facts of a particular case." Id. at 1285-86.
Application of the factors to the circumstances in this case leads this court to decline to invoke the doctrine. Nothing in this record supports the conclusion that any inconsistency in Defendant's positions before the District Court in North Carolina and before this court were "'calculated to make a mockery of the judicial system.'" Burnes, 291 F.3d at 1285 (citation omitted). At worse, Defendant can be faulted for accepting at face value Plaintiff's statement of the administrative procedural history as outlined in the original complaint in making their arguments in the Middle District of North Carolina for dismissal and against allowing Plaintiff to amend the complaint. Defendant may have erred in not conducting the thorough record review presented to this court before moving to dismiss the original complaint; however, nothing in Defendant's conduct evidences a "calculated assertion of divergent sworn positions" necessary for application of the doctrine. Id. And, as Defendant argues, she was not successful in persuading the District Court in North Carolina to accept her position regarding either the dismissal of the complaint or the amendment of the complaint. [Doc. 29 at 12-13].
Finally, even assuming arguendo that Defendant is presenting an inconsistent position on the statute of limitations argument to this court, she is not obtaining an unfair advantage over Plaintiff by being allowed to do so. As Defendant contends, Plaintiff would gain the unfair advantage if Defendant was not allowed to present the statute of limitations argument to this court now being aware of Plaintiff's material factual omissions in the original complaint. [Doc. 29 at 12-13]. Plaintiff's omission from the original complaint of the full administrative history (especially (1) his failure to include the fact of the final agency decision issued on January 22, 2004, which triggered the right to sue notice for the claims asserted in the amended complaint [Defendant's SMF ¶¶ 18, 20; Doc. 1, ¶¶ 5-12; Doc. 22, Ex. 5] and (2) his failure to include the facts concerning his separate administrative appeal seeking a full award of attorney's fees, $8,608.14, for work performed after the initial administrative hearing, which resulted in the June 9, 2004, final agency decision and second right to sue notice [Defendant's SMF ¶¶ 22-26; Doc. 1, ¶¶ 11-12; Doc. 22, Exs. 7-9]) misled not only the District Judge but Defendant in the North Carolina litigation.
The facts of this case simply do not present a scenario for invocation of judicial estoppel to foreclose Defendant's statute of limitations argument.
The court finds that Plaintiff's attempt to invoke the doctrine against Defendant arguably duplicitous for another reason, that being, Plaintiff's undisputedly inconsistent positions during the administrative process and in this court. After the initial determination by the Administrative Judge that Plaintiff was discriminated against based on race but not based on sex, Plaintiff did not appeal the findings except for the amount of fees he was awarded. In fact, in his statement of opposition to the Agency's appeal of the finding of race discrimination and in support of his partial appeal, Plaintiff concluded his brief as follows: "For the reasons set [sic] above, the AJ's decision on all matters but the attorney fee question is both based on substantial evidence and free from legal error. For that reason, the Bench Decision should be affirmed. . . ." [Doc. 22, Ex. 10 at 33]. In the amended complaint, however, Plaintiff asserted: "The failure of the final EEOC disposition on appeal to find a wrongful act of sex discrimination against Mr. Harley was wrongful and erroneous." [Doc. 16, ¶ 29]. It is readily apparent that Plaintiff has taken the inconsistent positions for no other reason than to deal with "the exigencies of the moment" - the realization after he filed his original complaint of his need to seek de novo review of all the discrimination claims in order to obtain the real relief he seeks - full payment of the attorney's fees. Burnes, 291 F.3d at 1285.
c. Statute of Limitations
Defendant contends that Plaintiff can not bring any of the claims asserted in the amended complaint because the original complaint filed on September 12, 2006, in the Middle District of North Carolina was untimely and because the statute of limitations ran as to all of Plaintiff's claims over two years before the filing of the original complaint. [Doc. 22 at 8]. Plaintiff does not respond to that argument; instead, he attempts to recast Defendant's argument as one attacking only the timeliness of the claims in the amended complaint and argues that the relation back doctrine of Fed. R. Civ. P. 15(c) applies to make the claims added to the amended complaint timely. [Doc. 23 at 14]. Unfortunately for Plaintiff, consideration of Rule 15(c)'s relation back doctrine only comes into play if the original complaint filed on September 12, 2006, was timely. Because no claims alleged, or which could have been alleged in the original complaint relating to Plaintiff's discrimination claims, were timely, Plaintiff's relation back argument is irrelevant to the issue before the court.
It is well settled that Plaintiff was required to file any claims pursuant to Title VII within ninety (90) days of receipt of the final agency decision ("FAD") resolving those claims. See, e.g., 42 U.S.C. § 2000e-16(c); Burzynski v. Cohen, 264 F.3d 611, 618-19 (6th Cir. 2001) (a federal employee has ninety (90) days from receipt of the final agency decision to file a complaint in federal court); Mosley v. Pena, 100 F.3d 1515, 1518 (10th Cir. 1996) (§ 2000e-16(c) requires a plaintiff suing for discrimination in federal employment to file a civil complaint within ninety (90) days of receipt of final action); Brown v. District of Columbia, 251 F. Supp. 2d 152, 161 (D.D.C. 2003) ("The federal employee must file any appeal to the federal district court within 90 days of receiving notice of a final action by the department or agency."); Taylor v. Espy, 816 F. Supp. 1553, 1559 (N.D. Ga. 1993) ("Subsequent to the effective date of the 1991 Civil Rights Act, a federal employee must now file a Title VII action within ninety (90) days of a notice of final agency action by the plaintiff's employing agency or the EEOC"). In this regard, the court notes that it is Plaintiff's burden to establish that he timely filed his lawsuit. See Green v. Union Foundry Company, 281 F.3d 1229, 1233- 34 (11th Cir. 2002); Martinez v. U.S. Sugar Corp., 880 F. Supp. 773, 777 (S.D. Fla. 1995). The undisputed facts establish that Plaintiff has not done so.
In May 1998, Plaintiff, a black male, submitted an application for the position of a Wage and Hour Compliance Specialist at grade level GS-05, -07, or -09, for the Wage Hour District Office in Charlotte, North Carolina. [Defendant's SMF ¶¶ 1, 2]. Plaintiff was not selected for the position, which was filled by Ellen Bishop, a white female on October 9, 1998. [Defendant's SMF ¶¶ 3, 4]. After his non-selection for this position, Plaintiff filed a complaint alleging discrimination based on race and sex with Defendant's OCR, and following an investigation by OCR, Plaintiff requested and received a hearing before an Administrative Judge of the EEOC. [Defendant's SMF ¶¶ 5, 6; Doc. 22, Ex. 2 at 1]. At the conclusion of the hearing held on November 19, 2002, Administrative Judge Wendell Sims entered preliminary findings that Defendant had discriminated against Plaintiff based on race but not on the basis of sex. [Defendant's SMF ¶¶ 7, 8]. As a part of the proceedings, Plaintiff submitted an application for attorney's fees in the amount of $56,524.23. [Defendant's SMF ¶¶ 9-10]. On January 13, 2003, Judge Sims entered a written opinion confirming his previous oral findings and, along with other relief, awarding attorney's fees to Plaintiff in the amount of $17,185.00. [Defendant's SMF ¶ 11; Doc. 22, Ex. 2].
On February 28, 2003, Defendant's Director of OCR declined to follow Judge Sims' decision and appealed to the EEOC's OFO. [Defendant's SMF ¶ 12]. Plaintiff cross-appealed challenging solely the amount of attorney's fees awarded by Judge Sims. [Defendant's SMF ¶¶ 14, 13]. On September 30, 2003, the OFO affirmed Judge Sims' decision and denied the appeals of both Plaintiff and Defendant, and both parties moved for reconsideration of the OFO decision. [Defendant's SMF ¶¶ 16, 17]. On January 22, 2004, the OFO denied both motions for reconsideration in Appeal No. 07A30077. [Defendant's SMF ¶¶ 18]. After advising Plaintiff that "[t]his decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision[,]" Plaintiff was instructed that he had "the right to file a civil action in an appropriate United States District Court within ninety (90) days from date that you receive this decision." Plaintiff was further advised, "Failure to do so may result in the dismissal of your case in court." [Defendant's SMF ¶ 20; Doc. 22, Ex. 5].
The January 22, 2004, decision constituted the FAD for Plaintiff's claims of race and sex discrimination, as well as for the relief awarded by the agency for those claims - including the attorneys fees of $56,524.23 claimed for the initial administrative proceedings. Therefore, in accordance with the right to sue notice and 42 U.S.C. § 2000e-16(c), Plaintiff had ninety days from receipt of that notice, or on or before April 26, 2004, to file a civil complaint in federal court challenging the agency findings. Plaintiff filed no civil complaint in any district court until September 12, 2006, over two years after the statute of limitations ran for a timely Title VII law suit. The original complaint filed in the Middle District of North Carolina was not timely; the claim for an award of additional attorney's fees was not timely; and even if included in that original complaint, the claims for relief based on alleged race and sex discrimination would not have been timely.
The agency allows for five calendar days, as did the court, for receipt of the FAD before starting the ninety day statute of limitations. [Doc. 22, Ex. 5].
Nor can Plaintiff circumvent the statute of limitations applicable to the FAD issued in January 22, 2004, by reliance on the unrelated and new agency appeal concerning the separate award of attorney's fees for representing Plaintiff during the administrative appeal process which resulted in a second FAD issued on June 9, 2006. In the final agency decision issued on January 22, 2004, Plaintiff was directed to submit his request for attorney's fees for the administrative appeal process directly to Defendant. [Defendant's SMF ¶ 19]. On March 2, 2004, Defendant received an application from Defendant's attorney for attorney's fees for handling Plaintiff's administrative appeal in the amount of $8,608.14. [Defendant's SMF ¶ 22]. On May 19, 2004, Defendant's OCR awarded attorney's fees to Plaintiff in the amount of $4,434.95 and advised Plaintiff that he had thirty days to appeal the decision concerning the amount of fees for the administrative appeal. [Defendant's SMF ¶ 24]. On July 17, 2004, Plaintiff filed an appeal with the EEOC; however, because the due date for any appeal concerning the fee award for Plaintiff's administrative appeal was June 23, 2004, Appeal No. 01A45076 was dismissed as untimely on February 9, 2006. [Doc. 22, Ex. 9 at 1 and 2 n.1]. On May 23, 2006, Plaintiff requested reconsideration of the dismissed appeal. [Id.]. On June 9, 2006, finding that the request for reconsideration was untimely, the Commission dismissed Plaintiff's request and issued the final decision in Appeal No. 01A45076, advised Plaintiff there was no further right of administrative appeal, and advised Plaintiff that he had "the right to file a civil action in an appropriate United States District Court within ninety (90) days from date that you receive this decision." Plaintiff was further advised, "Failure to do so may result in the dismissal of your case in court." [Defendant's SMF ¶ 26; Doc. 22, Ex. 9 at 1-2]. Plaintiff has not filed a civil complaint in any federal district court seeking additional relief, the approximate $4,000 not awarded for attorney's fees in the administrative appeal, which was denied by the June 9, 2006, FAD.
The second FAD does not breathe life into the expired statute of limitations for the January 22, 2004, FAD. To conclude otherwise would allow plaintiffs to file a series of charges, containing either related or unrelated claims, in order to receive multiple right to sue notices and to file in federal court based on the last received notice thereby circumventing the limitations requirement. See, e.g., Soso Liang Lo v. Pan American World Airways, Inc., 787 F.2d 827, 828 (2nd Cir. 1986) ("We hold that whether the present action is time barred must be determined with reference to only the first Notice of Right to Sue. Otherwise, the time limitations of 42 U.S.C. § 2000e-5(f)(1) would be meaningless, because potential Title VII plaintiffs could evade those requirements simply by seeking additional Notices of Right to Sue whenever they pleased."); Labady v. Gemini Air Cargo, Inc., 350 F. Supp. 2d 1002, 1010 (S.D. Ga. 2004) ("Plaintiff may not circumvent the timeliness requirements of Title VII by alleging the time-barred acts of discrimination are at issue in his timely filed retaliation claim. The law is clearly established that discrete, time-barred discriminatory actions are not actionable, regardless of how they may relate to actions that were filed in a timely fashion."); Mills v. IT Corp., 2000 WL 1801843 *2 (E.D. La. 2000) ("Clearly, plaintiff is precluded from asserting any of the claims she asserted in her first two EEOC charges, since more than ninety days elapsed between her receipt of the right to sue letters in connection with these charges and the filing of this lawsuit. . . . The only claims which she may assert are those asserted in her third charge. . . ."); Dowdell v. Sunshine Biscuits, Inc., 90 F.R.D. 107, 116 (M.D. Ga. 1981)("[A] Title VII plaintiff cannot be permitted to extend this period by repeatedly filing broad, duplicative charges with the EEOC and obtaining multiple right to sue letters."). The second FAD issued on June 9, 2006, on which Plaintiff relies to assert a timely filing of his claims, does not give Plaintiff a second chance to seek relief in this court on untimely claims.
For these reasons, the court finds that Plaintiff's original complaint filed on September 12, 2006, was not timely filed for the claim asserted therein. Plaintiff cannot at this late date, over two years after the statute of limitations ran on his claims of race and sex discrimination, as well as on his claim for additional attorney fees, seek to proceed in this court on those Title VII claims. Defendant's motion for summary judgment should be granted on all of Plaintiff's claims.
d. Acceptance of Administrative Remedies
As an alternative basis for granting summary judgment, Defendant contends that Plaintiff cannot proceed on his Title VII claims in this court because he accepted the full relief awarded as a result of the administrative proceedings. [Doc. 22 at 12]. Relying on the decision of the Fifth Circuit Court of Appeals in Massingill v. Nicholson, 496 F.3d 382 (5th Cir. 2007), Plaintiff responds that acceptance of administrative relief does not foreclose seeking de novo relief in this court. [Doc. 23 at 17]. The court finds that, even if Plaintiff's claims were not barred by the statute of limitations, having accepted the adjudicated administrative relief, he cannot now seek de novo review in this court.
Once a federal employee has exhausted administrative remedies, he has two options for proceeding in federal court. If dissatisfied with the results of the administrative proceedings, he may proceed under 42 U.S.C. § 2000e-16 and litigate the full merits of the case, that is, pursue a de novo trial on both liability and damages. However, if satisfied with the administrative results and if the Government fails to comply with that judgment, a plaintiff may sue in federal court to enforce the judgment without subjecting the case to re-litigation on the merits. See Ellis v. England, 432 F.3d 1321, 1324 (11th Cir. 2005); Ritchie v. Henderson, 161 F. Supp. 2d 437, 448-50 (E.D. Pa. 2001); Simpkins v. Runyon, 5 F. Supp. 2d 1347 (N.D. Ga. 1998). In this case, Plaintiff is seeking a de novo trial placing before the court not only the issue of damages but of liability. [Doc. 16].
Given the procedural posture of this case, the question before the court is whether a plaintiff who has accepted payment for damages awarded in the administrative proceeding may pursue a cause of action pursuant to § 2000e-16 in federal court on the same claim. In St. John v. Potter, 299 F. Supp. 2d 125 (E.D.N.Y. 2004), the district court for the Eastern District of New York found that a federal employee who had successfully litigated a discrimination claim before the administrative agency and who subsequently accepted from the government the payment ordered by the administrative judge could not seek relief in a civil cause of action on the same claim. Id. at 128-29. The court stated that because the plaintiff had accepted payments reflecting the amounts awarded by the EEOC, "without reserving any rights with regard to either of the checks[, t]he defendant has a right to expect that payment rendered in full satisfaction of a valid order of an administrative agency will not be ignored or undone." Id. at 129. The court held that the plaintiff's acceptance of the payments served to satisfy all of her claims against the defendant for the conduct alleged in her EEO complaint. Id.; see also Mayfield v. United States Dep't. of Veterans Affairs, 2007 WL 625827, *3 (E.D. La. February 27, 2007) (adopting the Government's position that the plaintiff, who had accepted and not returned the administrative award, was barred from de novo review of claims presented at administrative level); Pamplin v. Potter, 2006 WL 1284915, *3 (E.D. Mich. May 10, 2006) (finding that a plaintiff who had received and not returned an administrative award, without reservation of any rights, may not seek de novo review in federal court). The same situation presents itself in this case.
In accordance with the relief granted by the OFO in the January 22, 2004, FAD, which was based on the finding that Plaintiff was discriminated against because of his race, Defendant promoted Plaintiff to GS-12, step 2; permitted Plaintiff to relocate to Charlotte, North Carolina; offered Plaintiff, who accepted, back pay of $139,783.11, along with accrued annual and sick leave; offered Plaintiff, who accepted, compensatory damages of $5,000.00; offered Plaintiff, who accepted, professional costs of $2,387.73; and offered Plaintiff, who accepted, attorney's fees of $17,185.00. [Defendant's SMF ¶ 21]. Plaintiff enjoyed the benefits of that administrative agency award for over two years before seeking additional relief. [Docs. 1 and 16]. Plaintiff has not offered to return the monetary award nor the additional benefits received due to the promotion, such as a higher salary - a difficult undertaking even if the offer was made given the lapse of time since the award. See Kloock v. Potter, 2005 WL 1593448, *2 (E.D. Mich. July 6, 2005) ("If the plaintiff chose to relitigate his claims, he would have to disgorge the previously awarded compensatory damages, including attorneys fees and back pay for which he has already paid federal income taxes. Relitigating these claims ten years after they occurred and after damages and the injunctive relief of reinstatement have already been awarded would be an extremely complicated undertaking.").
Additionally, federal common law's "acceptance of the benefits" doctrine supports a finding in Defendant's favor. The "acceptance of the benefits" doctrine "provides that a party who voluntarily and knowingly accepts the benefits of a judgment or decree cannot seek reversal of the judgment or decree on appeal." Wynfield Inns v. Edward Leroux Group. Inc., 896 F.2d 483, 489 (11th Cir. 1990); see also Fidelcor Mortgage Corporation v. Insurance Company of North America, 820 F.2d 367, 370 (11th Cir. 1987) (same). In Wynfield, the Eleventh Circuit Court of Appeals noted:
This doctrine is based on the theory that a party who voluntarily collects a judgment is estopped from seeking reversal of the judgment because acceptance acts as a release of claimed errors of the trial court. . . . The doctrine precludes an appeal unless (1) the judgment appealed from consists of two or more separate, distinct and unrelated parts; or (2) there is no controversy regarding the amount of a judgment to which a litigant is entitled in any event.Wynfield, 896 F.2d at 489 (citations omitted). As the Eleventh Circuit Court of Appeals noted in Wynfield, the instant case does not present the situation where a party, whose entitlement to a particular amount of recovery is uncontested, accepts payment for that amount but seeks additional recovery under a single legal theory. Wynfield, 896 F.2d at 489-90. Plaintiff is not seeking to appeal only the denial of relief based on the sex discrimination claim on which he was not successful at the administrative level. Moreover, that claim is intertwined with the claim of race discrimination on which he was successful below. And, Defendant contested all of the administrative relief sought and obtained by Plaintiff. Therefore, Plaintiff, having accepted the benefits of his success at the administrative level, should not be allowed to relitigate those claims in this court.
As noted, Plaintiff relies on the decision of the Fifth Circuit Court of Appeals in Massingill to argue that he may proceed in this court seeking a trial de novo of all of his claims although he accepted the benefits resulting from the administrative process. [Doc. 23 at 17]. However, Plaintiff's reliance on the decision in Massingill even if found persuasive by this court - which it is not, is misplaced as there is a glaring factual distinction in the facts before the court in that case and before the court in this case: the plaintiff in Massingill timely filed her civil complaint in federal court, whereas, as found supra, Plaintiff Harley did not and, in fact, waited over two years before seeking any relief in federal court.
In Massingill after determining that a plaintiff may not seek partial de novo review of an agency award, the court concluded that the plaintiff was seeking a full de novo review of all the claims brought at the agency level. 496 F.3d at 384, 386. The court then held that the plaintiff, who had accepted the funds awarded at the administrative level, need not "disgorge or offer to disgorge the money she has received so far for her case to proceed." Id. at 386. In reaching this conclusion, the court held that nothing in the statute, 42 U.S.C. § 2000e-16(c), creating a federal court right of action precludes suit "if the award has been partially or even completely rendered." Id. As to the defendant's contention that having rendered the reward, it is entitled to repose, the court found that because the statute allows a plaintiff only ninety days following the FAD to sue, "it's not unreasonable to delay such repose for three months." Id. The court specifically found that the situation before the court did not involve "the common-law defense of satisfaction of a debt, settlement, or judgment from some time ago, [but] it is [a] situation where the administrative scheme has played out, the plaintiff has ninety days to sue, and she does so within that time." Id. The court found under those circumstances, the plaintiff had not forfeited her rights under § 2000e-16(c). Those are not the circumstances before this court.
Plaintiff received the FAD on his claims of race and sex discrimination, as well as setting forth the relief he was entitled to, in late January 2004. [Defendant's SMF ¶ 18; Doc. 22, Ex. 5]. Defendant then complied with the FAD by awarding Plaintiff all of the financial as well as injunctive relief provided for in the FAD. [Defendant's SMF ¶ 21]. Plaintiff did not comply with the statutory limitations period by filing a law suit in federal court within ninety days of receipt of the right to sue notice, that is, on or before April 26, 2004. In fact, Plaintiff accepted and enjoyed the benefits of the administrative award for over two years without expressing any dissatisfaction with the FAD findings until September 12, 2006. [Defendant's SMF ¶ 27; Doc. 1]. Under these circumstances, Defendant is entitled to repose, and Plaintiff is not entitled at this late date to retain the benefits of the 2004 judgment while seeking relief de novo by filing a federal complaint on the claims raised and resolved at the agency level several years ago.
For these reasons, Plaintiff, having accepted the benefits of the relief awarded at that administrative level, may not seek to litigate the claims asserted before the agency de novo in this court. Defendant's motion for summary judgment, on this alternative ground, on all of Plaintiff's claims should be granted.
IV. Conclusion
For the reasons stated and based on the authority cited, the court RECOMMENDS that Defendant's motion [Doc. 22] for summary judgment be GRANTED on all of Plaintiff's claims.
The Clerk is DIRECTED to terminate this reference.
SO RECOMMENDED, this 24th day of January, 2008.
/s/_________
JANET F. KING
UNITED STATES MAGISTRATE JUDGE