Opinion
SA-21-CV-646-FB (HJB)
10-04-2023
ARTURO S. LOPEZ, SR. Plaintiff, v. FRANK KENDALL, III, Secretary of the Air Force, and MARY D. GARCIA, Human Resource Specialist, Employee Relations Labor, Laughlin Air Force Base, Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Henry J. Bemporad, United States Magistrate Judge
To the Honorable United States District Judge Fred Biery:
This Report and Recommendation concerns Defendants' Motion for Summary Judgment (Docket Entry 62) and Plaintiff's Motion to Enter Injunctive Relief (Docket Entry 55). Pretrial matters in this case have been referred to the undersigned for consideration. (Docket Entry 38.) For the reasons set out below, I recommend that Defendants' Motion for Summary Judgment (Docket Entry 62) be GRANTED and that Plaintiff's Motion to Enter Injunctive Relief (Docket Entry 55) be DENIED.
I. Jurisdiction.
Plaintiff Arturo Lopez asserts a retaliatory discrimination claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e-3a, et seq. (Docket Entry 1 at 3), and he moves for injunctive relief under 42 U.S.C. § 1983 for alleged violations of provisions of the Code of Federal Regulations (Docket Entry 55 at 1-2). The Court has original jurisdiction over these federal claims pursuant to 28 U.S.C. § 1331. I have authority to issue this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Background.
Lopez was previously employed at Laughlin Air Force Base in Del Rio, Texas. (Docket Entry 13-1 at 1.) He alleges that he was discriminated against in retaliation for participating in protected Equal Employment Opportunity (“EEO”) activity. (Id.) Specifically, he claims that, on May 14, 2020, Defendant Garcia retaliated against him when she “intentionally and maliciously made and falsified entries on [his] official OPM [Office of Personnel Management (“OPM”)] records” for the purposes of denying Lopez access to disability benefits. (Id.)
Lopez initiated contact with the Air Force's EEO counseling services on August 6, 2020, and was interviewed on August 10, 2020. (Docket Entry 13-2 at 2.) Proceeding pro se, he then filed suit in this Court on July 8, 2021. (Docket Entry 1.) Defendants subsequently moved to dismiss, based on Lopez's failure to timely exhaust his administrative remedies. (Docket Entry 13.) Upon the undersigned's recommendation (Docket Entry 21), the Court granted the motion (Docket Entry 30). Lopez appealed. (Docket Entry 32.)
The Fifth Circuit reversed and remanded, concluding that the Court misapplied Federal Rule of Civil Procedure 12(b)(6) by relying on exhibits attached to Defendants' motion that were neither attached to Lopez's complaint nor explicitly referenced therein. (Docket Entry 37 at 6.) On remand, Defendants filed a second motion to dismiss, re-urging their exhaustion argument and asking the Court to rely on the same documents the Fifth Circuit held were impermissibly considered the first time-now based on judicial notice. (Docket Entry 50 at 3-5 & n.1.) Pursuant to Federal Rule of Civil Procedure 12(d), the undersigned required Defendants to present their exhaustion argument by way of a motion for summary judgment. (See Docket Entry 60.) Defendants filed the motion (Docket Entry 62), Lopez has responded (Docket Entry 64), and Defendants replied (Docket Entry 67).
III. Applicable Legal Standard.
Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Allen v. U.S. Postal Serv., 63 F.4th 292, 300 (5th Cir. 2023) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A disputed fact is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting Anderson, 447 U.S. at 248). In making this assessment, the Court “is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party.” Air Evac EMS, Inc. v. Sullivan, 331 F.Supp.3d 650, 657 (W.D. Tex. 2018) (citing Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Failure to exhaust administrative remedies is an affirmative defense. Davis v. Fort Bend Cnty., 893 F.3d 300, 307 (5th Cir. 2018), aff'd, 139 S.Ct. 1843 (2019); Lopez v. Kendall, No. 2250411, 2023 WL 2423473, at *1 (5th Cir. Mar. 9, 2023). When defendants move for summary judgment on an affirmative defense, they “must come forward with evidence that establishes ‘beyond peradventure all the essential elements of the claim or defense to warrant judgment in [their] favor.'” Mary Kay, Inc. v. Weber, 601 F.Supp.2d 839, 851 (N.D. Tex. 2009) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)). In other words, they must “make a showing sufficient for the court to hold that no reasonable trier of fact could find other than for the defendants.” Mary Kay, Inc., 601 F.Supp.2d at 851 (citing Anderson, 477 U.S. at 248).
Once the moving party carries its burden, “the nonmovant must then direct the court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). “While all of the evidence must be viewed in a light most favorable to the motion's opponent . . . neither conclusory allegations nor unsubstantiated assertions will satisfy the non-movant's summary judgment burden.” Id. (citing Anderson, 477 U.S. at 255; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)).
IV. Analysis.
This Report and Recommendation first considers Defendants' administrative-exhaustion argument. It then turns to Lopez's request for injunctive relief.
A. Administrative Exhaustion.
To exhaust administrative remedies, a federal employee like Lopez must first report his grievance to an EEO counselor within 45 days of the alleged discrimination. 29 C.F.R. §1614.105(a)(1) (1998); Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir.2002). Failure to notify the EEO counselor by the 45-day deadline will bar a claim unless the claimant successfully asserts “a defense of waiver, estoppel, or equitable tolling.” Lopez, 2023 WL 2423473, at *2 (quoting Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992)).
Section 1614.105(a)(2) states that the 45-day deadline “shall be extended . . . when the individual shows [1] that he or she was not notified of the time limits and was not otherwise aware of them, [2] that he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, [3] that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or [4] for other reasons considered sufficient by the agency or the Commission.” 29 C.F.R. § 1614.105(a)(2). The Fifth Circuit has explained that § 1614.105(a)(2) “codified the doctrine of equitable tolling,” and district courts “should make an independent judgment about an employee's tolling request” under that section. Teemac v. Henderson, 298 F.3d 452, 455 (5th Cir. 2002). Equitable tolling applies only in “rare and exceptional circumstances,” id. at 457, and the party asserting that the 45-day deadline was tolled bears the burden of proof on that issue. Molina v. Vilsack, 748 F.Supp.2d 762, 706-07 (S.D. Tex. 2010) (citing Mendoza v. Potter, 2009 WL 700608, at *2 (S.D. Tex. Mar. 17, 2009)).
In their motion, Defendants point to Lopez's EEO complaint, in which he asserted unequivocally that he became aware of Defendant Garcia's alleged retaliation on May 14, 2020, after receiving an email from the OPM. (Docket Entry 13-1 at 1.) Defendants then point to the report of EEO Counselor Michael Parizo, which states that Lopez did not report his grievance until 85 days later, on August 6, 2020. (Docket Entry 13-2 at 2.) According to the report, Parizo informed Lopez that he may have missed the 45-day deadline and advised him to submit a written request for a waiver of that deadline. (Id. at 5.) Lopez has presented no evidence that he ever submitted a written request.
Lopez responds that the 45-day deadline does not apply here because, despite the lack of a written request, the deadline was extended. (Docket Entry 64 at 6 (citing 29 C.F.R. § 1614.105(a)(2).) To support his assertion, Lopez argues he was entitled to the extension because he did not actually become aware of the alleged retaliation “until August 6, 2020,” when he finally read the May 14, 2020, email. (Id.) Lopez explains that the email contained a 171-page document and he put off reading it because “he was recovering from medical surgeries” and, thus, was “unable to concentrate.” (Id.) Lopez also states that he assumed he did not need to read the email promptly because he had a hearing before the OPM that “was not scheduled to take place until August 17, 2020.” (Id.) Lopez infers that an extension to his 45-day deadline was granted from the facts that: (1) Parizo wrote “August 1, 2020,” rather than May 14, 2020, as the date of the alleged retaliation, (id. at 4; see Docket Entry 13-2 at 2.); and (2) Lopez's complaint was ultimately accepted, and his allegation of retaliation investigated. (Id. at 5 (reasoning that, had deadline not been extended, his “EEO Complaint would have been instantly denied....”).)
To defeat summary judgment on Defendants' administrative-exhaustion argument and carry his burden and create a genuine dispute as to the issue of equitable tolling as incorporated into § 1614.105(a)(2), Lopez must either “cit[e] to particular parts of materials in the record” or show “that the materials cited [by Defendants] do not establish the absence . . . of a genuine dispute.” Fed.R.Civ.P. 56(c)(1)(A)-(B). Lopez does not cite any materials in the record to support his conclusory assertions that he was entitled to equitable tolling because he did not read the May 14, 2020, email while recovering from surgeries. (See Docket Entry 64 at 3.) As for his inference that the extension was granted, the only evidence Lopez offers are two letters he received from Parizo: the first, on November 13, 2020, notifying Lopez of his right to proceed with filing his discrimination complaint; and the second, on December 9, 2020, notifying Lopez that his complaint had been accepted for investigation. (See Docket Entry 64, at 4 (citing Docket Entry 17-2 at 3-4), 15.)
“Indeed, contrary to Plaintiff's assertion, Defendants previously argued-and the Court previously found-that Lopez's back surgery did not occur until July 14, 2020, after the 45-day deadline had already expired. (See Docket Entry 28, at 3 n.2; Docket Entry 30 at 5-6.)
Contrary to Lopez's argument, neither the agency's acceptance of the complaint nor its decision to proceed with an investigation supports the inference that the 45-day deadline was waived. See Molina, 748 F.Supp.2d at 709 (rejecting argument that agency's acceptance of untimely complaint, and subsequent investigation, waived 45-day EEOC contact deadline). This is especially true when, as in this case, the EEO counselor expressly advised Lopez that he may have missed his 45-day deadline and instructed him to submit a written request for a waiver. (Docket Entry 13-2 at 5.) “[T]o waive a timeliness objection, the agency must make a specific finding that the claimant's submission was timely.” Rowe v. Sullivan, 967 F.2d 186, 194 (5th Cir. 1992); see Marquardt v. Leavitt, Cause No. 3:06-CV-0893-AH, 2008 WL 320194, at *3 (N.D. Tex. Feb. 6, 2008) (same). “[A]n agency's docketing and acting on a complaint [does not] constitute a waiver of the timeliness requirement....” Marquardt, 2008 WL 320194, at *3 (citations omitted).
Lopez makes the conclusory arguments that “[t]he Agency did not have to wa[i]ve any timelines,” that he “was never asked []or tasked to submit any requests by anyone....” (Docket Entry 64, at 5.) Lopez has presented neither evidence nor legal authority to support either contention. Moreover, they are contrary to the cases cited above, and belied by Parizo's clear instruction to Lopez to submit a formal, written request for a waiver of the 45-day deadline. (Docket Entry 13-2 at 5.)
For the foregoing reasons, Lopez failed to exhaust administrative remedies, and he has neither shown himself to be entitled to equitable tolling of the administrative deadlines, nor that said deadlines were waived. Defendants' Motion for Summary Judgment (Docket Entry 62) should therefore be granted.
B. Injunctive Relief.
Lopez invokes 42 U.S.C. § 1983 as the basis for his Motion to Enter Injunctive Relief. (Docket Entry 55 at 1.) Aside from the way Lopez styled the motion, it is unclear whether he actually seeks any injunctive relief. Nowhere in his motion does Lopez ask the Court to order Defendants to affirmatively do or refrain from doing anything. (See id. at 1-2.) See Garland v. Aleman Gonzalez, 142 S.Ct. 2057, 2060 (“When a court ‘enjoins' conduct, it issues an ‘injunction,' which is a judicial order that ‘tells someone what to do or not to do.'”); Injunction, Black's Law Dictionary (11th ed. 2019) (“A court order commanding or preventing an action.”). Rather, Lopez states that he “[s]eeks relief in the form of compensatory damages equal to $300,000.” (Docket Entry 55 at 2 (emphasis added).)
In any event, whether Lopez seeks compensatory damages or injunctive relief, his motion must be denied. As courts in this District have repeatedly held, 42 U.S.C. § 1983 applies only to state actors, not federal actors like the Defendants in the case. See, e.g., Eriksen v. Ten Unknown Named Fed. Agents, No. EP-15-CV-216-DB-ATB, 2015 WL 13804250, at *5 (W.D. Tex. Oct. 16, 2015), report and recommendation adopted, No. EP-15-CV-216-DB, 2015 WL 13804248 (W.D. Tex. Nov. 17, 2015) (dismissing § 1983 claims “because the named [d]efendants [we]re federal actors, not state actors”); Doe v. Neveleff, No. A-11-CV-907-LY, 2013 WL 489442, at *3 (W.D. Tex. Feb. 8, 2013), report and recommendation adopted, No. A-11-CV-907-LY, 2013 WL 12098684 (W.D. Tex. Mar. 12, 2013) (“A civil rights lawsuit asserting claims of constitutional violations against federal government actors must be brought under Bivens....”); Munoz v. Orr, 559 F.Supp. 1017, 1019 (W.D. Tex. 1983) (dismissing § 1983 claims against Secretary of the Air Force and other federal actors who were not acting “under color of state law”). Accordingly, 42 U.S.C. § 1983 does not afford Lopez a cause of action against Defendants.
Even if the Court were to construe Lopez's motion as asserting a claim under Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), rather than under § 1983, the claim would still fail. In Bivens, the Supreme Court provided a “federal counterpart” to § 1983, “extend[ing] the protections afforded by § 1983 to parties injured by federal actors” who would not otherwise be liable. Abate v. S. Pac. Transp. Co., 993 F.2d 107, 110 n.14 (5th Cir. 1993). However, a Bivens cause of action is currently recognized in only three limited circumstances not appliable here. See Carlson v. Green, 446 U.S. 14 (1980) (recognizing cause of action against federal prison officials for prisoner's inadequate care under the Eighth Amendment); Davis v. Passman, 442 U.S. 228 (1979) (recognizing cause of action against Congressman by former staffer for sex-based discrimination under the Fifth Amendment); Bivens, 403 U.S. at 388 (recognizing cause of action against federal agents for excessive force under the Fourth Amendment).
Lopez does not assert any of the recognized Bivens claims listed above. While courts, in principle, may create additional causes of action in “new Bivens context[s],” doing so is “a disfavored judicial activity.” Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022). Specifically, the Court cannot create a new Bivens action if “the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.'” Id. (citing Ziglar v. Abbasi, 582 U.S. 120, 137 (2017)). This limitation is a strict one: if there is “[e]ven a single sound reason .... to think Congress might doubt the efficacy or necessity of a damages remedy[,] the courts must refrain from creating [it].” Egbert, 142 S.Ct. at 1803 (quoting Ziglar, 582 U.S. at 137).
Here, the Court need not decide whether Congress is better equipped to create a cause of action for a specific violation because, while Lopez states Defendants violated several provisions of the Code of Federal Regulations, he does not identify a particular regulation that they allegedly violated. (See Docket Entry 55 at 1-2 (generally asserting that Defendants “violated Code of Federal Regulations (CFR's) during the [P]laintiff's [d]iscrimination complaint process”).) In any event, such regulatory violations would not support creation of a new cause of action; “a Bivens remedy exists, if at all, to ‘remedy . . . constitutional violations.” SAI v. Dep't of Homeland Sec., 149 F.Supp.3d 99, 125 (D.D.C. 2015) (quoting Wilson v. Libby, 535 F.3d 697, 704 (D.C. Cir. 2008) (emphasis in original)). For all these reasons, Lopez's putative injunction request should be denied.
V. Conclusion and Recommendation.
Based on the foregoing, I recommend that Defendants' Motion for Summary Judgment (Docket Entry 62) be GRANTED and that Plaintiff's Motion to Enter Injunctive Relief (Docket Entry 55) be DENIED.
VI. Notice of Right to Object.
The United States District Clerk shall serve a copy of this Report and Recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the Clerk of Court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this Report and Recommendation must be filed within fourteen (14) days after being served with a copy of the same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
The parties shall file any objections with the Clerk of the Court and serve the objections on all other parties. An objecting party must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions, and recommendations contained in this Report and Recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).