Opinion
IP 02-0864-C-B/S.
August 27, 2004
ENTRY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant's Renewed Motion to Dismiss, or in the alternative, Motion for Summary Judgment. Plaintiff Kathy Smith ("Ms. Smith") alleges gender-based harassment and discriminatory termination by her employer, Defendant John E. Potter, Postmaster General of the United States Postal Service ("USPS" or the "agency"). Defendant seeks now, for a second time, to dismiss the claim for failure to exhaust administrative remedies or, in the alternative, to enter Summary Judgment in Defendant's favor. For the reasons given below, we GRANT Defendant's renewed Motion for Summary Judgment.
Though Defendant's initial brief postulates two possible bases for this civil action — Title VII and the Federal Tort Claims Act — Plaintiff's responsive brief limits the case to Title VII. We nonetheless address both theories.
Defendant's September 16, 2002 Motion to Dismiss, or in the Alternative, Motion for Summary Judgment was denied without prejudice on October 25, 2002 because Plaintiff had a case pending before the Office of Federal Operations ("OFO") of the Equal Employment Opportunity Commission ("EEOC").
Factual Background
Ms. Smith worked as a full-time mail clerk for the USPS for twelve (12) years before she was "removed" from her employment in October 1998 for "unacceptable conduct." Def.'s Renewed Mot. to Dismiss at 4, ¶ 1. Earlier in the month she had been discovered vandalizing a co-worker's vehicle in the employee parking lot. The vandalism occurred in the context of an ongoing personal dispute with another USPS employee, Karen Hill, herself accused of damaging the plaintiff's vehicle, dislocating Smith's shoulder and making harassing calls to Plaintiff's home. Def.'s Original Mot. to Dismiss, Ex. 1-A; Notice of Removal.Following the vandalism on October 4, Ms. Smith was suspended pending an investigation, the result of which was the agency's notification on October 22, 1998 that she would be removed from USPS employment as of November 27, 1998. The notice of removal letter referenced two prior incidents of absenteeism in 1997 which had also been considered in arriving at the termination decision. Id. Ms. Smith was informed that she had a contractual right to file a grievance through her union, the American Postal Workers Union ("APWU" or "the union"). Def.'s Memo. in Support of Renewed Mot. to Dismiss ("Def.'s Memo."), Ex. 4; Singleton Declaration, ¶ 2.
Plaintiff challenged her removal in two parallel proceedings: she filed a grievance with the APWU and also pursued an internal USPS remedy. At issue in this motion is the timeliness of her initiation of the agency complaint; thus, our factual recitation focuses on those events.
We note that with regard to the union grievance process, Ms. Smith appealed every denial through Step 3 (Def.'s Memo. ¶¶ 3-5; Ex. 4-A, B) and eventually the union elected to appeal the grievance to arbitration (id. Ex. 4-F), whereupon the arbitrator upheld Ms. Smith's removal on June 6, 2001. Id. Ex. 4-G. During the arbitration stage of the grievance, Ms. Smith was represented by counsel for the first time. Pl.'s Response ¶ 59.
According to the defendant's EEO records, Ms. Smith's pursuit of an administrative remedy commenced on February 3, 1999, when she contacted a Dispute Resolution Specialist after the denial of her Step 2 grievance. Original Motion, Ex. 1, Seymour Decl. ¶ 4. She received an EEO booklet a few days later, on February 12, 1999, which instructed an aggrieved party to contact the EEO complaints processing office within 45 calendar days of an alleged harassing or discriminatory act or, in the case of a personnel action, within 45 calendar days of the effective date of the action. Original Motion, Ex. 1-D, p. 4. This instruction essentially embodies the terms of 29 C.F.R. § 1614.105, which governs the processing of employment discrimination complaints in the federal sector, including those of USPS employees:
(a) aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter.
(1) an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of action.
(2) The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of this section when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, 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 for other reasons considered sufficient by the agency or the Commission.29 CFR § 1614.105.
The above information is also set out in poster form (Poster 72), captioned "Equal Employment Opportunity Is The Law." Several "Posters 72" are displayed in Ms. Smith's workplace, that is, the Indianapolis Main Post Office, and have been since 1993. Def.'s Original Mot. to Dismiss, Ex. 1, Seymour Decl. ¶ 15.
Ms. Smith refutes the defendant's characterization of the February 3, 1999 date as the "first contact," contending that she called the agency EEO office the week following her suspension in October 1998 to complain of harassment and discrimination. Pl.'s Response; Ex. A, Smith Decl. ¶ 6. In that call, an unidentified female purportedly said to Ms. Smith that the EEO office could not do anything for her until the union grievance process was complete. Id. ¶ 7. Ms. Smith has submitted sworn statements from two co-workers, Damon Jermmott and Boyd Stevens, Jr., and a friend and former co-worker, Tammy Zemke, stating that Ms. Smith told them that she had contacted the agency's EEO office and was told the EEO could not help until the union grievance process was complete. Pl.'s Response; Ex. B, Jermott Decl. ¶ 5; Ex. C, Stevens Decl. ¶ 9; Ex. D, Zemke Decl. ¶ 7. In any event, there is no agency record of this contact. However, the record does reflect that the February 3, 1999 contact resulted in the opening of an informal complaint, captioned EEO Case No. 1-J-461-0048-99. Def.'s Memo. ¶ 5.
Defendant objects to Pl.'s Exhibits B, C and D office as inadmissible hearsay; we discuss their admissibility infra at p. 13, fn.8.
The complaint alleged discriminatory treatment on the basis of sex (female) because Ms. Smith — "a female with an alcohol problem" — was not returned to her position with the USPS following a Step 2 grievance hearing when similarly-situated male employees with alcohol problems had been. Ms. Smith also alleged discrimination based on race (white) because she was removed from her job for an episode of "unacceptable conduct," whereas an African-American co-worker, Karen Hill, had not been disciplined, let alone removed, for vandalizing the plaintiff's vehicle on July 7, 1998, assaulting her on September 24, 1998 or making harassing phone calls to her home between July and September 1998. Original Motion, Ex. 1-A.
In addition to filing this informal complaint, Ms. Smith participated in a voluntary mediation program on February 22, 1999 but withdrew because she found it an overly frustrating and emotional experience. Pl.'s Response ¶ 51-52. She also withdrew the informal complaint on the same day. Original Motion, Ex. 1-E.
When the union grievance process concluded on June 6, 2001 with an arbitrator's award affirming Ms. Smith's removal, Smith contacted the agency's EEO office on June 11, 2001, creating EEO Informal Case No. 1-J-461-0068-01. Original Motion, Ex. 1; Seymour Decl. ¶ 8. In response, the agency mailed Plaintiff two forms — PS2579-A (Notice of Right to File Individual Complaint) and PS2565 (EEO Complaint of Discrimination) — and also notified her by phone on June 25, 2001 that she had the right to file a mixed complaint. Def.'s Memo. ¶ 8; Original Mot. Ex. 1-G; Pl.'s Response ¶ 56.
A mixed complaint is complaint of employment discrimination with a federal agency based on race, color, religion, sex, national origin, age or handicap stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB). 29 C.F.R. § 1614.302(a).
Ms. Smith opted to file a formal complaint on June 27, 2001, alleging that the final arbitration decision upholding her removal from the USPS was discriminatory on the basis of race. Pl.'s Response ¶ 57; Def.'s Memo. ¶ 11. She cited some of the same factors from the earlier, withdrawn, complaint: namely, that she, an African-American/American woman, had suffered an adverse employment action when no similar action had been taken against an African-American employee (Karen Hill) who had engaged in similar episodes of unacceptable conduct while "on the clock." Original Mot. Ex. 1-I.
The agency's EEO office issued a "Final Agency Decision" ("FAD") dismissing Plaintiff's formal complaint on August 23, 2001 for her failure to contact an EEO Dispute Resolutions Specialist within 45 days of the alleged discriminatory acts. The FAD refers to two dates — the arbitration decision of June 6, 2001 and her removal from the USPS as of November 27, 1998 — and simply states that the June 11, 2001 contact occurred after the 45 day time period. Original Mot. Ex. 1-J. This assertion by the agency suggests that it relied on November 27, 1998 — the last day Ms. Smith was on the USPS payroll — as the date from which to calculate the 45-day filing period. Clearly, if USPS had instead begun to count from the day on which Ms. Smith exhausted the union grievance procedure — June 6, 2001 — her EEO contact would have been deemed timely. The agency determined that Ms. Smith had had constructive notice of the time limits for beginning the required pre-complaint process based on the prominent display of the EEO posters throughout her workplace.
Plaintiff promptly appealed the FAD dismissal to the Office of Federal Operations ("OFO") of the Equal Employment Opportunity Commission. Original Mot. Ex. 1-K. The USPS requested that the OFO dismiss Ms. Smith's appeal (EEOC Docket No. 01A151239) because she had simultaneously filed an employment discrimination claim in this court on June 3, 2002. The OFO not only did not dismiss Ms. Smith's appeal, on September 12, 2002 it reversed the FAD dismissal decision and remanded Ms. Smith's complaint to the USPS for further processing. Pl.'s Response ¶ 58; Def.'s Memo. ¶¶ 14-16.
The OFO reversal was premised on the fact that the agency had identified two inconsistent dates as potential triggers for the 45-day time limit for initiating contact with an EEO counselor, and "given the difference, and considering that complainant's initial EEO Counselor contact occurred only several days after the effective removal date identified on the PS Form 50, the Commission determines that her EEO Counselor contact was timely."
PS Form 50, part of the record in OFO Appeal No. 01A15238, Smith v. USPS, identifies November 27, 1998 as Smith's last day in pay status and June 8, 2001 as the effective date of her removal from USPS employment. Def.'s Memo. Ex. 4-I.
USPS maintains that Ms. Smith remained on the USPS employment rolls until June 2001, despite her removal from her employment more than two years earlier, based on a protection in her collective bargaining agreement ("CBA"). Article 16.5 of the CBA provides that a suspended employee shall remain on the rolls (non-pay status) until disposition of the case has occurred either by settlement with the Union or through exhaustion of the grievance-arbitration procedure. Id.; Ex. 4-H. Defendant contends that the effective date of Ms. Smith's termination was November 27, 1998, as indicated in the Notice of Removal letter dated October 22, 1998, and that her last day in a pay status was November 28, 1998. Def.'s Original Mot.; Ex. 4, Singleton Decl. ¶ 13. Moreover, according to the Employee and Labor Relations Manual, the USPS policy regarding the effective date of an involuntary separation is the date designated by the official making the decision (here, Supervisor Elaine Walker who signed the October 1999 Notice of Removal). Id. ¶¶ 15-16.
The USPS twice requested that the OFO reconsider its September 12, 2002 decision, ultimately securing a dismissal of Plaintiff's complaint, not for a merits-based reason but for the reason that Ms. Smith had filed this civil action on June 3, 2002. Def.'s Memo. ¶¶ 17-21. EEOC Regulation 29 C.F.R. § 1614.409 provides that a filing of a civil action terminates the EEOC's processing of an appeal for reasons of judicial economy and also to prevent creating the potential for inconsistent and conflicting decisions between the court and the administrative agency. Furthermore, the EEOC gives due deference to the authority of the federal district court. See Docket # 23; Dec. 23, 2002 letter from the OFO dismissing USPS's request for reconsideration.
Standard of Review
The defendant labels its motion under review a motion to dismiss and/or summary judgment. Since both parties have submitted materials outside the pleadings, e.g. sworn declarations from witnesses other than the parties, EEOC letters, grievance forms from the plaintiff's union, etc., Defendant's motion has been properly converted into a motion for summary judgment. See Fed.R.Civ.P. 12(b); Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993);Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp.2d 849, 850 (S. D.Ind. 1998) (Barker, C.J.).
As such, summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
The burden rests on the moving party to demonstrate the absence of a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Summary judgment is not a substitute for a trial on the merits, nor is it a vehicle for resolving factual disputes. Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Therefore, in considering a motion for summary judgment, we draw all reasonable inferences in favor of the non-movant. Venters v. City of Delphi, 123 F.3d 956, 962 (7th Cir. 1997). If genuine doubts remain, and a reasonable fact-finder could find for the party opposing the motion, summary judgment is inappropriate. See Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir. 1992); Wolf v. City of Fitchburg, 870 F.2d 1327, 1330 (7th Cir. 1989). But if it is clear that a plaintiff will be unable to satisfy the legal requirements necessary to establish her case, summary judgment is not only appropriate, but mandated. See Celotex, 477 U.S. at 322; Waldridge, 24 F.3d at 920.
Legal Analysis
Tort Claim
First, we consider the defendant's argument for dismissal based on there possibly being a tort claim asserted here stemming from the plaintiff's allegation that she suffered injuries as a result of the negligent conduct of a USPS employee, Karen Hill. Def.'s Memo. at 23. The Complaint does not specifically allege a tort claim. Were there such a claim, federal jurisdiction over a civil action against the United States for money damages for injury to person or property is established by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. Assuming Ms. Smith is attempting to sue her employer for losses she alleges to have suffered at the hands of a negligent USPS fellow employee, the FTCA does not permit the commencement of a civil lawsuit "unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C. § 2675(a).
No such notice of tort claim apparently has been filed by Ms. Smith. The defendant submits the sworn declaration of Lee A. Shelton, the agency's Tort Claims Coordinator, asserting that Ms. Smith, as of September 5, 2002, never filed a tort claim against the USPS for harassment or injury. Original Motion, Ex. 2. Defendant correctly argues that Plaintiff's failure to file an administrative claim deprives this court of jurisdiction over a civil claim for money damages against the USPS. Best Bearings Co. v. U.S., 463 F.2d 1177, 1179 (7th Cir. 1972), abrogated on other grounds. We take Plaintiff's failure to file the notice of tort claim as dispositive of her intention to bring a tort claim. To the extent the complaint alleges a tort claim, it is dismissed for the failure to exhaust administrative remedies.
Title VII Employment Discrimination Claim
We must next resolve, as a matter of law, whether the plaintiff exhausted administrative remedies relating to her employment discrimination claim because, in general, the failure to exhaust administrative remedies on this issue precludes bringing her claim in federal court. McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992).
An aggrieved person is required to initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of action. 29 C.F.R. § 1614.105. Ms. Smith, as an aggrieved postal worker, made two separate contacts with an EEO counselor, attempted a voluntary mediation, completed the grievance-arbitration process, and appealed her termination to this court. On first review, this stream of activity appears to suggest that she did successfully exhaust her administrative remedies; however, a closer examination of the evidentiary record fails to support this conclusion.
If we adopt the USPS's suggested time line, the plaintiff would have been required to contact an EEO counselor no later than January 11, 1999, that is, 45 days after her effective termination on November 27, 1998. However, the agency records disclose that Ms. Smith first contacted an EEO counselor on February 3, 1999 — some three weeks late — leading to the conclusion that Ms. Smith missed her opportunity to pursue her administrative remedies challenging her termination, which renders her judicial claim here time-barred.
Plaintiff offers two theories in an attempt to rescue her claim: (1) the agency is equitably estopped from asserting the 45-day statute of limitations and (2) her June 11, 2001 contact was timely in terms of meeting the 45-day deadline, because it came within the time following the conclusion of her grievance process.
The June 6, 2001 arbitration decision sustaining her termination.
Ms. Smith's first claim that she is entitled to the benefit of the doctrine of equitable estoppel because the defendant engaged in affirmative misconduct, which prevented her from filing her complaint in a timely manner, lacks evidentiary support. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-451 (7th Cir. 1990) (noting that equitable estoppel comes into play if defendant takes active steps to prevent plaintiff from suing in time, as by promising not to plead statute of limitations); Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996) (noting that a defendant who through misleading representations or otherwise prevents the plaintiff from suing in time will be estopped to plead the statute of limitations).
Ms. Smith appears to argue that the USPS deliberately misled her when she telephoned the EEO office on one occasion in October 1998 and an unidentified woman allegedly told her that the EEO could not help her until the union grievance process was complete. Pl.'s Resp., Ex. A; Smith Aff. ¶ 7. This single instance of an alleged misrepresentation, assuming it is true, as we must at this procedural juncture, is insufficient to establish that the defendant actively prevented her from asserting her right to report a discriminatory employment action so as to give rise to equitable estoppel. Given the abundance of correct information, including the various posters throughout the workplace which inform grievants of the 45-day time limit for filing an EEO complaint, we cannot conclude that Ms. Smith was entitled to rely on the information from that single telephone call, in any event. Plaintiff's equitable estoppel theory based on the contention that the agency actively misled her simply is unsubstantiated and thus is unavailing.
In addition, Ms. Smith submits two sworn statements by non-parties in which they attest to Ms. Smith's having told them she contacted the EEO office in the week following her suspension in October 1998 and was told the EEO could not help her until the union grievance process was complete. Pl.'s Resp., Ex C; Stevens Decl. ¶¶ 8-9; Ex. C; Zemke Decl. ¶ 7. The non-party statements are inadmissible hearsay because they are offered to prove statements by Ms. Smith that she was misled by the agency when she tried to contact the EEO office in a timely manner.
Plaintiff's second theory — that the statute of limitations only began to run on June 6, 2001, the date when she was notified that an arbitrator had sustained her removal from employment — is similarly unpersuasive. On this date, according to Ms. Smith, she understood the internal grievance procedure to have concluded, making her termination final. Five (5) days later on June 11, 2001, Ms. Smith contacted an EEO Dispute Resolution Specialist alleging a discriminatory adverse personnel action. The agency contends that it is an error to treat the time of the Arbitration Award in June 2001 as an independent wrong which triggered the requirement of contacting an EEO counselor. Instead, this date should be viewed merely as confirmation of the agency's November 27, 1998 decision to terminate Ms. Smith. Def.'s Brief at 15. PS Form 50 refers to Ms. Smith's effective date of removal as June 8, 2001 and November 27, 1998 as her last day in pay status. Ms. Smith thus clearly did not have a job at the USPS after November 27, 1998, even though, as we have previously noted, under the terms of the CBA, she was entitled to remain on the employment rolls through the time of the final arbitration decision. USPS determined the effective date of Smith's removal to be that date designated by the official making the decision, directing us to the October 1999 Notice of Removal. This explanation corroborates the earlier termination date, in November, 1998. See supra at 8. The OFO's decision to credit the plaintiff's alternate triggering date for the statute of limitations is not binding on us. The undisputed evidence indicates that Ms. Smith, who believed herself to be a victim of discrimination as early as February 1999, contacted the EEO counselor and initiated the the informal resolution process at that time.
See supra, fn. 6.
Ms. Smith's first contact with the EEO to complain of discriminatory treatment, on February 3, 1999, was untimely, under the requirements of Title 29 of the Code of Federal Regulations, Section 1614.105. As a result, Ms. Smith's Title VII claims against the Defendant in this lawsuit are barred by the statute of limitations as a matter of law.
Conclusion
For the reasons explicated above, we GRANT Defendant's Motion for Summary Judgment and direct entry of final judgment in Defendant's favor.
It is so ORDERED.