Opinion
Civil Action No: 99-2993, Section: "E"(3)
June 16, 2000
MINUTE ENTRY
In September, 1998, plaintiff, Theresa Steward, filed a grievance with the National Treasury Employees Union (NTEU) concerning an August 27, 1998, altercation with her manager, J. T. Purnell. On January 27, 1999, plaintiff filed a complaint with the EEOC, ("TD no. 99-2148"), alleging that she was subject to a hostile work environment and discrimination on the basis of sex, race and color. On February 18, 1999, the NTEU withdrew Steward's September, 1998, grievance. On March 30, 1999, the Department of the Treasury sent Steward a letter informing her that TD no. 99-2148 was being dismissed because Steward had elected to raise the same matters in a negotiated grievance procedure.
Rec. Doc. No. 1, ¶ 9. The National Treasury Employees Union, Chapter 6, filed the grievance on plaintiff's behalf. See motion to dismiss, attachment no. 2, p. 2.
Motion to dismiss, attachment no. 1, p. 000077; see also memorandum in opposition, p. 3, ¶ I (c).
Memorandum in support of motion to dismiss, p. 3, and attachment no. 2, p. 2.
See 29 C.F.R. § 1614.104 which provides, in pertinent part:
(a) Each agency subject to this part shall adopt procedures for processing individual and class complaints of discrimination that include the provisions contained in §§ 1614.105 through 1614.110 and in § 1614.204, and that are consistent with all other applicable provisions of this part and the instructions for complaint processing contained in the Commission's Management Directives29 C.F.R. § 1614.107 (a)(3) instructs the agency to dismiss an entire complaint: "[t]hat is the basis of a pending civil action in a United States District Court in which the complainant is a party provided that at least 180 days have passed since the filing of the administrative complaint, or that was the basis of a civil action decided by a United States District Court in which the complainant was a party;" see also; Richard B. Gallagher, Glenn A. Guarino, Irwin J. Schiffres, Tim, A. Thomas, Mitchell J. Waldman, 45B Am. Jur. 2d Job Discrimination § 1721 (1993) (Major federal job discrimination laws applicable to employees of the federal government are administered internally by the employer agencies themselves, but give aggrieved employees the right to appeal to the EEOC, the Merit Systems Protection Board (MSPB), or the federal district courts).
Motion to dismiss, attachment no. 2, p. 1; see also attachment no. 3 in which Steward checked the box indicating that she had filed a complaint on the same matter with the EEOC, another agency, or through any other administrative or collective bargaining procedure.
On May 4, 1999, the EEOC received Steward's appeal of the dismissal of TD no. 99-2148. According to Steward, she received a right-to-sue letter with respect to that complaint "on or about" June 30, 1999, or July 5, 1999, notifying her that her appeal had been denied. During a telephone conference with both parties, counsel for defendant stated that it is defendant's position that plaintiff never received a right to sue letter with respect to TD no. 99-2148 and that the appeal of TD no. 99-2148 is still pending.
Motion to dismiss, attachment no. 3.
On June 19, 1999, plaintiff filed a second complaint with the EEOC ("TD no. 99-2302"). Plaintiff complained that her manager retaliated against her by removing her from flexi-place, verbally abusing her, threatening her with leave without pay and AWOL status on six occasions, and treating a coworker more favorably with regard to adjustment of schedules, tours of duty, inventory levels, taking leave, and working out of the home.
Motion to dismiss, attachment no. 4.
On September 30, 1999, plaintiff filed the above-captioned lawsuit against the Secretary of the Department of Treasury, Lawrence H. Summers, alleging, "unlawful employment practices, harassment, discrimination . . . retaliation" and a hostile work environment. Although TD no. 99-2302 was originally accepted for filing by the EEOC, it was dismissed pursuant to 29 C.F.R. § 1614.107 (c) on November 17, 1999, because it was "the basis of a pending civil action in the United States District Court in which the Complainant is a party and at least 180 days have passed since the filing of a previous formal complaint of discrimination."
Rec. Doc. No. 1, ¶ 4.
Rec. Doc. No. 1, ¶¶ 12 and 20.
Motion to dismiss, attachment no. 5.
Motion to dismiss, attachment no. 6, p. 1. Although there is no longer a section labeled 29 C.F.R. § 1614 (c), the applicable subsection is set forth in 29 C.F.R. § 1614.107 (a)(3) which states:
(a) Prior to a request for a hearing in a case, the agency shall dismiss an entire complaint:
. . .
(3) That is the basis of a pending civil action in a United States District Court in which the complainant is a party provided that at least 180 days have passed since the filing of the administrative complaint, or that was the basis of a civil action decided by a United States District Court in which the complainant was a party.
Before the Court is defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) in which he argues that the Court lacks jurisdiction over the plaintiff's claims because plaintiff previously brought the claims which are the subject of this lawsuit in a grievance proceeding before the NTEU. In addition, defendant argues that the complaint is untimely as it was not filed within 90 days from the date Steward alleges she received her right to sue letter. Alternatively, defendant argues that by abandoning the administrative process and filing a lawsuit prior to 180 days from the date she filed her appeal of the dismissal of her EEOC complaint, Steward failed to fully exhaust her administrative remedies. This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636 (c) and upon the written consent of all parties.
Memorandum in support of motion to dismiss, p. 2.
Record Doc. No. 9.
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's subject matter jurisdiction. As the party invoking jurisdiction, the plaintiff carries the burden of establishing subject matter jurisdiction. "When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations." The Court may examine evidence outside the pleadings to resolve disputed jurisdictional facts under Rule 12(b)(1). References by the Court to evidence outside the pleadings does not convert the motion to one filed pursuant to Fed.R.Civ.P. 56. "The district court should grant the Rule 12(b)(1) motion to dismiss `only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'"
Postels v. Peters, 2000 WL 280018, *3 (E.D. La.).
Comprehensive Addiction Programs v. Mendoza, 50 F. Supp.2d 581, 582 (E.D. La. 1999) ( citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994)); see also Postels, 2000 WL 280118 at *3.
Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000).
Comprehensive Addiction Programs v. Mendoza, 50 F. Supp. 2d at 582.
Pringle, 208 F.3d at 1222.
Banks v. Virginia Electric Power Company, 205 F.3d 1332, 2000 WL 191851, **2 (4th Cir.) ( quoting Richmond. Fredericksburg Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991), cert. denied, 503 U.S. 984, 112 S.Ct. 1667, 118 L.Ed.2d 388 (1992)), petition for cert. filed May 16, 2000, No. 99-1842).
Defendant's first argument is that because Steward previously raised the same claims argued in this lawsuit through a grievance proceeding, this Court has no jurisdiction over this lawsuit. "The Federal Labor-Management Relations Act, 5 U.S.C. § 7101-35, governs the methods and manner by which a federal employee with exclusive union representation may challenge an adverse personnel decision" by the government agency that employs him. "The Act specifies that `a federal employee who alleges employment discrimination must elect to pursue his claim under either a statutory procedure or a union-assisted negotiated grievance procedure; he cannot pursue both avenues, and his election is irrevocable.'" 29 C.F.R. § 1614.301 (a), relative to the relationship between EEOC complaints and negotiated grievance procedures, provides in pertinent part that:
The National Treasury Employees Union is the exclusive representative of IRS employees. See National Treasury Employees Union v. Federal Labor Relations Authority, 793 F.2d 371, 372 (D.C. Cir. 1985) (IRS service center employees).
Perry v. Dalton, 191 F.3d 461, 199 WL 699494, **1 (9th Cir. 1999) ( citing Vinieratos v. United States, Dep't of Air Force, 939 F.2d 762, 768 (9th Cir. 1991)).
5 U.S.C. § 7103, 7111.
Perry v. Dalton, 191 F.3d 461, 1999 WL 699494 at*1 ( quoting Vinieratos v. United States, Dep't of Air Force, 939 F.2d at 768 and 5 U.S.C. § 7121 (d)). 5 U.S.C. § 7121 (d) provides:
(d) An aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first.5 U.S.C. § 2302 (b)(1) provides that:
Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority —
(1) discriminate for or against any employee or applicant for employment —
(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. 2000e-16);
An aggrieved employee who files a complaint under this part may not thereafter file a grievance on the same matter. An election to proceed under a negotiated grievance procedure is indicated by the filing of a timely written grievance. An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or of whether the grievance has raised an issue of discrimination. Any such complaint filed after a grievance has been filed on the same matter shall be dismissed without prejudice to the complainant's right to proceed through the negotiated grievance procedure including the right to appeal to the Commission from a final decision.
"The law requires an aggrieved federal employee to elect one exclusive administrative remedy and to exhaust whatever remedy he chooses. When a federal employee obstructs the smooth functioning of a properly elected administrative process and abandons that process to pursue a remedy elsewhere, he fails to exhaust his chosen remedy and thereby forecloses judicial review."
Vinieratos v. United States Dept. of the Air Force, 939 F.2d at 772.
In this case, Steward was covered by a collective bargaining agreement between the IRS and the NTEU, entitled NORD IV. This agreement states in pertinent part:
D.
Employees who believe they have been illegally discriminated against on the basis of race, color, religion, sex, national origin, age, or handicapping condition have the right to raise the matter under the statutory procedure or the negotiated grievance procedure of this Agreement, but not both.
E.
When the employee elects to raise the matter under the negotiated grievance procedure, the grievance shall specify the specific nature of the discrimination (for example, race, religion) and the facts upon which the allegation is based.
Motion to dismiss, attachment 7.
The grievance filed on plaintiff's behalf pursuant to NORD IV concerned an August 27, 1998, incident between Steward and Purnell. In that grievance, Steward requested that she be assigned to another group manager, that a public apology be issued, that her presence not be required at the Houma duty post on the days that Purnell was on duty, and that Purnell be disciplined in accordance with the Guide for Penalty Determinations. Over four months after filing that grievance, but before the grievance procedure was completed, plaintiff filed a complaint with the EEOC, TD no. 99-2148, alleging that she was subject to a hostile work environment and that she was being discriminated against on the basis of sex, race and color. By filing a grievance with the NTEU before filing an EEOC complaint, Steward elected to challenge the same acts of discrimination through the grievance procedure. Because Steward abandoned the grievance process to pursue another avenue of relief, i.e. the EEOC process, she failed to exhaust the administrative remedy she had elected to pursue. Therefore, Steward is precluded from challenging the alleged acts of discrimination which are alleged to be in violation of Title VII.
See motion to dismiss, attachment no. 2, p. 2.
A March 30, 1999, letter to Steward from the Department of Treasury, which is labeled attachment no. 2 to defendant's motion to dismiss, states, in pertinent part:
The record shows that you are covered by the collective bargaining agreement, National Agreement between Internal Revenue Service (IRS) and the National Treasury Employees Union, NORD IV, that allows allegations of discrimination to be raised in the negotiated grievance procedures. Your decision to pursue the negotiated grievance procedure constituted an election of forum within the meaning of § 1614.301(a). Therefore, I am dismissing your complaint as the same issue that was raised under the negotiated grievance procedure.
Motion to dismiss, attachment no. 2.
Motion to dismiss, attachment no. 1.
See e.g., Vinieratos v. United States Dept. of the Air Force, 939 F.2d at 769.
See Nouraie v. Sullivan, 61 F.3d 912, 1995 WL at **3 (9th Cir. 1995), cert. denied sub nom, Nouraie v. West, 519 U.S. 838, 117 S.Ct. 114, 136 L.Ed.2d 66 (1996).
Steward's second EEOC complaint, TD no. 99-2302, was filed on June 19, 1999. This lawsuit was filed on September 30, 1999. The EEOC did not dismiss TD no. 99-2302 until November 17, 1999. In the letter of dismissal, the Director of the Regional Complaint Center for the Department of the Treasury stated:
In accordance with the Equal Employment Opportunity Commission (EEOC) regulations at 29 C.F.R. § 1614, I am dismissing TD Case Number 99-2302 filed on June 19, 1999, because it is the basis of a pending civil action in the United States District Court in which the Complainant is a party and at least 180 days have passed since the filing of a previous formal complaint of discrimination, TD Case Number 99-2148, filed on January 27, 1999. 29 C.F.R. § 1614.107 (c). While 180 days have not passed since the filing of TD Case Number 99-2302, I am dismissing this complaint because the allegations also form the basis of the above pending civil action which alleges that the Complainant has been subjected to an ongoing pattern of discriminatory harassment.
On January 27, 1999, the Complainant filed a formal complaint of discrimination, TD Case Number 99-2148, alleging a continuing pattern of harassment based on race (African American), color (light/medium) and sex (female) when allegedly a prior manager was verbally and physically abusive toward the Complainant. On March 30, 1999, we dismissed TD Case Number 99-2418 because the allegations in that case were raised in a prior negotiated grievance procedure that permits allegations of discrimination. On May 4, 1999, the Complainant appealed the dismissal of that case. The record reflects that at least 180 days have passed since the filing of that case.
On June 19, 1999, the Complainant filed a subsequent formal complaint of discrimination, TD Case Number 99-2302, alleging a hostile working environment based on reprisal when allegedly the Complainant's new manager adversely effected the Complainant's working conditions with regard to her flexi-place/tour-of-duty, her leave and communicated with the Complainant in a demeaning manner. On August 16, 1999, this case was accepted for processing and an investigation was conducted during the week of September 13, 1999.
On September 30, 1999, a civil action was filed by you, on behalf of the Complainant, in the U.S. District Court, Eastern District of Louisiana, Civil Action 99-2993, Section E, Magistrate 3. The civil action specifically itemizes the hostile working environment allegations regarding the Complainant's flexi-place/tour-of-duty, leave and demeaning treatment displayed by her new manager, as asserted in TD Case Number 99-2302. The civil action also itemizes the verbal and physical harassment conducted by her former manager, as asserted in TD Case Number 99-2148.
Based on a thorough review of the entire record, it is my determination that the Complainant's present allegations in her formal discrimination complaint are inextricably intertwined with the allegations of discrimination covered in the civil action because they involve the same allegations of an ongoing pattern of harassment, in which the Complainant asserts a conspiracy between management officials and 180 days have passed since the filing of the first formal discrimination complaint, TD Case Number 99-2148. Therefore, I am dismissing TD Case Number 99-2302, in accordance with 29 C.F.R. § 1614.107 (c), because the Complainant elected to pursue her complaint in the United States District Court for the Eastern District of Louisiana.
Motion to dismiss, attachment no. 6.
In TD no. 99-2418, Steward alleged that she was subject to a hostile working environment and discrimination based on sex, race and color. Specifically, Steward stated that her previous supervisor, J. T. Purnell, constantly and persistently verbally abused, harassed, intimidated, bullied, insulted, and unfairly treated her. In addition, she complained that Purnell's actions ultimately led to a physical assault and battery on August 27, 1998.
Motion to dismiss, attachment no. 1, p. 000077; see also memorandum in opposition, p. 3, ¶ I (c).
In TD no. 99-2302, Steward alleged that as a result of her September, 1998, complaint, her manager retaliated against her. Specifically, Steward stated that her manager removed her from flexi-place, that he verbally abused her, and that he threatened her with leave without pay and AWOL status on January 21, 1999, January 26, 1999, February 22, 1999, February 23, 1999, April 20, 1999, and April 21, 1999. In addition, Steward alleged that her manager treated a co-worker more favorably with respect to adjustment of schedules, tours of duty, inventory levels, taking leave, and working out of the home.
Motion to dismiss, attachment no. 4.
Motion to dismiss, attachment no. 4.
In this lawsuit, Steward alleges that she began working for the United States Department of Treasury in 1991. Plaintiff states that in August, 1998, her manager, J. T. Purnell, grabbed her "by the elbow and yelled at her in front of other employees without justification." In September, 1998, plaintiff filed a grievance with the National Treasury Employees Union ("NTEU") about the incident involving Purnell. Plaintiff states that subsequent to the filing of the September, 1998, grievance, the agency retaliated against her by changing her job assignment and subjecting her to a hostile work environment. Plaintiff contends that in November, 1998, she was assigned two new managers, one of which, Sheila Christophe, "made abrasive remarks to Plaintiff in regards to her [grievance]."
Rec. Doc. No. 1, ¶ 7.
Rec. Doc. No. 1, ¶ 8.
Rec. Doc. No. 1, ¶ 9.
Rec. Doc. No. 1, ¶¶ 10 and 12.
Rec. Doc. No. 1, ¶¶ 13 and 14.
Steward argues in this lawsuit that on or about February 22, 1999, she telephoned Christophe "to inform her that her doctor was extending her time off until March 8, 1999 at which time she was threaten [sic] to be charged with Absent Without Leave." She further alleges that, "[o]n or about March 23, 1999, Plaintiff's schedule was reduced to 3 days a week" and that "[o]n or about April 15, 1999, Ms. Christophe confronted Plaintiff for no apparent reason in a hostile and offensive manner. Plaintiff felt powerless, applauded and left her work station due to duress and stress." Steward alleges that due to the hostile work environment, she was forced to ask for a reassignment to a Baton Rouge post of duty.
Rec. Doc. No. 1, ¶ 15.
Rec. Doc. No. 1, ¶¶ 17 and 18.
Rec. Doc. No. 1, ¶ 19.
A review of the claims raised by Steward in both EEOC complaints and the instant lawsuit supports the Director's determination that, "[t]he civil action specifically
itemizes the hostile working environment allegations regarding the Complainant's flexi-place/tour-of-duty, leave and demeaning treatment displayed by her new manager, as asserted in TD Case Number 99-2302. The civil action also itemizes the verbal and physical harassment conducted by her former manager, as asserted in TD Case Number 99-2148." The allegations in TD nos. 99-2148 and 99-2302 constitute "an ongoing pattern of discriminatory harassment."
Motion to dismiss, attachment no. 6.
See motion to dismiss, attachment no. 6, p. 1.
Steward initially pursued claims through a grievance proceeding before the NTEU. After filing her initial EEOC complaint, TD no. 99-2148, Steward abandoned the grievance process. When TD no. 99-2148 was dismissed, Steward attempted to pursue claims in a second EEOC complaint, TO no. 99-2302, which involved allegations similar to the ongoing pattern of harassment alleged in TD no. 99-2148. Steward's "election to file union grievances precludes her subsequent EEO complaint[s] on the same matters, and her failure to exhaust the available administrative remedies on the grievances precludes judicial review of the grievance decision. . ."
See motion to dismiss, attachment no. 6, p. 2.
Perry v. Dalton, 191 F.3d 461, 1999 WL 699494 at *1.
Accordingly,
IT IS ORDERED that plaintiff's lawsuit be DISMISSED without prejudice. ,
Defendants have requested that its motion to dismiss be with prejudice. "[A] dismissal for lack of subject matter jurisdiction is not an adjudication upon the merits and therefore is without prejudice."Compeaux v. Adams, 1997 WL 178643 *1 (E.D. La.) ( citing Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183 (5th Cir. 1986) and Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344 (5th Cir. 1985)).