Opinion
CIVIL ACTION No. 01-2527-KHV
November 7, 2002
MEMORANDUM AND ORDER
Eva Ayalla, pro se, brings suit against John E. Potter, Postmaster General of the United States Postal Service ("USPS"), and Colleen Taylor, James Sacks and Joe Lynch, all supervisors at USPS, for retaliation and employment discrimination on account of race, sex, age and disability in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. as amended, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Americans With Disabilities Act ("ADA"), 42 U.S.A. § 12111 et seq., and the Vocational Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 791 and 794. This matter comes before the Court onJohn E. Potter's Motion To Dismiss Plaintiff's Title VII And ADA/Rehabilitation Act Claims Pursuant To Fed.R.Civ.P. 12(b)(1) For Failure To Exhaust Administrative Remedies (Doc. #38) filed June 7, 2002; John E. Potter's Motion To Dismiss Plaintiff's Claims For Punitive Damages And For "Double Lost Wages" Under The Age Discrimination In Employment Act (ADEA) Pursuant To Fed.R.Civ.P. 12(b)(1) (Doc. #40) filed June 7, 2002; the Motion To Dismiss Individually Named Defendants Colleen Taylor, James Sacks And Joe Lynch, USPS Supervisors Pursuant To Fed.R.Civ.P. 12(b)(6) (Doc. #49) filed June 17, 2002; and Defendants' Motion For Rule 11 Sanctions (Doc. #51) filed June 18, 2002.
I. Factual Background
On August 7, 2001, plaintiff filed an Equal Employment Opportunity complaint ("EEO complaint") with the USPS, alleging retaliation and discrimination on account of race, color, sex, age and disability. The following day, August 8, 2001, the United States Equal Opportunity Commission, Office of Federal Operations in Washington, D.C., issued a letter regarding plaintiff's age discrimination claims. See Defendant's Memorandum, Attachment B. The letter stated that on July 24, 2001, the EEOC had already received from plaintiff a notice of intent to file a civil action against the USPS. The letter further stated:
See Memorandum In Support Of John E. Potter's Motion To Dismiss Plaintiff's Title VII And ADA/Rehabilitation Act Claims Pursuant To Fed.R.Civ.P. 12(b)(1) For Failure To Exhaust Administrative Remedies ("Defendant's Memorandum") (Doc. #41) filed June 7, 2002, Attachment A. The record does not disclose in which USPS office plaintiff filed the complaint. The complaint, however, indicates that it was hand-delivered, which suggests that plaintiff filed it in a local USPS office.
The letter addresses Mr. Jones, whom the record does not otherwise identify.
The record does not explain why on August 7 plaintiff filed an EEO complaint for age discrimination when on July 24 she had already provided a notice of intent to sue on the same claim.
By a copy of this letter, we are informing the claimant that s/he may file a civil action under the ADEA at any time after thirty days from the date s/he filed this notice of intent to sue with the Commission, regardless of whether your agency has conducted any inquiry into his/her allegations. . . .Id. at 2.
On November 6, 2001, plaintiff filed her complaint in this case.
II. Legal Standards
The Court may exercise jurisdiction only when specifically authorized to do so, see Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs, 895 F. Supp. 279, 281 (D. Kan. 1995) (quoting Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); see Fed.R.Civ.P. 12(h)(3). The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. See Basso, 495 F.2d at 909. When federal jurisdiction is challenged, plaintiff bears the burden of showing why the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D. Kan. 1993).
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take the form of either facial attacks on the complaint or factual attacks on the accuracy of those allegations. See Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995) (citingOhio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)). USPS's motion to dismiss for failure to exhaust administrative remedies falls within the latter category because it introduces evidence outside the complaint. In such event, the Tenth Circuit has set forth the following standard:
[A] party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.Holt, 46 F.3d at 1003 (citations omitted).
In ruling on a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well pleaded facts in the amended complaint and views them in a light most favorable to plaintiff. See Zinermon v. Burch, 494 U.S. 113, 118 (1990). The Court makes all reasonable inferences in favor of plaintiff, and liberally construes the pleadings. See Rule 8(a), Fed.R.Civ.P.;Lafoy v. HMO Colo., 988 F.2d 97, 98 (10th Cir. 1993). The Court may not dismiss a cause of action for failure to state a claim unless it appears beyond a doubt that plaintiff can prove no set of facts in support of her theories of recovery that would entitle her to relief. See Jacobs, Visconsi Jacobs, Co. v. City of Lawrence, Kan., 927 F.2d 1111, 1115 (10th Cir. 1991). Although plaintiff need not precisely state each element of her claims, she must plead minimal factual allegations on material elements that must be proved. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
III. Analysis
The USPS asks the Court to dismiss plaintiff's Title VII and disability claims for failure to exhaust administrative remedies. The USPS also argues that plaintiff cannot recover punitive or liquidated damages under the ADEA. In addition, individual defendants Taylor, Sacks and Lynch urge the Court to dismiss plaintiff's claims against them in their individual capacities. Finally, defendants ask the Court to impose sanctions under Rule 11, Fed.R.Civ.P.
A. Failure To Exhaust Administrative Remedies
The USPS asserts that plaintiff has not exhausted her administrative remedies with respect to her Title VII and disability claims. Exhaustion of administrative remedies is a "jurisdictional prerequisite" to filing suit. Jones v. Runyon, 91 F.3d 1398, 1399 (10th Cir. 1996). InSampson v. Civiletti, 632 F.2d 860 (10th Cir. 1980), the Tenth Circuit Court of Appeals recognized that the exhaustion requirement serves important policies:
Defendant concedes that plaintiff has exhausted administrative remedies with respect to her age claims.
The requirement that discrimination complaints first be presented to an agency rather than a court encourages informal conciliation-oriented resolution of disputes and reduces the burden on federal courts. It is also particularly important that the agency develop a record and have the opportunity to exercise its discretion, to apply its expertise, and possibly, to discover and correct its own errors.Id. at 862-63 (quotations and citations omitted).
Federal regulations require that plaintiff file an EEO complaint with her employing agency regarding her Title VII and disability claims. See 29 C.F.R. § 1614.106. Under the regulations, the earliest time that she may file a civil action regarding those claims is within 90 days of the agency's final action if no appeal has been filed, or after 180 days of filing the EEO complaint if no appeal has been filed and the agency has not taken final action. See 29 C.F.R. § 1614.407 (a) and (b).
Federal regulations provide an alternative for federal employees with age discrimination claims. See 29 C.F.R. § 1614.103 (a), 1614.106 and 1614.102. Instead of filing an EEO complaint, a federal employee may file a civil action after giving the EEOC not less than 30 days notice of the intent to file such an action. Here, on July 24, 2001, plaintiff gave notice of her intent to sue regarding her age claims and filed suit more than 30 days later on November 6, 2001.
Plaintiff presents no evidence or argument which suggests that she has exhausted administrative remedies with respect to her Title VII and disability claims. Plaintiff filed her EEO complaint on August 7, 2001. Ninety-one days later, on November 6, 2001, she filed her complaint in this case. Clearly, plaintiff did not wait 180 days after filing her EEO complaint. Moreover, she has not shown that the agency issued its final action before she filed her complaint. Because she has not exhausted administrative remedies, the Court will dismiss plaintiff's Title VII and disability claims for lack of subject matter jurisdiction. See Khader v. Aspin, 1 F.3d 968, 971 (10th Cir. 1993); Hill v. Runyon, 12 F. Supp.2d 30, 33 (D.D.C. 1998); Thompson v. West, 883 F. Supp. 1502, 1508 (M.D. Ala. 1995).
B. Punitive Damages
Plaintiff seeks to recover punitive and liquidated damages under the ADEA. Defendant argues that sovereign immunity precludes the recovery of such damages against the USPS. The Court agrees. See Smith v. Office Of Pers. Mgmt., 778 F.2d 258, 261 (5th Cir. 1985); Grandison v. U.S. Postal Service, 696 F. Supp. 891, 896 (S.D.N.Y. 1988) (liquidated damages under ADEA not available against USPS); Leibovitch v. Adm'r, Veterans Admin., No. 81-1060, 1982 WL 336, at * 10 (D.D.C. June 30, 1982). The Court therefore dismisses plaintiff's claims for punitive and liquidated damages under the ADEA.
C. Claims Against Individual Defendants
Individual defendants Taylor, Sacks and Lynch ask the Court to dismiss plaintiff's claims against them. As individual supervisors, these defendants are not liable under the ADEA. See Ledbetter v. City of Topeka, Kan., 112 F. Supp.2d 1239, 1244 (D. Kan. 2000). Accordingly, the Court dismisses plaintiff's claims against Taylor, Sacks and Lynch.
D. Rule 11 Sanctions
Finally, the individual defendants ask the Court to impose sanctions under Rule 11, Fed.R.Civ.P., because plaintiff had no good faith basis to assert claims against them. More specifically, defendants assert that plaintiff should have dismissed her claims against them after they provided case law which demonstrates that she cannot hold them individually liable for employment discrimination claims. Rule 11 provides that by signing her complaint, plaintiff certifies that "it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation" and "the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal or existing law or the establishment of new law." Rule 11(b), Fed.R.Civ.P.
If the Court finds a Rule 11 violation, it must impose some form of sanction. See Eisenberg v. Univ. of New Mexico, 936 F.2d 1131, 1136 (10th Cir. 1991). The Court, however, has wide discretion in selecting an appropriate sanction. Id. Rule 11 sanctions serve several purposes, including (1) deterring future litigation abuse; (2) punishing present litigation abuse; (3) compensating victims of litigation abuse; and (4) streamlining court dockets and facilitating case management. Id. "The appropriate sanction should be the least severe sanction adequate to deter and punish the plaintiff." Id. at 684 (quotingWhite v. Gen. Motors Corp., 908 F.2d 675, 684 (10th Cir. 1990)).
Here, defendants do not argue that plaintiff did not have a good faith basis for her claims at the time she signed her complaint. Rather, they assert that plaintiff should have dismissed her claims after they informed her of relevant case law. Rule 11 does not purport to be a means for the Court to sanction conduct in the course of a lawsuit that does not involve the signing of pleadings, motions, or other papers. See Simpson v. Welch, 900 F.2d 33, 36 (4th Cir. 1990); Stewart v. Lone Star Indus., Inc., No. 90-15937, 1991 WL 130211, at *1 (9th Cir. July 16, 1991) (Rule 11 not apply to failure to sign papers; applies only to affirmative act of signing papers). Thus defendants have not alleged an appropriate basis to impose Rule 11 sanctions.
IT IS THEREFORE ORDERED that John E. Potter's Motion To Dismiss Plaintiff's Title VII And ADA/Rehabilitation Act Claims Pursuant To Fed.R.Civ.P. 12(b)(1) For Failure To Exhaust Administrative Remedies (Doc. #38) filed June 7, 2002 be and hereby is SUSTAINED. IT IS FURTHER ORDERED that John E. Potter's Motion To Dismiss Plaintiff's Claims For Punitive Damages And For "Double Lost Wages" Under The Age Discrimination In Employment Act (ADEA) Pursuant To Fed.R.Civ.P. 12(b)(1) (Doc. #40) filed June 7, 2002 be and hereby is SUSTAINED. IT IS FURTHER ORDERED that the Motion To Dismiss Individually Named Defendants Colleen Taylor, James Sacks And Joe Lynch, USPS Supervisors Pursuant To Fed.R.Civ.P. 12(b)(6) (Doc. #49) filed June 17, 2002 be and hereby is SUSTAINED. IT IS FURTHER ORDERED that Defendants' Motion For Rule 11 Sanctions (Doc. #51) filed June 18, 2002 be and hereby is OVERRULED.
Plaintiff's claims against the USPS for age discrimination and retaliation in violation of the ADEA remain in the case.