Opinion
Civ. No. 99-0939, SECTION "L" (2).
March 9, 2000.
ORDER AND REASONS
Plaintiff, John P. Batiste, Jr., filed this action pro se against William J. Henderson, the Postmaster General of the United States Postal Service. Batiste alleges that he was "discriminated [against] on the basis of race (Negroid) and sex (male)" in his employment and that his job assignment violated the Americans with Disabilities Act ("ADA"). Complaint, Record Doc. No. 1.
Defendant filed a motion to dismiss, or alternatively, for summary judgment. Record Doc. No. 20. Batiste filed two timely opposition memoranda. Record Doc. Nos. 23, 24. 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) upon the written consent of all parties. Record Doc. No. 28.
Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that Henderson's motion for summary judgment is GRANTED.
ANALYSIS
A. The Arguments of the Parties
Henderson argues that plaintiffs complaint must be dismissed for two reasons: (1) Batiste failed to make a timely complaint to the Equal Employment Opportunity Commission ("EEOC"), which bars his lawsuit under both Title VII, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act. 29 U.S.C. § 791 et seq.; and (2) the lawsuit is premature because it was filed before plaintiff had received a final decision from the EEOC or waited the requisite 180 days for the EEOC to fail to act. 29 C.F.R. § 1614.1-5 (a)(1).
Henderson correctly contends that plaintiff cannot assert a cause of action against the federal government under the ADA. See 42 U.S.C. § 12111 (5)(B) ("The term `employer' [for ADA purposes] does not include . . ., the United States. . . ."). Batiste's sole remedy for disability discrimination against his federal employer arises under the Rehabilitation Act. 29 U.S.C. § 791, 794; Prewitt v. United States Postal Serv., 662 F.2d 292, 304 (5th Cir. 1981). Construing plaintiff's pro se complaint liberally, he has stated a cause of action under the Rehabilitation Act. The Rehabilitation Act incorporates the remedies and procedures of Title VII, including the requirement that administrative remedies be exhausted. Spence v. Straw, 54 F.3d 196, 200-01 (3d Cir. 1995); Prewitt, 662 F.2d at 304;Poynter v. United States, 55 F. Supp.2d 558, 563 (W.D. La. 1999).
Batiste responds with internally inconsistent and contradictory assertions. He asserts in conclusory fashion in one of his opposition memoranda that he has exhausted his administrative remedies. Record Doc. No. 23. In his other opposition memorandum, Batiste states that the EEO counselor "did everything in her power to discourage me from proceeding with this EEO complaint and direct me and find some name's of individual that had been treated difference from me and when I did, the case was dismiss[ed] base[d] on the 45 days rule." Record Doc. No. 24. Further, he stated in his complaint that he followed the grievance procedure through his union and his employer and that he was unaware that he was required to file a charge with the EEOC as well. Complaint, Record Doc. No. 1.
Although plaintiff has not submitted his averments in affidavit form, they are contained within pleadings that he signed personally pursuant to Fed.R.Civ.P. 11, and the Court has considered his statements as competent summary judgment evidence.
B. Standard of Review
Because defendant has moved alternatively for summary judgment and has supported his motion with. exhibits, the Court reviews the motion under the standards for summary judgment.
Although the government's exhibits are neither sworn nor certified as required by Fed.R.Civ.P. 56(e), plaintiff does not dispute their authenticity, and the Court has considered them as competent summary judgment evidence.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue 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 moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but it is not required to negate elements of the nonmoving party's case. Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
When a moving party alleges that there is an absence of evidence necessary to prove a specific element of a case, the nonmoving party bears the burden of presenting evidence that provides a genuine issue for trial. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."Thomas v. Barton Lodge II, Ltd., 174 F.3d 636, 644 (5th Cir. 1999) (citing Celotex Corp., 477 U.S. at 322-23; quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A fact is "material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson, 477 U.S. at 248.
To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must come forward with evidence to support the essential elements of its claim. National Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994) (citing Celotex Corp., 477 U.S. at 321-23). "[A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial."Celotex Corp., 477 U.S. at 323.
"Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists."Edwards, 148 F.3d at 432; accord Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). "We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Id. (emphasis in original). "Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate inany case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Id. (quotation omitted) (emphasis in original).
C. Plaintiffs Failure to Exhaust Administrative Remedies Bars His Lawsuit
Henderson argues first that the complaint should be dismissed because Batiste failed to file a charge with the EEOC within 45 days from the dates of the discriminatory acts. 29 C.F.R. § 1614.1-5 (a)(1). Plaintiff does not dispute that his initial contact with the EEOC was more than 45 days after any of the alleged acts of discrimination.
However, Batiste has asserted facts in his complaint and opposition memorandum that raise the possibility of equitable tolling of the 45-day period for filing an EEOC charge based upon the conduct of his employer and/or the EEO counselor. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990) (equitable tolling applies to suits against the United States under Title VII); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984) (equitable tolling excuses late filing in Title VII case when, for example, claimant received inadequate notice of his right to sue or when defendant's "affirmative misconduct" lulled plaintiff into inaction). Defendant's evidence does not negate that possibility. Accordingly, Henderson is not entitled to summary judgment on the basis that plaintiffs EEOC charge was untimely.
Defendant's second argument, however, has merit. Batiste appealed to the EEOC from the Postal Service's final decision on March 24, 1999. Defendant's Attachments 13, 14. Plaintiff does not contest the authenticity of these documents in his opposition. He filed the instant lawsuit on March 31, 1999. Henderson argues that the lawsuit is premature because plaintiff should have waited either for the EEOC's final decision on his appeal or for 180 days to pass without any action by the EEOC before he filed his lawsuit, and that plaintiffs premature filing constitutes a failure to exhaust his administrative remedies. 42 U.S.C. § 2000e-16 (c).
Section 2000e-16(c) provides in pertinent part:
Within 90 days of receipt of notice of final action taken . . . by the Equal Employment Opportunity Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, . . . or after one hundred and eighty days from the filing of the initial charge . . . with the Equal Employment Opportunity Commission on appeal from a decision or order of such department, agency, or unit until such time as final action may be taken by a department, agency, or unit, an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title. . . .Id. (emphasis added).
The Fifth Circuit has held that, once a federal employee has appealed to the EEOC from an agency's denial of a Title VII discrimination claim, the employee may not abandon the administrative process by filing a lawsuit before the 180-day waiting period has expired. Tolbert v. United States, 916 F.2d 245, 248 (5th Cir. 1990). Further, various federal courts have held that a plaintiffs failure to exhaust administrative remedies in this situation cannot be cured by subsequent events, such as the EEOC's issuance of its final decision, the expiration of the 180-day period or plaintiffs withdrawal of his appeal to the EEOC, while the district court lawsuit is pending. Id. at 249;Askew v. Stone, No. 94-2153, 81 F.3d 160, 1996 WL 135024, at *3 (6th Cir. March 25, 1996) (unpubl. opin.); Rivera v. United States Postal Serv., 830 F.2d 1037, 1039 (9th Cir; 1987),abrogated on other grounds by Bak v. Postal Serv., 52 F.3d 241, 243 (9th Cir. 1995); 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); Hahn v. Bentsen, No. 93-3820, 1996 WL 383129, at *5 (E.D. La. July 3, 1996), aff'd, 106 F.3d 398 (5th Cir. 1997);Erickson v. West, 876 F. Supp. 239, 242 (D. Haw. 1995); see also MeAdams v. Reno, 64 F.3d 1137, 1142 (8th Cir. 1995) (applying same rule to similar regulatory time limit governing suits after appeals to Merit Systems Protection Board); Sanborn v. David A. Dean Assocs., No. 98-CV-2239-D, 1998 WL 690608, at *1 (N.D. Tex. Sept. 29, 1998) (same rule as to non-government employer).
The Fifth Circuit in Tolbert strictly construed Title VII's exhaustion requirement to require plaintiffs to "file [their lawsuits] in the time allotted, and neither before nor after," once an appeal had been taken to the EEOC. Tolbert, 916 F.2d at 249. The Court explained that such strict construction was necessary to serve the purposes of the exhaustion requirement and to prevent plaintiffs from circumventing the administrative process by filing lawsuits prematurely. Id. The same rulings apply to Rehabilitation Act claims, which must comply with Title VII's exhaustion requirements.
CONCLUSION
For the foregoing reasons, Batiste's claims are barred by his failure to exhaust administrative remedies. Because the defect of premature filing in this Court cannot be cured by any subsequent action of the EEOC or by the passage of the 180-day period, defendant is entitled to summary judgment and plaintiff's lawsuit must be dismissed with prejudice. Kratville v. Runyon, 90 F.3d 195, 198 (7th Cir. 1996); Hill, 12 F. Supp. at 33.
Accordingly, IT IS ORDERED that Henderson's motion for summary judgment is GRANTED and plaintiffs complaint is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 9th day of March, 2000.