Opinion
Case No. 1:01-CV-00145 PGC.
July 30, 2004
ORDER GRANTING MOTION
Defendants James G. Roche and the Department of the Air Force, filed a motion for summary judgment. In his response, Mr. Cheney conceded that the Department of the Air Force is not a properly named defendant in this case therefore the Department is dismissed as a defendant in this matter. Having carefully reviewed the pleadings, the court GRANTS the motion to dismiss for the reasons stated below.
Background
Mr. Cheney was employed as an Aircraft Worker at Hill Air Force Base ("the Base") in Utah. In November 1992, Mr. Cheney was injured when a cargo ramp of an aircraft he was standing on fell. Mr. Cheney suffered a back injury due to the fall, and required surgery. Mr. Cheney was released by his physician to return to light duty work at the Base. Shortly thereafter, he re-injured his back and underwent a second surgery on April 25, 1994.
On October 24, 1994, Mr. Cheney returned to work and informed management at the Base of his physical limitations. The major responsibilities of an aircraft mechanic on the Base included maintenance and inspection of the Base aircraft. Additional, non-critical responsibilities included record keeping, documentation, and administrative tasks associated with the maintenance.
When he returned to work in October 1994, Mr. Cheney acknowledged he could not perform the required duties of an aircraft mechanic. He believed, however, that other accommodations could have been made at that time and stated, "Other light-duty workers [were] allowed to sit and read novels and just answer phones all day. No such accommodation was made for me." Mr. Cheney and his doctor both believed that he would eventually be physically capable of resuming his past position.
Because no desk jobs were available On October 24, 1994, management at the Base attempted to accommodate Mr. Cheney by offering him a temporary light duty job as Tool and Parts Attendant, working four hours a day in a location called the "blue room." This position involved checking the contents of tool kits that were being checked in and out by workers. The job requirements did not exceed Mr. Cheney's physical limitations. Mr. Cheney accepted this light duty job offer in writing.
Four days after working in the blue room, on October 28, 1994, Mr. Cheney wrote his treating physician, Dr. Norman C. Bos, and indicated that the work in the blue room required stooping, bending and twisting, which caused him pain. Dr. Bos informed management at the Base that stooping, twisting, and bending were beyond Mr. Cheney's physical capabilities.
On November 21, 1994, after receiving the information from Dr. Bos, management held a meeting with the monitor of the light duty program (Lynn Cooper) Mr. Cheney and several supervisors. The decision was made to switch Mr. Cheney from the tools and parts position to a different job working for Rodolfo Dominguez. The new position with Mr. Dominguez consisted of writing information on work cards, picking up and checking time records, inventorying tools, and tagging and transporting parts ("work card position"). The position did require Mr. Cheney to go up and down stairs several times a day. Mr. Cheney acknowledges that much of this position was within his physical limitations. However, Mr. Cheney objected to this assignment because he and Mr. Dominguez had a long-standing animosity towards each other. Mr. Cheney admits this animosity had nothing to do with his disability. Mr. Cheney began work in the work card position immediately.
One week later, Mr. Cheney complained that this position exceeded his medical limitations because of the walking and use of stairs. However, Dr. Bos never informed the Base that Mr. Cheney's injuries prevented him from walking or using stairs. Mr. Cheney did not ask if he could drive between buildings. To accommodate these complaints, the Base immediately moved Mr. Cheney's workstation in front of the aircraft on the hangar floor. Mr. Cheney's desk was placed in the front of the aircraft to prevent any interference with the crews working on the back of the aircraft.
After this, Mr. Cheney complained the placement of the desk was too close to the dumpster and the smell bothered him. Mr. Cheney alleged this placement of the desk was humiliating and that he should have been positioned near other work cubicles. Mr. Cheney acknowledged that the location of his desk did not prevent him from performing any job functions. Mr. Cheney also acknowledged that the placement of his desk away from other employees could have been to prevent him from talking too much with his co-workers and overusing the telephone. He admits the walk to use the phone did not exceed his medical limitations, and he also admits he was only present for a portion of the week that his desk was in this location.
Shortly thereafter, Mr. Cheney's desk was moved for the third time because Mr. Cheney's crew moved to work on an aircraft in a new building. The aircraft in this hangar were parked with their nose facing the hangar doors for access purposes. Mr. Cheney once again expressed dissatisfaction with the location of his desk, this time because this placement was humiliating and too cold. Simultaneously, Mr. Cheney complained the racks in which the cards were placed were too low. Management adjusted the racks upward several inches to accommodate Mr. Cheney's complaints.
On November 30, 1994, Mr. Dominguez wrote a letter to the agency physician, Dr. Annette Burst, stating that he could not perform the work cards job and there was no way to restructure the job so that Mr. Cheney could perform it. Mr. Cheney acknowledges he wanted to be disqualified from the job.
On December 5, 1994, a second meeting was held with Mr. Cheney, his supervisors, Dr. Burst, Lynda Cooper, and a representative from Civilian Personnel. The meeting lasted an hour and a half, and management indicated that they could not restructure Mr. Cheney's job and asked to have him medically disqualified from the job. Mr. Cheney indicated that his physician, Dr. Bos, would not medically disqualify him because he thought Mr. Cheney's condition might still improve.
During the meeting, Dr. Burst told Mr. Cheney that in her conversations with Dr. Bos, he indicated he did not want to become involved in a labor dispute. Dr. Burst inquired if Dr. Bos could see Mr. Cheney on short notice if health issues arose. Dr. Bos requested that Dr. Burst see Mr. Cheney for his problems. Mr. Cheney acknowledges that Dr. Burst's willingness to see him on a daily basis if needed was an accommodation to him. One week later, in December 1994, Dr. Bos declined to see Mr. Cheney any longer and indicated that Mr. Cheney should return to Dr. Peterson, his back surgeon, for his back complaints. Dr. Bos did continue to see Mr. Cheney for other problems.
On January 23, 1995, Dr. Burst determined that Mr. Cheney could no longer perform the duties of his aircraft mechanic position. Mr. Cheney was notified of this decision on January 25, 1995. In the notice the Base asked Mr. Cheney to suggest any possible accommodations in the aircraft mechanic position. The notice gave him until February 12, 1995 to respond to this disqualification before he was placed into the Physically Disqualified Placement Program.
On February 12, 1995, Mr. Cheney responded in writing and agreed with Dr. Burst's conclusions on his disqualification. Mr. Cheney stated he believed he would never regain the ability to perform his past position and that "the only time my pain is bearable is after days or weeks of almost total rest." He suggested no accommodation in his response.
On February 13, 1995, the agency again attempted to accommodate Mr. Cheney and presented him with a written offer to perform a light duty assignment with the same duties he had with the "work-card" position. Mr. Cheney declined this offer because it was beyond his medical limitations. Mr. Cheney did not explain how this position was outside of his limitations nor did he suggest any accommodations to the position. Mr. Cheney does admit he was capable of performing several of the duties of this proposed light-duty assignment.
On February 13, 1995, Mr. Cheney was notified that the agency had been unsuccessful in its attempts to find a job within Mr. Cheney's division that would accommodate his restrictions.
On February 15, 1995, Mr. Cheney received a Notice of Proposed Indefinite Enforced Leave. The enforced leave was due to Mr. Cheney's medical restrictions which prevented him from performing both his aircraft worker position, and any other position the agency was able to offer him within his medical limitations. Mr. Cheney accepted the leave.
Believing that the Base was discriminating against him, Mr. Cheney filed a formal complaint for handicap discrimination on February 22, 1995. On February 27, 1995, a request to conduct an investigation was submitted to the Office of Complaint Investigation ("OCI"). On May 22, 1995, OCI conducted their investigation through a video conference. OCI later issued a report finding no discrimination, which was forwarded to Mr. Cheney. When Mr. Cheney received the report, he requested an EEOC hearing.
On April 26, 1995, after determining Mr. Cheney was unable to perform his duties and that no position could be sufficiently modified to his conditions, the agency also determined there were no positions available for Mr. Cheney in the Physically Disqualified Placement Program due to a hiring freeze and reduction in force.
On May 8, 1995, a Notice of Proposed Removal was issued to be effective on June 10, 1995. Upon receipt of the Notice, Mr. Cheney applied for medical retirement. Mr. Cheney sent the necessary paperwork to Mr. Dominguez in June 1995. Mr. Dominguez did not return his portion of the form to Civilian Personnel for 5 months. Believing that Mr. Dominguez was retaliating against him by refusing to fill out the paperwork, Mr. Cheney filed a formal complaint on December 7, 1995. An investigation into this new complaint was conducted by OCI on March 20, 1996. OCI later issued a report, again finding no discrimination. Mr. Cheney then requested an EEOC hearing on this second complaint. Mr. Cheney was eventually approved for retirement benefits, but does not collect them because he is receiving greater workers compensation benefits.
On June 5, 1997, the two hearings were consolidated and conducted at the Base. The Administrative Judge issued a decision finding no discrimination. Mr. Cheney filed an appeal with the EEOC, who affirmed the decision on May 10, 2001. Mr. Cheney then filed a request for reconsideration which was denied on July 25, 2001. Mr. Cheney was instructed that he had 90 days to file his suit in federal court.
Discussion
The foregoing facts suggest Mr. Cheney's case is weak on the merits. However, the court need not reach the merits and must dismiss this case because Mr. Cheney did not file his complaint by the October 29, 2001 deadline. The court clerk stamped the complaint as received on October 29, 2001. The court clerk did not lodge it as filed, however, until November 8, 2001, because it was not until then that Mr. Cheney filed the correct filing fee. Mr. Cheney acknowledges that he did not send the filing fee until after the complaint was filed. A complaint is not deemed filed until the fee is paid. DUCivR 3-2 states:
[T] the clerk of court will not accept any action for filing with the court that is not accompanied by an Application [to Proceed Without Prepayment of Fees] which has been granted by the court.
The Clerk of the Court's records indicate that the Complaint was deemed filed on November 8, 2001, ten days after the deadline in this case.
In response to these court records, Mr. Cheney argues that he sent his filing fee to the Clerk of Court in a timely fashion. The court finds, as a factual matter, that the fee was not received by the Clerk of Court until after October 29, 2001. The court can take judicial notice of facts reflected in its own files. The court's files reflect that the complaint was received on October 29, 2001. This fact is evidenced by the stamped notation "Received Clerk/Oct 29 2001/U.S. District Court" on the complaint. Thus, the earliest that Mr. Cheney could have received a call about the lack of a filing fee was October 29, 2001, as the Clerk's Office (capable thought it is) is not clairvoyant and thus would not have contacted him about a filing fee deficiency until after receiving the complaint. Mr. Cheney concedes that he mailed the filing fee only after a call from the Clerk's Office. Accordingly, the earliest Mr. Cheney's fee could have been received would have been after October 29, 2001 — that is, at least after expiration of the filing deadline.
Mr. Cheney's two Airborne Express receipts, if anything, confirm this conclusion. The lower numbered of the two Airborne Express receipts (#9291647676) is apparently dated October 28, 2001, and bears the notation "complaint" in the description section. This dovetails with the conclusion that the Clerk's Office received the complaint no earlier than October 29, 2001. There is another Airborne Express receipt (#929164772), but the description of what is contained in that package is illegible. Moreover, that receipt is seemingly dated October 26, 2001. That date is a Friday. Even giving Mr. Cheney the benefit of the doubt, the earliest the Clerk of Court could have received the complaint would have been the following Monday — October 29, 2001 — triggering corrective action after that date. Finally, any receipts would merely establish what Airborne Express was doing. The burden remains on the plaintiff to establish proper filing of his complaint inside the 90-day period. Mr. Cheney has failed to do that, and thus the court concludes that his complaint was not timely filed.
To be sure, the 90-day filing limit under the statute is not jurisdictional but is a requirement that (like a statute of limitation) is subject to waiver, estoppel and equitable tolling. The Tenth Circuit has held, for example, that the Title VII time limit will be tolled only if there has been deception of the claimant regarding procedural requirements. In this case, however, Mr. Cheney has provided no explanation as to why he failed to pay his filing fees in a late manner. Mr. Cheney does not claim he was deceived in any manner. Nor does he allege any circumstances regarding the filing of this complaint. Instead, he simply alleges "garden variety" neglect, which the Tenth Circuit has previously instruction does not merit equitable tolling of the statutory deadline. Therefore, this case must be dismissed.
See Montoya v. Chao, 296 F.3d 952 (10th Cir. 2002); see also Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir. 1983).
See Montoya, 296 F.3d 952; see also Scheerer v. Rose State College, 950 F.2d 661, 665 (10th Cir. 1991), cert. denied, 505 U.S. 1205 (1992).
See Montoya, 296 F.2d at 958 citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990).
Conclusion
The court GRANTS the defendants' motion to dismiss this case as untimely filed [#17-1]. The clerk of the court is directed to CLOSE THIS CASE.