Opinion
CIVIL ACTION NO: 03-2851, SECTION: "N" (1)
February 9, 2004
ORDER AND REASONS
The parties consented to proceed before a Magistrate Judge. Rec. doc. 7. The defendant, Mel R. Martinez, Secretary of the Department of Housing and Urban Development, moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56(b). Rec. doc. 5. For the reasons described below, the defendant's motion is granted.
MOTION TO DISMISS
Defendant contends that the court lacks jurisdiction over the subject matter of this action because the plaintiff, Mona Dogans ("Dogans"), failed to exhaust her administrative remedies. More particularly, the defendant contends that after requesting an administrative hearing on the non-selection issue that is the subject matter of this complaint, neither Dogans nor her counsel appeared at the hearing. The administrative judge dismissed her complaint for failure to prosecute. Dogans contends that she exhausted her administrative remedies. She acknowledges her failure to attend the hearing, but contends that she should not be penalized for one lapse in a six year long administrative process. She urges that pursuant toMaher v. U.S. Postal Service, 729 F. Supp. 1444 (S.D.N.Y. 1990), vacated on other grounds, 863 F.2d 45 (2nd Cir. 1988), the failure to attend the hearing should not deprive her of the right to pursue this action.
Dogans is employed in the Department of Housing and Urban Development's New Orleans Field Office. In June 1996, she was denied a management position within the agency. On July 9, 1996, she timely filed a formal complaint regarding her non-selection for the position (the "July 1996 non-selection claim"). Dogans contended that the non-selection was a result of discrimination based on race, sex, reprisal and non-sexual harassment. Id. Although the complaint was dismissed on account of failure to cooperate, the EEOC remanded the case for an investigation.Dogans v. Cuomo, 1998 WL 108717 (E.E.O.C. March 06, 1998). Dogans requested a hearing before an EEOC administrative judge.
Rec. doc. 5, Exhibit I to Attachment 1.
The EEOC decision stated:
Dogans . . . has filed approximately 55 separate EEO claims against . . . (defendant). She avers that she filed 35 EEO complaints between 1985 and 1988, all of which were resolved between the parties. (She) . . . filed before the Commission 20 other complaints of employment discrimination between 1991 and 2001, twelve of which are closed. Eight claims are currently pending. . . . (She) . . . claims discrimination as to almost all of these Agency actions based on race, sex, color, disability and retaliation . . . All told, (her) . . . eight pending cases allege approximately 125 separate instances of illegal employment discrimination.
Due to the large number of individual issues to be decided, the parties agreed that the Complainant should proceed first with her "best and strongest" case. She selected docket number 270-99-9211x for this purpose and the matter was scheduled for hearing (on December 20, 2001). Complainant and her counsel, Ronald Wilson, Esq., defaulted. The Agency moved for dismissal of all claims. . . . Complainant's counsel took full responsibility for a mistaken notation of the date of the hearing. He did not contest the dismissal of the specific claim set for hearing, but urged that the other claims not be dismissed. . . .
It is undisputed that this refers to this case, which was assigned Case Number FW 96-37R.
Rec. doc. 5, Attachment 2. On January 29, 2002, the administrative judge dismissed the complaint for failure to prosecute. Id. The letter of December 21, 2001 from Mr. Wilson to the administrative judge confirmed his responsibility for missing the hearing. Id., Attachment 3, Mr. Wilson stated that "if it is decided that the ultimate sanction of dismissal is warranted, it should apply solely with respect to the matter scheduled for hearing on December 20, 2002, not the other cases." Id. On January 24, 2002, Dogans, appearing in proper person, wrote to the EEOC in Washington and requested that FW 96-37R and ten other EEO cases be reinstated. Id., Attachment 4. The decision by the administrative judge was affirmed on July 16, 2003. Dogans v. Martinez, 2003 WL 21733682 (E.E.O.C. July 16, 2003).
Mr. Wilson's letter references EEOC Docket No. 270-98-9107X and Agency Case No. FW 97-40. This is incorrect The EEOC decision reveals that Docket No. 270-99-9211 x was selected for the December 20, 2002 hearing. Rec. doc. 5, Attachment 2. The EEOC letter of March 19, 2002 and Dogans' letter of January 24, 2002, reveal that Docket No. 270-99-9211 x corresponds to Agency Case No. FW 97-37R. Id., Attachment 4.
The parties agree that one of the requirements for filing a Title VII action is that the complainant must first have exhausted her administrative remedies. Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990). The failure to comply with this requirement deprives the court of subject matter jurisdiction. Id. The sole issue before the court is the effect of Dogans' failure to appear at the December 20, 2002 hearing. It was set at her request to provide the administrative judge with the opportunity to focus on her best and strongest case. Because of her counsel's mistake, neither Dogans nor her counsel attended the hearing. The defendant moved for the dismissal of all of her claims, including the July 1996 non-selection claim. Dogans opposed the motion, but also responded that: (1) an order of dismissal should only apply to the July 1996 non-selection claim; and (2) the remaining claims would be submitted on the record to eliminate the need for counsel for the defendant and its representative to return to New Orleans.
In Hoffman v. Boeing, 596 F.2d 683 (5th Cir. 1979), the Fifth Circuit held that a federal employee was required to exhaust administrative remedies prior to filing suit for alleged racial discrimination. Id. at 684. The plaintiff contended that pursuit of the administrative remedies was futile because the person who made the non-selection decision was also responsible for EEO compliance, The regulations, however, required that an impartial person be designated to decide the administrative case.
Recourse through this (administrative) process would have been neither meaningless nor necessarily futile. The claimant's subjective belief that resort to the administrative process would have been ineffectual does not excuse his failure to attempt the remedy.Id. at 685. Hoffman demonstrates that the intentional failure to participate in the complete administrative process is fatal to a federal employee's attempt to sue for alleged racial discrimination in the denial of a promotion. In Johnson v. Bergland, 614 F.2d 415 (5th Cir. 1980), the Fifth Circuit stated:
[T]he employee did resort to administrative remedies, but his administrative, complaint was vacated because he failed to comply with the valid administrative requirement that he make his generalized complaints more specific. In our opinion, the plaintiff's suit was properly dismissed for this failure to pursue and to exhaust his administrative remedies. Had he complied with the agency request for more specific information, the agency could have ruled on the merits of his complaint, but, due to his default, it was unable to do so.Id. at 417. The Fifth Circuit quoted with approval the district court's statement that if this were not the rule, the plaintiff "might be dilatory at the administrative level, knowing that he can get into federal court anyway." Id. at 418. The rationale of the Johnson decision does not suggest any distinction for the reasons for a complainant's failure to complete the administrative process. In either an intentional or negligent situation, the agency is denied the opportunity to rule on the merits. In Tolbert v. U.S., 916 F.2d 245 (5th Cir. 1990), the Fifth Circuit held that an employee of the Postal Service did not exhaust his administrative remedies and therefore affirmed the dismissal of his employment discrimination action. The Fifth Circuit approved of a strict construction of the Title VII exhaustion requirements. Id. at 249.
In Maher v. U.S. Postal Service, 729 F. Supp. 1444 (S.D.N.Y. 1990), vacated on other grounds, 863 F.2d 45 (2nd Cir. 1988), a terminated Postal Service employee initiated an EEO complaint. The Postal Service found no basis for the complaint and notified the plaintiff of his right to either request a final decision without a hearing or request a hearing after which a final decision would be issued. The plaintiff requested a hearing, but did not appear for it. His complaint was dismissed for failure to prosecute. The plaintiff appealed urging that his failure to appear was attributable to a new job and personal problems. The plaintiff was not represented by counsel in the administrative process and appeared pro se in federal court. The district court refused to recognize an exhaustion requirement. Id. at 1450. It found that it was only necessary for the plaintiff to make a complaint to the agency before bringing his Title VII action in federal court. Id. This is not consistent with Boeing, Johnson and Tolbert.
The Fifth Circuit requires that a federal employee exhaust his administrative remedies before filing an employment discrimination suit in federal court. Dogans has not demonstrated why there should be any departure from the exhaustion requirement. To the contrary, the number of claims that she was pursuing at the administrative level and the decision to bring the July, 1996 non-selection claim as the best and strongest of her claims, demonstrate the need for compliance with these requirements before filing suit in federal court.
MOTION FOR SUMMARY JUDGMENT
Assuming that subject matter jurisdiction is present, it is necessary to consider the defendant's request for summary judgment. Fed.R.Civ.P. 56 provides in pertinent part that summary judgment will be granted when ". . . 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." See Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2552 (1986). Lujan v. National Wildlife Federation, 110 S.Ct. 3177, 3189 (1990). To that end, the court must "view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. Wyatt v. Hunt Plywood, 297 F.3d 405, 409 (5th Cir. 2002). Where the record taken as whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986); Washington v. Allstate Ins. Co., 901 F.2d 1281 (5th Cir. 1990).
In Fierros v. Texas Dept. of Health, 274 F.3d 187 (5th Cir. 2001), the Fifth Circuit cautioned that summary judgment is not favored in claims of employment discrimination and that the Supreme Court in Reeves v. Sanderson Plumbing Prods., Inc., 120 S.Ct. 2097, 2110 (2000), emphasized the paramount role that juries play in Title VII cases, stressing that in evaluating summary judgment evidence, courts must refrain from the making of credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, which are jury functions, not those of a judge. Fierros, 274 F.2d at 190-91.
Dogans alleges that the defendant refused to promote her in reprisal for having filed previous EEO complaints against the selecting official, Byron Duplantier. The complaint identified EEO complaints filed in 1992, 1993, 1996 and 1997. The defendant contends that Dogans has not established the third element of her prima facie case by demonstrating a causal link between the protected activity and the adverse action. The adverse action occurred on June 11, 1996, when she was denied the position. The defendant contends that the EEO complaints filed in 1992 and 1993 are too remote to provide the causal link and that it is impossible for a complaint filed after the adverse action to provide the causal link. The 1996 complaint was filed on May 30, 1996. The defendant contends that there is no evidence that Mr. Duplantier learned of the May 30, 1996 complaint, which was submitted to Washington, D.C. prior to making his decision on Dogans' application. Dogans alleges that the May 30, 1996 complaint named Duplantier as the responsible management official, who allegedly reprimanded her for not signing a sign-in/sign-out roster. Rec. doc. 1 at p. 5. Dogans does not allege that Duplantier knew of the filing of this complaint prior to the June 11, 1996 decision. The defendant, however, has provided no affidavit from Duplantier stating when he first learned of the May 30, 1996 complaint. Fierros stressed that in evaluating summary judgment evidence, "courts must refrain from the making of credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts, which are jury functions, not those of a judge." The defendant is urging that the court infer from the date of the May 30, 1996 complaint and its filing in Washington, D.C. that Duplantier had no knowledge of it by June 11, 1996. Under Fierros, this is an impermissible inference on a motion for summary judgment. Dogans has made a prima facie case of retaliation. The defendant contends that Duplantier articulated the following legitimate non-discriminatory and non-retaliatory reasons for choosing Watts over Dogans:
Duplantier submitted an affidavit to the defendant's investigator during the administrative process. Exhibit 8 to Attachment 1, Rec. doc. 5(the "Duplantier Affidavit"). In that affidavit Duplantier stated that he was aware that Dogans had "filed previous EEO complaints because I was named as a responsible management official in many of her complaints."Id. This statement is not dispositive as to whether Duplantier knew of the May 30, 1996 complaint at the time he made the decision to select Bettie Watts instead of Dogans for the position.
274 F.3d at 190-191 (citations, brackets and quotation marks omitted).
1. An excellent performance by Watts in her interview, where she provided examples of how she would deal with problems;
2. An excellent application from Watts containing detailed examples of her experience as it related to quality ranking factors;
3. Dogans' failure to address the quality ranking factors as extensively as Watts;
4. Dogans' failure to provide detailed answers during her interview; and
5. Dogans' handwritten application was unprofessional and showed a lack of concerted effort in applying for the position.
Duplantier Affidavit.
Dogans alleges that this explanation is so implausible as to be a cover-up. Rec. doc. 1. at p. 3. She bases this conclusion on six factors. Id. at pp. 3-5. The first is that Duplantier changed the written requirements for the position without posting an amended vacancy announcement. The change was prompted by the fact that certain functions were transferred to the defendant's Denver office. Duplantier Affidavit. Dogans concedes that Duplantier was at liberty to change the written requirements, but argues that he was required to post an amended announcement. Dogans, however, does not address how the failure to post the changes adversely affected her application. There is no merit to Dogans' contention that the failure to post an amended announcement demonstrates the implausibility of Duplantier's reasons for choosing Watts over her.
Dogans' second factor is that Watts' application does not reveal any expertise in the area of monitoring contracts, but Duplantier stated that he wanted someone who possessed that skill. On the second page of her application Watts was required to describe her specific duties, responsibilities and accomplishments in the position she held at the time of the application, Single Family Housing Specialist. Attachment 1 to Rec. doc. 5, Exhibit 11 at p. 3. In the second paragraph of this description, Watts states she "had experience in monitoring an AMB contract. . . ." Id. Dogans' contention regarding Watts' application is not supported by the record.
The third factor is that Duplantier indicated a preference for Watts based on the interview. Dogans concedes that the use of subjective criteria is permissible in the selection of management positions. Ramirez v. Hofheinz, 619 F.2d 442, 446 (5th Cir. 1980). Dogans contends that the only conclusion that can be drawn from the filing of the EEO complaint against Duplantier on May 30, 1996 is that the subjective interview factor was proffered by him to conceal his retaliatory motive. Dogans' logic is faulty. Her view would render the interview process superfluous. In effect, Dogans would negate the rule permitting the use of subjective criteria in filling management positions.
The fourth factor is Duplantier's conclusion that Dogans' handwritten application was not professional and revealed a lack of concerted effort in applying for the position. Duplantier concedes that there was no requirement that the application be typed. Like Watts' interview performance, Dogans argues that this is a subjective factor employed by Duplantier to conceal his retaliatory motive. This ignores the circumstances confronting Duplantier, who was choosing between applicants for a management level position. One candidate typed her application and the other did not. The inference drawn by Duplantier from Dogans' handwritten application was reasonable.
The fifth factor is Dogans' prior EEO involvement with Duplantier. As discussed below, Dogans' lengthy history of EEO complaints is the only basis that she offers for contending that Duplantier's reasons for not selecting her are implausible and pretextual.
The sixth factor is that Watts had no prior history of EEO complaints. Rec. doc. 1 at p. 5. By resorting to this allegation, Dogans contends that the defendant could only select someone for the position whose record of EEO complaints was at least equal to her own record. Dogans cites no authority for this proposition.
Dogans alleges she was far better qualified for the position than Watts. Rec. doc. 1 at p. 6. The defendant argues that there is no evidence of that. Dogans replies that, pursuant to Price v. Fed. Express Corp., 283 F.3d 715 (5th Cir. 2002), a plaintiff is not required to demonstrate qualifications that are better than those possessed by the selectee. Instead, a plaintiff may prove pretext by other means. There is no evidence that Duplantier ever made discriminatory comments to or about Dogans. Dogans' only evidence of discrimination is that: (1) she had a history of EEO complaints; (2) on May 30, 1996, during the pendency of the application process, she filed a further EEO complaint against Duplantier concerning the use of the sign-in roster; and (3) Duplantier, an African American, chose Watts, a Caucasian, over Dogans, an African American, for subjective reasons.
Dogans has presented only circumstantial evidence. Her claim must be evaluated under the three part burden shifting requirement. Price, 283 F.3d at 719-20. While Dogans' evidence is sufficient to establish her prima facie case, the defendant produced legitimate nondiscriminatory justification for its action. This rebuts the inference of retaliatory animus raised by the prima facie case.Fierros, 274 F.3d at 196. On summary judgment, the plaintiff must demonstrate that discrimination lay at the heart of the employer's decision. Price, 283 F.3d at 720. Dogans has not presented more than a prima facie case. There is insufficient evidence to raise a material issue of fact as to the truth of the justification provided by Duplantier for his decision. The defendant is entitled to summary judgment.
CONCLUSION
IT IS ORDERED that the motion of the defendant, Mel R. Martinez, Secretary of the Department of Housing and Urban Development, to dismiss pursuant or in the alternative for summary judgment (Rec. doc. 5) is GRANTED.