Opinion
Civil Action No. 01-1543, SECTION "L"(1)
October 9, 2002
ORDER REASONS
Before the Court is the Motion for Summary Judgment of Defendants, Phillip Holland and John E. Potter, Postmaster General of the United States. Defendants move for summary judgment and dismissal of plaintiffs claims on the following grounds: (1) the Court is without subject matter jurisdiction to consider plaintiffs state law claim for negligent infliction of emotional distress; (2) plaintiff's complaint against the local postmaster, Phillip Holland, should be dismissed because a claim for federal sector employment discrimination may be brought only against the head of the agency; and (3) plaintiff's discrimination claim should be dismissed on the grounds that the court either lacks subject matter jurisdiction or, alternatively, that the case is time barred because she did not timely contact the Equal Employment Opportunity Office (EEO) as required by law after becoming aware of the discrimination. For the following reasons, the defendants' motion is GRANTED and plaintiff's claims are DISMISSED WITH PREJUDICE.
FACTS
Plaintiff, Sharon Jefferson, was employed by the United States Postal Service (USPS) on May 13, 2000. On that date, she alleges that her supervisor, Phillip Holland, sexually harassed her by kissing her and exposing himself. Plaintiff claims that she did not tell anyone about the incident until two or three weeks later, when she told two of her co-workers. They advised her to discuss the issue with Barry Taquino, Manager of Human Resources for USPS, and Mack Boyd, Manager of Labor Relations for the USPS. Plaintiff did not speak with Mr. Boyd until July 10, 2000, and she spoke with both men again on July 13. Only July 23, plaintiff informed the men by letter of the alleged incidents of harassment. At no time during these meetings did either man inform plaintiff that she was required by law to report incidents of sexual harassment within 45 days of such harassment. Two days later, plaintiff was notified that her claim was being investigated, and she was re-assigned to the Chalmette office of the USPS.
See 29 C.F.R. § 1614.105(a)(1), providing that "[a]n aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory."
Plaintiff claims that she was first made aware of the 45-day deadline on August 9 or 10 when she was interviewed by the fact-finding team members investigating her report. Plaintiff finally met with an EEO counselor on August 10, 89 days after the alleged incident of harassment occurred. The USPS' investigation of the incident determined that the claims were too inconclusive to substantiate further action. Plaintiff then filed a complaint with the EEOC, which dismissed the complaint as untimely on February 12, 2000.
In May, 2001, plaintiff filed suit in this Court alleging damages against the USPS and the Postmaster General of the United States, in his representative capacity, for violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000 et seq.). Holland was also named as an individual defendant in the suit for violations of state law claims, including negligent infliction of emotional distress. Defendant filed a Motion to Dismiss all of plaintiff's claims pursuant to Rule 12 of the Federal Rules of Civil Procedure. The Magistrate Judge assigned to the case noted that the defendants were asserting matters outside the pleadings in their 12(b)(6) motion; therefore, she converted the Motion to Dismiss into a Motion for Summary Judgment under Rule 56. Because the parties would not consent to trial before the Magistrate Judge, the case was transferred to this Court for hearing.
See. Fed.R.Civ.P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56."
In their motion, defendants argue, first, that plaintiff's tort and emotional distress claims are preempted by federal law because Title VII is plaintiff's sole and exclusive remedy. Second, defendants claim that Phillip Holland is not a proper defendant in this case because the proper defendant is the head of the department in his representative capacity. Third, defendants assert that the court lacks subject matter jurisdiction to hear the case because plaintiff failed to timely exhaust her administrative remedy. Alternatively, defendants argue that plaintiff's case is time barred because she did not timely assert her administrative remedy.
LAW ANALYSIS
Summary Judgment Standard
A district court can grant a motion for summary judgment only 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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Techs., Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50 (citations omitted).
Section 717 of Title VII Provides the Exclusive and Preemptive Remedy
Title VII of the Civil Rights Act of 1964 provides a remedy to employees who are discriminated against on the basis of race, gender, religion, or national origin; the act was amended in 1972 with the passage of the Equal Employment Opportunity Act to provide federal employees with the same remedies against the government. See Brown v. General Services Administration, 425 U.S. 820, 825, 96 S.Ct. 1961, 1964 48 L.Ed.2d 402 (1976). Defendants contend, and the plaintiff does not dispute, that Section 717 of Title VII provides the exclusive form of recovery against the USPS, as a federal employer. See id. at 835. Indeed, the Fifth Circuit has noted that it is "well settled that the provisions of Title VII of the Civil Rights Act applicable to claims . . . in federal employment are the exclusive and preemptive remedy for such claims." Hampton v. Internal Revenue Service, 913 F.2d 180, 182-83 (5th Cir. 1990). Further, "damage claims in Titled VII cases sounding in tort are barred as a matter of law." Id. Accordingly, plaintiff's state law claims are not properly before this court and are dismissed with prejudice from this lawsuit.
Court's Lack of Subject Matter Jurisdiction over Phillip Holland
The defendants next argue, and the plaintiff again does not dispute, that this Court lacks subject matter jurisdiction over defendant Phillip Holland because the proper party to this lawsuit is the head of the agency (the USPS in this case) in his representative capacity. See Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988). Accordingly, plaintiff's claims against the individual defendant, Phillip Holland should be dismissed.
Plaintiff failed to timely initiate the required administrative procedures to bring her claim, depriving this court of subject matter jurisdiction to hear this case, or, alternatively, resulting in this case being time-barred.
Although an injured employee may sue the federal government for damages under Title VII, he or she must fulfill any administrative pre-requisites to filing suit in federal court; failure to do so may result in his or her claim being barred. See Pacheo v. Rice, 966 F.2d 904, 905 (5th Cir. 1992). In Title VII, cases, an employee is required to initiate contact with an EEO counselor within 45 days of the discriminatory action before being able to sue in federal court. See 29 C.F.R. § 1614.105(a)(1). However, this 45-day period may be extended if:
[T]he individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the limits, or for other reasons considered sufficient by the agency or the Commission.Id. at (a)(2).
The plaintiff does not dispute that her initial contact was filed well after the 45-day period had elapsed; rather, she seeks to take advantage of the above provision to extend that deadline. In effect, plaintiff asks this court to apply the doctrine of "equitable tolling" first applied to Title VII cases against the government in Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96, 112 S.Ct. 453, 457 (1990). The Irwin Court noted that the principal of equitable tolling would only be applied in very limited instances such as where a defective pleading was filed or the claimant was induced to file an untimely claim by the trickery of his employer. Id. at 457-58. However, the Court also said that it would be "much less forgiving in receiving late filings where the claimant failed to exercise due diligence in preserving his legal rights." Id. at 458. The Fifth Circuit said that equitable tolling would apply when "despite all due diligence, a plaintiff is unable to discover essential information bearing on the existence of his claim." Pacheo, 966 F.2d at 906-07.
The government argues that the plaintiff has failed to allege a valid reason for the application of Irwin. As a result, the government asks this Court to dismiss plaintiff's claim on the grounds that the court either lacks subject matter jurisdiction or the claim is time-barred. The issue of whether the 45-day limit is jurisdictional in nature or a statute of limitations is not very well settled. See Hogan v. United States, 1999 WL 1138529, at * 5 (E.D. La. Dec. 7, 1999). However, this issue need not be resolved at this time because the analysis under Irwin is still the same. See id. (noting that whether the time limit is jurisdictional or a statute of limitations is irrelevant because the doctrine of equitable estoppel applies nonetheless). Therefore, this court must determine whether plaintiff knew or should have known of the 45-day deadline.
The burden of proof in this case rests with the plaintiff. Id. In its motion for summary judgment, the defendant points to several facts to show plaintiff either had or should have had knowledge of the 45-day reporting deadline; these facts are presented via the declaration of Ellen St. Cyr, the Manager of EEO Dispute Resolution for the Louisiana District of the USPS. St. Cyr states first that general information about the EEO, including information on initiating complaints, was posted on EEO bulletin boards of each unit of the main post office where plaintiff worked. These notices clearly state that employees requesting pre-complaint counseling must file a request with the EEO within 45 days of the actionable incident. The plaintiff, for her part, in her affidavit attached to her memorandum in opposition to the Government's motion denies that there were any signs or information posted in her section of the post office informing her of the 45-day notice requirement.
Further, St. Cyr states that a pamphlet entitled "Employee's Guide to Understanding Sexual Harassment" was sent to every USPS employee in February, 2000. The pamphlet defines sexual harassment to include "unwelcome, intimate touching, patting, or grabbing," and states that if the employee chooses to pursue a complaint through the EEO, a counselor must be contacted within 45 days or the employee risks losing the right to pursue the EEO in federal court. As to this point, plaintiff's affidavit is silent, neither confirming nor denying receipt of the pamphlet.
Finally, the declaration notes that on four occasions dating back to November 6, 1991, plaintiff had contacted EEO counselors for the purpose of pursuing EEO complaints and was timely each time although the declaration does not provide any specifics on the nature of these acts. Plaintiff, however, contends that she had never previously filed any type of claim or grievance with the EEO or USPS and was not familiar with such procedure. Significantly, though, plaintiff does not dispute these contacts.
Plaintiff also argues that the failure of Taquino and Boyd to inform her of the 45-day notice requirement and Taquino's advice to plaintiff to file a complaint in July, 2000 acts as a waiver by the government of the deadline. As support for its argument, plaintiff cites the Ninth Circuit's decision in Girard v. Rubin, 62 F.3d 1244 (9th Cir. 1995). In Girard, the plaintiff's employer, the IRS, denied his initial complaint as untimely, but the EEOC reversed that finding and instructed the IRS to investigate the claim. Id. at 1246. The IRS complied with the EEOC's instructions, although it could have moved to reopen the issue. Id. at 1247. The Ninth Circuit held that because the EEOC's decision was binding and final, the IRS could not come into court at that late stage and argue the same issue; the court held that the IRS had waived its right to contest the timeliness issue. Id. The facts of the present case are clearly distinguishable, as the EEOC rejected the formal complaint as untimely. Further, the Fifth Circuit has refused to hold that an agency's mere acceptance and investigation of an untimely complaint constitutes a waiver of the deadline to file complaints. See Oaxaca v. Roscoe, 641 F.2d 386, 390 (5th Cir. 1981). Thus, Taquino's actions did not constitute a waiver of the deadline.
As to the other facts of the case, it is undisputed that plaintiff received notice of the applicable deadlines for filing a complaint in the pamphlet she received three months before the alleged harassment occurred. Plaintiff sets forth no facts to dispute Ellen St. Cyr's declaration on this point. Thus, the Court finds that plaintiff did receive this information. Furthermore, even though factual disputes do exist as to the location of the EEO bulletins and plaintiff's contact with the EEO office, this Court finds that the plaintiff still was aware, or at least should have been aware, of the deadlines by virtue of her receipt of the pamphlet. Plaintiff does not dispute her contact with the EEO, and this shows that she was at least aware of the EEO's existence as the entity charged with receiving complaints of harassment. Further, plaintiff does not dispute the placement of any bulletins throughout the post office, but only challenges their placement in her work area. It is therefore undisputed that they did exist in other areas, including the lobby of the post office, as required by the terms of the bulletins themselves. When all these facts are viewed together, the court finds that, at a minimum, the plaintiff had constructive notice of the 45-day deadline for filing an informal complaint with the EEO. Actual notice of the deadline is not required. Accordingly, her claim is time-barred and should be dismissed.
CONCLUSION
IT IS ORDERED that the defendant's Motion to Dismiss be and hereby is GRANTED and the plaintiffs claims are DISMISSED WITH PREJUDICE for the following reasons:
1. The Court lacks subject matter jurisdiction to consider plaintiff's state law claims;
2. The plaintiff's complaint against the local postmaster is not a proper defendant; and
3. The plaintiff's complaint is time-barred because she failed to follow the proper administrative procedures by filing an untimely complaint and has failed to show that the principal of equitable tolling should be applied.