Opinion
No. 1:99CV071-D-D.
March 17, 2000.
OPINION
Presently before the court is the Defendant's motion for partial dismissal or, alternatively, for partial summary judgment. Upon due consideration, the court finds that the motion should be granted in part and denied in part.
A. Factual Background
The Plaintiff, Leronious Jones, a black male over the age of forty, is employed by the Defendant United States Postal Service as a Postmaster in Hamilton, Mississippi. On September 17, 1996, Jones filed an informal EEO complaint with the Postal Service alleging race and age discrimination and retaliation in connection with his August 22, 1996, non-selection for a Postmaster position in West Point, Mississippi. After a subsequent mediation conference failed to produce a settlement, Jones filed a formal EEO complaint with the Postal Service in March of 1998. In this complaint, Jones alleged that his non-selection for the West Point Postmastership was due to race, sex, age and disability (hypertension, depression) discrimination and retaliation.
Jones' retaliation claim was based on the fact that, in 1987, he pursued a judicial action in this court against the Postal Service alleging race discrimination (Jones v. United States Postal Serv., et al., No. EC87-171-B-D). The parties settled the case in 1988.
Jones filed the current action on March 12, 1999, alleging race, sex, disability and age discrimination and retaliation in connection with his non-selection for the West Point Postmastership. Jones has further asserted that the Defendant retaliated against him after he filed his initial EEO complaint in September 1996. The Defendant has now moved for partial dismissal or, alternatively, for partial summary judgment.
B. Summary Judgment Standard
Because matters outside the pleadings have been presented to and not excluded by the court in conjunction with this motion, the court treats this motion as one for partial summary judgment as provided for in Rules 12(b) and 56 of the Federal Rules of Civil Procedure.
A party is entitled to summary judgment "if 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden then shifts to the non-movant to "go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). While all legitimate factual inferences must be viewed in the light most favorable to the non-movant, Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Celotex Corp., 477 U.S. at 322. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).
C. Discussion 1. West Point Postmastership
The Defendant has moved for summary judgment on Jones' claims of disability discrimination and retaliation in connection with his non-selection for the West Point Postmastership.
As for Jones' disability claim, it is undisputed that he has no evidence that his non-selection was due to his claimed disabilities. See Jones Depo. p. 123. Therefore, Jones has failed to "go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324. As such, no genuine issue as to any material fact exists regarding this claim, no reasonable trier of fact could find for Jones on this issue and the Defendant is entitled to judgment as a matter of law on Jones' claim of disability discrimination.
The Defendant has also moved for summary judgment on Jones' claim that his non-selection for the West Point Postmastership was the result of retaliation discrimination in connection with his 1987 lawsuit against the Postal Service. While it is a close call, the court finds that the Defendant has failed to show that it is entitled to judgment as a matter of law on this claim. In any event, the court has the discretion, which it exercises here, to allow this claim to proceed to trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Neither do we suggest . . . that the trial court may not deny summary judgment in a case where there is reason to believe that the better course would be to proceed to a full trial.").
2. Retaliation Subsequent to Jones' 1996 EEO Filing
In the complaint he filed in this court, Jones claims that the Postal Service has retaliated against him due to his September 1996 EEO filing concerning the West Point Postmastership. These alleged acts of retaliation include Jones' non-selection in 1997 for the Aberdeen Postmastership and his being denied personal leave. The Defendant asserts that Jones' retaliation claim is not properly before this court due to Jones' failure to exhaust his administrative remedies in connection with this allegation. The court disagrees, although not for the reason Jones suggests. In any event, the Defendant's motion as to this claim will be denied in part.
The parties argue vociferously over whether Jones' claim of retaliation qualifies as a "continuing violation." The continuing violation theory relieves Title VII plaintiffs from the burden of proving that the entire violation they complain of occurred within the actionable period. Webb v. Cardiothoracic Surgery Assocs. of North Texas, P.A., 139 F.3d 532, 537 (5 th Cir. 1998). In other words, the theory permits the tolling of the limitations period during which a complainant must bring his claim of discrimination to the attention of the EEO counselor. Id. The theory does not, however, obviate the need for a complainant to first exhaust his administrative remedies. Miller v. International Tel. Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985); Metsopulos v. Runyon, 918 F. Supp. 851, 858 (D.N.J. 1996). As such, the continuing violation theory is of no assistance whatsoever to Jones because Jones never filed an EEO complaint regarding these allegations of retaliation.
Generally, before a federal employee may bring an employment discrimination suit in federal court, he must first exhaust available administrative remedies. Pacheco v. Rice, 966 F.2d 904, 905 (5 th Cir. 1992). The Fifth Circuit, in Gupta v. East Texas State Univ., 654 F.2d 411, 413-14 (5 th Cir. 1981), however, held that it is unnecessary for a plaintiff to exhaust his administrative remedies prior to pursuing a retaliation claim that stems from an earlier EEO employment discrimination charge; District Courts have jurisdiction to hear such retaliation claims when they grow out of an administrative charge that is properly before the court. See Scott v. University of Mississippi, 148 F.3d 493, 514 (5 th Cir. 1998); Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 479 (5 th Cir. 1991); Goza v. Bolger, 538 F. Supp. 1012 (N.D.Ga. 1982). In other words, if a plaintiff federal employee has filed an EEO complaint and his employer retaliates against him for filing it, the plaintiff may pursue that retaliation claim in federal court without first exhausting his administrative remedies so long as the original EEO complaint is properly before the court.
While the Defendant asserts that there is some conflicting Fifth Circuit authority concerning this point (see Porter v. Adams, 639 F.2d 273 (5th Cir. 1981)), the court is convinced that the Gupta analysis properly applies to the facts of this case. See Nealon v. Stone, 958 F.2d 584, 590 (4 th Cir. 1992); Goza v. Bolger, 538 F. Supp. 1012 (N.D.Ga. 1982).
Jones' retaliation claim here grows out of his 1996 EEO complaint, which is properly before the court. As such, Jones may proceed with his claim of retaliation insofar as it alleges retaliatory acts which constitute adverse ultimate employment decisions. 42 U.S.C. § 2000e-16; Dollis v. Rubin, 77 F.3d 777, 781-82 (5 th Cir. 1995); Page v. Bolger, 645 F.2d 227, 233 (4 th Cir. 1981). The sole qualifying employment decisions alleged by Jones are his non-selection for the Aberdeen Postmastership and his being denied personal leave. See Messer v. Meno, 130 F.3d 130, 140 (5 th Cir. 1997) ("Ultimate employment decisions include hiring, discharging, promoting, compensating, or granting leave, but not events such as disciplinary filings [or] supervisor's reprimands. . ."). Jones' remaining allegations related to his charge of retaliation do not rise to the level of ultimate employment decisions and are hereby dismissed.
D. Conclusion
The court finds that the Defendant is entitled to summary judgment on Jones' claim of disability discrimination in connection with his non-selection for the West Point Postmastership. The Defendant is also entitled to summary judgment on Jones' claim of retaliation subsequent to his 1996 EEO complaint, except as this claim relates to Jones' non-selection for the Aberdeen Postmastership and his being denied personal leave. In all other respects, the Defendant's motion is denied.
A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that
the Defendant's motion for partial summary judgment is GRANTED IN PART and DENIED IN PART;
the motion is GRANTED as to the Plaintiff's claim of disability discrimination in connection with his non-selection for the West Point Postmastership; as such, the Plaintiff's claim of disability discrimination is DISMISSED;
the motion is GRANTED IN PART as to the Plaintiff's claim of retaliation subsequent to his 1996 EEO complaint; this claim is DISMISSED except as it relates to Jones' non-selection for the Aberdeen Postmastership and his being denied personal leave;
in all other respects, the Defendant's motion is DENIED
SO ORDERED, this the 17th, day of March 2000.