Opinion
Civil Action No. 97-4914 (NHP).
May 19, 1999.
Joseph J. De Palma, Esq., Alberto Rivas, GOLDSTEIN, LITE DE PALMA, Newark, N.J. Carmen R. Matos, Esq., STEWART, WOOD BRANCA, Norristown, PA., Attorneys for Plaintiff.
Laura M. Smith, Assistant U.S. Attorney, FAITH S. HOCHBERG, UNITED STATES ATTORNEY, Newark, N.J., Attorneys for Defendant
LETTER OPINION ORIGINAL ON FILE WITH CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on defendant's motion to dismiss several claims in plaintiff's Complaint. The Court heard oral argument on January 28, 1999. For the reasons explained below, defendant's motion is GRANTED.
BACKGROUND
Plaintiff has been a Special Agent with the U.S. Customs Service since 1989. On or about March 20, 1996, plaintiff first contacted an EEO counselor and identified five instances of alleged employment discrimination on the basis his disability, alcoholism. The Counseling Report shows that plaintiff made the following allegations:
(1) Mr. McNaught received notification of 14 day suspension due to work behavior associated with alcohol and alcoholism. He alleges that he was not offered a "firm choice" prior to imposition of his suspension. (2) Mr. McNaught was placed on administrative duty from 11-23-94 through 08-18-95. He alleges the reason for the assignment was his alcoholism. (3) Mr. McNaught was denied promotion to GS1811-13 while assigned to administrative duty. He alleges the reason for denial was his alcoholism. (4) Mr. McNaught received a marginal performance rating. he alleges the reason for this rating was based on alcoholism. (5) Mr. McNaught alleges he received disparate treatment regarding his alcoholism.
Counseling Report, attached as Exhibit B to Certification of Steven D'Alessandro; see also Exhibit C.
On or about May 3, 1996, plaintiff filed a formal EEO complaint alleging the following four claims of discrimination:
1. Management placed him on administrative duty from about November 23, 1994 to about August 18, 1995;
2. While plaintiff was assigned to administrative duty in 1995, he was denied a promotion to a GS-13 Senior Special Agent;
3. Plaintiff was given a "Marginally Successful" performance evaluation on July 17, 1995; and
4. On March 11, 1996, plaintiff received notice that he would be suspended from duty without pay for a period of 14 days due to work behavior associated with alcohol abuse.
Individual Complaint of Employment Discrimination, attached as Exhibit C to Cert. of S. D'Alessandro.
The Department of the Treasury Regional Complaint Center ("RCC") processed plaintiff's complaint. In July 1996, the RCC dismissed the first three of plaintiff's four allegations of discrimination as untimely. Plaintiff appealed to the Equal Employment Opportunity Commission (EEOC). More than 180 days passed without an agency determination as to any of the four allegations. Plaintiff subsequently filed this federal lawsuit, which alleges the same four claims of discrimination raised in his EEO complaint, plus a claim of racial discrimination.
DISCUSSION
I. Summary Judgment
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment may only be granted if, drawing all inferences in favor of the nonmoving party, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dismissed, 483 U.S. 1052 (1987). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, for which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Id. Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts." Id. at 586. Speculation, conclusory allegations, and mere denials are not enough to raise genuine issues of material fact. To defeat "a properly supported summary judgment motion, the party opposing it must present sufficient evidence for a reasonable jury to find in its favor." Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).
A. Counts One and Two
Count One of the Complaint alleges a claim under the Americans with Disabilities Act. However, it is undisputed that the defendant is not a "covered entity" as defined in the ADA. See 42 U.S.C. § 1211(2) and 1211(5)(B)(1); see also Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Count One must therefore be dismissed.
Count Two alleges that plaintiff suffered racial discrimination in violation of Title VII. However, it is clear that plaintiff made no such claim at the administrative level. See Brown v. General Services Administration, 425 U.S. 820, 832 (1976). Although plaintiff alleges that he discussed a possible claim of race discrimination with an EEO counselor, there is simply no mention or reference to race anywhere in the administrative record. Plaintiff does not claim the he was misled or otherwise prevented from filing a charge of racial discrimination. See Affidavit of Robert J. McNaught at ¶¶ 55-61, attached as Exhibit 1. Count Two must therefore be dismissed.
This Court also rejects plaintiff's contention that his claim of racial discrimination is "fairly within the scope the prior EEOC complaint, or the investigation arising therefrom." Waiters v. Parsons , 729 F.2d 233, 237 (3d Cir. 1984).
B. Count III
Plaintiff does not dispute that he waited eight months after the alleged discriminatory acts before contacting an EEO counselor. Nor does plaintiff dispute that he therefore failed to timely exhaust his administrative remedies with respect to three of his allegations of discrimination. Unless an exception applies, these claims must be dismissed. See Robinson v. Dalton, 107 F.3d 1018, 1020-21 (3d Cir. 1997).
The three untimely claims are: (1) assignment to administrative duty from approximately November 23, 1994 through August 18, 1995; (2) denial of promotion to GS-13; and (3) "Marginally Successful" job performance evaluation.
1. Continuing Violation
A plaintiff may pursue a claim based upon discriminatory acts that occurred before the filing period if he can show that the acts were part of an ongoing practice or pattern of discrimination. Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 481 (3d Cir. 1997). The Third Circuit has described three factors that district courts should consider when determining whether there is a continuing violation:
[1] Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? . . .
[2] Are the alleged acts recurring . . . or more in the nature of an isolated work assignment or employment decision? . . .
[3] The third factor, perhaps of most importance, is the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continues existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?Id. at 481-82 (emphasis added) (internal quotations omitted).
The alleged discriminatory acts in this case — nine months administrative duty, denial of promotion, and "Marginally Successful" performance evaluation — are separate and concrete employment actions. Unlike West v. Philadelphia Electric Co., 45 F.3d 154 (3d Cir. 1995), this case does not involve a pattern of harassment. Rather, plaintiff's allegations, if true, relate to completed acts of employment discrimination that "should trigger an employee's awareness of and duty to assert his or her rights." Id. This Court must therefore conclude that there was no continuing violation.
2. Equitable Tolling
Although courts have likened the 45-day period to a statute of limitations, "the aggrieved party is absolved from complying with the filing period if he can show `that he . . . was not notified of the time limits and was not otherwise aware of the.'" Pauling v. Secretary of Dept. of Interior, 160 F.3d 133, 136 (2d Cir. 1998) (quoting 29 C.F.R. § 1614(a)(2). Since plaintiff invokes the doctrine of equitable tolling and relies on materials outside the pleadings, this Court will treat defendant's motion as one for summary judgment. See Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997).
Plaintiff contends that he did not see the various posters in his work area that informed employees of their EEO rights. Although this might provide a sufficient basis for equitable tolling in another case, it is insufficient here because plaintiff has admitted that he in fact hired a lawyer and asserted his legal rights in November of 1995. Indeed, plaintiff has submitted a copy of a 16-page letter brief that his lawyer submitted in opposition to the proposed suspension of plaintiff. See Plaintiff's Exhibit 15. In that letter brief, plaintiff's lawyer specifically argued that "the agency's attempt to suspend [him] . . . clearly constitutes discrimination on the basis of a handicapping condition." Id. at 1.
In sum, plaintiff has failed to demonstrate that his failure to timely exhaust his administrative remedies ought to be excused in this case.
CONCLUSION
For the reasons explained above, defendant's motion is GRANTED. Counts I and II are DISMISSED, and Count III is DISMISSED IN PART.
An appropriate Order accompanies this Letter Opinion.