Opinion
No. 99 CV 4046
July 31, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Virginia A. Narsete ("Narsete") filed a four count second amended complaint against defendant Togo D. West, Jr., Secretary of the Department of Veterans Affairs (hereinafter referred to as "defendant"), alleging sexual harassment that occurred during and after her employment, retaliation for filing an BEG complaint, a tort claim, and a breach of contract claim surrounding a settlement agreement of a federal personnel action against plaintiff. Defendant has moved this court to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. Narsete responds to the motion as if it was one for summary judgment. Therefore, the court will address the merits of the motion under the summary judgment standard set forth in Federal Rule of Civil Procedure 56. For the reasons set forth in this memorandum opinion and order, defendant's motion for summary judgment is GRANTED.
STATEMENT OF FACTS
The following statement of facts comes from the parties' Local Rule 56.1(a) and 56.1(b) statements of material facts and accompanying exhibits.
In October of 1987, Narsete, a female, was hired as the Chief of Medical Media Services at the Hines Veteran Administration Hospital ("VA Hines"). During her employment with VA Hines, Narsete claims a direct, subordinate employee, John Renda ("Renda") engaged in sexually harassing conduct, beginning in late 1991. On August 8, 1994, Narsete made a point of contact ("POC") statement regarding alleged sexually oriented art work she found on Renda's computer. In addition, in August of 1994, Narsete's husband sent a letter to VA Hines, alleging the Narsete was sexually harassed by Renda, when in December of 1991, Renda gave Narsete's husband a gift of homemade beer with a sexual logo. In September of 1994, Narsete prepared another POC alleging Renda and another employee engaged in sexually harassing conduct. In that POC, Narsete specifically admits she would not file a EEO complaint. On February 4, 1995, Narsete voluntarily resigned from her position with VA Hines and began working at the United States Environmental Protection Agency. On May 26, 1995, Narsete's attorney sent Renda a letter accusing him of slander and requesting Renda to cease slandering Narsete. Over the next year, Narsete filed a three separate EBO complaints, each complaint, its allegations, and procedural history will be discussed separately below.
1. Narsete's First EEO Complaint Filed June 27, 1995
On June 27, 1995, Narsete filed her first informal EEO complaint with VA Hines, alleging she was a victim of sexual harassment by Renda. The complaint was assigned to Gregory Daniels ("Daniels"), Narsete's EEO Counselor. Daniels conducted an informal investigation of the allegation and issued a final determination on August 25, 1995. Daniels found that the resolution of Narsete's complaint could not occur informally. Daniels then issued Narsete a final interview and notified her of her rights to file a formal EEO complaint.
On September 7, 1995, Narsete filed a formal EEO sexual harassment complaint which states that the hostile work environment has been ongoing since June. Narsete specifically alleged in her complaint that Renda had sexually harassed her and slandered her after her departure from VA Hines. On May 30, 1996, Assistant General Counsel of the Department of Veterans Affairs, Neal C. Lawson ("Lawson"), dismissed Narsete's complaint. Lawson found that Narsete failed to contact an EEO Counselor within the proscribed 45 days time limit. Lawson also found that Narsete failed to prove she was an aggrieved individual.
On June 26, 1996, Narsete filed a timely appeal of the final agency determination to the Equal Employment Opportunity Commission ("EEOC"). On April 27, 1997, the EEOC issued its decision, finding that the dismissal of the allegations that Renda slandered Narsete was proper, but remanded the sexual harassment claim. The EEOC found that there was insufficient evidence on whether Narsete knew or reasonably should have known of the time limits to the filing of complaints of discrimination or whether circumstances beyond her control prevented Narsete from contacting her EEO Counselor within the 45 day time limit. At the conclusion of the decision, the EEOC informed Narsete of her right to file a motion for reconsideration or appeal the decision to an appropriate federal court within 90 days from the date she received the final decision.
While the timeliness issue was remanded to the Regional Counsel's Office, Narsete filed, on May 27, 1997, a timely motion for reconsideration of the final decision on the slander issue. The EEOC denied Narsete's request on May 20, 1999. The EEOC again informed Narsete of her rights, including her right to file a civil action in the appropriate United States District Court within 90 days from the date she received the final decision.
In the meantime, on remand regarding the timeliness of the sexual harassment claim, VA Hines obtained an affidavit from an EEO Manager who allegedly spoke with Narsete. The letter indicated that the EEO Manager never discussed with Narsete a complaint of sexual harassment, nor did the EEO Manager advise Narsete to not file an EEO Complaint out of fear of retaliation. On July 23, 1997, the Office of General Counsel issued a second final agency decision, dismissing Narsete's EEO complaint for untimely contacting an EEO Counselor. The EEOC reviewed the agency decision and issued its final decision on August 26, 1998. The EEOC affirmed the final agency's decision to dismiss the allegation, finding that Narsete's EEO complaint lacked a sufficient justification to extend the time limit for Narsete's failure to timely initiate contact with an EEO Counselor, Once again, Narsete was informed of her right to appeal the EEOC's final decision within 90 days from the date she received the decision with the appropriate federal court.
2. Narsete's Second EEO Complaint Filed May 13, 1996
On May 13, 1996, Narsete filed a second EEO complaint, alleging she believed a defaced photo of her was on display at VA Hines as ongoing harassment and reprisal. VA Hines and Narsete were unable to informally resolve her complaint so Narsete was informed of her right to file a formal complaint. On August 5, 1995, Narsete filed a second formal complaint with VA Hines and the Office of General Counsel. After investigating the complaint, on July 23, 1997, the Office of General Counsel issued a final agency decision dismissing the complaint for failure to show that Narsete was an aggrieved employee. Narsete appealed the final agency decision to the EEOC. On August 18, 1998, the EEOC affirmed the dismissal of her complaint, finding that Narsete failed to state a claim. Narsete was again informed of her right to appeal the EEOC's final decision within 90 days from the date she received the decision to the appropriate federal court.
3. Narsete's Third EEO Complaint Filed January 25, 1997
On January 25, 1997, Narsete filed a third informal EEO complaint, alleging that improper questioning occurred during a deposition hearing in an unrelated case as retaliation for her filing an EEO charge. VA Hines and Narsete were unable to informally resolve her complaint so, on April 15, 1997, Narsete filed a third formal complaint with the Department of Veterans Affairs ("VA") and the Office of General Counsel. After investigating the complaint, on November 26, 1997, VA issued a final agency decision, dismissing the complaint for failure to state a cause of action. Narsete timely appealed the final agency decision to the EEOC. On December 21, 1999, the EEOC affirmed the dismissal of her complaint, finding that Narsete failed to state a claim. Narsete was again informed of her rights, in that she could file a motion to reconsider the EEOC's decision or file an appeal of the EEOC's final decision within 90 days from the date she received the decision in the appropriate federal court. On January 24, 2000, Narsete filed a pro se motion for reconsideration with the EEOC. The EEOC has not made a final determination on the motion for reconsideration.
On June 17, 1999, Narsete filed her initial sexual harassment complaint in this court. Narsete amended her complaint on October 25, 1999. Narsete filed a second amended complaint on April 27, 2000, for the first time asserting four counts. In Count I, Narsete alleges she was sexually harassed. In Count II, Narsete alleges retaliation for opposing unlawful discrimination. In Count III, Narsete asserts a claim for intentional infliction of emotional distress. In Count IV, Narsete asserts a breach of contract claim. Defendant argues that he is entitled to summary judgment on each of the counts. With respect to Count I and II, defendant argues that Narsete's claims are procedurally barred. With respects to Count III and IV, defendant argues Narsete failed to provide a valid jurisdictional basis for pursuing these claims against the federal government.
STANDARD OF REVIEW
Under Rule 56(c), summary judgment is proper "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1996). This court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.
A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986). There is no issue for trial "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.
ANALYSIS
A federal employee pursuing a claim under the current provisions of Title VII must comply with three separate time limitations before bringing an action in federal court. Rennie v. Garrett, 896 F.2d 1057 (7th Cir. 1990). In doing so, a federal employee must properly exhaust administrative remedies as a condition precedent to bringing an action in federal court. Gibson v. West, 201 F.3d 990 (7th Cir. 2000). A federal employee must first bring a complaint of discrimination to the attention of an EEO counselor within 45 days of the occurrence or conduct giving rise to the complaint. 29 C.F.R. § 1614.105 (a)(1); Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996). This time limitation, however, can be circumvented if the federal employee was not notified of or otherwise aware of the time limits or circumstances beyond the federal employee's control prevented him or her from submitting the matter on time. 29 C.F.R. § 1613.214 (a)(1)(i), (a)(4); Miller, 77 F.3d at 191. As noted by the Seventh Circuit, this regulation merely codified the two standard defenses to the statute of limitations — equitable estoppel and equitable tolling. Id.
If the complaint cannot be informally resolved by the EEO counselor, then the federal employee must file a formal written complaint with the federal agency's EEO office within 15 days after receiving notice of a right to file a formal complaint. 29 C.F.R. § 1614.106 (b). Following an investigation and adverse decision by either the agency or agency's EEO office, the federal employee may then file an appeal to the appropriate federal district court. The federal employee must file the appeal within 90 days of receiving notice of the final action by the agency or agency's EEO office. 42 U.S.C. 2000e-16(c). The Seventh Circuit recently held that a failure to exhaust these administrative remedies is not a jurisdictional flaw, but rather a condition precedent to bring an action in federal court. Gibson, 201 F.3d at 994 (overrulingPack v. Marsh, 986 F.2d 1155 (7th Cir. 1993)). Thus, a federal employee can rely on the doctrines of equitable estoppel and equitable tolling to excuse his or her failure to exhaust administrative remedies. Id. But, as the Seventh Circuit noted, equitable estoppel against the government is disfavored and usually unsuccessful. Id.
I. Count I: Sexual Harassment Claim
Defendant argues that Narsete's sexual harassment claim in Count I should be dismissed because Narsete failed to file a complaint in federal court within the 90 days limitations period. Defendant also argues that these claims are barred because she failed to timely contact her EEO counselor within 30 days of the alleged discrimination. Narsete argues, without support, that she properly relied on the EEOC's final agency decision of May 20, 1999 and timely filed her initial complaint in this court on June 17, 1999. A cursory review of the EEOC's final decisions moots Narsete's argument though. The EEOC unequivocally indicated in its April 27, 1999 decision that the sexual harassment claim would be remanded, and thereby, the decision was not a final agency decision. The EEOC decision on May 20, 1999 further indicated it had only reconsidered Narsete's allegations that her subordinate Renda had made slanderous remarks. Moreover, a review of Narsete's motion for reconsideration establishes that the allegation of slander was the only claim she was pursuing at that time. Therefore, this court must only focus on whether the sexual harassment claims that were part of final agency decision were timely appeal and filed in this court within 90 days of the decision. A review of the procedural history of Narsete's first and second EEO complaint is thereby necessary because they are the only two complaints which specifically allege sexual harassment.
A. Narsete' First EEO Complaint File June 27, 1995
A mere cursory review of the facts in this case establish that Narsete's first EEO complaint was not timely filed in this court. On June 27, 1995, Narsete filed her first informal EEO complaint with VA Hines, alleging she was a victim of sexual harassment by Renda. On September 7, 1995, Narsete filed a formal EEO sexual harassment complaint, which was dismissed on May 30, 1996. After a timely appeal, the EEOC rendered its decision on April 27, 1997, finding that the dismissal of the allegations that Renda slandered Narsete was proper, but remanded the sexual harassment claim. At the conclusion of the decision, the EEOC informed Narsete of her right to have it reconsider the decision in the case or file a timely cause of action in a federal court. At that point, however, the timeliness of the sexual harassment claim was remanded to the Regional Counsel's Office for a further evidence and Narsete filed a motion for reconsideration of the final decision on only the slander issue. The EEOC denied Narsete's request to reconsider the slander issue on May 20, 1999.
On remand for the timeliness of the sexual harassment claim, the Office of General Counsel issued a second final agency decision on July 23, 1997, dismissing Narsete's EEO complaint for untimely contacting an EEO Counselor. The EEOC reviewed the agency decision and issued its final decision on August 26, 1998, affirming the final agency's decision to dismiss the allegation because the EEOC found no sufficient justification to extend the time limit for Narsete's failure to timely initiate contact with an EEO Counselor. Narsete was informed of her right to file a motion to reconsider or appeal the EEOC's final decision within 90 days from the date she received the decision to the appropriate federal court. Narsete did not file a motion to reconsider the dismissal of her sexual harassment claim. More importantly, Narsete did not file this lawsuit alleging sexual harassment until June 17, 1999, well beyond the 90 days allowed under the law. Accordingly, Narsete's sexual harassment claims in her first EEO complaint appear to be time-barred for failing to timely file this action.
While Narsete does not argue either equitable tolling and equitable estoppel, the court finds it important to note that there is no evidence before it to warrant the application of either defense. Narsete seems to be arguing that she did not timely file her EEO complaint regarding the sexual harassment claim because she did not believe it was a final agency decision. Narsete admits, however, that she received the decision of the EEOC, dismissing her sexual harassment complaint in August of 1998. That decision informed Narsete that she had to bring a cause of action in a federal district court within 90 days of receipt of the decision. Therefore, Narsete cannot establish a equitable tolling defense when she received unequivocal notice of her right to sue on the claim. Finally, Narsete does not provide any evidence which indicates that she was mislead or prevented from timely filing this lawsuit. Accordingly, because Narsete did not timely file her cause of action for sexual harassment based on the allegations in her first EEO complaint, she cannot now pursue the claims in this court. Consequently, the claims alleged in Narsete's first EEO complaint must be dismissed with prejudice.
Because the court found that Narsete did not properly preserve the claims by failing to timely file this cause of action within 90 days, this court need not address the other procedural and substantive arguments raised by defendant regarding Narsete's first EEO complaint.
B. Narsete's Second EEO Complaint Filed May 13, 1996
The court now turns to Narsete's second EEO complaint to determine whether the allegations of sexual harassment in that complaint were properly preserved. On August 5, 1995, Narsete filed her second formal EEO complaint after VA Hines and Narsete were unable to informally resolve her complaint. On July 23, 1997, a final agency decision was issued, dismissing the complaint. Following a timely appeal by Narsete, the EEOC affirmed the dismissal on August 18, 1998. Narsete was again informed of her rights to either file a motion for reconsideration or file an appeal of EEOC's final decision within 90 days from the date she received the decision in the appropriate federal court.
Narsete, however, did not file a motion to reconsider the dismissal of this allegation of sexual harassment. Narsete also did not file this lawsuit alleging sexual harassment based on the allegations stated in her second EEO complaint until June 17, 1999, well beyond the 90 days allowed under the law. Thus, Narsete's sexual harassment claims in her second EEO complaint appear to be time-barred for failing to timely file this action. As with the first EEO complaint, there is no evidence before the court to warrant the application of either the equitable tolling defense or the equitable estoppel defense. Narsete appears to be making the same argument as she made regarding her first EEO complaint — she did not timely file her EEO complaint regarding the sexual harassment claim because she did not believe it was a final agency decision until May 20, 1999, when the EEOC denied her motion for reconsideration the slander issue. Yet, Narsete admits that she received the decision on her second EEO complaint from the EEOC, dismissing her sexual harassment complaint, in August of 1998. That decision informed Narsete that she may file a motion to reconsider or bring a cause of action in a federal district court within 90 days of receipt of the decision. Therefore, Narsete cannot establish a equitable tolling defense when she received unequivocal notice of her right to sue on the claim. Finally, Narsete does not provide any evidence which would indicate that she was mislead or prevented from timely filing this lawsuit. Accordingly, because Narsete did not timely file her cause of action for sexual harassment based on the allegations in her second EEO complaint, she cannot now pursue the claims in this court. Consequently, the claims alleged in Narsete's second EEO complaint must be dismissed with prejudice. Because no other claims of sexual harassment remain, Count I is dismissed with prejudice.
As noted before, because the court found that Narsete did not properly preserve the claims by failing to timely file this cause of action within 90 days, this court need not address the other procedural and substantive arguments raised by defendant regarding the second EEO complaint.
II. Count II: Retaliation Claim
A. Procedural Default
Before proceeding to the merits of Narsete's retaliation claim in Count II, the court will first address whether Narsete is procedurally barred from pursuing a retaliation claim. Defendant argues that Narsete's retaliation claim in Count II should be dismissed because Narsete failed to exhaust her administrative remedies in that she never raised a claim of retaliation in any of her EEO complaints. As a general rule, a Title VII plaintiff cannot bring a claim in a lawsuit that was not included in her EEOC charge. Harper v. Godfrey Co., 45 F.3d 143, 147-48 (7th Cir. 1995). The Seventh Circuit has found a dual purpose for such a reasoning: (1) affording an opportunity for the EEOC to settle the dispute between the parties; and (2) putting the defendant on notice of the charges brought against him or her. Id. at 148 (citing Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir. 1992)). In other words, this is a condition precedent with which Title VII plaintiffs must adhere. Cheek v. Western Southern Life Ins. Co., 31 F.3d 497, 500 (7th Cir. 1994); Gibson, 201 F.3d at 993-94. A Title VII plaintiff, however, "need not allege in an EEOC charge each and every fact that combines to form the basis of each claim in her complaint" because an EEOC charge is usually completed by laypersons. Cheek, 31 F.3d at 500.
The Seventh Circuit has developed a two-part test for determining whether an EEOC charge encompasses the claims in a federal district court complaint: (1) the claim is like or reasonably related to the EEOC charge, and (2) the claim in the complaint reasonably could develop from the EEOC investigation into the original charges. Harper, 45 F.3d at 148. Turning to the first prong, the Seventh Circuit has stated that "a claim of discrimination in an EEOC charge and a claim of discrimination in a complaint are not alike or reasonably related just because they both assert forms of discrimination." Cheek, 31 F.3d at 501. Therefore, an EEOC charge and the complaint, at a minimum, must describe the same conduct and implicate the same individuals. Id. (citing a number of cases finding claim was not preserved for failure to adhere to the general rule).
In determining if Narsete's allegations of retaliation are to be considered, this court first examined the factual allegations and time period set out in the body of her respective EEO complaints. Id. In her first EEO complaint, Narsete claimed that she was sexually harassed in a hostile work environment, which was ongoing since early June. In her second charge, Narsete alleged that she was sexually harassed and subjected to "reprisal for pending EEO complaint." In her third charge, Narsete alleges that she was also subjected to harassing questioning during a deposition in an unrelated case as retaliation for her EEO complaints. A cursory reading of Narsete's second and third EEO complaints establishes that Narsete was asserting that she had been retaliated against for filing an EEO complaint. Thus, Narsete has properly preserved a retaliation claim by asserting it in her second and third EEO complaint.
B. Retaliation Claim in Second EEO Complaint Barred For Failure to Properly Exhaust Administrative Remedies
Defendant still argues that Narsete's retaliation claim in her second EEO complaint is time-barred because Narsete failed to comply with the other administrative requirements and timely file part of her retaliation claim in federal court within 90 days of receipt of the final EEOC decision. This court agrees. As previously noted, Narsete did not timely file this action within 90 days of receipt of her final agency action.See supra Section I.B.. Therefore, even though this court found that Narsete adequately raised a retaliation claim in her second EEO complaint during the administrative proceedings, it is evident that Narsete failed to timely file a retaliation claim in this court. Consequently, Narsete's allegations raised in her second EEO complaint and incorporated in her retaliation claim in Count II are time-barred. Accordingly, the claim of retaliation from Narsete's second EEO complaint is dismissed with prejudice.
C. Allegations of Retaliation Raised in Narsete's Third EEO Complaint
The court will next address the merits of Narsete's third EEO complaint filed on January 25, 1997 because it also raised a claim of retaliation and does not appear to be time-barred for failing to exhaust administrative remedies. In her third EEO complaint, Narsete alleges that defendant's regional counsel improperly questioned her in a harassing manner during a deposition in an unrelated sexual harassment case. Narsete now essentially claims that this alleged harassing questioning was in retaliation for her filing her EEO charges regarding alleged ongoing sexual harassment by VA Hines and its director Dr. Cummings. Defendant argues that the claim alleged in this complaint fails to state a cause of action because Narsete was not even an employee of VA Hines at the time this alleged harassing conduct occurred by defendant's regional counsel.
Former employees can be protected by Title VII, Robinson v. Shell Oil Co., 519 U.S. 337, 345, 117 S.Ct. 843, 849 (1997), because the need for protection does not disappear when the employment relationship ceases.Veprinsky v. Fluor Daniel, Inc., 87 F.3d 881, 885 (7th Cir. 1996); see also Ruedlinger v. Jarrett, 106 F.3d 212, 213 (7th Cir. 1997) (citingVeprinsky v. Fluor Daniel, Inc., 87 F.3d 881 (7th Cir. 1996)). Still, the retaliatory acts must impinge on the plaintiff's "future employment prospects or otherwise ha[ve] a nexus to employment." Veprinsky, 87 F.3d at 891). Or, in other words, "a claim for retaliation . . . requires the employee to establish an "employment impairment that evidences actionable retaliation." Id. (citing Reed v. Shepard, 939 F.2d 484, 493 (7th Cir. 1991).
Here, Narsete's allegations regarding conduct which occurred at a deposition hearing in an unrelated case does not have sufficient nexus to her employment to warrant protection under Title VII. To demonstrate a causal link, a plaintiff must show that the employer "would not have taken the adverse action `but for' the protected expression." McKenzie v. Illinois Dep't of Transp., 92 F.3d 473, 483 (7th Cir. 1996). The causal link may generally be established by introducing evidence that the adverse act took place "on the heels of the protected activity."McClendon v. Indiana Sugars, Inc., 108 F.3d 789, 796 (7th Cir. 1997). As the temporal distance between the claimant's protected expression and the employer's adverse action increases, however, the likelihood that a causal link exists between the two events diminishes. McKenzie, 92 F.3d at 485. On the other hand, a substantial time lapse between the adverse action and the protected expression does not preclude the employee from making out a prima facie case of retaliation. Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998)). To overcome a lengthy delay between the events, the employee may introduce additional proof of a causal nexus. Id.
Narsete filed her charges of sexual harassment in May of 1995 and May of 1996. In December of 1996, Narsete was deposed in the unrelated case in an alleged harassing manner. At that point, almost eight months had passed between her last filed EEO complaint and the alleged adverse employment action. This passage of time raises the question whether the two events are casually connection. See Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998). Narsete has not provided any competent proof by which the court may find a causal connection. Narsete only provides an unsupported statement that defendant's regional counsel must have engaged in a conspiracy to perpetuate the sexual harassment and retaliate for her filing her EEO complaints. Narsete also fails to provide any evidence as to how this alleged retaliation relates to her past, current, or future employment. It is not this court's function to fit the facts as alleged into a cognizable claim for the plaintiff. Moreover, even if it were, the court cannot discern a claim from the facts presented in the record. Therefore, because the events of the deposition do not affect any term or condition of Narsete's employment and because there is an insufficient casual nexus between the two events, Narsete's retaliation claim alleged in her third EEO Complaint is not actionable under Title VII. Accordingly, Narsete's retaliation claim raised in her third EEO complaint and incorporated in Count II of her second amended complaint is dismissed with prejudice.
III. Counts III: Emotional Distress Claim
In Count III, Narsete asserts a tort claim of intentional infliction of emotional distress. The court finds an obstacle to exercising jurisdiction over Counts III under the Federal Tort Claims Act ("FTCA"). A federal court has no jurisdiction to entertain tort claims against the United States where a plaintiff has not first exhausted his or her administrative remedies under the Federal Tort Claims Act. 28 U.S.C. § 1346 2671 et. seq.; Erxleben v. United States, 668 F.2d 268, 270 (7th Cir. 1981). Defendant argues that Count III should be dismissed because Narsete did not exhaust her administrative remedies under the FTCA. In response, Narsete fails to demonstrate that she complied with § 2675(a) of the FTCA. Therefore, without any showing that Narsete exhausted her administrative remedies as to her proposed FTCA claim, Count III must be dismissed for lack of jurisdiction.
In addition, the defendant and the VA are not suable entities under the Federal Tort Claims Act, which permits suit only against the United States, not its agencies or employees. 28 U.S.C. § 2679 (a), (b)(1);Finley v. United States 490 U.S. 545, 552-53 (1989); see also Hughes v. United States, 701 F.2d 56, 57 (7th Cir. 1982). And, failure to name the United States as defendant is not a mere harmless error. Id. at 58. Therefore, Narsete's failure to name the United States as defendant in an FTCA suit also results in a fatal lack of jurisdiction. Id. Narsete's allegations that the court has jurisdiction over Count III are hereby dismissed with prejudice. Accordingly, defendant's motion for summary judgment on Count III for lack of subject matter jurisdiction must be granted with prejudice.
IV. Count IV: Breach of Contract Claim
In Count IV, Narsete alleges a breach of contract claim arising out of a claimed breach of a settlement agreement she had entered into with defendant. The United States has waived its sovereign immunity in contract disputes, but the only court with jurisdiction to hear contract claims over $10,000 is the United States Court of Federal Claims. 28 U.S.C. § 1346 (a)(2) and 1491(a)(1) ("Tucker Act"); Midwest Knitting Mills Inc. v. United States, 950 F.2d 1295, 1301 (7th Cir. 1991). Here, Narsete expressly states that Count III is a breach of contract action, yet Narsete does not make a specific monetary demand. Assuming that Narsete's demand is over $10,000, this court would lack original jurisdiction over Count IV and Narsete should have filed this action in the United States Court of Federal Claims.
Nevertheless, defendant and the VA are also not suable entities under the Tucker Act or even the Little Tucker Act, which permits suit only against the United States, not its agencies. 28 U.S.C. § 1346 (a)(2) and 1491(a)(1); Finley v. United States, 490 U.S. 545, 552-53 (1989);see also Hughes v. United States, 701 F.2d 56, 57 (7th Cir. 1982). The failure to name the United States as a defendant is not a mere harmless error. Id. at 58. Therefore, Narsete's failure to name the United States as defendant in this suit also results in a fatal lack of jurisdiction.Id. Narsete's allegations that the court has jurisdiction over Count IV are hereby dismissed with prejudice. Accordingly, defendant's motion for summary judgment on Count IV for lack of subject matter jurisdiction must be granted with prejudice.
CONCLUSION
For the above stated reasons, defendant's motion for summary judgment is GRANTED. Counts I, II, III, and IV are dismissed with prejudice. This court dismisses plaintiff Narsete's second amended complaint. This case is dismissed in its entirety. All other pending motions are moot.