Opinion
Case No. 1:03CV152 DAK.
March 14, 2005
ORDER
This matter is before the court on Defendant James G. Roche's ("Roche") Motion to Dismiss, pursuant to Federal Rules of Civil Procedures, Rule 12(b)(6). A hearing on the motion was held on December 17, 2004. At the hearing, Defendant was represented by Daniel D. Price and Tracey Rockenbach. Plaintiff was represented by Michael J. Boyle. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to the motion. Now being fully advised, the court renders the following Order.
BACKGROUND
The following facts are accepted as true for purposes of Defendant's Motion to Dismiss. Plaintiff is a native of India, who is a naturalized citizen residing in Utah. Plaintiff is over the age of fifty. Plaintiff began working for the Navy at the Mare Island Shipyard (MINSY) in 1992 as a nuclear scientist with an impressive list of credentials including several masters degrees, a Ph.D. in chemistry, and several postdoctoral fellowships. While working at MINSY, Plaintiff received "highly satisfactory" performance ratings every year.
On February 3, 1996, Plaintiff was transferred to a newly created Environmental Engineer position in the Safety/Engineering Data Branch (LMES) at Hill Air Force Base ("HAFB"). Because the position was new, the only duties and responsibilities Plaintiff knew of were those detailed in the job description. Prior to Plaintiff's arrival at HAFB, Richard Clark ("Clark") began working as an Environmental Engineer. Plaintiff asserts that from the beginning, Clark "had all the Environmental Engineering responsibilities. There was no opportunity for [Plaintiff] to do any environmental engineering work."
In April 1996, Plaintiff was asked to perform a task, for which he received low performance ratings because, Plaintiff asserts, his supervisor, Lt Col. Argo ("Argo"), was unable to access his personnel files from MINSY. In May 1996, Argo refused Plaintiff's request for funding to attend the Annual Training in Hazardous and Toxic Waste Management. Instead, Argo sent Clark and Dennis Casper, both Caucasian and both younger than Plaintiff. Toward the end of 1996, Plaintiff requested travel funds to attend a Corrosion Prevention Advisory Board Meeting and Missile Site Surveillance seminar. Again, Argo denied Plaintiff's request. This time, Plaintiff's request was denied because "there was a freeze on all travel and expenses." However, during that time, fourteen other individuals were approved funding from the same source of money that was supposedly frozen. In February 1997, Bryan Bell ("Bell") replaced Argo.
Between July and the end of September 1997, Plaintiff asserted his qualifications to Bell and sought more responsibility and additional assignments. In October 1997, Bell assigned Plaintiff a project, which he completed in December 1997. Plaintiff alleges that he completed the project in "record time" and that it had previously been assigned to Clark, who did not finish it after eighteen months. Nonetheless, Plaintiff was given one of his poorest performance appraisals in April 1998. Plaintiff asserts that the April 1998 poor performance rating limited his opportunity for promotions and effectively rendered him "unpromotable." Plaintiff objected to his low performance rating to Major Timothy Moynihan ("Moynihan"), who did nothing to alter the rating. In May 1998, Moynihan "sponsored" Clark and Casper, but not Plaintiff, to attend the Annual Training in Hazardous and Toxic Waste Management seminar.
Previously, in February 1998, Clark was promoted. Plaintiff asserts that he could have qualified for the position, but that he was never given the opportunity to apply or interview. In May 1998, Clark announced that he had chosen Susie Barney, a metallurgist from the TI Directorate, to fill his previous position. Plaintiff again asserts that he was qualified for the position and should have been considered for promotion. Before Barney filled the position, Plaintiff attempted to apply for the position. He approached Clark about the position, but Clark informed him that he had already sent the description to the Human Resources Department. Plaintiff asked Richard Miller in Human Resources about the position, but Miller informed Plaintiff that he had not received the description, but would be happy to include Plaintiff's name for consideration of the position. It is unclear whether Plaintiff was considered for the promotion.
During that same month, Plaintiff requested funds to attend the Corrosion Program Advisory Board Meeting. Plaintiff's request was once again denied due to a freeze on travel funds and promotions. However, while the freeze was imposed, several travel requests were approved. Moreover, during the promotion freeze, Bell promoted Salvatore Herrara to senior nuclear surety position. The position was not openly advertised and Plaintiff alleges that he did not know about it until after the fact. Plaintiff asserts that he was qualified for the position, given that he had fourteen years of nuclear engineering experience. Plaintiff asserts that he was not considered for the promotion because of his poor performance rating in April 1998, just a few months before the position was filled.
In July 1998, Greg Hustad ("Hustad") was transferred to the Plaintiff's division and given responsibilities, of which about sixty percent were nuclear surety. Again, Plaintiff asserts that he never knew of this opportunity and was never considered for the position even though he had fourteen years of nuclear engineering experience. EEO investigator, Craig McKeown ("McKeown") asked Clark why he did not consider Plaintiff for the position. Clark responded, "I'd say he is not competent. Just because he worked at a nuclear facility doesn't mean that he knows how to drive the submarines. Just because he worked at a nuc facility doesn't mean that he had nuc surety background." Plaintiff asserts that neither Herrara, Bell, nor Hustad had any nuclear surety background.
In August, 1998, Clark called Plaintiff into his office and told him that "he had not been active in many of the areas which his job description would encompass." Plaintiff informed Clark that he had requested additional assignments, but Bell would not assign any to Plaintiff. Later that day, Plaintiff learned that Clark was leaving and had appointed Mr. Smith to act as LMES chief in his absence. Plaintiff asked why he had not been left in charge and Clark told him it was because he was not a "safety guy." However, Plaintiff asserts that Clark himself was not a "safety guy." A few days later, Plaintiff learned that a project Clark was working on was receiving contract assistance. However, Plaintiff was not afforded the same contract assistance. McKeown asked Bell about Clark's support and Bell told him that Clark was receiving assistance by mistake. Plaintiff filed an EEOC complaint on August 18, 1998.
Plaintiff filed a complaint with the federal district court on December 29, 2003, alleging race and age discrimination.
JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction over issues arising under 42 U.S.C. § 2000e-16. This matter comes before the court on Defendant's 12(b)(6) and 12(b)(1) motion. Defendant seeks dismissal for lack of subject matter jurisdiction for all allegations before July 4, 1998 because Defendant argues that Plaintiff failed to exhaust his administrative remedies, pursuant to 29 C.F.R. § 1614.105(a)(1), which requires a federal employee to file an EEOC complaint within forty-five days of the alleged discriminatory action. However, the Tenth Circuit held in Beene v. Delaney, that failure to file an EEOC complaint within forty-five days is not a jurisdictional requirement. 2003 WL 21480698, *1, 70 Fed. Appx. 486, 488 (10th Cir. 2003). Thus, Defendant's reliance upon 12(b)(1) is misplaced. Nonetheless, the court may dismiss pursuant to 12(b)(6) for failure to exhaust administrative remedies. See id. at 490-91.
"`The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.'" Sutton v. Utah State Sch. for the Deaf Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)). The court assumes, for purposes of the 12(b)(6) motion, that all of Plaintiff's well-pleaded facts are true and dismiss only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim.'" Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
DISCUSSION
Defendant seeks to dismiss all allegations of discrimination prior to July 4, 1998 for failure to exhaust administrative remedies and all allegations of discrimination after July 4, 1998 for failure to state a claim of discrimination.
A plaintiff must exhaust his/her administrative remedies before bringing a civil action for employment discrimination in federal employment, under Title VII, 42 U.S.C. § 2000e-16. Jense v. Runyon, 990 F. Supp. 1320, 1325 (D. Utah 1998). In order to exhaust administrative remedies, a federal employee must file an EEOC complaint within forty-five days of the alleged act of discrimination. 29 C.F.R. § 1614.105(a)(1); Jense, 990 F. Supp. at 1325.
A discriminatory act may be one discrete act which individually gives rise to a Title VII claim or it may be a series of events resulting in one hostile work environment claim. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-115 (2002). Discrete acts are those acts that "are easy to identify," such as "termination, failure to promote, denial of transfer, or refusal to hire," and independently give rise to a Title VII claim. Id. at 113-14. A plaintiff alleging discrete acts of discrimination in federal employment must file an EEOC complaint within forty-five days, or such allegations are not actionable because they are "time barred, even when they relate to acts alleged in timely filed charges." Id. at 113. A plaintiff may not string together a series of "discrete acts," that would be independently actionable to get around the statute of limitations. See Bloomer v. United Parcel Serv., Inc., 2004 WL 823495, *3-4,
94 Fed. Appx. 820, 824 (10th Cir. 2004).
On the other hand, a hostile work environment claim "collectively constitute[s] one `unlawful employment practice.'" Morgan, 536 U.S. at 117. Acts creating a hostile environment "cannot be said to occur on any particular day. It occurs over a series of days or perhaps years." Id. at 115. Therefore, if a plaintiff brings a hostile work environment claim within forty-five days of only one specific event, which is not independently actionable, but which contributes to the hostile work environment, the court may consider all of the alleged conduct creating the hostile work environment, even if most of the acts occurred outside the forty-five day period.
In this case, the acts alleged in Plaintiff's Complaint are discrete acts. Thus, any alleged acts that occurred before July 4, 1998 are time-barred because Plaintiff did not contact an agency EEO Counselor within 45 days of the allegedly discriminatory acts. The court finds no merit to Plaintiff's arguments that these claims may be resurrected under a continuing violation theory or a hostile work environment claim. Accordingly, to the extent Plaintiff's claims are based on alleged conduct occurring prior to July 4, 1998, those claims are dismissed.
Plaintiff appears to have alleged one allegedly discriminatory act-failure to transfer-that occurred after July 4, 1998. In this case, Plaintiff alleged that he "never knew of this opportunity and he was never considered for this responsibility even though he had fourteen years nuclear engineering experience." Defendant argues that Plaintiff has not stated a claim for discrimination because he admits that he did not apply for and thus was never considered for the transfer. Although these facts do not fit exactly within the McDonnell Douglas framework, the court finds that it would be premature to dismiss this claim prior to discovery. If Plaintiff can demonstrate that his employer knew that Plaintiff sought such a transfer, that he was qualified for the position, and that his employer deprived Plaintiff from finding out about the opportunity or otherwise declined to consider him based on his age or race, then Plaintiff will have stated a claim for discrimination.
CONCLUSION
Accordingly, for the reasons stated above, Defendant's Motion to Dismiss is GRANTED in part and DENIED in part. Any alleged discriminatory act occurring prior to July 4, 1998 is time-barred, and thus any claim for discrimination based on such alleged acts is DISMISSED.