Opinion
CIVIL ACTION NO. 7:02-CV-176-R
June 25, 2003
ORDER
Now before this Court is Defendants' Motion to Dismiss (filed November 12, 2002). Plaintiff has failed to file a response to Defendants' Motion.
Defendants' Motion was refiled In joint motion submission format on March 4, 2003.
See Notice of Default, Plaintiff's Motion at Tab D (stating that Defendants' Motion was served on Plaintiff's counsel on November 8, 2002).
Plaintiff's Original Complaint (filed August 22, 2002) seeks relief under Title VII of the Civil Rights of 1964 ("Title VII"), Title I of the Americans with Disabilities Act of 1990 (the "ADA"), and the Age Discrimination in Employment Act of 1967 (the "ADEA"). Plaintiff also seeks damages for intentional infliction of emotional distress. Plaintiff, an employee of the U.S. Postal Service, alleges several incidents relating to an on the job injury, sexual harassment, unfair compensation and working conditions. These alleged incidents occurred during the period from December 1998 to August 2001.
Plaintiff's Title VII and ADEA claims were not timely reported to an EEO Counselor and are therefore barred. 29 C.F.R. § 1614.105(a)(1) (requiring federal employee initiate contact" with an EEO Counselor within 45 days of the alleged discriminatory matter or action). Plaintiff contacted the EEOC on November 1, 2001 — more than 30 days past the expiry of the 45 day period after the last incident described in her Complaint, Plaintiff has not pleaded facts which would support an extension of the 45 day deadline. See Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992) (noting the equitable defenses of waiver, estoppel and equitable tolling). Similarly, Plaintiff's claims do not qualify as a "continuing violation" as none of the alleged acts would support a timely claim. See Huckobay v. Moore, 142 F.3d 233, 240 (5th Cir. 1998) (citation omitted); Brewer v. Runyon, 1998 WL 4: 7776, at *7 (N.D. Tex. July 21, 1998) ("a plaintiff must show a `series of related acts' by an employer, one or more of which falls within the limitations period") (citing Berry v. Bd. of Supervisors of L.S.U., 715 F.2d 971, 979 (5th Cir. 1983)).
Defendants' Motion, App. at 4 (USPS Final Agency Decision stating that "you contacted the EEO Counselor on November 1, 2001 or approximately 33 days after the prescribed time limits"). Plaintiff's Complaint does not allege contrary facts, it simply provides a conclusory statement that Plaintiff "has exhausted such administrative remedies as were available to her."
The statement in the Complaint that "[t]he acts set forth in this paragraph 4 of this complaint are still being committed by Defendants" does not refer to any particular acts. "Paragraph 4" is a self-styled "Statement of Facts" which is 5 pages long. The blanket conclusory statement that "[t]he acts set forth in paragraph 4" are continuing is insufficient See Celestine v. Petroleas de Venezuella SA, 263 F.3d 343, 352-53 (5th Cir. 2001).
Plaintiff's claims under the ADA are also barred. 42 U.S.C. § 12111(5)(B); Rivera v. Hayman, 157 F.3d 101, 103 (2d Cir. 1998) (a federal employee "has no remedy for employment discrimination under the ADA . . . His sole claim for discrimination on the basis of disability is under the Rehabilitation Act, if anywhere").
Plaintiff's claim for intentional infliction of emotional distress ("IIED") likewise fails as Plaintiff docs not rely on distinct facts in support of her IIED claim; the IIED claim is therefore precluded by Title VI. Pfau v. Reed, 125 F.3d 927 (5th Cir. 1997), vacated, 525 U.S. 801 (1998), reinstated in relevant part, 167 F.3 d 228, 229 (5th Cir. 1999) ("when a complainant against a federal employer relies on the same facts to establish a Title VII claim and a non-Title VII claim, the non-Title VII claim is `not sufficiently distinct to avoid' preemption.") (citations omitted).
Plaintiff has not specified whether she brings her T1RD claim under state or federal law. Either claim fails. Texas courts have adopted a strict approach to IIED claims in employment cases which is satisfied only in the most extreme cases. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999). See, e.g., Jackson v. Creditwatch, 84 S.W.3c 397 (Tex.App.-Fort Worth 2002, pet denied) (behavior failed to meet the high standard of "extreme and outrageous").
For the reasons state herein, Defendants' Motion is hereby GRANTED. Plaintiff's claims are DISMISSED WITH PREJUDICE. Each party shall bear its own costs.
It is so ORDERED.
FINAL JUDGMENT
Defendant's Motion to Dismiss was GRANTED as to all claims on May __, 2003.Pursuant to Rule 58 of the Federal Rules of Civil Procedure, Plaintiff's claims against Defendant are hereby DISMISSED WITH PREJUDICE. Each side shall bear its own costs.