Opinion
No. 3:03-CV-2126-BF.
August 13, 2004
MEMORANDUM OPINION AND ORDER
This is a consent case before the United States Magistrate Judge. The Motion to Dismiss of Defendant John E. Potter, Postmaster General, United States Postal Service, filed December 1, 2003, is before the Court for consideration. Defendant contends the case should be dismissed for lack of subject matter jurisdiction, failure to state a claim and failure to comply with Fed.R.Civ.P. 8(a). Plaintiff Priscilla D. Sapp filed a response on March 19, 2004, and Defendant filed a reply on April 2, 2004.
BACKGROUND
Plaintiff worked for the United States Postal Service from January 21, 1995 until October 21, 1998. At the time of her termination, she was a "Flat Sorter Clerk." Plaintiff purchased a stolen credit card for fifty dollars from Orlando Harris, a man she met at a Bennigans restaurant. She used the credit card to purchase two items at Nieman Marcus and was apprehended as she was walking out of the store. Plaintiff concedes that she purchased a stolen credit card and used it to buy merchandise from Nieman Marcus, but she professes that because she did not steal the card from Defendant's premises, she should not have been terminated from her position as a mail sorter. Plaintiff was placed on Indefinite Suspension Crime Situation as a result of her conduct. A September 16, 1998 "Notice of Removal" letter notified her that her removal was effective October 21, 1998. The reason for termination was "Unsatisfactory services — Purchasing Merchandise with a Stolen Nieman Marcus Credit Card." In her Notice of Removal, the Supervisor of Distribution Operations explained that her position of fiduciary trust required her to be honest and trustworthy. He informed her that the Postal Service no longer had confidence in her integrity. (Notice of Removal). Plaintiff filed grievances through the union on the grounds that (1) management action was too "harsh and too severe;" (2) she had no prior criminal record; and (3) she did not know the consequence of her action because she was young and inexperienced. At this point, Plaintiff had not mentioned racial or sexual discrimination.
As a result of an administrative error, Plaintiff started receiving forms for job openings from her former employer. She attempted to submit the forms, signed June 23, 2000 and July 2, 2000. On June 8, 2001, Defendant notified Plaintiff that she had received the notices for job openings as a result of an administrative error and that she was not eligible to bid on these positions. The letter reminded her that her termination was effective October 28, 1998, just as her Notice of Termination had stated. On January 16, 2002, Plaintiff filed an Equal Employment Opportunity ("EEO") Complaint of Discrimination, but this was dismissed on May 29, 2002, because Plaintiff's complaint was untimely-approximately three years and five months after the alleged discriminatory action. The EEO Compliance and Appeals Officer determined that the EEO poster notifying Plaintiff of her rights was on display in two locations. Plaintiff appealed on June 18, 2002, and the final agency decision was affirmed by the Equal Employment Opportunity Commission ("EEOC") on October 23, 2002. Plaintiff was notified that she had ninety days to file a civil action in a United States Court or alternatively, thirty calendar days from that date to file a request for reconsideration with the EEOC. Plaintiff did not file a timely civil action, nor did she file a request for reconsideration with the EEOC. Rather, she waited until June 29, 2003 and filed the same formal EEO complaint again. The second EEO complaint was dismissed as duplicative of the first claim in an August 20, 2003 final agency decision. Plaintiff filed her complaint in this Court on September 18, 2003. Plaintiff claims racial and sexual discrimination and seeks reinstatement and backpay.
Failure to Exhaust Administrative Remedies
Defendant seeks dismissal pursuant to FED.R.CIV.P. 12(b)(6) on the ground that Plaintiff failed to exhaust her administrative remedies. A motion to dismiss for failure to state a claim under FED.R.CIV.P. 12(b)(6) "is viewed with disfavor and is rarely granted." Lowrey v. Texas A M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997). A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). The ultimate question in a Rule 12(b)(6) motion is whether the complaint states a valid cause of action when it is viewed in the light most favorable to the plaintiff and with every doubt resolved in favor of the plaintiff. Lowrey, 117 F.3d at 247. A plaintiff, however, must plead specific facts, not mere conclusory allegations, to avoid dismissal. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., prohibits discrimination on the basis of race, color, religion, sex, or national origin in federal and private employment. Title VII grants an aggrieved federal employee the right to file suit in federal district court. See 42 U.S.C. § 2000e-16(c). However, before bringing suit, an employee must exhaust her administrative remedies against her federal employer. Fitzgerald v. Secretary, U.S. Dept. of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). See Brown v. General Services Administration, 425 U.S. 820 (1976) ("careful blend of administrative and judicial enforcement powers" in this section of Title VII makes resort to the administrative remedies a precondition to filing suit in federal court); see also Randel v. U.S. Dept. of Navy, 157 F.3d 392, 395 (5th Cir. 1998) (holding that a federal employee must exhaust administrative remedies under Title VII as a precondition to filing suit in federal court); Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997) (holding that a federal employee must file an administrative complaint under Title VII as a prerequisite to filing suit in federal court). Statutory time limits applicable to lawsuits against the United States are entitled to the same rebuttable presumption of equitable tolling applicable to suits against private defendants. Irwin v. Dept. of Veterans Affairs, et al., 498 U.S. 89, 95-96 (1990). See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). Nonetheless, equitable tolling is reserved for situations in which the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the claimant has been tricked by his adversary's misconduct into allowing the filing deadline to pass. Id. Late filings where the claimant failed to exercise due diligence in preserving available legal rights are not favored. Id. A federal employee's duty to exhaust her administrative remedies before filing a Title VII suit is a condition precedent to filing suit in federal court. Id. The Court will now determine whether Plaintiff fails to state a claim due to her failure to exhaust her administrative remedies.
The complaint is subject to dismissal pursuant to FED. R. CIV. P. 12(b)(6) for failure to meet the statutory prerequisite to filing a Title VII claim. For this reason, the Court need not address Defendant's request for dismissal for lack of subject matter jurisdiction pursuant to FED.R.CIV.P. 12(b)(1) and 12(h)(3). Additionally, the Court need not address Defendant's Rule 8 objections to the complaint.
On January 16, 2002, Plaintiff filed a formal EEO complaint challenging her October 23, 1998 termination. On May 29, 2002, the Agency dismissed her complaint as untimely. On June 18, 2002, Plaintiff appealed the Agency's decision to the EEOC. On October 23, 2002, the EEOC affirmed the decision that Plaintiff's complaint of discrimination should be dismissed as untimely. Plaintiff was notified that she had ninety days to file a civil action in a United States Court or alternatively, thirty calendar days from that date to request reconsideration with the EEOC. Plaintiff failed to properly pursue her claim by filing a timely civil action in a federal court or filing a reconsideration request with the EEOC. Hence, Plaintiff failed to exhaust her administrative remedies and the opportunity to do so expired.
Petitioner's second formal EEO complaint, filed with the agency on June 29, 2003, duplicated her first claim and was dismissed on procedural grounds. On August 20, 2003, the final agency decision dismissed the complaint because it was identical to her first untimely complaint.
No grounds for equitable tolling of the statute of limitations exist in this case. Plaintiff was not misled by the Defendant. Any misconception Plaintiff may have had about whether she could bid for jobs was corrected by the June 8, 2001 letter. Plaintiff did not file a formal EEO complaint until January 16, 2002. Moreover, when she appealed to the EEOC and the EEO decision was affirmed, the EEOC gave her clear notice regarding her right to file suit in federal court no later than ninety days after October 23, 2002. Plaintiff failed to exercise due diligence in preserving her legal rights. She fails to state a claim because she has not met the condition precedent to filing a Title VII claim. As Defendant correctly urges, a petitioner must comply with administrative complaint procedures, and if she does not, she does not state a Title VII claim in federal court. In Johnson v. Bergland, the court stated that "if the agency does not reach the merits of the complaint because the complainant fails to comply with the administrative procedures, the Court should not reach the merits either. Otherwise, the complainant might be dilatory at the administrative level, knowing that she can get into federal court anyway." 614 F2d 415, 418 (5th Cir. 1990). Plaintiff did not meet the statutory prerequisite for filing a Title VII claim in this Court. Therefore, this Court may not consider the merits of her claim.
In conclusion, viewing all the pleadings and accepting the undisputed facts in the light most favorable to Plaintiff, the Court hereby grants Defendant's motion to dismiss the complaint with prejudice. Accordingly, Plaintiff's complaint is dismissed with prejudice for failure to state a claim.