Opinion
EP-01-CA-436-DB.
February 12, 2003
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Defendant's "Motion to Dismiss Second Amended Complaint, or alternatively, to Transfer Venue, or alternatively, for a More Definite Statement and to Strike With Brief" ("Motion to Dismiss," "Motion to Transfer," "Motion for a More Definite Statement," and "Motion to Strike," respectively), filed in the above-captioned cause on July 15, 2002. Plaintiff Antonio Sifuentes filed a Response on July 29, 2002. Defendant then filed a Reply on July 31, 2002, to which Plaintiff filed a Sur-Reply on August 14, 2002. After due consideration, the Court is of the opinion that the Motion to Dismiss should be granted in part and denied in part, the Motion to Transfer should be denied, and the Motion for a More Definite Statement and the Motion to Strike should be denied as moot.
BACKGROUND
On May 30, 1997, Plaintiff filed two Equal Employment Opportunity ("EEO") complaints with his employer, the United States Postal Service ("USPS"). In each complaint, Plaintiff alleged that, based on his national origin and for having previously filed an EEO complaint, he was discriminated against when he was not selected for two positions for which he had applied. One position was in Washington, D.C. The other position was in Albuquerque, New Mexico, working under supervision from the Phoenix, Arizona Division of the USPS. Plaintiff was working in El Paso, Texas at the time he filed the complaints. On May 12, 1998, the USPS issued a Final Agency Decision addressing Plaintiff's EEO complaints, finding no discrimination based on national origin or retaliation. The Final Agency Decision notified Plaintiff of his right to file a civil action within ninety calendar days of the date Plaintiff received the Decision.
Plaintiff filed his original Complaint pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and Title I of the Civil Rights Act of 1991 on November 26, 2001, then filed an Amended Complaint on December 26, 2001. By Order entered on June 6, 2002, the Court denied a Motion to Dismiss Amended Complaint with Brief, filed on May 8, 2002, by Defendant. In that same Order, however, the Court ordered Plaintiff to amend his Amended Complaint by "leaving out matters that have been previously litigated." The Court specified that the issue in the case will be limited to the matters addressed in Plaintiff's two EEO complaints. On June 28, 2002, Plaintiff filed his Second Amended Complaint, which is the subject of the instant group of Motions.
DISCUSSION
Plaintiff brings three causes of action in his Second Amended Complaint. In Count One, Plaintiff alleges that Defendant created and condoned bias against him because he is Hispanic which resulted in a hostile work environment. In Count Two, Plaintiff alleges that he was retaliated against and suffered adverse employment consequences as a result of his earlier participation in the EEO process. In Count Three, Plaintiff again alleges that Defendant created a hostile work environment because of his national origin and because he participated in the EEO process.
I. MOTION TO DISMISS
Defendant first asks the Court to dismiss Plaintiff's Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1),(3), and (6), which allow defenses based on lack of subject matter jurisdiction, improper venue, and failure to state a claim upon which relief can be granted, respectively, to be asserted by motion.
A. Subject Matter Jurisdiction
Title 42 U.S.C. § 2000e-16(c) allows a federal employee to file a civil action within ninety days of receipt of notice of final action taken by a department or agency, including the USPS. 42 U.S.C.A. § 2000e-16(c) (West 1994); 42 U.S.C.A. § 2000e-16(a) (West Supp. 2002). A district court lacks jurisdiction to adjudicate a claim if the employee fails to exhaust his administrative remedies. Fitzgerald v. Secretary, U.S. Dep't of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997); Tolbert v. U.S., 916 F.2d 576, 578 (5th Cir. 1993).
Defendant argues that the hostile work environment claims alleged in Count One and Count Three of Plaintiff's Second Amended Complaint should be dismissed for lack of subject matter jurisdiction because Plaintiff failed to exhaust his administrative remedies concerning those claims. Plaintiff never filed an administrative claim alleging that Defendant had created a hostile work environment. Plaintiff argues, however, that his hostile work environment claim is reasonably related to the allegations included in his EEO complaints filed in May 1997, and so should not be dismissed. Plaintiff relies on the reasoning in Dollis v. Rubin, wherein the Fifth Circuit held that "[a] Title VII cause of action may be based, not only upon the specific complaints made by the employee's initial [administrative] charge, but also upon any kind of discrimination like or related to the charge's allegations, limited only by the scope of the [administrative] investigation that could reasonably be expected to grow out of the initial charges of discrimination." 77 F.3d 777, 781 (5th Cir. 1995).
The Court is unpersuaded by Plaintiff's argument. In his EEO complaints, Plaintiff alleged only national origin discrimination and retaliation, and the Final Agency Decision addressed only those issues. Plaintiff relies on an affidavit dated February 5, 1998, submitted in support of his EEO complaints, in which he alleges a series of acts that may support a hostile work environment claim. Plaintiff argues that the contents of the affidavit clearly raise the hostile work environment issues, even if they are not specified on the face of his EEO complaints. The bulk of those allegations, however, were previously addressed in Cause Number EP-96-CA-364-F, Antonio Sifuentes v. Marvin Runyon, et al., in which the court granted summary judgment on September 24, 1997, in favor of Defendants. Plaintiff is therefore barred from raising them again here. Beyond that, Plaintiff's affidavit adds little more to the EEO complaints upon which he bases the instant cause of action. Therefore, the Court finds that Plaintiff has not exhausted his administrative remedies as to any hostile work environment claim raised here and not previously litigated in Cause Number EP-96-CA-364-F. Based on that determination, the Court is of the opinion that Count One and Count Three of Plaintiff's Second Amended Complaint should be dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction.
In its June 6, 2002, Memorandum Opinion and Order, this Court instructed Plaintiff to leave out of his Complaint matters that had previously been litigated. Plaintiff's continued back-door efforts to re-litigate these issues, even in the face of explicit instruction not to do so, does not go unnoticed by the Court.
B. Failure to State a Claim
Having determined that Count One and Count Three should be dismissed for lack of subject matter jurisdiction, the Court need not address Defendant's argument that they should be dismissed under Rule 12(b)(6) for failure to state a claim.
II. MOTION TO TRANSFER
Defendant also asks the Court to dismiss the case, or in the alternative transfer it to another district, arguing that Plaintiff has not shown that venue is proper in the Western District of Texas pursuant to Title VII's special venue provision. The venue statute states in relevant part:
Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice . . . .42 U.S.C.A. § 2000e-5(f)(3) (West 1994). Defendant argues that, for both jobs for which Plaintiff was not selected, the hiring processes that comprise the allegedly discriminatory acts about which Plaintiff complains took place outside the state of Texas, that the employment records related to those acts are maintained outside of Texas, and that Plaintiff would have worked either in New Mexico or Washington, D.C. had he been hired for either position. Defendant contends that the only acts that took place in Texas were a couple of phone calls and some mailings, none of which have any operative significance to Plaintiff's claims. The Court disagrees.
Plaintiff alleges that, during telephone conversations with officials in Washington, D.C. and Phoenix, Arizona, his supervisor, Mr. Johnson, made discriminatory statements concerning his qualifications for the jobs for which he had applied. Plaintiff contends that Mr. Johnson was speaking from Texas and that his statements played a significant part in the decisions not to hire Plaintiff for either job. In other words, Mr. Johnson's alleged acts in Texas constitute a substantial part of the overall alleged discrimination. Therefore, the Court finds that Plaintiff has shown that a substantial portion of the alleged unlawful employment practice occurred in Texas and that Plaintiff has met his burden of showing that venue is proper in the Western District of Texas. Accordingly, the Court is of the opinion that Defendant's Motion to Transfer should be denied.
III. PLAINTIFF MUST AMEND HIS COMPLAINT IN ACCORDANCE WITH THIS OPINION
In light of the Court's earlier rulings and those included in this Order, the Court is of the opinion that Plaintiff should once again file an amended Complaint consistent with this opinion. The Court notes that, in its June 6, 2002 Order, it ordered Plaintiff to take similar action and, as mentioned above, Plaintiff failed to fully comply. Therefore, the Court cautions Plaintiff, at risk of sanctions, to strictly comply with the substance and spirit of this Order and to remove from his Complaint those allegations and causes of action ruled upon in this Order and in previously entered Orders.
IV. SHOW CAUSE
Finally, having ruled on the issues presented in Defendant's Motions, the Court now, as it must, address one additional jurisdictional issue not raised by either of the Parties. Pettinelli v. Danzig, 644 F.2d 1160, 1161 (5th Cir. 1980) (citing Mansfield, Coldwater Lake Michigan Ry. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884)). Title 42 U.S.C. § 2000e-16(c) provides that a federal employee may file his civil action "[w]ithin 90 days of receipt of notice of final action" taken by the department or agency against whom the claim is filed. 42 U.S.C.A. § 2000e-16(c) (West 1994). The limitations period specified in § 2000e-16(c) is jurisdictional. Watkins v. Lujan, 922 F.2d 261, 263 (5th Cir. 1991).
In reviewing the Parties submissions, the Court notes that Defendant issued its Final Agency Determination on May 12, 1998, but that Plaintiff did not file his cause of action until November 26, 2001, more than three years later. For the instant cause to have been timely filed, Plaintiff must not have received the Final Agency Determination prior to August 24, 2001. Although Plaintiff does not indicate when he received the Final Agency Determination, it seems unlikely that it took more than three years. Having so noticed, the Court is of the opinion that Plaintiff should show cause why this case should not be dismissed for lack of jurisdiction because it was not timely filed pursuant to 42 U.S.C. § 2000e-16(c).
CONCLUSION
In light of the foregoing, the Court is of the opinion that the following orders should enter:
IT IS HEREBY ORDERED that the "Motion to Dismiss Second Amended Complaint, or alternatively, to Transfer Venue, or alternatively, for a More Definite Statement and to Strike With Brief" is GRANTED IN PART AND DENIED IN PART as outlined above.
IT IS FURTHER ORDERED that, on or before February 24, 2003, Plaintiff will AMEND his Complaint in a manner consistent with this Memorandum Opinion and Order.
IT IS FINALLY ORDERED that on or before February 24, 2003, Plaintiff SHOW CAUSE why this case should not be dismissed for lack of jurisdiction pursuant to 42 U.S.C. § 2000e-16(c).