Opinion
No. 00-CV-74275-DT
June 29, 2001
MEMORANDUM OPINION AND ORDER
BACKGROUND
On Februaiy 9, 2001, Plaintiff filed a Motion for Summary Judgment. Defendant did not file a response but instead filed a Motion for Summary Judgment on March 2, 2001.
On August 20, 1994, Plaintiff Shanique T. Tisby began her employment with the United States Postal Service. Plaintiff was given a Notice of Removal from the Postal Service on March 19, 1999 (February 1, 1999 per Defendant). The reason for the removal was that Plaintiff had assaulted another employee of the Postal Service on January 2, 1999.
Plaintiff claims that she has been discriminated against because she is a black female pursuant to 42 U.S.C. § 1981. Plaintiff alleges that two white male employees who had assaulted fellow employees were not discharged even though they had assaulted other employees whereas Plaintiff was discharged because she assaulted another employee. Plaintiff argues that she is entitled to summary judgment because there are no genuine issues remaining and also based on res judicata. the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look to the substantive law to identify which facts are material. Anderson, 477 U.S. at 248.
B. Plaintiff's Motion for Summary Judgment/Exhaustion of Administrative Remedies
In her Complaint, Plaintiff cites the following statutes as a basis for her claims- 42 U.S.C. § 1981 and the April 9, 1866 Civil Rights Act, available under 42 U.S.C. § 1981, as invoked under 28 U.S.C. § 1343(4) and the Fourteenth Amendment of the United States Constitution. In her summary judgment motion, Plaintiff argues that Plaintiff is not under the jurisdiction of Title VII. Plaintiff claims that the evidence she submitted with her complaint supports her allegation that Defendant discriminated against her because she, a black female, was discharged for assaulting another employee whereas two white males who assaulted other employees were not discharged.
Considering Defendant's Motion for Summary Judgment as a response to Plaintiff's Motion for Summary Judgment, Defendant sets forth various arguments. Defendant's first argument is that Title VII is the exclusive remedy for claims of discrimination by federal employees, and, therefore, Plaintiff's Complaint under 42 U.S.C. § 1981 and the 1866 Civil Rights Act should be dismissed. Brown v. General Services Admin., 425 U.S. 820, 835 (1976); See also Forest v. United States Postal Serv., 97 F.3d 137, 141 (6th Cir. 1996). Defendant, however, does not address the issue of whether Plaintiff has exhausted her available remedies under Title VII. Defendant merely states that Title VII is Plaintiff's exclusive remedy. Defendant then substantively addresses Plaintiff's claims.
Defendant states that Plaintiff received a Notice of Removal dated February 1, 1999 notifying Plaintiff that effective March 19, 1999, Plaintiff would be removed from her employment with the Postal Service. Plaintiff's union representative filed a grievance regarding her termination. On March 9, 2000, after hearings were conducted, an arbitrator determined that the Postal Service had just cause to fire Plaintiff from her employment. Plaintiff contacted a Postal Service Equal Employment Opportunity (EEO) Counselor on February 10, 1999 claiming that her termination was based on race and sex discrimination. Plaintiff filed an EEO complaint regarding the same issue. The EEO complaint was investigated and Plaintiff requested a hearing before an administrative judge of the Equal Employment Opportunity Commission (EEOC). Before a hearing could be scheduled, Plaintiff filed the instant suit.
A federal employee's claim of employment discrimination may be brought under Title VII, 42 U.S.C. § 2000e-16(a)-(e). A federal employee must first exhaust his or her administrative remedies prior to bringing suit in federal court. Brown v. General Serv. Administration, 424 U.S. 820, 828-29 (1976). It is well established that relief under Title VII is ordinarily dependent upon the filing of a timely administrative charge or complaint. United Airlines. Inc. v. Evans, 431 U.S. 553, 558 (1977). A plaintiff seeking to bring a Title VII action against the federal government must first exhaust his/her administrative remedies by seeking informal EEO counseling within forty-five days of the "matter alleged to be discriminatory" or the "effective date of the action." 29 C.F.R. § 1614. 105(a)(l); 42 U.S.C. § 2000e(12) (granting EEOC authority to issue procedural regulations to carry out Title VII provisions). Congress assigned each agency a "crucial administrative role ... in the eradication of employment discrimination." Brown, 425 U.S. at 833. The procedures established under the regulations provide for "a careful blend of administrative and judicial enforcement powers," including "rigorous administrative exhaustion requirements and time limitations," which are a precondition to a federal employee's right to file a claim of discrimination. Id. Administrative remedies under this scheme must be exhausted before a court can take action under Title VII. Id. at 831. Although a right-to-sue letter is not a jurisdictional requirement, it is a precondition or a condition precedent to filing a suit before the district court, subject to equitable tolling and waiver and may be curable. Rivers v. Barbeton Bd. of Educ., 143 F.3d 1029, 1031 (6th Cir. 1998); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); Jones v. American State Bank, 857 F.2d 494, 499 (8th Cir. 1988).
Based on Defendant's allegations, Plaintiff has not received a right-to-sue letter from the EEOC since she filed the suit before a hearing could be scheduled. Plaintiff did not submit such a letter with her Complaint. If Plaintiff has not obtained a right-to sue letter, Plaintiff has failed to satisfy a condition precedent under Title VII to bring a suit before the Court. Plaintiffs argument that Title VII does not apply to her discrimination claims is without merit based on theBrown case and Sixth Circuit cases cited above. Plaintiffs Complaint must be dismissed without prejudice for failure to satisfy a condition precedent. Plaintiff must first obtain a right-to-sue letter from the EEOC before filing a Complaint with this Court.
CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Plaintiff's Motion for Summary Judgment (Docket No. 7, filed February 9, 2001) is DENIED.
IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment (Docket No. 10, filed March 2, 2001) is DENIED without prejudice as MOOT, pending refiling of the Complaint.
IT IS FURTHER ORDERED that Plaintiff's Complaint is DISMISSED without prejudice. Plaintiff may re-file the Complaint once a right-to sue letter is obtained from the EEOC.