Opinion
Case No. 2:00-CV-002.
March 22, 2002
OPINION
This case involves allegations of sex discrimination and retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq. Now before the Court is defendant's motion for summary judgment. See dkt. #25. For the reasons set forth below, the Court grants defendant's motion.
This case was consolidated for purposes of trial only with Case No. 2:01-cv-138; therefore, in ruling on defendant's motion for summary judgment in Case No. 2:00-cv-002, the Court does not consider the allegations made by plaintiff in Case No. 2:01-cv-138. See dkt. #45.
I. BACKGROUND
Plaintiff is a board certified physician in internal medicine. See Plaintiffs Memorandum in Response to Defendant's Motion for Summary Judgment ("Plaintiffs Response") 2. She was employed as a staff physician at the Veterans Affairs Medical Center in Iron Mountain, Michigan, ("VAMC") from March 9, 1998, until approximately July 30, 1999, when she transferred to another Veterans Affairs facility in Fayetteville, North Carolina. See id. at 2-3; Deposition of Kathleen Walsh-Rene. Defendant's Motion for Summary Judgment, Exh. 1 ("Plaintiffs Deposition") 111-12, 53. Plaintiff alleges that throughout her employment at VAMC. she was treated differently than similarly situated male employees. Plaintiffs Response at 2.
In her complaint, plaintiff states that she began her employment on March 9, 1997, but in her deposition and brief to the Court, she states that she began work at VAMC on March 9, 1998. See Deposition of Kathleen Walsh-Rene. Defendant's Motion for Summary Judgment. Exh. 1, at 12: Plaintiffs Response at 1, 2.
On January 3, 2000, plaintiff filed a three-count complaint, alleging that VAMC had engaged in prohibited sex discrimination and retaliation. In Count I of the complaint, plaintiff alleges that VAMC discriminated against her on the basis of her sex, in violation of Title VII. See Complaint and Jury Demand ("Complaint") ¶¶ 5-18. Specifically, plaintiff alleges the following acts of discriminatory treatment: (1) denial of relocation expenses routine approved for male employees; (2) assignment to shifts and rotations that were less favorable than those assigned to male employees; (3) denial of vacation days granted to male employees; (4) denial of bonuses awarded to other male employees in November of 1998 and January of 1999; (5) denial of part-time status requested in June of 1998; (6) consistent disruption during a training seminar; (7) being passed over for promotion to Acting Chief of Staff in favor of a less experienced male employee; (8) being called the "lady doctor"; and (9) being forced to use a breast pump in an unlocked clinic area between March 15, 1998 an December of 1998. Complaint at ¶ 10a-10i. In Count II, plaintiff alleges that VAMC retaliated against her when it denied her the position of Acting Chief of Staff in July of 1999. See id., at ¶¶ 20-24. Plaintiff claims that VAMC retaliated because her husband Ron Rene, a general surgeon also employed by VAMC, had filed a complaint against VAMC with the Equal Employment Opportunity Commission in March of 1999. See id. ¶ 21. Plaintiffs claim under Michigan's Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS § 37.2101 et seq., contained in Count III of her complaint, was dismissed with prejudice by stipulation and order entered on the docket on August 24, 2000. See dkt. #13. In her complaint. plaintiff sought compensatory damages, including lost wages and the value of past and future fringe benefits, punitive an exemplary damages, and a preliminary and permanent injunction against future acts of discrimination.
Plaintiff originally filed suit against the Department of Veterans Affairs Medical Center of Iron Mountain. See dkt. # 1. Plaintiff subsequently filed a motion with the Court seeking leave to amend the complaint to change the defendant's name from the Department of Veterans Affairs to Anthony J. Principi, Secretary of the Department of Veterans Affairs. See dkt. #20; 42 U.S.C. § 2000e-16 (c) (1994). Defendant's motion was granted by stipulation and order entered on the docket on July 26, 2001. See dkt. #33.
The Court heard oral argument on defendant's motion for summary judgment on August 15, 2001. At that time, plaintiffs counsel informed the Court that plaintiff was withdrawing her claims of sex discrimination based on (1) the denial of relocation expenses, (2) the denial of part-time status, and (3) disruption during a training seminar. Plaintiff also withdrew her claim for punitive damages, injunctive relief, and back pay. See Plaintiff's Response at 19, 21 (conceding that she was not entitled to punitive damages and that injunctive relief was not proper in her case).
II. STANDARD OF REVIEW
Summary judgment is proper when there is "no genuine issue as to any material fact and the moving party is entitled a judgment as a matter of law." Fed.R.Civ.P. 56(c). On a motion for summary judgment, the Court looks beyond the pleading also considering any depositions, affidavits, and admissions on file, to determine whether there is a genuine issue of material fact. See Howard v. Calhoun County, 148 F. Supp.2d 883, 887 (W.D. Mich. 2001); see also Matshusita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In opposing a properly supported motion for summary judgment, the nonmoving party may not simply rest on the bare allegations in its pleadings, see Fed.R.Civ.P. 56(e) but "must set forth sufficient specific evidence to permit a fair-minded jury to return a verdict in its favor." Mount v. United States Postal Serv., 79 F.3d 531, 533 (6th Cir. 1996) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986)). When the material facts, viewed in the light most favorable to the nonmoving party, are not in dispute. then the moving party is entitled judgment as a matter of law. See Moore v. Holbrook, F.3d 697, 699 (6th Cir. 1993).
III. ANALYSIS
Federal law protects executive agency employees from discrimination based on sex. See 42 U.S.C. § 2000e-16 (2001). The employee, however, must contact an equal opportunity employment ("EEO") counselor regarding her claims of discrimination "within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105 (a)(1) (2002); see Williams v. Widnall, No. 97-2110, 1999 U.S. App. LEXIS 1208, at **17-18 (6th Cir. Jan. 21, 1999) (stating that "federal employees must adhere to the pre-complaint processing and formal complaint filing requirements of 29 C.F.R. § 1614"). The employee's right to file in federal court for employment discrimination is predicated on her exhaustion of administrative remedies. See Haithcock v. Frank, 958 F.2d 671, 675 (6th Cir. 1992); Witt v. Secretary, Dep't of Housing Urban Dev., No. 87-5523, 1988 U.S. App. LEXIS 4059, at **4-5 (6th Cir. March 31, 1988). The purpose of requiring exhaustion of administrative remedies prior to filing suit is to encourage "quicken less formal, and less expensive resolution of disputes within the Federal Government and outside of court. West v. Gibson, 527 U.S. 212, 218-19 (1999) (citations omitted); see Haithcock, 958 F.2d at 675 (citations omitted) (noting that exhaustion requirement affords "an opportunity to attempt conciliation and voluntary settlement, the preferred means for resolving employment discrimination disputes'").
If the employee contacts an EEO counselor, but does so outside the 45-day period, a federal court may dismiss her complaint of discrimination for failure to timely exhaust her administrative remedies. See, e.g., Phillips v. Cohen, No. 99-4051, 2001 U.S. App. LEXIS 1081, at *8 (6th Cir. Jan. 22, 2001); Downs v. Runyon, No. 95-602], 1996 U.S. App. LEXIS 27811, at *5 (6th Cir. Oct. 24, 1996); Benford v. Frank, 943 F.2d 609, 612 (6th Cir. 1991); Riles v. Department of Treasury, No. 93-CV-73061-DT, 1994 U.S. Dist. LEXIS 10558, at *4 (E.D. Mich. May 16, 1994). Failure to contact an EEO counselor in a timely fashion is not jurisdictional prerequisite to filing suit in federal court. See Benford, 943 F.2d at 612; Boddy v. Dean, 821 F.2d 346, 349-50 (6th Cir. 1987). Therefore, the 45-day requirement is subject to equitable tolling, waiver, and estoppel. See Phillips, 2001 U.S. App. LEXIS 1081, at *9; Benford, 943 F.2d at 612; Boddy, 821 F.2d at 350; cf. 29 C.F.R. § 1614.604 (c) (2002) (stating that "[t]he time limits in [§ 1614] are subject to waiver, estoppel and equitable tolling").
On May 28, 1999, plaintiff filed a discrimination complaint with the Department of Veterans Affairs Office of Resolution Management ("ORM"). Plaintiffs May 28, 1999, EEO complaint included all of the allegations of discrimination, except the denial of promotion to the Acting Chief of Staff contained in Count I of plaintiffs complaint filed with this Court. Compare Acceptability Review and Final Agency Decision, Discrimination Complaint Number 99-2495, September 27, 1999, Defendant's Motion for Summary Judgment ("9/27/99 Final Agency Decision"), Exh. 13, ¶ 2 with Complaint ¶¶ 10a-f, h, i. Prior to filing her complaint with the ORM plaintiff had undergone EEO counseling, which was unsuccessful. See 9/27/99 Final Agency Decision at ¶ 2. The ORM, however, dismissed most of plaintiffs allegations of discrimination, citing plaintiffs failure to contact an EEO counselor in a timely fashion See id. at ¶¶ 6, 13-20; 29 C.F.R. § 1614.107 (a)(2) (stating that the "agency shall dismiss an entire complaint . . . [t]hat fails to comply with the applicable time limits contained in § 1614.105"). Plaintiffs claim of discrimination regarding the March, 1999 denial of her requests for vacation and leave time was considered timely and, thus, accepted for investigation. See 9/27/99 Final Agency Decision at ¶ 5.
The ORM cited § 1614.107(b) as the basis for dismissal. Effective November 9, 1999, § 614.107 was amended so that the text of subsection (b) is now contained at § 1614.107(a)(2). See 64 Fed. Reg. 37644,37656 (July 12, 1999).
On August 4, 1999, plaintiff filed a second complaint with the ORM, alleging that VAMC's failure to promote her to Acting Chief of Staff was discrimination based on sex and retaliation for prior EEO activity. See Final Agency Decision, Case Number 99-4285, Aug. 31, 1999, Defendants Motion for Summary Judgment ("8/31/99 Final Agency Decision"), Exh. 13, ¶ 1. The ORM dismissed plaintiffs complaint because she had failed to consult with an EEO counselor about her claims of discrimination and retaliation stemming from the denial of the Acting Chief of Staff position. See id. at ¶¶ 2, 5.
Plaintiff does not challenge the ORM's conclusion that she failed to consult with an EEO counselor within the 45-day period provided by 29 C.F.R. § 1614.105 (a). Instead, she contends that her claims of discrimination and retaliation are timely based on the continuing violations doctrine. See Plaintiffs Response at 5.
The United States Supreme Court has granted certiorari in Morgan v. National Railroad Passenger Corp., 232 F.3d 1008 (9th Cir. 2000), a case involving application of the continuing violations doctrine in a Title VII case. See National Railroad Passenger Corp. v. Morgan, 533 U.S. 927 (June 25, 2001) (granting petition for writ of certiorari).
The Sixth Circuit "has recognized that an ongoing, continuous series of discriminatory acts may be challenged if one of those discriminatory acts occurred within the limitations period." Phillips, 2001 U.S. App. LEXIS 1081, at * 13 (citations omitted); accord Burzynski v. Cohen, 264 F.3d 611, 617-18 (6th Cir. 2001); Haithcock, 958 F.2d at 677. If plaintiff can show a continuing violation. then this Court "may consider all relevant actions allegedly taken pursuant to [defendant's] discriminatory policy or practice, including those that would otherwise be time-learned." Phillips, 2001 U.S. App. LEXIS 1081, at *13-14 (citation omitted); accord Haithcock, 958 F.2d at 677.
The Sixth Circuit has held that there are "two categories of narrowly limited exceptions' to the usual rule that statutes of limitations are triggered at the time the alleged discriminatory act occurred." Dixon v. Anderson, 928 F.2d 212, 216 (6th Cir. 1991) (quoting EEOC v. Penton India. Pub. Co., 851 F.2d 835, 837-38 (6th Cir. 1988); accord Phillips, 2001 U.S. App. LEXIS 1081, at * 14; Burzynski, 264 F.3d at 618; Haithcock, 958 F.2d at 677-78. The first category arises "where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation; that is, where an employer continues presently impose disparate work assignments or pay rates between similarly situated groups." Haithcock, 958 F.2d at 678 (quoting Dixon, 928 F.2d at 216 (emphasis in original)). The second category arises where there exists "a longstanding and demonstrable policy of discrimination." Id.
In order to invoke the second category of continuing violations, plaintiff must show "something more than the existence of discriminatory treatment in [her] case." Haithcock, 958 F.2d at 679. Plaintiff has offered no evidence to the Court the defendant "intentional[ly] discriminat[ed] against the class of which plaintiff was a member [and that this] was [defendants'] `standard operating procedure.'" Burzynski, 264 F.3d at 618 (quoting EEOC v. Penton Indus. Pub. Co., 851 F.2d at 838)). Therefore, the Court considers plaintiffs arguments as falling into the first category of continuing violations.
Plaintiff makes three arguments that the continuing violations doctrine applies to the facts of her case. The Court now turns to those arguments.
A. Disparate Work Assignments
Plaintiff contends that throughout the course of her employment at VAMC, she had the heaviest work load — the highest number of patients and the sickest patients in the hospital. See Plaintiffs Response 5-6. Plaintiff claims that because she was given a heavier work load until she terminated her employment with VAMC in July of 1999, her contact with ORM in May of 1999 to complain of various acts of discrimination, including assignment of duties resulting in an excessive work load, was timely. See Plaintiffs Response at 5-6. Plaintiff contends that her claim of disparate work assignments fits within the first category of continuing violations. See id. at 6; see also Haithcock, 958 F.2d at 678 (stating that evidence of present discriminatory conduct, such as disparate work assignments, gives rise to a claim under the first category of continuing violations).
Part of plaintiffs discriminatory work load claim is her contention that her on-call duty schedule was less favorable than that of male physicians. See Plaintiffs Response at 13. Plaintiff, however, does not argue (or offer evidence) that her on-call duty schedule involved disparate work assignments so as to invoke the continuing violations doctrine. Therefore, the Court does not address plaintiffs claims regarding her on-call duty schedule in its analysis of plaintiffs continuing violations argument.
In her complaint, plaintiff alleges that she was assigned less favorable shifts and rotations than male employee. See Complaint at ¶ 10b. In applying the continuing violations doctrine to her case, however, plaintiff relies on her allegedly heavily work load, not on her assignment to less favorable shifts and rotations. The Court notes that plaintiff did raise the issue excessive work load in her complaint to the ORM. See 9/27/99 Final Agency Decision at ¶ 2(c).
Plaintiff offers physician tracking sheets from August and September of 1998, to support her claim that she was assignee a heavier work load than male physicians. See Plaintiffs Response, Exh. 2. Even when viewed in the light most favorable to plaintiff, however, the tracking sheets only show that plaintiff had a heavier work load in August and September of 1998. Plaintiff does not offer tracking sheets from the remaining months that she was employed at VAMC, or any other evidence, support her assertion that she had a heavier work load than similarly situated male physicians until she left VAMC in July of 1999.
The Court notes that the tracking sheets do not contain names, but rather numbers identifying the various physician whose work load is being tracked. While plaintiff states in her brief that she was assigned the highest number of patients, she failed to identify which physician tracking number was assigned to her. The Court had to rely on defendant's brief, which also attached the August and September 1998 tracking sheets and clearly identified which number belonged to plaintiff and which numbers were assigned to male physicians. See Defendant's Motion for Summary Judgment at 16, Exhs. 15 16.
The tracking sheets show that in August and September of 1998, plaintiff was assigned 974 patients, the highest number of any doctor shown on the tracking sheets, and that she admitted more patients to the hospital than any other male physician. See Defendant's Motion for Summary Judgment. Exh. 15. The tracking sheets also show. however, that two male physicians had 22 and 209 clinic visits each during September of 1998, compared with only 146 visits to plaintiff during the same time period. See id. (comparing clinic visits for physician numbers 2716 (228 visits), 624 (209 visits), and 8162 (146 visits). While a highest number of hospitalizations supports plaintiffs contention that she had the sickest patients, a significantly lower number of clinic visits undermines that contention.
Plaintiff first made contact with the ORM on May 4, 1999, regarding her allegations of being assigned a heavier work load than her male colleagues. See 9/27/99 Final Agency Decision at ¶ 1. May 4, 1999, however, is more than 45 days from the end of September, 1998. the last time for which plaintiff offers any evidence of allegedly discriminatory work assignments. Therefore, plaintiffs argument that her allegedly discriminatory work assignments fit within the first category of continuing violations fails because she has produced no evidence of discriminatory work assignments during the relevant limitations period. See Dixon, 928 F.2d at 216 (citation omitted) (holding that the first category of continuing violations requires "at least one of the forbidden discriminatory acts [to] have occurred within the relevant limitations period").
Plaintiff has not argued that the 45-day period should be equitably tolled in her case. In addition, there are no facts in the record to suggest that equitable tolling would be appropriate. The ORM's September 27, 1999, final agency decision stated that plaintiff had attended the EEO Complaint Processing/ORM training in which the complaint process and relevant time frame requirements were explained. See 9/27/99 Final Agency Decision at ¶ 12. Plaintiff does not claim that she was unaware of the 45-day period within which to consult an EEO counselor. Cf. 29 C.F.R. § 1614.105 (a)(2) (2002) (stating that the agency "shall extend the 45-day time limit . . . when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them").
In addition, plaintiff offers neither legal argument nor evidence to indicate that she was unaware that discrimination may have occurred, thereby potentially extending the period of time she had to consult with an EEO counselor. Cf. id. (stating that the agency "shall extend the 45-day time limit when the individual shows that . . . he or she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred"). In fact, plaintiffs own e-mail correspondence indicated that she believed, as early as December of 1998, that VAMC was discriminating against her. Plaintiffs counsel provided the Court with an e-mail message from plaintiff, dated December 13, 1998, in which plaintiff recounted her dissatisfaction with her work load, denial of her request for part-time status, and the VA's refusal to pay her relocation expenses. See dkt. #37. Plaintiff concluded her e-mail with the following statement: "i think this is discrimination." Id. Although plaintiff believed in December of 1998 that she was the victim of discrimination, she did not contact the ORM for another 5 months. Plaintiff offers the Court no explanation for this delay in seeking EEO counseling. Therefore, the Court concludes that plaintiff is not entitled to equitable tolling of the 45-day period for consulting an EEO counselor.
B. Pattern of Discriminatory Acts
The ORM found that plaintiff had filed a timely complaint with regard to the March, 1999, denial of her requests for vacation or leave, and defendant does not contest this conclusion. See 9/27/99 Final Agency Decision at 5; Defendant's Motion for Summary Judgment at 9-10. Plaintiff contends that the denial of her vacation/leave requests was a violation within the 45-day limitations period and indicates a pattern of gender based discrimination, thereby satisfying the continuing violations doctrine. See Plaintiffs Response at 6-7; see also Gallagher v. Croghan Colonial Bank, 89 F.3d 275, 278 (6th Cir. 1996) (citation omitted) (stating that "plaintiff must show that the current violation, falling within the limitations period, is indicative of a pattern of similar discriminatory acts continuing from the period prior to the limitations period" in order to establish a continuing violation).
The problem with plaintiffs argument is that her evidence of discriminatory treatment with regard to her requests for vacation or leave time is hearsay. See Defendant's Brief in Reply to Plaintiffs Response to Defendant's Motion for Summary Judgment 9-10. In her brief, plaintiff claims that Andrea Collins, the nursing supervisor who worked for Dr. Frahm, told plaintiff that Collins did not understand why Dr. Frahm would not approve plaintiff requests for vacation or leave, as all of the other doctors had been "allowed to run out their leave" and "use their sick leave Plaintiffs Deposition at 55-57: Plaintiffs Response at 14. Plaintiffs statements about what Andrea Collins told her are hearsay, and "[h]earsay evidence may' not be considered on summary judgment. See Jaclyn v. Schering-Plough Healthcare Prods., 176 F.3d 921, 927 (6th Cir. 1999) (citation omitted). Plaintiff has offered the Court no other evidence indicating that VAM discriminated against her with regard to her requests for vacation and leave time. Therefore, plaintiffs argument that the denial her vacation and leave requests establishes a timely violation for purposes of the continuing violations doctrine fails because she has produced no admissible evidence that discrimination played a role in the denial of her vacation and leave request's during the relevant limitations period. See Dixon, 928 F.2d at 216.
C. Retaliation
Plaintiff contends that her retaliation claim "is a continuing violation of the complaints alleged in her husband's EEO complaint." Plaintiffs Response at 7. Therefore, she argues that her retaliation claim is timely.
The Court fails to understand how this argument transforms plaintiffs retaliation claim into a timely claim. Even plaintiffs retaliation claim were a continuing violation of the complaints made by her husband, that does not mean that her retaliation claim is a continuing violation of the claims that she has made with regard to her employment at VAMC. Plaintiff offers the Court no argument as to why her retaliation claim is a continuing violation of the other acts of discrimination that she, not her husband, alleges in her complaint. Therefore, the Court finds plaintiff's argument that her retaliation claim is timely has on the continuing violations doctrine to be without merit.
IV. CONCLUSION
Prior to filing her discrimination and retaliation complaints with the ORM, plaintiff either failed to consult with an EEO counselor or did so in an untimely fashion. The only claim that plaintiff raised in a timely fashion with an EEO counselor-denial of vacation and leave requests — is based solely on hearsay. Plaintiff argues, however, that her claims of discrimination and retaliation are timely under the continuing violations doctrine. This argument is without merit because she has failed to produce any admissible evidence or a discriminatory act within the 45-day limitations period. Therefore, the Court grants defendant's motion for summary judgment (dkt. #25) and dismisses plaintiffs complaint.
The Court will enter an order consistent with this Opinion.
ORDER
In accordance with the Court's opinion of even date,
IT IS ORDERED that defendant's motion for summary judgment (dkt. #25) is GRANTED.
IT IS FURTHER ORDERED that plaintiffs complaint is DISMISSED.