Opinion
Civil File No. 03-1721 (PAM/RLE)
July 31, 2003
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff's Motion for Default Judgment, or in the alternative, Summary Judgment and on Defendants' Motion to Dismiss, or in the alternative for Summary Judgment. For the reasons that follow, the Court denies Plaintiff's Motions and grants Defendants' Motion to Dismiss.
BACKGROUND
The United States Department of Veterans Affairs hired Plaintiff Melvin Avery Warren as a Veterans Service Representative on March 18, 2002. Warren began his employment on probationary status. On May 15, 2002, the Veterans Service Center terminated Warren because he failed to "demonstrate responsibility or flexibility in heeding, adapting, and following the guidance and directions given by [his] supervisor." (Defs.' Supp. Mem. (Clerk Doc. No. 16) Ex.1.) In addition, Warren did not "demonstrate satisfactory work attitudes or interpersonal sensitivity." (Id.) Warren appealed his termination to the Merit Systems Protection Board on June 7, 2002, as instructed in his termination notice.
Warren was also instructed to contact an Equal Employment Opportunity Counselor within 45 days of the date of the termination notice. (Id.) Warren did not initiate contact until July 30, 2002. Warren explained that the delay was due to his mental illness and the treatment of his mental illness. (Id. Ex. 5 at 1 ("This appeal and complaint is late and past the 45-day period due to mental distress, which aggravated my military service connected disability of a psychosis — paranoid schizophrenia.").)
On August 8, 2002, the Merit Systems Protection Board dismissed his appeal because it concluded that it lacked jurisdiction over probationary employees like Warren. On August 13, 2002, Warren was told that he had 15 days from the receipt of a "Notice of Right to File" form to file an administrative complaint. Warren received, signed, and dated this form on September 5, 2002, but did not file an administrative complaint until November 25, 2002. The Veterans Administration issued its Final Agency Decision on December 30, 2002, dismissing Warren's complaint because it was not filed within the 15-day period. Specifically, the Veterans Administration held that it would not extend the time period for filing an administrative complaint because Warren "failed to submit such proof that [he was] incapacitated, suffered from impaired concentration, judgment, or ability to make decisions or follow directions." Warren filed the current action in this Court on February 27, 2003.
The United States Attorney's Office received a copy of the Complaint on March 17, 2003. However, the Complaint was not accompanied by a summons. The United States Attorney's Office wrote a letter to Warren, informing him that service had not been properly effected. Warren then sent a second Complaint with a summons. The United States Attorney's Office received the Complaint and summons on April 25, 2003.
Warren moves the Court for a default judgment against Defendants, arguing that they failed to timely respond to his Complaint. Defendants argue that the time period to respond to a Complaint does not begin to run until a Complaint has been properly served. Defendants also move the Court to dismiss the Complaint, or in the alternative for summary judgment on the Complaint.
DISCUSSION
A. Default Motion
Warren argues that Defendants failed to timely respond to his Complaint. Rule 12(a)(3)(A) of the Federal Rules of Civil Procedure provides that the United States shall respond to a complaint within 60 days after the date of service. Rule 4(c)(1) of the Federal Rules of Civil Procedure requires that a complaint be served together with a summons. The record undisputedly reveals that Warren did not properly serve Defendants until April 25, 2003. (Warren Aff. (Clerk Doc. No. 13) Exs. 6, 7; Defs.' Opp. Mem. (Clerk Doc. No. 8) Ex. 1; Bryan Decl. ¶ III-IV.) Warren filed his Motion for Default Judgment on June 10, 2003, and filed a second Motion on June 13, 2003. Defendants did not file an answer to Warren's Complaint and filed their motion to Dismiss on June 25, 2003. Sixty days after April 25, 2003, is June 24, 2003. Therefore, Defendants failed to timely respond to Warren's Complaint within the 60-day period set forth in Rule 12.
However, Rule 55(e) of the Federal Rules of Civil Procedure precludes this Court from entering a default judgment against Defendants. That rule provides that "[n]o judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court." Fed.R.Civ.P. 55(e). Because the evidence presented by Warren is not satisfactory to this Court, Warren's Motion for a Default Judgment is denied.
B. Motion to Dismiss
1. Standard of Review
For the purposes of Defendants' Motion to Dismiss, the Court takes all facts alleged in the Complaint as true. See Westcott v. Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). The Court must construe the allegations in the Complaint and all reasonable inferences arising from the Second Amended Complaint favorably to Plaintiffs. See Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). A motion to dismiss will be granted only if "it appears beyond doubt that the Plaintiff can prove no set of facts which would entitle him to relief." Id.; see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
2. Exhaustion of Administrative Remedies
Before this Court may properly hear a claim of discrimination, Warren must establish that he exhausted his administrative remedies. Burkett v. Glickman, 327 F.3d 658, 660 (8th Cir. 2003). That in turn requires that he complied with all applicable administrative time limits. Defendants base their Motion to Dismiss on two arguments: (1) Warren failed to exhaust his administrative remedies because he did not timely consult with an Equal Employment Opportunity Counselor; and (2) Warren failed to exhaust his administrative remedies because he failed to timely file an administrative complaint. The Court finds that both arguments have merit.
First, Warren failed to timely initiate contact with an Equal Employment Opportunity Counselor. 29 C.F.R. § 1614.105(a) requires that "[a]ggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must consult a Counselor prior to filing a complaint. . . ." Moreover, a complainant has 45 days to contact an Equal Employment Opportunity Counselor. 29 C.F.R. 1614.105(a)(1) ("An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action."); Burkett, 327 F.3d at 660. In this case, the personnel action became effective on May 15, 2002. Warren failed to initiate contact with an Equal Employment Opportunity Counselor until July 30, 2002, or more than 75 days after the effective date of the termination. (Defs.' Supp. Mem. (Clerk Doc. No. 16) Exs. 5 at 1, 11 at
2.) Therefore, Warren failed to exhaust his administrative remedies.
Second, 29 C.F.R. § 1614.106(b) requires that "[a] complaint must be filed within 15 days of receipt of the notice required by § 1614.105(d), (e) or (f)." In this case, Warren received notice of his right to file an administrative complaint and signed the notice on August 13, 2002. (Defs.' Supp. Mem. (Clerk Doc. No. 16) Ex. 8.) This notice also informed Warren that he had 15 days to file an administrative complaint. Warren filed his administrative complaint on November 25, 2002. (Id. Ex. 11 at 1.) Therefore, Warren failed to file a timely administrative complaint.
Finally, Warren has presented no evidence that his mental illness rendered him legally incompetent to meet the 45-day and the 15-day deadlines. Without any evidence to the contrary, the Court must presume that Warren's mental illness is not sufficient to toll the limitations periods.
CONCLUSION
Warren failed to exhaust his administrative remedies in a timely fashion. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's Motions for Default Judgment (Clerk Doc. Nos. 6-1, 6-2, 9-1, 9-2) are DENIED; and
2. Defendant's Motion to Dismiss (Clerk Doc. No. 14-1) is GRANTED.