Opinion
No. 00-2209.
March 12, 2001.
ORDER AND REASONS
Defendant, William J. Henderson, Postmaster General, has filed a motion to dismiss the instant case under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Henderson's motion is supported by a declaration and several certified exhibits. Henderson argues that plaintiff, John J. Williams, Jr., failed to file this lawsuit on a timely basis and that this alleged failure deprives the court of subject matter jurisdiction. Record Doc. No. 20. This matter was referred to the undersigned Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636 (c) upon the written consent of all parties. Record Doc. No. 30.
Williams, who is proceeding pro Se, filed a timely opposition memorandum, supported by one uncertified exhibit. Record Doc. No. 23. The court ordered Williams to provide a certification of his exhibit, converted defendant's motion to one for summary judgment and granted the parties an additional ten days to supplement their briefs. Record Doc. No. 34.
Williams filed a supplemental memorandum but failed to certify his original exhibit. Record Doc. No. 35. Because plaintiff's exhibit is not certified as required by Fed.R.Civ.P. 56(e), the court has not considered it in deciding the summary judgment motion.
Williams attached to his supplemental memorandum one additional unverified exhibit, which purports to be a copy of a letter dated February 15, 2001. The court has not considered this exhibit because it is unverified. The court also notes that the exhibit is irrelevant to the issue presented by defendant's pending motion.
Also pending is plaintiff's "Motion for a Witness," seeking to compel Barbara West, a paralegal for the Postal Service who provided an affidavit attached to defendant's motion for summary judgment, to give testimony. Record Doc. No. 28. Defendant filed a timely opposition memorandum. Record Doc. No. 33.
Having considered the record; the complaint, as amended; the submissions of the parties and the applicable law; and for the following reasons, IT IS ORDERED that defendant's motion is DENIED. IT IS FURTHER ORDERED that plaintiff's "Motion for a Witness" is DENIED.
I. FACTUAL BACKGROUND
The following facts are established by defendant's competent summary judgment evidence and are considered undisputed solely for purposes of defendant's summary judgment motion. In 1993, Williams filed charges of age and disability discrimination with the Equal Employment Opportunity Commission against his former employer, the United States Postal Service. Government Exhs. 1, 2, 3. After investigation and a hearing before an administrative law judge, plaintiffs' complaint was denied by the Postal Service in a Final Agency Decision issued on August 30, 1996. Government Exh. 3.
Williams appealed the Final Agency Decision to the Equal Employment Opportunity Commission's Office of Field Operations, which affirmed the Final Agency Decision by letter dated September 9, 1998. Government Exh. 4. This letter advised Williams both that he could request reconsideration of the decision within 30 calendar days of the date he received it and that he could file a civil action in district court within 90 calendar days of the date he received the letter. Id. at p. 5.
Williams requested reconsideration by the Office of Field Operations. Although the date upon which he requested reconsideration is not in the record, he was advised by the Office of Field Operations on November 4, 1998 that his request had been docketed. Government Exh. 5. As to the deadline for filing a civil action, the November 4, 1998 letter specifically stated:
Such requests must be made within 30 days of receipt of a Final Agency Decision. Defendant does not contend that plaintiff's request for reconsideration was filed untimely.
If your appeal includes an allegation of AGE DISCRIMINATION, the statute of limitations begins on the date of the violation. Filing this appeal will not stop that time from running. If the time limit is close to expiring, you should consider whether or not you wish to file a civil suit. You may be barred from tiling such a suit, should you allow the time limit to expire, EVEN IF YOU HAVE AN APPEAL IN PROCESS WITH THIS OFFICE.Id. (emphasis in original).
The Office of Field Operations denied plaintiffs' request for reconsideration by letter dated June 8, 2000. Government Exh. 7. Defendant's representative, Barbara West, avers that defendant's exhibits are true and correct copies of original documents within the agency's files. Government Exh. A, ¶ 7. However, she also states that the agency's files lacked a copy of the actual notice sent to Williams on June 8, 2000. Id. at p. 3. Government Exh. 7, which was printed from the legal database LEXIS (2000 EEOPUB LEXIS 4152), purports to be a copy of this notice. The uncertified exhibit that Williams attempted to submit with his opposition memorandum appears to be a copy of the actual notice that he received. Government Exh. 7 does not contain the following language, which is contained in plaintiff's exhibit: "This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you receive this decision." Plaintiff's Exhibit at pp. 1-2 (emphasis in original). Although the court has not considered plaintiff's exhibit because of his failure to comply with Fed.R.Civ.P. 56(e), the difference in the two exhibits would be irrelevant to resolution of defendant's summary judgment motion even if plaintiff's exhibit were considered.
Williams filed the instant lawsuit on September 28, 2000. He tendered for filing an "Application for Appointment of Attorney Pursuant to 42 U.S.C. § 2000e-5 (f)(1)" on July 24, 2000, which was filed by the Clerk of Court on July 27, 2000. Record Doc. No. 1. Plaintiff tendered for filing on September 8, 2000 an application to proceed in forma pauperis and a complaint. After his applications for in forma pauperis and appointment of counsel were denied, Record Doc. Nos. 4, 6, Williams paid his filing fee and his complaint was filed on September 28, 2000. Record Doc. No. 5.
It is clear that the running of a limitations period against the government is tolled during the pendency of a plaintiff's successful motion to proceed in forma pauperis. Ynclan v. Department of Air Force, 943 F.2d 1388, 1392-93 (5th Cir. 1991). However, the Fifth Circuit recently declined to decide when the complaint of an unsuccessful pauper applicant should be considered filed, and the issue remains unresolved in this circuit. Fletcher v. Apfel, 210 F.3d 510, 513 (5th Cir. 2000); cf. Truitt v. County of Wayne, 148 F.2d 644, 648 (6th Cir. 1998) (limitations period is tolled during pendency of plaintiffs' in forma pauperis application); Jarrett v. U.S. Sprint Communications Co., 22 F.3d 256, 259 (10th Cir. 1994) ("[T]he fiction of `constructive filing' only exists until the [in forma pauperis] motion is ruled upon."); Williams-Guice v. Board of Educ., 45 F.3d 161, 164-65 (7th Cir. 1995) (once pauper status is denied, plaintiff must pay fee within remainder of limitations period); Mealancon v. Associated Catholic Charities of New Orleans, Inc., No. 96-2084, 1997 WL 194620 (E.D. La. Apr. 22, 1997) (Africk, M.J.) (limitations period is tolled for reasonable time after pauper application is denied). Nonetheless, as illustrated by the discussion below, the date when plaintiff's complaint should be considered filed in the instant case is irrelevant to defendant's pending motion.
II. ANALYSIS
Although defendant asserts in his motion that all of plaintiff's claims should be dismissed, the only argument asserted in his memorandum is that plaintiff's claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., is time-barred. Plaintiff charged both age and disability discrimination in his Equal Employment Opportunity Commission complaint. Government Exhs. 1, 2, 3. His amended complaint in this court alleges discrimination based on age and race and retaliation. Record Doc. No. 13.
It may be that plaintiff's complaints of race discrimination and retaliation are not properly before this court. "The scope of a Title VII complaint is limited to the scope of the [Equal Employment Opportunity Commission] investigation which can reasonably be expected to grow out of the charge of discrimination." Thomas v. Texas Dep't of Crim. Justice, 220 F.3d 389, 394 (5th Cir. 2000) (citation omitted). However, presentation of such claims to the Equal Employment Opportunity Commission is merely "a condition precedent" to bringing suit and is not jurisdictional. Young v. City of Houston, 906 F.2d 177, 179-80 (5th Cir. 1990). This issue has not been raised by defendant's summary judgment motion, and I will not address it in detail sua sponte.
Instead, Henderson argues that Williams failed to file the instant suit within the statutory 90-day limitations period after receiving the Office of Field Operations' September 9, 1998 letter, which denied plaintiffs' appeal from the Final Agency Decision. The Age Discrimination in Employment Act provides in pertinent part:
If a charge filed with the Commission under this chapter is dismissed or the proceedings of the Commission are otherwise terminated by the Commission, the Commission shall notify the person aggrieved. A civil action may be brought under this section by a person defined in section 630(a) of this title against the respondent named in the charge within 90 days after the date of the receipt of such notice.29 U.S.C. § 626 (e).
Henderson argues that plaintiff's application for reconsideration did not suspend the running of the limitations period and that the 90 days began to run when Williams received the decision of the Office of Field Operations dated September 9, 1998. Defendant cites the Equal Employment Opportunity Commission's regulations governing complaints by federal employees, which provide in part that an individual complainant "is authorized under title VII, the [Age Discrimination in Employment Act] and the Rehabilitation Act to file a civil action in an appropriate United States District Court: . . . (c) Within 90 days of receipt of the Commission's final decision on an appeal. . . ." 29 C.F.R. § 1614.407 (c) (2000) (emphasis added). Henderson interprets this regulation to mean that the September 9, 1998 decision was a "final decision on an appeal," after receipt of which Williams must file his civil action within 90 days, and that plaintiff's request for reconsideration had no effect on the running of the limitations period.
Although the Equal Employment Opportunity Commission's regulations concerning government employees were amended effective November 9, 1999, the amendments did not change the substance of the regulations cited in this opinion. See 64 Fed. Reg. 37644, 37644, 37659 (July 12, 1999).
Williams appears to argue in his opposition memorandum that equitable tolling should apply because the notice that he received in June 2000, denying his request for reconsideration, included a statement that he had 90 days following receipt of the notice within which to file suit, and that he did so. However, as noted above, Williams has provided the court with no competent summary judgment evidence containing that statement.
Nonetheless, defendant cites no law, other than the statute and regulatory section quoted above, to support his argument that the pendency of plaintiff's request for reconsideration did not suspend the 90-day limitations period for filing a lawsuit concerning plaintiff's age discrimination claim. The following regulation appears to refute defendant's contention.
St. Louis v. Texas Worker's Compensation Comm'n, 65 F.3d 43, 47 (5th Cir. 1995), cited by defendant, is not on point because the plaintiff in that case did not even appeal, much less seek reconsideration, of the Equal Employment Opportunity Commission's decision to dismiss his charge.
(a) The Office of Federal Operations, on behalf of the Commission, shall issue a written decision setting forth its reasons for the decision [on appeal].
(b) A decision issued under paragraph (a) of this section is final within the meaning of § 1614.407 unless the Commission reconsiders the case. A party may request reconsideration within 30 days of receipt of a decision of the Commission, which the Commission in its discretion may grant. . . .Id. § 1614.405(a), (b) (emphasis added). Thus, the September 9, 1998 decision of the Office of Field Operations would have been a "final decision" under Section 1614.407(c), except that Williams filed a timely request for reconsideration, which rendered the decision non-final pursuant to Section 1614.405(b). Because the September 9, 1998 decision was not final, the 90-day limitations period did not begin to run until it was final, which occurred when the Office of Field Operations denied plaintiff's request for reconsideration.
The case law supports this reading of Section 1614.405(b). The Third Circuit Court of Appeals recently stated:
When a reconsideration request is timely filed, the [Equal Employment Opportunity Commission]'s decision on appeal becomes "final" only when that request is granted or denied. . . . Thus, a straightforward reading of the applicable regulations leads to the conclusion that a federal employee's timely filed request for reconsideration tolls the 90-day deadline for filing suit in federal court.Holley v. Department of Veterans Affairs, 165 F.3d 244, 246 (3d Cir. 1999) (citing 29 C.F.R. § 1614.405 (b)); accord Belhomme v. Widnall, 127 F.3d 1214, 1216-17 (10th Cir. 1997); Robbins v. Bentsen, 41 F.3d 1195, 1199 (7th Cir. 1994); Williams v. Brown, No. C-96-1660-FMS, 1997 WL 88376, at *3 (N.D. Cal. Feb. 18, 1997); Metsopulos v. Runyon, 918 F. Supp. 851, 861 (D.N.J. 1996); Sheahan v. Brady, 886 F. Supp. 770, 772 (S.D.N.Y. 1994). The Fifth Circuit reached the same conclusion several years ago. "The filing of a timely request to reopen an [Equal Employment Opportunity Commission] decision tolls the statutory time limit" for filing a civil suit. Rowe v. Sullivan, 967 F.2d 186, 190 (5th Cir. 1992).
Although some of the cited cases were brought under Title VII, the same regulations apply to complaints brought by federal employees under Title VII, the Age Discrimination in Employment Act and the Rehabilitation Act 29 C.F.R. § 1614.103 (a), 1614.407.
Williams filed a timely request for reconsideration. Pursuant toHolley, Rowe and 29 C.F.R. § 1614.405 (b), the pendency of his request for reconsideration suspended the running of the limitations period until the Office of Field Operations denied his request by letter dated June 8, 2000. Williams then had 90 days following his receipt of that letter within which to file suit. 29 U.S.C. § 626 (e). Defendant does not contend in the instant motion that plaintiffs' complaint was filed more than 90 days later.
Accordingly, plaintiff's complaint was timely filed.
III. PLAINTIFF'S "MOTION FOR A WITNESS"
Barbara West merely authenticated documents from defendant's administrative files to fulfill the requirement of Fed.R.Civ.P. 56 (e). Her testimony is unnecessary to resolution of defendant's motion for summary judgment.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is DENIED and plaintiffs' "Motion for a Witness" is DENIED.