Opinion
No. 00-70744
June 12, 2002
OPINION AND ORDER ON MOTION FOR RECONSIDERATION
Before the court is Defendant's September 19, 2001 motion for reconsideration of this court's September 5, 2001 Opinion and Order granting Plaintiff's motion to reopen discovery and denying without prejudice both parties' motions for summary judgment. Plaintiff was allowed to file a response and did so on October 15, 2001. Defendant then filed a reply brief on October 23, 2001 and a notice of supplemental authority on April 12, 2002.
BACKGROUND FACTS
Plaintiff John Horton is a disabled Vietnam veteran who had been working for the Postal Service since 1980. In 1986, Horton was promoted to a management position in Southfield, Michigan, and in 1991, he was transferred to the Royal Oak Post Office as a supervisor of Mail and Delivery.
On November 14, 1991, Thomas McIlvaine, a recently terminated Postal Service employee, shot and killed several employees at the Royal Oak Post Office. Horton was present during the shooting and performed CPR on some of the victims. He also spent the next day representing the Postal Service at Beaumont Hospital speaking to the families of the injured employees. Horton claims that he was verbally promoted to the Manager of Station and Branches in Royal Oak on November 15, but that on November 16 he was told that he was not allowed in the Royal Oak Post Office building.
After that, Horton was transferred away from the Royal Oak Post Office and posted at a series of temporary locations in Southeast Michigan. Horton claims he was traumatized by the shooting and by his mistreatment by the Postal Service, which aggravated his underlying Post-Traumatic Stress Disorder (PTSD). He claims that this mistreatment consisted of the series of temporary assignments, whereas he had requested a permanent assignment to better deal with his trauma resulting from the shooting. As a result of this mistreatment Horton claims his PTSD worsened, and he left work on disability leave in November 1992. He has never returned to work at the Postal Service.
Plaintiff charges that despite his "reasonable requests to accommodate his disability" the Postal Service refused to accommodate him by placing him in a suitable, permanent position. Though he has never returned from disability leave, Horton claims that he continued to apply for other positions with the Postal Service both before and during his leave, but other employees who were not as disabled as he is were placed in the positions that he requested. He alleges that that too was discriminatory. He further alleges that the Postal Service has an ongoing policy of discrimination against disabled veterans. The Postal Service denies all these allegations.
Horton first contacted an equal employment opportunity (EEO) counselor about this alleged discrimination on May 19, 1993, some six months after he last worked in November 1992. He filed the instant complaint on February 10, 2000 alleging violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. The parties filed cross-motions for summary judgment and Plaintiff moved to reopen discovery in June 2001. This court denied both summary judgment motions and granted the motion to reopen discovery on September 5, 2001. Discovery has been stayed since the instant motion for reconsideration was filed.
Defendant originally moved for summary judgment on two grounds: that Plaintiff failed to timely invoke the mandatory administrative remedies and that he cannot make out a prima facie case of discrimination. Now, Defendant moves for reconsideration of its summary judgment motion on the sole ground that Horton's suit is barred because he did not timely invoke his administrative remedies within the 45-day period required by 29 C.F.R. § 1614.105(a)(1) after he went on disability leave. Horton contends that his delay is excused because (1) the discrimination was ongoing during his leave because Defendant had an obligation to consider him for promotion while on leave and (2) Defendant has waived the issue of timeliness. The court did not discuss the issue of timeliness in its short order denying the cross motions for summary judgment.
Defendant's notice of supplemental authority refers this court to the Supreme Court's recent decision in Toyota Motor Manufacturing, Inc. v. Williams, 534 U.S. 184 (2002), and offers to brief the impact of Williams on the merits of the case.
MOTION FOR RECONSIDERATION
In order to prevail on a motion for reconsideration, "[t]he movant must not only demonstrate a palpable defect by which the court and the parties have been misled but also show that correcting the defect will result in a different disposition of the case." LR 7.1(g)(3) (E.D. Mich.). The court also has discretion under this rule, but generally "the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court." Id.
Defendant argues that the palpable defect in this court's earlier ruling on its summary judgment motion was the failure to consider the issue of timeliness. It is true that this court failed to address that issue in its brief order, and that omission was a defect. Defendant must now demonstrate that correcting the defect will result in a different disposition of the case under the standard for summary judgment.
MOTION FOR SUMMARY JUDGMENT A. STANDARD OF REVIEW
A motion for summary judgment will be granted if the pleadings and all supporting documentation show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant bears the burden of demonstrating the absence of all genuine issues of material fact. Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir. 1995). However, the moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The court must view all the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant's favor. Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir. 1984). Once the moving party discharges its burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.P. 56(e); Talley, 61 F.3d at 1245. To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue; he must produce evidence of "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324.
B. LAW AND ANALYSIS
The relevant Federal regulation, 29 C.F.R. § 1614.105(a)(1), requires Federal employees to see a counselor about a discrimination claim within 45 days of the matter or personnel action alleged to be discriminatory. A suit on such a claim cannot be brought unless administrative remedies, including the timely initial contact with a counselor, are first exhausted. See Benford v. Frank, 943 F.2d 609, 612 (6th Cir. 1991). Since Plaintiff last worked at the Postal Service in November 1992, it does appear that his first contact with the EEO counselor in May 1993 exceeded the 45-day time limit. The court will now turn to examine Plaintiff's argument as to why this delay does not bar his suit.
1. Continuing Violation
First, Plaintiff asserts that the discriminatory treatment of Plaintiff continued once he took disability leave. During the year between the Royal Oak shooting in November 1991 and Plaintiff's taking of disability leave in November 1992, Horton was posted to several "detail," or temporary, positions. Plaintiff asserts that he needed a permanent placement and made several requests for a transfer to a permanent position and submitted many applications for promotions. He argues that since he was not notified of the outcome of his applications before he went on leave, the Postal Service was under an obligation to continue considering him for promotion even while he was on leave.
To support that argument, Plaintiff cites 5 C.F.R. § 353.201. Plaintiff cites the 1987 version of that regulation, but the court must apply the version in effect in 1992-1993. This regulation protects the personnel status of civil service employees who are absent from their positions because of military service or compensable injury. Mr. Horton has been receiving Federal Employee Compensation Act (FECA) benefits since shortly after he went on disability leave and thus apparently falls under the category of those absent for compensable injuries. What the regulation provides is only that agency promotion plans must provide mechanisms to considers employees so absent. Horton, however, had been unable to work ever since he first took disability leave in 1992. Dr. Pereira, Horton's treating psychologist, confirms that Horton is unable to work and has been unable to do so since November 1992. (Pereira Dep. at 47-50.) As a person unable to work, Horton was clearly not in a position to be considered for a promotion. Further, 5 U.S.C. § 8151 provides civil service employees with the right to return to their previous position only if their injury or disability is overcome. Unfortunately, Horton's disability has not yet been overcome. As he has been on continuous disability leave since November 1992, the last date an adverse employment action could have been taken against him was in November 1992. But Horton did not contact an EEO counselor until May 1993, which is clearly far outside the 45-day time frame in which Federal employees must initiate contact with an EEO counselor.
Horton's accusations are of disparate treatment and a failure to accommodate his disability, not of a hostile environment, so it the date of any employment action that is relevant.
Horton also makes some reference to comments made by a Royal Oak District Post Office manager in May 1993 and an earlier comment by the then-Postmaster General that he argues are evidence of an illegal employment policy (or policies) that have never been rescinded, so that the discrimination against him continued up until the time of his first visit to the EEO counselor (and apparently continues even today). The Royal Oak shooting took place in a string of five or six Post Office shootings, and then-Postmaster General Anthony Frank was quoted as saying that "past military service may be a factor in five or six deadly acts of retribution committed by postal workers" and that "we're going to have to take a look at our hiring practices. . . where we give preferences to people with military disabilities and so on." (The quotation is from an undated article from DAV magazine presented as Plaintiff's Ex. 3). Though Frank's words may have been somewhat rash, they do not establish that there was any sort of policy biased against disabled veterans, and especially does the address the relevant issue here — whether there was some policy against promoting or reassigning employees with mental disabilities. Further, Horton alleged in his original request for counseling that Thomas Newman, the Director of the Royal Oak Management Sectional Center after the shooting incident, made a discriminatory statement on May 6, 1993. That statement apparently referred to the Dearborn Post Office, where unfortunately another shooting had taken place. Newman allegedly said that "management obviously hadn't changed as fast as I did in Royal Oak." How exactly that would prove continuing discrimination against Horton is not clear, but it seems to tie into Horton's feeling that the management style at the Royal Oak Post Office was being blamed for the tragedy there. That may even be so, but a critique of management is not a discriminatory act. The comment is not an employment action that can be challenged, does not single out Horton from among the managers in Royal Oak, and does not indicate any act, much less a discriminatory one, against Horton. Horton has not created even a genuine issue of fact that any discriminatory employment policy existed, as there is no evidence beyond those two statements to support an allegation of any such policy.
Thus, the Postal Service has shown that the latest date any employment action regarding Horton could have been taken was in November 1992, and Horton did not contact an EEO counselor within the allowed 45-day time frame.
2. Waiver
Plaintiff further argues that even if his contact with an EEO counselor was untimely, Defendant has waived the issue of timeliness by not raising it at the administrative stage. Defendant denies that waiver applies here because there has not been any prior resolution of this case on the merits, and it was not apparent at any earlier stage that the contact was truly untimely, since Plaintiff's submissions indicated dates later than November 1992.
Analysis of the waiver issue requires a brief review of the procedural posture of this case. Plaintiff both initiated contact with an EEO counselor and requested mediation with the Postal Service in May 1993. His original request for counseling indicated the date of May 6, 1993 (Newman's comment) as when the activity that promoted him to seek counseling took place. His claim was not resolved through the counseling process, and on December 15, 1993, Horton was advised of his right to file a formal administrative EEO complaint within 15 days. His attorney claimed to have filed such a complaint by mail on December 23, 1993, but the complaint was apparently lost and did not reach the Postal Service. When the complaint was resubmitted on April 7, 1994, it was dismissed as untimely under the 15-day formal complaint rule in a letter labeled "Final Agency Decision." Horton challenged that dismissal administratively, and when denied, began an action in this court. Horton v. Runyon, No. 96-74023 (E.D. Mich.). This court ordered on June 17, 1997 that the formal complaint be considered timely filed under the doctrine of equitable tolling since the original attempt to mail the complaint had been timely. Accordingly, the matter was remanded to the Postal Service's EEO department. By letter on November 15, 1999, Horton was informed that since mediation had failed and more than 180 days had past without a final agency action, he could elect to file a lawsuit. He then filed the instant suit on February 10, 2000.
The time limits on civil rights actions are akin to statutes of limitations, and as such are subject to the traditional equitable principles of waiver, tolling, and estoppel. Benford v. Frank, 943 F.2d 609, 612 (6th Cir. 1991). The Seventh Circuit has recently ruled on the specific issue of waiver, as have several other circuits. In Ester v. Principi, 250 F.3d 1068 (7th Cir. 2001), the court found that where the Veterans Administration had denied an EEO claim on its merits without raising the timeliness issue, the agency had waived the defense of timeliness. Accord Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997). The Ester court cited the need for judicial economy and a well-developed record for review, but it also specifically stated that waiver applied "when an agency decides the merits of a complaint." Id. at 1071-72. Here, the government argues that there was no decision on the merits, and contrasts this case with Ester, where there was an investigation that lasted over three years, while in this case there was never any investigation until the discovery during the instant suit. Ester does emphasize the need for there to be a decision on the merits for waiver to apply, since it clearly states that mere acceptance or investigation of a complaint does not mean that waiver applies. Id. at 1072 n. 1. This case falls just in the middle of those rules, since here the Postal Service did make a final agency decision on this case but also did not and could not reach the merits of the action since no investigation was undertaken.
Plaintiff cites 29 C.F.R. § 1614.107(a)(2) and its interpretation in Tinnin v. Danzig, 2000 WL 190255 (E.D. Pa. Feb. 4, 2000). That regulation provides that "[p]rior to a request for hearing in a case, the agency shall dismiss an entire complaint" that is untimely under the 45-day rule. The relevant regulation was amended in 1988 from "may dismiss" to "shall dismiss," and the court in Tinnin found that change to strongly emphasize the need for agencies to raise the timeliness issue early, before a needless expenditure of time and money. The court held, "the government should not be allowed to undercut the regulation by ignoring this defense at the administrative level and belatedly springing it on plaintiff for the first time in the district court." Id. at *3. This court agrees that early dismissal on this ground is indeed strongly preferable, and that the late "springing" of this defense is to be discouraged. Here, though, it was not evident to the government that the timeliness of counseling was an issue earlier because it required at least some investigation to determine that the correct date from which the 45 days ran was November 1992 (at the latest). That is not self-evident from Plaintiff's administrative filings. Though it would not have taken too much investigation to determine that, it appears that this case never reached any stage of investigation in the administrative process. Plaintiff had sought resolution through counseling, which is not designed to evaluate the merits of a complaint. Then, the late filing of the complaint was dismissed on the unrelated timeliness grounds. When it was remanded back to the Postal Service by this court, the matter then apparently went to mediation and then finally became the subject matter of this civil action. At no time was there any kind of adjudication on the merits.
As the government points out, the cases that have found waiver of this or similar time limits applied the waiver to situations where the agency involved did reach a decision on the merits, usually after a lengthy investigation. See Ester, 250 F.3d at 1071; Bowers, 106 F.3d at 438; Tinnin, 2000 WL 190255 at *2. Those were instances where the government was able to discern the timeliness earlier in the matter, but either did not discern it or chose not to raise it. In this case, because of its somewhat unusual trajectory, the government was not so able to discern the timeliness problem until discovery was conducted in this suit. While the late discovery of this issue is far from ideal, the 45-day time limit is a mandatory one, and the cases applying waiver of time limits are distinguishable from the circumstances in this case.
As such, the court finds that Plaintiff's invocation of his administrative remedies was untimely under 29 C.F.R. § 1614.105(a)(1) and therefore that Defendant's motion for summary judgment will be granted.
ORDER
It is hereby ORDERED that Defendant's motion for reconsideration is GRANTED and that its motion for summary judgment is also GRANTED.