Opinion
A3-00-163
June 26, 2001
MEMORANDUM AND ORDER
Before the Court is a motion to dismiss by all defendants (doc. # 3). Plaintiffs have resisted the motion (doc. # 5). For the reasons set forth below, the motion is GRANTED.
I. Background
For purposes of this motion, the relevant facts are few and essentially undisputed. Plaintiff Bonnie Jensen was employed at the Prairiewood Station Post Office in Fargo, N.D. On June 4, 1999, she contacted the Equal Employment Opportunity (EEO) office for the district containing North Dakota and claimed she was being harassed by her supervisor and coworkers at the Prairiewood Station. The EEO counselor with whom she spoke provided information regarding discrimination laws in general and sent her the forms necessary to formalize her complaints. However, Jensen did not complete the forms as required. She next spoke with the EEO counselor on June 28, 1999; the two had exchanged phone messages in the meantime. There appears to be some dispute about the content of the conversation, but it is clear that Jensen did not thereafter submit the forms the EEO had sent her, either to formalize or withdraw her complaint.
Jensen continued to work at the Prairiewood Station until November 15, 1999, when she took Federal Employees Compensation Act (FECA) leave. She has not since returned to work. On January 20, 2000, her attorney sent a letter to the Equal Employment Opportunity Commission by fax and mail in which he requested a formalization and continuation of the complaint process. EEO counseling was initiated, and the parties engaged in mediation. The mediation failed, and Jensen filed a formal complaint on March 15, 2000. On April 6, 2000, the EEOC issued a notice accepting the complaint for investigation, and Jensen submitted additional information. However, on August 21, 2000, the EEOC issued a Final Agency Decision in which it determined that Jensen had failed to file her complaint within 45 days of the date of the last discriminatory act, as required by law. It therefore dismissed the complaint and advised Jensen of her right to pursue further agency appeal or file in district court. Jensen chose the latter option and filed this suit on November 17, 2000. Defendants did not answer but instead filed the motion to dismiss now before the Court.
II. Analysis
The Court is faced with several distinct questions. In the Court's view, the claim plaintiffs make against the United States Postal Service (USPS) are analytically distinct from those they make against the individual defendants. Therefore, the Court will address each in turn, beginning with a brief discussion of the appropriate standard of review.
A. Relevant standards
The parties devote much energy in their briefs to whether this motion should be evaluated under the standards of Rule 12(b)(1), which challenges jurisdiction and allows consideration of matters outside the pleadings, or Rule 12(b)(6), governed by the traditional rules for evaluating motions to dismiss. Also complicating the matter is that the motion has overtones of a summary judgment motion under Rule 56. The Court concludes that it will generally apply Rule 12(b)(6), but it will treat the motion as one for summary judgment under Rule 56 as it relates to the issue of administrative exhaustion, addressed in Part II.B. below. See Rule 12(b) (allowing a court to convert a motion to dismiss to a summary judgment motion).
In reviewing a motion for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), this court is constrained by a stringent standard. Parnes v. Gateway 2000, Inc., 122 F.3d 539, 545-46 (8th Cir. 1997) (citations omitted). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id. at 546 (citations omitted). Moreover, the court must accept the allegations in the complaint as true and construe them in plaintiff's favor when making this determination. Midwestern Mach., Inc. v. Northwest Airlines, Inc., 167 F.3d 439, 441 (8th Cir. 1999). Thus, as a practical matter, a dismissal under Rule 12(b)(6) is likely to be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. See Parnes, 122 F.3d at 546.
Contrarily, summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A fact is "material" if it might affect the outcome of a case, and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Churchill Bus. Credit, Inc. v. Pacific Mut. Door Co., 49 F.3d 1334, 1336 (8th Cir. 1995). Thus, the "basic inquiry" for purposes of summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one sided that one party must prevail as a matter of law." Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir. 1996) (citing Anderson, 477 U.S. at 251-52).
B. Plaintiff's claims against the USPS
In their papers, plaintiffs concede that Title VII provides the only remedy for discrimination for a federal employee, such as Plaintiff Bonnie Jensen as against the USPS. Therefore, they impliedly concede that all non-Title VII claims advanced against the USPS must be dismissed, as the Court would surely have held. See generally Brown v. General Serv. Admin., 425 U.S. 820, 828-29 (1976) (holding Title VII is the exclusive remedy for claims of discrimination against the federal government). Thus, all non-Title VII claims against the USPS are DISMISSED.
The issue with respect to the Title VII claim is more complicated. The USPS essential argument is that Jensen failed to exhaust her administrative remedies in a timely fashion, thus precluding pursuit of her claims in this Court. Importantly, Jensen does not dispute the relevant dates at issue, though, as will be discussed in detail below, she disputes the legal effect of them. As the Court will explain, it agrees with the USPS.
The Eighth Circuit has recently discussed this issue:
Before bringing discrimination claims, Title VII plaintiffs must exhaust available administrative remedies. Specifically, employees of federal government agencies who believe that they have been discriminated against "must consult a[n EEO] Counselor prior to filing a complaint in order to try to informally resolve the matter." Such employees "must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory." An aggrieved employee who can show that he "was not notified of the time limits and was not otherwise aware of them" may be absolved from any failure to comply with the 45-day filing deadline.
Bailey v. USPS, 208 F.3d 652, 653 (8th Cir. 2000). The relevant time periods are set forth in detail in the regulations implementing Title VII: An aggrieved person must initiate contact with a Counselor with 45 days of the date of the matter alleged to be discriminatory[.] 29 C.F.R. § 1614.105(a)(1). Further, the EEOC has apparently decided that initiating contact requires completing and returning the relevant forms, not merely speaking with a counselor, a policy plaintiff does not contest. See id. at 655 n. 2 (describing the policy and declining to address its propriety). These rules are clearly established and beyond question; the difficulty lies in their application.
The USPS central argument is that Jensen has not worked since November 15, 1999. That is thus the last day on which she could have suffered discrimination, and more than 45 days elapsed until January 20, 2000, when she sought counseling. This is the analysis the agency employed in rescinding and superceding its acceptance of the complaint, as it decided that timeliness would have required filing within 45 days of November 15, 1999.
The Court is in essential agreement with this argument. The Court will examine Jensen's counter arguments in depth below, but it seems apparent that she failed to exhaust her remedies within the required time constraints. The regulations make clear that an employee has 45 days from the date of the matter alleged to be discriminatory to formalize her complaints. 29 C.F.R. § 1614.105(a)(1). Here, Jensen does not dispute that she has not worked since November 15, 1999. Whether she left her job or is on FECA leave is, for these purposes, irrelevant: Factually, she was not exposed to alleged harassment by her coworkers after November 15, 1999, since she simply no longer worked with them. Thus, the 45-day clock must have begun, at the latest, on November 15, 1999. Jensen also does not dispute that she did not formalize her complaint until January 20, 2000, a date more than 45 days after November 15, 1999. Thus, the Court concludes Jensen did not exhaust her remedies in the required timely fashion.
Jensen offers several theories why her complaint against the USPS should not be dismissed on this basis. First, she argues that the harassment she suffered amounts to a continuous violation which has existed from May 4, 1999 to the present. The core of plaintiff's contention is that the USPS maintained a pervasive system of discrimination at the Prairiewood Station and that this system persists to the present, exempting her from the time requirements of Title VII. Such a theory is clearly available to plaintiffs in some cases. See, e.g., Chaffin v. Rheem Mfg. Co., 904 F.2d 1269, 1271-72 (8th Cir. 199) ([I]n certain circumstances, where appellant challenges an ongoing pattern or practice of discrimination rather than one isolated instance, the alleged violation may be deemed continuing). The issue is whether this is such a case.
A recent Second Circuit opinion summarizes thus theory:
An exception to [the 45-day rule] is provided by the continuing violation doctrine. Under that doctrine, if a plaintiff has experienced a continuous practice and policy of discrimination, . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it. If a continuing violation is shown, a plaintiff is entitled to have a court consider all relevant actions allegedly taken pursuant to the employer's discriminatory policy or practice, including those that would otherwise be time barred. Although the continuing violation exception is usually associated with a discriminatory policy, rather than with individual instances of discrimination, and although acts so isolated in time . . . from each other . . . [or] from the timely allegations as to break the asserted continuum of discrimination will not suffice, a continuing violation may be found where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.
Fitzgerald v. Henderson, — F.3d 2001 WL 588961 (3d Cir. May 31, 3001) (internal citations and quotations omitted). Thus, as this passage indicates, the purpose of the continuing violation theory is to allow a plaintiff to include events which occurred outside the limitations period as part of her properly-filed case. Id. This is not what plaintiff seeks to do here, however, and thus the Court must conclude it is not applicable.
Here, Jensen seeks to use the continuing violation theory to avoid completely the need to file administratively, as all the events of which she complains occurred outside the limitations period. The law is clear that this is impermissible. The Eighth Circuit has repeatedly held that at least one discriminatory act must occur within the limitations period. See, e.g., Sowell v. Alumina Ceramics, Inc., — F.3d 2001 WL 585684 (8th Cir. June 1, 3001) (holding that a plaintiff arguing a continuing violation must allege, at a minimum, one incident within the [relevant] period that, on its own merits, constitutes a violation); Klein v. McGowan, 198 F.3d 705, 710 (8th Cir 1999). Jensen, however, has pointed to no incident in the 45-day period that would allow her to use the continuing violation theory to reach back beyond that time. Indeed, she cannot do so, as she has not been exposed to her coworkers since November 15, 1999. Jensen's efforts to employ the continuing violation theory are thus misdirected, and the Court concludes they must fail.
Jensen next argues that the fact she was on FECA leave means she retained all the rights of a full employee on January 20, 2000, when she sought counseling. She cites 5 U.S.C. § 8151(b)(1), which indicates that an employee on FECA leave retains all attendant rights which the employee would have had, or acquired, in his former position had he not been injured or disabled, and argue that this gave her an absolute right to EEO counseling on January 20, 2000. This argument misses the point. While her FECA rights may have given her the right to pursue counseling, they did not give her the right to avoid the required deadlines. Plaintiff cites no case to support this premise, and the Court has been unable to locate one. Thus, the Court rejects the argument that FECA rights somehow exempted Jensen from making the 45-day deadline, which the Court has concluded she missed.
Finally, Jensen argues equitable tolling should apply to her case. Jensen bases her argument on several facts: she was hospitalized for severe emotional distress after she left her job; she was diagnosed with major depressive disorder and her symptoms were at their worst immediately after she left her job; and these conditions are attributable to the harassment she suffered at the hands of defendants. As set forth below, however, the Court concludes these facts do not require equitable tolling.
There can be no question that equitable tolling is the unusual case, and a plaintiff thus faces a high burden when she seeks to employ it. The Eighth Circuit has described the conditions under which such equitable tolling should apply:
It is well established that Title VII claims may be subject to waiver as well as tolling when equity so requires.[E]quitable tolling is a remedy reserved for circumstances that are truly beyond the control of the plaintiff. Equitable tolling will extend a deadline missed due to an employee's excusable ignorance, but the doctrine is precluded once it is shown that the employee was generally aware of her rights. Equitable tolling is not available when it is shown that the employee has "general knowledge" of the right not to be discriminated against or the means of obtaining such knowledge.
Briley v. Carlin, 172 F.3d 567, 571 (8th Cir. 1999) (internal citations and quotations omitted). The Court concludes these standards cannot be met here.
Assuming all the facts alleged by plaintiff are true, as the Court must, they do not rise to the level required for equitable tolling. First, plaintiff has not even alleged that she was in the hospital during the entire, or even the majority of, the 45-day period or that her symptoms were so sever she was incapable of filing a complaint. In the Court's view, an illness of such severity would be necessary for equitable tolling based on a medical condition to succeed; otherwise, conditions would not be truly beyond the control of the plaintiff. Id. This is especially true in light of the fact that plaintiff was generally aware of her rights when she left the job. Indeed, she concedes that she had already spoken with an EEO counselor and received information regarding her rights. Thus, she not only had general knowledge of her rights; she had specific and concrete knowledge of how to protect them. This fact seriously undercuts her claim for equitable tolling. Id.
The Court concludes that plaintiff failed to comply with the Title VII timing requirements for exhaustion of administrative remedies. The Court further rejects her attempts to avoid the effect of this conclusion. The defendants motion to dismiss the Title VII claims against the USPS is therefore GRANTED.
C. Plaintiff's claims against individual defendants
In addition to suing the USPS, plaintiffs have advanced a number of claims against a series of individual defendants who were supervisors or coworkers of Jensen's at the Prairiewood Station. This presents a somewhat complicated question for the Court to consider, as it focuses on a gap between two well-established legal principles: The exclusivity of Title VII as against the USPS and the unavailability of Title VII as against the individuals.
The first principle was discussed above: Title VII is the exclusive remedy for claims of employment discrimination such as this one against federal agencies such as the USPS. See generally Brown, 425 U.S. at 828-29. Thus, there can be no question that the common law and tort causes of action alleged by Jensen may not be brought against the USPS; her sole remedy is Title VII.
Equally clear is that any Title VII claim made against an individual must be dismissed: Title VII simply provides no right of action against coworkers and supervisors. See Roark v. City of Hazen, Ark., 189 F.3d 758, 762 (8th Cir. 1999) (The district court also properly dismissed Roark's claim against Orlicek in his individual capacity because a supervisor may not be held liable under Title VII). Thus, while Title VII is exclusive against the USPS, it is unavailable for the individuals.
Thus, the issue is whether the non-Title VII claims advanced by Jensen may survive against the individuals. The Court concedes that this is a somewhat complex question. However, a recent Eighth Circuit case provides a degree of guidance. In Mathis v. Henderson, 243 F.3d 446 (8th Cir. 2001), the Eighth Circuit concluded that a Title VII plaintiff could not advance common law or Federal Tort Claims Act (FTCA) causes of action against a supervisor to the extent that the evidence she would use to prove those claims was coextensive with the evidence she would use to prove the Title VII claim. While Mathis involved claims under the FTCA and not common law claims, as here, the Court believes that the opinion's general position applies with equal force to this case. That position is perhaps best summarized as follows:
We are unwilling and under Brown, unable — to give a plaintiff carte blanche to creatively plead as many state-law causes of action as she believes she may sustain against her supervisor, in addition to her Title VII claim, when, at bottom, her claim is for sexual harassment by a supervisor, for which the government already stands liable under Title VII and Ellerth. It would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading.
Id. at 451 (internal quotations omitted). The essential holding is thus that a plaintiff may not avoid the preclusive effect of Title VII by seeking state law or FTCA claims against a supervisor when her essential case is for a Title VII violation. The Court believes that this is the case here, as a brief review of the claims in the complaint makes clear.
Plaintiffs' first claim is for hostile environment sexual harassment. The Court interprets this as a Title VII claim, and thus, to the extent it is made against the individual defendants, it must be rejected. Id. (holding that Title VII claims may not lie against individual coworkers and supervisors). The Court is aware that, in their motion papers, plaintiffs argue that the hostile environment claim should survive against the individual defendants because the actions at issue were outside the scope of their employment. In so doing, plaintiffs challenge the Westfall certification filed by the United States on behalf of the individual defendants. It appears that the United States did so, however, only as a kind of preventive measure, since it is clear from the face of the complaint that plaintiffs have not advanced any theories of recovery under the Federal Tort Claims Act. The certification is thus no part of the Courts conclusion, and plaintiffs' efforts to attack it are misguided. In short, the hostile environment claim is a Title VII claim, not a tort, and is DISMISSED as against the individuals.
Jensen then claims that she has suffered infliction of emotional distress at the hands of the individual defendants, that they have retaliated against her in violation of the North Dakota Human Rights Act, and that they have conspired to deprive her of her rights and protections under law. In the Court's view, these are precisely the kinds of claims Mathis indicates may not be made when the core of the case is a Title VII claim. See 243 F.3d 451. The complaint makes these claims against all defendants — including the USPS — indicating that the issues all stem from her employment. The complaint is devoid of any reference to activity by the individual defendants outside of the work context. Neither do plaintiff's motion papers refer to any such activities.
In short, this is a Title VII case, in which the exclusive remedy is a Title VII claim against the USPS. Allowing Jensen to pursue claims against the individual defendants — when the claims arise from a set of facts which clearly states a Title VII case — would be to allow artful pleading to defeat a comprehensive remedial scheme, which Mathis and Brown expressly forbid. Id. Thus, because it is apparent that this is at bottom a Title VII case, the Court will not permit these claims to go forward against the individual defendants.
Plaintiff also asserts that the individual defendants violated her rights under 42 U.S.C. § 1985. It is clear that a plaintiff may not employ § 1985 to vindicate Title VII rights. Great American Federal Savings Loan Ass'n v. Novotny, 442 U.S. 366 (1979). Certainly, however, one may use § 1985 to vindicate general constitutional rights, such as equal protection or due process. Plaintiff tries to characterize this case in this fashion, but the Court believes it is essentially a Title VII case, with no additional constitutional overtones. Therefore, the § 1985 claim against the individuals is DISMISSED.
III. Conclusion
For the reasons set forth above, defendants' motion to dismiss (doc. # 3) is GRANTED.