Opinion
Civil Action No. 5:03-CV-118-C.
July 1, 2004
ORDER
On this date the Court considered Defendant John E. Potter's Motion to Dismiss, or Alternatively, for Summary Judgment, filed March 11, 2004, and Plaintiffs' Response, filed March 31, 2004. After considering all the papers, pleadings, and evidence, the Court is of the opinion that Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment, should be granted for the following reasons:
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Walter P. Lazdowski, is a citizen of the State of Texas and resides in Lubbock, Lubbock County, Texas. Defendant, John E. Potter, is the Postmaster General of the United States. Plaintiff began his employment with the Postal Service on October 8, 1988, as a mail handler, a PS-04. Plaintiff then became a Data Collection Technician, a PS-06. Later, Plaintiff was given a job as an Automation Clerk, a PS-04.
Plaintiff filed a complaint of discrimination against the Postal Service on March 7, 1997, with the Senior EEO Complaint Processing Specialist of the Postal Service in Fort Worth, Texas (EEO Case No. 1G-761-0050-97). Plaintiff alleged discrimination because of his race (Caucasian), national origin (Polish-American), and disability (depression) after he had been denied selection to a management position for which he had applied.
On September 26, 2002, EEOC Administrative Judge Ann Fuller issued a decision in EEO Case No. 1G-761-0050-97, finding that the Postal Service did not discriminate against Plaintiff. The judge directed that the Postal Service issue a final order accepting or rejecting the decision. Plaintiff alleges that, to date, the Postal Service has neither accepted nor rejected the decision, and so Plaintiff now brings to the Court his claims for race, national origin, and disability discrimination.
In the early fall of 1997, Plaintiff began having shoulder pain. An orthopedic surgeon prescribed light-duty restrictions. Plaintiff filed a claim with the Office of Workers' Compensation Programs ("OWCP") with the United States Department of Labor. The Department of Labor accepted Plaintiff's claim for a left shoulder impingement and found that the injury was work-related. Plaintiff was thereafter assigned non-machine duties on April 15, 1998. In May 1998, Plaintiff was instructed to work in the automation area and told by his supervisor that he would need to provide specific medical documentation if he wished to continue under light duty. Plaintiff was scheduled for surgery on May 20, 1998, but this surgery was cancelled due to the lack of approval from OWCP. Plaintiff eventually had shoulder surgery on June 27, 1998. The Postal Service denied Plaintiff's request to extend his OWCP leave of absence while recovering from surgery until he could see his surgeon for a follow-up on July 28, 1998. Plaintiff was released to work on limited duty by his physician on July 30, 1998. He was assigned to work in the automation area, and his light-duty restrictions were rejected by his supervisor. Plaintiff continued to attempt to perform the full duties of the job; however, due to the pain and discomfort he experienced as well as the supervisor's refusal to reassign him, Plaintiff resigned on September 30, 1998.
A few days prior to December 9, 1998, the Postal Service informed Plaintiff that they had available a job providing limited duties. Following Plaintiff's inquiry about the job, he received instruction to "go home and wait" and "they" would call him. Plaintiff waited several months without having heard anything until finally contacting John Levacy, one of the main managers of the Postal Service in Lubbock, Texas, and another individual employed by the Postal Service as a labor-relations specialist. Plaintiff was told that he would have to reapply for a job. Plaintiff thereafter filed a timely EEO complaint with the Postal Service (EEO Case No. 1G-761-0025-00) on or about November 16, 1999, and received a final agency decision, rendered on February 9, 2000, denying him any relief for the retaliation claim that he filed pertaining to his treatment during and after his shoulder injury. Plaintiff was allowed 90 days from the date of receipt (February 14, 2000) to file a civil action in U.S. District Court.
Plaintiff filed a lawsuit in this Court on May 9, 2000 ("the 2000 lawsuit"), alleging that the actions of the Postal Service constituted retaliation pursuant to Title VII. Plaintiff claimed that the Postal Service retaliated against him, based on his prior charge in EEO Case No. 1G-761-0050-97, by failing to allow him to return to limited-duty status, thereby forcing him to resign. On January 9, 2000, following a trial by jury, this Court entered judgment awarding Plaintiff $145,000.00 in damages, full restoration within thirty days, front pay, benefits, and attorney's fees. Plaintiff alleges that despite this judgment, he was not fully restored to his position within thirty days, nor did he receive all of the benefits, seniority, front pay, and other job specifications set forth in the judgment.
Plaintiff returned to work at the Lubbock, Texas Processing and Distribution Center ("PDC") on February 25, 2002, as a mail handler. Upon returning to work, Plaintiff alleges, he was greeted with a hostile environment. Plaintiff was given a pre-disciplinary interview on May 30, 2002, for his failure to follow instructions given by Lewis Lehman, Manager of Distributions. The interview pertained to an incident which happened on May 23, 2002, when Lehman instructed Plaintiff to exit through the green exit door instead of the red entrance door. Defendant alleges that Plaintiff failed to follow Lehman's instructions. Plaintiff alleges, however, that he did not recognize Mr. Lehman as an authority figure and had already exited the door when the instruction was given.
Defendant counters that because Plaintiff refused to follow instructions, he was issued a Letter of Warning ("LOW") on June 4, 2002. Plaintiff claims that he did not receive this LOW until July 8, 2002, when the Supervisor of Distribution Operations, Charles D. Shedd, approached him to sign the LOW to show that he had received it. Plaintiff refused to sign the LOW. Plaintiff claims that Mr. Shedd used language and gestures which he interpreted to be hostile. Mr. Shedd told Plaintiff that "you will obey my orders" and "I am giving you a direct order" while pointing his index finger directly at Plaintiff. Plaintiff felt the language and gestures were abusive. Debi Land, a union representative, was thereafter given two copies of the LOW after Plaintiff refused to take the letter. The union filed a grievance regarding the LOW, which the parties settled around July 11, 2002, by reducing the LOW to a formal discussion. Plaintiff alleges that the disciplinary actions taken against him were not in accord with normal Postal Service procedure, which is to 1) have a discussion with the person being reprimanded and 2) issue a letter of warning if the action is severe enough to warrant it. Plaintiff claims that he was issued a letter of warning with no prior discussion.
On July 15, 2002, Plaintiff reported this incident to the Lubbock Plant Manager, David Stafford, and requested an investigation. Plaintiff alleges that Stafford refused to hear his complaint and that he later gave false testimony to the EEO regarding Plaintiff's conduct. Plaintiff reasonably believes that all of the actions by Defendant are direct retaliation for the prior judgment he received against the Postal Service. Defendant, however, alleges that Stafford met with Plaintiff on July 24, 2002, but had to end the meeting due to Plaintiff's excessively aggressive behavior. Beginning on July 24, 2002, Plaintiff used his sick leave and unscheduled leave without pay and stopped coming to work. On December 16, 2002, Plaintiff agreed to withdraw his EEO complaint if Shedd verbally apologized to him. Although Shedd agreed to the resolution, Plaintiff then requested that the apology be in the presence of all his co-workers; however, management did not agree to this stipulation.
Plaintiff claims that the conduct by the Postal Service constitutes discrimination based upon his race, ethnicity, and disability as well as retaliation against him for pursuing his legal remedies. Plaintiff claims that as a result of the treatment, he was again forced to quit, this time on March 6, 2003. Plaintiff filed a timely EEO complaint with the Postal Service on October 4, 2002 (EEO Case No. 1G-761-0196-02), regarding the activities that had developed since the judgment rendered by this Court. On March 3, 2003, Plaintiff received a final agency decision denying him relief from the discrimination and retaliation claims that he filed pertaining to such treatment by the Postal Service. Plaintiff timely filed this action on May 23, 2003.
Plaintiff brings this suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.; the Civil Rights Act of 1991, 42 U.S.C. § 1981(a); and the Americans with Disabilities Act ("ADA") of 1990, 42 U.S.C. § 12101 et seq. Plaintiff seeks back pay and benefits, injunctive relief, compensatory damages, attorney's fees, and other appropriate equitable relief as set forth under law.
II. LEGAL STANDARD
Rule 12(b)(1) Dismissal for Lack of Subject Matter Jurisdiction
Lack of subject matter jurisdiction may be raised at any time by any party, or by the court sua sponte. FED. R. CIV. P. 12(h)(3). Bank One Texas v. United States, 157 F.3d 397, 403 (5th Cir. 1998). Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for challenges to the subject matter jurisdiction of the district court to hear a case. FED. R. CIV. P. 12(b)(1). Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts. Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).
The court should consider the Rule 12(b)(1) jurisdictional issues before addressing any attack on the merits. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). This requirement prevents a court without jurisdiction from prematurely dismissing a case with prejudice. Id. The court's dismissal of a plaintiff's case because the court lacks subject matter jurisdiction is not a determination on the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction. Id.
In examining subject matter jurisdiction under Rule 12(b)(1), the district court is empowered to consider matters of fact which may be in dispute. Williamson v. Tucker, 645 F.2d 404, 413 (1981). Ultimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle plaintiff to relief. Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
Rule 12(b)(6) Dismissal for Failure to State a Claim
Motions to dismiss for failure to state a claim are appropriate when a defendant attacks the complaint because it fails to state a legally cognizable claim. FED.R.CIV.P.12(b)(6). The test for determining the sufficiency of a complaint under Rule 12(b)(6) was set out by the United States Supreme Court as follows: "[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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also Grisham v. United States, 103 F.3d 24, 25-26 (5th Cir. 1997).
Subsumed within the rigorous standard of the Conley test is the requirement that the plaintiff's complaint be stated with enough clarity to enable a court or an opposing party to determine whether a claim is sufficiently alleged. Elliott v. Foufas, 867 F.2d 877, 880 (5th Cir. 1989). Further, "the plaintiff's complaint is to be construed in a light most favorable to the plaintiff, and the allegations contained therein are to be taken as true." Oppenheimer v. Prudential Sec., Inc., 94 F.3d 189, 194 (5th Cir. 1996). This is consistent with the well-established policy that the plaintiff be given every opportunity to state a claim. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977). In other words, a motion to dismiss an action for failure to state a claim "admits the facts alleged in the complaint, but challenges plaintiff's rights to relief based upon those facts." Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1137 (5th Cir. 1992). Finally, when considering a Rule 12(b)(6) motion to dismiss for failure to state a claim, the district court must examine the complaint to determine whether the allegations provide relief on any possible theory. Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir. 1994).
Summary Judgment
Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," when viewed in the light most favorable to the non-moving party, "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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotations omitted). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 248. In making its determination, the court must draw all justifiable inferences in favor of the non-moving party. Id. at 255.
Once the moving party has initially shown "that there is an absence of evidence to support the nonmoving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant must come forward, after adequate time for discovery, with significant probative evidence showing a triable issue of fact. FED.R.CIV.P.56(e); State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th Cir. 1990).
Conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation are not adequate substitutes for specific facts showing that there is a genuine issue for trial. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428 (5th Cir. 1996) (en banc); SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir. 1993). To defeat a properly supported motion for summary judgment, the non-movant must present more than a mere scintilla of evidence. See Anderson, 477 U.S. at 251. Rather, the non-movant must present sufficient evidence upon which a jury could reasonably find in the non-movant's favor. Id.
III. DISCUSSION
Plaintiff alleges that he was subjected to discrimination based on race, national origin, ethnicity, and disability and that Defendant retaliated against him for pursuing his legal remedies. For the purposes of this Order, it is necessary to distinguish the actions and time-frames relevant to those claims. Plaintiff's Complaint alleges that in March of 1997 he filed a charge claiming that Defendant discriminated against him based on his race, national origin, and disability. [Pl's. Compl. ¶ 7]. The Court will categorize these claims in the following discussion as the 1997 Claims. Plaintiff asserts these claims on the premise that Defendant's alleged failure to respond to the directive of the administrative judge to accept or reject her decision on those 1997 charges entitles him to pursue his civil remedies in the instant lawsuit. [Pl's. Compl. ¶ 7]. Plaintiff also alleges that Defendant further discriminated against him based on his race, ethnicity, and disability, and retaliated against him for his lawsuit in 2000. [Pl's. Compl. ¶ 18]. These incidents are alleged to have occurred subsequent to Plaintiff's being restored to his position at work in February of 2002 as ordered by the judgment issued in that lawsuit. [Pl's. Compl. ¶ 18]. The Court will categorize these claims in the following discussion as the 2002 Claims. Where issues are relevant only to the 1997 claims or the 2002 claims, these claims will be analyzed separately in the following discussion, to be followed by discussion of those issues that are relevant to both categories of claims.Issues Relevant to Plaintiff's 1997 Claims The 1997 Title VII Civil Rights Claims
Plaintiff's previous lawsuit against Defendant in this Court in 2000 precludes him from raising in the instant lawsuit his 1997 claims under Title VII of the Civil Rights Act of 1964 for discrimination based on race, national origin, ethnicity, and disability. The preclusive effect of a prior federal court judgment is controlled by the doctrine of res judicata or claim preclusion. Ellis v. AMEX Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000). Generally, res judicata is an affirmative defense that must be pleaded, not raised sua sponte. FED.R.CIV.P. 8(c); Mowbray v. Cameron County, Tex., 274 F.3d 269, 281 (5th Cir. 2001). Two limited exceptions to this rule exist, the one relevant to this matter being that
where all of the relevant facts are contained in the record . . . [and] are uncontroverted, [a court] may not ignore their legal effect, nor may [a court] decline to consider the application of controlling rules of law to dispositive facts, simply because neither party has seen fit to invite [the court's] attention by technically correct and exact pleadings.Id. (internal quotation marks and citation omitted). The Fifth Circuit has clearly stated the test for determining whether a claim is barred by the doctrine:
For a prior judgment to bar an action on the basis of res judicata, the parties must be identical in both suits, the prior judgment must have been rendered by a court of competent jurisdiction, there must have been a final judgment on the merits and the same cause of action must be involved in both cases.Nilsen v. City of Moss Point, 701 F.2d 556, 559 (5th Cir. 1983) (citation omitted).
Furthermore, res judicata not only precludes litigation of claims and theories that have actually been litigated but also precludes those that could have been litigated in an earlier suit. Southmark Corp. v. Coopers Lybrand, 163 F.3d 925, 933 (5th Cir. 1999). The Fifth Circuit utilizes the transactional approach of the Restatement (Second) of Judgments in determining whether to apply res judicata. See In re Intelogic Trace, Inc., 200 F.3d 382, 386 n. 3 (5th Cir. 2000). According to this approach, the key question is not whether identical relief is requested or an identical theory asserted in the two lawsuits but, rather, "[w]hether [the] plaintiff bases the two actions on the same nucleus of operative facts." In re Howe, 913 F.2d 1138, 1144 (5th Cir. 1990) (internal quotation marks and citation omitted).
The record clearly establishes that Plaintiff and Defendant are the same in the 2000 lawsuit and the instant lawsuit. A jury trial was held in Plaintiff's 2000 lawsuit, Civil Action No. 5:00-cv-0136-C, and this Court entered judgment on the jury's verdict in favor of Plaintiff on January 9, 2002. Further, because the two actions involve the same nucleus of operative facts, and because the claims for discrimination based on race, national origin, ethnicity, and disability that Plaintiff seeks to litigate in the instant lawsuit could have been litigated in the 2000 lawsuit, the Court finds that the same cause of action was litigated in the 2000 lawsuit that Plaintiff seeks to have litigated in the instant case. Even though Plaintiff chose to litigate only a claim of retaliation in his 2000 lawsuit, in order to obtain relief, he was required to prove that the retaliation was the result of his having engaged in a protected activity under Title VII. The protected activity for which he claimed to have been retaliated against was his action in filing the charges of race, national origin, and disability discrimination in EEO Case No. 1G-761-0050-97. Plaintiff's retaliation claim could not exist apart from the charges of discrimination he made in EEO Case No. 1G-761-0050-97. Thus, the Court finds that a common nucleus of operative facts exists between Plaintiff's 1997 claims under Title VII for race, national origin, and disability discrimination and his 1997 claim for retaliation. Consequently, Plaintiff could have asserted those discrimination claims in the 2002 lawsuit along with his retaliation claim.
According to the file record in the 2002 lawsuit, of which this Court takes judicial notice, the parties stipulated at trial that the protected activity engaged in by Plaintiff was the filing of the charge in EEO Case No. 1G-761-0050-97.
Furthermore, the Court is not persuaded by Plaintiff's argument that Defendant's failure to respond to the directive of the administrative judge in EEO Case No. 1G-761-0050-97 permits him to raise claims in the instant lawsuit that were the basis of that EEO charge. To the extent Plaintiff would contend that he was prevented from raising these claims in the 2000 lawsuit because they were still pending before the administrative court at the time and therefore he had not exhausted his administrative remedies, the Court notes that failure to completely exhaust the administrative process does not preclude raising a disability discrimination claim in a lawsuit if, before filing suit, at least 180 days have passed since initiation of the administrative process. 42 U.S.C. § 2000e-16(c); Miller v. U.S. Postal Serv., 825 F.2d 62, 64 (5th Cir. 1987). The fact that an administrative process exists for Title VII claims does not "undercut the application of res judicata . . . [or] militat[e] against the application of well-settled claim preclusion principles." Davis v. Dallas Area Rapid Transit, 2003 WL 21501899 *3 (N.D. Tex. 2003). Plaintiff was free to raise, and therefore should have raised, the 1997 race, national origin, and disability discrimination claims in the 2000 lawsuit along with the retaliation claim he did raise. He is precluded by application of res judicata from doing so now in the instant lawsuit.
The 1997 ADA Claim
Plaintiff brings a disability claim under the ADA of 1990, 42 U.S.C. § 12101 et seq. A federal employee's only remedies for complaints of disability discrimination are those available under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., or the Rehabilitation Act, 29 U.S.C. § 794, et seq. Brown v. Gen. Servs. Admin., 425 U.S. 820, 835, 96 S.Ct. 1961, 1969, 48 L.Ed.2d 402 (1976); Prewitt v. U.S. Postal Serv., 662 F.2d 292, 304 (5th Cir. 1981). Employees of the federal government may not sue the United States under the ADA. 42 U.S.C. § 12111(5)(B) (stating that "[t]he term 'employer' does not include the United States [or] a corporation wholly owned by the government of the United States"); Brown, 425 U.S. at 835. Congress clearly established that the United States Postal Service is part of the federal government. 39 U.S.C. § 201 (stating "[t]here is established, as an independent establishment of the executive branch of the Government of the United States, the United States Postal Service"); Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003). Plaintiff's disability claim under the ADA must be dismissed.
Plaintiff's Brief in Support of Plaintiff's Response to Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment requests the Court instead to recognize Plaintiff's disability discrimination claim as brought under the Rehabilitation Act of 1973. However, pursuant to the Order issued by this Court on July 31, 2003, all motions to amend the parties' pleadings had to be filed by 3:00 p.m. on October 15, 2003. Plaintiff's request for the Court to recognize his ADA claim as being brought under the Rehabilitation Act of 1973 was included in his Response filed on March 31, 2004. Even were the Court to construe Plaintiff's request as a properly submitted motion for leave to amend his pleadings, he missed the deadline imposed by this Court by more than five months. In deciding whether to allow an amendment, this Court "may consider such factors as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment." In re Southmark Corp., 88 F.3d 311, 314 (5th Cir. 1996). Plaintiff provides this Court with no justification for his delay, and this Court finds no legitimate reason to extend the deadline for Plaintiff. Further, "a litigant's failure to assert a claim as soon as he could have is properly a factor to be considered in deciding whether to grant leave to amend." Carson v. Polley, 689 F.2d 562, 584 (5th Cir. 1982). All relevant facts were known to Plaintiff before the deadline, and Plaintiff's counsel should have been well aware of the fact that the law does not permit federal employees to bring suit under the ADA. The Court finds the delay particularly unjustifiable because Plaintiff did not assert the claim until making his response to a motion to dismiss or for summary judgment.
Plaintiff's request for the Court to recognize his ADA claim as a claim under the Rehabilitation Act of 1973 does not comply with requirements for amending pleadings under Federal Rule of Civil Procedure 15(a). Plaintiff neither requested leave of the Court to amend nor did he get the written consent of Defendant to do so. The Court notes that, though the request to amend is formally deficient, it would be improper for the Court to deny leave to amend on that basis alone. See U.S. ex rel Willard v. Human Health Plan, 336 F.3d 375, 387 (5th Cir. 2003).
In addition, the Court notes the ultimate futility of such an amendment. Even were this Court to recognize Plaintiff's 1997 disability discrimination claim as brought under the Rehabilitation Act of 1973, those claims would be subject to bar by the doctrine of res judicata and by the applicable statute of limitations in any event. The Rehabilitation Act of 1973 provides that
The principles for applying res judicata to the 1997 ADA claims are the same as outlined supra in discussing the 1997 Title VII claims, since the ADA is subject to the same administrative process that governs Title VII claims. See Miller, 825 F.2d at 64. Although Plaintiff's 1997 Title VII claims would also be subject to the limitations bar, this Court did not raise the issue of limitations in the context of the 1997 Title VII claims out of deference to the general rule that a court should not raise affirmative defenses sua sponte. See Warnock v. Pecos County, Tex., 116 F.3d 776, 778 (5th Cir. 1997). Dismissal based on a waivable affirmative defense of limitations (where no recognized exception applies as in the case of res judicata) would be inappropriate. However, the Court raises sua sponte the issue of limitations regarding the 1997 ADA claims, not in the context of dismissal, but in response to Plaintiff's request for leave of the Court to amend the Complaint. The Court is of the opinion that it is appropriate to do so in addressing the ultimate futility of amending Plaintiff's 1997 claims.
[t]he remedies [and] procedures . . . set forth in section 717 of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000e-16) . . . shall be available, with respect to any complaint under section 791 of this title, to any employee . . . aggrieved by the final disposition of such complaint, or by the failure to take final action on such complaint.29 U.S.C. § 794a(a)(1). As noted supra, § 717 of the Civil Rights Act of 1964 does not provide a limitations period. See 42 U.S.C. § 2000e-16. The general federal statute of limitations does not apply to the Rehabilitation Act of 1973, since it only applies to statutes enacted after December 1, 1990. 28 U.S.C.A. § 1658; Hickey v. Irving Indep. Sch. Dist., 976 F.2d 980, 982 (5th Cir. 1992). Consequently, this Court is required to apply "the most appropriate or analogous state statute of limitations." Goodman v. Lukens Steel Co., 482 U.S. 656, 660, 107 S.Ct. 2617, 2620, 96 L.Ed.2d 572 (1987). The Fifth Circuit has determined that the two-year statute of limitations for personal injuries provided by Texas Civil Practice and Remedies Code § 16.003(a) applies to claims under the Rehabilitation Act of 1973 filed in federal courts in Texas. Hickey, 976 F.2d at 983.
Therefore, even though Plaintiff claims that Defendant failed to respond to the administrative judge's directive to accept or reject her decision in EEO Case No. 1G-761-0050-97, he nevertheless had two years from the time his cause of action accrued within which to file his lawsuit for those claims that were the subject of that 1997 EEO charge. Under federal law, a cause of action arises "when the plaintiff knows or has reason to know of the injury which is the basis of the action." Jackson v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992). Plaintiff's cause of action for discrimination that occurred in 1997 would have accrued no later than the date he filed his EEO charge in March of that year, and the limitations period on those claims has long since run out, even considering any tolling provisions that might apply under the circumstances.
Defendant claims to have adopted the administrative judge's recommended finding of no discrimination in an October 8, 2002 Notice of Final Action but has not produced any evidence to support that claim. For purposes of a motion to dismiss, this Court must take Plaintiff's allegation of no response as true under the circumstances.
The Court is aware that federal courts applying a state statute of limitations should give effect to the state's tolling provisions as well. Jackson, 950 F.2d at 265. Texas courts have held that "as a general rule, where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right." Id. Even were this Court to toll limitations on Plaintiff's 1997 claims while he pursued his administrative remedy as required under the Rehabilitation Act of 1973, the period for which tolling would be appropriate would be only until Plaintiff was no longer prevented from pursuing his own legal remedies in civil court, which would have occurred 90 days after receiving his notice of final action on his charge or 180 days after filing his initial EEO charge if no final action was taken during that time. See 42 U.S.C. § 2000e-16(c) (as applied to the Rehabilitation Act of 1973 by 29 U.S.C. § 794a(a)(1)); Miller v. U.S. Postal Serv., 825 F.2d 62, 64 (5th Cir. 1987) (holding that under Title VII provisions in § 2000e-16(c) governing private civil actions for Rehabilitation Act claims, failure to completely exhaust the administrative process does not preclude raising a disability discrimination claim in a lawsuit if, before filing suit, at least 180 days have passed since initiation of the administrative process). Regardless of whether or not Plaintiff ever received notice of a final action on his EEO charge, tolling would stop and the limitations period would begin to run again 180 days after he filed his EEO charge on March 7, 1997, and Plaintiff's 1997 claims would have been barred after October of 1999 at the latest. The limitations period on Plaintiff's claim would not continue to be tolled simply because Defendant has not responded to the directive of the administrative judge's decision on Plaintiff's EEO charge. Plaintiff's 1997 claims under the ADA should be dismissed for failure to state a claim, and his request to amend his Complaint to assert those claims under the Rehabilitation Act of 1973 should be denied because of undue delay and ultimate futility.
Issues Relevant to Plaintiff's 2002 Claims The 2002 ADA Claims
Any claims Plaintiff alleges for discrimination based on his disability due to depression, beyond those related to his 1997 claims, are not allowed under the ADA for the same reasons discussed in dismissing those 1997 ADA Claims above: A federal employee's only remedies for complaints of disability discrimination are under Title VII or the Rehabilitation Act. See Brown, 425 U.S. at 835; Prewitt, 662 F.2d at 304. For the same reasons as stated earlier, other than those reasons related to limitations, this Court finds no justification to allow Plaintiff to amend his pleadings to assert these later disability claims under the Rehabilitation Act of 1973.
In addition, Plaintiff has stated no facts in his Complaint that would, if proved, state a claim for disability discrimination, beyond those related to the dismissed 1997 claims and some in 1998 for which he could have been granted relief through his earlier 2000 lawsuit. "In order to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere conclusory allegations." Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989). "Under Rule 12(b)(6), a claim maybe dismissed when a plaintiff fails to allege any set of facts in support of his claim which would entitle him to relief" and "the court accepts as true the well-pled factual allegations in the complaint, and construes them in the light most favorable to the plaintiff." Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002). Any allegations in Plaintiff's Complaint that Defendant discriminated against him based on his disability, other than those from 1997 or 1998, are only conclusory at best, lacking even the most minimal factual basis, and as such are insufficient to state a claim for any relief that would be available in the instant lawsuit.
In discussing his claim for disability discrimination in his Response, Plaintiff references a letter from his physician alerting Defendant of Plaintiff's depression. [Pl's. Resp. at 18, referencing App. Ex. E at 20]. However, neither in his Response nor in the physician's letter are even the barest of facts stated that would suggest that Plaintiff was discriminated against based on his disability.
The 2002 Title VII Discrimination Claims
Plaintiff alleges that he was subjected to discrimination based on race, ethnicity, and disability. He also alleges that he was subjected to a hostile workplace and suffered constructive discharge. A court has no jurisdiction to consider Title VII claims for which the plaintiff has not exhausted administrative remedies. 42 U.S.C. § 2000e-5(f)(1); Nat'l Ass'n of Gov't Employees v. City Public Serv. Bd. of San Antonio, 40 F.3d 698, 711 (5th Cir. 1994). The scope of a Title VII complaint is limited to the scope of the charges made in the EEO complaint and the investigation that might reasonably be expected to grow out of that complaint. Thomas v. Texas Dep't of Criminal Justice, 220 F.3d 389, 395 (5th Cir. 2000). Plaintiff only charged retaliation in EEO Case No. 1G-761-0196-02. [App. to Def's. Mot. to Dismiss or Alt. Mot. for Summ. J., at 44]. Plaintiff failed to allege discrimination based on race, ethnicity, and disability or hostile workplace or constructive discharge in his EEO charge. Because such allegations are not necessarily encompassed in his retaliation claim or the investigation that could reasonably be expected to arise out of that claim, the scope of Plaintiff's lawsuit cannot be expanded to include discrimination based on race, ethnicity, and disability, or hostile workplace or constructive discharge. See id. at 395; Lee v. Kroger Co., 901 F. Supp. 1218, 1224 (S.D. Tex. 1995) (precluding Plaintiff from maintaining additional charge of racial discrimination when he only marked the "retaliation" box in his initial EEOC charge and only asserted facts to support retaliation claim in that charge). Therefore, Plaintiff has failed to exhaust his administrative remedies for those claims not raised in his EEO charge. This Court must dismiss, for lack of subject matter jurisdiction, Plaintiff's complaint of discrimination based on race, ethnicity, and disability, or hostile workplace or constructive discharge, arising from his charges in EEO Case No. 1G-761-0196-02, filed on October 4, 2002, and pursuant to 42 U.S.C. § 2000e, et seq. The 2002 Retaliation Claim
In addition, the Final Agency Decision ("FAD") summarizing the results of the investigation in EEO Case No. 1G-761-0196-02, issued on February 28, 2003, only lists retaliation as the type of discrimination alleged and investigated. [App. to Pl's. Resp. at 5-8]. If an investigation has already been completed, the scope of the lawsuit should be limited to the scope of the actual investigation. Nat'l Ass'n of Gov't Employees, 40 F.3d at 712 (citation omitted). The Court is permitted to examine evidence such as the FAD and the initial EEO charge in order to satisfy itself that it has subject matter jurisdiction without converting this motion to dismiss into a motion for summary judgment. See infra, note 11.
To the extent Plaintiff's claims of hostile workplace and constructive discharge are relevant elements of his retaliation claim, and not independent bases for discrimination claims, they are discussed in the section addressing the 2002 retaliation claim immediately following.
Although Defendant moved for dismissal for failure to state a claim, this Court must first satisfy itself that it has subject matter jurisdiction before determining the validity of any claim., and may do so sua sponte. FED.R.CIV.P. 12(h)(3); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999); Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994). The Court may weigh the evidence before it in order to satisfy itself that it has subject matter jurisdiction over the case. MDPhysician Assoc., Inc. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir. 1981).
Plaintiff claims that Defendant retaliated against him, subsequent to his return to work in 2002, because of the 2000 lawsuit he had filed and won against Defendant. For discrimination claims, the Fifth Circuit applies the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Blow v. City of San Antonio, 236 F.3d 293, 296 (5th Cir. 2001). To survive summary judgment in a Title VII retaliation case, a plaintiff is required to establish a prima facie case (1) that he engaged in a protected activity; (2) that an adverse employment action occurred; and (3) that a causal link existed between the protected activity and the adverse action. Raggs v. Miss. Power Light Co., 278 F.3d 463, 471 (5th Cir. 2002). If the plaintiff establishes a prima facie case of discrimination, the burden then shifts to the employer to produce evidence that its actions were justified by a legitimate, nondiscriminatory reason. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed.2d 145 (2000); Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir. 2001). Finally, once the defendant has met his burden of producing a legitimate, nondiscriminatory reason, the burden then shifts back to the plaintiff to show by a preponderance of the evidence that the employer's nondiscriminatory explanation is pretextual. Reeves, 530 U.S. at 143; Aldrup, 274 F.3d at 286.
Plaintiff's filing of an internal discrimination complaint is a protected activity. See Fierros v. Texas Dep't of Health, 274 F.3d 187, 194 (5th Cir. 2001). However, "the mere fact that some adverse action is taken after an employee engages in some protected activity will not always be enough for a prima facie case." Raggs, 278 F.3d at 471. In establishing whether an adverse employment action occurred, this Court is only concerned with ultimate employment decisions. Walker v. Thompson, 214 F.3d 615, 629 (5th Cir. 2000). "Ultimate employment decisions include acts such as hiring, granting leave, discharging, promoting, and compensating." Burger v. Central Apartment Mgmt., Inc., 168 F.3d 875, 878 (5th Cir. 1999) (internal quotations omitted). Employment actions and decisions that are not "ultimate employment decisions" do not constitute "adverse employment actions" for purposes of establishing a prima facie case of discrimination. Ackel v. Nat'l Communications, Inc., 339 F.3d 376, 385 (5th Cir. 2003). Activities which are not ultimate employment decisions include: ostracism by coworkers, loss of some job duties, formal discipline, rude treatment by employer, verbal reprimands, threats of potential dismissal, criticism of work or conduct, refusal to consider employee's input in business decision, and low evaluations that could lead to missed pay increases. See Hernandez v. Crawford Bldg. Material Co., 321 F.3d 528, 532 n. 2 (5th Cir. 2003) (gathering authorities). Hostility from fellow employees and resulting anxiety do not constitute adverse employment actions. Landgraf v. USI Film Prods., 968 F.2d 427, 431 (5th Cir. 1992).
Plaintiff claims that the Defendant's alleged failure to restore him to appropriate pay and benefits, along with the delay in reinstating him to his former position, constitutes retaliation. However, the court granted Defendant a 30-day extension in which to comply with the judgment, and the evidence before this Court indicates that Defendant timely complied. Furthermore, should Plaintiff have been entitled to such benefits, the proper course of action would have been to seek redress in a motion to enforce judgment, not to bring a Title VII claim alleging retaliation.
It should also be noted that Plaintiff did not mention Defendant's alleged failure to implement the Court's judgment in his EEO charge.
Plaintiff cites three other particular incidents that he alleges amounted to an adverse employment decision: first, being reprimanded for walking through the green door exit; second, the issuance of the LOW; and third, the first meeting Plaintiff attempted to have with Mr. Stafford when Mr. Stafford allegedly asked Plaintiff to leave his office without having heard Plaintiff's complaint. None of these incidents rises to the severity necessary to constitute an ultimate adverse employment decision. See Mattern v. Eastman Kodak Co., 104 F.3d 702, 708 (5th Cir. 1997) (supervisor's reprimands do not amount to an adverse employment action). Although these actions may have increased the chance that Plaintiff would eventually suffer an adverse employment decision, they did not "rise above having mere tangential effect on a possible future ultimate employment decision." Id.
Plaintiff also alleges that he was constructively discharged. Constructive discharge can constitute an adverse employment action and thus can fulfill the second element of a prima facie case of retaliation. See Landgraf v. USI Film Prods., 968 F.2d 427, 431 (5th Cir. 1992). In order to establish constructive discharge, a plaintiff must establish that "working conditions were so intolerable that a reasonable employee would feel compelled to resign." Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). The resignation must have been reasonable under all the circumstances. Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir. 1997). Constructive discharge requires a greater degree of harassment than does a hostile environment claim. Kinney Shoe, 237 F.3d at 566. "Discrimination alone, without aggravating factors, is insufficient for a claim of constructive discharge." Id. In Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 711-12 (5th Cir. 2001), the 5th Circuit laid out a list of six factors the court should take into consideration in a constructive discharge claim: 1) demotion; 2) reduction in salary; 3) reduction in job responsibilities; 4) reassignment to menial or degrading work; 5) badgering, harassment, or humiliation calculated to encourage resignation; or 6) offers of early retirement. Id.
Plaintiff has failed to satisfy the adverse employment action element of his prima facie case through any competent summary judgment evidence showing constructive discharge. This Court determines that he has produced no evidence that would allow a jury to conclude that his decision to resign was reasonable under any of the circumstances — his reprimand, LOW, or being asked to leave Mr. Stafford's office — whether considered as individual incidents or considered collectively under the guise of a hostile work environment. Since Plaintiff failed to produce evidence of anything that would fulfill the second element, this Court finds it unnecessary to discuss whether or not Plaintiff fulfilled the third element of a prime facie case of retaliation. Plaintiff's prima facie case for retaliation fails and summary judgment for Defendant on that claim is appropriate.
The Court has already determined that it does not have jurisdiction for Plaintiff's claim of hostile work environment discrimination. See supra at 19-20. Regardless, hostile work environment, without more, cannot support a prima facie case for retaliation. Plaintiff must show the additional aggravating factor that his treatment was so intolerable that a reasonable employee would feel compelled to resign. See Kinney Shoe, 237 F.3d at 566.
Issues Relevant to Both Plaintiff's 1997 and 2002 Claims The Discrimination Claims Under Section 1981
Plaintiff attempts to bring a claim of discrimination against the Postal Service pursuant to the Civil Rights Act of 1991, 42 U.S.C. § 1981. However, this statute excludes discrimination actions against the federal government. See Henrickson, 327 F.3d at 444. A federal employee's only remedies against the government for claims of discrimination must arise under either Title VII or the Rehabilitation Act. See Brown, 425 U.S. at 835; Prewitt, 662 F.2d at 304. Plaintiff's 1997 and 2002 claims for discrimination under 42 U.S.C. § 1981 must be dismissed.
IV. CONCLUSION
Having considered all the papers, pleadings, arguments, and evidence, and for the reasons stated above, the Court finds that Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment, should be GRANTED.
IT IS THEREFORE ORDERED that Plaintiff's claims for discrimination under 42 U.S.C. § 1981; the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.; and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., are hereby DISMISSED with prejudice.
IT IS FURTHER ORDERED that summary judgment is hereby GRANTED for Defendant and against Plaintiff on Plaintiff's claims for retaliation pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., and that Plaintiff take nothing thereon.
SO ORDERED.