Summary
dismissing plaintiff's Title VII retaliation claim that was based on the EEO's refusal to investigate or clear up the mix up of plaintiff's prior EEO cases
Summary of this case from Burrill v. DonahoeOpinion
File No. 5:02-CV-18
May 22, 2003
OPINION
Plaintiff Gregg Mayes, a United States Postal Service employee for over 20 years, filed this action against John E. Potter, Postmaster General, alleging that his employer retaliated against him for his prior success in a Title VII reverse discrimination lawsuit against the Postal Service. This matter is currently before the Court on Defendant's motion for summary judgment.
I.
Plaintiff alleges in his amended complaint that after he filed a Title VII suit alleging reverse discrimination against Defendant, Defendant's employees persisted in retaliating against him for having exercised his rights under Title VII. Plaintiff has listed ten actions allegedly taken by Defendant in retaliation for Plaintiff's protected activity. (Amended Complaint ¶ 13).
Defendant has filed a motion for summary judgment addressing each of Plaintiff's ten allegations. Defendant contends that Plaintiff failed to timely file a district court complaint regarding the selection of Jamie Beckwith (Am. Compl. ¶ 13A); Plaintiff failed to exhaust his administrative remedies regarding a lateral transfer, Sunday work, and changing his work schedule (Am. Compl. ¶¶ 13B, C E); Plaintiff failed to state a claim upon which relief can be granted regarding the failure to investigate his EEO complaint (Am. Compl. ¶ 13D); and the facts do not support Plaintiffs remaining allegations. (Am. Compl. ¶¶ 13F, G, H, I, and J).
II.
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If Defendant carries his burden of showing there is an absence of evidence to support a claim, then Plaintiff must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986).
"On summary judgment, all reasonable inferences drawn from the evidence must be viewed in the light most favorable to the parties opposing the motion." Hanover Ins. Co. v. American Engineering Co., 33 F.3d 727, 730 (6th Cir. 1994) (citing Matsushita, 475 U.S. at 586-88). Nevertheless, the mere existence of a scintilla of evidence in support of Plaintiffs position is not sufficient to create a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for Plaintiff. Id. See generally, Street v. J. C. Bradford Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).
III.
Plaintiff alleges that Defendant retaliated against him by selecting Jamie Beckwith instead of Plaintiff for a position for which Plaintiff was the most qualified candidate. (Am. Compl. ¶ 13 A). Plaintiff has clarified that this claim involves Defendant's failure to place him in the Associate Supervisor Program ("ASP"), Customer Service track. (Pl.'s Resp.at 2).
Defendant contends that Plaintiff failed to timely file his district court complaint regarding the selection of Jamie Beckwith for the associate customer service position. Federal employees are required to file a civil complaint within 90 days of receipt of notice of final action taken by the agency. 42 U.S.C. § 2000e-16(c). See also Burzynski v. Cohen, 264 F.3d 611, 619 (6th Cir. 2001); Forest v. U.S. Postal Service, 97 F.3d 137, 139 (6th Cir. 1996). The final agency decision on this issue was rendered on May 9, 1999, and Plaintiff did not file this action until February 6, 2002, long after expiration of the 90-day time period.
Plaintiff does not deny that his complaint was not timely filed. He argues, however, that the untimeliness should be excused on the basis of equitable tolling caused by Defendant's misnumbering and miscommunication. The dispute centers around the EEO case number assigned to this complaint. Plaintiff alleges that because his EEO complaint regarding Defendant's selection of Jamie Beckwith for the customer service position bore Case No. 0139, and because the final agency decision bore Case No. 0125, he reasonably believed that Defendant never processed his complaint in Case No. 0139. Thus, he contends, even though his district court action is untimely, the Court should equitably toll the applicable limitations period.
Defendant has produced evidence that on April 6, 1998, Plaintiff signed a form entitled "Information for Precomplaint Counseling" alleging retaliation on February 23, 1998, when "I became aware of who was chosen ahead of me as an ASP candidate for the Lansing customer services position." (Def. Exh. A). On September 12, 1998, Plaintiff signed an EEO discrimination complaint alleging: "Even though I was better qualified through my supervisory and leadership experience and scored higher on my written test, I was given inferior scores on an inview [sic] and therefore not selected for assoc. supv., cust. serv." (Def. Exh. B). This complaint bears Case No. 4J493013998 ("No. 0139"). By letter dated November 2, 1998, Defendant advised Plaintiff that his complaint of discrimination, EEO Case No. 4-J-493-1025-98 ("No. 0125"), filed on September 14, 1998, regarding an incident on February 23, 1998, when he was not selected for the associate supervisor program, had been accepted for investigation. (Def. Exh. C). By certified letter dated November 12, 1998, Plaintiff was notified that he needed to provide an affidavit in connection with EEO Case No. 0125 and to answer the questions attached relating to the incident on February 23, 1998. (Def. Exh. D). The EEO investigation report on Case No. 0125 reflects that the investigation was in response to Plaintiff's complaint that he was not selected for the associate supervisor, customer service position. (Def. Exh. E). A copy of the investigative file on Case No. 0125 was sent to Plaintiff by certified mail on February 10, 1999. (Def. Exh. F). Defendant issued its final agency decision in Case No. 0125 on May 7, 1999. That decision states in its first paragraph that "[t]he complainant alleged discrimination on the basis of retaliation for prior EEO activity when, on February 23, 1998, he was not selected for Associate Supervisor Customer Service position." (Def. Exh. H). This final agency decision clearly addressed Plaintiff's complaint that he was denied the customer service position. The final agency decision was sent to Plaintiff by certified mail on May 11, 1999. (Def. Exh. I).
The doctrine of equitable tolling is to be applied sparingly. Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001). In Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988), the Sixth Circuit identified five factors to be considered in determining the appropriateness of equitably tolling a statute of limitations:
(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.Dunlap, 250 F.3d at 1008 (citing Graham-Humphreys v, Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000)). Accord, Weigel v. Baptist Hosp., 302 F.3d 367, 376 (6th Cir. 2002).
These factors do not weigh in favor of equitable tolling in this case. Plaintiff was notified of the time frame for filing a civil action in the final agency decision. His assertion that he was confused about the EEO case number indicates either unreasonableness or lack of diligence. Plaintiff had multiple communications from the Defendant on Case No. 0125 that referenced his complaint about the incident on February 28, 1998, and the customer service position. Plaintiff could not reasonably remain ignorant of the fact that his complaint regarding the customer service position was being processed under Case No. 0125 rather than under Case No. 0139. Accordingly, application of the doctrine of equitable tolling would not be appropriate in this case. The Court will accordingly grant the government's motion to dismiss Plaintiff's allegation regarding the selection of Jamie Beckwith for the customer service position.
IV.
Plaintiff alleges that Defendant retaliated against him by denying him a lateral transfer in August 1998, by forcing him to work Sundays despite an agreement to accommodate his religious convictions, and by arbitrarily changing his work schedule to harass him. (Amended Complaint ¶¶ 13B, C E). Defendant contends that Plaintiff failed to exhaust his administrative remedies regarding these allegations. Defendant has presented evidence that although Plaintiff initiated administrative claims as to each of these alleged discriminatory acts, he failed to pursue them as formal complaints.
Prior to pursuing a Title VII action in federal court, federal employees are required to first exhaust their administrative remedies. Brown v. General Serv. Admin., 425 U.S. 820, 832 (1976); 42 U.S.C. § 2000e-16. An employee is required first to consult with a counselor, 29 C.F.R. § 1614.105, and then to file a complaint with the agency, 29 C.F.R. § 1614.106.
Defendant has presented evidence that (he Postal Service maintains EEO files of past and present EEO complaints. If an individual initiates contact with a counselor but does not file an administrative complaint, the file is destroyed after one year. (Decl. of Shirley Konczak). Defendant does not have any record that Plaintiff ever filed a formal complaint concerning his allegation of a lateral transfer in August 1998. Id. Plaintiff was informed by letter dated November 27, 1998, that his complaint regarding Sunday work could not be resolved informally and that he had a right to file a formal complaint. Plaintiff never filed a formal complaint regarding this allegation. (Def. Exhs. J, K L). Plaintiffs claim that Defendant arbitrarily changed his work schedule to harass him is based upon an incident in March 1999 when Mike Medlock changed the hours of Plaintiffs work assignment and changed Plaintiff's days off from Saturdays and Sundays to Sundays and Wednesdays. (Pl. dep. at 142-43). There is no record that these allegations were ever administratively exhausted. These allegations were not listed among the issues accepted for investigation in Case No. 4-J-493-0006-01 filed on January 18, 2001, and neither were they listed in Plaintiff's March 6, 2001, affidavit in support of complaint of discrimination. (Def. Exhs. R T).
Plaintiff does not challenge Defendant's assertion that he failed to administratively exhaust these allegations. Plaintiff contends, however, that these allegations should nevertheless be considered by this Court because they demonstrate a pattern of retaliation that occurred in conjunction with events related to his federal lawsuit. In support of this contention Plaintiff cites Nat'l RR Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
In Morgan the Supreme Court stated that an employee is not barred from using prior acts "as background evidence in support of a timely claim." Id. Morgan did not, however, alter the familiar principal that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id.
In this case Plaintiff challenged each of these alleged discriminatory acts as a distinct administrative claim. He did not pursue any one of them in a formal complaint. It is not sufficient for Plaintiff to assert that these complaints demonstrate a pattern of retaliation. A judicial complaint must be limited "to the scope of the EEOC investigation reasonably expected to grow out of the charge of discrimination." Ang v. Procter Gamble Co., 932 F.2d 540, 545 (6th Cir. 1991) (quoting EEOC v. Bailey Co., Inc., 563 F.2d 439, 446 (6th Cir. 1977)). If Plaintiff were allowed to bring these claims, he would have successfully avoided the administrative exhaustion requirement. This Court will not permit a plaintiff to bootstrap discrete allegations which he failed to exhaust into a retaliation action by re-casting them as part of a pattern. The Court will accordingly grant the government's motion to dismiss Plaintiff's allegations regarding lateral transfer, Sunday work and changing work schedule.
V.
Plaintiff alleges that Defendant retaliated against him by "[f]ailing to investigate his EEO complaints, despite repeated requests and inquiries." (Amended Complaint ¶ 13D). Defendant contends that Plaintiff's allegation of failure to investigate EEO complaints fails to state a claim upon which relief can be granted.
Plaintiff's failure to investigate claim arises out of the following facts. On July 7, 2000, Plaintiff wrote a letter to the Postal Service complaining that three of his complaints (1-J-491-0008-98, 4-J-493-0139-98, and 4-J-493-0007-99) had not been fully processed by the EEO off ice. (Pl. Exh. 9). In a letter dated August 15, 2000, the Postal Service responded to Plaintiffs inquiry by stating that final agency decisions had been issued in two of his complaints (1-J-491-0008-98 and 4-J-493-0125-98) and Plaintiff did not appeal the agency decisions. The Postal Service stated that in 4-J-493-0007-99 Plaintiff was provided with counseling and was given a right to file notice, but Plaintiff failed to file a formal complaint. The Postal Service stated that it did not have a complaint reflecting case number 4-J-493-0139-00. (Def. Exh. L). On September 21, 2000, Plaintiff signed a form entitled "Information for Precomplaint Counseling" in which he alleged retaliation on approximately August 16-17, 2000, when "I received a letter from the EEO investigative office of the GR Mich. Dist. (signed Barbara Davis) refusing to investigate or clear up the mix up of my EEO cases." (Def. Exh. M). Plaintiff filed a formal complaint regarding failure to investigate on January 19, 2001, Case No. 4-J-493-0004-01. (Def. Exh. N). On January 29, 2001, the Postal Service issued a "dismissal of spin off issue" in Case No. 4-J-493-0004-01. (Def. Exh. O). The Postal Service noted that it had responded to Plaintiff's inquiry about the status of his EEO cases in the August 15, 2000, letter, and that Plaintiffs failure to investigate allegation could not be processed as a separate complaint because it falls within 29 C.F.R. § 1614. 107(a)(8) which requires an agency to dismiss a complaint which alleges dissatisfaction with the processing of a previously filed EEO complaint. (Def. Exh. O).
Defendant contends that Plaintiff has failed to state a claim upon which relief can be granted because Plaintiff's failure to investigate claim is an improper attempt to resurrect old EEO cases in which he failed to file a timely complaint in district court. This Court agrees. In Terry v. EEOC, 21 F. Supp.2d 566 (E.D. Va. 1998), the plaintiff filed a complaint against the EEOC claiming that it had failed to adequately investigate his claims. The court dismissed the action for failure to state a claim. The court noted that "[c]ourts have uniformly held that no cause of action exists with respect to the EEOC's handling of discrimination claims because Congress has given plaintiffs a right to file a de no vo lawsuit against the allegedly discriminating employer." Id. at 567 (citing cases). See also Belin v. EEOC, 1997 U.S. Dist. Lexis 12072 (E.D. Mich. 1997) (dismissing failure to investigate claim against EEOC).
Plaintiff contends that these cases are inapposite because Plaintiff is not suing the EEOC, but his employer. The Court does not find this distinction material. In cases involving claims against federal agencies, the agency itself is required to conduct the EEO investigation in lieu of the EEOC. 29 C.F.R. § 1614. 102. Thus, in failure to investigate cases, the agency stands in the same position as the EEOC. Plaintiff's remedy, when he was unhappy with the processing of his administrative claim, was to file a lawsuit challenging the agency's decision. "[A]n employee . . . if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action." 42 U.S.C. § 2000e-16(d). Plaintiff does not have a separate claim against the agency for failure to investigate, and Plaintiff cannot resurrect a claim he failed to pursue in a timely fashion by recasting it as a failure to investigate claim.
Moreover, Plaintiffs claim is untimely. The final agency action, the "dismissal of spin off issue," was taken on January 29, 2001. (Def. Exh. O). Plaintiffs civil action was required to be brought within 90 days of the final agency action. 29 C.F.R. § 1614. 407(a). Plaintiffs civil complaint, which was not filed until February 6, 2002, was not timely. Accordingly, the Court will grant the government's motion to dismiss Plaintiff's failure to investigate claim.
VI.
Defendant contends that it is entitled to summary judgment on the remaining claims regarding denial of employee awards, arbitrarily cancelling annual leave, forcing Plaintiff to work outside his medical restrictions, denying Plaintiff equal training opportunities and other instances of retaliation (Amended Complaint ¶¶ 13F, G, H, I J), because none of the incidents rise to the level of an adverse employment action.
These allegations were the subject of Plaintiffs EEO Case No. 4-J-493-0006-01. (Def. Exh. Q). The final agency decision denying this complaint was issued on November 9, 2001. Plaintiffs civil action, which was filed on February 6, 2002. In contrast to the allegations discussed above, Plaintiffs complaint was timely as to these claims.
Plaintiff's complaint regarding employee awards concerns the Defendant's failure to grant awards in the amounts requested by Plaintiff to employees he supervised. (Pl. dep at 144-47). Defendant's decision had no effect on Plaintiff's pay, benefits, or duties. Plaintiff's allegation that Defendant cancelled his annual leave in 2000 concerns not a denial of annual leave, but only the requirement that he reschedule two of the four weeks he had requested to take off during the summer months. (Pl. dep. at 98-101).
Plaintiff's complaint that he was forced to work outside his medical restrictions from September to November 2000 concerns his assignment to a supervisory position at the Delta unit that caused him stress. Plaintiff testified at his deposition that at the time of his assignment in June 2000 he had not presented the Postmaster with any evidence of his medical restrictions. (Pl. dep at 61). Plaintiff was on sick leave from July 10, 2000 through September 25, 2000. Plaintiffs doctor returned him to work by letter dated September 18, 2000, with a limitation of not working over 45 hours per week with two consecutive off days and being placed in a position that had responsibilities and tasks to which he was accustomed. (Pl. dep. at 63). Plaintiff returned to the Delta unit on September 26, 2000 and worked there for approximately one month. Plaintiff does not assert that Defendant violated the doctor's work-time restrictions. Instead, Plaintiff contends that his adjustment disorder probably worsened during his time at Delta unit because of the chaos and disorganization of the unit. Plaintiff acknowledges, however, that he did not make this known to his supervisor. (Pl. dep. at 64).
Plaintiffs complaint regarding training concerns the location of the training rather than a claim that he was denied training. (Pl. dep. at 90-93). The other occurrences Plaintiff identified as retaliatory were a warning that he would be disciplined if he engaged in certain activity (Pl. dep. at 65, 70), a statement from his supervisor that he would check to see Plaintiffs transfer was validly approved (Pl. dep. at 95), and his station's unexpected receipt of more unsorted mail than usual (Pl. dep. at 75-85).
In order to prove a prima facie case of Title VII retaliation a plaintiff must prove that:
(1) she engaged in activity protected by Title VII; (2) this exercise of protected rights was known to defendant; (3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment.Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir. 2000).
In order to make out a prima facie case of retaliation under Title VII a plaintiff must identify a "materially adverse" change in the terms and conditions of his employment. Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999).
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.Id. (quoting Crady v. Liberty National Bank Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)).
Plaintiff con cedes that each individual offense in paragraphs 13F-13J may not by itself be sufficient to demonstrate a materially adverse consequence. He contends, however, that taken together these matters do present a sufficient custom and pattern of harassment, so that an adverse consequence is demonstrated. In support of this contention Plaintiff cites cases from the Eleventh and Eighth Circuits. See Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453 (11th Cir. 1998); Kim v. Nash Finch Co., 123 F.3d 1045 (8th Cir. 1997).
In the Sixth Circuit the relevant standard is whether the plaintiff "was subjected to severe or pervasive retaliatory harassment by a supervisor." Morris, 201 F.3d at 792. There is no question of fact that Plaintiff's allegations, even when viewed collectively, do not meet this standard. The allegations involve isolated actions by many different individuals. The actions, even when viewed together, were neither severe nor pervasive. Accordingly, the Court will grant the government's motion for summary judgment on Plaintiffs remaining allegations in paragraphs 13F-13J.
For all the reasons stated above, Defendant's motion for summary judgment will be granted.
An order consistent with this opinion will be entered.
ORDER AND JUDGMENT
In accordance with the opinion entered this date,IT IS HEREBY ORDERED that Defendant's motion for summary judgment (Docket #51) is GRANTED. IT IS FURTHER ORDERED that JUDGMENT is entered in favor of Defendant and this action is DISMISSED in its entirety.