Boswell v. Dept. of Treasury, Office of Comp., CIV.A.3:96-CV-2873-P.

• Decision Date: 13 May 1997
• Docket Number: No. CIV.A.3:96-CV-2873-P.,CIV.A.3:96-CV-2873-P.
• Citation: 979 F.Supp. 458
• Parties: Jeffrey M. BOSWELL, Plaintiff, v. DEPARTMENT OF THE TREASURY, OFFICE OF THE COMPTROLLER OF THE CURRENCY, Defendant.
• Court: U.S. District Court — Northern District of Texas

979 F.Supp. 458

Jeffrey M. BOSWELL, Plaintiff, v. DEPARTMENT OF THE TREASURY, OFFICE OF THE COMPTROLLER OF THE CURRENCY, Defendant.

No. CIV.A.3:96-CV-2873-P.

United States District Court, N.D. Texas, Dallas Division.

May 13, 1997.

Nathan Scott Carpenter, Law Office of N. Scott Carpenter, Plano, TX, for Plaintiff.

Stafford Hutchinson, U.S. Attys. Office, Dept. of Justice, Dallas, TX, for Defendant.

ORDER GRANTING MOTION TO DISMISS

SOLIS, District Judge.

Presently before the Court is Defendant's Motion to Dismiss, filed January 22, 1997. Plaintiff filed his response to Defendant's motion on March 14, and Defendant replied on March 27, 1997. As discussed below, the Court finds that Defendant's motion should be granted.

BACKGROUND

This is an employment case involving alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff Jeffrey Boswell ("Boswell"), who is employed as Operations Manager with the Southwestern District Office of the Comptroller of the Currency ("OCC") alleges that his supervisor, Thomas Byledbal ("Byledbal"), retaliated against him because of his participation in a 1994 investigation by the Equal Employment Opportunity Commission ("EEOC") that originated in Washington, D.C. and that had been prompted by an EEOC complaint filed by one of Plaintiff's co-workers. Boswell further asserts that, ever since he filed an internal FED charge against Byledbal on May 9.1995 in which he complained of Byledbal's conduct, the latter has continuously subjected him to a hostile working environment.

Boswell's May, 1995 administrative complaint alleged various acts of retaliation committed by Byledbal, some of which date back as far as 1988. According to the complaint, these actions were taken in reprisal for (I) Boswell's handling of performance and conduct issues, (2) his efforts to seek pay comparability; (3) his request for reconsideration of an unfair 1989 performance evaluation; (4) his decision to report information concerning a possible violation of law in 1993; and (5) his support of "EEO principles" in connection with the 1994 Washington EEO investigation. This initial complaint was supplemented on August 8, 1995 by Boswell's second administrative complaint, which alleged that Byledbal was retaliating against him for filing the first complaint.

In a September 1, 1995 final agency decision, the Director of Treasury's Regional Complaint Center dismissed nine of the eleven individual allegations contained in Plaintiff's first administrative complaint pursuant to 29 C.F.R. § 1614.107(b) on the ground that they had not been timely submitted. The only remaining claims arising out of the first complaint revolved exclusively around Plaintiff's dissatisfaction with his January 10, 1995 performance evaluation, which he alleged had unfairly rated him as performing at a "fully successful" rather than a "superior" level. Plaintiff did not appeal the September 1, 1995 decision.

On November 29, 1995, the Director of the Regional Complaint Center sent Boswell a copy of the Investigative File and informed him in an accompanying cover letter that the file now contains sufficient information to allow the agency to make a decision. A file excerpt submitted by Defendant indicates that the agency had concluded that the 1994 inquest was not an EEO investigation and that Boswell had not previously been involve in the EEO process. Upon the request of the Regional Complaint Center, Boswell thereafter agreed to extend the 180-day investigative period relating to his first administrative complaint until December 31, 1995. Finally, on December 12, 1995, the agency advised Plaintiff that it had completed its investigation and offered him a choice between an immediate final decision or a hearing before an Administrative Judge. Boswell elected to proceed with a formal hearing.

At Boswell's request, the parties engaged in pre-hearing discovery, in the course of which OCC served a set of interrogatories and document requests upon Boswell. In response to OCC's interrogatories, Boswell for the first time raised as additional motives for Byledbal's retaliatory actions that Boswell had (1) opposed "questionable EEO/personnel practices" in a May 2,1994 Administration Division Manager staff meeting and a May 4, 1994 telephone conference call to Washington and (2) participated in three formal EEO proceedings instituted by different co-workers.

In its request for production of documents, OCC sought production of all documents relevant to Boswell's interrogatory responses. Boswell replied that these materials had already been produced to the agency during its investigation of his complaints. Subsequently, however, it became evident that Boswell had maintained expansive personal notes, many of which had never been produced to the agency, apparently at least in part because Boswell considered the documents to he privileged. OCC thereupon brought the parties' emerging discovery dispute to the attention of the Administrative Judge, who rescheduled the hearing date and ordered Plaintiff to make the documents available for in camera inspection. Plaintiff complied by producing redacted documents, which were then passed on to OCC. Objecting that the notes had been unilaterally reacted, had not been produced in chronological order, and had been intermingled with large quantities of irrelevant materials, Defendant filed a motion in limine in which it requested that the action be dismissed.

In a September 9, 1996 letter to the Administrative Judge, Boswell's counsel responded to a renewed request that Boswell provide unredacted copies of his notes by reasserting his position that the documents were privileged under relevant agency regulations. Claiming that OCC had abused the EEO process, counsel then notified the Administrative Judge of Boswell's decision to dismiss his administrative proceedings in favor of instituting an action in the district court. On October 16, 1996, Plaintiff filed his Original Complaint and Jury Demand in this Court.

Defendant now urges the Court to dismiss the instant action on the ground that the Court lacks subject matter jurisdiction over Plaintiff's claims.

ANALYSIS

Defendant argues that dismissal of all or part of Plaintiff's claims is proper for three reasons: (1) Plaintiff failed to exhaust his administrative remedies by refusing to cooperate with the agency's investigation of his complaints in good faith; (2) Plaintiff failed to timely appeal the agency's dismissal of a portion of his first administrative complaint; and (3) Plaintiff failed to comply with the statutory requirement that he sue the head of the appropriate agency rather than the agency itself. The Court now considers each of Defendant's arguments in turn.

A. LEGAL STANDARD FOR RULE 12(B)(1) DISMISSAL

An action must be dismissed if it appears that the Court does not possess subject matter jurisdiction over the plaintiff's claims. Fed.R.Civ.P. 12(b)(1), (h)(3). Importantly, the burden of establishing subject matter jurisdiction rests on, the plaintiff as the party invoking jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1991). A district court has the power to decide a Rule 12(b)(1) motion to dismiss "on any one of three separate bases: (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) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981)).

Where, as here, the motion is based on extrinsic evidence pointing toward the absence of subject matter jurisdiction, the court is entitled to weigh the evidence presented and to make an independent factual determination regarding the existence of jurisdiction. Williamson 645 F.2d at 412-13. However, the court should not adjudicate genuine fact disputes if the jurisdictional issue is dependent upon the resolution of fact questions that go to the merits of the plaintiff's claim. Clark v. Tarrant County, Texas, 798 F.2d 736, 742 (5th Cir.1986). "[W]hen a defendant's challenge to the court's jurisdiction is also a challenge to the existence of a federal cause of action, the proper procedure for the district court is to find that jurisdiction exists and to deal with the objection as a direct attack on the merits of the plaintiff's case." Daniel v. Ferguson, 839 F.2d 1124, 1127 (5th Cir.1988); Tindall v. United States, 901 F.2d 53, 55 n. 5 (5th Cir.1990).

B. ASSERTED GROUNDS FOR DISMISSAL

1. Failure to Exhaust Administrative Remedies

Defendant contends that Plaintiff's claim is subject to dismissal in its entirely because Plaintiff failed to exhaust his administrative remedies in that he refused to cooperate with the agency's investigation of his complaints in good faith. As Defendant accurately points out, "[a] federal employee must exhaust his administrative remedies against his federal employer before bringing suit under Title VII in federal court." Francis v. Brown, 58 F.3d 191, 192 (5th Cir.1995) (citing Brown v. General Servs. Admin., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976)). In that regard, the applicable statute provides in relevant part that a federal employee may file a civil action in federal court either (1) within 90 days of receipt of notice of final agency action, or (2) if no final action has been taken, after 180 days have elapsed from the date on which the initial charge was filed with the agency. 42 U.S.C. § 2000e-16(c); Munoz v. Aldridge, 894 F.2d 1489, 1492 (5th Cir.1990); see also Vinieratos v. United States, Dept. of Air Force, 939 F.2d 762, 769 n. 6 (9th Cir.1991); Wrenn v. Secretary, Dept. of Veterans Affairs, 918 F.2d 1073, 1077 (2d Cir.1990), cert. denied, 499 U.S. 977, 111...