Aceto v. England
| Decision Date | 03 August 2004 |
| Docket Number | Civil Action No. 02-0949 (RMU). |
| Citation | 328 F.Supp.2d 1 |
| Parties | James R. ACETO, Plaintiff, v. Gordon R. ENGLAND, Secretary, Department of the Navy, Defendant. |
| Court | U.S. District Court — District of Columbia |
Lisa Lyons Ward, Ellicott City, MD, for Plaintiff.
Heather D. Graham-Oliver, Roscoe Howard, Jr., Washington, DC, for Defendant.
This case comes before the court on the defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. The plaintiff alleges discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. and the Rehabilitation Act of 1973 ("the Rehabilitation Act"), 29 U.S.C. §§ 701 et seq. The defendant claims that this court lacks jurisdiction on all six counts of the plaintiff's complaint because the plaintiff failed to exhaust his administrative remedies. Because the plaintiff has not met his burden of pleading and proving facts supporting equitable tolling, and because the defendant has shown that the plaintiff should reasonably have known of the time requirements, the court grants defendant's motion for summary judgment.
The plaintiff is an employee of the defendant in Washington, D.C., and is currently stationed at the Anacostia Naval Station as a Motor Vehicle Operator. Def.'s Statement of Material Facts as to Which There is No Genuine Dispute ("Def.'s Statement") ¶ 1; Compl. at 2; Answer ¶ 5. In 1998, the plaintiff suffered a shoulder injury on the job. Def.'s Statement ¶ 10. Since this accident he has been unable to drive a bus, and has not been assigned to do so. Id. ¶ 11-12. Nonetheless, the parties agree that the plaintiff has performed the essential functions of his position as Motor Vehicle Operator at all times relevant to this action. Compl. ¶ 7; Answer ¶ 7.
On October 26, 1999, the plaintiff, while engaged in driving duties for the defendant, was involved in a disagreement with a U.S. Capitol Police Officer regarding whether the plaintiff could legally park a government vehicle in a parking spot designated for handicapped persons. Def.'s Statement ¶ 2. That same day, the U.S. Capitol Police Officer wrote a letter to the defendant complaining about the plaintiff's behavior. Id. ¶ 4 After the plaintiff responded to the letter, the defendant gave him an unsigned draft of a proposed suspension from his job. Id. ¶ 5-6. The plaintiff was never actually suspended. Id. ¶ 9. Rather, the plaintiff was only temporarily assigned non-driving duties. Id. ¶ 7.
On or about November 8, 1999, the plaintiff suffered another work-related injury, this time to his elbow. Id. ¶ 18 He did not submit a worker's compensation claim until March 6, 2000. Id. ¶ 19. Subsequently the Department of Labor requested that the plaintiff provide additional information and resubmit a current version of the form. Def.'s Mot. ¶ 22, 24. The plaintiff requested and was granted an extension of time to respond. Id. ¶ 23. The plaintiff submitted the completed current version of the form on or about September 11, 2000. Id. ¶ 25. This claim required processing and interaction with other organizations, such as the Navy Public Works Center and the Human Resources Department at the Naval Surface Warfare Center. Id. ¶¶ 29-30. Finally, on February 13, 2002, the plaintiff met with a Navy doctor. Id. ¶ 33. The defendant's employee and agent, Richard L. Waters, was present at this meeting. Id.; Compl. ¶ 22. The plaintiff's medical file was open during the appointment, displaying his worker's compensation form. Def.'s Statement ¶ 34.
On May 15, 2002, the plaintiff filed a six-count complaint in this court. Compl. ¶ 8-23. In Count I the plaintiff alleges that after the disagreement with the U.S. Capitol Police Officer, the defendant violated Title VII and the Rehabilitation Act by threatening him with a proposed suspension and then suspended him from his driving duties. Id. ¶ 9. In Count II, the plaintiff alleges violation of Title VII and the Rehabilitation Act due to the defendant's denial of a request for a change in his work schedule to the morning shift. Id. ¶ 13. Next, in Count III the plaintiff alleges that defendant discriminated against in violation of Title VII and the Rehabilitation Act when the defendant denied him use of his personal disability parking card while on duty. Id. ¶ 16. In Count IV, the plaintiff complains that the defendant violated Title VII and the Rehabilitation act by failing to take disciplinary action against an employee who threatened him with physical harm. Compl. ¶ 18-19. In Count V, the plaintiff alleges violation of the Rehabilitation Act due to the defendant's refusal to process his worker's compensation claim in a timely manner. Id. ¶ 21. Lastly, in Count VI, the plaintiff alleges that an agent of the defendant was granted unauthorized access to his medical records and/or information without his consent or approval. Id. ¶ 22-23. The defendant now moves to dismiss, or in the alternative, for summary judgment. Def.'s Mot. at 1.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir.1995). To determine which facts are "material," a court must look to the substantive law on which each claim rests. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252, 106 S.Ct. 2505. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.
In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C.Cir.1999); Harding v. Gray, 9 F.3d 150, 154 (D.C.Cir.1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted). Finally, the D.C. Circuit has directed that because it is difficult for a plaintiff to establish proof of discrimination, the court should view summary-judgment motions in such cases with special caution. See Aka v Washington Hosp. Ctr., 116 F.3d 876, 879-80 (D.C.Cir.1997), overturned on other grounds, 156 F.3d 1284 (D.C.Cir.1998) (en banc); see also Johnson v. Digital Equip. Corp., 836 F.Supp. 14, 18 (D.D.C.1993).
"Generally, exhaustion of administrative remedies is a prerequisite to relief under Title VII and the Rehabilitation Act." Armstrong v. Reno, 172 F.Supp.2d 11 (D.D.C.2001). Under 29 C.F.R. § 1614.105(a)(1), before filing suit against a federal employer under Title VII or the Rehabilitation Act, a plaintiff must exhaust his administrative remedies by contacting an Equal Employment Opportunity ("EEO") counselor within 45 days of the matter alleged to be discriminatory or the effective date of an alleged discriminatory personnel action. 29 C.F.R. § 1614.105(a)(1). A predominant purpose of this rule is to first attempt to resolve the matter informally. O'Neal v. Johnson, No. 02-0172, 2003 U.S. Dist. LEXIS 13348 at *3 (D.D.C. July 17, 2003). Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant initially bears the burden of pleading and proving that the plaintiff failed to exhaust administrative remedies. Bowden v. United States, 106 F.3d 433, 437 (D.C.Cir.1997).
Local Rule 7(h) states, in pertinent part, that "the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 7(h). Moreover, "when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by a defendant, a court may treat those arguments that a plaintiff failed to address as conceded." Buggs v. Powell, 293 F.Supp.2d 135, 141 (D.D.C.2003).
In this case, it is undisputed that with regard to Counts I, III, IV, and V, the plaintiff did not contact an EEO counselor within the prescribed 45- day time limit. Def.'s Statement ¶¶ 8, 13, 35; Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 4-5, 13, 16, 22; Pl.'s Opp'n at 11, 19, 21, 23. It is also undisputed that ...
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