Algea v. Schweiker

• Decision Date: 25 November 1981
• Docket Number: Civ. A. No. M-80-3014.
• Citation: 529 F. Supp. 163
• Parties: Dorothy ALGEA v. Richard S. SCHWEIKER Department of Health and Human Services.
• Court: U.S. District Court — District of Maryland

529 F. Supp. 163

Dorothy ALGEA v. Richard S. SCHWEIKER¹ Department of Health and Human Services.

Civ. A. No. M-80-3014.

United States District Court, D. Maryland.

November 25, 1981.

Gary Howard Simpson, Bethesda, Md., for plaintiff.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Brook Hedge and Richard E. Greenberg, Attys., Dept. of Justice, Washington, D. C., J. Frederick Motz, U. S. Atty., and Stuart O. Simms, Asst. U. S. Atty., Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

The plaintiff, Dorothy Algea, is a federal employee who contends she has been unlawfully denied promotions by her employer, the Secretary of the Department of Health and Human Services (Secretary). The plaintiff's six-count complaint alleges that in failing to promote her on five separate occasions the Secretary violated her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. The Secretary has moved to dismiss both statutory claims under counts IV and V on the ground that the plaintiff failed to exhaust her administrative remedies.² The plaintiff has filed a response opposing the Secretary's Motion,³ and the Secretary has filed a reply to the plaintiff's response.⁴ The court heard oral arguments on November 6, 1981, and the matters raised in the Secretary's motion are now ready for decision.

Before addressing the substance of the parties' arguments, the court will comment briefly on the procedural posture of this case. The Secretary predicated his dismissal motion on Rule 12(b)(1), Fed.R.Civ.P., apparently viewing the plaintiff's alleged failure to comply with the Acts' respective procedural requirements as an impediment to the court's subject matter jurisdiction. By letter dated September 14, 1981,⁵ the court informed the parties that it would consider the Secretary's motion under Rule 56. Aside from the parties' reference to matters outside of the pleadings, it was appropriate to do so because the court's subject matter jurisdiction is not implicated by the matters raised in the Secretary's motion.

Until recently, most courts referred to the time and other procedural requirements of Title VII and the ADEA as "jurisdictional prerequisites." As noted by Judge Anderson in his exhaustive opinion in an ADEA case, Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 587-94 (5th Cir. 1981) (en banc), however, the great weight of authority now holds that such procedural requirements do not implicate the court's subject matter jurisdiction. Rather, procedural requirements such as time limitations are more analogous to statutes of limitations than to jurisdictional impediments. Accord, Sessions v. Rusk State Hospital, 648 F.2d 1066, 1069-70 (5th Cir. 1981) (Title VII).

The Fourth Circuit has followed this view in the context of a private Title VII action against a non-federal defendant. According to Judge Haynsworth, "though these procedural requirements are often referred to as jurisdictional, their time limitations do not affect the competence of the court." Citicorp Person-To-Person Fin. Corp. v. Brazell, 658 F.2d 232, 234 (4th Cir. 1981), citing Coke, supra. Consequently, a plaintiff may be relieved of strict compliance with certain procedural requirements should the equities of the case so require.

In Oaxaca v. Roscoe, 641 F.2d 386, 388 (5th Cir. 1981), the Fifth Circuit applied the non-jurisdictional concept to a private Title VII suit against a federal defendant. Writing for the court, Judge Rubin commented that a motion to dismiss for failure to exhaust federal administrative remedies is also more analogous to a dismissal motion based on the expiration of the statute of limitations rather than one based on a jurisdictional limitation. Accord, Cooper v. Bell, 628 F.2d 1208, 1213 (9th Cir. 1980). Consequently, the appropriate procedural motion is a motion under Rule 12(b)(6) for failure to state a claim which, in turn, should be considered under Rule 56 when the parties rely on matters outside of the pleadings. 641 F.2d at 391-92.

One practical difficulty that arises in this case, however, by considering the Secretary's motion under Rule 56 is that if the motion were granted there would be a decision on the merits. Thus, the plaintiff would be precluded from taking additional administrative or judicial steps in connection with unexhausted but otherwise facially valid claims. Such an approach in all cases would effectively undermine the equitable considerations applicable to both Title VII's and the ADEA's prelitigation procedural requirements. While there are important differences between the two statutes' procedural requisites, Citicorp Person-To-Person Fin. Corp. v. Brazell, 658 F.2d at 234, both statutes contemplate the application of equitable exceptions in the appropriate case. See, e.g., Oaxaca v. Roscoe, 641 F.2d at 388-91 (Title VII); Coke v. General Adjustment Bureau, Inc., 640 F.2d at 589-95 and cases cited therein (ADEA & Title VII). On the other hand, a denial of a Rule 56 motion would result in the court considering unexhausted claims.

As will be discussed below, although the plaintiff has neither exhausted fully her administrative remedies under Title VII, nor complied strictly with the notification requirements of the ADEA, the equities of this case counsel against precluding forever the plaintiff's claims under counts IV and V. Consequently, they will be dismissed, without prejudice, under Rule 12(b)(6), rather than considered under Rule 56. Given the specificity of the plaintiff's complaint, which refers to and incorporates by reference the affidavit of her equal employment opportunity (EEO) counselor, there is an adequate basis for assessing the sufficiency of the plaintiff's exhaustion and other procedural efforts under the standards applicable to a motion under Rule 12(b)(6). See, e.g., Chertkof v. Mayor & City Council of Baltimore, 497 F.Supp. 1252, 1258 (D.Md. 1980).

I. Overview

The plaintiff is a sixty-one year old legal assistant with the Office of Operational Policy and Procedures, Technical Documents Branch of the Social Security Administration (SSA). She has worked for the SSA since 1940, and has been a GS-13 since 1972.

On June 4, 1978, Armand Esposito, a thirty-six year old male, was selected non-competitively for a temporary GS-14 promotion to Branch Chief of the SSA's Individual Rights Branch. On June 18, 1978, Karen Wilson, a thirty-two year old female, was reassigned non-competitively to the GS-14 position of Director of the Litigation Staff. On July 30, 1978, Donald Bruns, a fifty-four year old male was reassigned non-competitively to the GS-14 position of Chief of the SSA's Eligibility Branch. Believing that her non-selection for these positions was based on sex and age discrimination, the plaintiff filed a formal administrative complaint on August 7, 1978.⁶

In the Fall of 1978, Steve Siff, a male under the age of fifty, was promoted to the GS-14 position of Chief of the SSA's Individual Rights Branch, replacing the temporarily promoted Armand Esposito. Also in the Fall of 1978, Sander Weissman, a male under the age of fifty, was promoted to the GS-14 position of Chief of the SSA's Payment Branch.

On November 24, 1978, the plaintiff sought counseling from Peter A. DiRito, her equal employment opportunity (EEO) counselor, and discussed with him the Siff and Weissman selections and the procedures for filing an administrative complaint. Although DiRito took steps directed towards an informal resolution of the matter, and indicated to the plaintiff that these additional claims should be joined with those already in the formal complaint process, it is undisputed that DiRito never issued to the plaintiff a written notice of her right to file a formal administrative complaint.⁷ It is also undisputed that the plaintiff never filed such a complaint, with respect to the Siff and Weissman selections, or attempted to join these claims with those contained in the formal complaint.

II. Discussion

In opposing the Secretary's motion as to her Title VII claims under counts IV and V, the plaintiff advances three arguments. The first two require little discussion and present insufficient grounds for resisting the Secretary's motion.

The plaintiff first contends that because she timely initiated the pre-complaint administrative process, by consulting with DiRito as to the Siff and Weissman selections, she has complied with the statutory exhaustion requirement of section 717(c), 42 U.S.C. § 2000e-16(c). It does appear that the plaintiff did initiate properly the administrative procedures contemplated by the applicable regulations. 29 U.S.C. §§ 1613.213(a), 1613.214(a)(i) (1981). It is plain, however, that such limited action does not constitute the sort of administrative exhaustion contemplated by Congress as a precondition to the judicial resolution of a federal employee's Title VII claim. See Brown v. General Services Administration, 425 U.S. 820, 832-33, 96 S.Ct. 1961, 1967-68, 48 L.Ed.2d 402 (1976).

The plaintiff's second contention, that the Siff and Weissman selections may be litigated here because they are "within the scope" of her formal administrative complaint, is similarly without merit. See, e.g., Mobley v. Acme Markets, Inc., 473 F.Supp. 851, 853 (D.Md.1979); Hubbard v. Rubbermaid, Inc., 436 F.Supp. 1184, 1187-93 (D.Md.1977). See also Bickley v. University of Maryland, 527 F.Supp. 174, 178 (D.Md.1981). Even assuming, however, that the Secretary should have considered the Siff and Weissman selections in connection with the plaintiff's formal complaint, see 29 C.F.R. § 1613.216(a) (1981), the policy objectives behind section 717(c), as explained in Brown, 425 U.S. at 833, 96 S.Ct. at 1968, militate against permitting the plaintiff to go forward in this court with claims not actually considered by the Secretary or the EEOC. Cf. Macon v....