Asbury v. Geren

• Decision Date: 09 September 2008
• Docket Number: No. CIV 06-1235 BB/ACT.,CIV 06-1235 BB/ACT.
• Parties: William ASBURY, Plaintiff, v. Pete GEREN, Secretary of the Army, Defendant.
• Court: U.S. District Court — District of New Mexico

Page 1323

582 F.Supp.2d 1323

William ASBURY, Plaintiff, v. Pete GEREN, Secretary of the Army, Defendant.

No. CIV 06-1235 BB/ACT.

United States District Court, D. New Mexico.

September 9, 2008.

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Joleen K. Youngers, Las Cruces, NM, Rebecca Fisher, Rebecca L. Fisher & Associates, McGregor, TX, for Plaintiff.

Richard B. Bohlen, Arlington, VA, Michael H. Hoses, US Attorney's Office, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION

BRUCE D. BLACK, District Judge.

THIS MATTER comes before the Court on Defendant's motion for summary judgment. [Doc. 31]. Plaintiff alleges that his former employer discriminated against him because of his age, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 633a, by failing to promote him on two occasions and by creating a hostile work environment. The Court has examined the parties' submissions and the relevant legal authorities, and, for the reasons set forth below, finds that Defendant's motion for summary judgment should be GRANTED.

I. FACTUAL BACKGROUND

Plaintiff William L. Asbury ("Asbury") was formerly employed by Defendant, the United States Army ("Army"),¹ as a GS-14 Supervisory Electronics Engineer at White Sands Missile Range (WSMR), New Mexico. Asbury retired from WSMR on September 3, 2006. He was 56.

Asbury alleges that, while employed at WSMR, he was a victim of age discrimination when he was not selected for a temporary promotion in February 2005 [Doc. 32 at 8] and a permanent promotion in August 2005 [Doc. 32 at 11]. He further alleges that he was subjected to a hostile work environment due to his age. Asbury submitted a Notice of Intent to Sue to the Equal Employment Opportunity Commission (EEOC), dated March 9, 2005, in response to the denial of the temporary promotion in February 2005 [Doc. 32-2 at 1-2], and a second Notice of Intent to Sue, dated October 19, 2005, in response to the denial of the permanent promotion in June 2005. [Doc. 32 at 3-4]. Asbury filed suit in United States District Court for the District of New Mexico on December 19, 2006.

II. STANDARD OF REVIEW

Summary judgment is appropriate only "if 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). In addressing Defendant's motion, the Court must "view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Simms v. Oklahoma ex rel. Dep't of Mental Health & `Substance Abuse Serv., 165 F.3d 1321, 1326 (10th Cir.1999). However, it is "not required to evaluate every conceivable inference which can be drawn from evidentiary matter, but only reasonable ones." Lucas v. Dover Corp., 857 F.2d 1397, 1401 (10th Cir.1988).

The party moving for summary judgment bears the burden of showing that no genuine issue of material fact exists. See Adams v. American Guarantee and Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (stating that moving party may satisfy its burden by "pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.") Once the movant meets its burden, the nonmovant must identify evidence that would enable a trier of fact to find in the nonmovant's favor. See Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.1992). The evidence presented at the summary judgment stage need not be produced in a form that would be admissible at trial, so long as the "content or substance of the evidence" is admissible. See Wright-Simmons v. City of Oklahoma City, 155 F.3d 1264, 1268 (10th Cir.1998).

III. DISCUSSION

A. TIMELINESS OF CLAIMS

The Army asserts that Asbury's claims are time-barred and should be dismissed. The legislative scheme for ADEA claims brought by federal employees provides two alternative routes for pursuing a claim of age discrimination. A federal employee may invoke the EEOC administrative process and then, if dissatisfied with the outcome, file suit in federal district court. 29 U.S.C §§ 633a(b)-(c). This option closely resembles the enforcement schemes under both Title VII and the section of the ADEA governing private plaintiff claims.

Alternatively, a federal employee may choose to bypass the administrative process and file a civil action directly in federal district court. This "administrative bypass" option is not available for Title VII claims or claims by private plaintiffs under the ADEA. 29 U.S.C. §§ 633a(c)-(d). If the administrative bypass option is selected, the ADEA requires the employee to submit a notice of intent to sue to the EEOC within 180 days of the alleged act of discrimination and then wait a minimum of thirty days before filing the action. 29 U.S.C. 633a(d); see Stevens v. Dep't of Treasury, 500 U.S. 1, 6-7, 111 S.Ct. 1562, 114 L.Ed.2d 1 (1991).

In this case, Asbury selected the administrative bypass option and satisfied these express requirements, providing notice within 180 days of each alleged discriminatory act and then waiting thirty days to file suit. He filed suit on December 19, 2006, 680 days after the first cause of action accrued and 489 days after the second cause of action accrued. The issue before the Court is what limitations period, adopted from an analogous statute, should be applied to federal ADEA claims brought directly to federal court (i.e., by-passing the EEOC administrative procedure).

The section of the ADEA governing the rights of federal employees "contains no express statute of limitations. Indeed, [it] says nothing about the outside date for the filing of suit (regardless of whether an employee has elected to undergo or to bypass the administrative process)." Rossiter v. Potter, 357 F.3d 26 (1st Cir.2004); see also Larson on Employment Discrimination § 141.02[2] (2008). The Supreme Court, without expressly stating the proper limitations period to apply to ADEA claims against the federal government, explained the proper analysis is to "assume, as we have before, that Congress intended to impose an appropriate period borrowed either from a state statute or from an analogous federal one." Stevens, 500 U.S. at 7, 111 S.Ct. 1562 (citing Agency Holding Corp. v. Malley-Duff & Assocs., Inc. 483 U.S. 143, 146-148, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987)); see also Jones v. Runyon, 32 F.3d 1454, 1455 (10th Cir.1994). "In borrowing a statute, a reasonable source is a `statute of limitations actually designed to accommodate a balance of interests very similar to that at stake here—a statute that is, in fact, an analogy to the present lawsuit.'" Jones, 32 F.3d at 1456 (quoting DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)).

In cases involving federal employees who pursue ADEA claims through the administrative process, courts, including the 10th Circuit, have frequently found the Title VII limitations period most analogous and, therefore, have adopted it. See, e.g., Jones, 32 F.3d at 1456; Burzynski v. Cohen, 264 F.3d 611, 619 (6th Cir.2001); Long v. Frank, 22 F.3d 54, 56 (2d Cir. 1994); see also Larson, supra ("The majority of courts that have addressed the issue favor the Title VII scheme ..."). However, the issue of whether to adopt that same period for claims brought through the administrative bypass option is one of first impression in the Tenth Circuit and has divided the only two circuits which appear to have considered the question directly. The Eleventh Circuit, in Edwards v. Shalala, 64 F.3d 601 (11th Cir.1995), held that the analogous limitations period from Title VII is the appropriate period to apply, while the First Circuit, in Rossiter, 357 F.3d at 26, held that the limitations period should be borrowed from the Fair Labor Standards Act (FLSA), 29 U.S.C. § 255(a).

In reaching a decision on this issue, the Court recognizes there are certain benefits in the application of the Title VII limitations period rather than that of the FLSA. Adopting Title VII for bypass cases as well as administrative cases would provide continuity to the ADEA enforcement structure—every plaintiff would be subject to the same limitations period, regardless of the status of their employer or the procedure by which they pursued their claims. The fact that the bulk of the ADEA enforcement structure is based on that of Title VII also supports a Title VII adoption.² The problems with this approach however, as articulated by the First Circuit in Rossiter, are not insignificant. First, adoption of the Title VII limitations period ignores the differences between a plaintiff who has invoked the EEOC administrative procedure and one who opts to bring his case directly to federal court. In stressing this same point, the Rossiter court cited Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984), where Justice Marshall discussed the "functional differences" between filing an administrative claim, a relatively simple act, and bringing a claim directly to court, which requires, inter alia, procurement of counsel or preparation to proceed pro se, sufficient investigation to draft pleadings that meet the requirements of federal rules, establishment of the amount of damages, and the actual preparation of formal legal documents. Id. at 50-51, 104 S.Ct. 2924. "An appropriate limitations period must be responsive to these characteristics of litigation under the federal statutes." Id. at 50, 104 S.Ct. 2924. Justice Marshall also noted that "borrowing an administrative statute of limitations ignores the dominant characteristic of civil rights actions: they belong in court." Id. Further, as the purpose of the ADEA is to bring equality to the workplace, this Court is wary of adopting a rule of administrative convenience at the...