Attwell v. Granger

• Decision Date: 31 August 1990
• Docket Number: Civ. A. No. 89-CV-1808-JTC.
• Citation: 748 F. Supp. 866
• Parties: Joseph J. ATTWELL, Plaintiff, v. Bruce R. GRANGER, F. Allen McDonough, and Elyse S. Sharfman, Defendants.
• Court: U.S. District Court — Northern District of Georgia

748 F. Supp. 866

Joseph J. ATTWELL, Plaintiff, v. Bruce R. GRANGER, F. Allen McDonough, and Elyse S. Sharfman, Defendants.

Civ. A. No. 89-CV-1808-JTC.

United States District Court, N.D. Georgia, Atlanta Division.

August 31, 1990.

Joseph J. Attwell, pro se.

Nina Loree Hunt, Asst. U.S. Atty., Atlanta, Ga., for defendants.

ORDER

CAMP, District Judge.

This action has been submitted to the Court on the Magistrate's Report and Recommendation. The plaintiff has filed an objection. This Court has performed a careful de novo review of the record, and for the reasons stated below AFFIRMS the Magistrate's holding.

I. THE COURT'S RULING ON THE MAGISTRATE'S REPORT AND RECOMMENDATION

The Court adopts the Statement of Facts as set forth in the Magistrate's Report and Recommendation.

This Court finds the Magistrate's Report and Recommendations correct in all respects. Plaintiff's attempts to distinguish the cases relied upon by the Magistrate are unpersuasive. The Magistrate correctly held that the Court in Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976), found that § 717 of Title VII provides the exclusive remedy for federal employees with regard to race and sex. The Brown Court, in fact, distinguished Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) by rejecting exactly the same proposition plaintiff argues, namely that Title VII did not replace preexisting remedies, such as 42 U.S.C. § 1981. Thus, plaintiff's sex and race discrimination claims must be dismissed because they were not brought under Title VII.

Furthermore, after careful consideration, the Court agrees with the Magistrate's analysis and conclusions with regard to plaintiff's Fifth Amendment Due Process Claims, age discrimination claim, and request for a jury trial. Accordingly, defendants' Motion to Dismiss as to plaintiff's 42 U.S.C. §§ 1981 and 1985(3) claims and Fifth Amendment Due Process claims is GRANTED; Defendants' Motion to Dismiss as to plaintiff's ADEA claims is GRANTED; and plaintiff's Motion for a jury trial is DENIED.

II. PLAINTIFF'S OUTSTANDING MOTIONS

Plaintiff also has several related motions outstanding before this Court. First, plaintiff filed a Motion to strike Defendants' response to Plaintiff's Motion to Vacate Assignment of the Cause to the Magistrate. Under F.R.C.P. 72(b), "within 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. A party may respond to another party's objections within 10 days after being served with a copy thereof." In this case, plaintiff served his motion to vacate on defendants on February 27, 1990. Defendants failed to respond until March 20, 1990. Therefore, having greatly exceeded the applicable response period, the Court GRANTS plaintiff's Motion to Strike defendants' response to plaintiff's Motion to Vacate.

However, this Court must still examine the propriety of granting or denying a motion despite the fact that it is unopposed. In plaintiff's Motion to Vacate assignment of the case to the Magistrate, plaintiff first argues that the action was improperly assigned to the Magistrate pursuant to Internal Procedure 920-2 of this Court. Second, he complains that even if the assignment were proper, the Magistrate's consideration of the Motion to Dismiss was improper.

Under 28 U.S.C. § 636(b)(1)(B) and (C), the Magistrate may hear dispositive pretrial motions, such as a motion to dismiss. The Magistrate does not rule directly on such a motion, but instead files a report containing findings of fact and recommendations, upon which the District Judge makes the ruling. Brown v. Wesley's Quaker Maid, Inc., 771 F.2d 952, 954 (6th Cir.1985), cert. denied, 479 U.S. 830, 107 S.Ct. 116, 93 L.Ed.2d 63 (1986). Thus, the referral of the action to the Magistrate for the purpose of making a report and recommendation on the defendants' Motion to Dismiss was proper, and was not accomplished pursuant to Internal Procedure 920-2 of this Court. For this reason, the Court DENIES plaintiff's Motion to Vacate Assignment of the cause to the Magistrate.

SO ORDERED.

MAGISTRATE'S ORDER AND REPORT AND RECOMMENDATION

JOHN E. DOUGHTERY, United States Magistrate.

Plaintiff brings this action for alleged violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq.; violations of the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1985(3); and violations of the Fifth Amendment to the United States Constitution. In Count 1 of his complaint, plaintiff alleges that in June 1987, when he applied for two General Attorney GS-11/12/13 positions at the Atlanta Health and Human Services Chief Counsel's Office, he was a 75-year-old black male who met the general qualifications of bar membership in one state and one year of professional experience. He contends that defendants discriminated against him because of his race, sex, and age, since the applicants selected were white females under 40 years of age who did not meet his qualifications or experience. In Count 2, plaintiff alleges that he was hired as a Grade 9 staff attorney in October 1987 after initially being rejected for that position due to his race, sex, and age. However, plaintiff contends that he was unlawfully terminated from this position in retaliation for his filing a formal EEO complaint regarding the non-selection alleged in Count 1 of his complaint. The case is currently before this court on Defendants' Motion to Dismiss this action pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), as well as Plaintiff's Reply, Defendants' Response to Plaintiff's Reply, and Plaintiff's Reply to Defendants' Response. The case has also been submitted to the magistrate on Plaintiff's Motion for Jury Trial.

Plaintiff's Claims of Race and Sex Discrimination

In his complaint, plaintiff states, "This cause is not brought under Title VII, 42 U.S.C. § 2000e-3 et seq." Claiming that he is a victim of race and sex discrimination, plaintiff relies instead on other civil rights statutes. 42 U.S.C. §§ 1981, 1985(3). However, § 717 of Title VII provides the exclusive judicial remedy for race or sex discrimination in federal employment. Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Title VII of the Civil Rights Act of 1964 forbids employment discrimination based on race, color, religion, sex, or national origin. 42 U.S.C. §§ 2000e-2, 2000e-3. In 1972, this statute was amended to protect federal employees with the addition of Section 717, which proscribes federal employment discrimination and establishes an administrative and judicial enforcement system. 42 U.S.C. § 2000e-16. Based upon the "balance, completeness, and structural integrity of Section 717," the Supreme Court concludes that this amendment was not designed merely to supplement other judicial relief but rather to provide the exclusive judicial remedy for federal employees contesting job-related discrimination. Brown v. GSA, 425 U.S. at 832, 96 S.Ct. at 1967.

As noted above, plaintiff has emphatically stated that he is not attempting to plead a Title VII action. Since Title VII is the exclusive remedy for plaintiff's claims of race and sex discrimination, plaintiff's claims based on 42 U.S.C. §§ 1981 and 1985(3) are subject to dismissal. Defendants' Motion to Dismiss should therefore be GRANTED as to these claims.

Plaintiff's Claim of Denial of Due Process In Violation of the Fifth Amendment

Plaintiff contends he was denied his right to due process of law as protected by the Fifth Amendment in that defendants failed to consider the merit system principles for hiring which are dictated by Congress and to obey rules established by the Department of Health and Human Services which give veterans preference over other applicants. Plaintiff asserts that had defendants abided by the terms of the merit system principles and had defendants granted him priority consideration since he is a veteran, he would have been hired for the Grade 11/12/13 position. It appears to the court that plaintiff's claim that defendants willfully and maliciously manipulated the rules and procedures in order to deny plaintiff his constitutional rights is distinct from any claim of discrimination alleged by plaintiff. See Ray v. Nimmo, 704 F.2d 1480 (11th Cir.1983).

In Bivins v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court implied a remedy in an action for damages against individual federal officials for alleged violations of the Fourth Amendment. As noted by defendants, plaintiff Attwell raises a Bivins claim against his former supervisors based upon the Fifth Amendment which is similar to the claim in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), where a federal civil servant sued his supervisors alleging that he was the victim of a retaliatory discharge because he exercised his First Amendment rights. The Bush Court held, however, that because Bush's claims arose out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, it would be inappropriate for the Court to supplement that regulatory scheme with a new nonstatutory damages remedy.

In an Eleventh Circuit case where a plaintiff sued her supervisor who allegedly had violated her First and Fifth Amendment rights, the Court noted that the Bush analysis has been applied to Fifth Amendment claims as well as to First Amendment claims. McCollum v. Bolger, 794 F.2d 602, 606 (11th Cir.1986), cert. denied 479 U.S. 1034, 107 S.Ct. 883, 93 L.Ed.2d 836 (1987). In the McCollum case, the Court determined that the United States Postal Service's grievance procedure is constitutionally sufficient and that therefore, the plaintiff could not maintain a...