Boddy v. Dean
| Decision Date | 18 June 1987 |
| Docket Number | No. 85-6109,85-6109 |
| Citation | 821 F.2d 346 |
| Parties | 45 Fair Empl.Prac.Cas. 586, 43 Empl. Prac. Dec. P 37,172 Pinkie J. BODDY, Plaintiff-Appellant, v. Charles DEAN, Richard Freeman, and S. David Freeman, in their official capacity as Directors of Tennessee Valley Authority, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Richard T. Klingler (argued), Weill, Weems and Kennedy, Chattanooga, Tenn., for plaintiff-appellant.
Richard E. Riggs, Herbert S. Sanger, Office of the Gen. Counsel, Knoxville, Tenn., Justin M. Schwamm, Sr., Thomas F. Fine (argued), for defendants-appellees.
Before: LIVELY, Chief Judge; RYAN, Circuit Judge; and JOINER, District Judge. *
The plaintiff appeals from summary judgment for the defendants in this action brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Sec. 2000e, et seq. (1982). As an employee of the Tennessee Valley Authority (TVA), she proceeded under section 717 of the Act, 42 U.S.C. Sec. 2000e-16, which prohibits discriminatory employment practices by agencies of the federal government. Claiming discrimination on the basis of sex, the complaint sought an order assigning plaintiff to an administrative position she had been denied, back pay and promotions she would have received if originally given the position, pay lost during a suspension for fighting on the job, and compensatory and punitive damages. Plaintiff raises numerous issues on appeal.
After more than five years as an employee of TVA during which she received three promotional upgrades, plaintiff applied for a position in the Administrative Officer Training Program. Another woman who had been an employee of TVA for more than ten years was chosen for the position. The selection was made in September 1980 by a committee of four members, two from a local union and two from management. Plaintiff charged TVA with sexual harassment alleging that her nonselection came about as the result of a negative recommendation by Dr. Lane, a supervisor whom she had formerly dated. The failure to award her the position under these circumstances was the basis of plaintiff's first charge of sex discrimination.
In January 1981 plaintiff and a co-worker, Carolyn Smith, engaged in a fight in the plaintiff's office. The fight occurred after Ms. Smith scolded the plaintiff for spreading a false rumor that she, Ms. Smith, was "going with" Dr. Lane. On the recommendation of a supervisor, Frank Faires, both combatants were suspended for two weeks without pay. Although Dr. Lane did not participate in the decision to suspend her, plaintiff contended that he influenced that decision as part of a pattern of sexual harassment. This was the basis of her second charge of sexual discrimination. Both charges were contained in a single count in the original complaint.
After returning to work following the suspension, plaintiff contacted the Federal Employee Women's Coordinator in Knoxville on February 3, 1981, and on March 16, 1981, she filed an administrative Equal Employment Opportunity (EEO) complaint alleging unlawful discrimination. The complaint contained the two charges of sexual harassment outlined above. Both charges were dismissed by TVA on February 29, 1984, and this action was filed within 30 days thereafter. The complaint in the district court named TVA and its three directors, in their official capacities, as defendants. The district court narrowed the issues in a series of orders on motions for partial summary judgment. It dismissed TVA as a defendant and the plaintiff has not appealed that action. The district court also struck plaintiff's demand for compensatory and punitive damages and dismissed Count II of plaintiff's amended complaint, pursuant to the defendants' motion for summary judgment. Count II was based on a second administrative EEO complaint, in which plaintiff alleged that she had been terminated by TVA in February 1982 in retaliation for filing her first complaint. This claim was resolved in plaintiff's favor at the administrative level and TVA was ordered to reinstate plaintiff with back pay and applicable promotions. In Count II of her district court complaint, plaintiff alleged that she had been improperly classified when she returned to work in July 1984. The district court found that Count II had not been presented within the statutory 30-day period for appealing a final administrative order. 42 U.S.C. Sec. 2000e-16(c).
Prior to submission of their final motions for summary judgment, the defendants made the following stipulations:
If plaintiff establishes by a preponderance of the evidence that Dr. Lane influenced the decision making process which resulted in the selection of Cynthia N. Biggers for the position of administrative officer trainee, effective September 21, 1980, and if plaintiff establishes by a preponderance of the evidence that Dr. Lane's influence was a factor in that selection, then defendants agree that plaintiff will have established her case of discrimination by sexual harassment with respect to plaintiff's nonselection for that position.
If plaintiff establishes by a preponderance of the evidence that Dr. Lane influenced the decision making process which resulted in disciplining plaintiff for her involvement in the January 5, 1981 altercation, and if plaintiff establishes by a preponderance of the evidence that Dr. Lane's influence was a factor in that decision, defendants agree that plaintiff will have established her case of discrimination by sexual harassment with respect to that issue.
The district court granted summary judgment on October 31, 1985, and dismissed the entire action. The court determined that plaintiff had failed to establish the existence of a genuine issue of material fact with respect to plaintiff's claim that Dr. Lane had influenced either the selection of the other candidate for the administrative position or the decision to suspend plaintiff. The district court also concluded that plaintiff's nonselection claim should be dismissed because it had not been brought to the attention of an EEO counselor within 30 days as required by regulations. 29 C.F.R. Sec. 1613.214(a)(1) (1986).
We have examined the depositions and affidavits in support of and in opposition to summary judgment and agree with the decision of the district court on the merits of the two claims contained in the original complaint. Reading plaintiff's evidence with indulgence and giving her the benefit of every reasonable inference, there is no genuine issue of material fact with respect to the claims that plaintiff's nonselection and suspension were brought about by Dr. Lane's influence. The evidence to the contrary by those who made the decisions was unrebutted and plaintiff produced nothing but speculation and hypothesis. As the Supreme Court recently stated:
[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). We believe this is such a case.
Although the district court found no merit in plaintiff's claims, it made the additional determination that her nonselection claim was barred because it was untimely filed. This ruling raises an issue that this court has not addressed directly, and which is likely to arise in other cases. The regulation relied upon by the district court provides:
(a) Time limits. (1) An agency shall require that a complaint be submitted in writing by the complainant or his representative and be signed by the complainant. The complaint may be delivered in person or submitted by mail. The agency may accept the complaint for processing in accordance with this subpart only if:
(i) The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe he had been discriminated against within 30 calendar days of the date of that matter, or, if a personnel action, within 30 calendar days of its effective date; and
(ii) The complainant or his representative submitted his written complaint to an appropriate official within 15 calendar days of the date of his final interview with the Equal Employment Opportunity Counselor.
* * *
* * *
(4) The agency shall extend the time limits in this section: (i) When the complainant shows that he was not notified of the time limits and was not otherwise aware of them, or that he was prevented by circumstances beyond his control from submitting the matter within the time limits; or
(ii) for other reasons considered sufficient by the agency.
29 C.F.R. Sec. 1613.214 (1986.)
Plaintiff began discussions with EEO counselor Wellington on September 29, 1980, within 30 days of notification that she had been denied the administrative position she sought. However, she last met with Wellington on October 27, 1980, without filing an administrative complaint. Plaintiff received two letters thereafter advising her that she "must" contact Wellington within 15 days if she wished to proceed with her charges. Plaintiff took no further action until February 3, 1981, when she contacted a different EEO counselor regarding her suspension for fighting. As a result of this counseling, an administrative complaint was filed raising both the nonselection and suspension claims. Plaintiff did not refer to her earlier counseling with Wellington in that complaint. Plaintiff arues on appeal that it was only after she was suspended in January 1981 that she learned of Dr. Lane's involvement in her employment difficulties and realized that she was being subjected to sexual harassment.
The district court concluded that the 30-day period for bringing a complaint to the attention of an EEO...
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