Carroll v. England

Decision Date18 May 2004
Docket NumberNo. CIV.A. 02-01072(HHK.,CIV.A. 02-01072(HHK.
Citation321 F.Supp.2d 58
PartiesCatherine C. CARROLL, Plaintiff, v. Gordon R. ENGLAND, Secretary of the Department of the Navy, Defendant.
CourtU.S. District Court — District of Columbia

Lisa Lyons Ward, Ellicott City, MD, for Plaintiff.

Oliver W. McDaniel, Washington, DC, for Defendant.

MEMORANDUM OPINION

KENNEDY, District Judge.

Catherine C. Carroll ("Carroll"), brings this action against Gordon R. England, Secretary of the Navy, in his official capacity ("Navy" or "the agency"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., alleging that the Navy discriminated against her on the basis of her race, gender, disability, and protected EEO activity. Before the court is the Navy's motion to dismiss or, in the alternative, for summary judgment. Upon consideration of the motion, the opposition thereto, and the record of this case, the court concludes that the motion must be granted.

I. BACKGROUND

Carroll, an African-American female, worked at Naval Sea Systems Command ("NAVSEA"), a division of the Navy, from 1991 until her resignation on December 3, 2002. Sometime in 1983, as the result of an automobile accident, Carroll began to suffer from migraine headaches, and in July 1995, she was placed on Alternate Work Schedule 5, the Navy's most flexible work schedule. Carroll claimed that her headaches worsened after a hit-and-run accident in July 1999. When Carroll made the administrative complaint that sets forth the allegations that underlie the present action, she was employed as a Personnel Assistant, GS-203-08.

1. Circumstances Underlying VLTP and Flexible Schedule Claims (Counts I and II)

In June 1997, Carroll submitted an application to become a "leave recipient" under the Voluntary Leave Transfer Program ("VLTP"), which allows federal employees to donate paid leave to other federal employees under certain circumstances. In March 2000, Maria Gay ("Gay"), program administrator in NAVSEA and Carroll's VLTP coordinator, determined that Carroll and six other VLTP participants whose medical information was more than six months old needed to update the documentation of their conditions. The updated documentation was due no later than April 4, 2000. When Gay did not receive an update from Carroll, Gay informed Carroll that she had been removed from VLTP effective April 22, 2000, but that she could be reinstated if she provided the updated documentation. Carroll provided a doctor's certificate dated May 25, 2000. Nevertheless, on June 13, 2000, Gay informed Carroll by email that she still needed to provide more information. The Navy claims that Gay requested additional medical information, including a doctor's statement describing the "medical emergency" from when Carroll entered the VLTP until the time the additional information was requested. See Def.'s Mot. for Summ. J. at 6 (citing Def.'s Ex. B. ("Gay Decl.")). Carroll asserts that Gay requested that she resubmit her original application for the VLTP because it was missing from NAVSEA's files. See Pl.'s Opp'n at 4 (citing Def.'s Ex. E at 2 ("Carroll Aff.")). In any event, by June 15, 2000, Carroll decided to discontinue her effort to re-enter the VLTP "because [she] no longer trusted the VLTP Coordinator or management's word that the documents would maintain the necessary confidentiality of [her] need to be placed in the VLTP." Carroll Aff. at 3.

On June 15, 2000, Carroll met with her second-level supervisor, William McCafferty ("McCafferty") and asked to be placed on an alternate work schedule, AWS-2, which would allow her to vary the time, between 6:30 a.m. and 9:00 a.m., when she would report to work. Carroll claims McCafferty did not act on her request. McCafferty asserts that at the time he believed that Carroll was already allowed to vary her arrival time. See Def.'s Ex. D at 85, 87 (Tr. of Investigation of Renee Loudermill) ("Tr."). In any case, on August 7, 2000, McCafferty granted Carroll's request for flexible arrival time but required her to send him an email when she arrived before 6:30 a.m. and after 9:00 a.m. Carroll claims that the requirement — obliging her to check in by email — constituted a refusal of her request for reasonable accommodation, Carroll Aff. at 4-5, and that McCafferty's letter was the first time the Navy had approved of the flexible schedule at all. Def.'s Ex. A ("Carroll Dep.") at 72. McCafferty insists that the letter simply reaffirmed that Carroll was already entitled to a flexible arrival time. On December 21, 2000, Carroll received, on a permanent basis, the flexible schedule she requested, though McCafferty granted her request "even in the absence of ... requested documentation." Tr. at 77.

On August 18, 2000, Carroll filed a formal complaint with the Equal Employment Opportunity Commission ("EEOC"), alleging race, sex and disability discrimination resulting from the agency's failure to grant her a flexible work schedule. On December 11, 2000, she sought to amend her complaint to allege discrimination in her removal from the VLTP. The agency denied her request, indicating that though she mentioned her removal from VLTP in EEO counseling, she failed to include it in her formal complaint.

2. Circumstances Underlying Other Claims

When the events underlying Counts I and II were happening, Carroll claims that she experienced other acts of discrimination. First, on June 12, 2000, a Personnel Management Specialist position (GS-12) became available. The job announcement closed on June 23, 2000. The Navy asserts that, as of July 14, 2000, only one candidate appeared on the Certificate of Eligibles — a non-disabled African-American female — and she was hired. Carroll alleges, however, that she applied for the job but that the Navy did not consider her application.

Second, on August 3, 2000, Carroll requested an ergonomic chair because of her "chronic back pain." She made the request again on September 15, 2000, and selected a chair on September 28, 2000. It was not until October 23, 2000, however, when the chair was ordered and picked up.

Third, on September 18, 2000, two job announcements for Management Analyst positions within NAVSEA were posted on the Navy and NAVSEA websites. The announcements closed on September 22, 2000. On October 3, 2000, the jobs were filled by a white, disabled female, and a white, non-disabled female.

Fourth, and finally, Carroll received two incentive awards — one on June 4, 2000 for $250 and one on July 30, 2000 for $500. Traditionally, NAVSEA gave performance awards at the end of the fiscal year based on an individual's performance rating. However, starting in the late 1990s, NAVSEA began giving incentive awards during the year rather than year-end performance awards. Def.'s Ex. F at 1 ("Flynn Aff."). Bonita Flynn, director of corporate operations for Carroll's division, NAVSEA 09B, decided that only incentive awards would be given to employees in fiscal year 2000. See id. at 1-2. Carroll alleges that some employees received incentive awards during 2000 and year-end performance awards.

3. Allegations of the Complaint

On May 31, 2002, Carroll timely filed the present action, alleging the following:

(1) The Navy refused to reasonably accommodate her disability by removing her from the VLTP, Compl. ¶¶ 13-15 ("Count I");

(2) The Navy denied her reasonable request for a flexible work schedule because of her race and disability, Compl. ¶¶ 16-18 ("Count II");

(3) The Navy failed to reasonably accommodate her disability by failing to timely provide an ergonomic chair, Compl. ¶¶ 19-21 ("Count III");

(4) The Navy did not consider her for the Personnel Management Specialist position because of her disability and in retaliation for her prior requests, Compl. ¶¶ 22-24 ("Count IV");

(5) The Navy failed to provide her a year-end award in fiscal year 2000 because of her race, gender and disability, and in retaliation for her EEO activity, ¶¶ 25-27 ("Count V");

(6) The Navy excluded her from eligibility for two positions because of her disability and in retaliation for her previous EEO activity, Compl. ¶¶ 28-29 ("Count VI").

II. ANALYSIS
A. Counts III and IV

The Navy asserts that Carroll's claims in Counts III and IV are barred because she failed to exhaust administrative remedies with respect to these claims. Consequently, the Navy contends that this court does not have subject matter jurisdiction with respect to these claims.1 The Navy is correct.

In actions brought under Title VII and the Rehabilitation Act, a court can exercise jurisdiction over only those claims contained in a plaintiff's administrative complaint or claims "like or reasonably related to" those in the administrative complaint and with respect to which the plaintiff exhausted her administrative remedies. Park v. Howard Univ., 71 F.3d 904, 907 (D.C.Cir.1995) (internal quotation marks and citation omitted); Caldwell v. ServiceMaster Corp., 966 F.Supp. 33, 49 (D.D.C.1997). It is an agency's burden to prove by a preponderance of the evidence the plaintiff's failure to exhaust administrative remedies. Brown v. Marsh, 777 F.2d 8, 13 (D.C.Cir.1985) ("Because untimely exhaustion of administrative remedies is an affirmative defense, the defendant bears the burden of pleading and proving it.").

Under 29 C.F.R. § 1614.105(a)(1), an employee who alleges discrimination must consult an agency EEO counselor before filing a complaint of discrimination, and must do so within 45 days of the "matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.101(a)(1).

Carroll does not dispute the fact that she failed to exhaust her administrative remedies with regard to Counts III and IV. Instead, she asserts that her failure to do so is excused....

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