Dillon v. Frank

• Decision Date: 15 January 1992
• Docket Number: No. 90-2290,90-2290
• Citation: 952 F.2d 403
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 144, 58 Empl. Prac. Dec. P 41,332, 60 USLW 2471 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Ernest DILLON, Plaintiff-Appellant, v. Anthony M. FRANK, Postmaster General, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 403

952 F.2d 403

58 Fair Empl.Prac.Cas. (BNA) 144,

58 Empl. Prac. Dec. P 41,332, 60 USLW 2471

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Ernest DILLON, Plaintiff-Appellant, v. Anthony M. FRANK, Postmaster General, Defendant-Appellee.

No. 90-2290.

United States Court of Appeals, Sixth Circuit.

Jan. 15, 1992.

Before BOGGS, Circuit Judge; BAILEY BROWN, Senior Circuit Judge; and GIBBONS, District Judge. ^*

BOGGS, Circuit Judge.

Ernest Dillon is a middle-aged man and a former employee of the United States Postal Service. This case concerns his departure from that employment. During his tenure, Dillon was taunted, ostracized, and physically beaten by his co-workers because of their belief that he was a homosexual. Dillon contends that he left the employ of the Postal Service because of the cruel treatment he received from his co-workers. He asks the federal courts to redress that cruelty under the authority provided to us by Title VII of the 1964 Civil Rights Act and the Federal Tort Claims Act. While we sympathize with his plight, we are constrained to hold that he has not stated a cause of action under Title VII and that his FTCA claim was procedurally defective. We therefore affirm the district court's dismissal of his claims.

I

Dillon worked as a mail handler at the Bulk Mail Center at Allen Park, Michigan. He started work in 1980, but his difficulties did not begin until late 1984. ¹ A fellow employee, Kenneth Barrett, began calling Dillon "fag," and saying that "Dillon sucks dicks." Barrett also pushed materials into Dillon's work area, and turned off the bathroom lights when Dillon entered. This continued for five months, culminating in a physical assault by Barrett on Dillon in which Dillon suffered numerous injuries. The Postal Service fired Barrett as a result.

This did not end Dillon's travails. What had begun as a one-man band expanded into a full orchestral assault of verbal abuse. Other employees used similar epithets. Graffiti, the last refuge of the courageous, appeared on conveyor belts and Dillon's loading trucks informing the mail center that "Dillon sucks dicks" and "Dillon gives head." Dillon endured these circumstances for three years before he finally resigned in 1988 upon advice from his psychiatrist.

The Bulk Mail Center's management was well aware of these events. Dillon complained to eight different supervisors, and two union representatives. Management allegedly did nothing more than admonish the harassers, and hold meetings detailing the policy against sexual harassment in place at the center. Dillon alleges that management finally threw up their hands in despair, telling Dillon not to waste their time with his complaints and to fight back when taunted.

Dillon's pro se complaint states that he filed a formal complaint with the Equal Employment Opportunity Commission ("EEOC"), and the defendant's answer admits this allegation. There is no documentation of any dealings between Dillon and the EEOC in the record, nor did Dillon include any details of his dealings with the EEOC in his pleadings. Dillon does not include, for example, the date of his initial filing with the EEOC, the form detailing the substance of the complaint that he allegedly brought before the EEOC, or any "Right To Sue" letter he may have received from the EEOC. Nevertheless, Dillon states in his brief that the administrative law judge initially hearing his EEOC case ruled in his favor, finding that Dillon had proved he was sexually harassed and that the Postal Service both knew about the harassment and failed to take effective steps to counteract it. Dillon alleges that this ruling was rejected by the Postal Service, and that the EEOC Office of Review and Appeals agreed with the Service, holding that "Title VII's prohibition of sexual harassment ... does not apply to sexual orientation."

Dillon then sued in federal court, alleging sexual harassment under Title VII and the tort of intentional infliction of emotional distress under Michigan law, made applicable to a federal agency by the Federal Tort Claims Act ("FTCA"). Defendant filed a motion urging dismissal under Rules 12(b)(1) and (b)(6), FED.R.CIV.P. The Title VII claim was attacked only for failure to state a claim under 12(b)(6). The district court agreed with defendant. The court dismissed the Title VII claim on two independent grounds, one jurisdictional and the other substantive. The court held, on its own motion, that Dillon had failed to establish that the court had jurisdiction under Title VII, as he had failed to plead that he had exhausted his EEOC remedies by timely filing a charge with the EEOC. The court also noted that Dillon had failed to plead that he had received a "Right To Sue" letter from the EEOC, a prerequisite to jurisdiction under Title VII. Substantively, the court found that Title VII does not prohibit discrimination based on sexual preference or orientation. The court dismissed the FTCA claim on purely procedural grounds. The court found that Dillon had not alleged that he had submitted a claim demanding a sum certain to the Postal Service prior to filing suit, as required by the FTCA. The court also found that Dillon had sued an improper party defendant, as the FTCA only permits suits against the United States, not individual federal agencies. Dillon's timely appeal followed.

II

We turn first to the jurisdictional issue. We note that we have been able to find no cases that require a specific pleading of jurisdictional facts in the complaint when the necessary facts actually exist. Dillon filed his complaint pro se. In it, he stated a proper general basis for the district court's jurisdiction, the federal question jurisdiction of 28 U.S.C. § 1331. He also stated in the complaint that he had filed a complaint with the EEOC, but did not specifically allege that this claim was filed in a timely fashion, nor that he had received a "Right to Sue" letter and initiated this case in a timely manner following the receipt of that letter.

Had the defendant challenged subject matter jurisdiction of the Title VII action by a motion under Rule 12(b)(1), there is no doubt that plaintiff would have been required to prove any contested jurisdictional facts. See Rogers v. Stratton Indus., 798 F.2d 913 (6th Cir.1986). However, defendant made no such motion, and thus plaintiff had no notice that he might have to defend jurisdiction over the Title VII complaint.

Rather, the district court, completely on its own motion, stated that it lacked subject matter jurisdiction of the Title VII claim, though it also dismissed that part of the complaint for failure to state a claim. This was the first time that defendant, who had now obtained a lawyer, had any indication that there might be a jurisdictional problem.

While it certainly would have been better tactically for plaintiff to have filed a motion for reconsideration containing whatever proof of the jurisdictional facts plaintiff may have, such an action is not required for us to consider the propriety of the judge's action.

In defense of the judge's action, the appellee in his brief has not argued that a plaintiff is required to place in his pleadings all of the necessary jurisdictional facts. Rather, he correctly asserts that "one of the mandatory prerequisites to filing a civil action under Title VII is the timely exhaustion of administrative remedies." However, the brief does not even contend that plaintiff did not in fact properly and timely exhaust his administrative remedies. It cites Moir v. Greater Cleveland Regional Transit Auth., 895 F.2d 266, 269 (6th Cir.1990), for the proposition that the court does not have jurisdiction "[w]ithout [a] showing by plaintiff that he complied with the administrative prerequisites to suit." However, Moir does not support that proposition. It simply states that "[w]here subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." (Emphasis added). Thus, this case is not authority either for the necessity of pleading jurisdictional facts, nor is it authority for a court dismissing an action sua sponte and without notice where such facts have not been pled.

In a Third Circuit case, Gooding v. Warner-Lambert Co., 744 F.2d 354 (3d Cir.1984), the court reversed a similar dismissal even where the facts giving subject matter jurisdiction may not have existed at the time of the filing of the complaint, where they in fact existed at a later time. The court held that even when a specific motion to dismiss was filed, leave to amend should have been granted even if the motion was correct. Id. at 359.

Dismissal of a case on the court's own motion is rare, and generally disfavored. Murphy v. Lane, 833 F.2d 106 (7th Cir.1987). Cases permitting such dismissals almost invariably involve either patently frivolous lawsuits, see Baker v. Director, U.S. Parole Comm'n, 916 F.2d 725 (D.C.Cir.1990); Crowley Cutlery Co. v. United States, 849 F.2d 273 (7th Cir.1988), or for want of prosecution, see, e.g., Daniels v. Brennan, 887 F.2d 783 (7th Cir.1989). See also Boudwin v. Graystone Ins. Co., 756 F.2d 399 (5th Cir.1985). However, with the exception of the Third Circuit case cited previously, we are unable to find any reported cases of litigation involving the type of sua sponte dismissal for lack of subject matter jurisdiction that is present here. A number of courts have specifically held that a court may not sua sponte dismiss a case for lack of personal jurisdiction. Kapar v. Kuwait Airways Corp., 845 F.2d 1100 (D.C.Cir.1988); Lipofsky v. New York State Workers Compensation Bd., 861 F.2d 1257 (11th Cir.1988); Pilgrim Badge & Label Corp. v. Barrios, 857 F.2d 1 (1st Cir....