Dollis v. Rubin
| Decision Date | 14 December 1995 |
| Docket Number | No. 95-30312,95-30312 |
| Citation | 77 F.3d 777 |
| Parties | 70 Fair Empl.Prac.Cas. (BNA) 517, 68 Empl. Prac. Dec. P 44,180 Mary DOLLIS, Plaintiff-Appellant, v. Robert E. RUBIN, Secretary of the Department of the Treasury, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ronald Alfred Welcker, Welcker and Associates, New Orleans, LA, for plaintiff-appellant.
Glenn Kenneth Schreiber, Assistant U.S. Attorney, U.S. Attorney's Office, New Orleans, LA, for defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GARWOOD, WIENER and PARKER, Circuit Judges.
Plaintiff-appellant, Mary Dollis ("Dollis"), instituted suit below against the defendant-appellee, the Secretary of the Department of the Treasury ("Secretary"), Robert Rubin, asserting numerous causes of action under Title VII, 42 U.S.C. § 2000e, et seq. The trial court granted the Secretary's motion for summary judgment as to all of Dollis' claims that were properly before the court. Finding no error, we affirm.
At all relevant times Dollis was employed as an Equal Employment Opportunity ("EEO") Specialist in the southern region of the U.S. Customs Service. Her job classification was General Service ("GS") level 11. In January, 1991, Dollis' immediate supervisor left the U.S. Customs Service after unsuccessfully attempting to promote Dollis in December 1989, and again in January, 1991. For the remainder of 1991, Dollis functioned as an EEO Specialist without a day to day supervisor. During that time Dollis made several more requests for a promotion. She was eventually given a temporary promotion to the GS-12 level for a 120 day period from August to December of 1991. However, at the end of this temporary promotion Dollis returned to a GS-11 level.
Dissatisfied with her GS-11 level, Dollis sought a desk audit 1 in February of 1992, but was informed by the U.S. Customs Regional Commissioner that the audit would have to wait until the new EEO manager arrived. Dollis then filed the first of four formal administrative complaints, 2 which form the basis of this lawsuit. The administrative complaints alleged that Dollis had been the victim of racial and sexual discrimination and that she had been retaliated against for entering the EEO complaint process.
The issues certified in each administrative complaint by the Treasury's Regional Complaint Center (RCC) were as follows:
Issue 1: Whether on February 18, 1992, the complainant, a GS-260-11, was harassed by the denial of a desk audit which restricted her promotional opportunities and upward mobility, because of her sex (female), her race (Black), or in retaliation for her involvement in the EEO complaints process, as a member of the Regional EEO staff.
Issue 2: Whether on February 28, 1992, the complainant was denied attendance to a training conference, "Partnership for the Future", because of her sex (female), her race (Black), or in retaliation for her involvement in the EEO complaints process, as a member of the Regional EEO staff.
Issue 1: Whether on April 21, 1992, the complainant was given false information regarding the return of a self-nomination for an award for the Federal Women's Issue 2: Whether on April 21, 1992, the complainant was given false information regarding the APC code numbers to be used for allocation of travel funds, in retaliation for filing a previous complaint of discrimination.
Program, in retaliation for filing a previous complaint of discrimination.
Issue 1: Whether on July 6, 1992, the complainant was harassed when she was informed of the requirement that the EEO Manager approve each handwritten document prepared by her, based on her sex (female), her race (black), or in her retaliation for her participation in the EEO complaints process.
Issue 1: Whether on July 7, 1992, the complainant was harassed when a vendor was informed of an incorrect procurement procedure taken by her, because of her sex (female), her race (Black), or in retaliation for her participation in the EEO complaints process.
Each of the RCC's letters accepting Dollis' administrative complaints stated:
If you disagree with the issue of the complaint as set forth above you must notify me, in writing, no later than five (5) days of receipt of this letter. If you do not respond within that time and do not disagree with the matters to be investigated, I will proceed with the next step in the processing of this complaint.
Dollis never objected to the issues as stated by the RCC. Consequently, we must assume that the issues were correctly framed.
An EEO investigator conducted an investigation of all four administrative complaints from July 27 to July 31, 1992. On September 15, 1992, the RCC issued its proposed dispositions of the four administrative complaints. The RCC informed Dollis that her allegations were not supported by the evidence and, therefore, the RCC's proposed dispositions were that no discrimination or retaliation occurred relative to any of her claims. Dollis was informed of her appeal options.
Dollis received a desk audit in February of 1993, almost one year after the time that she initially requested it. The desk audit revealed that the work she was required to perform was consistent with that of a GS-11 level employee. Consequently, Dollis was not promoted to the GS-12 level.
On September 9, 1993, Dollis filed her complaint in district court alleging numerous Title VII violations. The portions of the district court complaint relevant to this appeal alleged that Dollis had been unlawfully discriminated against when she was denied a promotion and unlawfully retaliated against in unspecified ways. 3 The parties then consented to proceed to trial of the matter before a magistrate judge pursuant to 28 U.S.C. § 636(c).
On March 3, 1995, the Secretary moved to dismiss Dollis' lawsuit asserting two theories. First, that the court lacked jurisdiction over those matters in Dollis' lawsuit for which she sought relief but which she had not previously aired through the agency's administrative process. Second, the remaining matters in the complaint which had been administratively exhausted were either moot and/or failed to comprise "adverse personnel actions" 4, and therefore failed to state a claim for which the court could provide a remedy under 42 U.S.C. § 2000e-16. Dollis filed a lengthy opposition to the Secretary's motion on March 15, 1995.
This court reviews grants of summary judgment de novo. Fireman's Fund Ins. Co. v. Murchison, 937 F.2d 204, 207 (5th Cir.1991). For purposes of determining whether the grant of summary judgment was proper, we view the evidence presented to the trial court in a light most favorable to the nonmovant. Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1078 (5th Cir.1995). The magistrate granted the Secretary's motion for summary judgment based upon two grounds. The first being that Dollis had failed to administratively exhaust allegations contained in her district court complaint, and second, that those issues which Dollis had administratively exhausted were either moot and/or not cognizable under Title VII.
The filing of an administrative complaint is ordinarily a jurisdictional prerequisite to a Title VII action. Ray v. Freeman, 626 F.2d 439, 442 (5th Cir.1980), cert. denied, 450 U.S. 997, 101 S.Ct. 1701, 68 L.Ed.2d 198 (1981). Because of this requirement, we must examine Dollis' complaint in light of the charges filed in her administrative complaint in order to determine whether she satisfied this jurisdictional prerequisite. A Title VII cause of action
may be based, not only upon the specific complaints made by the employee's initial EEOC charge, but also upon any kind of discrimination like or related to the charge's allegations, limited only by the scope of the EEOC investigation that could reasonably be expected to grow out of the initial...
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