Fernandez v. Chertoff

• Decision Date: 05 December 2006
• Docket Number: Docket No. 05-0426-cv.
• Parties: Edwin F. FERNANDEZ, Plaintiff-Appellant, v. Michael CHERTOFF,<SMALL><SUP>1</SUP></SMALL> Secretary, Department of Homeland Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

471 F.3d 45

Edwin F. FERNANDEZ, Plaintiff-Appellant, v. Michael CHERTOFF,¹ Secretary, Department of Homeland Security, Defendant-Appellee.

Docket No. 05-0426-cv.

United States Court of Appeals, Second Circuit.

Argued: October 17, 2005.

Decided: December 5, 2006.

COPYRIGHT MATERIAL OMITTED

Richard Merritt, Lindenhurst, NY, for Plaintiff-Appellant.

Steven M. Warshawsky, Assistant United States Attorney for the Eastern District of New York (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Varuni Nelson, Assistant United States Attorney, on the brief), Brooklyn, NY, for Defendant-Appellee.

Before: MINER, KEARSE, and HALL, Circuit Judges.

MINER, Circuit Judge.

Plaintiff-appellant Edwin F. Fernandez ("Fernandez") appeals from a judgment of the United States District Court for the Eastern District of New York (Gleeson, J.) dismissing his Complaint against defendant-appellee Michael Chertoff, as Secretary of the Department of Homeland Security ("Department"), for failure to state a claim upon which relief can be granted. Fernandez, who is of Puerto Rican ethnicity, commenced this action pro se under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), alleging employment discrimination on account of his race, sex, and national origin after the Department denied his request to be reinstated to his former position as a Canine Enforcement Officer ("CEO") following a two-year medical leave of absence. In his Complaint, Fernandez alleged that his labor union, the National Treasury Employees Union ("NTEU"), initially challenged the Department's decision denying his reinstatement by invoking arbitration under a collective bargaining agreement but later withdrew his grievance from arbitration when he rejected a proposed settlement.

The Department moved to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief could be granted, contending that Fernandez had not appealed to the Equal Employment Opportunity Commission ("EEOC") following the NTEU's withdrawal from arbitration and therefore failed to exhaust his administrative remedies under the Civil Service Reform Act of 1978 before filing his Title VII lawsuit. Following a hearing, the District Court determined that Fernandez had failed to exhaust his administrative remedies by not appealing his grievance to the EEOC, and the court further declined to apply equitable principles to excuse this failure. The court then granted the Department's motion and dismissed the Complaint. Because we conclude that the District Court, in declining to apply equitable principles to excuse Fernandez's failure, erred in failing to consider all of the unique circumstances of this case, we vacate the judgment of the District Court and remand for further proceedings consistent with this opinion.

BACKGROUND

I. Fernandez's Medical Leave of Absence and Return to Work

Fernandez was injured on August 5, 1999 when he slipped and fell down a stairway while working as a CEO at Newark Airport for the United States Customs Service (now Customs and Border Protection). As a result of his fall, Fernandez sustained injuries to his neck, right shoulder, and lower back and underwent rehabilitation that caused him to miss work from September 1999 to August 20, 2001, when he returned to active duty. In the intervening time period, Fernandez was examined by several doctors who evaluated his ability to return to work.

On July 5, 2000, Fernandez was examined by Dr. Michael Carciente, who opined that Fernandez did not suffer from any neurological injury that would prevent him from returning to work as a CEO. On July 18, 2000, Fernandez was examined by Dr. Andrew Weiss, who also concluded that Fernandez was capable of returning to active duty employment without any restrictions. On September 20, 2000, however, Fernandez was examined by Dr. Igor Stiler, who diagnosed him with a herniated disc in the lumbar region and with injuries to the thoracic and cervical spines. Stiler opined that Fernandez was considered to have a partial disability and approved his return to work on restricted duty only. The restrictions prevented Fernandez from lifting more than twenty pounds, sitting or standing in the same position for more than twenty minutes, and squatting, bending, or reaching above his head.

Fernandez forwarded Stiler's opinion letter to his supervisors on September 25, 2000 and requested to return to work in a light duty capacity. He was advised, however, that no light duty existed for the canine unit and that he was required to provide the Department with a physician's note indicating that he was able to return to full duty. On November 14, 2000, the Department sent Fernandez a letter setting forth his various options for returning to work or going on disability. On November 28, 2000, in response to an inquiry from the Department, Stiler confirmed that Fernandez was unable to return to full-duty employment due to his disc herniation and that his work restrictions should be considered permanent. On December 4, 2000, Fernandez again requested to return to work in a light duty capacity, but he received no response.

Subsequently, Fernandez was examined by Dr. Andrew Feldman, who opined that he would be able to return to work on full duty and without any restrictions on February 19, 2001. On March 16, 2001, Fernandez was examined by Dr. Areta Podhorodecki, who performed a functional capacity evaluation, concluded that he met the skill level requirements for a CEO, and also recommended that he return to full duty.

In light of the conflicting medical opinions, the Office of Workers' Compensation Programs referred Fernandez to Dr. Sanford Wert. Following an examination on April 30, 2001, Wert opined that there was no objective evidence of any disability and concluded that Fernandez could continue working in his pre-accident occupation in a normal capacity. Fernandez thereafter wrote a letter to Customs Service Area Director Kathleen Haage on May 4, 2001, advising that he had not heard from the Department about his return to work and that he was "fit, able and willing to return to work full duty." In addition, Fernandez alleged that he had been 22 "persecuted, discriminated and retaliated [against] because of previous [grievances] filed against [a] canine officer supervisor."

On July 18, 2001, Fernandez again notified the Department that he was prepared to return to work. Because his leave of absence had exceeded one year, however, the Department determined that it was not obligated to return him to his former CEO position and instead reassigned him to the position of a GS-9 Customs Entry Program Specialist in the World Trade Center, to commence August 20, 2001.

II. The NTEU Grievance Process and Fernandez's EEO Complaint

On September 7, 2001, Larry Tanacredi, president of the local chapter of the NTEU representing employees in the Customs Service, filed a grievance on behalf of Fernandez challenging the Department's decision to deny reinstatement and requesting a meeting to discuss dispute resolution. The collective bargaining agreement between the Department and the NTEU in place at that time permitted allegations of discrimination to be raised through the negotiated grievance process. Following delays in convening the meeting due to the events of September 11, 2001, the NTEU reiterated its demand for a dispute resolution meeting to address Fernandez's claim.

On October 22, 2001, an Equal Employment Opportunity ("EEO") Counselor in the Department was notified by NTEU that a grievance had been filed on Fernandez's behalf. Two days later, Fernandez was advised that he could not seek relief from the Equal Employment Opportunity ("EEO") Counselor because he had elected to resolve his complaint through the grievance process: "the filing of the NTEU grievance indicates that [Fernandez] has elected to pursue this matter via non-EEO process," and "[t]he same issue cannot be pursued through the EEO process." He was also advised that if he were dissatisfied with the result of the grievance proceeding, "he could contact an EEO Counselor within 45 days of completion of gr[ie]vance process (final action)." Despite this notice, on October 31, 2001, Fernandez contacted an EEO Counselor and filed an informal complaint alleging retaliation in connection with the Department's refusal to reinstate him. Fernandez then filed a formal EEO complaint on 5 November 15, 2001. The formal complaint was dismissed by letter on December 13, 2001. The letter advised Fernandez that his complaint of discrimination was being dismissed "because the matter was raised in a negotiated grievance procedure that permits allegations of discrimination." Significantly, the letter also indicated that "[t]he final decision on the grievance may be appealed to the EEOC."

On August 22, 2002, the NTEU, pursuing the dispute resolution process, invoked arbitration of Fernandez's grievance. On January 6, 2003, Fernandez authorized the appointment of NTEU Assistant Counsel Ralph Talarico as his representative. In December 2003, the Department offered to settle Fernandez's grievance by, among other things, placing him in a CEO position at John F. Kennedy International Airport, along with a promotion to GS-11. The NTEU, through Talarico, advised Fernandez to accept the offer or it would withdraw the grievance from arbitration. Dissatisfied with the terms of the proposed settlement, however, Fernandez refused to sign the agreement, which he believed to be a "trap door to termination" by the Department. On March 24, 2004, the NTEU withdrew the grievance from arbitration. Fernandez contends that he was not permitted to participate in the arbitration process.

Shortly thereafter, Fernandez contacted the EEOC to seek a right-to-sue letter, but his efforts were unsuccessful. Fernandez filed the instant Complaint on May 5, 2004. The form...