Howell v. Department of the Army

• Decision Date: 30 January 1997
• Docket Number: Civil Action No. 96-T-261-S.
• Citation: 975 F.Supp. 1293
• Parties: James F. HOWELL, Plaintiff, v. DEPARTMENT OF THE ARMY and Togo D. West, Jr., Secretary of the Army, Defendants.
• Court: U.S. District Court — Middle District of Alabama

975 F.Supp. 1293

James F. HOWELL, Plaintiff, v. DEPARTMENT OF THE ARMY and Togo D. West, Jr., Secretary of the Army, Defendants.

Civil Action No. 96-T-261-S.

United States District Court, M.D. Alabama, Southern Division.

January 30, 1997.

COPYRIGHT MATERIAL OMITTED

Joel M. Nomberg, Dothan, AL, for plaintiff.

Redding Pitt, U.S. Atty., Ann Ashton Holmes, U.S. Atty's Office, Montgomery, AL, for defendants.

MYRON H. THOMPSON, Chief Judge.

In this lawsuit, plaintiff James F. Howell, a white federal employee working for the Department of the Army at Fort Rucker, Alabama, charges that he had suffered employment discrimination on the basis of his race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17, when he was passed over for promotion in 1984, and again in 1991, in favor of an allegedly less-experienced and less-qualified black employee. He further charges that the Army failed to comply with the terms of a written negotiated settlement agreement ("NSA") entered into by the parties.¹ Howell names as defendants the Department of the Army and its Secretary. He seeks to invoke the court's federal-question jurisdiction, 28 U.S.C.A. § 1331, and jurisdiction under the general civil rights statute, 28 U.S.C.A. § 1343.²

This lawsuit is now before the court on defendants' motion to dismiss or, in the alternative, for summary judgment. For the reasons that follow, the court concludes that the defendants' motion should be granted.

I. MOTION TO DISMISS AND SUMMARY JUDGMENT

Defendants rest their motion to dismiss or, in the alternative, motion for summary judgment on the grounds that Howell has no cause of action, because his administrative complaint was time-barred for missing regulatory filing deadlines, and that this court has no subject-matter jurisdiction to review the EEOC's final decision regarding an alleged breach by the Department of the Army of an NSA.

A number of courts regard regulatory deadlines applying to federal employee lawsuits against the government as akin to statutes of limitations, rather than jurisdictional requirements. See, e.g., National Cement Co. v. Federal Mine Safety and Health Review Comm'n, 27 F.3d 526, 530 (11th Cir. 1994); Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1525 (11th Cir.1983) ("[A]ll Title VII procedural requirements to suit are henceforth to be viewed as conditions precedent to suit rather than as jurisdictional requirements."); Johnson v. Runyon, 47 F.3d 911, 917 (7th Cir.1995); Bohac v. West, 85 F.3d 306, 311 (7th Cir.1996); Barrow v. New Orleans S.S. Ass'n, 932 F.2d 473, 476-77 (5th Cir.1991) ("If an EEOC charge is untimely filed, a suit based upon the untimely charge should be dismissed.").

This approach has two practical and procedural consequences. First, failure to meet a filing deadline constitutes failure to state a claim for purposes of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Oaxaca v. Roscoe, 641 F.2d 386, 391 (5th Cir. April 3, 1981)³; Thompson v. West, 883 F.Supp. 1502, 1507 (M.D.Ala.1995). Second, as with statutes of limitations in general, equitable tolling applies in certain instances to excuse failures to timely file. Mosley v. Pena, 100 F.3d 1515, 1517 (10th Cir.1996); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir.1996); 29 C.F.R. § 1614.604(c) ("The time limits in this part are subject to waiver, estoppel and equitable tolling."). Of course, "A complaining party in a Title VII case bears the burden of providing the justification for application of equitable tolling principles." Wilson v. Secretary, Department of Veterans Affairs, 65 F.3d 402, 404 (5th Cir. 1995).

At least one court has recently held that meeting all administrative filing deadlines is a jurisdictional requirement for eventually filing suit in federal court, and that failure to meet all deadlines constitutes failure to exhaust administrative remedies, resulting in no waiver of sovereign immunity under Title VII, and a corresponding lack of subject-matter jurisdiction under Rule 12(b)(1), rather than Rule 12(b)(6), of the Federal Rules of Civil Procedure. Dillard v. Runyon, 928 F.Supp. 1316, 1322-23 (S.D.N.Y.1996) ("A federal employee's suit after failure to avail herself of her administrative remedies ... in a timely fashion, does not trigger the waiver of sovereign immunity and deprives a federal court of subject-matter jurisdiction to hear that employee's [Title VII] claim.").

However, the Dillard court's approach produces a distinction without a difference, for two reasons. First, and admittedly, a court can look at depositions, affidavits and other documents to examine the basis of its own subject-matter jurisdiction under Rule 12(b)(1).⁴ However, given the same supporting evidence, a court may choose to convert a Rule 12(b)(6) motion to dismiss into a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, as discussed below, thereby yielding a judgment about the propriety of allowing the case to go forward based on exactly the same evidence. Second, interpreting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), the Dillard court demonstrated that, even if failure to timely file is treated as a jurisdictional bar, the "jurisdictional nature of the deadlines and the possibility that they may be equitably tolled are not at all inconsistent," id. at 1324, which brought it to the same result reached by courts treating the time limits as more akin to statutes of limitations. In other words, in this context, analysis of subject-matter jurisdiction and analysis of whether a cause of action is stated for which the court can grant relief converge. Cf. McGinty v. United States Dep't of the Army, 900 F.2d 1114, 1118 (7th Cir.1990) ("We need not decide whether [case law] would require the ADEA administrative deadlines to be treated like statutes of limitations rather than jurisdictional prerequisites because McGinty's complaint must be dismissed under either analysis.").

Both sides in this action submitted documents outside the pleadings to support their respective positions. According to Rule 12(b) of the Federal Rules of Civil Procedure, "If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleadings to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the matter shall be treated as one for summary judgment and disposed of as provided in Rule 56." Because the court has chosen to consider these submissions, the motion to dismiss to the extent it rests on subsection (6) can effectively be treated as a summary-judgment motion. Fikes v. City of Daphne, 79 F.3d 1079, 1083 (11th Cir.1996). This conversion is at the court's own discretion. Jones v. Automobile Ins. Co. of Hartford. Conn., 917 F.2d 1528, 1532 (11th Cir. 1990). However, once the court chooses to consider materials outside the pleadings and treat the motion as one for summary judgment, the court is ordinarily required to give "clear notice of the need to file affidavits or other responsive materials and of the consequences of default." Farred v. Hicks, 915 F.2d 1530, 1534 (11th Cir.1990). The law of this circuit requires strict adherence to the 10-day notice provision of Rule 56. Jones, 917 F.2d at 1531.

However, in this case, the motion has been made, from the outset, in the alternative for summary judgment. Therefore there can be no question but that the parties have always been on notice, and are represented by counsel who can be presumed to appreciate "the need to file affidavits or other responsive materials and of the consequences of default." Additional or special protective notice is therefore not required before the court may proceed to treat the motion as one for summary judgment. Cf. Bohac, 85 F.3d at 312, 313 ("In addition, the district court's conversion of the Army's motion cannot have come as a surprise to Bohac as both parties presented material outside the pleadings.").

Rule 56(c) provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Once the party seeking summary judgment has informed the court of the basis for its motion, the burden shifts to the non-moving party to demonstrate why summary judgment would be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993) (discussing how the responsibilities on the movant and the nonmovant vary depending on whether the legal issues, as to which the facts in question pertain, are ones on which the movant or nonmovant bears the burden of proof at trial). In making its determination, the court must view all evidence and any factual inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

II. BACKGROUND

The facts of this case, when viewed in a light most favorable to Howell, are as follows. Howell began working as a firefighter at Fort Rucker in 1973. On August 17, 1993, he first contacted an EEO counselor to complain that he had been the victim of race discrimination. Specifically, Howell claimed that, in 1984, a black applicant with lesser qualifications was promoted over him to the position of Lead Firefighter, and that again, in 1991, the same individual was preselected and promoted ahead of him to the position of Station Chief. Howell says that he only learned about the impermissible, discriminatory grounds upon which he had not been considered for promotion in a conversation with Fire Chief Grammont, which conversation occurred less than 45 days before Howell filed his complaint with the EEO...