Jorge v. Rumsfeld

Decision Date21 April 2005
Docket NumberNo. 04-1772.,04-1772.
Citation404 F.3d 556
PartiesMiriam JORGE et al., Plaintiffs, Appellants, v. Donald H. RUMSFELD, Secretary, United States Department of Defense, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

Marie Elsie López-Adames, with whom González-López & López-Adames was on brief, for appellants.

Fidel A. Sevillano Del Rio, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Miguel A. Fernandez, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, SELYA and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

Plaintiff-appellant Miriam Jorge brought a discrimination suit against her government employer.1 The district court ruled that Jorge's cause of action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, was time-barred and that her claim under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-2(a)(1), was foreclosed because she had not exhausted her administrative remedies. After careful perscrutation of the briefs and record, we affirm the judgment below.


This appeal follows a dismissal for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6).2 Consequently, we accept the well-pleaded facts as true and indulge all reasonable inferences therefrom in the plaintiff's favor. LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir.1998). We augment those facts with facts extractable from documentation annexed to or incorporated by reference in the complaint and matters susceptible to judicial notice. See In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 14 (1st Cir.2003); see also Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st Cir.1998) ("When, as now, a complaint's factual allegations are expressly linked to — and admittedly dependent upon — a document (the authenticity of which is not challenged), that document effectively merges into the pleadings and the trial court can review it in deciding a motion to dismiss under Rule 12(b)(6)."). Moreover, the district court appropriately may consider the whole of a document integral to or explicitly relied upon in a complaint, even if that document is not annexed to the complaint. See Clorox Co. P.R. v. Proctor & Gamble Comm'l Co., 228 F.3d 24, 32 (1st Cir.2000).

Applying these tenets to the instant record enables us to mine certain additional nuggets of information. The correspondence between Jorge's attorney and the Equal Employment Opportunity Commission (EEOC) — most notably, the right-to-sue letter upon which Jorge predicates her claim of exhaustion — falls within this parameter. So to does Jorge's notice of retirement. With this in mind, we rehearse the relevant facts.

Between 1973 and 2001, Jorge worked for the Army and Air Force Exchange Services (AAFES), a commissary program for military personnel administered by the Department of Defense. In 1979, she became the retail manager of Toyland, an AAFES-operated store on the premises of Fort Buchanan (which is located in Guaynabo, Puerto Rico). Jorge remained in this position for nearly two decades until, at the age of fifty-one, she elected to make a lateral transfer to the Base Muniz Shoppette (which is located at a National Guard installation some twelve miles away). Jorge claims, and the defendants do not contest, that she was a model employee who, both at Toyland and at the Shoppette, consistently exceeded sales and performance targets set by senior management.

Jorge began working at the Shoppette in 1998. Soon thereafter, AAFES assigned Debra Baynard to oversee its operations in the region. The relationship between Baynard and Jorge quickly turned frosty. From Jorge's point of view, Baynard altered the workplace by insisting upon, and rigorously enforcing, an English-only policy and by undermining Jorge's managerial authority in insidious ways. When Jorge complained about Baynard's policies and practices, Baynard allegedly made derogatory comments about her age.

The situation came to a head early in 2000 when, during Jorge's vacation, Baynard unilaterally transferred her back to her former position at Toyland and filled the position she had occupied at the Shoppette with a younger, less experienced man who spoke only English. After Jorge's vacation ended on March 4, 2000, she met with Baynard, who served formal notice of the job shift without offering Jorge any explanation for it.

Jorge refused to report for duty at Toyland. Instead, she exhausted her accrued vacation time and sick leave while trying to get herself reinstated at the Shoppette. Even after her efforts proved unsuccessful, she refused to assume her duties at Toyland. In due course, AAFES informed her that, pursuant to settled agency regulations, her extended absence had led to the forfeiture of any right she may have had to regain her position at the Shoppette. Jorge was given two options at that juncture: return to Toyland or take early retirement. She chose the latter option and, on April 17, 2001, submitted a notice of "involuntary early retirement," retroactive to March 30, 2001.


Jorge did not let sleeping dogs lie. Her first initiative came in the form of a notice letter, dated May 8, 2001, sent on her behalf to the EEOC. That letter announced her intention to sue for age discrimination. Following the expiration of a thirty-day waiting period, the agency granted Jorge leave to sue under the ADEA. See 29 U.S.C. § 633a(d). Several months then passed with no further action.

On April 1, 2002, Jorge commenced an action in the federal district court, seeking relief under, inter alia, the ADEA and Title VII. In her complaint, Jorge alleged that she was humiliated both by Baynard's ageist comments and by the English-only requirement, and that the involuntary transfer to Toyland exacerbated this state of affairs. She also characterized her early retirement, for the first time, as a constructive discharge.

Jorge's complaint named a bevy of defendants, including the Secretary of Defense, AAFES, Baynard, two other AAFES managers who had assisted Baynard in facilitating the transfer, the spouses and conjugal partnerships of the individual defendants, and four unidentified defendants (apparently sued as place-holders). Jorge experienced difficulty in serving the individual defendants (other than Secretary Rumsfeld). She discussed this problem with the Assistant United States Attorney (AUSA) who was handling the case. The AUSA suggested that she dismiss the action without prejudice, see Fed.R.Civ.P. 41(a)(1), get her ducks in a row, and then refile. Eventually, Jorge embraced that suggestion and moved to dismiss the complaint without prejudice. The government consented, and the district court granted the motion on September 27, 2002.

Jorge commenced a new action, identical to the first in all respects, on March 4, 2003. That action ended in the order of dismissal that undergirds this appeal. We pause to explicate the district court's reasoning.

The court first determined that Jorge's supplemental claims were not cognizable because the ADEA and Title VII comprised the exclusive remedies for claims of age, gender, and national origin discrimination. Jorge v. Rumsfeld, Civ. No. 03-1224, slip op. at 4 (D.P.R. Mar. 9, 2004) (unpublished). The court then concluded that the Secretary of Defense was the only proper defendant in regard to the ADEA and Title VII claims and dismissed the action as to all the other defendants. Id. at 5. These rulings are not contested on appeal, and we do not discuss them.

With respect to Jorge's Title VII claim against the Secretary, the lower court noted that Jorge's sole contact with the EEOC was her letter indicating an intent to sue under the ADEA. Id. at 6. It thereupon dismissed her Title VII claim without prejudice for failure to "initiate[ ], much less exhaust[ ]," her administrative remedies. Id. at 7. Finally, the court noted that Jorge's ADEA claim was subject to a two-year statute of limitations. See Rossiter v Potter, 357 F.3d 26, 27 (1st Cir.2004). In light of that limitations period, the district court held that Jorge, who had instituted the operative action a full three years after her involuntary transfer, had sued too late. Jorge, slip op. at 8. For that reason, the court dismissed the ADEA claim with prejudice. Id. This appeal followed.


On appeal, Jorge limits her assault to the district court's disposition of her ADEA and Title VII claims. We consider these lines of attack separately.

A. The ADEA Claim.

The district court held that Jorge's ADEA claim was time-barred. Id. That holding rested on a determination that the cause of action accrued at the time of the involuntary transfer rather than at the time of Jorge's retirement. See id. (concluding that the transfer constituted "the gravamen of plaintiff's ADEA claim"). Jorge assigns error to that determination. We consider her argument, mindful that when, as now, an order of dismissal is premised on the running of the applicable limitations period, we may affirm only if the Rule 12(b)(6) record "leave[s] no doubt that [the] asserted claim is time-barred." LaChapelle, 142 F.3d at 509.

The ADEA requires that personnel actions affecting most employees who are forty years of age or older be free from age-based discrimination. 29 U.S.C. § 633a(a). In one sense, the ADEA treats federal employees as a class apart from other employees. See Rossiter, 357 F.3d at 28-29 (discussing the statutory scheme). That difference implicates the ADEA's enforcement mechanism: whereas most employees must first exhaust administrative remedies before instituting an ADEA action, see 29 U.S.C. § 626(d), a federal employee has the option of bypassing administrative remedies entirely and suing directly in the federal district court. Id. § 633a(c). A federal employee who wishes...

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