Lopez v. Louisiana Nat. Guard, Civ. A. No. 89-4446.

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Citation733 F. Supp. 1059
Docket NumberCiv. A. No. 89-4446.
PartiesPatricia LOPEZ v. The LOUISIANA NATIONAL GUARD and Herbert R. Temple Jr., Chief of the National Guard Bureau.
Decision Date20 March 1990


Bernard Marcus, Ellis B. Murov, Joanne C. Ferriott, Deutsch, Kerrigan & Stiles, New Orleans, La., for plaintiff.

Glenn K. Schreiber, Asst. U.S. Atty., for defendants.


PATRICK E. CARR, District Judge.

This matter is before the Court on defendants' motion to dismiss or alternatively for summary judgment. Determining in its discretion that oral argument is unnecessary,1 the Court CANCELS the hearing on the motion and now GRANTS the motion.

This is a federal employee Title VII case filed by Patricia Lopez, a black woman, against the Louisiana National Guard (LNG) and Herbert R. Temple Jr., Chief of the National Guard Bureau, for alleged race discrimination and reprisal actions during her employment with the LNG. The government moves to dismiss on the ground that plaintiff was inexcusably untimely in filing her formal administrative complaint.2


In August 1984, the LNG hired Lopez as a military personnel technician at the LNG's Jackson Barracks in New Orleans; she was a civilian employee at a grade level of GS-05. She had previously been employed at the New Orleans office of the Equal Employment Opportunity Commission (EEOC).

On Monday, February 4, 1985, she contacted Chief Warrant Officer Two Lowell D. Bradford Jr., a designated EEO counselor for the LNG at Jackson Barracks, to make an informal administrative complaint of discrimination. The following day, the LNG issued Lopez a letter terminating her effective March 7, 1985.3

After discussing the problem with Lopez, her supervisors, associates, and others, CWO2 Bradford was unable to resolve Lopez's informal complaint. Accordingly, on Monday, February 25, 1985, he conducted his final interview with Lopez. At that time, he gave her both oral and written notice of her right to file a formal, written administrative complaint within 15 days, or by Tuesday, March 12, 1985. The written notice reads in full:

This is notice that on the above date February 25, 1985 the final counseling interview was held in connection with the matter you presented to the EEO Counselor.
If you believe you have been discriminated against on the basis of race, color, religion, sex, national origin, or age, you have the right to file a COMPLAINT OF DISCRIMINATION WITHIN 15 CALENDAR DAYS AFTER RECEIPT OF THIS NOTICE.
The complaint must be in writing and may be filed in person or by mail with the Director of Equal Employment Opportunity, 600 South Street, New Orleans, Louisiana, or any of the following officials authorized to receive discrimination complaints:
The Adjutant General, State of Louisiana, HQ Building, Jackson Barracks ...
The State EEO Manager, ATTN: LANG-DMM-HR, Jackson Barracks ...
The Federal Women's Program Coordinator, LANG-DMM, Jackson Barracks ...
The Espanic sic Program Coordinator, LANG-DMM-HR, Jackson Barracks ...4

According to CWO2 Bradford,5 he obtained the address for the EEO Director from the New Orleans telephone directory. The address in the notice was, as all now agree, incorrect: the address given was the address for the local EEOC office, and not the National Guard Bureau's EEO Director.

Eight days later, on March 5, 1985, Lopez tendered in person a formal, written administrative complaint at the New Orleans EEOC office. On March 12, 1985, Antonio Carbonell, an Attorney Examiner at the New Orleans EEOC office, returned her complaint under a cover letter sent by certified mail, return receipt requested; Lopez received this mail on March 14, 1985. A copy of the cover letter is not in the record, and its contents are in dispute: on the one hand, the government contends the letter (a) advised Lopez that resort to the EEOC was premature and (b) "instructed her to file her complaint with the LNG officials" at Jackson Barracks listed on CWO2 Bradford's notice of final interview; on the other hand, Lopez contends that the letter stated "that she was required to file with one of the persons listed in the EEO counselor's letter," including "the Director of the EEOC sic in New Orleans." Restated, the parties dispute whether or not Carbonell, like CWO2 Bradford before him, advised Lopez that a proper recipient of her formal administrative complaint was "the Director of Equal Employment Opportunity, 600 South Street, New Orleans."

On Thursday, March 14, 1985, Lopez attempted to re-file her formal administrative complaint with the New Orleans EEOC office; specifically, she mailed the complaint under a cover letter which is addressed to the director of that office and reads in pertinent part:

Please find enclosed my EEO Complaint that I filed at your office on March 5, 1985, which was returned to me by Mr. A. Carbonell.
Also find enclosed the cover letter Mr. Carbonell sent to me stating that I have to file my complaint with one of the officials listed on the letter from the EEO Counselor who investigated my complaint at Jackson Barracks. Note that if Mr. Carbonell had read the letter completely, he would have discovered that the first place listed for me to file my complaint is EEOC (your agency). This is stated in the last paragraph of the letter which is underlined.
Please turn my complaint over to Ms. Mary Cleland for processing. Also note that my complaint was timely filed and due to the error of Mr. Carbonell, I am returning it.

Mary Cleland is another Attorney Examiner at the New Orleans EEOC office.

"Several days later," Lopez received a form letter dated March 13, 1985 from Mattie Horton, an Intake Equal Opportunity Specialist at the New Orleans EEOC office. This letter, which appears to be a form letter for incomplete or inadequate discrimination complaints against private employers, acknowledges receipt of Lopez's complaint and states in part:

The information you provided is not sufficient for filing a charge of discrimination. Additional information is needed before we can pursue this matter.
I urge you to contact me as soon as possible because a charge of employment discrimination must be filed within the time limits imposed by law, generally within 180 to 300 days fo sic the alleged discrimination. ...

Sometime later, Lopez received a second form letter from Horton, this one dated March 15, 1985; this second letter states in part:

Your letter indicates that the situation you describe is not covered by the laws we administer, therefore we have no authority to handle the matter you raised.
Although we have no authority to handle the matter, the information you provided seems to indicate that another organization may be able to help you. Please contact:
Captain Pack, EEO Representative
Louisiana National Guard
Jackson Barracks

At that time, Captain (now Major) Pack was the State Equal Employment Manager for the LNG and was CWO2 Bradford's EEO supervisor.6 By affidavit, Lopez states that she "does not recall whether she received this second letter from Horton on March 17, 18 or shortly thereafter."7

In an affidavit submitted in opposition to the government's motion, Lopez states:

Lopez felt confused by the conflicting indications she had received, not only from Bradford and Carbonell, but with the EEOC, from Carbonell and Horton.
Lopez hoped to hear from New Orleans EEOC Director Fields clarifying her situation, but not receiving the awaited response, she decided to file her complaint with the Louisiana National Guard, which was included in the list of proper recipients. She addressed her complaint to the Adjutant General at Jackson Barracks on March 28, 1985 ...; the letter was postmarked March 29, 1985.

Under a cover letter dated March 28, 1985, in an envelope addressed to the State EEO Manager and postmarked Friday, March 29, 1985, Lopez finally forwarded her formal complaint to an LNG official, namely, the Adjutant General for the LNG, for processing. The body of the cover letter reads in full:

Please find enclosed my Complaint of Discrimination in the National Guard.
As instructed by the EEO Counselor (see letter enlosed sic), I originally filed my complaint with Equal Employment Opportunity Commission, 600 South Street, on March 5, 1985 (8 days after my final interview with the EEO Counselor), but through no fault of my own, I should have filed my case with you.
Therefore, I am requesting that a formal investigation be made into my case and appropriate action be taken.

The LNG received the envelope with its cover letter and complaint on Monday, April 1, 1985.8

Lopez's written complaint (NGB Form 713-5 rev. 15 July 76) alleges race discrimination by "CW4 Warren H. Lund, Enlisted Branch Manager" on January 29, 1985 and thereafter. The complaint states among other things: "I believe that my termination was due to my filing a discrimination complaint and not for the reasons stated on my termination notice."

On April 17, 1985, the LNG accepted Lopez's formal administrative complaint without a specific finding of timeliness.9 The notice of acceptance merely states:

1. The purpose of this notice is to inform you that your complaint of discrimination, NGB Form 713-5, received in this office, 1 Apr 85, has been accepted.
2. A request for investigation has been forwarded to the National Guard Bureau.

The agency found no discrimination or retaliation against Lopez.

According to Lopez's affidavit:

On two occasions Lopez was made aware that the timeliness of her filing had been brought to the attention of the Louisiana National Guard: in the National Guard Bureau investigator's Report of Investigation and by copy of a letter to the head of the National Guard Bureau.... The Louisiana National Guard never communicated to Lopez that there was a timeliness problem until the present action.

The pertinent portion of the Report of Investigation to which Lopez refers states:

On 1 April

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