Lopez v. Louisiana Nat. Guard, Civ. A. No. 89-4446.
| Court | United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana) |
| Citation | 733 F. Supp. 1059 |
| Docket Number | Civ. A. No. 89-4446. |
| Parties | Patricia LOPEZ v. The LOUISIANA NATIONAL GUARD and Herbert R. Temple Jr., Chief of the National Guard Bureau. |
| Decision Date | 20 March 1990 |
COPYRIGHT MATERIAL OMITTED
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.
ORDER AND REASONS
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:
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:
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:
Sometime later, Lopez received a second form letter from Horton, this one dated March 15, 1985; this second letter states in part:
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:
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:
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:
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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