Lorenzo v. Rumsfeld

• Decision Date: 18 October 2006
• Docket Number: No. 1:06CV715.,1:06CV715.
• Citation: 456 F.Supp.2d 731
• Parties: Virgil M. LORENZO, Plaintiff, v. Donald RUMSFELD Defendant.
• Court: U.S. District Court — Eastern District of Virginia

Page 731

456 F.Supp.2d 731

Virgil M. LORENZO, Plaintiff, v. Donald RUMSFELD Defendant.

No. 1:06CV715.

United States District Court, E.D. Virginia, Alexandria Division.

October 18, 2006.

Virgil M. Lorenzo, Pro se.

Larry Lee Gregg, Steven M. Ranieri, United States Attorney's Office, Alexandria, VA, for Defendant.

ORDER

ELLIS, District Judge.

This matter is before the Court on defendant, Donald Rumsfeld's, motion to dismiss. Plaintiff, Virgil Lorenzo, proceeding pro se, alleges that he was subjected to disparate treatment based on race and age, and retaliated against for prior equal employment opportunity ("EEO") activity, when he was not selected to teach Spanish at a Department of Defense. Education Activity ("DoDEA") high school. Defendant has moved to dismiss Lorenzo's complaint on two grounds. First, under Rule 12(b)(1), Fed.R.Civ.P., defendant argues that Lorenzo's ADEA-based retaliation claim should be dismissed for lack of subject matter jurisdiction because the United States has not waived its sovereign immunity with respect to such claims. Second, defendant has moved to dismiss Lorenzo's complaint, under Rule 12(b)(6), Fed.R.Civ. P.,¹ for failure to exhaust administrative remedies, alleging that Lorenzo (i) failed to file an informal complaint of discrimination within forty-five days of the challenged personnel action; (ii) failed to file his administrative complaint with the Equal Employment Opportunity Commission ("EEOC") within 15 days of receiving his Notice of Right to File; and (iii) failed to file the instant civil suit within 90 days of receiving the EEO's Notice of Final Action. Contemporaneous with its summary judgment filing, defendant provided Lorenzo, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975), with notice of the opportunity to file responsive materials. Lorenzo did so by filing a timely response. Accordingly, the matter is now ripe for disposition.

1.²

In January 2000, Lorenzo applied for a teaching position in Okinawa, Japan, the DoDEA school district where he resided. Lorenzo later learned that his teaching application was incomplete and did not include a copy of his transcripts. Thus, on June 7, 2000, Lorenzo provided Deborah Berry, the principal at Kadena High School, a copy of his application with a cover letter expressing his interest in the Spanish teacher position. Appended to his application were teaching certifications in several areas including English, Spanish, and Science; notably, Lorenzo never received a Computer Science teaching certification.

At the time, Kadena High School had a vacancy for a "mixed" position, meaning a position requiring that the teacher teach both Spanish and Computer Science. Because Lorenzo was not certified to teach Computer Science, he was not eligible for the position, and Jose Rivera was selected instead. In January 2001, Rivera was to be reassigned to another school. Accordingly, on December 11, 2000, Berry requested that the DoDEA Personnel Center recruit an individual to fill the vacancy, although this time Berry was seeking only a Spanish teacher. In the meantime, Berry decided to fill the position with a substitute Spanish teacher, and selected Diane Mays, a substitute teacher already employed by the district.

Thereafter, in December 2001, Lorenzo filed an informal complaint with the EEO Office alleging discrimination and retaliation when he was not selected for teaching positions in June 2000, November 2001, and December 2001.³ In essence, Lorenzo alleged that he was the victim of discrimination because younger, non-Filipinos were hired, instead of him, a fifty-six year old, Filipino male. Moreover, he claimed that his non-selection was motivated by retaliation because he filed an EEO complaint in 1993.

On December 18, 2001, the EEO Counselor, Chandra Vickers, informed Lorenzo that he would have fifteen days after the informal complaint investigation was complete to file a formal complaint. Then, on February 4, 2002, Vickers informed Lorenzo that the informal complaint investigation was complete, and reminded him that a formal complaint would have to be filed within fifteen days of his receipt of the February 4, 2002 notice.

Over a month later, on March 7, 2002, Lorenzo filed his formal administrative complaint. The matter was referred to an EEOC administrative judge ("AJ"), who found in favor of DoDEA. Specifically, the AJ dismissed Lorenzo's complaint finding that his claims of non-selection in 2000 were untimely because he had not initiated contact with an EEO counselor within forty-five days of the allegedly discriminatory personnel action. Then, on November 12, 2004, DoDEA issued a Final Agency Decision ("FAD") adopting the AJ's decision. On April 26, 2005, upon appeal, the EEOC Office of Federal Operations ("OFO") affirmed the FAD and advised Lorenzo that he had ninety days to file civil action or thirty days to seek reconsideration.

Thereafter, on June 6, 2005, Lorenzo filed a request for reconsideration of the OFO decision. On August 2, 2005, the OFO dismissed Lorenzo's request as untimely and, once again, advised Lorenzo that, if he wished to file a civil action, he had to file within 90 days of the EEOC's April 26, 2005 Decision, which remained the Commission's final decision `even after the dismissal of his reconsideration request.

Nearly two months later, on or about September 26, 2005, Lorenzo mailed a letter to the U.S. District Court, Southern District of California, requesting assistance from the Clerk of the Court in finding an attorney to file his case. On September 27, 2005, the Clerk's Office advised Lorenzo that he could file his case in the District Court for the District of Guam, the closest district to his residence. Yet another two months later, on November 21, 2005, Lorenzo filed his judicial complaint in the District Court for the District of Guam. On June 13, 2006, defendant's motion to transfer venue to the Eastern District of Virginia, pursuant to 28 U.S.C. § 1404(a), was granted.

II.

The standard applied in deciding a Rule 12(b)(6) motion to dismiss is well-established. When deciding a motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., courts must review all well-pleaded allegations in plaintiffs complaint to determine whether such allegations could possibly entitle plaintiff to the relief sought. Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d 321, 325-26 (4th Cir.2001). Additionally, a court can consider documents outside of the pleadings, without converting the motion to one for summary judgment, so long as the documents are integral to and explicitly relied on in the complaint. Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir.1999). Thus, where, as here, plaintiffs judicial complaint relies on informal and formal administrative complaints, these documents may be considered in ruling on a motion to dismiss, without converting the Rule 12(b)(6) motion into a Rule 56 motion. See e.g., Carnes v. Potter, 2006 WL 981981, 2006 U.S. Dist. LEXIS 18962 (E.D.Va.2006).

While the allegations in plaintiffs complaint are viewed in the light most favorable to plaintiff, E. Shore Mkts., Inc. v. J.D. Assoc. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir.2000), courts need not credit conclusory legal terms and allegations that are not reasonably supported by factual allegations. Taubman Realty Group Ltd. P'ship v. Mineta, 320 F.3d 475, 479 (4th Cir.2003); Young v. City of Mt. Ranier, 238 F.3d 567, 577 (4th Cir.2001). Put simply, when it appears beyond doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief, the complaint should be dismissed pursuant to Rule 12(b)(6), Fed.R.Civ.P. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

III.

Lorenzo's complaint alleges age discrimination, pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., ("ADEA"); race discrimination, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., ("Title VII"); and retaliation for engaging in protected EEO activity, pursuant to both Title VII and the AREA.

Under both of these statutes, it is wellsettled that a claimant must exhaust his administrative remedies before pursuing a civil action in federal court; moreover, failure to do so will result in the dismissal of his complaint. See Brown v. General Svc. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 132 (4th Cir.2002) ("Before a plaintiff has standing to file suit under Title VII, he must exhaust his administrative remedies."); Sloop v. Memorial Mission Hosp., Inc., 198 F.3d 147, 148 (4th Cir.1999) ("It is axiomatic that a claimant under Title VII must exhaust his administrative remedies by raising his claim before the EEOC.").

Pursuant to this obligation, an individual asserting a discrimination claim must abide by the applicable filing deadlines. The first filing deadline at issue here requires federal employees, who believe they have been subjected to age or race discrimination, to initiate contact with an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory or in the case of personnel action, within 45 days of the effective date of the action." 29 C.F.R. § 1614.105(a)(1). In general, the failure to consult with an EEO counselor within the required time frame is grounds for dismissing an employee's Title VII claim. See Zografov v. Veterans Admin. Med. Ctr., 779 F.2d 967, 970 (4th Cir.1985). But the failure to comply with timely exhaustion may be excused where, as did not occur here, a plaintiff provides "evidence that he was unaware of the time limits for seeking EEO counseling, or that the government engaged in affirmative misconduct in connection with this failure to seek timely counseling." Sloane v. Shalala, 166 F.3d 334, 1998 WL 801499, at *3 (4th Cir.1998).

Where, as here, a plaintiff claims he was subjected to...