McCants v. Glickman
| Decision Date | 31 July 2001 |
| Docket Number | No. Civ.A.00-2197.,Civ.A.00-2197. |
| Citation | 180 F.Supp.2d 35 |
| Parties | Kevin Jesse MCCANTS, Plaintiff, v. Daniel R. GLICKMAN, Secretary, U.S. Dep't of Agriculture, Defendant. |
| Court | U.S. District Court — District of Columbia |
Kevin Jesse McCants, Bollingbrook, IL, pro se.
Lisa Sheri Goldfluss, Peter David Blumberg, U.S. Attorney's Office, Washington, DC, Sonia Orfield, U.S. Dept. of Health and Human Services, Washington, DC, for Daniel R. Glickman.
Granting Defendant's Motion to Dismiss; Denying Plaintiff's Motion for Default Judgment; Denying Plaintiff's Motion for Judgment on the Pleadings and Summary Judgment
The pro se plaintiff, Kevin Jesse McCants, brings this employment discrimination action against the United States Department of Agriculture ("USDA") pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). Mr. McCants, a black man, alleges that the USDA discriminated against him on the basis of his sex by hiring less-qualified black female attorneys in an effort to increase diversity.
The matter is currently before the court on the defendant's motion to dismiss for lack of subject-matter jurisdiction or, in the alternative, for summary judgment. The defendant claims that the court lacks subject-matter jurisdiction over the plaintiff's employment discrimination claim because the plaintiff failed to timely exhaust his administrative remedies. In response, the plaintiff has moved for entry of default judgment, or in the alternative, judgment on the pleadings or summary judgment. The plaintiff claims that the court should enter a default judgment against the USDA because the defendant improperly served its first responsive pleading. In the alternative, the plaintiff argues that he is entitled to either judgment on the pleadings or summary judgment.
After considering the parties' submissions, the court concludes that: (a) the defendant's service on the plaintiff satisfied the local rules of this court; and (b) the plaintiff failed to timely exhaust his administrative remedies, thereby depriving the court of subject-matter jurisdiction. Accordingly, for the reasons stated below, the court will grant the defendant's motion to dismiss and will deny the plaintiff's motions for default judgment and for summary judgment or judgment on the pleadings.
On December 6, 1991, Mr. McCants interviewed for a position as an attorney with the USDA. See Def.'s Statement of Material Facts at 1. Mr. McCants received a letter informing him of his non-selection for the position in May 1992. See Pl.'s Statement of Material Facts at 1. On September 1, 1994, Mr. McCants wrote a letter to then Secretary of Agriculture Michael Espy alleging discrimination in the 1992 selection process. See id. at 1-2. In his letter to Secretary Espy, Mr. McCants stated that the December interview was "tainted" and that he began "bracing" himself that day to be "kicked in the face by the Department of Agriculture." See Def.'s Ex. 1. Mr. McCants apparently perceived the white male interviewer's demeanor as belittling and unfair. See id.; Pl.'s Mem. at 3.
Mr. McCants did not complain to the agency about this allegedly unfair treatment either at the time of the interview or when he learned in May 1992 that he had not been selected for the position. Instead, Mr. McCants wrote the letter to Secretary Espy in 1994 after he learned that the USDA had hired nine black women graduates of Howard University School of Law ("Howard") in 1992 in an effort to "increase diversity" at the agency, and that the USDA Office of General Counsel employed only one black male attorney. See Compl. at 1-2; Def.'s Ex. 1. Mr. McCants argued that he should have been hired over these women "based on merit." See Def.'s Ex. 1.
Mr. McCants's letter to Secretary Espy was forwarded to the USDA's Office of Civil Rights Enforcement ("OCRE"), for processing as a complaint of employment discrimination. See Def.'s Ex. 2. The OCRE informed Mr. McCants that there was a question as to the timeliness of his discrimination complaint and requested specific information concerning "names, dates, substance of communications, and copies of correspondence" to determine when Mr. McCants first suspected that his non-selection was discriminatory. See Def.'s Ex. 5. The OCRE explained that a complainant must contact an Equal Employment Opportunity ("EEO") counselor within 45 days of a discriminatory act and that failure to meet this time frame could result in dismissal of the complaint. See id. In his response, Mr. McCants addressed a variety of interesting subjects but did not provide any information about his suspicion that the December 1991 interview was "tainted" or why he began "bracing" himself that day. See Def.'s Ex. 6. In the only part of his letter to address the OCRE's inquiry, Mr. McCants stated only that he wrote to Secretary Espy within three days of learning that the USDA had selected nine black female graduates of Howard as part of the 1992 hiring class. See id.
On March 8, 1996, Mr. McCants informed an EEO specialist that he first suspected that discrimination was a factor in his non-selection at the time of the interview because one of the interviewers treated him unfairly. See Def.'s Ex. 7. When asked why he did not raise the discrimination issue at the interview or when he learned of his non-selection, Mr. McCants responded that he did not have "tangible evidence" of discrimination until he learned about the nine black women hires. See id. Mr. McCants also stated that he had hopes of being hired by the USDA later so he "didn't want to make waves." See id.
On September 12, 1996, the USDA issued its final decision, dismissing Mr. McCants's claim of discriminatory non-selection for untimeliness. See Pl.'s Ex. 8. On October 14, 1998, the EEOC affirmed the agency's decision, finding that Mr. McCants "failed to exhibit due diligence, or prudent regard for his rights, in view of the extended delay between 1992 when he was not selected ... and August 1994." See EEOC Decision attached to Pl.'s Compl.
Mr. McCants filed this action in September 2000. In his complaint, Mr. McCants claims that he realized that the USDA discriminated against him on the basis of his sex in the 1992 hiring process only after he learned in 1994 that nine black women graduates of Howard had been hired instead. See Compl. at 1-2. Mr. McCants claims that based on the "objective and respected" law school rankings by U.S. News and World Report and on other "objective credentials" in his resume, women with "seemingly less impressive credentials" had been hired over him.1 See Compl. at 2. The plaintiff also argues that the USDA's failure to investigate his claim, even if it was untimely filed, violated his civil rights under Title VII. See Compl. at 5.
In response to the plaintiff's complaint, the defendant filed a motion to dismiss for lack of subject-matter jurisdiction. The defendant argues that the plaintiff failed to timely exhaust his administrative remedies because he did not initiate EEO counseling with the agency until September 1, 1994, the date of his initial letter to Secretary Espy. See Def.'s Mot. to Dismiss at 1. The defendant further argues that the plaintiff first suspected discrimination during his December 1991 interview and that this suspicion should have been confirmed when he was notified of his non-selection in May 1992. See id. at 4.
The plaintiff responded by moving for default judgment on the basis of the defendant's alleged faulty service of its first responsive pleading. In the alternative, the defendant moves for judgment on the pleadings or for summary judgment. Here again the plaintiff argues that he has made a prima facie case of sex discrimination but fails to address why he failed to contact an EEO counselor within 45 days of the alleged discriminatory act.
The plaintiff moves for entry of default judgment on the grounds of defective service. According to the plaintiff, the defendant should have mailed its first responsive pleading to the plaintiff's Washington, D.C. address and not to the Illinois address that appears in the caption of the plaintiff's complaint. In support of his motion for default judgment, the plaintiff refers to "the local service of summons rules" but points to no specific provision that supports his argument that the defendant's service was defective. Quite to the contrary, both Local Civil Rules 5.1(e) and 11.1 state:
The first filing by or on behalf of a party shall have in the caption the name and full residence address of the party.... Notice of a change in address ... of ... a party ... must be filed within 10 days of the change. Unless changed by notice filed with the Clerk, the address and telephone number of a party ... noted on the first filing shall be conclusively taken as the last known address and telephone number of the party.
LCvR 5.1(e), 11.1 (emphasis added). Because the plaintiff failed to file a change of address with the clerk of court, the properly used address appearing at the top of the complaint should be taken is his address under the local rules. The plaintiff's claim of faulty service is without merit, and his motion for entry of default judgment is therefore denied.
The defendant moves to dismiss the complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that the plaintiff failed to exhaust his administrative remedies. A 12(b)(1) motion to dismiss "calls into question the court's power to hear the plaintiff's claim ... and therefore imposes upon courts an affirmative obligation to ensure that they are acting within the scope of their jurisdictional power." 5A Wright & Miller,...
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