Moore v. Potter

• Citation: 716 F.Supp.2d 524
• Decision Date: 17 December 2008
• Docket Number: CIV No. 06-cv-4112.
• Parties: Richard Allen MOORE, Plaintiff, v. John E. POTTER, Postmaster General, Defendant.
• Court: U.S. District Court — Southern District of Texas

716 F.Supp.2d 524

Richard Allen MOORE, Plaintiff,

v.John E. POTTER, Postmaster General, Defendant.

CIV No. 06-cv-4112.

United States District Court,

S.D. Texas,

Houston Division.

Dec. 17, 2008.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Afton Jane Izen, Attorney at Law, Bellaire, TX, for Plaintiff.

Nancy Cross Leonard, Office of U.S. Attorney, Houston, TX, for Defendant.

MEMORANDUM AND ORDER

KEITH P. ELLISON, District Judge.

Pending before the Court is Defendant's Motion for Summary Judgment. (Doc. No. 19.) For the following reasons, Defendant's Motion must be granted.

I. BACKGROUND

Plaintiff Richard Allen Moore is an African-American male over forty years old. He worked for the United States Postal Service (“USPS”) in their Katy, Texas, office USPS for twenty-three years and, until the events described below, had never been disciplined. His last role at USPS was as a letter carrier. Plaintiff claims that he was subject to discrimination and harassment for four separate incidents:

(1) on October 14, 2005 “and continuous” his carrier case was changed from a four-case shelf to a five-case shelf;

(2) on October 20, 2005, he was placed in an off-duty status (without pay);

(3) he was issued a notice of proposed removal dated December 2, 2005, charging that he assaulted a supervisor on October 20, 2005; and

(4) on February 3, 2006, he was not paid official time for attending a mediation session on his complaint with the EEO.

(Pl. Compl., Doc. No. 1, 3)

Plaintiff alleges that he did not assault his supervisor and that a number of witnesses confirm that Plaintiff was in no physical or mental condition to have committed the assault. Following this incident involving the alleged assault, the USPS issued Plaintiff a notice of proposed removal on December 2, 2005, and a decision letter dated December 19, 2005, with an effective date of January 6, 2006, upholding the proposed removal. (Pl. Compl., Doc. No. 1, Ex. A, 1.) In the December 19, 2005 letter, the USPS explained that “[i]f you believe that the action is based in whole or in part on discrimination, you have the option of filing an appeal with the Merit Systems Protection Board (“MSPB”), or filing an EEO complaint with the Postal Service, but not both.” (Doc. No. 19, Ex. 2, 1.) Plaintiff appealed the removal to the MSPB on January 11, 2006. ( Id.) In a letter dated January 30, 2006, he requested that his MSPB appeal be withdrawn. (Doc. No. 19, Ex. 4-B, 2.) The appeal was dismissed as withdrawn on February 22, 2006, and the initial decision became final March 9, 2006. ( Id.) Plaintiff appealed again on May 30, 2006, but that appeal was dismissed for lack of jurisdiction.

Plaintiff contacted an EEO counselor on December 6, 2005, regarding incidents one through three described above. On March 7, 2006, the Plaintiff received the EEO counselor's notice of his right to file a mixed complaint as well has his right to file an age discrimination claim. (EEO Dispute Resolution Specialist's Inquiry Report, Doc. No. 19, Ex. 1, at 2.) Plaintiff contacted an EEO counselor regarding the fourth incident, on April 17, 2006. (Doc. No. 19, Ex. 5.) On April 21, 2006, the agency dismissed Plaintiff's claims for failure to timely seek EEO counseling and because he elected to proceed in the MSPB forum rather than the through the EEO of the USPS. (Doc. No. 19, Ex. 8.) On September 28, 2006, the EEO office entered a decision on Plaintiff's appeal of the final agency decision dismissing his complaint of unlawful employment discrimination. (Doc. No. 1, Ex. A, 2.) Plaintiff filed his complaint in this Court on December 28, 2006.

Plaintiff now brings claims against Defendant John E. Potter, in his capacity as Postmaster General of the United States of America, under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16(c), the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. 633a(c), and the Rehabilitation Act, 29 U.S.C. 794. Plaintiff seeks damages for back pay, restoration of sick leave, reimbursement of medical and psychological expenses, litigation fees and costs, and interest. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

II. SUMMARY JUDGMENT

A motion for summary judgment under Federal Rule of Civil Procedure 56 requires the Court to determine whether the moving party is entitled to judgment as a matter of law based on the evidence thus far presented. Fed.R.Civ.P. 56(c). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Kee v. City of Rowlett, 247 F.3d 206, 210 (5th Cir.2001) (quotations omitted). A genuine issue of material fact exists if a reasonable jury could enter a verdict for the non-moving party. Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.2000). The Court views all evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Id. Hearsay, conclusory allegations, unsubstantiated assertions, and unsupported speculation are not competent summary judgment evidence. F.R.C.P. 56(e)(1); See, e.g., Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir.1996), McIntosh v. Partridge, 540 F.3d 315, 322 (5th Cir.2008); see also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (noting that a non-movant's burden is “not satisfied with ‘some metaphysical doubt as to the material facts.’ ”) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

III. PLAINTIFF'S TITLE VII CLAIMSA. Failure to Timely Contact an EEO Counselor

Defendant argues that Plaintiff failed to timely contact an EEO counselor for three of the incidents. Consequently, it contends that Plaintiff's Title VII claims must be dismissed for failure to exhaust administrative remedies. Plaintiff does not respond to Defendant's argument.

A federal employee who believes he has been discriminated against must contact an EEO officer within 45 days of the alleged discriminatory action, or within 45 days of the effective date of a personnel action. 29 C.F.R. § 1614.105(a). If the employee shows that he was not notified of the time limits, was not aware of them, or that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, or for reasons the EEO Commission considers sufficient, then the Commission shall extend the time limit. 29 C.F.R. § 1614.105(a). The EEOC promulgated the regulations on time limits pursuant to its delegated powers under the civil rights statutes. Henderson v. U.S. Veterans Admin., 790 F.2d 436, 439 (5th Cir.1986).

The Fifth Circuit is split over whether EEO deadlines are prerequisites to suit (such that they are waivable) or are jurisdictional. See Pacheco v. Mineta, 448 F.3d 783, 788 n. 7 (5th Cir.2006) (collecting cases but not resolving the split). The Fifth Circuit recently upheld a dismissal of a Title VII claim for failure to exhaust administrative remedies because the plaintiff did not timely contact the EEO officer. Vidal v. Chertoff, 293 Fed.Appx. 325, 229-330 (5th Cir.2008). The Vidal court did not decide whether the district court had the power to equitably toll the time limits, because it concurred with the lower court that, even if the district court had the power to toll the time limit, it should not. Vidal, 293 Fed.Appx. at 327-29.

Equitable tolling generally applies in the following situations: when a case is pending between the parties in the wrong forum; when the claimant does not know or should know the facts giving rise to his Title VII claim; when the EEOC misleads the claimant about the nature of her rights under Title VII; and possibly, when the claimant is mentally incapacitated. Manning v. Chevron Chem. Co., 332 F.3d 874, 880 (5th Cir.2003); Hood v. Sears Roebuck and Co., 168 F.3d 231, 232 (5th Cir.1999) (evaluating plaintiff's claim of mental incapacity and declining to toll on that basis); Chappell v. Emco Mach. Works Co., 601 F.2d 1295, 1302 (5th Cir.1979).

In this case, incidents one and two occurred October 14th and 20th, respectively, and Plaintiff did not contact an EEO counselor until December 6, 2005. Similarly, incident four occurred on February 3, 2006, and Plaintiff did not contact an EEO counselor until April 17, 2006. For each of these incidents, Plaintiff failed to contact an EEO counselor within 45 days of the incident, and the Commission did not extend the time limit. (Doc. No. 19, Ex. 8.) Plaintiff has provided no evidence that he was mentally incapacitated such that he could not contact an EEO official within the 45 days. Plaintiff provided a letter, purportedly from his doctor, stating that he was severely stressed on October 20, 2005, and he had elevated blood pressure, anxiety, and mental disturbances, but, assuming that the author was his doctor, his doctor did not indicate any long-lasting impairment. (Doc. No. 28, Ex. A.) Further, the Plaintiff was aware of his Title VII rights: EEO posters, that provide the contact person for EEO matters and the time limits for contacting an EEO counselor, were on display at the Katy, Texas Post Office on October 14, 2005. (Doc. No. 19, Ex. 1, 6.) Assuming that it has such discretion, the Court will not exercise it to toll time limits for the EEO prerequisites to suit. Plaintiff's Title VII claims based on incidents one, three, and four will therefore be dismissed with prejudice.

B. Plaintiff's Election to Proceed Before the MSPB

Defendant argues that Title VII claims arising out of the termination decision should also be dismissed. Although it concedes that the EEO counselor was contacted within 45 days of the incident, Defendant contends that Plaintiff failed to exhaust his administrative remedies in his chosen forum, and therefore judicial...