Peterson v. Brownlee

• Decision Date: 23 April 2004
• Docket Number: No. 03-2329-JWL.,03-2329-JWL.
• Parties: Susan E. PETERSON, Plaintiff, v. R.L. BROWNLEE, Acting Secretary, Department of the Army Defendant.
• Court: U.S. District Court — District of Kansas

314 F.Supp.2d 1150

Susan E. PETERSON, Plaintiff, v. R.L. BROWNLEE, Acting Secretary, Department of the Army Defendant.

No. 03-2329-JWL.

United States District Court, D. Kansas.

April 23, 2004.

Kevin A. Graham, Timothy J. Flook, Flook & Graham, P.C., Liberty, MO, for Plaintiff.

Connie R. DeArmond, Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

LUNGSTRUM, District Judge.

Susan E. Peterson brought this action asserting sexual harassment, sexual discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991.¹ The matter is presently before the court on defendant's motion for partial dismissal for failure to state a claim upon which relief can be granted and his motion for a more definite statement. (Doc. 16). Therein, the defendant moves to dismiss: (1) all Title VII claims that Ms. Peterson allegedly failed to exhaust properly; (2) all claims asserted under the Civil Rights Act of 1991; and (3) her demand for punitive damages. Additionally, the defendant moves for a more definite statement of the allegations contained in paragraph twenty-one of the complaint.

The court grants the defendant's motion in part, and denies it in part. Specifically, the court denies defendant's motion to dismiss for Ms. Peterson's alleged failure to exhaust properly her administrative remedies. Ms. Peterson has generally alleged that all conditions precedent to filing this action have been satisfied, and this allegation is sufficient to survive a motion to dismiss. The court, however, grants the defendant's motion to dismiss Ms. Peterson's § 1981 claims. Title VII preempts such claims for federal employees, and § 1981 is inapplicable where, as here, the allegedly wrongful conduct was carried out under color of federal law. The court grants the defendant's motion to dismiss Ms. Peterson's request for punitive damages because Congress has expressly provided that such damages cannot be recovered from the government. Finally, the court denies defendant's request for a more definite statement.

BACKGROUND

On June 20, 2003, Susan E. Peterson filed her complaint in this matter. Ms. Peterson alleges that the action arises under Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991, 42 U.S.C. § 1981a. See Complaint at ¶ 2. As a result of the defendant's acts and omissions Ms. Peterson alleges that she endured sexual harassment, sexual discrimination, and retaliation in violation of Title VII. In her prayer for relief, Ms. Peterson requests, among other remedies, an award of punitive and liquidated damages. See Complaint at ¶ 55(E).

Ms. Peterson further states that she has exhausted her administrative remedies. In particular, she alleges in her complaint that "[a] decision containing Plaintiff's rights to file this action (attached hereto as Exhibit `A') was issued by the Equal Employment Opportunity Commission (EEOC) on March 20, 2003 and received by Plaintiff on March 25, 2003." See Complaint at ¶ 3. In the attached EEOC ruling, the Commission indicates that its decision is final and that there is no further right of administrative appeal from its decision. Additionally, Ms. Peterson alleges that "[a]ll conditions precedent to filing this action have been met." See Complaint at ¶ 6.

The defendant filed his motion for partial dismissal for failure to state a claim upon which relief can be granted on March 16, 2004. Ms. Peterson filed her response on April 8, 2004, and the defendant filed his reply on April 16, 2004.

STANDARD

The court will dismiss a cause of action for failure to state a claim only when "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his [or her] claims which would entitle him [or her] to relief," Poole v. County of Otero, 271 F.3d 955, 957 (10th Cir.2001) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)), or when an issue of law is dispositive. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, and all reasonable inferences from those facts are viewed in favor of the plaintiff. Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir.2001). The issue in resolving a motion such as this is "not whether [the] plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

DISCUSSION

The defendant raises three separate challenges to Ms. Peterson's complaint. First, he alleges that Ms. Peterson failed to exhaust properly all of her Title VII claims. Second, he contends that Title VII preempts Ms. Peterson's claims under 42 U.S.C. § 1981, and, alternatively, that the act does not apply to officials acting under color of federal law. Finally, the defendant argues that as a federal employee, Ms. Peterson may not recover punitive damages from her employer. Additionally, the defendant moves pursuant to Fed.R.Civ.P. 12(e) for a more definite statement pertaining to the allegation contained in paragraph twenty-one of plaintiff's complaint. The court addresses each challenge in turn.²

I. Failure to Exhaust Administrative Remedies

As a federal employee, Ms. Peterson must bring a complaint of discrimination to the attention of an EEO counselor within 45 days of the occurrence or conduct giving rise to the complaint. 29 C.F.R. § 1614.105(a)(1). The defendant contends that several of the alleged discriminatory acts Ms. Peterson complained of at the administrative level occurred more than 45 days prior to her filing a complaint with the EEO counselor, and therefore, that these claims are subject to dismissal. The court disagrees.

The Tenth Circuit has held that a federal employee's compliance with the forty-five day time limit set forth in § 1614.105(a)(1) is not a jurisdictional requirement for filing suit under Title VII. Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1324-26 (10th Cir.2002) (citing Jones v. Runyon, 91 F.3d 1398, 1399 n. 1 (10th Cir.1996)). Instead, the requirement is a condition precedent to filing suit that functions like a statute of limitations and is subject to waiver, estoppel, and equitable tolling. See Million v. Frank, 47 F.3d 385, 389 (10th Cir.1995) (noting that compliance with filing requirements in Title VII are conditions precedent to filing suit) (citing Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir.1983)); see also Mosley v. Pena, 100 F.3d 1515, 1518 (10th Cir.1996) (noting that Title VII's requirement that a plaintiff file a complaint within ninety days of receipt of an EEOC notice of a final action is a condition precedent to suit). For pleading purposes, federal rules do not require Ms. Peterson to plead with particularity facts that demonstrate compliance with these conditions precedent. Instead, "it is sufficient to aver generally that all conditions precedent have been performed or have occurred." Fed.R.Civ.P. 9(c).

As explained above, Ms. Peterson alleged, in paragraph six of the complaint, that "[a]ll conditions precedent to filing this action have been met." This general allegation satisfies the pleading requirement set forth in Rule 9(c), and it is sufficient to withstand a motion to dismiss. Schmitt v. Beverly Health and Rehabilitation Serv., Inc., 962 F.Supp. 1379, 1383 (D.Kan.1997) (finding that a general allegation that the plaintiff has satisfied the conditions precedent to filing a Title VII claim is sufficient to withstand a motion to dismiss); Jackson v. Seaboard Coast Line R. Co., 678 F.2d 992, 1010 (11th Cir.1982) (explaining that plaintiff must only allege generally in his complaint that all conditions precedent to the institution of the lawsuit have been fulfilled); Stearns v. Consolidated Mgmt., Inc., 747 F.2d 1105, 1111 (7th Cir.1984) (explaining that where filing requirement is simply a condition precedent then the complaint was sufficient if it generally alleged that all conditions precedent had been fulfilled).

Defendant disputes the factual validity of Ms. Peterson's general averment by relying on matters outside the pleading. The court, however, may not consider such matters on a motion to dismiss. Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.) (quotations and citation omitted) (explaining that for purposes of a motion to dismiss the court is "not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted."), cert. denied, 537 U.S. 1066, 123 S.Ct. 623, 154 L.Ed.2d 555 (2002). While the court could consider these issues by converting defendant's motion to dismiss into a motion for summary judgment, it declines to do so given that neither party has fully developed the factual issues surrounding the Title VII exhaustion issue. See Lybrook v. Members of the Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1341 (10th Cir.2000) (recognizing district court's discretion to decide whether to convert a motion to dismiss into one for summary judgment and rejecting argument that court abused its discretion in failing to do so where the parties attached materials beyond the pleadings to their motions). As such, the court denies defendant's motion to dismiss on this basis. The defendant, however, may renew this argument on a fully developed and briefed motion for summary judgment. See, e.g., Barnes v. Anne Arundel County Bd. of Educ., 2001 WL 121962, at *1 (D.Md. Jan.29, 2001) (explaining that discovery would afford the defendants the means to determine whether the plaintiff failed to satisfy one or more of Title VII's statutory requirements, and if so, that they could raise the issue on summary judgment).

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