Plowman v. Cheney

• Decision Date: 05 June 1989
• Docket Number: Civ. A. No. 89-00073-A.
• Citation: 714 F. Supp. 196
• Parties: Robert PLOWMAN, Plaintiff, v. Richard CHENEY, Secretary of Defense; John O. Marsh, Secretary of the Army; and Army Morale Welfare Recreation Fund, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

714 F. Supp. 196

Robert PLOWMAN, Plaintiff, v. Richard CHENEY, Secretary of Defense; John O. Marsh, Secretary of the Army; and Army Morale Welfare Recreation Fund, Defendants.

Civ. A. No. 89-00073-A.

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

June 5, 1989.

Kenneth E. Labowitz, Fagelson, Schonberger, Payne & Arthur, Oakton, Va., for plaintiff.

John R. Bolton, Asst. Atty. Gen., Henry E. Hudson, U.S. Atty., Alexandria, Va., Barbara Ward, Asst. U.S. Atty., Anne M. Gulyassy, John R. Tyler, Neal Dittersdorf, Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

Introduction

This is a discrimination action under the Vocational & Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq. (the "Act"). Plaintiff, a civilian employee of the Army Morale Welfare Recreation Fund, a Nonappropriated Fund Instrumentality (NAFI) of the Department of the Army, alleges that defendants violated the Act by forcing him to resign after a test indicated he was HIV seropositive.¹ This is plaintiff's second attempt to obtain a remedy for his forced resignation. The first was based on theories of contract, implied covenants, right of privacy and intentional infliction of emotional distress. It did not succeed. See Plowman v. Department of the Army, 698 F.Supp. 627 (E.D.Va.1988).

The matter is now before the Court on defendants' motion to dismiss or, in the alternative, for summary judgment on the ground that plaintiff failed to exhaust administrative remedies. More specifically, the applicable regulations required plaintiff to initiate administrative review within 30 days of the discriminatory action. See 29 C.F.R. § 1613.214(a)(1)(i). Defendants claim plaintiff failed to do so within 30 days of his learning of the requirement and is therefore now barred from seeking a judicial remedy. Plaintiff resists the motion, arguing chiefly that a material factual dispute exists over whether plaintiff qualifies for an extension of the 30 day period. For the reasons stated here, the Court concludes that undisputed material facts establish that plaintiff learned of the requirement in 1987, but thereafter waited well beyond the 30 day limit to file his request for administrative review. Accordingly, summary judgment in favor of defendants is warranted.

Facts²

In April 1986, plaintiff, then assigned to duty in Korea, tested HIV seropositive. He claims he was then forced to resign. Two days later, on May 19, 1986, he was shipped back to the United States. His executed resignation form is dated May 17, 1986, but was not effective until September 25, 1986. Defendants did not then advise him of any administrative complaint procedure for discrimination claims.

In April 1987, plaintiff filed a pro se lawsuit in the United States District Court for the Northern District of California. This lawsuit included a claim of handicap discrimination under the Act. Plaintiff unsuccessfully sought in forma pauperis status. Thereafter, in late September or early October 1987, a California law firm undertook his representation pro bono. At that time, as plaintiff stated in his initial affidavit,

I learned for the very first time that there was an administrative discrimination complaint procedure and that I was supposed to have brought a handicap discrimination complaint with the Army within 30 days of being forced to resign.

He went on to note that his attorneys advised him to proceed with the existing lawsuit rather than to initiate an administrative complaint. In a subsequent affidavit, plaintiff essentially repeats this. He said his lawyer advised him that federal employees had to file administrative complaints within 30 days, but he was not sure plaintiff, a NAFI employee, fell into this category. Even so, plaintiff's second affidavit goes on to say that

my lawyer said that I probably should have tried to submit a complaint but that since I hadn't, and had never been told that I had to, he did not know what more I could then do.

Plaintiff accepted this October 1987 advice, and proceeded with the handicap claim in the lawsuit rather than initiating an administrative complaint.

The lawyer's affidavit reflects a somewhat different perspective, but closely read does not directly contradict plaintiff's clear declaration as to his understanding that he was supposed to have filed an administrative complaint within 30 days.³ In his affidavit, the lawyer confirms he represented plaintiff in October 1987 and concedes he then knew that federal employees were required to initiate a complaint with a local agency EEO counselor within 30 days of learning of the discriminatory act or event. But he then goes on to express his confusion and uncertainty over (1) whether that requirement applied to NAFI employees and (2) what to do if it did apply to plaintiff. The lawyer chose, apparently, not to research answers to these questions. He claims that he did not specifically advise plaintiff that the 30 day limit applied to plaintiff's claim.

Thereafter, on December 23, 1987, defendants in the California action filed a motion to dismiss, inter alia, raising the exhaustion issue. Plaintiff's lawyer then did the research and confirmed that plaintiff was indeed required to file an administrative complaint within 30 days before filing suit. Plaintiff learned this in early January 1988. Plaintiff discontinued the handicap claim in his California suit. His lawyer was still confused and uncertain over what to do to meet this requirement. In mid-January 1988, plaintiff's counsel contacted California defense counsel and requested assistance in arranging for plaintiff to initiate an administrative complaint in the United States. The lawyer claims the Army agreed to do so, but arrangements were not completed until April 21, 1988 when plaintiff met with an EEO officer, ostensibly to help plaintiff initiate the administrative complaint procedure.

Subsequently, the Army rejected plaintiff's administrative complaint as untimely. Plaintiff appealed this decision to the EEOC Office of Review and Appeals. The appeal failed; the EEOC affirmed the agency's action, ruling that the complaint was untimely and that plaintiff did not qualify for the regulatory exception provided in 29 C.F.R. § 1613.214(a)(4). See Robert Plowman v. John O. Marsh, Jr., et al., Appeal No. 01883415 (EEOC Dec 20, 1988). Specifically, the EEOC found that plaintiff's decision not to consult with an EEO counselor, even after his attorneys notified him of the exhaustion requirement and the 30 day limitations period, did not constitute "circumstances beyond his control" under subsection (a)(4).

Analysis

The Act affords individuals a private right of action for violations of its provisions. In doing so, it expressly incorporates the "remedies, procedures and rights" of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. See 29 U.S. C. § 794a(1). Among these Title VII remedies and procedures is an administrative claims procedure that is a prerequisite for seeking a judicial remedy. Thus, EEOC regulations provide that "the agency may accept the complaint for processing ... only if"

(i) The complainant brought to the attention of the Equal Employment Opportunity Counselor the matter causing him to believe that he has been discriminated against within 30 calendar days of the date of the matter, or, if a personnel action, within 30 days of its effective date;

29 C.F.R. § 1613.214(a). The 30 day time period may be extended only in certain limited circumstances. Thus Section 1613.214(a)(4) provides as follows:

The agency shall extend the time limits in this section: (i) When the complainant shows that he was not notified of the time limits and was not otherwise aware of them or that he was prevented by circumstances beyond his control from submitting the matter within the time limits; or (ii) for other reasons considered sufficient by the agency.

In short, the Act affords a remedy governed by Title VII procedures and those procedures mandate the initiation of an administrative complaint procedure within 30 days of the discriminatory event. Federal employees, including NAFI employees, must comply with EEOC regulations before a suit may be filed. See Young v. National Center for Health Services, 828 F.2d 235, 237 (4th Cir.1987); Zografov v. V.A. Medical Center, 779 F.2d 967, 969-970 (4th Cir.1985); Woodard v. Lehman, 717 F.2d 909, 914 (4th Cir.1983). Moreover, where an employee fails to make timely contact with an EEO counselor, as required by 29 C.F.R. § 1613,214(a)(i), and neither Section 1613.214(a)(4) nor equitable estoppel extends the 30 day limitations period, then his suit must be dismissed for failure to exhaust his administrative remedies. See Zografov, 779 F.2d at 969-70; see also Woodard, 717 F.2d at 914-15.

Dismissal is appropriate because the administrative remedy serves important functions in the overall statutory scheme. As the Supreme Court recognized in Brown v. General Services Admin., 425 U.S. 820, 833, 96 S.Ct. 1961, 1968, 48 L.Ed.2d 402 (1976), the statute "provides for a careful blend of administrative and judicial enforcement powers," and "rigorous administrative exhaustion requirements."⁴ The 30 day initiation requirement is an integral part of this design; it is no mere technicality; rather, it is "part and parcel of the congressional design to vest in the federal agencies and officials ... `primary responsibility' for maintaining non discrimination in employment." Kizas v. Webster, 707 F.2d 524, 544 (D.C.Cir.1983). "The 30 day rule is designed `to insure the initiation of counseling' with the hope of achieving an informal and prompt resolution." Theard v. U.S. Army, 653 F.Supp. 536, 542 (M.D.N.C.1987) (quoting Perel v. Health Car Financing Administration, slip op. at 3-4 (4th Cir.1986) 804 F.2d 678 (Table)); see also Sampson v. Civiletti, 632 F.2d 860, 862 (10th Cir.1980). If failure to meet the 30 day deadline did not bar suit, ...