Polisoto v. Weinberger, No. SA-84-CA-308.

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtH. Paul Canales, San Antonio, Tex., for plaintiff
Citation638 F. Supp. 1353
PartiesJeanne POLISOTO, Plaintiff, v. Caspar W. WEINBERGER, Secretary of Defense, et al., Defendants.
Decision Date29 January 1986
Docket NumberNo. SA-84-CA-308.

638 F. Supp. 1353

Jeanne POLISOTO, Plaintiff,
v.
Caspar W. WEINBERGER, Secretary of Defense, et al., Defendants.

No. SA-84-CA-308.

United States District Court, W.D. Texas, San Antonio Division.

January 29, 1986.


638 F. Supp. 1354

Jack B. Moynihan, Asst. U.S. Atty., San Antonio, Tex., for defendants.

H. Paul Canales, San Antonio, Tex., for plaintiff.

MEMORANDUM OPINION AND ORDER

SESSIONS, Chief Judge.

ON THIS DATE came on to be considered the motion of the Defendants to dismiss the Plaintiff's complaint, or, in the alternative, for summary judgment, and the Plaintiff's cross-motion for summary judgment. As an initial matter, the Court notes that although the Plaintiff styled her response to the Defendants' motion for summary judgment "Plaintiff's response to defendant's sic motion to dismiss plaintiff's complaint or, in the alternative motion for summary judgment," Plaintiff wholly fails to develop any basis for summary judgment in her response. As Plaintiff fails to develop any factual or legal support for a summary judgment in her favor, the Court shall deny Plaintiff's alternative motion for summary judgment.

I

INTRODUCTION

The Plaintiff is a woman who was employed by the Department of the Air Force as a Training Instructor at the Defense Language Institute at Lackland Air Force Base in San Antonio, Texas ("DLI"). Plaintiff filed her complaint alleging violations of Title 42, United States Code, Section 2000e et seq. and Title 42, United States Code, Sections 1985 and 1986, on October 26, 1983, in the Federal District Court for the District of Columbia. The case was transferred to this Court by Order of the District of Columbia Court for improper venue.

The Defendants have moved to dismiss, or, in the alternative, for summary judgment based upon their contention that the Plaintiff's complaint filed pursuant to 42 U.S.C. § 2000e et seq. was untimely filed. The Defendants seek to dismiss the portion of the Plaintiff's complaint alleging violations of 42 U.S.C. §§ 1985 and 1986 on the basis that 42 U.S.C. § 2000e et seq. provides

638 F. Supp. 1355
the exclusive remedy for discrimination in federal employment, and on the basis that the Defendants were not employed by the Government at the time of the alleged employment discrimination and consequently could not have conspired to deprive the Plaintiff of any protected rights. Defendants also seek dismissal of the Plaintiff's 1985 and 1986 count alleging that it cannot be held liable to the Plaintiff on the basis of respondeat superior.

II

BACKGROUND

On August 17, 1978, Ms. Jeanne Polisoto filed a formal complaint alleging discrimination on the basis of sex in connection with her transfer from one function to another within DLI at Lackland Air Force Base ("AFB"), Texas (hereinafter referred to as the "Reassignment Complaint"). See Administrative Record, Volume III, page 28 hereinafter cited in the following form, e.g.,: AR-III.28.. On February 15, 1980, the Air Force issued a final decision concluding that Plaintiff had not been discriminated against on the basis of sex with respect to her Reassignment Complaint. AR-III.25. Plaintiff subsequently appealed this decision to the Office of Review and Appeals ("ORA") within the Equal Employment Opportunity Commission ("EEOC"). ORA received Plaintiff's notice of appeal of the reassignment decision on March 18, 1980. AR-III.22. The factual circumstances surrounding the incident that led to Plaintiff's reassignment and the factual allegations that form the basis for Plaintiff's complaint are not relevant to the Court's discussion as the Court will assume that Plaintiff's charges of sexual discrimination are true for purposes of deciding Defendants' motion to dismiss. See Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). Defendant alleges that Plaintiff was reassigned due to improper conduct by the Plaintiff with a student and because of complaints relating to her classroom performance. Plaintiff alleges that she was transferred to an undesirable position, arbitrarily denied a request for leave without pay, was given undesirable and unusually difficult work assignments, that Defendants circulated false and highly damaging rumors alleging personal misconduct, and sought to discourage Plaintiff from pursuing her complaint, all on account of sexual discrimination.

In a decision dated October 9, 1980, the ORA denied Plaintiff's appeal as untimely filed. AR-III.24. The Commission based its decision upon language and the EEOC's regulations permitting complainants to "file a notice of appeal at any time up to 20 calendar days after receipt of the agency's notice of final decision." 29 C.F.R. § 1613.233(2). The Commission noted that Plaintiff's notice of appeal was received on March 18, 1980, and concluded that it was not forthcoming until "twenty-six days following the date the appellant was deemed to have received the final agency decision." AR-III.23. It appears that the Commission's conclusion was premised on the EEOC's presumption that, "in all cases in which evidence of the actual date of receipt is lacking, the final agency decision will be deemed to have been received 5 days following the date of decision." 44 Fed.Reg. 34, 494 (June 15, 1979). Applying this rebuttable presumption, it appears the Commission concluded that Plaintiff received the final Air Force decision on her Reassignment Complaint on February 20, 1980.

ORA dispatched this decision to the Plaintiff at 1824 Texas Avenue, San Antonio, Texas 78228, via certified mail. One "Susan Polisoto" executed a return receipt for the decision on December 13, 1980. See Exhibit "A" to Defendants' Motion. Shortly thereafter, Mr. Shelby Hollin, esq., Plaintiff's attorney, dispatched a request to reopen the proceedings pursuant to 29 C.F.R. § 1613.235. AR-III.14. Mr. Hollin represented the Plaintiff during the entire course of the administrative hearings in this matter. AR-III.1. The Commission denied Plaintiff's request to reopen the proceedings on the reassignment decision in a decision dated August 20, 1982. AR-III.4. It appears that this decision was mailed to

638 F. Supp. 1356
Plaintiff Polisoto at the same San Antonio address that elicited such a prompt response from Plaintiff's attorney some months previously. Plaintiff did not file suit to appeal the EEOC's decision finding no discrimination with respect to the Air Force's reassignment decision as allowed by 42 U.S.C. § 2000e-16(c). The Plaintiff, however, did include allegations concerning her reassignment in the instant complaint following a second separate claim of discrimination. See Plaintiff's Complaint at 9-11

Plaintiff submitted a request for nine month's leave without pay on August 30, 1978. This leave was intended to permit Plaintiff to take advantage of a federal fellowship to continue her education and to complete the necessary requirements for a New York teaching license. AR-V.49. The Civilian Personnel Officer disapproved this request on September 12, 1978, based on its duration and management's concern that the course of study was unrelated to Plaintiff's duties at DLI. AR-V.49-50. On October 16, 1978, Plaintiff submitted a letter of resignation citing harassment on the job. AR-V.49.

On February 28, 1979, Plaintiff filed a second formal complaint of discrimination alleging that she was coerced into resigning her position by sexual harassment and reprisal based on her previous EEOC complaint ("Resignation Complaint"). AR-V. 48-49. An Air Force EEO Investigator examined Plaintiff's complaint and recommended a finding of no discrimination. AR-V.64. Plaintiff requested a hearing before the EEOC Regional Office in Houston, but ultimately withdrew that request. On July 25, 1980, Plaintiff's attorney, Shelby W. Hollin, advised the EEOC Complaints Examiner that Ms. Polisoto was out of the country and would be unavailable to attend the scheduled hearing. Mr. Hollin proposed that the case be remanded to the Air Force for decision based on the record below. AR-V.73. Such a remand was forthcoming on July 30, 1980. AR-V.72.

The Air Force ultimately rendered a final decision on the Plaintiff's resignation complaint on January 5, 1983, finding that there was no evidence to support Plaintiff's claims of discrimination with respect to her resignation. AR-V.47. Mr. Hollin filed a notice of appeal on January 19, 1983, AR-V.46, and an extensive brief on February 16, 1983. AR-V.26. Mr. Hollin's notice of appeal indicates that a copy of such notice was forwarded to Plaintiff in Forrestville, New York. AR-V.46. On September 2, 1983, the EEOC affirmed the Air Force decision. AR-V.4. The Commission forwarded its decision to Ms. Polisoto in care of Mr. Hollin at his office in San Antonio, Texas, on September 7, 1983, and provided Mr. Hollin a separate copy in his own right. AR-V.3. Mr. Hollin receipted for the EEOC decision personally on September 12, 1983. Exhibit "B" to Defendants' Motion. This action was subsequently filed in the United States District Court for the District of Columbia on October 26, 1983, and was later transferred to this Court.

On December 19, 1984, the Defendants filed their motion to dismiss or for summary judgment; Defendants' motion was timely as the Court extended the deadline for filing motions until December 19, 1984, by its Order of December 27, 1984. Defendants' motion was supported by a brief, the administrative record, and several exhibits, including copies of mail receipts. On March 14, 1985, the Plaintiff responded to Defendants' motion to dismiss, and moved in the alternative for summary judgment. Plaintiff's response was supported only by an affidavit signed on April 30, 1979. Defendants filed a memorandum in reply to Plaintiff's response on April 5, 1985. It is on this record that the Court bases its analysis and opinion.

III

DEFENDANTS' CLAIMS

The Defendants set forth four grounds to...

To continue reading

Request your trial
3 practice notes
  • Banks v. Rockwell Intern. N. Am. Aircraft Operations, No. C-2-84-1119.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • August 4, 1987
    ...F.2d 344 (D.C.D.C.1986). Notice has even been imputed to a claimant when notice was mailed to a former attorney. Polisoto v. Weinberger, 638 F.Supp. 1353 (W.D.Tex.1986). In all these cases the original of the right to sue letter was sent to the claimant with a copy to the The third category......
  • Ganheart v. Lujan, Civ. A. No. 89-3581.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • January 30, 1990
    ...under 42 U.S.C. § 2000e-16). 14 Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir.1979) (per curiam). 15 See Polisoto v. Weinberger, 638 F.Supp. 1353, 1367-68 16 See Plaintiff's Memorandum at 3 ("Petitioner's excuse was an illness which prevented her from timely filing her appeal to the Commiss......
  • Chapman v. Travalco, U.S.A., Inc., No. 96-1060-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • February 3, 1997
    ...Corp., 785 F.2d 344, 347 (D.C.Cir.1986); Jones v. Madison Service Corp., 744 F.2d 1309, 1313-14 (7th Cir.1984). Polisoto v. Weinberger, 638 F.Supp. 1353 (W.D.Tex. In the case at bar, the evidence produced by Travalco indicates that Plaintiff's counsel received and signed for the Notice of R......
3 cases
  • Banks v. Rockwell Intern. N. Am. Aircraft Operations, No. C-2-84-1119.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • August 4, 1987
    ...F.2d 344 (D.C.D.C.1986). Notice has even been imputed to a claimant when notice was mailed to a former attorney. Polisoto v. Weinberger, 638 F.Supp. 1353 (W.D.Tex.1986). In all these cases the original of the right to sue letter was sent to the claimant with a copy to the The third category......
  • Ganheart v. Lujan, Civ. A. No. 89-3581.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • January 30, 1990
    ...under 42 U.S.C. § 2000e-16). 14 Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir.1979) (per curiam). 15 See Polisoto v. Weinberger, 638 F.Supp. 1353, 1367-68 16 See Plaintiff's Memorandum at 3 ("Petitioner's excuse was an illness which prevented her from timely filing her appeal to the Commiss......
  • Chapman v. Travalco, U.S.A., Inc., No. 96-1060-CIV.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • February 3, 1997
    ...Corp., 785 F.2d 344, 347 (D.C.Cir.1986); Jones v. Madison Service Corp., 744 F.2d 1309, 1313-14 (7th Cir.1984). Polisoto v. Weinberger, 638 F.Supp. 1353 (W.D.Tex. In the case at bar, the evidence produced by Travalco indicates that Plaintiff's counsel received and signed for the Notice of R......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT