Quillen v. US Postal Service

• Decision Date: 23 May 1983
• Docket Number: Civ. No. 82-73587.
• Citation: 564 F. Supp. 314
• Parties: Sherry QUILLEN, Plaintiff, v. U.S. POSTAL SERVICE, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

564 F. Supp. 314

Sherry QUILLEN, Plaintiff, v. U.S. POSTAL SERVICE, et al., Defendants.

Civ. No. 82-73587.

United States District Court, E.D. Michigan, S.D.

May 23, 1983.

Beth E. Applebaum, Detroit, Mich., for plaintiff.

Ellen G. Ritteman, Asst. U.S. Atty., Detroit, Mich., Robert P. Henderson, Labor Atty., U.S. Postal Service, Chicago, Ill., for defendants.

MEMORANDUM OPINION

RALPH M. FREEMAN, District Judge.

This matter is before the Court on defendants U.S. Postal Service's and Michael Walsh's motion to dismiss and alternative motion for summary judgment. This is a sex discrimination action in which plaintiff, a former letter carrier for the U.S. Postal Service, alleges sexual harassment during her employment, discriminatory discharge, and discriminatory failure to reinstate. Plaintiff asserts a claim under § 717 of Title VII of the Civil Rights Act of 1964, as added by § 11 of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16. The complaint also refers to § 706 of Title VII, 42 U.S.C. § 2000e-5; 42 U.S.C. §§ 1985(3), 1988; the equal protection clause of the fifth amendment to the U.S. Constitution; article I, section 2 of the Michigan Constitution; and the Michigan Elliott-Larsen Civil Rights Act, M.C.L.A. § 37.2102. The complaint further alleges a claim for assault and battery under Michigan common law.

Defendants' motion contains several parts. First, defendants move for partial summary judgment on plaintiff's claims for sexually discriminatory discharge and sexual harassment during her employment. Second, defendants move to dismiss all claims other than the claim under § 717 of Title VII, 42 U.S.C. § 2000e-16. Third, defendants move to dismiss all defendants except William Bolger, the Postmaster General of the United States.

Motion for Partial Summary Judgment

Plaintiff alleges in her complaint that she was employed as a letter carrier at the U.S. Post Office branch in Taylor, Michigan. She claims she was a victim of sexual harassment and a sexually discriminatory discharge. Plaintiff also alleges that she was denied reinstatement in retaliation for making charges of sexual harassment before she was discharged. These claims are based on § 717 of Title VII, 42 U.S.C. § 2000e-16, which extends the protection of Title VII to federal employees. Defendants move for partial summary judgment on plaintiff's claims of sexual harassment and sexually discriminatory discharge on the ground that plaintiff failed to exhaust her administrative remedies as required by section 717(b) and (c) and the applicable regulations, 29 CFR § 1613.201 et seq.

Summary judgment is appropriate only where no genuine issue of material fact remains to be decided and the movant is entitled to judgment as a matter of law. The Court cannot make findings of disputed facts and must construe the evidence together with all inferences to be drawn therefrom in the light most favorable to the party opposing the motion. Watkins v. Northwestern Ohio Tractor Pullers Ass'n., 630 F.2d 1155 (6th Cir.1980); Bohn Aluminum & Brass Corp. v. Storm King, 303 F.2d 425 (6th Cir.1962). Once the movant shows that there is no genuine issue of material fact, Fed.R.Civ.Pro. 56(e) requires the opponent to produce by affidavit or otherwise specific evidence showing that a genuine issue of fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); First National Bank of Arizona v. Cities Services Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1967), reh. denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968). In this case, defendants have submitted the affidavit of Rhodell Queen, an Equal Employment Opportunity (EEO) specialist for the U.S. Postal Service who examined plaintiff's informal complaint file and administrative records. Attached to the affidavit are exhibits referred to by Queen, including plaintiff's informal complaint file. Since plaintiff has not submitted any affidavits or other evidence to contradict these facts, the Court concludes that there is no genuine issue of material fact concerning plaintiff's administrative proceedings and makes the following findings of fact.

Plaintiff received a letter dated January 4, 1980 that notified her of her separation from employment effective February 4, 1980. She initiated the informal complaint procedure under the regulations by contacting an EEO counselor on February 12, 1980. At her initial interview plaintiff claimed that her separation from employment was due to sexual harassment and reprisal by a supervisor, one of the employees she claimed engaged in the sexual harassment. The EEO counselor conducted an inquiry into the charges, but was unable to resolve the matter at that level. The EEO counselor conducted a final interview with plaintiff on March 27, 1980. In the Notice of Final Interview form required by the regulations and signed by plaintiff, she was informed of her right to file a formal written complaint of employment discrimination with the EEO office in Chicago within fifteen calendar days of the date of the final interview. Plaintiff did not file the formal written complaint.

On February 26, 1981 and March 12, 1981 plaintiff sent letters to the U.S. Postal Service requesting reinstatement. Her requests were denied by a letter dated April 10, 1981. On May 14, 1981, plaintiff filed a second informal EEO complaint concerning the denial of her reinstatement. The EEO counselor was unable to resolve the matter and conducted a final interview with plaintiff. Following her final interview on July 15, 1981 plaintiff filed a formal written complaint with the EEOC office in Chicago and subsequently filed this action.

Defendants concede that plaintiff has fully exhausted her administrative remedies with respect to her claim of discriminatory refusal to reinstate. However, they move for summary judgment on plaintiff's claims for discriminatory discharge and sexual harassment on the ground that plaintiff failed to exhaust her administrative remedies with respect to those claims. They contend that plaintiff failed to exhaust her administrative remedies when she failed to file a formal written complaint with the EEOC office in Chicago after her final interview on March 27, 1980 concerning her first informal complaint. Plaintiff argues in response that the alleged discriminatory discharge and sexual harassment were part of a continuing pattern of discrimination culminating in the failure to reinstate her. She also contends that the allegations are within the scope of the EEOC investigation which could reasonably be expected to grow out of the charge of discriminatory refusal to reinstate that she did file.

A federal employee must timely file an administrative complaint as a condition precedent to bringing a discrimination suit under section 717 of Title VII, 42 U.S.C. § 2000e-16. Brown v. General Services Administration, 425 U.S. 820, 832, 96 S.Ct. 1961, 1967-68, 48 L.Ed.2d 402 (1976); Porter v. Adams, 639 F.2d 273, 276 (5th Cir. 1981); Cooper v. Bell, 628 F.2d 1208, 1211 (9th Cir.1980); Hoffman v. Boeing, 596 F.2d 683, 685 (5th Cir.1979); Bethel v. Jefferson, 589 F.2d 631, 640-42 (D.C.Cir.1978). Although the statute does not specify the time period within which an initial administrative charge must be filed, the EEOC has promulgated regulations governing the procedure and processing of administrative charges. See 29 CFR §§ 1613.201-.283 (1982).¹ The employee must bring her charge to the attention of an EEO counselor within thirty days of the alleged discriminatory conduct to attempt to resolve the charge in the informal complaint procedure. 29 CFR §§ 1613.213-.214(a)(1). If the complaint is not informally resolved, the employee must file a formal written complaint with the EEOC within fifteen days of her final interview with the EEO counselor. 29 CFR § 1613.213-.214. After this complaint is filed, the employee is entitled to a formal investigation and a recommended decision on her charges. If the charge is rejected after this administrative hearing, the employee may file a suit in district court within thirty days of the rejection. 42 U.S.C. § 2000e-16; 29 CFR § 1613.282. See generally Brown v. General Services Administration, supra; Cooper v. Bell, supra; Hoffman v. Boeing, supra.

In this case, defendants argue that plaintiff failed to exhaust her administrative remedies with respect to the charges of sexual harassment and discriminatory discharge because she failed to file a formal complaint with the EEOC office within fifteen days of her final interview on March 27, 1980 concerning the first informal complaint. The uncontradicted evidence shows that plaintiff received and signed the Notice of Final Interview form required by 29 CFR § 1613.213, which informed plaintiff that she must file her formal complaint with the EEOC office within fifteen days of the date of the final interview. The uncontradicted evidence also shows that plaintiff did not file the complaint with the EEOC office.

In her brief in response to this motion, plaintiff appears to argue that she did not file the complaint because she was negotiating for her reinstatement in connection with a grievance she had filed with the union after she received the notice of separation on January 4, 1980.² Plaintiff asserts that during these negotiations the U.S. Postal Service agreed to withdraw her notice of separation if she submitted medical retirement papers by February 4, 1980. She also asserts that defendants intentionally delayed delivering until after February 4, 1980 the medical forms mailed to her by her physician that were required to be submitted for medical retirement. These assertions are not supported by affidavits or other evidence. Even if the Court accepts these allegations as facts, however, these facts do not explain plaintiff's failure to file a formal complaint with the EEOC after her final interview on March 27, 1980. According to plaintiff's own...