Roepsch v. Bentsen

• Decision Date: 21 March 1994
• Docket Number: No. 91-C-1232.,91-C-1232.
• Citation: 846 F. Supp. 1363
• Parties: Edward J. ROEPSCH, Plaintiff, v. Lloyd BENTSEN, in his capacity as Secretary of the Department of Treasury, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

846 F. Supp. 1363

Edward J. ROEPSCH, Plaintiff, v. Lloyd BENTSEN, in his capacity as Secretary of the Department of Treasury,¹ Defendant.

No. 91-C-1232.

United States District Court, E.D. Wisconsin.

March 21, 1994.

COPYRIGHT MATERIAL OMITTED

Edward J. Roepsch, Roepsch Law Offices, Milwaukee, WI, for plaintiff.

Charles A. Guadagnino, Asst. U.S. Atty., Milwaukee, WI, for defendant.

DECISION AND ORDER

RANDA, District Judge.

This matter comes before the Court on pro se plaintiff Edward J. Roepsch's ("plaintiff") motions to remove attorney William P. Lehman from representation of the Secretary of the Treasury (interchangeably, "defendant" or "Secretary") and for an order requiring the United States Attorney to demonstrate its authority to proceed on behalf of the Secretary. In addition, the defendant has moved for partial dismissal or, alternatively, for judgment on the pleadings. For the reasons set forth below, plaintiff's motions are denied and defendant's motions are granted in part and denied in part.

FACTUAL BACKGROUND

From approximately June of 1972 until his resignation on November 30, 1989, plaintiff was employed as an attorney by the Midwest Region District Counsel of the Internal Revenue Service, Department of Treasury. Plaintiff alleges a continuing pattern of discrimination beginning in 1987 when he was denied a promotion to a GS-15 position. (Complaint, ¶ 12). In addition, plaintiff alleges that he resigned under duress after being subjected to less favorable working conditions than other employees because of his race, color, age², in retaliation for assisting a minority employee process a work grievance, and in retaliation for his own use of the EEO process. (Complaint, ¶¶ 13, 14a-w).

Plaintiff's assistance of the minority employee occurred on or about December 22, 1988. On or about April 27, 1989, plaintiff filed his first formal EEO complaint (Agency Case 89-3079). Five more were to follow: June 21, 1989 (Agency Case 89-3090); June 22, 1989 (Agency Case 89-3001); October 2, 1989 (Agency Case 90-3001); November 8, 1989 (Agency Case 89-3023); January 10, 1990 (Agency Case 89-3028). Each EEO complaint alleges discrimination based on age, color, race, retaliation for assisting the minority employee, and retaliation for his use of the EEO complaints process, as well as filing the work grievances. After Treasury issued two proposed disposition letters finding no discrimination with respect to all six complaints, plaintiff, on March 29, 1990, filed his request for a hearing before the Equal Employment Opportunity Commission (EEOC) for Case Nos. 89-3079, 89-3089, 89-3090, and 90-3001. On June 4, 1990, the plaintiff filed his request for a hearing before the EEOC for Agency Case Nos. 90-3023 and 90-3028. A nineteen (19) day hearing was held in late 1990. On October 3, 1991, the EEOC issued its decision, recommending that Treasury enter a final agency decision of no discrimination. Plaintiff filed this suit on November 15, 1991.

Plaintiff's Motions

Plaintiff has filed two motions regarding defense counsel which appear to be born of the same frustration. First, plaintiff seeks the removal of attorney William P. Lehman from his representation of the defendant or from appearing "of counsel" in this case. As grounds therefore, plaintiff argues that Lehman, IRS assistant regional counsel, and Denis Conlon, regional counsel (and a former defendant in this case) are "illegally" involved in this case. According to plaintiff, both Lehman and Conlon, through the Regional Complaints Center, were initially responsible for investigating the plaintiff's EEO complaints. Further, Lehman, who "reports directly" to Conlon, also represented the Secretary of Treasury at the hearing despite this "obvious conflict of interest". In short, plaintiff argues that because he intends to call Lehman as a witness at trial, Lehman should not be allowed to appear as an attorney or as "of counsel" in this case. Plaintiff intends to question attorney Lehman about two distinct matters, neither of which appears relevant. The first concerns a meeting which Lehman held with employees of the Milwaukee District Counsel's office at which Lehman allegedly attempted to intimidate or coerce witnesses who were expected to testify at the EEOC hearings. In support of his motion, plaintiff asserts that, "at least one material witness, Attorney James P. Klein ... testified ... that he felt intimidated by this situation". (Plaintiff's brief at 2) Plaintiff's attachment of the hearing transcript flatly contradicts this assertion. With respect to the meeting that Lehman was involved in, the transcript provides:

Q. Besides the fact that the meeting was mandatory, was there anything else involved in the meeting that you felt was in any way intimidating?

A. Honestly, no. I would say no.

(Exhibit 1, Tr. p. 3250).

From the above, there appears to be no substance to the plaintiff's charge that Lehman acted improperly in conducting the employee meeting. As a second basis for having Lehman removed as counsel, plaintiff argues that during the EEOC hearing Lehman "conferred and advised Denis J. Conlon as to what to say". (Plaintiff's brief at 2). A review of the relevant portions of the transcript indicates that plaintiff's argument is without merit. The excerpts do not support an argument that Lehman engaged in improper "coaching", and even if he did, there is simply no basis for that matter to be revisited in this case. Accordingly, there is no reason to conclude that Lehman will be a witness in this case.

Plaintiff's second motion seeks a court order requiring the United States Attorney to "provide evidence of its authorization to represent the defendant in this proceeding and ordered not to be directed and controlled by Denis J. Conlon, his attorney, William P. Lehman, and other employees of the Office of Counsel, IRS". Plaintiff alleges the following:

When plaintiff attempted to settle this case, ... the Assistant United States Attorney notified plaintiff that she did not confer with the defendant, Nicholas F. Brady, or his office concerning this case. Instead, she apparently conferred with Attorney William O. Lehman, who reports directly to Denis J. Conlon, Regional Counsel, IRS, one of the individuals who is charged with committing the alleged illegal discriminatory and retaliatory acts in this case and who previously illegally represented Mr. Colon, a witness, and the Secretary of Treasury during the EEOC hearing.

(Plaintiff's brief at 2).

It appears from these two motions that plaintiff thinks the individuals who allegedly discriminated against him, and who are apparently directing the defense of this case, might be less willing to settle the case than someone from the Secretary's office. It is not within the Court's power to order the Secretary to defend this case in a particular fashion or with particular counsel. Whether the Regional Counsel and the United States Attorney are satisfactorily representing the Secretary is a question which neither the plaintiff nor the Court need concern itself. As plaintiff has submitted no authority to support his requested relief, and the Court is not persuaded by his arguments, the motions are denied.

Defendant's Motions

Defendant's motion pursuant to Fed. R.Civ.P. 12(b)(1), (6) and (c) involve a number of distinct issues. A motion for judgment, pursuant to Rule 12(c), is subject to the same standard as a Rule 12(b)(6) motion to dismiss, i.e., dismissal is warranted if it appears beyond doubt that the plaintiff can not prove any facts that would entitle him to relief. Thomason v. Nachtrieb, 888 F.2d 1202, 1204 (7th Cir.1989). First, the defendant argues that certain allegations of the plaintiff's complaint are not before this Court as they were not raised on the administrative level. Second, defendant seeks a ruling from the Court that plaintiff's Title VII allegations are not covered by the Civil Rights Act of 1991. Third, defendant argues that plaintiff is not entitled to a jury trial, compensatory or punitive damages under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 633. Fourth, defendant moves to strike plaintiff's request for attorney's fees on the grounds that a pro se plaintiff is not so entitled. Fifth, defendant moves to strike Count III of the complaint which sets forth a claim pursuant to the Back Pay Act, 5 U.S.C. § 5596. Finally, defendant moves to dismiss plaintiff's claim for relief which seeks prejudgment interest with respect to back pay and sick leave.

1. Exhaustion of Administrative Remedies.

Paragraph 14 of the Complaint.

The defendant has moved to dismiss certain allegations of the plaintiff's complaint for failing to raise them administratively. "This Court's jurisdiction extends only to the 11 issues addressed in the two PDLs³ ..." (Defendant's brief at 10-11). As a general rule, a plaintiff may not bring a Title VII or ADEA claim that is beyond the scope of his EEOC charge. Taylor v. Western and Southern Life. Ins. Co., 966 F.2d 1188, 1194 (7th Cir.1992) (Title VII) and Kristufek v. Hussmann Foodservice Co., 985 F.2d 364 (7th Cir.1993) (ADEA). However, "the complaint ... may properly encompass any ... discrimination like or reasonably related to the allegations of the charge and growing out of such allegations." Jenkins v. Blue Cross Mut. Hospital Ins., Inc., 538 F.2d 164 (7th Cir.1976), cert. denied, 429 U.S. 986, 97 S.Ct. 506, 50 L.Ed.2d 598 (1976); Babrocky v. Jewel Food Co., 773 F.2d 857, 864 n. 2 (7th Cir.1985). ("In cases in which the EEOC's investigation was overly narrow, the proper inquiry would be into what EEOC investigation could reasonably be expected to grow from the original complaint.") Contrary to the defendant's argument, it is clear from the foregoing that the proposed disposition letters do not limit the scope of the plaintiff's subsequent complaint in this Court. A review of ¶ 14 of plaintiff's complaint indicates that substantially...