Taylor v. Dam, CIV.A. H-01-4420.
| Citation | 244 F.Supp.2d 747 |
| Decision Date | 07 January 2003 |
| Docket Number | No. CIV.A. H-01-4420.,CIV.A. H-01-4420. |
| Parties | Barbara TAYLOR, Plaintiff, v. Kenneth W. DAM, Acting Secretary, Department of the Treasury, Defendant. |
| Court | United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas |
Barbara Taylor, Houston, TX, pro se.
Hays Jenkins, Jr., Office of U.S. Atty., Houston, TX, for Paul H. O'Neill.
Ralph F. Shilling, Jr., Dept. of Justice, Tax div., Dallas, TX, James M. Donavan, Dept. of Treasury, Dallas, TX, for U.S.
Pending before the court is Defendant Kenneth W. Dam, Acting Secretary, Department of the Treasury's ("Dam") Motion to Dismiss (# 12). Dam moves to dismiss Plaintiff Barbara Taylor's ("Taylor") claims of race discrimination and retaliation brought under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000h-6. Having reviewed the pending motion, the submissions of the parties, the pleadings, and the applicable law, and having conducted an evidentiary hearing, the court is of the opinion that dismissal is warranted.
Taylor is an African-American female who has been employed since 1984 by the Internal Revenue Service ("IRS"), a branch of the United States Department of the Treasury. Taylor began her employment as a GS-512-09 Revenue Agent. In July and October 1998, she applied for two GS-512-13 Revenue Agent positions, vacancy announcements 03-26-NPB9X103 () and 03-26-8X419B ("Group 1616" or "General Program Revenue Agent"). By late January or early February 1999, Taylor learned that she had not been selected for either position.
With respect to the CEP team member announcement, the IRS Personnel Department did not include her application in the package to be ranked, and she was not considered for a CEP team member position. After this oversight came to light, she was subsequently ranked, resulting in her inclusion in the "best qualified" list. Four Caucasian males, however, were selected for the CEP team member positions. As for the General Program Revenue Agent announcement, Taylor was one of three applicants considered for the position, but, unlike the other two applicants, she was not given an ad hoc evaluation. Although Taylor made the "best qualified" list, she was not selected for the General Program Revenue Agent position. It was filled instead by another African-American female.
The IRS procedures for complaints and grievances, as negotiated in a collective bargaining agreement ("CBA") between the National Treasury Employees Union ("NTEU") and the IRS, are set forth in NORD V.1 On February 4, 1999, Taylor filed a grievance with the IRS alleging contractual violations regarding IRS procedures for filling vacancies and promotions, claiming that specific provisions of the CBA were violated with respect to her non-selection for the two GS-13 positions described above. For relief, she requested an "[ijmmediate promotion to a GS 13 in Group 1616 . . . and other appropriate and/or mutually accepted remedies."
On March 11, 1999, a first-step grievance meeting was held. An account of the meeting is summarized in a letter dated April 12, 1999, which includes the agency's recommendation to grant Taylor "priority consideration" for the next GS-13 opening for a CEP team member position, noting that she was initially excluded from the package and was later ranked among the "best qualified" candidates. The agency also recommended that Taylor receive "priority consideration" for the next GS-13 opening for a General Program Revenue Agent position, finding that by adding back two points that were improperly removed from the panelists' ratings, Taylor would have been number one on the promotion list. According to Taylor, because the agency could not commit to a time frame in which she would be promoted, she declined this remedy and proceeded to the second step of the grievance procedure.
A second-step grievance meeting was conducted on May 4, 1999. An account of the meeting is documented in a letter dated May 22, 1999, indicating that the IRS again offered Taylor "priority consideration" for the next available GS-13 position in the Examination Division. The agency found that Taylor's application had been erroneously omitted from the CEP team member ranking package, and, if it had been included, she would have been placed on the "best qualified" list. Taylor again chose not to accept this remedy. Her grievance was ultimately settled on August 27, 1999, when the IRS agreed to promote Taylor to a GS-13 position, effective September 12,1999.
Prior to the resolution of her grievance, on June 8, 1999, Taylor filed a complaint with the Equal Employment Opportunity ("EEO") Office of the Department of the Treasury alleging race discrimination beginning in 1989 and continuing through the most recent incident of her non-selection for the GS-13 positions described above. Taylor requested in her complaint an immediate promotion to a GS-13 position in the Examination Division with no restrictions on location or group, back pay with interest from the first date of her eligibility for a GS-13 position (July 1989 to the present), and compensation for hardship and suffering from 1992 to the present. In her EEO complaint, she also claimed that she had been retaliated against for her involvement in prior EEO activity through the manipulation of the job announcements as a means of bypassing her for promotion. In order to resolve her complaint, the EEO counselor recommended that management "consider giving Barbara grade 13 back to first priority consideration in 95, or when agreement was signed 6/97." On September 9, 1999, after management declined to implement this recommendation, Taylor was issued a notice of her right to file a discrimination complaint with the Department of the Treasury Regional Complaint Center ("Regional Complaint Center"), which she submitted on September 10, 1999.
The Regional Complaint Center dismissed Taylor's complaint on October 1, 1999, finding that "the matter was raised in a negotiated grievance procedure that permits allegations of discrimination." According to the agency, Taylor's decision to pursue the negotiated grievance procedure constituted an election of a forum, foreclosing a subsequent EEO complaint on the same matter. See 29 C.F.R. § 1614.107(a)(4).
On October 25, 1999, Taylor appealed the agency's dismissal to the Equal Employment Opportunity Commission's ("EEOC") Office of Federal Operations, asserting that the "agency had no intentions of fulfilling the outstanding priority consideration . . . when one of the announced positions was awarded to another agent in Ms. Taylor's current work group" and that "the basis for filing the EEO complaint . . . only became apparent during the grievance process that the agency intentionally failed to fill Ms. Taylor's priorities until the filing of the EEO complaint." She further alleged that it "was not apparent of the retaliation and reprisal being taken against Ms. Taylor regarding the past mass grievance settlement which was thought to be long forgotten until after filing a grievance on the non-selection of Revenue Agent (CEP Team Member) and non-selection for Revenue Agent (Group 1616)." On November 29, 2000, the EEOC reversed the agency's decision and remanded Taylor's complaint to the agency for processing, finding that it had failed to include in its final decision the portions of the CBA relevant to the negotiated grievance procedure and the EEO process. See Taylor v. Department of Treasury, EEOC Appeal No. 01A00766 (Nov. 29, 2000).
On remand, on January 10, 2001, the Regional Complaint Center dismissed Taylor's complaint on the same grounds (i.e., her election of the negotiated grievance procedure precluded an EEO complaint on the same matter), attaching the relevant portions of the CBA as part of the official record as well as Taylor's written grievance and other related documents. On February 8, 2001, Taylor once again appealed the agency's dismissal of her complaint to the EEOC's Office of Federal Operations. She argued on appeal that her grievance involved only a contractual claim regarding the agency's alleged failure to submit all her paperwork to the ranking panel, and, in contrast, her EEO complaint concerned a claim that she had been subjected to a pattern of discrimination on the basis of race and in reprisal for prior protected activity dating from 1993 until the time of the complaint. She also contended that the focus of the grievance on the proper ranking procedures was distinct from her claim of discriminatory nonselection. Taylor maintained that she retained the right to file an EEO complaint under the CBA because she never raised the issue of discrimination within the grievance process.
On May 31, 2001, the EEOC affirmed the agency's dismissal of her complaint and denied her appeal, finding that her complaint "raises matters raised in a prior grievance that permits allegations of discrimination." The EEOC noted that Taylor's EEO complaint regarding the issue of non-selection was "inextricably intertwined with the grievance to a degree that makes the two claims essentially the same matter." The EEOC rejected Taylor's argument that she could bifurcate her contractual and discrimination claims regarding her non-selection for a GS-13 position by instituting proceedings in both fora. See Taylor v. Department of Treasury, EEOC Appeal No. 01A12145 (May 31, 2001). Taylor requested reconsideration, which the EEOC denied on September 26, 2001. On the same date, the EEOC issued Taylor a notice of right to file a civil action.
Taylor, proceeding pro se, instituted this action on December 20, 2001, asserting claims of race discrimination and retaliation under Title VII. Dam seeks dismissal of Taylor's claims pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Dam contends under Rule 12(b)(1) that the court lacks subject matter...
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