Theard v. US Army

• Decision Date: 15 January 1987
• Docket Number: Civ. No. C-86-369-G.
• Citation: 653 F. Supp. 536
• Parties: Sandra J. THEARD, Plaintiff, v. The UNITED STATES ARMY, Defendant.
• Court: U.S. District Court — Middle District of North Carolina

653 F. Supp. 536

Sandra J. THEARD, Plaintiff, v. The UNITED STATES ARMY, Defendant.

Civ. No. C-86-369-G.

United States District Court, M.D. North Carolina, Greensboro Division.

January 15, 1987.

COPYRIGHT MATERIAL OMITTED

Sandra J. Theard, pro se.

Robert H. Edmunds, Jr., Greensboro, N.C., U.S. Atty. and Major William S. Trivette, Office of the Judge Advocate General, Dept. of the Army, Washington, D.C., for defendant.

MEMORANDUM OPINION

GORDON, Senior District Judge:

Defendant, United States Army, moves to dismiss or in the alternative to grant summary judgment on employment-related claims brought by pro se plaintiff, Sandra J. Theard. Plaintiff claims that the Army retaliatorily discharged her from her position as an army Kitchen Police (KP) worker on account of her complaints to army officials about waste, favoritism, deception, and discrimination allegedly practiced by the KP management. Plaintiff also claims that she was discriminatorily discharged and denied promotions on account of her race and sex. Finally, plaintiff claims that she was denied procedural due process when the Army revoked her "dependency status".

The Army contends that dismissal is proper as to plaintiff's employment discrimination claims on account of plaintiff's alleged failure to timely exhaust her administrative remedies. In the alternative, the Army contends that summary judgment is proper as to all such claims except discriminatory denial of promotions. The Army also contends that plaintiff's claim of retaliation due to whistleblowing should be dismissed for a lack of jurisdiction, as this claim is allegedly within the exclusive province of the Office of Special Counsel (OSC) for the Merit Systems Protection Board (MSPB). Finally, the Army invokes its sovereign immunity and thereby moves for dismissal of plaintiff's procedural due process claim.

To the extent that plaintiff attempts to state a retaliation claim under the Civil Service Reform Act (CSRA), the court dismisses such claim for lack of jurisdiction. The court grants summary judgment on plaintiff's Title VII claims of retaliatory and discriminatory discharge, finding no genuine issue remaining as to whether defendant would have discharged plaintiff "but for" her whistleblowing and her status as a black female. The court dismisses plaintiff's due process claim pursuant to (1) defendant's sovereign immunity and (2) the absence on the part of plaintiff of any entitlement to continued employment. Plaintiff's remaining claim — that she was denied promotions on account of her sex and race — will be rejected for a failure to timely exhaust administrative remedies unless she demonstrates at a full-scale evidentiary hearing to be scheduled by the court that the court should extend the 30 day period (29 CFR § 1613.214(a)(1)(i) (1986)) for consulting a Equal Employment Opportunity (EEO) Counselor. Extension of the 30 day period is arguably proper pursuant to 29 CFR § 1613.214(a)(4) (1986), based on the Army's alleged failure to notify plaintiff of her duty to timely consult an EEO Counselor.

FACTS

Plaintiff, a black female married to a soldier, received a position as a KP worker with the United States Army in Kitzingen, Germany, on 12 June 1981. As a "dependent" of an army soldier, plaintiff was given an "excepted service appointment", meaning she did not receive her job through a competitive entrance system, but instead was given the job pursuant to the Army's Dependents Employment Policy.¹ Under this policy, the Army provides family members of soldiers stationed overseas with an opportunity to work when language would be a barrier to host-country employment.

On 2 June 1982, approximately one year after starting her job as a KP worker, plaintiff signed a group grievance letter prepared by a KP Communication Committee and sent to army officials. The purpose of the letter was "to inform individuals ... of the unsatisfactory and unstable working environment" to which KP workers were allegedly subjected. The letter listed "some of the abuses and irregularities" as, among other things, favoritism, slander, unfair hiring practices, deception, mismanagement, and "discrimination (non-racial)." The letter stated that "some of these conditions" were "overt and blatant violations of the principles and policies contained in regulations ... that apply to Race Relations and Equal Opportunity." Finally, the letter contained the KP group's requested remedy: "a comprehensive plan of action to alleviate these problems and conditions, thereby creating a more improved work environment." As specific examples of the allegedly unfair practices occurring during 1982, plaintiff now contends that she applied for and was denied a promotion to KP Leader on at least five occasions, and that she was transferred to a different KP facility for writing the KP supervisor a letter explaining that the KP leader "was not doing her job."

Robert Poindexter, an EEO staff member, made an informal inquiry into the KP workers' allegations of unfair treatment. Upon completing this inquiry, Poindexter recommended that the KP supervisor either be removed or provided with the "training that would better equip him to effectively supervise large groups of employees" and that plaintiff be restored "to her previous position and location." Affidavit of Robert Poindexter (Case File # 13). Poindexter admits that he did not inform plaintiff about the EEO filing requirements, but explains that he "was not acting, in this case, in an EEO capacity." Ms. Judge, another EEO official aware of the KP workers' grievance, also allegedly failed to apprise plaintiff of the EEO filing requirements.

The workplace was not the only context in which plaintiff had difficulties during 1982; her marriage was severely deteriorating. Her husband, Michael Theard, was allegedly having an extra-marital relationship and ceased living with plaintiff on or about 28 October 1982. On 10 February 1983, Mr. Theard formally requested that the Army revoke plaintiff's dependency status, terminate her employment, and send her and their child back to the United States. Mr. Theard listed, among other things, marital difficulties leading to their physical separation as the explanation for this request.

Fritz Friedal, Employment Relations Specialist assigned to the Kitzingen Civilian Personnel Office, terminated plaintiff's employment on 25 February 1983, citing regulations that require the Army to revoke an employee's dependency status upon "occupancy of separated living quarters from those of the sponsor" and to terminate employment within 60 days thereafter.² Mr. Friedal unequivocally denies that his decision was in any way motivated by a desire either to retaliate against plaintiff because of "any complaint she had ever made concerning the working conditions at the Kitzingen Dining Facilities," or to discriminate against plaintiff on account of her sex and race. Affidavit of Fritz Friedal (Case File # 6, exhibit 5). Plaintiff subsequently returned to the United States in March 1983.

While at least two EEO officials were aware in 1982 of the KP workers' grievance, plaintiff did not personally present a discrimination complaint to an EEO Counselor until 26 July 1984. Plaintiff then brought the following claims to the attention of the counselor: (1) discriminatory termination of employment and denial of promotions on account of her race and sex and (2) retaliatory discharge on account of her whistleblowing to army officials concerning the allegedly unfair work conditions created by the KP management. On 17 September 1984, the Army EEO Office rejected plaintiff's discrimination claims as untimely. The Army based its decision on plaintiff's failure to contact an EEO Counselor within 30 days after any alleged discrimination, as required by 29 CFR 1613.214(a)(1)(i). The Army refused to extend the time limit despite plaintiff's contention that, under 29 CFR 1613.214(a)(4), the Army's alleged failure to notify her of the EEO filing procedures required such an extension. The Army also rejected plaintiff's retaliation claim, concluding that such a claim does not fall "within the purview of the Equal Opportunity Complaint regulations." Case File # 12, pp. 13, 16. On 21 March 1986, the EEOC concurred with the Army's decision in its entirety. Plaintiff, pro se, filed a suit in federal district court on 4 April 1986. She amended her complaint on 14 November 1986 to include a claim that the Army violated her due process rights by revoking her dependency without affording her sufficient procedural protections.

DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S TITLE VII CLAIMS FOR A FAILURE TO EXHAUST AVAILABLE ADMINISTRATIVE REMEDIES

The exclusive remedy for federal employment discrimination is Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16(c), and plaintiff must comply with its administrative exhaustion requirements as a precondition of her suit. Brown v. General Services Admin., 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). A failure to exhaust, however, is not a jurisdictional defect; the exhaustion requirements are instead subject to equitable tolling and estoppel. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). The exhaustion requirements are also subject to any regulatory overrides. See Henderson v. United States Veterans Admin., 790 F.2d 436 (5th Cir.1986) ("EEOC has the authority to enforce the statute Title VII and to issue those regulations needed to implement the statute").

Defendant contends that plaintiff's failure to consult with an EEO Counselor within 30 days after the alleged discrimination, as required by 29 CFR § 1613.214(a)(1)(i), precludes plaintiff's suit in district court. Plaintiff counters with three assertions: (1) plaintiff did in fact comply with the 30 day rule because at least two EEO officials were aware of her grievance within the requisite 30 day period; (2) the...