Wilson v. West

• Decision Date: 29 January 1997
• Docket Number: Civil Action No. 5:95-CV-136BrS.
• Citation: 962 F.Supp. 939
• Parties: Percy Carl WILSON, Plaintiff, v. Togo D. WEST, Jr., Secretary of the Army, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

962 F.Supp. 939

Percy Carl WILSON, Plaintiff, v. Togo D. WEST, Jr., Secretary of the Army, Defendant.

Civil Action No. 5:95-CV-136BrS.

United States District Court, S.D. Mississippi, Western Division.

January 29, 1997.

Opinion Supplementing Decision March 24, 1997.

COPYRIGHT MATERIAL OMITTED

Richard R. Grindstaff, Jackson, MS, for Percy C. Wilson.

Percy C. Wilson, Vicksburg, MS, pro se.

Carlton W. Reeves, U.S. Attorney's Office, Jackson, MS, for Togo D. West.

MEMORANDUM OPINION AND ORDER

BRAMLETTE, District Judge.

This cause is before the Court on the defendant Togo D. West, Jr., Secretary of the Army's motion for summary judgment. Having carefully considered the motion, response, memoranda of the parties and supplementing documents, the Court finds as follows:

Percy Carl Wilson has sued the Secretary of the Army alleging that he was discriminated against while employed by the United States Army Corps of Engineers, Vicksburg District ("Corps"). The Court permitted Wilson to proceed in forma pauperis. He later obtained private counsel, who filed an Amended Complaint.

Wilson began working with the Corps in 1974 as a messenger. By the time he retired in June, 1993, he was an engineering technician/contract specialist. (Plaintiff's Deposition, at 11-14). Because he believed that he had been discriminated against, Wilson met with an EEO counselor, Eunice Polk, on September 20, 1993,¹ and submitted an informal complaint of discrimination. (Equal Employment Opportunity Informal Complaint completed by counselor; EEO Pre-Complaint completed by Wilson). In the Pre-Complaint Wilson alleged that he was discriminated against because of his race. He asserted that he was not given the same opportunities to advance as his white co-employees were given, and that one of his supervisors made racial remarks while on the job. Id. Wilson then filed a Formal Complaint of Discrimination on October 19, 1993. In the formal complaint, Wilson articulated several bases of discrimination: race, handicap (mental and physical), sex, age, and reprisal — "racial, non-promotion, overworked, past EEO complaints."

The Pre-Complaint and the Formal Complaint both allege that the date of the most recent acts of the discrimination occurred in April, 1993. The Corps, through Ida F. Smith, Operating Equal Employment Opportunity Officer, acknowledged, by letter, receipt of Wilson's formal complaint. This letter advised Wilson of the EEO procedures with regard to the assignment and investigation of his case. By letter of November 1, 1993, Smith advised Wilson that his complaint would be dismissed as required by 29 C.F.R. 1614.107 because it was untimely. In particular, the letter explained:

The most recent date you could provide to the EEO Counselor for when these alleged discriminatory actions occurred was sometime in April 1993. The date of the initial contact with the EEO Office was September 20, 1993.

In order for a complaint to be considered timely filed, the matter complained of must have been brought to the attention of an EEO Counselor or other EEO officials within forty-five calendar days of occurrence....

Id.

The letter further advised Wilson that he could appeal the dismissal of his complaint to the EEOC. Wilson appealed. In an undated letter, Wilson advised that he was "dissatisfied with th[e] decision," and asked that the letter be accepted as a formal request to appeal the Corps' decision.

On March 31, 1994, the EEOC issued its decision regarding Wilson's appeal. The decision focused its attention on whether Wilson should have been given additional time in which to initiate contact with an EEO counselor because of his illness. The decision noted that the dispositive issue "is whether [Wilson] was prevented by circumstances beyond his control from contacting a counselor by June 14, 1993." The EEOC also found that the Corps had not considered the relevancy of Wilson's condition in its determination on this timeliness issue and further concluded that it was unable to determine whether Wilson's medical condition was a circumstance beyond his control which prevented him from contacting the counselor within the time limits. Because of these gaps, the EEOC reversed the Corps' decision and remanded the case to the agency for supplemental investigation to determine whether Wilson was prevented by circumstances beyond his control from contacting a counselor within the time limits.

The agency completed its supplemental investigation and issued a decision finding that Wilson failed to demonstrate that he was prevented by circumstances beyond his control from contacting an EEO counselor in a timely manner. Wilson then filed another appeal to the Commission. The EEOC affirmed the Corps' decision dismissing his complaint. Not satisfied with that result, Wilson then submitted a timely request for the EEOC to reconsider its decision; however, the request was denied. Wilson then timely filed this civil action.

The issue presently before this Court is whether the agency acted properly in dismissing Wilson's Complaint because Wilson failed to contact an EEO counselor within the time period established by law.

The Supreme Court has held that Rule 56(c) mandates summary judgment in any case where a party fails to establish the existence of an element essential to the case and on which that party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. at 2548, 2552, 91 L.Ed.2d 265 (1986). A complete failure of proof on an essential element renders all other facts immaterial because there is no longer a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2552. In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Court stated:

By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

As to materiality, the substantive law will identify which facts are material....

Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510 (emphasis in original). When the moving party has carried the Rule 56(c) burden, the opposing party "is obligated to oppose the motion either by referring to evidentiary material already in the record or by submitting additional documents which set out specific facts indicating the existence of a genuine issue for trial." Callender v. Ergon, Inc., 928 F.Supp. 665, 666 (S.D.Miss.1996). The nonmoving party cannot satisfy its burden by referring back to the allegations of its pleadings. Leslie v. Ingalls Shipbuilding, Inc., 899 F.Supp. 1578, 1580 (S.D.Miss.1995). A claim that further discovery or a trial might reveal facts which the plaintiff is currently unaware of is insufficient to defeat the motion. Woods v. Federal Home Loan Bank Bd., 826 F.2d 1400, 1414-15 (5th Cir.1987). If the nonmovant fails to satisfy its burden, summary judgment is required. Leslie, 899 F.Supp. at 1580; Callender, 928 F.Supp. at 667.

When Congress enacted Title VII it included certain mandatory administrative requirements as a prerequisite to bringing an employment discrimination claim in federal court. Specifically, Section 717 of Title VII, 42 U.S.C. § 2000e-16(b) (1981) requires the establishment of procedures for the administrative processing of Title VII complaints. Among those established procedures is the requirement of timely filing of administrative charges as a prerequisite to filing a district court action. Alexander v. Gardner-Denver Co., 415 U.S. 36, 47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974). Thus, in order to maintain a lawsuit pursuant to Title VII, Wilson was required to timely exhaust his administrative remedies. Brown v. General Services Administration, 425 U.S. 820, 832-33, 96 S.Ct. 1961, 1967-68, 48 L.Ed.2d 402 (1976). The exhaustion requirement includes timely compliance with any regulations governing the processing of complaints. See Janneh v. Runyon, 932 F.Supp. 412, 416 (N.D.N.Y. 1996) (citations omitted). "These rules are not mere technicalities, but are parts of Congress' statutory scheme of achieving a `careful blend of administrative and judicial enforcement powers.'" Thompson v. West, 883 F.Supp. 1502, 1507 (M.D.Ala.1995) (citation omitted) The administrative time limits, moreover, are akin to statutes of limitation. Bohac v. West, 85 F.3d 306, 311 (7th Cir. 1996).

Title 29 C.F.R. § 1614.105, promulgated pursuant to the statutory mandate of Title VII, sets forth applicable filing deadlines for the pre-complaint processing stage of the EEO administrative process. Specifically, the applicable section of the Code of Federal Regulations provides that "[a]n aggrieved person must initiate contact with a counselor within 45 days of the date of the matter alleged to be discriminatory or in the case of personnel action, within 45 days of the effective date of the action." See 29 C.F.R. § 1614.105(a)(1).

It is undisputed that EEO notices were posted on a bulletin board at the Vicksburg District office, advising employees that they had forty-five (45) days from the date of the alleged act of discrimination to initiate contact with an EEO Counselor. (Declaration of Harry G. Brown). The plaintiff knew that important information, including information regarding the EEO process, was placed on the bulletin board. (Plaintiff's Deposition, at 18-19). Moreover, this was not Wilson's first EEO complaint, so he was no stranger to the process. (Plaintiff's Deposition, at 97). See Bohac, 85 F.3d at 313.

The last day an alleged discriminatory act could have occurred was April 5, 1993, the plaintiff's last day of work.² The plaintiff filed his EEO claim on September 20, 1993,³ which was at least five months after the last alleged act occurred. The applicable EEO regulations provide that an Agency shall dismiss a complaint or a portion of a complaint that fails to comply with...