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January 28, 1998

ROBERT E. RUBIN, Secretary, Department of the Treasury, Defendant.

The opinion of the court was delivered by: LAMBERTH


 This matter comes before the court on defendant's motions to dismiss and for summary judgment on the discrimination claims of plaintiff Wendy Lynn Carter. Plaintiff Wendy Lynn Carter filed this suit after her resignation from the Bureau of Alcohol, Tobacco and Firearms ("ATF") contesting her working conditions, the threat of removal, and her subsequent resignation on the grounds that she was discriminated against on the basis of race (African-American), gender (female), and retaliation for participation in activities protected by federal anti-discrimination laws. Carter contends that she is therefore entitled to reinstatement to a federal law enforcement position, back-pay, and appropriate benefits under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Civil Rights Act of 1991, 42 U.S.C. § 1981.

 The court is presented with defendant's motion to dismiss the portions of plaintiff's complaint that have not been administratively exhausted and defendant's motion for summary judgment on plaintiff's remaining claims. Upon consideration of the submissions of the parties and the relevant law, defendant's motion to dismiss certain portions of plaintiff's complaint is granted and defendant's motion for summary judgment on the remaining claims is likewise granted.

 I. Background

 The Bureau of Alcohol, Tobacco, and Firearms ("ATF") is an agency of the United States Department of Treasury with a dual law enforcement and regulatory purpose. The ATF is charged with enforcing and administering firearms and explosives laws, as well as laws covering the production, use, and distribution of alcohol and tobacco products. The ATF's Office of Law Enforcement conducts its field operations through its approximately twenty-two district offices nationwide. Each of these district offices is headed by a special agent in charge ("SAC"), with subordinate offices in each district headed by group supervisors or resident agents in charge ("RAC's"). Def.'s Mot. for Summ. J. at 5.

 In an effort to carry out its law enforcement mission, the ATF employs criminal investigators, also referred to as special agents, in the job classification series GS-1811. *fn1" The Bureau describes the duties of special agents as including gathering information and intelligence; investigating specific cases involving weapons, liquor, explosives, bombs, or component parts; participating in raids, surveillance activities, and working undercover; executing search and arrest warrants; assisting other law enforcement agencies; and reviewing evidence at the conclusion of an investigation and preparing case reports if evidence requires such a report. Id. at 5-6.

 The position of a Criminal Investigator or Special Agent is classified by ATF as "critical sensitive." The establishment of a position's sensitivity level is based upon an analysis of the adverse impact to the agency that would result if an unsuitable person occupied that position. A position is designated as critical sensitive if there is potential for exceptionally grave damage to the national security if the position were held by an unsuitable person. Within ATF, all GS-1811 positions in the Office of Law Enforcement are designated as critical sensitive. Id. at 3.

 The claims of discrimination asserted by plaintiff Wendy Lynn Carter stem, in part, from an incident immediately preceding her termination from her law enforcement position with ATF. Carter entered service with ATF on December 18, 1989 as a GS-1811, grade 5, Special Agent. Comp. PP 6, 43-45. In conjunction with her employment as an ATF Special Agent, Carter was issued a government-owned vehicle, law enforcement credentials, a 9mm Sig Sauer semi-automatic firearm and 9mm ammunition, and a .38 caliber Smith and Wesson Model 66 firearm and ammunition for this weapon. Id. P 10. On January 25, 1990, after qualifying in training to carry a firearm, Special Agent in Charge for the Washington Field Division David Troy ("SAC Troy") authorized Carter to carry a firearm on duty and to begin performing law enforcement functions. Carter then attended Criminal Investigator Training School from February 9, 1990 to April 11, 1990 and attended New Agent Training School from October 1990 to December 1990. Id. PP 11-12.

 On February 16, 1991, Carter was involved in a dispute and altercation with her adult male friend, Joel Sadler. Def.'s Mot. for Summ. J. at 4. This dispute resulted in an automobile accident between plaintiff's government-owned vehicle and the vehicle that Sadler was operating and the firing of the government-issued Smith and Wesson revolver by Carter at Sadler. Comp. P 31; Def.'s Mot. for Summ. J. at 9. Carter and Sadler had apparently argued earlier in the evening of February 16 with the argument resuming and escalating later that evening in Carter's suburban Maryland apartment.

 Carter alleged that during the course of the altercation in her apartment she feared for her physical safety and as a result of this fear, she withdrew her government issued Sig Sauer 9mm pistol and demanded that Sadler cease his attack. Comp. P 22. According to Carter, Sadler then grabbed the issued weapon, wrestled it from her and threw her over a living room couch. Id. P 23. Sadler exited her residence with the Sig Sauer 9mm pistol in hand, and Carter pursued Sadler on foot as he attempted to leave her apartment complex in his vehicle. She proceeded to the parking lot to the location of her government-owned vehicle and retrieved her auxiliary government-issued firearm, a .38 caliber Smith and Wesson Model 66, and her bullet proof vest. Id. P 28; Def.'s Mot. for Summ. J. at 8-9.

 Once these items had been secured, Carter resumed her pursuit of Sadler, this time in her government-owned vehicle. While she maneuvered her vehicle in an effort to block Sadler's lane of traffic, Sadler approached Carter's vehicle at a high rate of speed with the headlights unilluminated. At this point, Carter claims to have been unable to determine whether Sadler was pointing the 9mm pistol at her while operating his vehicle. Comp. P 29. Although Carter positioned her vehicle in a manner designed to prevent Sadler from leaving the apartment complex, he deviated from the road and maneuvered around Carter's vehicle. Carter fired a round from her government-issued Smith and Wesson pistol at Sadler's vehicle, but Sadler was unharmed. Comp. P 30-31.

 Carter continued her pursuit of Sadler on a public highway. While in pursuit, Sadler reversed his direction of travel by changing lanes and returned toward Carter. According to Carter, she then executed a vehicle blocking maneuver effectively blocking the route taken by Sadler and the vehicles collided. Comp. P 33. She then contacted the duty agent at her post of duty, obtained back-up assistance, reported the event, requested intervention from local law enforcement officials, and finally returned to the scene. Howard County, Maryland police officials intervened and a Howard County police officer recovered Carter's government-issued Sig Sauer 9mm pistol from Sadler. Carter and the officials returned to Carter's apartment and were met by Carter's post of duty officer pursuant to her request. Comp. PP 34-35.

 The Howard County Police Department report of this incident was dated February 17, 1991, and was subsequently included in the ATF Office of Internal Affairs Investigation Number 910090. The Howard County Police Department report presents a markedly different version of the events that occurred that evening when compared with Carter's depiction of the same events of that evening. The report presents Sadler's contention that during the course of the argument between Sadler and Carter at Carter's residence, Carter drew her Sig Sauer 9mm pistol and pointed the weapon at Sadler's head. After disarming Carter, Sadler stated that he was leaving Carter's residence and the apartment complex and told Carter that he would surrender the weapon to the Laurel Police Department. Def.'s Mot. for Summ. J. at 9. Antonio Hall, a friend of Sadler and a witness of the incident, confirmed this description of the events when interviewed by the police. From this point, the police report largely coincides with Carter's version of the events. Id. at 10.

 On February 17, 1991, ATF took into custody Carter's law enforcement credentials, stripped her of her arrest powers, and placed her on administrative duty thereby preventing Carter from engaging in her regularly scheduled activities as a GS-1811 Special Agent. Comp. P 38. On this same date, the internal investigation of the incident was commenced. During the course of the investigation, Carter was interviewed by Joseph Dugan, an investigator from the Office of Internal Affairs ("OIA"), on two occasions but declined to provide Dugan with a signed affidavit detailing the incident. Def.'s Mot. for Summ. J. at 12.

 As a result of the ATF's OIA investigation, SAC Troy, decided to terminate Carter's appointment as a criminal investigator with ATF. Comp. P 42. After carefully considering the OIA report, SAC Troy concluded that Sadler had left plaintiff's apartment and was leaving the area of the apartment in his vehicle. SAC Troy assessed the totality of the circumstances, including the fact that Carter had already completed 14 months on the job, had attended both formal training schools given to new agents, and the manner in which she had reacted during the altercation and concluded that it was inappropriate for her to have fired her government-issued weapon at Sadler and that she had made a fundamentally flawed decision to use her firearm in that situation. Def.'s Mot. for Summ. J. at 12. SAC Troy indicated that he was not satisfied that the situation would change in the future or that he could rely on Carter to make an appropriate decision or take appropriate law enforcement actions in light of the incident. Id. at 12-13. Accordingly, SAC Troy determined that he could not continue to give Carter the responsibility and the authority of carrying a firearm and of deciding when to use and not to use a firearm and consequently, he decided to terminate Carter.

 SAC Troy met with Carter on April 18, 1991 to discuss the conclusions that he had reached regarding the incident. At this meeting, Troy presented Carter with a letter which read in relevant part:

On February 16, 1991, at approximately 11:00 p.m., you were involved in a dispute with an acquaintance, Mr. Joel Sadler, which occurred at your residence, and resulted in the discharge of your issued firearm and a vehicle accident involving your government automobile.
Specifically, at the above date and time, this argument occurred inside your residence and resulted in your drawing your issued firearm, a Sig Sauer 9mm pistol, and pointing same at Mr. Sadler. He then disarmed you and left your residence in possession of this firearm. You then exited your residence and observed Mr. Sadler leaving the area in his vehicle. After failing to stop him by blocking the road with the government vehicle, you retrieved your second issue firearm, a Smith and Wesson Model 66 Revolver, and fired one round to the right of, and over, Mr. Sadler's vehicle.
At this point you entered your government vehicle, a 1987 Chrysler Gran Fury, and pursued Mr. Sadler for a short distance from your residence where you eventually crossed into his lane of traffic as he was approaching you, resulting in a head-on collision between the two vehicles. You left the scene of this accident to call another ATF agent, then returned to find the Howard County, Maryland, police conducting an accident investigation. You ultimately returned to your residence and cleaned the Smith and Wesson revolver. In an interview with Office of Internal Affairs Special Agent Joseph E. Dugan on February 28, 1991, you admitted your firing of a warning shot was in violation of the ATF Order on firearms policy.
Your actions as related above were not only in violation of Bureau Orders, but are considered as totally unacceptable behavior and are an embarrassment to ATF. It cannot be tolerated as appropriate conduct for any Special Agent.
Accordingly, based on the above, I am terminating your Schedule A appointment as a Criminal Investigator (Special Agent) GS-1811-7 effective April 19, 1991.

 Comp. P 43; Def.'s Mot. for Summ. J. at 13-14.

 On April 19, 1991, SAC Troy informed Carter that he intended to remove her from her position as a Special Agent, but offered her the opportunity to resign. Carter attended this meeting with counsel and her father, and after consulting with both persons, she elected to resign in lieu of removal. Carter did resign from her position as a Special Agent with the ATF and specified that the resignation was to pursue other careers. Def.'s Mot. for Summ. J. at 14.

 Carter claims that the internal investigation of the February 16, 1991 incident was a pretext employed by the ATF to mask "defendant's true unlawful discriminatory intent to terminate plaintiff's employment based on her sex and race." Comp. at P 43. According to Carter, the ATF, "as part of the unlawful artifice to violate plaintiff's civil rights based on her race and sex, intentionally conducted, wrote up and officially issued its investigative report knowing that it contained false, deceptive, erroneous and misleading information for the purpose of justifying its illegal basis for its April 19, 1991 termination of plaintiff." Compl. P 44.

 As stated, Carter asserted that her termination resulted in large part from the investigation of the preceding events. However, Carter also claims to have been terminated in retaliation for her participation in a prior employment discrimination suit. Carter's claims of discrimination are based on her belief that ATF retaliated against her for participating in a class complaint of federal employment discrimination commencing in 1990. As Carter stated in her complaint "part of defendant's basis for terminating plaintiff's employment on April 19, 1991 was unlawful retaliation, based on defendant's known involvement of plaintiff with the class of African-American special agents of BATF in the class action complaint, based on protected activity under Title VII." Compl. at P 49.

 On May 19, 1991, Carter contacted an EEO counselor and an interview between the counselor and Carter occurred on May 28, 1991. During that interview, Carter alleged that she had been discriminated against on the basis of her race and sex when she was forced to resign on April 19, 1991. Carter executed a Designation of Representative and Limited Power of Attorney, indicating that she was represented by Prather Randle, an attorney from Memphis, Tennessee, in connection with her pending complaint of discrimination. Def.'s Mot. for Summ. J. Ex. 1 at 17.

 On June 24, 1991, Carter filed a formal complaint of discrimination with the agency alleging that she was discriminated against on the basis of her national origin and race. In her complaint, Carter made several assertions regarding the treatment she received during her employment as a Special Agent with ATF including claims that she failed to receive four evaluations she should have received during her first year of employment with the agency; that she had a discussion with her supervisors in October 1990 centering on alleged discriminatory comments, observations, and treatment by white agents toward Carter and African-Americans in general; and that in December Carter was told that she failed the Treasury Agents Exam, an examination that she claimed to be discriminatory. In this report, Carter also contended that she had been retaliated against because of her prior complaints of race discrimination to her supervisors and her participation in a class action filed in the United States District Court for the District of Columbia. On June 27, 1991, Carter clarified the bases for her complaint of discrimination. Carter supplanted her claims of national origin and race with claims of discrimination based on race and sex. Id. Ex. 1 at 11.

 On July 12, 1991, the agency notified Carter's attorney in writing as to which issues were accepted by the agency for investigation. The agency defined the accepted issues as follows:

Whether complainant was discriminated against because of her race (Black/Afro-American) and sex (female) when allegedly on April 19, 1991, she received a letter of termination, pertaining to a February 1991 incident, and she subsequently resigned in lieu of having the termination action as part of her personnel record.
Whether Complainant was retaliated against for her prior involvement in the in the EEO process because she is involved in an [sic] Class Action Complaint which is pending in the U.S. District Court.

 Def.'s Ex. 1 at 5.

 The agency specified that the issues could be clarified if Carter disagreed with those accepted by the agency. No clarification was sought by either Carter or her counsel and no additional issues were raised administratively. The agency also notified counsel for Carter that it was rejecting other the allegations contained in her complaint. Id. Ex. 1 at 6-7. Specifically, the agency rejected Carter's allegations that "(1) she received one evaluation instead of four; (2) around October, 1990, she was involved in discussion around discriminatory comments, observations and treatment by white agents; and (3) in December, 1990, she was notified verbally that she did not past [sic] the Exam." Id. These issues were rejected because Carter failed to contact an EEO counselor within thirty days as required by 29 C.F.R. § 1613.214(a)(1)(I). Carter's counsel was informed by certified mail that this rejection constituted a final agency decision and was informed as to what Carter's appeal rights were regarding that decision. No action to appeal the rejected part of Carter's claim was taken by either Carter or her counsel.

 The agency ultimately found no evidence of discrimination after its consideration of the accepted issues. After this determination was reached, Carter filed suit in this court.

 II. Analysis

 A. Defendant's Motion to Dismiss

 1. The Applicable Standard

 A district court should dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). If, in evaluating dismissal under Rule 12(b)(6), a court must consider matters outside the pleadings and attached documents, the motion to dismiss for failure to state a claim will be construed as a motion for summary judgment. Fed. R. Civ. P. 12(b).

 Federal Rule of Civil Procedure 56(c) permits a court to grant summary judgment when the evidence in the record shows that "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." The burden is on the moving party to show that there is no genuine issue of material fact or that the opposing party has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party bears the ultimate burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When the moving party has carried its burden, the burden shifts to the nonmoving party to "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting Fed. R. Civ. P. 56(e)). All reasonable inferences must be drawn in the light most favorable to the non-moving party. The party bearing the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate by specific factual allegations, that a genuine issue of material fact remains for trial. Celotex, 477 U.S. at 324. A dispute about a material fact is genuine only if the evidence presented is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 2. Carter's Compliance with Title VII Time Limits

 A federal employee's exclusive remedy to challenge discriminatory practices in the federal government is section 717 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. Section 717 was enacted as part of the Equal Opportunity Act 1972, Pub. L. No. 92-261, sec. 11, 86 Stat. 103, 111-12, and extends the protections contained in Title VII to federal government employees. This section also gives the EEOC broad authority to enforce Title VII's antidiscrimination mandate within the federal government, "including responsibility for issuing regulations to control federal agencies' processing of discrimination complaints." Bowden v. United States, 323 U.S. App. D.C. 164, 106 F.3d 433, 437 (D.C. Cir. 1997). Pursuant to that authority, the EEOC has established detailed procedures for the administrative resolution of discrimination complaints including a series of time limits for seeking informal adjustment of complaints, filing formal charges, and appealing agency decisions to the Commission.

 Title VII and the regulations promulgated thereunder also establish suit-filing time limits. Under section 717(c), a complainant has the right to file a civil action either "within 90 days of receipt of final action taken" by the employing agency, or if 180 days have passed since the filing of the complaint and the complainant is aggrieved by the agency's failure to take final action. If the complainant elects instead to appeal the agency's decision to the EEOC, the complainant once again has the right to proceed to court within 90 days of a final decision by the EEOC, or if the EEOC has taken no action, after 180 days have elapsed. 42 U.S.C. § 20000e-16(c); 29 C.F.R. § 1614(a-d). In essence, a federal complainant must file an administrative complaint concerning his or her allegations, and he or she may not file a civil action more than 90 days after receiving a final decision from either the employing agency or from the EEOC. Id. See also Robbins v. Bentsen, 41 F.3d 1195, 1197-98 (7th Cir. 1994); Charles v. Garrett, 12 F.3d 870, 873-74 (9th Cir. 1993). The limitations period for filing suit was extended from 30 to 90 days by the Civil Rights Act of 1991 and this extension became effective November 21, 1991. Pub. L. No. 102-166, sec. 114, 105 Stat. 1071, 1079.

 Compliance with the filing requirements of Title VII is not a jurisdictional prerequisite, rather it is a condition precedent to suit that functions like a statute of limitations and is subject to waiver, estoppel, and equitable tolling. Bowden, 106 F.3d at 437. Equitable tolling is applicable to suits against private defendants as well as suits against the United States brought by federal employees. The propriety of equitable tolling must be determined on a case by case basis and may be appropriate where "the defendant has actively misled the plaintiff or where the plaintiff has in some extraordinary way been prevented from asserting his rights." Carlile v. South Routt Sch. Dist. RE 3-J, 652 F.2d 981, 985 (10th Cir. 1981) (citation omitted).

 In the instant case, it is abundantly clear that Carter failed to comply with the filing deadlines imposed by the statutory language of section 717 in filing her claim of discrimination with this court and she can claim no equitable basis to toll the applicable time limits. On June 24, 1991, Carter filed her initial complaint of discrimination with the agency. The agency rejected certain allegations contained in Carter's complaint pursuant to 29 C.F.R. § 214 and 1613.215 because Carter "failed to seek, notify or discuss [the allegations] with an EEO Counselor within 30 calendar days of the dates of the alleged discriminatory acts/actions." The rejected allegations included claims that she received an inadequate number of evaluations during her tenure as an employee of the Treasury Department; that she was involved in discussions ...

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