The opinion of the court was delivered by: Urbina, District Judge.
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter comes before the court on the defendant's motion for
summary judgment. The plaintiff, Kennieth F. Thompson ("the plaintiff" or
"Mr. Thompson") brought this suit for damages under the Congressional
Accountability Act ("CAA"), 2 U.S.C. § 1301-1438. He claims that the
defendant, the United States Capitol Police ("the defendant" or "the
Capitol Police"), discriminated against him on the basis of his race.
Specifically, the plaintiff, who is African-American, alleges that the
defendant fired him from his position as a Capitol Police officer when he
was injured, while allowing similarly situated white officers to retain
their jobs. Additionally, the plaintiff asserts that the defendant
demonstrated a pattern and practice of racial discrimination against him
or African-American employees throughout his employment.
The defendant moves for summary judgment based on lack of
subject-matter jurisdiction.*fn1 The defendant claims that the plaintiff
failed to exhaust his administrative remedies by failing to request
counseling by the Office of Compliance within 180 days of the alleged
violations, as required by the CAA. Thus, the defendant argues that the
plaintiff's claims are time-barred. The plaintiff counters that the
doctrine of equitable tolling should allow his claim to proceed. For the
reasons that follow, the court holds that because the plaintiff presents
no facts that would justify applying the doctrine of equitable tolling,
his claims are time-barred. Accordingly, the court concludes that the
plaintiff has failed to exhaust his administrative remedies, and will
grant the defendant's motion for summary judgment. Lastly, because the
court holds that it lacks subject-matter jurisdiction, the court need not
address the defendant's remaining arguments.
Mr. Thompson, an African-American man, worked for the United States
Capitol Police from 1974 until February 1997, when his employer
officially terminated him. See Third Amended Complaint ("Compl.") at 2,
4-5. At the time of Mr. Thompson's termination, he held the rank of
Administrative Sergeant. See id. at 2. During the plaintiff's employment
with the Capitol Police, he suffered three on-the-job injuries. The first
injury occurred in February 1979, when Mr. Thompson hurt his knee while
pushing a scout car in the snow. See Defendant's Statement of Undisputed
disputed Material Facts in Support of Its Motion For Summary Judgment
("Def.'s Statement") at 4. The second injury occurred in 1985 when a
tourist drove into Mr. Thompson's scout car, injuring his left hand and
knee. See id. The third injury occurred during a police demonstration in
April 1993 when Mr. Thompson ruptured a tendon in his right foot. See
Compl. at 7. As a result of these injuries, the plaintiff had several
surgical operations, and went on both non-duty status and restricted-duty
status at various times. See Def.'s Statement at 4.
On May 17, 1996, the plaintiff was diagnosed with degenerative knee
problems. The plaintiff's doctor concluded that with the restrictive range
of motion and limitations to the knee, Mr. Thompson could no longer
safely continue regular police duties. The doctor diagnosed the
plaintiff's knee problems as permanent, and informed Mr. Thompson that
nothing more could be done. See Deft's Statement at 4.
In June 1996, Sergeant Wendy Clark of the Capitol Police spoke to the
plaintiff about his options under United States Capitol Police General
Order 2030, which states in part, "Members/employees who are unable to
return to a Full Unrestricted Duty Status after a one year period in
Non-Duty and/or Restricted Duty status should apply for Disability
Retirement, Workers' Compensation, or Time Retirement; or they may be
separated from the Department without benefits." Plaintiff's Opp'n to
Mot. for Summ. J. ("Pl.'s Opp'n") at 4. On June 19, 1996, Mr. Thompson
submitted a memorandum addressed to Chief Gary Abrecht requesting a
transfer to the Office of Workers' Compensation Programs' (OWCP)
temporary rolls. See Def's Statement at 5. Acknowledging that his
injuries were work-related, the Capitol Police granted Mr. Thompson's
transfer to the OWCP rolls. See Mot. for Summ. J., Ex. 2.
Next in a memorandum dated September 25, 1996, Deputy Chief Fentress
A. Hickman informed Mr. Thompson that he would be transferred to the OWCP
rolls after exhausting his accrued annual and compensatory leave, and
that he would be placed on terminal leave effective October 1, 1996. See
Deft's Statement at 6. Mr. Thompson understood that he would be separated
from the rolls of the Capitol Police after he exhausted his terminal
leave in February 1997. See id.; Pl.'s Opp'n at 5.
On April 1, 1997, the plaintiff requested counseling from the United
States Capitol Police Board's Office of Compliance, alleging that he had
suffered race-based discrimination. The plaintiff claimed that white
officers who had disabilities that were similar to or more severe than
his were accommodated and allowed to remain employed at full-duty
status. The plaintiff also claimed that one of the reasons the Capitol
Police fired him was a racially motivated desire to prevent his
participation in the 1996 promotional process for Lieutenant. See Deft's
Statement at 7. Furthermore, the plaintiff alleges that throughout his
employment with the Capitol Police, he encountered a pattern of
race-based discrimination. See Compl. at 5.
In his opposition to the defendant=s motion for summary judgment, Mr.
Thompson points to several occasions in which he claims he suffered
discrimination during his career. See Pl.'s Opp'n at 10-16. First, the
plaintiff alleges that the defendant discriminated against him sometime in
the 1970s when he applied for a position in the Firearms Section. See
id. at 10. According to the plaintiff, he did not initially receive an
interview, and he only subsequently received one after he spoke to a
Congressman. Id. at 10. Mr. Thompson alleges that when he went for the
interview, the interviewer stated something to the effect: "So you are
Thompson. You are probably not qualified, but we'll do this interview."
See Def's Statement at 1. Second, the plaintiff claims that in the mid to
late 1970s, he took an exam to become a crime-scene search officer.
Mr. Thompson, after he took the exam, his Captain, George Salyer, told
Mr. Thompson that he thought that Mr. Thompson had received one of the
highest scores on the exam, if not the highest. Subsequently, though, the
crime-scene unit neither contacted the plaintiff about his exam results
nor considered him for the position. See Def.'s Statement at 2.
Third, the plaintiff claims that at some point when he was a member of
the patrol division, he was required to split his weekend days off with a
white female officer who had less seniority than he did. See id. Fourth,
the plaintiff alleges that after he had scored well on the exam to become
a Detective, a supervisor disciplined him without cause to prevent him
from being promoted. After speaking to the Chief of the Capitol Police
about this situation, the plaintiff received a promotion to the rank of
Detective. See Defs Statement at 2-3.
Fifth, Mr. Thompson alleges that during the time that he was a Sergeant
between 1991 and 1995, his supervisors prevented him from disciplining
white officers. The plaintiff claims that whenever he disciplined a white
officer, his supervisors would not approve his actions. See Def.'s
Statement at 3. Sixth, the plaintiff charges that sometime between 1993
and 1995, his Lieutenant's recommendation that he be named Sergeant of
the Month was rejected, despite the ...