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Golla v. Ashcroft

September 30, 2002

GREGORY E. GOLLA, PLAINTIFF,
v.
JOHN ASCHROFT, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 7

MEMORANDUM OPINION GRANTING THE DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

This matter is before the court on the defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) or, in the alternative, for summary judgment. The pro se plaintiff, Gregory Golla, a former Border Patrol Agent, alleges same-sex sexual harassment while employed by the United States Border Patrol, a component of the Immigration and Naturalization Service ("INS" or "the defendant"), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The defendant moves to dismiss counts three through eight of the complaint for failure to state a cognizable claim. Because the plaintiff failed to respond to this argument, the court grants the motion, treating it as conceded. The court also grants the defendant's motion to dismiss counts one and two because the plaintiff failed to timely exhaust his administrative remedies. *fn1

II. BACKGROUND

The United States Border Patrol hired the pro se plaintiff in March 1998. Compl. ¶ 14. Soon thereafter, while in a training program, the plaintiff's Spanish instructor, Victor Maisonet, allegedly invited the plaintiff to his residence for drinks and commented on the plaintiff's good looks. Id. The plaintiff declined the offer. Id. As a result, Mr. Maisonet allegedly threatened the plaintiff, berated him in front of other trainees, and encouraged him to resign. Id. Additionally, the plaintiff contends that he received good evaluations before Mr. Maisonet's invitation, but he received bad evaluations after his declination. Id. ¶ 15.

Upon reporting to his duty station in July 1998, the plaintiff claims that Senior Patrol Agent Robert Guerra, who had spoken with Mr. Maisonet, subjected him to further harassment. Id. ¶ 17. Mr. Guerra, like Mr. Maisonet, allegedly threatened the plaintiff and encouraged him to resign. Id. The plaintiff insists that the harassment from Mr. Guerra grew directly out of the incident with Mr. Maisonet. Id. ¶ 18. The plaintiff subsequently resigned from the INS on October 7, 1998. Def.'s Mot. to Dismiss or for Summ. J. ("Def.'s Mot.") Ex. D.

On October 31, 1998, the plaintiff sent a letter to the Equal Employment Opportunity Commission ("EEOC") regarding his sexual harassment complaint. Pl. 's Opp'n at 1, Ex. A. The EEOC responded by letter dated November 12, 1998, stating that "a complaint of discrimination filed against a federal sector employer must be filed with the equal employment opportunity (EEO) office of the agency involved . . . within 45 days of the date of the alleged discriminatory act, personnel action . . . ." Pl.'s Opp'n Ex. A (emphasis added). The plaintiff first contacted an Equal Employment Opportunity ("EEO") counselor at the INS on December 16, 1998. Def.'s Mot. Ex. B.

The plaintiff filed his complaint with this court on July 23, 2001. On October 12, 2001, the defendant filed a motion to dismiss or, in the alternative, for summary judgment. On December 14, 2001, the court issued an order directing the plaintiff to respond to the defendant's motion. This order explained to the plaintiff some of the case law, local rules, and federal rules that set forth the consequences for failing to respond to a dispositive motion. Order dated Dec. 14, 2001. On January 3, 2002, the plaintiff filed a one-page response to the defendant's motion.

III. ANALYSIS

A. The Court Treats the Defendant's Motion to Dismiss for Failure to State a Claim as Conceded

In counts three through eight, the plaintiff alleges tort, Fifth Amendment, and contract violations pursuant to Title VII. The defendant argues, in its motion to dismiss, that the plaintiff's tort, Fifth Amendment, and contract violation claims are not cognizable under Title VII, and thus, counts three through eight fail to properly state a claim. Def.'s Mot. at 5-8; FED. R. CIV. P. 12(b)(6). *fn2 On December 14, 2001, the court issued an order directing the plaintiff to respond to the defendant's dispositive motion. This order explained to the plaintiff that, pursuant to Local Civil Rule 7.1(b), failure to respond may result in the court treating the motion as conceded. Order dated Dec. 14, 2001. When the plaintiff finally responded to the motion, he failed to address the defendant's failure to state a claim argument. Pl.'s Opp'n.

When a plaintiff responds to a motion to dismiss but fails to address certain arguments made by the defendant, the court may treat those arguments as conceded, even when the result is dismissal of the entire case. Stephenson v. Cox, --- F. Supp. 2d ---(D.D.C. Sept. 23, 2002); Sparrow v. United Air Lines, Inc., 1999 U.S. Dist. LEXIS 22054, at *17 (D.D.C. July 23, 1999), overruled on other grounds, 216 F.3d 1111 (D.C. Cir. 2000); see Fed. Deposit Ins. Corp. v. Bender, 127 F.3d 58, 68 (D.C. Cir. 1997). Pursuant to Local Civil Rule 7.1(b), the court ...


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