United States District Court for the District of Columbia
August 3, 2004.
JAMES R. ACETO, Plaintiff,
GORDON R. ENGLAND, Secretary, Department of the Navy, Defendant.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This case comes before the court on the defendant's motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), or
in the alternative, for summary judgment pursuant to Federal Rule
of Civil Procedure 56. The plaintiff alleges discrimination in
violation of Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e et seq. and the Rehabilitation Act of
1973 ("the Rehabilitation Act"), 29 U.S.C. § 701 et seq. The
defendant claims that this court lacks jurisdiction on all six
counts of the plaintiff's complaint because the plaintiff failed
to exhaust his administrative remedies. Because the plaintiff has
not met his burden of pleading and proving facts supporting
equitable tolling, and because the defendant has shown that the
plaintiff should reasonably have known of the time requirements,
the court grants defendant's motion for summary judgment. II. BACKGROUND
A. Factual Background
The plaintiff is an employee of the defendant in Washington,
D.C., and is currently stationed at the Anacostia Naval Station
as a Motor Vehicle Operator. Def.'s Statement of Material Facts
as to Which There is No Genuine Dispute ("Def.'s Statement") ¶ 1;
Compl. at 2; Answer ¶ 5. In 1998, the plaintiff suffered a
shoulder injury on the job. Def.'s Statement ¶ 10. Since this
accident he has been unable to drive a bus, and has not been
assigned to do so. Id. ¶ 11-12. Nontheless, the parties agree
that the plaintiff has performed the essential functions of his
position as Motor Vehicle Operator at all times relevant to this
action. Compl. ¶ 7; Answer ¶ 7.
On October 26, 1999, the plaintiff, while engaged in driving
duties for the defendant, was involved in a disagreement with a
U.S. Capitol Police Officer regarding whether the plaintiff could
legally park a government vehicle in a parking spot designated
for handicapped persons. Def.'s Statement ¶ 2. That same day, the
U.S. Capitol Police Officer wrote a letter to the defendant
complaining about the plaintiff's behavior. Id. ¶ 4 After the
plaintiff responded to the letter, the defendant gave him an
unsigned draft of a proposed suspension from his job. Id. ¶
5-6. The plaintiff was never actually suspended. Id. ¶ 9.
Rather, the plaintiff was only temporarily assigned non-driving
duties. Id. ¶ 7.
On or about November 8, 1999, the plaintiff suffered another
work-related injury, this time to his elbow. Id. ¶ 18 He did
not submit a worker's compensation claim until March 6, 2000.
Id. ¶ 19. Subsequently the Department of Labor requested that
the plaintiff provide additional information and resubmit a
current version of the form. Def.'s Mot. ¶ 22, 24. The plaintiff
requested and was granted an extension of time to respond. Id.
¶ 23. The plaintiff submitted the completed current version of the form on or about
September 11, 2000. Id. ¶ 25. This claim required processing
and interaction with other organizations, such as the Navy Public
Works Center and the Human Resources Department at the Naval
Surface Warfare Center. Id. ¶¶ 29-30. Finally, on February 13,
2002, the plaintiff met with a Navy doctor. Id. ¶ 33. The
defendant's employee and agent, Richard L. Waters, was present at
this meeting. Id.; Compl. ¶ 22. The plaintiff's medical file
was open during the appointment, displaying his worker's
compensation form. Def.'s Statement ¶ 34.
B. Procedural History
On May 15, 2002, the plaintiff filed a six-count complaint in
this court. Compl. ¶ 8-23. In Count I the plaintiff alleges that
after the disagreement with the U.S. Capitol Police Officer, the
defendant violated Title VII and the Rehabilitation Act by
threatening him with a proposed suspension and then suspended him
from his driving duties. Id. ¶ 9. In Count II, the plaintiff
alleges violation of Title VII and the Rehabilitation Act due to
the defendant's denial of a request for a change in his work
schedule to the morning shift. Id. ¶ 13. Next, in Count III the
plaintiff alleges that defendant discriminated against in
violation of Title VII and the Rehabilitation Act when the
defendant denied him use of his personal disability parking card
while on duty. Id. ¶ 16. In Count IV, the plaintiff complains
that the defendant violated Title VII and the Rehabilitation act
by failing to take disciplinary action against an employee who
threatened him with physical harm. Compl. ¶ 18-19. In Count V,
the plaintiff alleges violation of the Rehabilitation Act due to
the defendant's refusal to process his worker's compensation
claim in a timely manner. Id. ¶ 21. Lastly, in Count VI, the
plaintiff alleges that an agent of the defendant was granted
unauthorized access to his medical records and/or information
without his consent or approval. Id. ¶ 22-23. The defendant now moves to dismiss, or
in the alternative, for summary judgment. Def.'s Mot. at 1.
A. Legal Standard for a Motion for Summary Judgment
Summary judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995).
To determine which facts are "material," a court must look to the
substantive law on which each claim rests. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one
whose resolution could establish an element of a claim or defense
and, therefore, affect the outcome of the action. Celotex, 477
U.S. at 322; Anderson, 477 U.S. at 248.
In ruling on a motion for summary judgment, the court must draw
all justifiable inferences in the nonmoving party's favor and
accept the nonmoving party's evidence as true. Anderson, 477
U.S. at 255. A nonmoving party, however, must establish more than
"the mere existence of a scintilla of evidence" in support of its
position. Id. at 252. To prevail on a motion for summary
judgment, the moving party must show that the nonmoving party
"fail[ed] to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex, 477
U.S. at 322. By pointing to the absence of evidence proffered by
the nonmoving party, a moving party may succeed on summary judgment. Id.
In addition, the nonmoving party may not rely solely on
allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150,
154 (D.C. Cir. 1993). Rather, the nonmoving party must present
specific facts that would enable a reasonable jury to find in its
favor. Greene, 164 F.3d at 675. If the evidence "is merely
colorable, or is not significantly probative, summary judgment
may be granted." Anderson, 477 U.S. at 249-50 (internal
citations omitted). Finally, the D.C. Circuit has directed that
because it is difficult for a plaintiff to establish proof of
discrimination, the court should view summary-judgment motions in
such cases with special caution. See Aka v. Washington Hosp.
Ctr., 116 F.3d 876, 879-80 (D.C. Cir. 1997), overturned on other
grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc); see also
Johnson v. Digital Equip. Corp., 836 F. Supp. 14, 18 (D.D.C.
B. The Court Grants Defendant's Motion for Summary Judgment
1. The Plaintiff Failed to Exhaust His Administrative Remedies
"Generally, exhaustion of administrative remedies is a
prerequisite to relief under Title VII and the Rehabilitation
Act." Armstrong v. Reno, 172 F. Supp.2d 11 (D.D.C. 2001).
Under 29 C.F.R. § 1614.105(a)(1), before filing suit against a
federal employer under Title VII or the Rehabilitation Act, a
plaintiff must exhaust his administrative remedies by contacting
an Equal Employment Opportunity ("EEO") counselor within 45 days
of the matter alleged to be discriminatory or the effective date
of an alleged discriminatory personnel action.
29 C.F.R. § 1614.105(a)(1). A predominant purpose of this rule is to first
attempt to resolve the matter informally. O'Neal v. Johnson,
No. 02-0172, 2003 U.S. Dist. LEXIS 13348 at *3 (D.D.C. July 17, 2003). Because untimely exhaustion of administrative remedies
is an affirmative defense, the defendant initially bears the
burden of pleading and proving that the plaintiff failed to
exhaust administrative remedies. Bowden v. United States,
106 F.3d 433, 437 (D.C. Cir. 1997).
Local Rule 7(h) states, in pertinent part, that "the court may
assume that facts identified by the moving party in its statement
of material facts are admitted, unless such a fact is
controverted in the statement of genuine issues filed in
opposition to the motion." LCvR 7(h). Moreover, "when a plaintiff
files an opposition to a dispositive motion and addresses only
certain arguments raised by a defendant, a court may treat those
arguments that a plaintiff failed to address as conceded." Buggs
v. Powell, 293 F. Supp.2d 135, 141 (D.D.C. 2003).
In this case, it is undisputed that with regard to Counts I,
III, IV, and V, the plaintiff did not contact an EEO counselor
within the prescribed 45-day time limit. Def.'s Statement ¶¶ 8,
13, 35; Def.'s Mot. for Summ. J. ("Def.'s Mot.") at 4-5, 13, 16,
22; Pl.'s Opp'n at 11, 19, 21, 23. It is also undisputed that the
plaintiff did not contact an EEO counselor at all with regards to
Counts II and VI. Def.'s Mot. at 10, ¶ 35; Pl.'s Opp'n at 15, 27.
Therefore, the defendant has carried his burden of proof by
pleading and proving that the plaintiff did not comply with the
applicable time requirements. Bowden, 106 F.3d at 437.
2. Equitable Tolling Does Not Apply to the Plaintiff's Claim
The requirement that an individual contact an EEO counselor
within 45 days of the alleged discriminatory incident must be
extended when the plaintiff shows that "he or she was not
notified of the time limits and was not otherwise aware of
them. . . ." 29 C.F.R. § 1614.105(a)(2). Thus, the 45-day time
limit is not jurisdictional, but is rather like a statute of
limitations and therefore subject to equitable tolling, estoppel,
or waiver. Zipes Et Al. v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). The plaintiff
bears the burden of pleading and proving facts supporting
equitable tolling. Bowden, 106 F.3d at 437; Saltz v. Lehman,
672 F.2d 207, 209 (D.C. Cir. 1982).
In the instant case the plaintiff states that he was not
notified by the defendant of the 45day time limit. Pl.'s Opp'n at
11. In other words, the plaintiff claims that the time limit
should be tolled because he was subjectively unaware of the
requirement that he contact an EEO counselor within 45-days. The
defendant responds by asserting that subjective unawareness is
insufficient to establish equitable tolling. Def.'s Reply at 5.
The defendant is correct. When determining whether the time
period should be tolled, the test of whether an employee knows of
the time limit is not subjective. O'Neal, 2003 U.S. Dist. LEXIS
13348, at *4; Howard v. Henderson, 112 F. Supp.2d 1276, 1285
(M.D. Ala. 2000). Instead, the proper test is whether information
is available that is reasonably geared to inform the complainant
of the relevant time limit. O'Neal, 2003 U.S. Dist. LEXIS
13348, at *4; Howard, 112 F. Supp.2d at 1285; Teemac v.
Henderson, 298 F.3d 452, 457 (5th Cir. 2002); Jakubiak v.
Perry, 101 F.3d 23, 27 (4th Cir. 1996); German v. Pena,
88 F. Supp.2d 216, 221 (S.D.N.Y. 2000); Howell v. Dep't of the
Army, 975 F. Supp. 1293, 1300 (M.D. Ala. 1997), aff'd,
130 F.3d 445 (11th Cir. 1997). Moreover, this circuit has held that
the court should equitably toll only in "extraordinary and
carefully circumscribed" instances. Mondy v. Sec'y of the Army,
845 F.2d 1051, 1057 (D.C. Cir. 1988); Washington v. Washington
Metro. Area Transit Authority, 160 F.3d 750, 753 (D.C. Cir.
1998); Smith-Haynie v. Dist. of Columbia, 155 F.3d 575, 579-580
(D.C. Cir. 1998). In other words, these equitable doctrines
should be "applied sparingly." Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 113 (2002). Here, the court concludes that relevant information regarding
the applicable time limits was available and was reasonably
geared to inform a person of those limits. The defendant presents
evidence of posters displayed on Navy bulletin boards presenting
the EEO complaint process and timeframes. Def.'s Reply at 5;
Def.'s Reply Ex. 1. The posters outline the EEO individual
discrimination complaint process in flow-chart format. Def.'s
Reply Ex. 1. The top of the posters clearly state the correct
45-day requirement. Cf. Johnson v. Runyon, 47 F.3d 911, 919-920
(7th Cir. 1995) (concluding that a poster reflecting an
inaccurate deadline of 30-days is not reasonably geared to notify
a temporary employee of the limitations period); Schlesinger,
436 F. Supp. at 17-18 (stating that a poster containing an
inaccurate filing period of 15 days is a factor taken into
account in holding that the proper time requirement was not
disseminated in a manner reasonably geared to notify employees of
its existence). The posters accurately contain all relevant
information on their face and do not necessitate reference to
another manual to find the pertinent information. Cf. Jakubiak,
101 F.3d at 27 (stating that a reference to another outdated and
unpublished document that was never provided to the complainant
does not constitute sufficient notice); Ettinger v. Johnson,
556 F.2d 692, 698 (3d Cir. 1977) (stating that a bulletin
referencing another document with the proper procedures is not
sufficient notice of the time limits). In addition, the defendant
presented evidence indicating that the plaintiff attended an
annual training session in September 1999 where the same EEO
process and timeframes were explained. Def.'s Reply at 5-6;
Def.'s Reply Ex. 2-3.
The uncontradicted evidence indicates that the plaintiff had
access to posters containing correct information regarding the
EEO complaint process and that the plaintiff attended a training
session informing him of that process. Therefore, relevant
information reasonably geared to inform employees of the 45-day time period within which to
contact an EEO counselor was available to the plaintiff.
Accordingly, keeping in mind this Circuit's directives in Mondy,
Washington, Smith-Haynie and the Supreme Court's instruction in
Morgan, the plaintiff does not meet his burden of presenting
facts to support equitable tolling. Bowden, 106 F.3d at 437;
Saltz, 672 F.2d at 209. Accordingly, the court grants summary
judgment to the defendant. Celotex, 477 U.S. at 322;
Anderson, 477 U.S. at 248.
3. Continuing Violations
In Morgan, the Supreme Court stated that discrete
discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely-filed charges. 536
U.S. at 113. On the other hand, a hostile work environment claim
is distinct and may fall under the continuing-violation theory
because its very nature involves repeated conduct. Id. at 114.
Provided that at least one act contributing to the claim occurs
within the filing period, the entire time period of a hostile
work environment may be considered by a court for the purposes of
determining liability. Id. at 117.
Here, the plaintiff alleges a continuing violation in Count
III, and vaguely refers to it in subsequent counts. Pl.'s Opp'n
at 18, 21, 23, 27. He also refers to a hostile work environment.
Compl. ¶ 18. Yet, as the defendant points out, the plaintiff
cites no support for this claim. Def.'s Reply at 12. In any
event, the plaintiff cannot successfully allege a hostile work
environment claim because, as noted above, none of the alleged
acts were filed in a timely manner with the EEO counselor. Thus,
the plaintiff cannot rely on a continuing violation theory to
excuse his failure to comply with the relevant time limits. 4. Reasonable Suspicion of Discriminatory Act Standard
Finally, with regard to Count III, the plaintiff alleges that
he did not know nor have reason to know at the time he was
prohibited by defendant from using his personal handicapped
parking card that this was a discriminatory act. Pl.'s Opp'n at
18-19. Under 29 C.F.R. § 1614.105(a)(2), the 45-day limit must be
tolled when the aggrieved shows that he "did not know and
reasonably should not have  known that the discriminatory
matter or personnel action occurred . . ." In other words, EEO
procedures are time barred if the plaintiff knew, or should have
known, about the alleged discriminatory action 45 days prior to
his filing of his May 5, 2000 contact with the EEO. Stewart v.
Ashcroft, 352 F.3d 422, 425 (D.C. Cir. 2003). This court applies
the "reasonable suspicion" standard, as described in Paredes v.
Nagle, which starts the time limit when the plaintiff has a
reasonable suspicion that he has been the victim of
discrimination. No. 81-1374, 1982 U.S. Dist. LEXIS 10956, at
*10-11 (D.D.C. Jan. 7, 1982); Hyson v. Boorstin, No. 82-2397,
1982 U.S. Dist. LEXIS 10263, at *3 (D.D.C. Dec. 23, 1982);
McCants v. Glickman, 180 F. Supp.2d 35, 40 (D.D.C. 2001).
Here, the plaintiff asserts that as early as November 1999, he
believed that the defendant's denial of his use of the
handicapped card while driving a Navy vehicle violated the
Americans with Disabilities Act ("ADA"). Def.'s Answer at 13;
Def.'s Mot. Ex. 20 at 3. Also, the plaintiff asserted in a
memorandum to the defendant dated March 7, 2000, that disability
protection regulations allowed him to use his personal
handicapped card in a government vehicle. Def.'s Reply at 13; Ex.
21 ¶ 5. Therefore, the plaintiff's own assertions indicate that
he had at least a reasonable suspicion that he was the victim of
disability discrimination when the defendant refused his usage of
the handicapped card while on duty. Thus, for the plaintiff's claim in Count III to have been timely, the plaintiff would have
had to contact the EEO by April 21, 2000 45 days after his
March 7, 2000 memorandum to the defendant. As noted, the
plaintiff did not initiate contact with an EEO counselor until
May 5, 2000. Accordingly, the plaintiff's claim on Count III is
untimely. Stewart, 352 F.3d at 425.
For all these reasons, the court grant's the defendant's motion
for summary judgment. An order directing the parties in a manner
consistent with this Memorandum Opinion is separately and
contemporaneously issued this 3rd day of August, 2004.
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