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Dondi Bates Fortune v. Eric H. Holder

March 2, 2011

DONDI BATES FORTUNE PLAINTIFF,
v.
ERIC H. HOLDER, JR., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Beryl A. Howell United States District Judge

MEMORANDUM OPINION

This matter is before the Court on the Defendants' motion to dismiss or, in the alternative, for summary judgment.*fn1 For the reasons discussed below, the motion will be granted.

I. BACKGROUND

The Plaintiff, a former employee of the Federal Bureau of Investigation ("FBI"), brings this employment discrimination action under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, see 42 U.S.C. § 2000e et seq., and the Rehabilitation Act, see 29 U.S.C. § 791 et seq. Compl. ¶¶ 1-2. *fn2 He alleges that the FBI discriminated against him based on his physical disability, culminating in his termination on October 26, 2008. See generally id. ¶¶ 2-5.

According to the Plaintiff, he "developed disabilities directly related to being diagnosed with obstructive sleep apnea, narcolepsy and lower extremity lymphedema," which in turn led to "additional ailments . . . diagnosed as congestive heart failure, hypertension, sciatica and obsesity." Id. ¶ 3. "These ailments and remedies directly contributed to the Plaintiff falling asleep while on duty." Id. Further, these ailments "led to a physical change in form and appearance." Id. ¶ 4. For example, the Plaintiff wore compression garments because of the swelling of his lower extremities, and application of these garments "consumed several hours . . . [leading] to the Plaintiff using unscheduled leave and appearing late for work." Id. These garments "also affected the type of clothing" the Plaintiff could wear, such that he wore "only casual attire" notwithstanding the dress code of the "professional atmosphere" in which he worked. Id. Frequent medical appointments caused him to deplete annual and sick leave. Id.

The FBI allegedly began to discriminate against the Plaintiff in June 2004 "in the form of leave reprimands, withholding productive assignments, withholding incentive awards, denial of training, [and] suspension of clearance." Compl. ¶ 2. The Plaintiff "was eventually placed on administrative review" because he "was insubordinate and failed to perform prescribed duties." Id. ¶ 5. His career with the FBI ended upon his termination on October 26, 2008. Id. ¶ 2.

On November 2, 2009, the Plaintiff contacted an EEO Counselor. Mem. of P. & A. in Supp. of Mot. to Dismiss, or in the Alternative, for Summ. J. ("Def.'s Mem."), Ex. 4 at 10.*fn3 He sought counseling because of discrimination "based on physical disabilities (Sleep Apnea -- Day time Somnolence and Primary Lymphodema [sic] and his race (Black) when he was issued a letter of dismissal from the rolls of the FBI Philadelphia Field Office" on October 26, 2008. Id.; see id. at 13. He sought reinstatement, transfer to the FBI's Washington Field Office, and reinstatement of his security clearance. Id. at 12.

Initially the Plaintiff "was not aware that he . . . had an . . . [EEO] Complaint." Def.'s Mem., Ex. 4 at 13. During a "phone conversation with a close friend at the Philadelphia Division in September 2009," the Plaintiff learned that "there were several other employees affected by medical issues that led to them being tardy, fall[ing] asleep while on duty and [being] excluded from collateral office duties." Id. at 5. He further "learned that these employees were allowed to ultimately retire while [he] was terminated." Id. These were facts "discover[ed] . . . subsequent to [his] being suspended," and he felt that he "was unjustly treated because of not only [his medical] conditions, but [also] because [he] was not related to someone in favor at the office." Id.

The complaint was not resolved informally, and the "Notice of Right to File was issued on November 16, 2009." Def.'s Mem., Ex. 2 (Letter to plaintiff from Vontell D. Frost-Tucker, Director, Equal Employment Opportunity Staff, Justice Management Division, U.S. Department of Justice, dated February 22, 2010) at 1; see id., Ex. 4 at 16. On December 1, 2009, the Plaintiff "filed a formal Equal Employment Opportunity (EEO) complaint of discrimination against the [FBI]." Compl. ¶ 1. He alleged that the FBI discriminated against him on the basis of his physical disability when, on October 26, 2008, [he was] dismissed from [his] employment with the FBI's Philadelphia Field Office." Def.'s Mem., Ex. 4 at 3. The FBI acknowledged in writing its receipt of the Plaintiff's formal discrimination complaint. Id. at 18.

On January 14, 2010, an EEO Specialist contacted the Plaintiff by e-mail "to request clarification with regard to [his EEO] complaint." Def.'s Mem., Ex. 4 at 24. Based on the date of the Plaintiff's termination, the EEO Specialist stated that he was "required to make contact with an EEO Counselor on or before December 10, 2008," or within 45 days of the effective date of the personnel action, yet he "first initiated EEO contact on November 2, 2009, approximately 11 months after the . . . deadline . . . for doing so." Id. She asked the Plaintiff to respond to two questions:

1.) Were you aware [of] the 45-day time limit requirement to contact an EEO Counselor if you felt that you [had] been discriminated against based on race, color, religion, sex, national origin, age or disability?

2.) If yes, why did you not initiate contact with an EEO Counselor within the required time limit? Please provide an explanation.

Id. The Plaintiff responded via e-mail as follows:

Yes I was aware that there is a 45-day time limit requirement to contact an EEO Counselor for ...


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