Opinion
Civil Action No: SA-02-CA-1063-XR
November 14, 2003
ORDER
On this date, the Court considered Defendant's Motion for Summary Judgment (Docket no. 14). Plaintiff James Billingsley sues his former employer, the Department of Veterans Affairs (VA), for age discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. Defendant moves for summary judgment, contending that Plaintiff's age discrimination and retaliation claims fail as a matter of law. Defendant further argues that Plaintiff failed to exhaust administrative remedies regarding his Rehabilitation Act claim, and that his disability discrimination and constructive discharge claims also fail as a matter of law. For the reasons stated below, the Court GRANTS the Defendant's motion.
Facts and Procedural Background
The Plaintiffs date of birth is August 10, 1944. He began his employment with the VA in 1973 as an Equipment Repairman, and subsequently was designated as an industrial equipment mechanic. On or about July 13, 1988, he suffered an on-the-job injury to his left arm which caused a loss of strength and dexterity. As a result on September 11, 1990, his physician stated he was no longer able to perform mechanic duties. The Plaintiff was offered a reassignment to motor vehicle dispatcher, and accepted the reassignment on January 30, 1991. In accepting the dispatcher position, the Plaintiff stated: "However I do not feel that I can be proficient in the duties of this job since I only have a 5th grade level in spelling, reading and writing. I also feel that once management becomes aware that I cannot perform the duties I will be removed based on performance. In the event that I cannot do the job I request that I be retrained instead of removed."
On February 15, 1991, Plaintiff requested a reassignment to a trades helper position. The request was denied on February 20 because the "[dispatcher] job does not require manual labor activities typical of helper type jobs, and the risk of reinjury or aggravation of the injury is significantly reduced." Further, the Plaintiff was informed that he "will be trained to perform the duties of the dispatcher job and any assistance you need in learning your new duties will be provided."
On February 10, 1992, Plaintiff filed a Notice of Occupational Disease and Claim for Compensation claiming "work stress syndrome." His occupational injury claim was denied because his job performance appraisals indicated he was performing at a satisfactory level (fully successful).
The Plaintiff was interviewed by an Equal Employment Opportunity (EEO) counselor on July 21, 1992. In that interview he stated that he received an on-the-job injury to his left arm, and that he was offered the option of medical retirement or assuming a motor vehicle dispatcher position. The Plaintiff complained that he received a "write up" on July 17 (working while on his lunch break in violation of order) and July 22, 1992 (failure to follow instructions) and felt he was being treated differently then other co-workers. The Plaintiff also complained that he was denied promised training. He stated he was suffering from stress and was being harassed by co-workers. Plaintiff was advised on August 17, 1992, that he had 15 days to file a formal EEOC complaint.
On March 22, 1994, the Plaintiff was advised that his duty hours were being changed from 7:00 a.m. to 3:30 p.m. to 8 a.m. to 4:30 p.m. effective April 5, 1994.
On May 4, 1994, Plaintiff filed a Complaint of Employment Discrimination alleging age discrimination and disability discrimination (mental handicap).
In an attachment, Plaintiff complained that in January or February of 1994, he was asked to become an Outpatient Clinic (or shuttle van) Driver, but that he refused the position because his physician told him that he was "too nervous" to be a driver. Plaintiff also complained that he was expected to be 100% exact on all assignments he gave as a dispatcher, when other dispatchers were not held to such a standard. He further complained that drivers "went over his head" to request time off, thus not allowing him to know who was excused from work. Further, he questioned why his work hours were being changed. Finally, he complained that his educational background did not allow him to meet the requirements of a dispatcher. He stated on several occasions that the "job is over his head" and "too much for me to handle."
On December 15, 1994, the Operations Foreman issued the Plaintiff a "Letter of Counseling." The letter states it "is not intended as a disciplinary action and is intended [to] only identify and correct conduct related problems."
The letter stated that the Plaintiff incorrectly completed dispatch logs, failed to follow his supervisor's request not to schedule drivers for out-of-town trips on November 22, 1994, and brought a knife to work in violation of policy. An affidavit signed by Plaintiff on May 3, 1995, indicates that Plaintiff would bring a 303 buck knife and a pocket knife to work.
On January 6, 1995, the Plaintiff filed another Complaint of Employment Discrimination alleging that the December 15, 1994 letter was issued in reprisal for his previous EEO complaint. In an attachment, he claimed that he wanted to be reassigned to the machine shop as a mechanic.
In March of 1995, the Plaintiff elected either "disability retirement" or "early retirement" and received a lump sum and continuing monthly payments.
On June 24, 1999, an EEOC Administrative Judge issued her Recommended Decision. She found that Plaintiff produced sufficient evidence to conclude that Plaintiff was discriminated against because of his physical and mental disabilities, and that the VA failed to reasonably accommodate the Plaintiff. She also concluded that the Plaintiff failed to show that the change in work hours or co-worker harassment was based on the Plaintiffs age or disability. Further, she concluded that the December 1994 Letter of Counseling was not a retaliatory act. The Administrative Judge recommended that the Plaintiff be reinstated into a Maintenance Mechanic or other equivalent position.
On August 12, 1999, the VA issued its Final Agency Decision regarding Plaintiffs May 1994 and January 1995 complaints. The agency reversed the Administrative Judge and concluded that the Plaintiff was not discriminated against because of his age. Further, the agency concluded that Plaintiff was not discriminated against because of any mental or physical disability. Finally, the agency concluded that the Plaintiff did not suffer from any reprisal.
On August 8, 2002, the Equal Employment Opportunity Commission issued a decision regarding the Plaintiffs August 27, 1999 administrative appeal. The Commission affirmed the agency's final decision.
On November 1, 2002, Plaintiff filed his Original Complaint in this case. In that Complaint, Plaintiff alleges he was retaliated and discriminated against because of his age in violation of the ADEA. Further, he complains that he was retaliated and discriminated against because of his disability or perceived disability, and that Defendant failed to provide reasonable accommodations. Finally, he contends that he was "constructively discharged" from his employment.
Analysis
ADE A Claim and Retaliation Claims under both the ADE A and the Rehabilitation ActDefendant globally asserts that he is entitled to summary judgment with regard to Plaintiffs ADEA claim because "there is scant evidence of age-based or retaliatory animus. . . ." He thereafter informs the Court that "these alleged grounds of discrimination will not be separately addressed. Instead, this Motion for Summary Judgment will focus on Plaintiffs reasonable accommodation claim and his constructive discharge claim." Defendant's Motion for Summary Judgment at p. 4, fn.3.
The Notes of the Advisory Committee to Federal Rule of Civil Procedure 56(c) state:
Without argument, the motion [for summary judgment] shall (A) describe the claims, defenses, or issues as to which summary adjudication is warranted, specifying the judgment or determination sought; and (B) recite in separately numbered paragraphs the specific facts asserted to be not genuinely in dispute and on the basis of which the judgment or determination should be granted, citing the particular pages or paragraphs of stipulations, admissions, interrogatory answers depositions, documents affidavits, or other materials supporting those assertions.
This Court is not wed to unnecessarily strict and technical compliance with the rules of civil procedure. That said, parties cannot reasonably expect to seek a motion for summary judgment without stating, in any manner, the basis on which Plaintiffs age discrimination claim or retaliation claims should be summarily dismissed. Further, a party cannot attach 25 exhibits, including deposition excerpts and affidavits, and rely upon the Court to find what it needs to support the Defendant's unarticulated basis. Despite the deficiencies noted above, Defendant's motion will be granted for the reasons set forth below.
The Court recognizes the page limits imposed by the local rules. If a Defendant requires an extension of these page limits to fully address numerous claims raised by a Plaintiff, the Defendant should request such an extension.
Plaintiffs Rehabilitation Act Claim
Plaintiff failed to Exhaust Administrative Remedies with regard to his disability discrimination claim
Defendant moves for summary judgment on Plaintiffs Rehabilitation claim arguing that Plaintiff was interviewed by an Equal Employment Opportunity (EEO) counselor on July 21, 1992. In that interview he stated that he received an on-the-job injury to his left arm, and that he was offered the option of medical retirement or assuming a motor vehicle dispatcher position. The Plaintiff further complained that he received "write ups" on July 17 (working while on his lunch break in violation of order) and July 22, 1992 (failure to follow instructions) and felt he was being treated differently then other co-workers. Plaintiff also complained that he was denied promised training. He stated he was suffering from stress and was being harassed by co-workers. Plaintiff was advised on August 17, 1992, that he had 15 days to file a formal EEOC complaint. It is undisputed that Plaintiff did not file any formal complaint until May 4, 1994.
Defendant does not contest that Plaintiffs injury to the arm is a disability as defined in the Rehabilitation Act.
As a prerequisite to filing suit in district court, a public employee is required to timely exhaust his administrative remedies against his governmental agency employer. Fitzgerald v. Secretary, United States Department of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997). Federal regulations govern the procedures for the exhaustion of administrative remedies. See 29 C.F.R. § 1614.101 et seq.
Specifically, 29 C.F.R. § 1614.105 provides:
(a) Aggrieved persons who believe they have been discriminated against on the basis of race, color, religion, sex, national origin, age or handicap must consult a Counselor prior to filing a complaint in order to try to informally resolve the matter. (1) An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.
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(d). . . . If the matter has not been resolved, the aggrieved person shall be informed in writing by the Counselor, not later than the thirtieth day after contacting the Counselor, of the right to file a discrimination complaint. The notice shall inform the complainant of the right to file a discrimination complaint within 15 days of receipt of the notice, of the appropriate official with whom to file a complaint and of the complainant's duty to assure that the agency is informed immediately if the complainant retains counsel or a representative.
A plaintiffs failure to notify an EEO counselor of his complaint within 45 days bars the plaintiffs claims, absent a defense of waiver, estoppel, or equitable tolling. Pacheco v. Rice, 966 F.2d 904, 905 (5th Cir. 1992); Teemac v, Potter, 2001 WL 1135392 (N.D. Tex. Sep 20, 2001), aff'd, 298 F.3d 452 (5th Cir. 2002).
In Teemac, the Plaintiff was discharged from his employment with the USPS on November 27, 1996, but he did not contact an EEO counselor within 45 days of that date. In fact, Teemac did not complain that this discharge was discriminatory until March 11, 1997. Teemac presented various arguments why his delay in contacting an EEO counselor should be equitably tolled. The Fifth Circuit held that none of these reasons were sufficient to justify equitable tolling. The Fifth Circuit, rather, emphasized that equitable tolling applies only in "rare and exceptional circumstances." Teemac, 298 F.3d at 457. Although all cases found discussing this issue have addressed a plaintiffs failure to contact an EEO counselor within 45 days of the alleged discriminatory act, the Court finds that the same reasoning applies to the requirement that a plaintiff bring a formal EEO complaint within the 15 days specified in 29 C.F.R. § 1614.105(d). The Plaintiff here provides no evidence to justify the doctrine of equitable tolling. Plaintiff claims that although the August 17, 1992 advisory that he had 15 days to file a formal EEO complaint was properly addressed, he did not receive this letter. Applying Teemac, such a conclusory statement cannot justify his delay of 1 year and 9 months to file a formal complaint. Plaintiff argues that prior administrative decisions made by the EEOC in this matter found that Plaintiff had not received the August 17 notice, and that accordingly he did not fail to exhaust his administrative remedies. Plaintiff implies that these prior administrative decisions are binding on this Court. The Court disagrees. Teemac, 298 F.3d at 455 (The district court reviews the EEOC decision to refuse or grant tolling de novo. "In most cases, federal district courts review deferentially an agency s formal adjudication and review the agency's interpretations of its regulations for arbitrariness and capriciousness. The agency's fact finding need only be supported by substantial evidence. The Civil Rights Act of 1964, however, provides federal employees with the same right to a de novo trial that private employees possess. District courts cannot presume the correctness of the EEOC's factual findings.").
(1) he didn't work for the agency long enough to become familiar with employment law; (2) he is a new immigrant and doesn't know the law yet; (3) the USPS made no effort to inform him of his rights as a terminated employee; (4) he received bad advice from the attorneys he consulted; (5) his manager filed an affidavit which failed to say where in the postal facility the EEOC posters were placed; (6) he was referred to as a "Casual" and did not think he had any rights; and (7) he does not speak very good English and the instructors spoke too fast during orientation.
A copy of the letter attached to Defendant's motion for summary judgment bears the plaintiffs signature on that document.
Apparently, the document bearing the Plaintiffs signature was not included in the administrative proceedings.
Accordingly, Plaintiff's claims under the Rehabilitation Act that he was improperly assigned to the dispatcher position in January 1991, that he was not reassigned to a trades helper position in February 1991, that he was not reassigned to a nonexistent full-time parts ordering position, was not reassigned to a "work leader" position in the maintenance/machine shop, was not given adequate training and education to perform the dispatcher position, that he improperly received "write ups" on July 17 and July 22, 1992, that he was being treated differently than other co-workers, and that he was suffering from stress and was being harassed by co-workers are DISMISSED because of Plaintiffs failure to exhaust administrative remedies.
Remaining Issues
Given the above ruling, the following complaints are the sole issues remaining in this case: (1) Whether the Plaintiff can establish that he was discriminated against because of his age or disability, or because he engaged in previous protected activity, when his duty hours were changed on March 22, 1994, (2) Whether the Plaintiff can establish that he was discriminated against because of his age or disability, or because he engaged in previous protected activity, when he was given a "Letter of Counseling" on December 15, 1994, and (3) Whether the Plaintiff can establish that he was discriminated against because of his age or disability, or because he engaged in previous protected activity when he was "constructively discharged" from his employment when he retired in March of 1995. With regard to Plaintiffs claims that his duty hours were changed and he received a "Letter of Counseling", such acts are not adverse employment actions. Mattern v. Eastman Kodak Co., 104 F.3d 702 (5th Cir.), cert. denied, 522 U.S. 932 (1997).
Accordingly, the sole remaining issue in this case is whether the Plaintiff can establish that he was discriminated against because of his age or disability, or because he engaged in previous protected activity when he was "constructively discharged" from his employment when he retired in March of 1995.
Constructive Discharge Claim
"To prove constructive discharge, a plaintiff must establish that working conditions were so intolerable that a reasonable employee would feel compelled to resign." Tyler v. Union Oil of California, 304 F.3d 379, 394 (5th Cir. 2002). "Stated more simply, [the plaintiffs] resignation must have been reasonable under all the circumstances. Whether a reasonable employee would feel compelled to resign depends on the facts of each case, but we consider the following factors relevant, singly or in combination: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement on terms that would make the employee worse off whether the offer was accepted or not." Id. (citing Barrow v. New Orleans S.S. Ass'n., 10 F.3d 292, 297 (5th Cir. 1994)).
In this case, Plaintiff states that he felt compelled to resign because of the following: (1) he did not have the educational background necessary for him to properly perform in the dispatcher position; (2) he was called a "dumb ass" by at least one employee on an unspecified number of occasions; (3) a great deal of "pressure" was placed on him, but other employees received more lenient treatment; (4) he allegedly sought, but was denied transfers to other positions; (5) the dispatcher position caused him to become a much more aggressive person; and (6) an unspecified doctor informed him to cease working in the dispatcher position.
It is unclear from the briefs when Plaintiff sought any of these alleged vacant positions.
No medical record to this effect was included in any of the summary judgment evidence submitted by either party.
In Tyler, the only evidence the plaintiff presented that his job was intolerable was his testimony as to his subjective belief that he was set up to fail in this job which would require him to get new training. The Fifth Circuit concluded that does not meet the objective "reasonable employee" standard articulated in Barrow. The Fifth Circuit has also concluded in Hunt v. Rapides Healthcare System, L.L.C., 111 F.3d 757 (5th Cir. 2001) that "constructive discharge cannot be based upon the employee's subjective preference for one position over another." Id. at 772. Indeed, the Fifth Circuit has concluded that "discrimination alone, without aggravating factors, is insufficient for a claim of constructive discharge, as is a discriminatory failure to promote." Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001).
In this case Plaintiff testified that he felt he was "forced to take early retirement" because he believed that his employer did not like him going to the EEO. He also testified that a non-manager employee, who allegedly was a close friend of his supervisor, told him that if he did not take the buyout he would be fired. Defendant provided the affidavit of Operations Foreman, William L. Fenstermacher. In his affidavit the foreman states that shortly after Plaintiffs occupational injury, Plaintiff applied for disability retirement benefits. He further states that Plaintiff was provided various calculations as to the amount of retirement monies he would receive. He further testifies that "one day he came in and said that he had made up his mind, he was going to take it." He also states "that was strictly his decision to go. He was looking forward to the early outs offer. He just wanted out. He didn't have to take it. He didn't have to apply for it. Nobody told him to do it, you know. That was something he did, you know."
Applying the Barrow factors, Plaintiff fails to establish that a reasonable person would have felt compelled to resign. There are no allegations that he suffered a demotion, loss of hours or pay, a reassignment to a less desirable position, or was offered early retirement on terms that would make him worse off whether the offer was accepted or not. Plaintiffs only reference to one of the Barrow factors — harassment by a co-worker — falls short of establishing "badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation."
Conclusion
The Court concludes that, for the reasons stated above, Principi's motion for summary judgment (Docket no. 14) is GRANTED.