Opinion
Civil No. 02-4712 ADM/AJB
November 20, 2003
Cynthia L. Davis, pro se for Plaintiff
Patricia R. Cangemi, Esq., for Defendant
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Defendant Anthony J. Principle's ("Defendant") Motion to Dismiss or Alternatively for Summary Judgment [Docket No. 10] was heard before the undersigned United States District Judge on November 12, 2003. Plaintiff Cynthia L. Davis ("Plaintiff') brings claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213, and the Rehabilitation Act, 29 U.S.C. § 701-796. Defendant now moves to dismiss Plaintiffs claims or alternatively for summary judgment. Plaintiff did not respond in any way to Defendant's Motion, or attend oral argument. For the reasons explained below, Defendant's Motion is granted.
II. BACKGROUND
Plaintiff worked as a licensed practical nurse at the Minneapolis Department of Veterans Affairs Medical Center ("VAMC") from April 27, 1997 until May 10, 2002. Lund Aff. ¶ 2. On August 22, 2000. Plaintiff suffered from a grand mal seizure that she attributes to using certain computers at VAMC. Id. ¶ 3; see also Falkner Aff. ¶ 2. Plaintiff was placed on medical leave after this incident but returned to work on February 8, 2001, after passing a fitness for duty examination. Upon her return, Plaintiff did not use the computers. Falkner Aff. ¶ 3. Claiming that she suffered from problems related to her epilepsy medication, Plaintiff requested and was granted sick leave on May 8, 2001. On June 4, 2001. Plaintiff told VAMC staff that she would miss work for three to four weeks because she required medical care. On June 21, 2001, Plaintiffs physician provided a note advising Plaintiff not to return to work for four weeks because it was unsafe for her to work with patients. Id. ¶ 4. Plaintiff did not communicate with VAMC again until December 4, 2001, when she gave VAMC a second note from her doctor explaining that she suffered from break-through seizures and could not work for another two to three weeks. Id. ¶ 5.
On January 9, 2002, the VAMC's Nurse Executive recommended that Plaintiffs employment be terminated, alleging that she had not followed leave procedures and had been absent without leave ("AWOL"). Lund Aff. 14. Plaintiff then requested leave without pay, but VAMC's Director upheld her removal on April 22, 2002. Plaintiffs termination was effective on May 10, 2002. Falkner Aff. ¶ 6.
Plaintiff contested the events surrounding her requests for leave and her termination in two ways. First, Plaintiff pursued the Veterans Affairs ("VA's") Equal Employment Opportunity ("EEO") process and attended an initial interview concerning her rights on September 22, 2000. An EEO counselor gave Plaintiff a document explaining that she could contest her removal either through the EEO process or a grievance procedure, but not both. Hartness Aff. Ex. 1. Plaintiff filed a complaint of discrimination with the Department of Veterans Affairs on October 28, 2000. Id. Ex. 2. Meanwhile, Plaintiffs union had filed a grievance on her behalf on October 2, 2000. Falkner Aff. Ex. 1. Plaintiff, who is now pro se, was represented by counsel at this time. Hartness Aff. ¶ 3, Ex. 2. The VA dismissed Plaintiffs complaint on December 28, 2000 because Plaintiff had also initiated grievance proceedings. Id. ¶ 3, Ex. 5 ¶ 6. Plaintiffs union then withdrew her grievance. Falkner Aff. ¶ 7.
On November 9, 2001, Plaintiff began EEO proceedings for a second time and attended an interview on November 20, 2001. Hartness Aff. ¶ 4. She received notice that she had fifteen days to file a complaint on December 10, 2001, but apparently did not actually file until February 8, 2002. Id. ¶¶ 4-5, Ex. 3. The VA dismissed her complaint as time-barred, as did the Equal Employment Opportunity Commission ("EEOC") when she appealed the dismissal. Id. ¶¶ 5-6, Ex. 5. On November 27, 2002, Plaintiff filed a complaint initiating the present action [Docket No. 1].
III. DISCUSSION
Defendant now moves for dismissal, or alternatively, for summary judgment. Plaintiff was noticed, but has not responded in any fashion to the Motion. Because Defendant relies on material outside of the pleadings, the Court treats this motion as one for summary judgment. See Fed.R.Civ.P. 12(b). Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "if 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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec. Indus. Co., Ltd, v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 252 (1986); Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Andersoa 54 F.3d 465, 470 (8th Cir. 1995). The nonmoving party may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. County of Le Sueur. 47 F.3d 953, 957 (8th Cir. 1995).
Defendant first moves for summary judgment concerning Plaintiffs ADA claims, arguing that the ADA does not apply to the federal employment. The Minneapolis VAMC is operated by the Department of Veterans Affairs, which is part of the federal government. See 38 U.S.C. § 301. The ADA excludes the federal government from its definition of employer, stating that "[t]he term employer does not include the United States [or] a corporation wholly owned by the government of the United States. . . ." 42 U.S.C. § 12111(5)(B)(i); Hendrickson v. Potter. 327 F.3d 444, 447 (5th Cir. 2003). Because VAMC is part of the federal government, it is exempt from coverage under the ADA. Therefore, Defendant's Motion for Summary Judgment concerning Plaintiffs ADA claims is granted
Defendant also contends that summary judgment is warranted for Plaintiffs Rehabilitation Act claims. The Rehabilitation Act prohibits the federal government from discriminating against the disabled or from failing to reasonably accommodate disabled employees. 29 U.S.C. § 791, 794; 22 C.F.R. § 144.140. To pursue a Rehabilitation Act claim against the government, an employee must exhaust administrative procedures. See Morgan v. United States Postal Serv., 798 F.2d 1162, 1164-65 (8th Cir. 1986); 29 C.F.R. § 1614.101-1614.110. An aggrieved employee first meets with an EEO counselor. 29 C.F.R. § 1614.105. If the matter cannot be resolved during this informal process, the employee will receive notice of the right to file a complaint. The employee has fifteen days to file a complaint with the offending agency after receiving notice. 29 C.F.R. § 1614.106(b). EEOC regulations require agencies to dismiss claims and complaints filed after applicable deadlines. See 29 C.F.R. § 1614.107.
Plaintiffs failure to comply with the EEOC deadlines means that she did not exhaust the administrative process and that she consequently cannot bring her Rehabilitation Act claims in federal district court. 29 C.F.R. § 1614.106(b), 1614.101(a)(2): see Bailey v. United States Postal Serv., 208 F.3d 652, 654-55 (8th Cir. 2000) (holding that plaintiff could not bring Title VII claim because she had missed a filing deadline and therefore had not exhausted administrative remedies); Leorna v. United States Dept. of State. 105 F.3d 548, 550-51 (9th Cir. 1997) (holding that employees must exhaust administrative remedies before filing Rehabilitation Act actions against the government and that plaintiff had not because she failed to follow filing periods); see also Morgan. 798 F.2d at 1164-65. Plaintiff attended a second EEO interview on November 9, 2001 and received a right to file letter on December 10, 2001. However, Plaintiff did not file a formal complaint until February 8, 2002, well after the fifteen day deadline. While Plaintiff claims that she filed a formal complaint on December 10, 2001, there is no written proof that Plaintiff actually filed on this date. Plaintiff received materials explaining she had fifteen days to file a formal complaint, and thus had notice of the deadline. Hartness Aff. ¶¶ 4-5, Ex. 3. Further, Plaintiff has not submitted materials to the Court explaining the delay, which could allow tolling of the deadline for equitable reasons. See Irwin v. Dep't. of Veterans Affairs. 498 U.S. 89, 95 (1990). Defendant's Motion for Summary Judgment concerning Plaintiffs Rehabilitation Act claims is granted.
Because Plaintiffs failure to comply with EEOC deadlines requires dismissal of her Rehabilitation Act claims, the Court need not address Defendant's election of remedies argument.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:1. Defendant's Motion for Summary Judgment [Docket No. 10] is GRANTED and
2. Plaintiffs Complaint [Docket No. 1] is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.