Summary
In Nygren, the plaintiff reported alleged sexual harassment to her supervisor and met with an EEO counselor five days later to discuss the alleged harassment. 2003 WL 21356083 at *1.
Summary of this case from Jenkins v. WinterOpinion
Civ. No. 02-2910 (JNE/RLE)
May 30, 2003
Diane M. Odeen, Esq., Nichols Kaster Anderson, PLLP, appeared for Plaintiff Lisa A. Renshaw Nygren.
Lonnie F. Bryan, Esq., Assistant United States Attorney, Office of the United States Attorney for the District of Minnesota, appeared for Defendant John Ashcroft, United States Attorney General.
ORDER
This is a sexual-harassment case brought by an employee of the Federal Bureau of Prisons (BOP), Lisa Renshaw Nygren, against United States Attorney General John Ashcroft, in his capacity as head of the United States Department of Justice, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 (2000) (Title VII). The case is before the Court on Ashcroft's motion for summary judgment. At issue is whether Nygren exhausted administrative remedies available to federal employees before bringing her Title VII claim. The Court concludes that she did not, and it therefore grants Ashcroft's motion.
Nygren's Amended Complaint also pleads a claim under the Minnesota Human Rights Act, Minn. Stat. ch. 363 (2002) (MHRA), and seeks punitive damages. With the consent of the parties, the Court dismisses the MHRA claim and the allegations related to punitive damages.
I. BACKGROUND
Nygren began working for the BOP as a correctional officer at the Federal Correction Institute in Sandstone, Minnesota (FCI-Sandstone), in June 1999. Nygren alleges that, from November 1999, through June 26, 2000, she was subjected to sexual harassment by a coworker. On July 8, 2000, Nygren reported the alleged harassment to her supervisor, Lieutenant Polly King. Five days later, Nygren met with an Equal Employment Opportunity (EEO) counselor to discuss the alleged harassment. The BOP conducted an investigation into the allegations and ultimately concluded that they were unsubstantiated. Nygren learned of the results of the investigation in December 2000, and she met with the EEO counselor for a second time on March 6, 2001.
II. DISCUSSION
Ashcroft's motion is styled a "Motion to Dismiss." However, because both parties have presented matters outside the pleadings, the Court will treat Ashcroft's motion as a motion for summary judgment. See Fed.R.Civ.P. 12(b). Summary judgment is proper "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party "bears the initial responsibility of informing the district court of the basis for its motion," and must identify "those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, Rule 56(e) requires the nonmoving party to respond by submitting evidentiary materials that designate "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In determining whether summary judgment is appropriate, a court must look at the record and any inferences to be drawn from it in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Nygren moves the Court for a continuance pursuant to Fed.R.Civ.P. 56(f) to allow her to conduct further discovery. "When seeking a continuance, . . . the party opposing summary judgment is required to file an affidavit with the district court showing what specific facts further discovery might uncover." Roark v. City of Hazen, Ark., 189 F.3d 758, 762 (8th Cir. 1999). Nygren submitted an affidavit stating that discovery is needed on the issue of the "timeliness of [Nygren's] claims." The affidavit does not show what specific facts might be unveiled by further discovery. For this reason, and because the record is sufficiently developed on the issues raised by Ashcroft's motion, the Court denies Nygren's motion.
A. Exhaustion of Administrative Remedies
A federal employee must exhaust administrative remedies before bringing a Title VII claim in federal court. Burkett v. Glickman, 327 F.3d 658, 660 (8th Cir. 2003); Bailey v. United States Postal Serv., 208 F.3d 652, 654 (8th Cir. 2000). The first step in the administrative process is to "consult a Counselor . . . in order to try to informally resolve the matter." 29 C.F.R. § 1614.105(a) (2002). The employee "must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory." Id. § 1614.105(a)(1). Relying primarily on the Eighth Circuit's decision in Bailey, Ashcroft argues that Nygren's Title VII claim is barred because she failed to meet this deadline.
In Bailey, the Title VII plaintiff talked to EEO counselors within 45 days of the alleged discrimination, "informing them about the incident and seeking advice on how she might proceed," but she did not submit a request for EEO counseling until approximately five months after the alleged discrimination. Bailey, 208 F.3d at 654. The Eighth Circuit affirmed summary judgment for the defendant employer, holding that the plaintiff had failed to initiate contact with an EEO counselor within the 45-day time limit. Id. The court reasoned:
Although [the plaintiff] did speak with . . . EEO counselors within 45 days[,] . . . these counselors informed [the plaintiff] that her conversations with them would not be considered requests for counseling and that such requests needed to be submitted in writing within 45 days of the alleged discriminatory incident. [The plaintiff] did not specifically argue before the district court that her early conversations with the EEO counselors constituted requests for counseling under section 1614.105(a), and she has offered no evidence to support her position that [the counselors] led her to believe that she had taken all the steps necessary to preserve her right to bring a claim in federal court. Indeed, . . . one of the counselors she spoke with stated that [the plaintiff] explicitly disavowed any intent to request EEO counseling at that time. [The plaintiff] has therefore waived the argument that her initial communications with the . . . EEO counselors complied with section 1614.105(a).
Bailey, 208 F.3d at 655.
In this case, Nygren's first meeting with an EEO counselor occurred on July 13, 2000, less than 45 days after the alleged sexual harassment had ended. It is undisputed that Nygren did not request EEO counseling, either in writing or orally, at that time. Thus, under Bailey, the July 13 meeting does not satisfy section 1614.105(a)(1). Nygren next met with the EEO counselor on March 6, 2001. Because the March 6 meeting took place more than 45 days after the alleged sexual harassment had ended, and more than 45 days after she had learned of the results of the BOP's investigation, it also does not satisfy section 1614.105(a)(1).
B. Equitable Estoppel and Equitable Tolling
Nygren urges the Court to apply the doctrine of equitable estoppel or equitable tolling to save her Title VII claim. See 29 C.F.R. § 1614.601(c) (2002) ("The time limits in [section 1614.105(a)] are subject to . . . estoppel and equitable tolling."). The Court will first consider the doctrine of equitable estoppel. Equitable estoppel comes into play when a plaintiff's failure to initiate contact with an EEO counselor in a timely fashion is the consequence of either a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the plaintiff to delay initiating contact. See Bailey, 208 F.3d at 655; Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1329 (8th Cir. 1995). It applies if the plaintiff was aware of the facts underlying her Title VII claim, but was "lulled or tricked" into letting the 45-day time limit pass because of some employer misconduct. See Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 835 (8th Cir. 2002); Dring, 58 F.3d at 1329.
When Nygren met with the EEO counselor on July 13, 2000, she told him she would be interested in starting the administrative process if the BOP's investigation "did not resolve the issue." In an interview with the BOP's special investigative supervisor on August 10, 2000, Nygren stated that she had an understanding with the alleged harasser that "if this becomes a problem again, [she would] take further action." Neither the EEO counselor nor the special investigative supervisor told Nygren about the 45-day time limit for starting the administrative process. According to Nygren, the BOP should unmistakably have understood that their silence on this issue would cause Nygren to delay starting the administrative process.
The Court disagrees. The record indicates that the BOP took several steps to notify Nygren of the 45-day time limit for starting the administrative process. The BOP's program statement on sexual harassment states that if an employee "choose[s] to use the EEO Complaint process, they must do so within 45 days of the action(s) of which they are complaining." Nygren received a copy of the program statement when she started working at FCI-Sandstone in June 1999. She received another copy of the program statement on July 8, 2000, five days before she first met with the EEO counselor, when she reported the alleged harassment to her supervisor. In addition, Nygren attended a two-week Institution Familiarization training program in June 1999. The training program included instruction on FCI-Sandstone's sexual-harassment program and the deadline for initiating EEO counseling, and it identified FCI-Sandstone's EEO counselors. Finally, FCI-Sandstone placed a poster near the corrections supervisor's office entitled, "STEP BY STEP OVERVIEW OF THE EEO COMPLAINTS PROCESS UNDER 29 C.F.R. PART 1614." The first step listed below the heading is as follows: "Contact an EEO Counselor within 45 days from the date that the alleged discriminatory incident occurred or when you became aware of the incident." The names of FCI-Sandstone's EEO counselors were displayed next to the poster. In light of these measures, the Court concludes that the BOP neither lulled nor tricked Nygren into letting the 45-day time limit pass.
On the issue of equitable tolling, Nygren argues that the 45-day time limit should be tolled because she was not aware of it. The doctrine of equitable tolling applies only when the plaintiff, despite all due diligence, is unable to obtain vital information bearing on the existence of her claim. Dorsey, 278 F.3d at 836; Dring, 58 F.3d at 1328. The inquiry is whether a reasonable person in the plaintiff's position would have been aware of the information. Dorsey, 278 F.3d at 836; Dring, 58 F.3d at 1329. As previously discussed, the BOP provided Nygren with notice of the 45-day time limit in a variety of ways. Thus, Nygren cannot establish that a reasonable person in her position would not have been aware of the deadline. Furthermore, Nygren cannot establish that, despite all due diligence, she was unable to obtain information regarding the deadline. Indeed, she possessed the information as early as June 1999, when she was first given a copy of the BOP's program statement on sexual harassment.
III. CONCLUSION
In sum, Nygren did not initiate contact with an EEO counselor within 45 days of the alleged discrimination, as required by 29 C.F.R. § 1614.105(a)(1), and the doctrines of equitable estoppel and equitable tolling do not apply. The Court therefore concludes that Nygren's Title VII claim is barred by her failure to exhaust administrative remedies. Accordingly, IT IS ORDERED THAT:
1. Defendant Ashcroft's motion for summary judgment [Docket No. 16] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.