Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00074-MSK-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00074-MSK-CBS JIMMY L. STROZIER, Plaintiff, v. JOHN E. POTTER, Postmaster General, U.S. Postal Service, Defendant.

REPLY IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b) (1) (Docket 78) ________________________________________________________________________ Defendant, by and through William J. Leone, United States Attorney for the District of Colorado, and Elizabeth Weishaupl, Assistant United States Attorney, hereby files the following Motion to Dismiss the Plaintiff's claims for hostile environment, and requests that the Court vacate the trial and set a briefing schedule on the termination for just cause claim, if such claim exists. In support thereof Defendant states as follows:

II. ARGUMENT Defendant argued in the Motion to Dismiss that Mr. Strozier was estopped from raising his hostile environment claim because he admitted he abandoned this claim in Civil Action 02-N-379; and also failed to exhaust these claims in the instant case by failing to present evidence regarding them at the MSPB hearing. Further, as all claims

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asserting that the Defendant was motivated by discriminatory conduct have been dismissed, Mr. Strozier's inability to establish that his hostile environment claim was motivated by any sort of discriminatory conduct is fatal to this claim. See Stahl v. Sun Microsystems, Inc., 19 F.3d 533, 538 (10th Cir 1994). In addition, Defendant argued in the Motion to Dismiss that to the extent that a "pure" termination without just cause claim exists in this lawsuit, the Court only has jurisdiction to proceed under the Administrative Procedures Act ("APA") regarding this claim. See 5 U.S.C. § 701 et seq. As a result, Defendant argued that, although such a review is futile based on the record before the Court at this time, if the Court wishes to review this issue it must be done pursuant to the APA and Mr. Strozier has no right to a trial either to a jury or to the Court. Mr. Strozier asserts in his Response that: (1) the doctrine of collateral estoppel does not bar his claim because his prior case was dismissed without prejudice; (2) he did exhaust his hostile environment claim by raising it in the MSPB claim form attached to his Response; and finally (3) the APA does not bar judicial review of his termination without just cause claim 1 . These arguments have no merit.

Mr. Strozier also implies that the Motion was not filed in a timely manner. However, it was filed within the time limits permitted by Fed. R. Civ. P. 6(a) ("when the time prescribed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation."). 2

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HOSTILE ENVIRONMENT 1. Collateral Estoppel a. Mr. Strozier did not exhaust his hostile environment claim in Civil Action 02-N-0379 and is precluded from asserting this argument by the doctrine of collateral estoppel

Mr. Strozier asserts that the doctrine of collateral estoppel does not bar his claim. However, in his Response he admits that: "Plaintiff's hostile work environment claim was inserted in a prior Civil Action No. 02-N-0379." (Response at 4). He does not dispute that he admitted in that case that he did not exhaust his administrative remedies regarding this claim. However, he argues that as Civil Action 02-N-0379 was dismissed without prejudice that it can not act as a bar to preclude him from bringing this claim In this assertion he misunderstands the Defendant's argument. With regard to the collateral estoppel issue, the issue is that is estopped is not whether or not Mr. Strozier could assert a hostile environment claim if he later exhausted such a claim. Rather, the issue is that it is undisputed pursuant to the court order dismissing Civil Action 02-N-0379 that Mr. Strozier did not exhaust his hostile environment claim in Civil Action 02-N-0379. Thus, nothing contained in Civil Action 02-N-0379, not the final judgment, not the order of the Court of Appeals, support an argument that Mr. Strozier administratively exhausted a hostile environment claim. .

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b.

Mr. Strozier did not exhaust his claim for hostile environment in either the 01/23/03 MSPB appeal form or the 05/25/03 MSPB appeal form.

Mr. Strozier next argues that his appeal forms in the 01/23/03 and 05/025/03 MSBP cases conclusively establish that he has administratively exhausted a hostile environment claim. Defendant argued that Mr. Strozier abandoned his hostile environment claim by failing to present evidence or argument regarding this claim before the MSPB. Mr. Strozier argues in his Response that "the evidence presented in plaintiff's exhibits B and C will show that he fully exhausted his administrative remedies to this claim before the MSB. (sic)" Exhibit B consists of his January 23, 2003 MSPB appeal and multiple pages of documents which he attached to the appeal form, and Exhibit C consists of is his May 23, 2003, MSPB appeal and multiple attachments. In Exhibit B in describing how he was allegedly discriminated against, Mr. Strozier says he was "[d]iscriminated against because of race, sex, disability and for exercising my constitutional and Civil Rights." (Plaintiff's Exhibit B, p. 4). Mr. Strozier attached fourteen pages of documents, memos and letters to the pre-printed MSBP appeal form. The first two pages, dated January 23, 2003, contain a laundry list of grievances. In the second paragraph Mr. Strozier does assert that "the managers at the Colorado Springs Co. General Mail facility has created a hostile environment for me to work in, has third degree assaulted him, harassed me, conspired to injure me and discriminated against me on the basis of race, sex, and disability." There is no other mention of hostile

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environment in this appeal form or in Exhibit C. However, a passing mention of the words "hostile environment" on one page of an attachment to a MSPB appeal form does not establish administrative exhaustion. In his Response, Mr. Strozier does not deny that he failed to present any evidence or argument regarding an alleged hostile environment claim at the MSPB hearing. Such exhaustion is a jurisdictional prerequisite to suit alleging federal employment discrimination. Williams v. Rice, 983 F.2d 177, 180 (10th Cir. 1993) (citing Johnson v. Orr, 747 F.2d 1352, 1356 (10th Cir. 1984)). As a failure to exhaust administrative remedies is a "bar to subject matter jurisdiction the burden is on the plaintiff as the party seeking federal jurisdiction to show, by competent evidence, that [he or she] did exhaust." McBride v. CITGO Petroleum Corporation, 281 F.3d 1099, 1106 (10th Cir. 2002) (citing United States v. Hillcrest Health Ctr., Inc., 264 F.3d 1271, 1278 (10th Cir. 2002)). Except for Strozier's allegation that Exhibits B and C "prove" that he exhausted the hostile environment claim, the Response contains no other allegation that Mr. Strozier did not abandon this claim before the MSPB. If an employee abandons a claim before the MSPB, the employee has not exhausted his or her administrative remedies in regard to that claim and is foreclosed from asserting that claim in a civil action in federal court. Williams, 983 F.2d at 180 ("by failing to raise the race discrimination claim before the ALJ, the Plaintiff was precluded from raising it on his petition for review or at the district court level" ). As a result, he has failed to meet his burden and this Court lacks jurisdiction to hear such a claim.

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TERMINATION WITHOUT JUST CAUSE. Mr. Strozier's Response indicates that he agrees with the Defendant that his termination without just cause claim is governed by the APA. (See Response at p. 8 - 9). He admits that judicial review of this claim is "subject to judicial review for arbitraries (sic) and abuse of discretion." (Response at 9). However, what Plaintiff fails to address is that he has no entitlement to a trial by jury nor to a trial to the court on this claim. In a case seeking review under the APA, the district court acts as an appellate court, and review of agency action, such as the MSPB review, must be processed as an appeal. See Olenhouse v. Commodity Credit Corporation, 42 F.3d 1560, 1580 (10th Cir. 1994). Where a petition for review of a MSPB decision involves both discrimination and other claims it is considered a "mixed case." Williams v. Rice, 983 F.2d 177, 179 (10th Cir. 1993). "On the discrimination claim the petitioner `shall have the right to trial de novo by the reviewing court.'" Id. (citing 5 U.S.C. § 7703). The other nondiscriminatory claims "are reviewed on the administrative record." Id. (citing Hayes v. United States, 684 F.2d 137, 141 (D.C. Cir. 1982)). In such a "mixed case" involving an administrative issue, the administrative decision of the MSPB is reviewed under the deferential APA standards. See Williams, 983 F.2d at 179 - 180. In the present case, Mr. Strozier initially had a "mixed case." He asserted that he was discriminated against based on his sex, race, age, and disability, but he also appended a termination without just cause claim to these claims of discriminatory conduct. See.

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Complaint However, as of today's date, the Title VII claims of sex, race, age, and disability have been dismissed by this Court. The sole remaining claim is that of termination without just cause. This is a pure challenge to an administrative decision of the MSPB and must be reviewed under the APA. Mr. Strozier has provided this Court with no authority supporting his claim that he has a right to trial by jury or trial to the Court on a claim governed solely by the APA. In deciding an APA case, the court is necessarily limited to the administrative record before the agency decision maker. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985). A MSPB decision must be upheld unless the reviewing court determines that it is: (1) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence

Williams, 983 F.2d at 180 (citing 5 U.S.C. § 7703). The reviewing court may "not substitute its judgment for that of the MSPB." Williams, 983 F.2d at 180 (citing Wilder v. Prokop, 846 F.2d 613, 619 (10th Cir 1988)). Further, "under the arbitrary and capricious standard the MSPB's decision needs only to have a rational basis in law." Williams, 983 F.2d at 180.

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Defendant argued in its motion that such a review would be futile as there was ample evidence in the transcript of the MSPB hearing, which is before the Court, and the ALJ's decision itself, that the administrative decision was neither arbitrary nor capricious and was rationally based in law. The Adminsitrative Law Judge went into great detail as to the basis for his decision that the termination was with just cause. His decision is amply supported in the record. Mr. Strozier does not dispute this argument in his Response. However, to the extent that Court desires further briefing on this issue, it should vacate the trial date, order the filing of an administrative record, and permit briefing as contemplated by Olenhouse, and transfer the matter the AP docket. III. CONCLUSION For the foregoing reasons, Defendant respectfully requests this Court enter judgment in its favor and against the Plaintiff on the hostile work environment claim, and enter judgment in its favor on the termination without just cause claim or in the alternative, vacate the trial date and issue an order setting a time to submit a record and for briefing pursuant to the procedures described in Olenhouse. DATED this 18th day of November, 2005.

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Respectfully submitted, WILLIAM LEONE Acting United States Attorney s/ Elizabeth A. Weishaupl ELIZABETH A. WEISHAUPL Assistant United States Attorney 1225 Seventh Street, Suite 700 17 th Street Plaza Denver, CO 80202 (303) 454-0100 (303) 454 -0404 [email protected] Attorney for Defendant

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: None _____________________________________, and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name:

Jimmy L. Strozier (mail) 1467 Illinois Street Leeds, Alabama 35094

s/ Elizabeth A. Weishaupl Elizabeth A. Weishaupl Attorney for Defendant United States Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected]

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