Free Brief in Support of Motion - District Court of Colorado - Colorado

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

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Filed 08/16/2005

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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) ______________________________________________________________________________ I. ARGUMENT Defendant asserted in his Motion to Dismiss that Plaintiff's claims based on race, sex and age are barred by Plaintiff's failure to exhaust his administrative remedies. Defendant demonstrated that Plaintiff (1) abandoned his claims regarding race and sex either prior to or at the Merit System Protection Board ("MSPB") hearing; and (2) failed to administratively exhaust his age discrimination claim because he did not submit a notice to sue to the EEOC prior to filing the instant complaint. In his response, Plaintiff argues that he exhausted all claims in Civil Action 02-N-379, or before the MSPB in the current action, but provides the Court with no evidence supporting this allegation. As explained below these arguments lack merit.

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

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A.

The Court Has No Jurisdiction to Review the Age Discrimination Claim.

First, this Court must dismiss Plaintiff's age discrimination claim. Plaintiff does not dispute that he failed to submit the notice to sue to the EEOC. In addition, he does not make any allegation concerning age discrimination in Civil Action 02-N-379 (CBS). See Complaint, Civil Action 02-N-0379 attached as Exhibit A. Further, Civil Action 02N-0379 was dismissed due to failure to exhaust, because Strozier admitted that "he filed the lawsuit without exhausting his administrative remedies because he `[f]elt that the postal EEO would have caused more harm than help to me by taking longer with the complaint process.'" Recommendation of M agistrate Judge attached as Exhibit B at p. 4. The Magistrate's Recommendation was accepted by Judge Nottingham and the matter was dismissed with prejudice. See Final Judgment attached as Exhibit C. On appeal, the Court of Appeals directed that the matter was more properly dismissed without prejudice and the District Court on remand entered an Amended Final Judgment granting the Motion to Dismiss but dismissing the matter without prejudice. Strozier took no further steps to exhaust the claims in Civil Action No. 02-N-379. See Amended Final Judgment attached as Exhibit D. As a result, his allegation that he exhausted the age discrimination claim in Civil Action 02-N-379 is without merit. Strozier also alleges that before he filed this action, he exhausted the claim at the MSPB. This allegation is contrary to the evidence. The MSPB form attached to his complaint does not support this allegation. Review of that form demonstrates that

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

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Strozier did not allege any discrimination based on age before the MSPB. Also, Strozier does not dispute that he failed to file a Notice with the EEOC prior to filing his claim based on age discrimination in violation of 29 U.S.C. § 633a(d), because Strozier did not exhaust this claim in any other way, this court is jurisdictionally barred from hearing this claim and it must be dismissed. Tapia-Tapia v. Potter, 322 F.3d 742, 745 (1st Cir. 2003). B. The Court Has No Jurisdiction to Review the Race and Sex Claim. Strozier does not dispute that he stipulated to drop his race claim before the MSPB. Strozier also does not dispute that he failed to present any evidence regarding sex discrimination before the M SPB. Thus "by failing to raise the race discrimination claim before the ALJ, the Plaintiff was precluded from raising it" at the district court level. Williams v. Rice, 983 F.2d 177, 180 (10th Cir. 1993). Strozier does not dispute that he presented no evidence regarding his sex discrimination claim before the MSPB. Thus, Plaintiff cannot raise it before this Court. Williams, 983 F.2d at 180. Strozier argues that he exhausted these claims in Civil Action 02-N-379. As discussed above, Strozier admitted that he failed to exhaust any of his claims in Civil Action 02-N-379, and the action was dismissed for failure to exhaust. As a result, Strozier's argument regarding his alleged exhaustion of the race and sex claims is also meritless and these claims must be dismissed for lack of jurisdiction.

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

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II. CONCLUSION For the above stated reasons, because Strozier failed to administratively exhaust his claims based on age, sex, and race, these claims must be dismissed for lack of jurisdiction.

WILLIAM J. LEONE Interim United States Attorney

s/Elizabeth A. Weishaupl Elizabeth A. Weishaupl Assistant United States Attorney 1225 17th St., Suite 700 Denver, CO 80202 (303) 454-0100 Fax: (303) 454-0408 E-mail: [email protected] Attorney for Defendant

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

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on August 16, 2005 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, AL 35094

M. Terry Clark (mail) Western Area Law Department United States Postal Service Dominion Plaza, So., Suite 1705 Denver, CO 80202-3333 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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