Free Motion to Dismiss - 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. ______________________________________________________________________________ DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b) (1) ______________________________________________________________________________ Defendant, by and through William J. Leone, Acting 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 race, sex, and age discrimination pursuant to Fed. R. Civ. P. 12(b)(1) and in support thereof states as follows: INTRODUCTION The Plaintiff, Jimmy L. Strozier, alleges that the United States Postal Service ("USPS") discriminated against him on the basis of race, sex, age, and disability when USPS discharged him from his position as a Mail Processing Clerk1. Regarding the Plaintiff's race and sex claims, A Motion for Summary Judgment regarding Mr. Strozier's disability claims is pending. At the time of that filing it was believed that Mr. Strozier intended to proceed solely on those claims. However, in the pre-trial order and in discussions held pursuant to D.C.Colo.L.CivR. 7.1 concerning this motion it became apparent that Mr. Strozier intends to prosecute his claims based on age, sex, and race. As the Court lacks subject matter jurisdiction over these claims, this motion became necessary. See Pentco Corp. v. Union Gas System, Inc., 929 F.2d 1519, 1521 (10th Cir. 1991) (lack of subject matter jurisdiction may be raised at any stage of proceedings and may not be waived).
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this Court lacks subject matter jurisdiction to consider these claims because the Plaintiff failed to exhaust his administrative remedies for them when he abandoned these claims at his Merit Systems Protection Board ("MSPB") hearing. Regarding the Plaintiff's age claim, this Court lacks subject matter jurisdiction to consider this claim because the Plaintiff did not appeal this issue to the MSPB and failed to provide 30 days' notice to the Equal Employment Opportunity Commission ("EEOC") of his intent to sue. I. FACTUAL SUMMARY The facts leading up to Plaintiff's filing of the Complaint are described with specificity in the Motion for Summary Judgment which is incorporated herein by reference pursuant to Fed. R. Civ. P. 10(c). However, a brief summary of the facts pertinent to this Motion to Dismiss is set forth below: Strozier was an employee with the Postal Service covered by a Collective Bargaining Agreement ("CBA"). He was terminated for failure to perform job duties on May 25, 2003. Plaintiff chose to appeal this termination to the MSPB. On the Appeal Form to the Merit Systems Protection Board ("MSPB") the Plaintiff alleged that the Defendant discriminated against him because of his race, sex, and disability. However, prior to the Plaintiff's MSPB hearing, the Plaintiff withdrew his claim of race discrimination by stipulation. At the MSPB hearing the Plaintiff presented no arguments or evidence regarding sex discrimination. With regard to the age claim, Plaintiff did not raise this issue through either an EEO charge or before the MSBP. He never provided notice to the EEOC of his intent to sue on this

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ground. Instead, he simply added this claim to the Complaint filed in this action. As a result, this claim must also be dismissed. II. ARGUMENT The Plaintiff alleges that his termination from a Mail Processing Clerk position with USPS was discriminatory on the basis of race and sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ­ 5, et seq. The Plaintiff also alleges that his termination was discriminatory on the basis of age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. As to the Plaintiff's race and sex claims, this Court lacks subject matter jurisdiction to consider these claims because the Plaintiff failed to exhaust his administrative remedies by abandoning these claims at the MSPB hearing. As to the Plaintiff's age claim, this Court lacks subject matter jurisdiction to consider the claim because the Plaintiff did not exhaust this claim through the MSPB process and failed to provide 30 days notice to the EEOC of his intent to sue. A. Burden of Proof Exhaustion of administrative remedies is a "jurisdictional prerequisite" to suit under Title VII. Jones v. Runyon, 91 F.3d 1398, 1400 (1996); 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,

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1278 (10th Cir. 2002)). Therefore, Plaintiff bears the burden of demonstrating that he exhausted his administrative remedies concerning race, sex, and age. B. Plaintiff Failed to Exhaust His Administrative Remedies This Court lacks subject matter jurisdiction to consider the Plaintiff's claims of race and sex discrimination because the Plaintiff failed to exhaust his administrative remedies. Specifically, the Plaintiff failed to exhaust his administrative remedies by abandoning his claims: he explicitly stipulated to dismissal of his race claim and provided no evidence or argument in support of his sex claim at the MSPB hearing. 1. Facts Supporting Failure to Exhaust a. Plaintiff chose to pursue his remedies regarding his termination before the Merit Systems Protection Board. On the Appeal Form to the Merit Systems Protection Board, the Plaintiff alleged that the Defendant discriminated against him because of his race, sex, and disability. [MSPB Appeal Form, attached to Plaintiff's Complaint.] b. At the Plaintiff's MSPB evidentiary hearing held on September 3, 2003, the Plaintiff withdrew his claim of race discrimination by stipulation. [Administrative Judge's Stipulation Order, attached as Exhibit A.] c. Plaintiff presented no arguments or evidence and failed even to mention the claim of age discrimination at the MSPB evidentiary hearing. [Transcript of Plaintiff's MSPB Hearing, attached as Exhibit B.]

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d.

The allegedly discriminatory act, the termination of the Plaintiff, became effective on May 25, 2003. [Decision Letter dated 5/21/03 attached as Exhibit C; MSPB Administrative Judge's Initial Decision, attached to Plaintiff's Complaint].

e.

Plaintiff filed this Complaint on January 14, 2004: 204 days later. [Plaintiff's Complaint].

f.

After diligent inquiry, Defendant has found no evidence that the Plaintiff gave the EEOC 30 days' notice of his intent to initiate "a claim based on age discrimination."

2. Elements of Exhaustion of Race and Sex Claims Not Supported by Complaint Federal employees with Title VII claims must exhaust their administrative remedies before filing a civil action in federal court. Harms v. Internal Revenue Service, 321 F.3d 1001, 1009 (10th Cir. 2003). This 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)). Generally, federal employees asserting Title VII claims must seek relief from the Equal Employment Opportunity (EEO) department of their employing agency. 42 U.S.C. § 2000e-16(c). However, when an employee challenges certain adverse employment actions to the MSPB, including a termination, he or she can also assert related Title VII claims to the MSPB in a "mixed case" appeal. 5 U.S.C. §§ 1201, 7701. If an employee elects to appeal to the MSPB, the employee must exhaust his or her administrative remedies in that forum prior to filing a civil action in federal court. Harms, 321 F.3d at 1009. 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 5

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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" ). An employee abandons a claim when she or he either fails to provide argument or evidence in support of the claim or explicitly elects to not pursue the claim. Jones v. Ruynon, 91 F.3d 1398, 1402 (10th Cir. 1996) (where a federal employee specifically stated to EEOC that she was not claiming sexual harassment discrimination this claim and the related retaliation claim was not properly exhausted) If an "employee chooses to appeal to the MSPB . . . the employee will have a hearing at which he or she must raise his or her claims of discrimination and present evidence in support of those claims in order to exhaust the administrative remedy." Coffman v. Glickman, 328 F.3d 619, 624 (10th Cir. 2003)2. The "court will consider whether the employee presented testimony or other evidence in the EEO case and argued his theories of discrimination to the administrative judge." Coffman, 328 F.3d at 625 (10th Cir. 2003). The attached district court cases clarify this issue. In McAdams, the plaintiff originally filed a mixed case complaint with her EEO office alleging sex discrimination and retaliation. 64 F.3d at 1142. After 120 days passed without any EEO action, the Plaintiff elected to appeal to the MSPB. Id. Because the plaintiff raised only her retaliation claim at the MSPB hearing, the court found that she was barred from raising her sex discrimination claim in federal court. Id. Similarly, in Sanchez, the plaintiff alleged race, national origin, and physical disability

See also McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir. 1995); Sanchez v. Caldera, No. 5:00-CV-123, 2001 U.S. Dist. LEXIS 15101, at *9 (W.D. Mich. Sept. 19, 2001) (attached herein) Banner-Arnold v. Runyon, No. 98-73389, 1999 U.S. Dist. LEXIS 11064, at *6 (E.D. Mich. June 30, 1999) (attached herein) 6

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discrimination in a complaint with her EEO office and then appealed that office's findings to the MSPB. 2001 U.S. Dist. LEXIS 15101, at *9. The court found that the Plaintiff had indicated her desire to abandon her race claim when she failed to mention it before the MSPB and that because she had abandoned the claim, she was foreclosed from pursuing it in a civil suit. Id. Finally, in Banner-Arnold, the plaintiff explicitly withdrew her sex and age discrimination claims at the MSPB pre-hearing conference; therefore, the court found that the plaintiff was foreclosed from asserting those claims in a subsequent civil suit. 1999 U.S. Dist. LEXIS 11064, at *6. In the case at bar, the Plaintiff explicitly abandoned his race claim by stipulation at a prehearing conference prior to the MSPB hearing. Thus, just as in Jones, the Plaintiff is barred from raising that claim in this forum. The Plaintiff also elected not to offer evidence or even argument in support of his sex claim. Just as the plaintiffs in Williams and Sanchez, the Plaintiff in the present case failed to mention or present any testimony or evidence whatsoever regarding his sex discrimination claim at the MSPB hearing. As such, the Plaintiff is foreclosed from asserting his sex claim before this Court. For these reasons, the race and sex claims are not properly before this Court and must be dismissed. 3. Elements of Exhaustion of Age Claim not Supported by Complaint. This Court lacks subject matter jurisdiction to consider the Plaintiff's age discrimination claim because the Plaintiff did not provide the EEOC with 30 days notice of his intent to sue as required by 29 U.S.C. § 633a(d). No equitable considerations justify tolling these notice requirements. "[T}he ADEA `contains no express requirement that a federal employee complainant seek administrative relief,' Stevens v. Dep't of Treasury, 500 U.S. 1, 12 (1991) (Stevens, J. 7

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concurring and dissenting), except that an employee who wishes to file suit without pursuing administrative remedies must give the EEOC notice of intent to sue at least 30 days before filing suit." Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003) (citing 29 U.S.C. § 633a(d) which requires an individual to file suit without filing EEOC complaint but requiring notice to EEOC of intent to sue) (emphasis supplied) Federal law, provides a federal employee "the option of pursuing administrative remedies, either through the agency's EEO procedures, see 29 U.S.C. § 633a(n) and 29 C.F.R. § 1614.106 (2002), or through the Merit Systems Protection Board." Banks, 345 F.3d at 770. In the present case, it is undisputed that Plaintiff did not pursue his age discrimination claim through the MSPB. See MSPB Appeal form attached to Plaintiff's Complaint. Therefore, pursuant to 29 U.S.C. § 633a(d), Plaintiff was required to file a notice of intent to sue with the EEOC prior to filing suit in federal court. The Plaintiff did not attach such a notice of intent to sue to his complaint and the Postal Service has no record of such an intent to sue. As Plaintiff did not file a notice of intent to sue prior to filing suit, Plaintiff's age claim must be dismissed. Tapia-Tapia v. Potter, 322 F.3d 742, 745 (1st Cir. 2003). III. CONCLUSION For the foregoing reasons, Defendant respectfully requests this Court enter judgment in its favor and against the Plaintiff and dismiss the Plaintiff's claims of race, sex, and age discrimination. DATE this _______ day of July, 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 17th Street Plaza Denver, CO 80202 (303) 454-0100 (303) 454 -0404 [email protected]

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

I hereby certify that on July 25, 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 email 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 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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