Harrington v. Bortoff et al

Filing 22

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the Defendants' Motion to Dismiss is GRANTED and the plaintiff's complaint is DISMISSED WITH PREJUDICE as more fully set out in order; costs are taxed as paid. Signed by Judge C Lynwood Smith, Jr on 10/31/2012. (AHI)

FILED
2012 Oct-31 PM 02:46
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
ROBERT W. HARRINGTON,
Plaintiff,
vs.
DENNIS BOTTORFF, et al.,
Defendants.

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Case No. 3:11-cv-04142-CLS

MEMORANDUM OPINION AND ORDER
This case is before the court on defendants’ motion to dismiss for failure to
state a claim upon which relief can be granted.1 Plaintiff, Robert W. Harrington,
alleges that defendants, members of the Tennessee Valley Authority (TVA) Board of
Directors, failed to promote him on the basis of his age in violation of the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”).2
Defendants’ motion argues that plaintiff’s complaint must be dismissed because
plaintiff failed to exhaust administrative remedies.3 Upon consideration, the court
will grant the motion.

1

Doc. no. 15 (Motion to Dismiss), at 1.

2

Doc. no. 1 (Complaint) ¶¶ 1, 8, 12-14. The defendants are Dennis Bortoff, Marilyn Brown,
Mike Duncan, Tom Gilliland, William Graves, Barbara Haskew, Richard Howorth, Neil McBride,
and William Sansom. See id.
3

Doc. no. 16 (Defendants’ Brief in Support of Motion to Dismiss), at 1.

I. LEGAL STANDARDS
Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a
complaint for, among other reasons, “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). This rule must be read together with Rule 8(a),
which requires that a pleading contain only a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While that
pleading standard does not require “detailed factual allegations,” Bell Atlantic Corp.
v. Twombly, 544 U.S. 544, 550 (2007), it does demand “more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that
is plausible on its face.” [Bell Atlantic Corp., 550 U.S.] at 570. A claim
has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged. Id., at 556. The plausibility standard
is not akin to a “probability requirement,” but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Ibid. Where a
complaint pleads facts that are “merely consistent with” a defendant’s
liability, it “stops short of the line between possibility and plausibility
of ‘entitlement to relief.’” Id., at 557 (brackets omitted).
Iqbal, 556 U.S. at 678 (alteration supplied). Moreover, a court need not accept a
complaint’s legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

2

II. FACTS AS ALLEGED4
Plaintiff, a TVA employee, failed to receive a promotion to the position of
General Manager of TVA’s Power Service Shops in Muscle Shoals, Alabama.5
Plaintiff was fifty-six years old at the time another individual received the position
on November 9, 2010.6 The individual who TVA hired as General Manager was
significantly younger and significantly less qualified than plaintiff.7 Moreover,
TVA’s decision not to promote plaintiff was motivated by plaintiff’s age.8 After
several administrative proceedings, plaintiff filed this suit on December 8, 2011,
asserting a single claim for age discrimination under the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”).9
4

As always is the case in the context of ruling upon a motion to dismiss, the district court
is required to assume that
the facts set forth in the plaintiff’s complaint are true. See Anza [v. Ideal Steel Supply
Corp.], 547 U.S. 451, [453,] 126 S. Ct.[1991,] 1994 [(2006)] (stating that on a
motion to dismiss, the court must “accept as true the factual allegations in the
amended complaint”); Marsh v. Butler County, 268 F.3d 1014, 1023 (11th Cir. 2001)
(en banc) (setting forth the facts in the case by “[a]ccepting all well-pleaded factual
allegations (with reasonable inferences drawn favorably to Plaintiffs) in the
complaint as true”). Because we must accept the allegations of plaintiff’s complaint
as true, what we set out in this opinion as “the facts” for Rule 12(b)(6) purposes may
not be the actual facts.
Williams v. Mohawk Industries, Inc., 465 F.3d 1277, 1281 n.1 (11th Cir. 2006) (alterations supplied).
5

Doc. no. 1 (Complaint) ¶¶ 7-8.

6

Id. ¶¶ 8-9.

7

Id. ¶¶ 10-11.

8

Id. ¶ 12.

9

Id. ¶¶ 1, 8, 12-14.
3

III. PROCEDURAL HISTORY
Defendants argue that plaintiff did not exhaust his administrative remedies, a
contention that, if true, merits dismissal of the complaint. See Watson v. Tennessee
Valley Auth., 5:11-CV-02560-SLB, 2012 WL 2114496, at *2 (N.D. Ala. Mar. 30,
2012) (Blackburn, C.J.); Jackson v. Barnhart, No. 1:05–CV–2979–WSD, 2006 WL
2466810, at *4 (N.D. Ga. Aug. 24, 2006) (citing Bryant v. U.S. Dep't of Agric., 967
F.2d 501, 504 (11th Cir.1992)).
Plaintiff pled that he “has fulfilled all conditions precedent to the filing of this
lawsuit,”10 but that allegation is a legal conclusion that is not entitled to deference.
See Iqbal, 556 U.S. at 678-79. Additionally,
while a court generally may not consider matters outside the pleadings
when ruling on a motion for judgment on the pleadings, see Fed. R. Civ.
P. 12(d), it is appropriate to consider the record of administrative
proceedings in the context of a motion challenging the plaintiff's
exhaustion of administrative remedies. The court may do so without
converting the motion for judgment on the pleadings into a motion for
summary judgment. See, e.g., Tillery v. U.S. Dept. of Homeland
Security, 402 F. App'x 421, 423 (11th Cir. 2010); Horne v. Potter, 392
F. App'x 800, 802 (11th Cir. 2010).
Coppett v. Tennessee Valley Auth., CV-11-S-4227-NE, 2012 WL 3962902, at *3 n.26
(N.D. Ala. Sept. 11, 2012) (Smith, J.). Therefore, the court must first examine the
administrative record, as furnished by the parties, before assessing whether plaintiff
10

Id. ¶ 6.
4

properly exhausted his administrative remedies.11
After plaintiff was not hired as General Manager on November 9, 2010, he
contacted a TVA Equal Employment Opportunity (EEO) counselor on November 30,
2010 regarding his grievance.12 Management and plaintiff initially attempted to
resolve the dispute through TVA’s informal process, but their efforts proved
unsuccessful and were terminated on January 20, 2011.13
On February 4, 2011, plaintiff filed a formal, administrative complaint with
TVA.14 Plaintiff submitted numerous documents for consideration and review during
TVA’s investigative process.15 Plaintiff requested, in writing, a decision on his
complaint from TVA’s Director of Equal Opportunity Compliance on July 12, 2011.16
The Director issued TVA’s “Final Agency Decision” on September 9, 2011.17 The
11

The court hastens to note that it is not reviewing the merits of the administrative record,
i.e., plaintiff’s discrimination claim. Instead, the court will examine the relevant dates and events
that occurred during the administrative process.
12

Doc. no. 16-1 (EEO Counselor’s Report), at 1.

13

Id. at 4 (“[Plaintiff] chose mediation. . . . [M]anagement did want to ‘mediate’ the matter.
. . . The meeting was held on January 6[, 2011]. After much discussion, the allegation was not
resolved. . . . I informed Mr. Harrington via e-mail on January 19 that counseling was concluded
[and] on January 20, 2011, I granted Mr. Harrington his final report in person.”) (alterations
supplied).
14

Doc. no. 16-3 (Equal Employment Opportunity Complaint), at 2; doc. no. 19 (Plaintiff’s
Response to Motion to Dismiss) ¶ 2.
15

See doc. no. (Plaintiff’s Response to Motion to Dismiss) ¶¶ 10-12; see, e.g., doc. no. 19-2
(Robert Harrington Aff. of Feb. 17, 2011); doc. no. 19-4 (Details of Age Discrmination).
16

Doc. no. 16-5 (Request for Decision), at 2.

17

Doc. no. 16-6 (Final Agency Decision), at 11; doc. no. 19 (Plaintiff’s Response to Motion
to Dismiss) ¶ 3.
5

Final Agency Decision concluded that plaintiff was not the subject of age
discrimination.18 The Final Agency Decision also included several paragraphs
informing plaintiff of his right to appeal TVA’s decision.19
Plaintiff appealed TVA’s Final Agency Decision to the Equal Employment
Opportunity Commission (EEOC) on October 7, 2011.20 Plaintiff initiated the instant
suit in this court sixty-two days later, on December 8, 2011.21 Finally, on January 31,
2012, the EEOC notified plaintiff’s attorney, in writing, that it was terminating
plaintiff’s appeal at plaintiff’s request.22
IV. DISCUSSION
A.

Plaintiff’s Initial Adjudicatory Options
The Supreme Court has previously explained how plaintiffs may pursue ADEA

claims:
[T]he ADEA provides two alternative routes for pursuing a claim of age
discrimination. An individual may invoke the EEOC’s administrative
process and then file a civil action in federal district court if he is not
satisfied with his administrative remedies. A federal employee
complaining of age discrimination, however, does not have to seek relief

18

Doc. no. 16-6 (Final Agency Decision), at 9.

19

Id. at 9-11.

20

Doc. no. 16-7 (EEOC Notice of Appeal), at 2 (sent on November 3, 2011 and
acknowledging receipt of appeal on October 7, 2011).
21

Doc. no. 1 (Complaint); doc. no. 19 (Plaintiff’s Response to Motion to Dismiss) ¶ 4.

22

Doc. no. 16-8 (EEOC Notice of Appeal Termination), at 2.
6

from his employing agency or the EEOC at all. He can decide to present
the merits of his claim to a federal court in the first instance.
Stevens v. Department of Treasury, 500 U.S. 1, 5-6 (1991) (citations omitted); see 29
U.S.C. § 633a(b)-(d); see also Edwards v. Shalala, 846 F. Supp. 997, 999 (N.D. Ga.
1994) aff’d 64 F.2d 601 (11th Cir. 1995).
One of plaintiff’s options, the so-called “administrative bypass,” see Watson
v. Tennessee Valley Auth., No. 5:11-cv-02560-SLB, 2012 WL 2114496, at *4-5 (N.D.
Ala. Mar. 30, 2012) (Blackburn, C.J.), was to file suit in federal court before taking
action through administrative channels.
As an alternative to filing a[n administrative] complaint under this part,
an aggrieved individual may file a civil action in a United States district
court under the ADEA against the head of an alleged discriminating
agency after giving the [Equal Employment Opportunity] Commission
not less than 30 days’ notice of the intent to file such action. Such
notice must be filed . . . within 180 days of the occurrence of the alleged
unlawful practice.
29 C.F.R. § 1614.201(a) (alterations supplied). Here, the plaintiff did not pursue the
“administrative bypass” option,23 but instead pursued his administrative remedies by
filing a complaint with the TVA. See 29 C.F.R. § 1614.106(a) (“A complaint must

23

Neither the complaint nor the administrative record furnished by the parties indicates that
plaintiff filed a notice with the EEOC of his intent to sue within 30 days of initiated this suit. Any
such notice would be irrelevant to the “administrative bypass” option at this point for two reasons.
First, plaintiff clearly opted to pursue his administrative remedies. Second, 180 days have passed
since the occurrence of the alleged discrimination on November 9, 2010. Therefore, the
“administrative bypass” option is closed to plaintiff.
7

be filed with the agency that allegedly discriminated against the complainant.”); see
also 29 C.F.R. § 1614.201(a) (alluding to filing an administrative complaint as an
alternative to the “administrative bypass” option).
Individuals who elect to file an administrative complaint must satisfy certain
preconditions. “Aggrieved persons who believe they have been discriminated against
on the basis of . . . age . . . must consult a Counselor prior to filing a complaint in
order to try to informally resolve the matter.” 29 C.F.R. § 1614.105(a). “An
aggrieved person must initiate contact with a Counselor within 45 days of the date of
the matter alleged to be discriminatory[.]” 29 C.F.R. § 1614.105(a)(1). Plaintiff
complied with those requirements by contacting a TVA Equal Employment
Opportunity counselor on November 30, 2010,24 twenty-one days after the November
9, 2010 occurrence of the alleged discrimination.
If an individual’s grievance is not resolved through informal counseling, the
counselor must provide the individual with a notice of his or her right to file a formal
discrimination complaint within fifteen days of the receipt of the notice. See 29
C.F.R. § 1614.105(d); 29 C.F.R. § 1614.106(b). In this case, the TVA counselor
provided plaintiff his notice on January 20, 2011.25 Plaintiff timely filed his formal

24

See doc. no. 16-1 (EEO Counselor’s Report), at 1.

25

Id. at 4.
8

complaint with TVA on February 4, 2011.26

TVA issued its “Final Agency

Decision,” which ruled against plaintiff, on September 9, 2011.27
B.

Plaintiff’s Appeal to the EEOC, and the Consequences Thereof
Once TVA issued its “Final Agency Decision” on September 9, 2011, plaintiff

was again presented with choices about how best to pursue his age discrimination
claim: i.e., proceed directly to federal court; or file an appeal with the EEOC.
“When,” as in this case, “an individual has filed an administrative complaint alleging
age discrimination . . . administrative remedies will be considered to be exhausted for
purpose of filing a civil action”:
(1) 180 days after the filing of an individual complaint if the agency has
not taken final action and the individual has not filed an appeal . . . ;
(2) After final action on an individual or class complaint if the
individual has not filed an appeal; or
(3) After the issuance of a final decision by the [Equal Employment
Opportunity] Commission on an appeal or 180 days after the filing of
an appeal if the Commission has not issued a final decision.
29 C.F.R. § 1614.201(c) (emphases and alternations supplied).
In other words, when plaintiff filed his formal complaint with TVA, he limited
his access to federal court to the three, above-mentioned routes.
26

Doc. no. 16-3 (Equal Employment Opportunity Complaint), at 2; doc. no. 19 (Plaintiff’s
Response to Motion to Dismiss) ¶ 2.
27

Doc. no. 16-6 (Final Agency Decision), at 9, 11; doc. no. 19 (Plaintiff’s Response to
Motion to Dismiss) ¶ 3.
9

On October 7, 2011, plaintiff timely appealed TVA’s September 9th Final
Agency Decision to the EEOC.28 See 29 C.F.R. §§ 1614.401(a) (permitting appeal
to EEOC), 1614.402(a) (requiring appeal within thirty days of final agency action).
Thus, plaintiff eliminated his ability to file suit in federal court under §
1614.201(c)(1)-(2). Instead, plaintiff’s appeal to the EEOC locked him into §
1614.201(c)(3), which establishes that administrative remedies are exhausted only
when either the EEOC issues a final decision on the appeal, or 180 days after the
appeal is filed (if the EEOC has yet to issue a final decision).
Plaintiff satisfied neither of those requirements.
Plaintiff filed suit in this court on December 8, 2011, sixty-two days after he
perfected his appeal with the EEOC. Moreover, the EEOC terminated plaintiff’s
appeal at his request on January 31, 2012, and therefore the EEOC did not issue a
final decision. Even if plaintiff had not requested termination of his appeal, the
appeal would have terminated by operation of law upon the initiation of this suit. See
29 C.F.R. § 1614.409. Consequently, plaintiff failed to exhaust his administrative
remedies.

28

Doc. no. 16-7 (EEOC Notice of Appeal), at 2 (sent on November 3, 2011 and
acknowledging receipt of appeal on October 7, 2011).
10

That conclusion is further supported by plaintiff’s failure to meet any of the
catch-all requirements for filing suit in federal court based on certain employment
discrimination causes of action.
A complainant who has filed an individual complaint [with an agency]
. . . is authorized under title VII, the ADEA, and the Rehabilitation Act
to file a civil action in an appropriate United States District Court:
(a) Within 90 days of receipt of the final action on an individual
or class complaint if no appeal has been filed;
(b) After 180 days from the date of filing an individual or class
complaint if an appeal has not been filed and final action has not
been taken;
(c) Within 90 days of receipt of the [Equal Employment
Opportunity] Commission’s final decision on appeal; or
(d) After 180 days from the date of filing an appeal with the
Commission if there has been no final decision by the
Commission.
29 C.F.R. § 1614.407 (emphases and alterations supplied). Plaintiff eliminated
subsections (a) and (b) by filing an appeal to the EEOC. He foreclosed subsection (d)
by initiating the instant suit only sixty-two days after filing his appeal. Finally,
because the EEOC never issued a final decision on plaintiff’s appeal, subsection (c)
also was not available. Even if the termination of plaintiff’s EEOC appeal could be
considered a “final decision” by the Commission, plaintiff filed the case at bar before
that decision, not “within 90 day of receipt” of the decision (i.e., after it).
11

The Eleventh Circuit strictly applies exhaustion requirements. Perrino v.
Southern Bell Telephone & Telegraph Co., 209 F.3d 1309, 1318 (11th Cir. 2000).
“To determine whether an employee failed to exhaust his administrative remedies, [a
court] consider[s] whether the complainant made a good faith effort to comply with
the regulations and, particularly, to provide all the relevant, specific information
available to him or her.” Brown v. Snow, 440 F.3d 1259, 1263 (11th Cir. 2006)
(internal quotations omitted). Plaintiff argues that he meets the “good faith” standard
based on his voluminous submissions to TVA during its administrative process.29 As
defendants note, however, “[p]laintiff appears to confuse the ‘Agency’ (i.e., TVA)
and the EEOC.”30 “It is [p]laintiff’s failure to cooperate with the EEOC on appeal,
and not with the Agency below, that mandates dismissal of his Complaint.”31
This case is squarely governed by Lawrence v. G-UB-MK Contractors, 262 F.
App’x 149 (11th Cir. 2008), in which the Eleventh Circuit held that
under the reasoning in Brown [v. Snow, 440 F.3d 1259 (11th Cir 2006)],
because Lawrence [i.e., the plaintiff] terminated her appeal from the
EEOC after only 108 days, she cannot be said to have cooperated in
good faith. Therefore, we agree with the district court that she failed to
exhaust her administrative remedies.

29

Doc. no. 19 (Plaintiff’s Response to Motion to Dismiss) ¶¶ 10-12 & pp. 8-9.

30

Doc. no. 20 (Defendants’ Reply), at 2 n.1.

31

Id. at 1.
12

Id. at 153-54 (emphasis and alterations supplied). Given the strict application of
exhaustion requirements, plaintiff’s failure to abide by those requirements, and the
Lawrence decision, this court similarly finds that plaintiff did not cooperate with the
EEOC in good faith.
C.

Plaintiff’s “Denial of Meaningful Access to Administrative Review”
Argument
Plaintiff seeks to excuse his failure to exhaust administrative remedies by

arguing that TVA “failed to provide adequate notice to [him] of his rights and
responsibilities regarding the exhaustion of administrative remedies.”32 The Eleventh
Circuit recognizes exceptions to exhaustion requirements “only when resort to
administrative remedies would be futile or the remedy inadequate, or where a
claimant is denied ‘meaningful access’ to the administrative review scheme in place.”
Perrino, 209 F.3d at 1316 (internal citations and quotations omitted). Plaintiff’s
argument implicates only the latter exception.
Plaintiff claims that, unlike the language in 29 C.F.R. § 1614.201(c), the
information provided by TVA during its initial counseling session with plaintiff
failed to state that once [plaintiff] chose to file an appeal, he was
compelled to wait 180 days or until the EEOC issued a decision before
he could file suit. Instead, the Agency’s language notified [plaintiff]
that he had exhausted its administrative remedies in two ways: by filing
suit 180 days from the date he filed his formal complaint [with TVA]
32

Doc. no. 19 (Plaintiff’s Response to Motion to Dismiss), at 1.
13

and by filing suit after the Agency had issues its Final Decision of
September 9, 2011.33
In plaintiff’s view, TVA’s allegedly-erroneous information hampered plaintiff’s
efforts to such a degree that he “should not be deemed thereby to have failed to
comply with the exhaustion requirements.”34 Wade v. Secretary of the Army, 796
F.2d 1369, 1377 (11th Cir. 1986).
The relevant language provided by TVA during the counseling process reads
as follows:
[The ADEA] allows persons claiming age discrimination to go directly
to court without going through an agency’s administrative complaint
procedures. If you choose to go directly to court, you must notify the
Equal Employment Opportunity Commission (EEOC) of your intent to
file a lawsuit by writing [the EEOC]. This notice must be made at least
thirty (30) days before the action is filed. If, however, a complainant
chooses to file an administrative complaint, he or she must exhaust
administrative remedies before proceeding to court. The complainant
exhausts administrative remedies one hundred and eighty (180) days
after filing a formal complaint or 180 days after filing an appeal with the
EEOC if the EEOC has not issued a decision, or when TVA or the
EEOC issues a final decision.35
That language largely tracks the regulatory requirements. Plaintiff, however, insists
that TVA’s language did not make clear that, by appealing to the EEOC, plaintiff

33

Id. at 7.

34

Id. at 5.

35

Doc. no. 16-2 (Rights and Responsibilities in the Equal Opportunity Complaint Process),
at 2 (alterations and emphasis supplied).
14

forfeited the ability to file suit “180 days after filing a formal complaint” with TVA.
The notice is ambiguous in that regard.

Admittedly, the notice could be

disambiguated by simply inserting “if an appeal is not filed” after the italicized
language in the block-quote above.

The result would read as follows: “The

complainant exhausts administrative remedies one hundred and eighty (180) days
after filing a formal complaint if an appeal is not filed, or 180 days after filing an
appeal with the EEOC . . .” However, the notice did not so read. Yet despite the
notice’s ambiguity, plaintiff’s argument fails for several reasons.
Plaintiff is correct that TVA’s notice did not explicitly state that filing an
EEOC appeal barred plaintiff’s ability to file suit in federal court with 180 days after
TVA’s final decision. Nevertheless, that omission hardly meets the demanding
standard of a “deni[al of] ‘meaningful access’ to the administrative review scheme in
place.” Perrino, 209 F.3d at 1316 (alternation supplied). Plaintiff informally pursued
his claim with TVA. When a resolution did not result, he filed a formal complaint
with TVA. When TVA denied his formal complaint, plaintiff appealed to the EEOC.
Plaintiff thus had ample opportunity to access the administrative review scheme.
Even assuming TVA’s initial notice prejudiced plaintiff, any such prejudice
was undone by TVA’s Final Agency Decision, which properly explained plaintiff’s
appellate options and the administrative prerequisites for suing in federal court.
15

Section VII of that document, entitled “Appeal Rights,” first noted that plaintiff could
appeal TVA’s decision directly to the EEOC.36 It also informed plaintiff that
[i]n lieu of an appeal to the EEOC, Complainant may file a civil action
in an appropriate U.S. District Court WITHIN 90 CALENDAR DAYS
of receipt of this final decision and appeal rights notice. The proper
defendants are the members of the TVA Board of Directors.37
Cf. 29 C.F.R. § 1614.407(a). The notice then explained that, even if plaintiff
appealed to the EEOC, he could proceed to federal court after either the EEOC’s
decision, or 180 days from the date of his appeal.38 Because that (accurate and
umambiguous) information came after the initial, ambiguous notice and before
plaintiff had to chose between proceeding to federal court or appealing to the EEOC,
the court cannot conclude that plaintiff was denied meaningful access to the
administrative review scheme.
Finally, Lawrence is once again instructive. The plaintiff in Lawrence also
argued that she received inadequate notice from TVA of the administrative scheme.
The Court noted that
Lawrence [i.e., the plaintiff] has failed to cite any binding authority
requiring an agency affirmatively to ensure that she understood her
appellate options and the applicable exhaustion requirements, both of

36

Doc. no. 16-6 (Final Agency Decision), at 9.

37

Id. at 19 (alternation and emphasis supplied).

38

Id.
16

which are set out in our case law and the governing statute and
regulation.
Lawrence, 262 F. App’x at 154. The same is true of plaintiff in this case. TVA
provided plaintiff with two separate notices of his administrative remedies. Plaintiff
received both of those notices before he decided to appeal to the EEOC. Those
notices sufficiently appraised plaintiff of his rights and remedies. Therefore, plaintiff
was not excused from failing to exhaust his administrative remedies, especially
because plaintiff has not shown that TVA is obliged to ensure that plaintiff fully
comprehended the administrative scheme.
D.

Dismissal With Prejudice
Plaintiff’s case must be dismissed because he did not exhaust his administrative

remedies. See Watson, 2012 WL 2114496, at *2; Jackson, 2006 WL 2466810, at *4
(citing Bryant v. U.S. Dep't of Agric., 967 F.2d 501, 504 (11th Cir.1992)). The only
remaining question is whether it should be dismissed with or without prejudice.
As discussed at length above, there are no remaining avenues for plaintiff to
properly bring his case in federal court. See 29 C.F.R. §§ 1614.201(c), 1614.407. If
the court dismissed plaintiff’s case without prejudice and permitted him to amend or
re-file his complaint, his efforts would be futile. In such a situation, dismissal with
prejudice is allowed. See Corsello v. Lincare, Inc., 428 F.3d 1008, 1014 (11th Cir.

17

2005) (citing Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)) (permitting
the denial of leave to amend when amendment would be futile).
V. CONCLUSION
It is sad and of little solace, either to plaintiff or this court, to observe that the
errors of plaintiff’s attorney may have served only to convert an arguably meritorious
age discrimination claim under federal law into a state law claim under the Alabama
Legal Services Liability Act of 1988, Ala. Code § 6-5-570 et seq. (1975) (2005
Replacement Vol.). Nevertheless, for all of the reasons stated above, the court
GRANTS defendants’ motion to dismiss plaintiff’s complaint for failure to state a
claim upon which relief can be granted. Plaintiff’s complaint is DISMISSED with
prejudice. Costs are taxed to plaintiff. The Clerk is directed to close this file.
DONE and ORDERED this 31st day of October, 2012.

______________________________
United States District Judge

18