Setevage v. Homeland Security et al
RULING granting 55 Motion for Summary Judgment. Signed by Judge Holly B. Fitzsimmons on 3/29/12. (Esposito, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JANET NAPOLITANO, SECRETARY
OF THE UNITED STATES
DEPARTMENT OF HOMELAND
SECURITY; JOHN S. PISTOLE,
ADMINISTRATOR OF THE
ADMINISTRATION AND THE
FEDERAL AIR MARSHAL SERVICE.
CIV. NO. 3:08CV1645
RULING ON MOTION FOR SUMMARY JUDGMENT
Plaintiff John Setevage brought this suit against the
Defendants, Janet Napolitano, Secretary of the United States
Department of Homeland Security; and John S. Pistole,
Administrator of the Transportation Security Administration and
Federal Air Marshal Service, alleging employment discrimination
under the Age Discrimination and Employment Act, 29 U.S.C. §§
621-634. Defendants argue three grounds for entry of summary
judgment: (1) the action is barred due to failure to exhaust
administrative remedies; (2) there is no material issue of fact
for trial; and (3) dismissal is appropriate with respect to all
defendants, who were improperly named as defendants, except the
Secretary of Homeland Security.
For the reasons that follow, Defendants’ Motion for Summary
Judgment [Doc. #55] is GRANTED.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact, and
the movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
When a party asserts that a fact cannot be or is
genuinely disputed, the assertion must be supported by citing to
evidence in the record, or by showing that the materials cited
do not or cannot establish the absence or presence of a dispute.
Fed. R. Civ. P. 56(c)(1)(A)-(B).
When the movant bears the burden of proving the material
facts, he must show that there is no genuine dispute as to those
See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
“The mere existence of a scintilla of evidence in support of the
[movant’s] position will be insufficient; there must be evidence
on which the jury could reasonably find for the [movant].“
Dawson v. Cnty. of Westchester, 373 F.3d 265, 272 (2d Cir. 2004)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986)) (internal quotation marks omitted).
Once the movant has
met this burden, the nonmoving party must “set forth specific
facts showing that there is a genuine [dispute] for trial.”
Anderson, 477 U.S. at 256.
When reviewing the record, the court resolves all
ambiguities and draws all inferences in favor of the party
against whom summary judgment is sought.
Patterson v. Cnty. of
Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citing Anderson, 477
U.S. at 255).
If there is any evidence in the record on a
material issue from which a reasonable inference could be drawn
in favor of the nonmoving party, summary judgment is
Security Ins. Co. of Hartford v. Old Dominion
Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).
Plaintiff’s Job Application
This case alleges discrimination on the basis of age in the
On or about November 30, 2005, Plaintiff
applied for a position as a federal air marshal.
He received a
“Conditional Offer of Employment” letter on January 30, 2006,
setting out the remaining stages of the application and
Plaintiff was fifty-four years old when he
completed the prerequisites outlined in the conditional offer.
Upon successfully passing the background investigation,
Plaintiff had his panel interview at the Federal Air Marshal
Service Boston Field Office on June 22, 2006.
He was given a
panel interview score of 48 out of 63, which represented a
On a date following the panel interview,
Plaintiff completed a Physical Training Assessment and received
an overall score of “Good.”
Plaintiff’s completed application was reviewed by the
Quality Review Board (“QRB”).
Upon review, the QRB determined
that Plaintiff would not be recommended for hire.
Age Discrimination Complaint Process
For the reasons that follow, the Court finds that Plaintiff
failed to file a timely notice of intent to sue with the EEOC.
The undisputed facts1 in support of this conclusion are set forth
Plaintiff received from the Federal Air Marshal Service a
rejection letter dated October 19, 2006, also known as a “better
qualified applicants” (“BQA”) letter.
Amend. Compl. ¶ 19].
[Doc. #55-2 ¶ 50; Second
Plaintiff testified that he first realized
he had not been selected for the federal air marshal position on
June 29, 2007, when the vacancy announcement was closed.
#55-2 ¶ 51].
On December 13, 2007, Plaintiff initiated an informal
complaint of discrimination, referred to as Equal Employment
Opportunity (“EEO”) counseling.
[Doc. #55-2 ¶ 53].
6, 2008, Plaintiff filed a notice of intent to sue with the
Equal Employment Opportunity Commission (“EEOC”).
The intent to sue letter was filed before the informal
Plaintiff and Defendants submitted Local Rule 56(a)(2) [Doc. #76] and Local
Rule 56(a)(1) [Doc. #55-2] Statements, respectively.
EEO counseling process was concluded.
[Doc. #55-2 ¶ 54, Ex.
On March 15, 2008, Plaintiff received notice that the EEO
counseling process was ineffective to resolve his matter, and he
was then given notice of his right to file a formal complaint
with the EEOC.
[Doc. #55-2 ¶ 54, Ex. 14].
There is no evidence
that Plaintiff ever filed a formal complaint of age
discrimination with the EEOC.
Rather, on October 28, 2008,
Plaintiff initiated this civil action by filing a complaint in
the U.S. District Court for Connecticut.
Exhaustion of Administrative Process
Exhaustion of administrative process is a condition
precedent to the initiation of a civil action in federal court
on a claim of age discrimination in federal employment.
U.S.C. §633a(d); Stevens v. Dep’t of the Treasury, 500 U.S. 1,
5-6 (1991); Wrenn v. Secretary, Dept. of Veterans Affairs, 918
F.2d 1073, 1077 (2d Cir. 1991).
These statutory prerequisites
to bringing a civil action provide an opportunity for early
conciliation and thus conserve scarce judicial resources. Wrenn,
918 F.2d at 1078.
A federal employee or applicant for federal employment has
two alternative routes for pursuing a claim of age
A claimant may initiate a formal complaint of
age discrimination with the Equal Employment Opportunity
Commission (“EEOC”), and then file a civil action in the federal
district court if he is not satisfied with his administrative
See 29 U.S.C. §633a(b)(c). A claimant does not have
to seek relief from the EEOC; he may decide to file directly a
civil action in federal district court, but only after giving
the EEOC timely notice of his intent to sue.
29 U.S.C. §
633a(d), Stevens, 500 U.S. at 6-8; Wrenn, 918 F.2d at 1078.
Defendants argue that Plaintiff is barred from bringing
this civil action because he failed to satisfy either option.
The Court agrees.
Plaintiff never filed a formal complaint with the EEOC,
electing to file an intent to sue with the EEOC and pursue his
ADEA claim directly in federal district court.
EEOC-Notice to Sue
It is undisputed that Plaintiff filed his notification of
intent to sue on February 6, 2008.
Pursuant to the statute,
Plaintiff was required to file a timely notice of intent to sue
with the EEOC, within 180 days of the alleged discriminatory
See 29 U.S.C. § 633a(d).
Plaintiff received his BQA letter informing him that he was
not selected for the federal air marshal position on October 19,
Plaintiff testified that he realized he would not be
selected when the vacancy announcement closed on June 29, 2007.
Applying either date, Plaintiff’s notice of intent to sue was
provided to the EEOC well in excess of the 180 day requirement.
Here, there is no evidence that Plaintiff either filed a formal
administrative complaint or gave the EEOC timely notice prior to
See Rojas v. Principi, 326 F. Supp. 2d 267, 277
(D.P.R. 2004); see also Schism v. United States, 972 F. Supp.
1398, 1406 (N.D. Fla. 1997); Metsoulos v. Runyon, 918 F. Supp.
851, 859 (D.N.J. 1996). Accordingly, the ADEA claimmust be
Plaintiff argues that even if his notice were untimely, he
is entitled to equitable tolling of the 180 day requirement.
Plaintiff claims that he was actively misled by the Defendants
to believe that Defendants were still considering him for the
federal air marshal position even after he received his BQA
Equitable tolling has been found to be applicable to ADEA
See, e.g., Paneccasi v. Unisource Worldwide, Inc., 532
F.3d 101, 112 (2d. Cir. 2008).
“However, equitable tolling is
only appropriate in rare and exceptional circumstances, in which
a party is prevented in some extraordinary way from exercising
Zerilli-Edelglass v. N.Y. City Transit Authority,
333 F.3d 74, 80 (2d Cir. 2003) (internal quotations and
Equitable tolling is considered appropriate in three
situations: (1) when a plaintiff has actively pursued judicial
remedies but filed a defective pleading in the statutory period;
(2) “where plaintiff was unaware of his or her cause of action
due to misleading conduct of the defendant;” and (3) where a
plaintiff's medical condition or mental impairment prevented him
or her from proceeding in a timely fashion.
quotations and citations omitted).
The first and third
categories of conduct justifying equitable tolling are not at
issue in this case.
Plaintiff claims that the defendants actively misled him
into thinking that he was still being considered for the federal
air marshal position even after he received the BQA letter,
entitling him to equitable tolling from that date forward.
assuming this to be true, Plaintiff admits he was aware that he
had not been selected for the position when the vacancy
announcement was closed on June 29, 2007.
If the 180 day
requirement for filing the notice of intent to sue were
equitably tolled until June 29, 2007, Plaintiff’s notice of
intent to sue was still untimely.
Calculating 180 days from
June 29, 2007, the notice of intent to sue was due by December
Thus, Plaintiff’s February 6, 2008, notice of intent
to sue was filed untimely.
Plaintiff made no argument and
provided no evidence to show he was “prevented in some
extraordinary way from exercising his rights,” ZerilliEdelglass, 333 F.3d at 80, so as to warrant tolling the 180 day
requirement for filing the notice of intent to sue beyond June
Plaintiff, therefore, failed to satisfy the statutory
requirements for bringing a civil action in a district court
under the ADEA, and judgment must enter in favor of the
Defendants’ Motion for Summary Judgment [Doc. #55] is
This is not a recommended ruling.
consented to proceed before a United States Magistrate Judge
[Doc. #16] and on February 9, 2011 this case was transferred to
the undersigned for all purposes, including the entry of
SO ORDERED at Bridgeport this 27th day of March 2012.
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE
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