JENNINGS v. PANETTA

Filing 15

ORDER - GRANTING 12 Motion for Summary Judgment, because Jennings failed to exhaust her administrative remedies before filing this lawsuit, the Secretary's motion for summary judgment 12 is granted. Judgment dismissing the action without prejudice shall now issue. Signed by Judge Sarah Evans Barker on 4/5/2012. cm. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

LAURA A. JENNINGS,

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Plaintiff,
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vs.
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LEON E. PANETTA, Secretary,
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Department of Defense,
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Defendant. )

1:11-cv-1457-SEB-DML

Entry Discussing Motion for Summary Judgment
This lawsuit is brought by Laura Jennings pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e. Jennings alleges that her employment with
the Defense Finance and Accounting Service (“DFAS”) was terminated in retaliation
for filing an EEOC complaint.
In an action such as this, the Secretary of the Department of Defense
(“Secretary”), named in his official capacity only, is the proper defendant. The
Secretary seeks resolution of Jennings’ claim through the entry of summary
judgment. Jennings has not responded to that motion, despite her opportunity to do
so.
Having considered the pleadings, the motion for summary judgment, and the
evidentiary record, and being duly advised, the court finds that the motion for
summary judgment must be granted. This conclusion rests on the following facts
and circumstances:
1.
Summary judgment is appropriate 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.” Fed.R.Civ.P. 56(a). A "material fact" is one that "might affect
the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute is genuine only if a reasonable jury could find for the non-moving party. Id.

If no reasonable jury could find for the non-moving party, then there is no Agenuine@
dispute. Scott v. Harris, 127 S. Ct. 1769, 1776 (2007).
a.
"[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of 'the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,'
which it believes demonstrate the absence of a genuine issue of material
fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Where the record
taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial.’” Harris, 127 S. Ct. at
1776 (quoting Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 586–87 (1986) (footnote omitted).
b.
Once a properly supported motion for summary judgment is filed, “[i]t
is a well-settled rule that a party opposing a summary judgment motion must
inform the trial judge of the reasons, legal or factual, why summary judgment
should not be entered.” Liberles v. Cnty. of Cook, 709 F.2d 1122, 1126 (7th
Cir. 1983); see also Domka v. Portage Cnty., 523 F.3d 776, 783 (7th Cir. 2008).
The nonmoving party bears the burden of demonstrating that such a genuine
issue of material fact exists. See Harney v. Speedway SuperAmerica, LLC,
526 F.3d 1099, 1104 (7th Cir. 2008) (citing cases). "When a motion for
summary judgment is properly made and supported, an opposing party may
not rely merely on allegations or denials in its own pleading; rather, its
response must — by affidavits or as otherwise provided in this rule — set out
specific facts showing a genuine issue for trial. If the opposing party does not
so respond, summary judgment should, if appropriate, be entered against
that party." Fed. R. Civ. P. 56(e)(2). The non-moving party bears the burden
of specifically identifying the relevant evidence of record, and “the court is not
required to scour the record in search of evidence to defeat a motion for
summary judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir.
2001).
c.
When no opposition to a properly supported motion for summary
judgment is made, moreover, the moving party’s assertions of fact may be
accepted as true for the purpose of acting on the motion. That is the situation
here, where Jennings has not responded to the motion for summary
judgment. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003) (“[F]ailure to
respond by the nonmovant as mandated by the local rules results in an
admission.”); see also Yancick v. Hanna Steel Corp., 653 F.3d 532 (7th Cir.
2011); Wackett v. City of Beaver Dam, 642 F.3d 578, 582 n.1 (7th Cir. 2011).
This does not alter the standard for assessing a Rule 56(a) motion, but does
“reduc[e] the pool” from which the facts and inferences relative to such a
motion may be drawn. Smith v. Severn, 129 F.3d 419, 426 (7th Cir. 1997).

2.
The following statement of undisputed material facts is based on the
standards set forth above. That is, this statement of facts is not necessarily
objectively true, but as the summary judgment standard requires, the undisputed
facts and the disputed evidence are presented in the light reasonably most favorable
to Jennings as the non-moving party with respect to the motion for summary
judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150
(2000).
a.
Jennings was employed for a period of time as a Contact
Representative with the DFAS in Indianapolis. On November 19, 2010,
Jennings’ employment with the DFAS was terminated during her
probationary period.
b.
On or about May 27, 2011, Jennings contacted the Office of Equal
Opportunity Programs (“OEOP”) regarding her allegations of discrimination
concerning her removal from her position as a contact representative. On
June 29, 2011, the Equal Employment Opportunity (“EEO”) Counselor issued
a notice of right to file a formal EEO complaint to Jennings and to her
attorney representative. On July 7, 2011, Jennings filed her formal EEO
administrative claim, alleging retaliation in connection with her removal. On
July 15, 2011, the OEOP issued its Final Agency Decision (“FAD”) finding
that Jennings was untimely with her claims in that she did not contact the
EEO counselor within 45 days of her termination as required by 29 C.F.R.
§ 1614.107(a)(2) and that she failed to state a claim with regards to her
unemployment benefits.
c.
Jennings had the right to appeal the FAD to the Equal Employment
Opportunity Commission (“EEOC”) within 30 calendar days of the date that
she received the decision; alternatively, she could file a civil action with the
district court within 90 calendar days of her receipt of the decision. On July
19, 2011, Jennings appealed the FAD issued in Agency No. DFAS-00081-2011
to the EEOC Office of Federal Operations (“OFO”.) That appeal, docketed as
Agency No. DFAS-00081-2011, is currently pending before the OFO.
d.
On November 1, 2011, less than 180 days after she had filed her appeal
to the OFO, Jennings filed this lawsuit concerning Agency No. DFAS-000812011.
3.
The Secretary filed his motion for summary judgment on February 21,
2012. As noted, Jennings has not responded to such motion.
4.
A plaintiff in a Title VII action must exhaust her administrative
remedies before bringing an action in federal court. See, e.g., Gibson v. West, 201
F.3d 990, 993 (7th Cir. 2000). This means that when a Title VII plaintiff has filed an

appeal of an FAD to the OFO, she may file a lawsuit in federal court either “within
90 days of receipt of the final decision on the appeal” or “after 180 days from the
date of filing an appeal . . . if there has been no final decision.” 29 C.F.R. § 1614.407.
In other words, before filing suit the plaintiff must wait for a decision on the appeal
or 180 days after filing the appeal to pass.
5.
Here, Jennings filed her appeal on July 19, 2011. Because she filed an
appeal with the OFO and the OFO had not issued its final decision, she was
restricted from filing suit until 180 days after she filed her appeal, or until January
19, 2012, at the earliest. Instead, she filed this lawsuit on November 1, 2011. By not
waiting to file this lawsuit until the administrative process was complete, Jennings
failed to exhaust her administrative remedies and the action must be dismissed. See
Hill v. Potter, 352 F.3d 1142, 1146 (7th Cir. 2003)
6.
“[S]ummary judgment is appropriate-in fact, is mandated-where there
are no disputed issues of material fact and the movant must prevail as a matter of
law. In other words, the record must reveal that no reasonable jury could find for
the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d
832, 836 (7th Cir.1994) (citations and quotation marks omitted). Because Jennings
failed to exhaust her administrative remedies before filing this lawsuit, the
Secretary’s motion for summary judgment [12] is granted. Judgment dismissing
the action without prejudice shall now issue.
IT IS SO ORDERED.

04/05/2012
Date: __________________

_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana