Cory v. Holder et al
Filing
31
MEMORANDUM OPINION & ORDER: (1) that the dft United States of America Department of Justice, Federal Bureau of Prisons is DISMISSED as a party; (2) GRANTING dft's 18 SEALED MOTION to Dismiss or in the Alternative for Summar y Judgment ; (3) GRANTING dft's Motion to dismiss pla's retaliation claim; (4) pla must SHOW CAUSE within 30 days why his claim should not be dismissed for failure to comply w/Federal Rule of Civil Procedure 56(d); pla has 30 days to file an affidavit indicating why he needs additional discovery & why he cannot now present sufficient facts to justify his opposition to dft's motion. Signed by Judge Joseph M. Hood on 12/14/12.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
ROBERT E. CORY,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
ERIC HOLDER, Attorney
General of the United
States, et. al.
Defendants.
Civil Case No.
5:11-cv-62-JMH
MEMORANDUM OPINION & ORDER
***
This matter is before the Court on Defendants’ Motion
to
Dismiss
Judgment.
and,
in
the
(D.E. 18).
alternative,
Motion
for
Summary
The Plaintiff has responded, and
Defendants have replied.
(D.E. 25; D.E. 29).
matter is now ripe for decision.
Thus, this
For the reasons which
follow, Defendants’ motion to dismiss Plaintiff’s ADA and
retaliation claims will be granted, and Defendants’ motion
to dismiss, or, alternatively, motion for summary judgment
with respect to Plaintiff’s discrimination claim will be
denied.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Robert Cory is a former correctional officer
and
Material
Handler
Supervisor
with
the
Department of Justice, Bureau of Prisons.
3).
United
States
(D.E. 18-2 at 2—
From about February 2005 to December 2005, Plaintiff
was involved in a romantic relationship with a coworker
named
Rebecca
Scott.
(D.E.
18-2
at
4).
After
their
relationship ended in December 2005, Plaintiff married a
different woman in September 2006.
Plaintiff
maintains
that,
(D.E. 18-9 at 1).
soon
after
his
marriage,
Scott began sexually harassing him at work and at home.
(D.E. 18-9 at 1).
Specifically, he claims that she called
and texted his wife to tell her that Plaintiff was having
an extramarital affair, which was false.
(D.E. 18-9 at 1).
He also claims that, in an attempt to get him into trouble
at work, Scott deliberately mishandled his written count
sheets when he submitted them to the control room where she
worked.
(D.E. 18-9 at 2).
Further, whenever Plaintiff
called the control room, or someone else called the control
room to speak with him, Scott would immediately drop the
phone and refuse to process the call.
(D.E. 18-9 at 2).
Additionally, if he was in line for keys, Scott would walk
away
whenever
Plaintiff
got
to
the
front
of
the
line,
leaving Plaintiff waiting until another control officer was
free.
(D.E. 18-9 at 2).
Finally, Plaintiff contends that
in June 2007, Scott unnecessarily complained to management
after
Plaintiff
moved
observation
activity in the prison.
2
cameras
to
patrol
Plaintiff filed a discrimination complaint with the
Department of Justice Complaint Adjudication Office (“CAO”)
on July 9, 2007, alleging that Scott’s discrimination on
the basis of his sex had created a hostile work environment
in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. § 2000e et. seq.
18-6 at 1).
(D.E.
Upon receiving Plaintiff’s complaint, the CAO
accepted two issues for investigation: 1) whether Plaintiff
was subjected to sufficient sexual harassment from Scott to
constitute a hostile work environment under Title VII; and
2)
whether
the
harassment
was
management’s lack of intervention.
perpetuated
due
to
(D.E. 18-6 at 1).
After investigating Plaintiff’s claims, the CAO found
that
despite
Plaintiff’s
numerous
allegations,
the
“evidence supports only that Scott refused to hand out keys
to
complainant
complainant.”
or
take
phone
calls
(D.E. 18-8 at 11).
from,
or
for,
While the CAO found that
this conduct was “certainly unprofessional . . .[,] it was
not the kind of conduct that amounts to severe or pervasive
harassment based on sex, within the meaning of Title VII.”
(D.E. 18-8 at 11).
As
timely
permitted
appealed
Employment
by
the
29
C.F.R.
CAO’s
Opportunity
§
final
Commission
3
1614.405(a),
decision
(EEOC)
to
on
Plaintiff
the
August
Equal
21,
2009.
(D.E. 18-9).
The EEOC affirmed the CAO’s decision,
holding that Plaintiff “failed to make out a prima facie
case
of
discrimination
harassment
was
based
because
on
his
he
did
sex.”
not
(D.E.
show
18-9
the
at
4).
Instead, the EEOC determined that Scott’s conduct “stemmed
from anger from a failed relationship,” and Plaintiff was
therefore not entitled to Title VII protection.
(D.E. 18-9
at 4).
Plaintiff again timely appealed to this Court.
Plaintiff’s
Complaint,
he
alleges
not
only
In
hostile
work
environment discrimination on the basis of his sex, but
also
retaliation
and
discrimination
under
with Disabilities Act (ADA).
(D.E. 1).
mentioned
that
in
additional
its
decision
documentation
on
the
Notably, the CAO
Plaintiff
August
Americans
29,
sent
2008,
alleging
retaliation by his employer for filing a complaint.
18-8
at
5).
However,
the
CAO
because,
by
retaliation
claim
Plaintiff’s
additional
did
not
the
documentation,
them
(D.E.
investigate
time
it
the
it
received
had
already
completed investigation of the sex discrimination claim.
(D.E. 18-8 at 5).
Plaintiff was given forty-five days from
the date of the CAO decision to contact an EEO Counselor
concerning the retaliation claim.
(D.E. 18-8 at 5).
It is
uncontested that Plaintiff never contacted an EEO counselor
4
about his retaliation claim as instructed by the CAO, nor
about his newly alleged ADA claim.
II. STANDARD OF REVIEW
A
motion
12(b)(6)
to
tests
complaint.
dismiss
the
pursuant
sufficiency
to
Fed.
of
R.
the
Civ.
P.
plaintiff’s
The Court views the complaint in the light most
favorable to the plaintiff and must accept as true all
well-pleaded
factual
allegations
contained
within
it.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atlantic
Corp.
v.
Twombly,
550
U.S.
544,
570
(2007)).
“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.’”
Id.
(citing Bell Atlantic Corp., 550 U.S. at 570).
III. ARGUMENT
As an initial matter, Defendants have correctly noted
that
the
United
States
Department
of
Justice,
Federal
Bureau of Prisons, is not an appropriate party to be sued
in this instance.
Egger,
848
F.2d
See 42 U.S.C. § 2000e-16; Hancock v.
87,
89
(6th
Cir.
1988).
Plaintiff
apparently concedes this issue, as he did not address this
argument in his response.
from
Plaintiff,
United
In the absence of any objection
States
Department
of
Justice,
Federal Bureau of Prisons, shall be dismissed as a party.
5
Defendant
employment
Holder
also
discrimination
argues
claim
that
under
the
Plaintiff’s
ADA
and
his
retaliation claim must also be dismissed because Plaintiff
failed
to
claims.
exhaust
his
administrative
remedies
for
these
Because this Court agrees that Plaintiff has not
exhausted his administrative remedies with respect to his
ADA and retaliation claims, both will be dismissed.
“In permitting federal employees to sue under Title
VII,
Congress
sovereign
conditioned
immunity
upon
the
a
government's
plaintiff's
waiver
of
satisfaction
of
‘rigorous administrative exhaustion requirements and time
limitations.’” McFarland v. Henderson, 307 F.3d 402, 406
(6th Cir. 2002) (quoting Brown v. Gen. Servs. Admin., 425
U.S. 820, 833 (1976)).
One of these requirements is that
the “aggrieved person must initiate contact with a[n][EEO]
Counselor within 45 days of the date of the matter alleged
to be discriminatory or, in the case of personnel action,
within 45 days of the effective date of the action.”
C.F.R. § 1614.105(a)(1).
29
“Failure to do so is cause for
dismissal of the complaint by the . . . district court.”
Steiner v. Henderson, 354 F.3d 432, 435 (6th Cir. 2003);
see also Brown, 425 U.S. at 832 (noting that an aggrieved
employee may file a civil action in federal district court,
6
but that the complainant must first seek relief in the
agency that allegedly discriminated against him).
In this instance, Plaintiff does not dispute that he
failed
to
seek
EEO
counseling
or
file
complaint with regard to his ADA claim.
a
formal
EEO
(D.E. 25 at 8).
Instead, Plaintiff argues that Defendant should be estopped
from asserting this defense.
(D.E. 25 at 8).
In support
of his argument, Plaintiff explains that his attorney sent
his
supervisor
a
letter
requesting
an
accommodation
on
February 18, 2010; however, when his supervisor responded
by letter on March 24, 2010, the supervisor did not mention
that Plaintiff could potentially pursue the EEO process if
he wished.
While
(D.E. 25-4; D.E. 25-5).
it
is
true
that,
“[b]ecause
exhaustion
requirements pursuant to Title VII are not jurisdictional
prerequisites, they are subject to waiver, estoppel, and
equitable
facts.
World
tolling,”
estoppel
is
not
warranted
on
these
McFarland, 307 F.3d at 406 (citing Zipes v. Trans
Airlines,
Inc.,
455
U.S.
385,
393
(1982)).
Generally, “[e]quitable estoppel . . . is invoked in cases
where
the
defendant
takes
active
steps
to
prevent
the
plaintiff from suing in time, such as by hiding evidence or
promising
not
to
plead
the
statute
of
limitations.”
Bridgeport Music v. Diamond Time, 371 F.3d 883, 891 (6th
7
Cir. 2004).
Whether equitable estoppel should be applied
is based “on a defendant’s improper conduct as well as a
plaintiff’s actual and reasonable reliance thereon.”
Id.
Further,
prior
to
the
plaintiff
“must
demonstrate
invoking
equitable
that
his
estoppel,
ignorance
attributable to a lack of diligence on his part.”
is
not
Id.
In this case, Plaintiff does not specifically claim
that his supervisor made an affirmative misrepresentation
to
Plaintiff’s
attorney
in
his
March
24,
2010,
letter.
Rather, he seems to argue that the supervisor’s general
failure
to
advise
process
somehow
Plaintiff’s
constitutes
attorney
sufficient
about
the
EEO
misconduct
on
Defendant’s part such that it must now be estopped from
arguing Plaintiff did not timely exhaust the administrative
requirements
with
respect
to
his
ADA
claim.
However,
Defendant did not have an affirmative obligation in this
instance
to
mention
anything
about
the
EEO
process
to
Plaintiff’s attorney, and Plaintiff has not provided any
authority to suggest otherwise.
Moreover, Plaintiff’s failure to pursue EEO counseling
with respect to his ADA claim does not seem to be due to
anything other than his own lack of diligence.
Indeed,
given that he previously filed a claim for harassment based
on his gender and procured EEO counseling for that claim,
8
there is no question that Plaintiff was familiar with the
requirements.
Therefore,
Plaintiff
cannot
utilize
equitable estoppel to save his ADA claim.
With
Plaintiff
respect
does
to
not
Defendant’s motion.
Plaintiff’s
mention
it
(D.E. 25).
retaliation
in
his
claim,
response
to
Nor does he argue in his
response that estoppel applies to his retaliation claim.
(D.E. 25 at 8).
A brief review of the record, however,
indicates that dismissal of Plaintiff’s retaliation claim
is
also
appropriate
due
administrative remedies.
to
his
failure
to
exhaust
Specifically, because the CAO had
already investigated Plaintiff’s sex discrimination claim
when it received new documentation from Plaintiff alleging
retaliation by his employer, the CAO declined to address
the claim in its decision.
However, Plaintiff was given
forty-five days from the date he received the CAO decision
to initiate contact with an EEO counselor if he wished to
pursue it.
Plaintiff
claim
is
Therefore, because there is no dispute that
failed
also
to
meet
this
appropriately
deadline,
dismissed
his
for
retaliation
failure
to
exhaust administrative remedies.
Defendant
also
moved
to
dismiss,
or,
in
the
alternative, for summary judgment on, Plaintiff’s hostile
work environment sexual discrimination claim.
9
In response,
Plaintiff argues that the Court should allow him additional
time
for
discovery
before
disposing
of
the
case.
See
White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229,
231—32 (6th Cir. 1994) (holding that “a grant of summary
judgment
is
improper
if
the
non-movant
is
given
an
insufficient opportunity for discovery.”).
The
Supreme
Court
has
cautioned
dismissal of Title VII claims,
against
premature
explaining that “[b]efore
discovery has unearthed relevant facts and evidence, it may
be
difficult
required
to
prima
Swierkiewicz
v.
define
the
precise
facie
case
in
Sorema
N.A.,
534
formulation
a
U.S.
of
particular
506,
512
the
case.”
(2002).
“Given that the prima facie case operates as a flexible
evidentiary standard, it should not be transposed into a
rigid
pleading
Following
this
standard
for
guidance,
discrimination
the
Court
will
cases.”
not
Id.
dismiss
Plaintiff’s discrimination claim at this early point in the
litigation.
However, the Court recognizes that, despite arguing
that he needs more time for discovery, Plaintiff failed to
submit the requisite affidavit pursuant to Federal Rule of
Civil Procedure 56(d) indicating why additional discovery
is necessary.
why
he
needed
Neither did Plaintiff explain in his brief
more
time
for
10
discovery.
Therefore,
Plaintiff has thirty days from the entry of this Memorandum
Opinion and Order to show cause as to why this Court should
not
consider
the
merits
of
Defendant’s
summary
motion on the record as it currently stands.
judgment
Plaintiff
should outline with particularity why additional discovery
is necessary and why it cannot “currently present facts
essential to justify its opposition.”
Fed. R. Civ. P.
56(d).
Additionally, the Court notes that there is a pending
motion by Plaintiff’s counsel to withdraw as Plaintiff’s
attorney in this action.
(D.E. 30).
In a contemporaneous
Order granting the motion, Plaintiff has also been given
thirty days within which to either procure new counsel or
file a notice with the Court indicating that he wishes to
proceed pro se in this matter.
If Plaintiff fails to procure new counsel, indicate he
intends to proceed pro se, or show cause as to why he needs
more time for discovery within thirty days of entry of this
Memorandum
Opinion
and
Order,
Plaintiff
should
be
aware
that his failure to respond may result in dismissal by this
Court for failure to prosecute pursuant to Federal Rule of
Civil Procedure 41(b) without any further notice.
11
IV. CONCLUSION
For the reasons stated above, IT IS ORDERED:
(1) that Defendant United States of America Department
of Justice, Federal Bureau of Prisons, is DISMISSED as a
party;
(2)
that
Defendant’s
Motion
to
Dismiss
Plaintiff’s
claim under the American Disabilities Act shall be GRANTED;
(3)
that
Defendant’s
Motion
to
Dismiss
Plaintiff’s
retaliation claim shall be GRANTED;
(4) that Plaintiff must SHOW CAUSE within thirty (30)
days from the entry of this Memorandum Opinion & Order why
his claim should not be dismissed for failure to comply
with
Federal
Rule
of
Civil
Procedure
56(d).
In
other
words, Plaintiff has thirty (30) days from the entry of
this Memorandum Opinion & Order to file an affidavit under
Federal
Rule
particularity
of
why
Procedure
he
needs
56(d)
additional
indicating
discovery
in
with
this
action and why he cannot now present sufficient facts to
justify his opposition to Defendant’s motion.
This, the 14th day of December, 2012
12
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