Pearson v. Department of Homeland Security

Filing 33

ORDER & REASONS granting 16 MOTION to Dismiss for Lack of Jurisdiction (Subject-Matter) filed by Department of Homeland Security and denying 31 MOTION for Temporary Restraining Order and MOTION for Preliminary Injunction filed by Alan Pearson. Signed by Magistrate Judge Sally Shushan on 3/8/2012.(caa, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ALAN PEARSON

CIVIL ACTION

VERSUS

NO: 10-2875-SS

JANET NAPOLITANO,
SECRETARY, DEPARTMENT OF
HOMELAND SECURITY
ORDER AND REASONS
Before the Court is the motion of the United States of America on behalf of Janet Napolitano,
Secretary, Department of Homeland Security (“DHS”), to dismiss for lack of subject matter
jurisdiction. For the reasons described below the motion is granted.
PROCEDURAL BACKGROUND
On November 1, 2010, the plaintiff, Alan Pearson (“Pearson”), filed a complaint for
employment discrimination under Title VII, 42 U.S.C. §2000e. He alleged that: (1) he was
employed by the Federal Emergency Management Agency (“FEMA”) in Gulfport, Mississippi; (2)
the discriminatory acts occurred on September 28, 2007 and December 27, 2007 through February
28, 2008; (3) he filed charges with the Alternative Dispute Resolution Department/Equal
Opportunity Office of DHS (“ADR/EEO”) on December 28, 2007 but received no response; (4) he
filed charges with ADR/EEO by telephone voice mails on January 14, 2008, February 11, 2008, and
March 10, 2008; and (5) he sent emails on June 1 and 2, 2010. Rec. doc. 6.
Pearson is proceeding in proper person and in forma pauperis. Rec. doc. 3. His request for
appointment of counsel was denied. Rec. doc. 4. The parties consented to proceed before the
assigned Magistrate Judge. Rec. doc. 18.

After the United States filed its motion to dismiss for lack of subject matter jurisdiction,
Pearson requested that the Court issue a restraining order to prevent a trial attorney in the FEMA
office of chief counsel from physically harming him. Rec. doc. 19. On February 11, 2011, he
submitted a request for all records of communications between the U.S. Attorney and the FEMA
trial attorney. Rec. doc. 20. On February 15, 2011, the requests for a restraining order and an order
requiring production of the communications were denied. Rec. doc. 21. On February 23, 2011, he
filed a further similar request for a restraining order. Rec. doc. 31.
Pearson filed an opposition to the motion to dismiss and the United States filed a reply. Rec.
docs. 22 and 25. On March 28, 2011, he filed an appeal from the order granting the United States
leave to file a reply. Rec. doc. 26. On June 8, 2011, the Fifth Circuit found that it had no
jurisdiction over the appeal because the order was not a final or otherwise appealable order. Rec.
doc. 29. On October 3, 2011, the United States Supreme Court denied his petition for writ of
certiorari. Rec. doc. 30.
STATEMENT OF FACTS
FEMA hired Pearson on September 4, 2007, as a 2-year CORE Housing Advisor at FEMA's
Mississippi Recovery Office (“MSRO”) in Biloxi, MS. Rec. doc. 6 at 7. He received EEO training
at FEMA’s MSRO facility in Biloxi, Mississippi on September 5, 2007. Rec. doc. 25 (Exhibit 1 Declaration of Marvin Chapman). EEO posters were posted at each entrance, bathroom and break
facility at all of the MSRO facilities, including the MSRO main office in Biloxi, as well as the
Recertification Office in Gulfport, Mississippi, which was a satellite office of the MSRO during the
relevant time period. Id.
Pearson resigned from his position on February 29, 2008. Rec. doc. 6 at 10. He alleges that

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FEMA discriminated against him on the basis of race (Caucasian) and sex (male) on two separate
occasions: first, on December 27, 2007, when his work product was singled out by a FEMA
supervisor as an example of incomplete data for housing recertification; and second, on February
29, 2008, when he was verbally reprimanded. Id. at 8 and 10. Almost two years after the first
alleged incident of discrimination, he filed his EEO complaint on October 2, 2009 and alleged that
FEMA discriminated against him on the basis of race and sex. Id. at 11. He alleged that his EEO
complaint was timely because he sent a letter to Yolanda Woods, an Alternative Dispute Resolution
(“ADR”) advisor at the MSRO on March 10, 2008, requesting assistance in filing a dispute with the
Office of Equal Rights after he received a verbal reprimand from his supervisor. Id. at 10. He
further alleged that on March 12, 2008, Woods sent him an email responding to his letter, but
allegedly included no instructions on filing an EEO complaint, so he “waited for the ADR
professionals to investigate and reply.” Id. at 10-11. He alleged that he waited until February 2009
to contact the ADR Office at FEMA's Headquarters in Washington, D.C. and ask for a status update
regarding his complaint. Id. at 11. On March 23, 2009, Robert Scott, an ADR Attorney responded
to his second inquiry and forwarded him information on filing a complaint with the EEOC. Id.
On October 20, 2009, Pearson sent a letter to the Office of Equal Rights at FEMA's
headquarters in Washington, D.C., regarding his complaint. Id. On March 26, 2010, the DHS
Office for Civil Rights and Civil Liberties issued a Final Agency Decision dismissing his complaint
pursuant to 29 C.F.R. § 1614.107(a) (2) because he failed to initiate contact with an EEO counselor
within 45 days of the alleged discrimination event, as required by 29 C.F.R. 1614.105(a) (1). Rec.
doc. 16 (Exhibit 1). On April 5, 2010, he appealed the Agency's dismissal of his discrimination
complaint to the EEOC's Office of Federal Operations (“OFO”). Rec. doc. 6 at 13. On August 20,

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2010, the OFO sent him a letter denying his appeal. Id. at 14. On August 30, 2010, he filed a
Request for Reconsideration of the OFO's denial of his appeal with the EEOC. Id.
APPLICABLE LAW
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a district court may
dismiss an action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) on any one of three separate bases:

(1) the complaint alone; (2) the complaint

supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the Court's resolution of disputed facts. Barrera-Montenegro v. United States,
74 F.3d 657, 659 (5th Cir. 1996).
As a prerequisite to filing a Title VII claim in federal court, an EEO complainant must: (1)
timely file suit as required by Title VII and (2) first have exhausted his administrative remedies.
Tolbert v. United States,,916 F.2d 245 (5th Cir. 1990) (per curiam). The EEO regulations require
aggrieved persons to initiate contact with an EEO Counselor within 45 days of the matter alleged
to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. 29 C.F.R. § 105(a) (1). The Agency must dismiss all complaints that fail to comply with the
applicable time limits. 29 C.F.R. § 1614.107(a) (2).
Federal courts have dismissed civil actions brought by federal EEO complainants for lack
of jurisdiction where the complainants failed to satisfy the EEO’s 45 day requirement, absent a
defense of waiver, estoppel, or equitable tolling. Nealon v. Stone, 958 F. 2d 584, 589 (4th Cir. 1992);
and Benford v. Frank, 943 F.2d 609 (6th Cir. 1991).
The Commission's regulations provide that an agency shall extend the time limits for
initiating contact with an EEO Counselor when an individual shows one of the following: (1) he was

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not notified of the time limits and was not otherwise aware of them; (2) he did not know and
reasonably should not have known that discrimination had occurred; (3) despite due diligence, he
or she was prevented by circumstances beyond his or her control from contacting an EEO counselor
within the time limits; or (4) for other reasons considered sufficient by the EEOC. 29 C.F.R.
§1614.105(a)(2).
The 45-day requirement for a Federal employee to initiate contact with an EEO Counselor
regarding allegations of discrimination is not waived or tolled because a complainant has pursued
avenues other than the EEO process for resolving his complaints in the interim. Federal courts have
held that use of an alternative procedure or forum other than the EEOC to resolve or pursue remedies
under Title VII does not toll the time limit for contacting an EEO counselor. International Union
of Electrical, Radio & Machine Workers, AFL-CIO, Local 790 v. Robbins & Myers Inc. et al., 429
U.S. 229, 97 S.Ct. 441 (1976) (“Local 790").
ARGUMENTS OF THE PARTIES
The United States contends that: (1) Pearson failed to timely contact an EEO Officer; (2) he
did not initiate contact with FEMA's Equal Rights Office regarding his complaints of alleged
discrimination until May 19, 2009, more than a year after the last alleged discriminatory event; (3)
his contact with the ADR Program does waive or toll the requirement that he contact the EEO officer
within 45 days of the alleged discrimination; (4) FEMA’s ADR Program is a separate and distinct
dispute resolution forum from the EEO process; (5) he cannot demonstrate that he had no knowledge
of the EEOC's requirement that employees must contact an EEO counselor within 45 days of the
alleged discriminatory act; (6) the record demonstrates that he received training on FEMA's EEO
procedures and policies on October 5, 2007, shortly after he began working for FEMA; (7) this

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training included a discussion on the 45-day requirement for initiating contact with an EEO
counselor; and (8) he cannot demonstrate that he lacked knowledge or notice of FEMA's EEO
policies, including the 45-day requirement for initiating contact with an EEO counselor.
Pearson responds that: (1) he did not receive adequate training in the complaint procedures;
(2) the United States has not presented evidence that he received the required training or that
information on complaint procedures was displayed; and (3) he was not made aware of his right to
choose between the ADR and EEO counseling.
ANALYSIS
The United States provided a declaration from Marvin Chapman, an EEO Specialists for
MSRO. He declared that:
I directed a review of training on EEO rights and processes received by Alan Pearson
at FEMA’s MSRO facility at Biloxi, MS from September 2007-March, 2009. Based
on a review of the EEO’s records and my current knowledge, I have determined that
ALAN PEARSON received EEO training at FEMA’s MSRO facility in Biloxi, MS
on September 5, 2007. I have also determined that EEO posters were posted at each
entrance, bathroom, and break facility at all of the facilities of the MSRO, including
the MSRO main office in Biloxi, as well as the Recertification office in Gulfport,
MS, which was a satellite office of the MSRO during this period.
Rec. doc. 25 (Exhibit 1). The record demonstrates that Pearson was trained in EEO procedures and
he was on notice of the need to contact an EEO office within 45 days of the matter alleged to be
discriminatory. The alleged discriminatory acts occurred on September 28, 2007 and December 27,
2007 through February 28, 2008. At the latest Pearson was required to contact an EEO office by
April 13, 2008. Pearson did not file his EEO complaint until October 2, 2009. The 45-day
requirement was not waived or tolled because Pearson filed charges with the ADR Department with
DHS. Local 790, 97 S.Ct. at 446-49.
IT IS ORDERED that: (1) the motion of the Department of Homeland Security to dismiss
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for lack of jurisdiction (Rec. doc. 16) is GRANTED; and (2) Pearson’s second motion for a
restraining order (Rec. doc. 31) is DENIED.
New Orleans, Louisiana, this 8th day of March, 2012.

SALLY SHUSHAN
United States Magistrate Judge

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