Paulin v. Department of Homeland Security

Filing 25

ORDER AND REASONS: ORDERED that the 18 Motion for Summary Judgment is GRANTED. FURTHER ORDERED that plaintiff's claims of discrimination and/or retaliation based on events occurring prior to the settlement are DISMISSED WITH PREJUDICE as they were released in the settlement agreement. FURTHER ORDERED that plaintiff's claims of discrimination and/or retaliation based on events occurring after the settlement are DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies. Signed by Judge Lance M Africk on 7/23/2013. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION

DIRK N. PAULIN
VERSUS

No. 12-2735

JANET NAPOLITANO, SECRETARY,
DEPARTMENT OF HOMELAND
SECURITY, FEDERAL EMERGENCY
MANAGEMENT AGENCY

SECTION I

ORDER AND REASONS
Before the Court is a motion for summary judgment filed by defendant, Janet Napolitano,
Secretary, Department of Homeland Security.1 Plaintiff, Dirk N. Paulin, opposes the motion.2
For the following reasons, the motion for summary judgment is GRANTED.
Background
Plaintiff, Dirk N. Paulin (“Paulin”), filed this lawsuit alleging violations of his civil rights
in connection with his employment by the Federal Emergency Management Agency (“FEMA”).3
Plaintiff filed two administrative EEO complaints. In the first administrative complaint, filed on
November 30, 2009, Paulin alleged that, due to his skin color and gender, FEMA had unlawfully
refused “to put him in task lead positions that give[] an employee permanent status.”4 In his
second administrative complaint, filed on April 5, 2012, Paulin alleged that he was subjected to
retaliation, harassment, and a hostile work environment.5
On May 8, 2012, the parties settled Paulin’s first administrative complaint and, in doing
so, they agreed that “any other complaints, formal or informal, pending as of the date of this

1

R. Doc. No. 18.
R. Doc. No. 21.
3
R. Doc. No. 1.
4
Id. at ¶ 5; R. Doc. No. 18-3.
5
See R. Doc. No. 18-4, at p. 7.
2

1

Agreement are considered finally resolved by this Settlement Agreement.”6 As a result, Paulin’s
second administrative complaint was procedurally dismissed on May 24, 2012.7
On November 11, 2012, Paulin filed this lawsuit seeking damages for numerous alleged
instances of discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 1981, 1983, 1985, the 5th and 14th Amendments to the United States Constitution, and
state tort law.8 The complaint is based, in large part, on the claims set forth in his second
administrative complaint,9 but it also appears to assert “amendments” to his original complaint of
discrimination.10 Although Paulin acknowledges the settlement, he claims that he filed this
lawsuit because “[d]efendants have, while the previous complaint was pending and since the
previous complaint was settled, retaliated against Petitioner.”11
Defendant, Janet Napolitano, Secretary, Department of Homeland Security, filed the
present motion for summary judgment on the ground that the claims were released in a
settlement agreement entered into by the parties on May 8, 2012.12 Defendant alternatively
argues that Paulin failed to timely file this complaint within the 90-day limitations period.13
Paulin responds that his claims are timely and that they represent new claims that were added
“via subsequent amendment” after the settlement agreement was executed.14

6

R. Doc. No. 18-5.
R. Doc. No. 18-2, at ¶ 8.
8
R. Doc. No. 1, at ¶ 1. This Court previously dismissed plaintiff’s non-Title VII claims without
opposition. See R. Doc. No. 15.
9
See R. Doc. No. 1, at ¶¶ 6-9, pp. 3-21.
10
See id. at ¶ 10, pp. 21-24.
11
Id. at ¶ 5.
12
R. Doc. No. 18.
13
Id.
14
R. Doc. No. 21.
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Standard of Law
Summary judgment is proper when, after reviewing the pleadings, the discovery and
disclosure materials on file, and any affidavits, the court determines there is no genuine issue of
material fact. See Fed. R. Civ. P. 56. The party seeking summary judgment always bears the
initial responsibility of informing the court of the basis for its motion and identifying those
portions of the record that it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need
not produce evidence negating the existence of material fact, but need only point out the absence
of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn Co., 780 F.2d 1190, 1195
(5th Cir. 1986).
Once the party seeking summary judgment carries its burden pursuant to Rule 56, the
other party must come forward with specific facts showing that there is a genuine issue of
material fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). The showing of a genuine issue is not satisfied by creating “‘some metaphysical doubt
as to the material facts,’ by ‘conclusory allegations,’ ‘unsubstantiated assertions,’ or by only a
‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations
omitted). Instead, a genuine issue of material fact exists when the “evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment may not
rest upon the pleadings, but must identify specific facts that establish a genuine issue. Id. The
nonmoving party’s evidence, however, “is to be believed, and all justifiable inferences are to be
drawn in [the nonmoving party’s] favor.” Id. at 255; see Hunt v. Cromartie, 526 U.S. 541, 552
(1999).
Discussion
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On May 8, 2012, Paulin settled the discrimination claims he asserted in his first
administrative complaint and released defendant from “any actions, claims, demands, and causes
of action of whatsoever kind and nature against FEMA based on, arising out of, and by reason of
any or all of the actions set forth in [the original complaint]” as well as “any other complaint,
formal or informal, pending as of the date of th[e] Agreement.”15

As stated, the second

administrative complaint underlying the present lawsuit was filed on April 5, 2012 and it was
pending as of the date of the settlement agreement.16
Voluntary settlement of employment discrimination claims binds both parties and is
encouraged by courts. See Jackson v. Windall, 99 F.3d 710, 714 (5th Cir. 1996). “Allowing one
party to renounce an agreement and sue for additional relief would undermine our longstanding
policy of encouraging settlement, thereby creating a disincentive to the amicable resolution of
legal disputes and defeating the purposes of title VII.” Id. As stated above, Paulin’s federal
complaint is based, in large part, on the claims set forth in his second administrative complaint,17
but it also appears to assert “amendments” to his original complaint of discrimination.18 Because
the allegations underlying this lawsuit which relate to events occurring prior to May 8, 2012
were pending at the time the settlement agreement was reached, they were clearly released as
part of the agreement.
Paulin nevertheless argues that “[s]ubsequent to the settlement of the first complaint,
Petitioner amended his second complaint to include allegations not pending at the time of the
settlement, and not decided upon by the Agency at the time the instant suit was filed.”19 Paulin

15

R. Doc. No. 18-5.
R. Doc. No. 18-4.
17
See R. Doc. No. 1, at ¶¶ 6-9, pp. 3-21.
18
See id. at ¶ 10, pp. 21-24.
19
R. Doc. No. 21-1, at ¶ 5.
16

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argues that the claims underlying this lawsuit “were not pending on May 24, 2012, the date of
the agency dismissal. The allegations in the instant complaint are a second, separate complaint
added through amendment after May, 2012.”20
Several major inconsistencies asserted by plaintiff undermine Paulin’s attempt to salvage
this lawsuit. First, and most importantly, nothing in the record supports his argument that he
filed any amendments to his second administrative complaint after the May 8, 2012 settlement.
Second, the Court notes that Paulin described in his federal complaint numerous instances of
alleged misconduct occurring on specific dates in 2009, 2010, and 2011, which were based on
his first and second administrative complaints. These allegations relating to conduct occurring in
previous years are impossible to reconcile with the argument he now raises, namely, that the
lawsuit is actually based on events that occurred after May 24, 2012. In fact, there is only one
allegation of misconduct in the entire complaint that is alleged to have occurred after the
settlement.21 Finally, plaintiff’s federal complaint filed on November 11, 2012 states, “Six
Months, 180 days, have passed without a decision.” However, that could not be true if the
complaint was actually based on events that occurred after May 24, 2012.
The reality is that Paulin’s complaint is based almost entirely on claims which were
pending as of the date of the May 8, 2012 settlement agreement and they were released as part of
the agreement. Paulin’s attempt to reconcile this lawsuit with an unidentified amendment to his
second administrative complaint that was supposedly filed sometime after May 24, 2012 fails to
overcome defendant’s motion for summary judgment.

20

R. Doc. No. 21, at p. 4.
This allegation states that in July 2012, Eddie Williams “[p]laced me on the Direct
Administrative Cost (DAC) team with little and no work, failure is imminent and therefore likely
to be right sized.” R. Doc. No. 1, at ¶ 9.oo.
21

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To the extent that Paulin seeks to vindicate new acts of retaliation that occurred after May
24, 2012, he failed to exhaust his administrative remedies. Title VII requires that plaintiffs
exhaust their administrative remedies before instituting a lawsuit in federal court. “[A] federal
employee otherwise eligible to proceed to district court with [his] Title VII, ADEA, or
Rehabilitation Act employment discrimination claim may only do so ‘[w]ithin 90 days of the
Commission’s final action on appeal,’ or ‘after 180 days from the date of the filing of an appeal
with the Commission if there has been no final decision by the Commission.’” See Atkins v.
Kempthorne, 353 F. App’x 934, 936 (5th Cir. 2009) (citing 29 C.F.R. § 1614.407). “The scope
of a Title VII complaint is limited to the scope of the EEOC investigation which can reasonably
be expected to grow out of the charge of discrimination.” Thomas v. Tex. Dep’t of Criminal
Justice, 220 F.3d 389, 395 (5th Cir. 2000); see also Sanchez v. Standard Brands, Inc., 431 F.2d
455, 466 (5th Cir.1970) (“[I]it is only logical to limit the permissible scope of the civil action to
the scope of the EEOC investigation which can reasonably be expected to grow out of the charge
of discrimination.”).
Paulin filed administrative complaints alleging discrimination and retaliation, but he
admits that his first administrative complaint was settled, and it is clear that his second
administrative complaint was procedurally dismissed as a result of the settlement on May 24,
2012. With respect to any allegations of misconduct occurring after May 24, 2012, “one could
not expect that an EEOC investigation would reasonably grow out of [a] charge [relating to]
events which had not occurred [at the time the investigation was terminated] and for which no
new or amended charge was ever filed.” Foster v. Tex. Health Sys., No. 99-1217, 2002 WL
1461737, at *6 (N.D. Tex. June 30, 2002). Moreover, even if such acts were included in a new
administrative complaint after May 24, 2012, Paulin cannot show that he filed his federal

6

complaint “[w]ithin 90 days of the Commission’s final decision,” or “[a]fter 180 days from the
date of filing an appeal with the Commission if there has been no final decision by the
Commission.” See 29 C.F.R. § 1614.407; Atkins, 353 F. App’x at 936-37. Accordingly,
IT IS ORDERED that defendant’s motion for summary judgment is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s claims of discrimination and/or retaliation
based on events occurring prior to the settlement are DISMISSED WITH PREJUDICE as they
were released in the settlement agreement.
IT IS FURTHER ORDERED that plaintiff’s claims of discrimination and/or retaliation
based on events occurring after the settlement are DISMISSED WITHOUT PREJUDICE for
failure to exhaust administrative remedies.

New Orleans, Louisiana, July 23, 2013.

LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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