Jefferson v. LaHood
Filing
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ORDER granting 11 motion to dismiss case for lack of subject matter jurisdiction. Signed on 2/14/12 by Magistrate Judge John T. Maughmer. (Alexander, Pam) Modified on 2/14/2012 (Alexander, Pam). Modified to reflect copy of order mailed to plaintiff at above address on 2/14/12.
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
Candace A. Jefferson,
Plaintiff,
v.
Ray LaHood, Secretary of the
Department of Transportation,
Defendant.
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Civil Action Number
11-00184-CV-W-JTM
ORDER
Plaintiff Candice Jefferson (“Jefferson”) was employed by the Federal Aviation
Administration (“FAA”) as an Air Traffic Control Specialist from July 28, 2008, until her
termination on October 23, 2008. The FAA cited Jefferson’s failure to successfully complete
“Initial Tower Training” during her probationary period with the FAA. In the termination letter,
the FAA further advised Jefferson:
If you believe this action has been taken in whole or in part on the
basis of discrimination due to race, color, religion, sex, national
origin, disability, age, sexual orientation, or in retaliation for
participation in the EEO process, and you wish to file a complaint
of discrimination, you must contact the Office of Civil Rights
National Intake Unit, at [phone number given], no later than 45
calendar days after the effective date of this action [i.e., October
23, 2008].
On October 2, 2009, nearly a year later, Jefferson had initial contact with an EEO counselor
alleging that her termination was the result of race, color, and sex discrimination. After her
claims were denied administratively, Jefferson filed the present action. Currently pending before
the Court is the FAA’s1 motion to dismiss for failure to timely exhaust administrative remedies
and Jefferson’s motion to amend her pleadings to add a claim of retaliation.
As a necessary condition to pursuing an employment discrimination claim in federal
court, an aggrieved plaintiff must initially exhaust administrative remedies with her employer
(and, possibly, the EEOC). Burkett v. Glickman, 327 F.3d 658, 660 (8th Cir. 2003). For
individuals employed by the federal government, the exhaustion of administrative remedies
includes compliance with the requirements of 29 C.F.R. § 1614.105(a)(1). By its terms, section
1614.105 requires an employee to initiate contact with an EEO counselor within 45 days of the
date of any alleged discriminatory act or personnel action. Id.; Bailey v. United States Postal
Service, 208 F.3d 652, 654 (8th Cir. 2000). Such contact begins the so called “informal”
administrative stage. If informal counseling does not resolve the dispute, then an aggrieved
employee may file a written complaint of discrimination, thus, initiating the “formal”
administrative stage. The informal stage does not require an employee to prepare or file any
written documentation, but may be initiated by merely contacting an EEO counselor on the
telephone.
In this case, there is no dispute that the last possible date that Jefferson alleges
discriminatory action by the FAA is October 23, 2008 (the day her termination became
effective). Nor is there is any dispute between the parties that Jefferson first initiated contact
with an EEO counselor on October 2, 2009, nearly a full year after the date of any alleged
discriminatory act or personnel action. On its face, then, it appears that Jefferson failed to
1
Pursuant to the requirements of Title VII, the properly named defendant is the
Secretary of the Department of Transportation which oversees the FAA.
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exhaust her administrative remedies (exhaustion requires not only application for administrative
remedies, but also timely application). In response, Jefferson argues that she should be excused
from the application of the 45-day requirement for two reasons:
(1)
Jefferson was not aware of the 45-day time
requirement, and
(2)
The FAA prevented Jefferson from timely filing by
instructing her to file for reinstatement.2
Under the facts presented, neither argument excuses Jefferson from the requirements of 29
C.F.R. § 1614.105(a)(1).3
It is now well settled that the time requirements for pursuing federal employment
discrimination claims may be subject to equitable tolling. Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457 (1990). However, it is equally well settled that such
relief should only be “applied sparingly.” National Railroad Passenger Corp. v. Morgan, 536
U.S. 101, 113, 536 S.Ct. 2061, 2072 (2002). Moreover, the relief of equitable tolling is
particularly frowned upon when the failure to file is due to the plaintiff’s inaction as opposed to
active hindrance by an employer.
We have allowed equitable tolling in situations where the claimant
has actively pursued his judicial remedies by filing a defective
pleading during the statutory period, or where the complainant has
been induced or tricked by his adversary's misconduct into
allowing the filing deadline to pass. We have generally been much
2
After her termination, Jefferson was advised by the FAA that she could try to
apply for reinstatement. Jefferson’s reinstatement request was denied on October 21, 2009.
3
To be clear, Jefferson’s arguments fail because of the facts and evidence actually
presented. There is no dispute that both case law and federal regulations permit the 45-day
period to be extended if certain showings are made. See, e.g., 29 C.F.R. § 1614.105(a)(2)
(setting out four circumstances whereby an agency shall extend the 45-day period).
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less forgiving in receiving late filings where the claimant failed to
exercise due diligence in preserving his legal rights.
Irwin, 498 U.S. at 96, 111 S.Ct. at 457-58.
The Court rejects Jefferson’s first claimed basis for equitable tolling – lack of knowledge
of the 45-day time requirement. As the Eighth Circuit has made clear, “equitable tolling is not
available when it is shown that the employee has ‘general knowledge’ of the right not to be
discriminated against or the means of obtaining such knowledge.” Briley v. Carlin, 172 F.3d
567, 570 (8th Cir. 1999). Federal courts have typically found that an employee had adequate
“general knowledge” of EEO time limits where the employer had made efforts reasonably
targeted to inform its employees of the appropriate time limits. See, e.g., Harris v. Gonzales,
488 F.3d 442, 445 (D.C. Cir. 2007) (plaintiff could not claim lack of knowledge where it was
established that the employer had posted EEO posters in the workplace setting forth the
appropriate time limits); McClinton v. Alabama By-Products Corp., 743 F.2d 1483, 1486 (11th
Cir. 1984) (same). Likewise, evidence that an employee was told of the appropriate time limits
as part of job training will defeat a claim of equitable tolling. Bailey, 208 F.3d 654.
In this case, in addition to the termination letter provided to Jefferson (which is in and of
itself sufficient to afford Jefferson general knowledge), the evidence establishes that the FAA
provided training (including segments on the EEO procedures) to Jefferson on July 29, 2008.
The Court concludes that Jefferson had sufficient general knowledge of the right not to be
discriminated against or the means of obtaining such knowledge general knowledge on the
effective date of her termination (October 23, 2008).
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The Court likewise rejects Jefferson’s second claimed basis for equitable tolling – the
FAA’s extension of an opportunity to seek reinstatement prevented Jefferson from timely
pursuing a discrimination claim over her termination. Jefferson offers no explanation for this
argument. She certainly offers no evidence that any FAA official actively encouraged her not to
pursue a discrimination complaint. Moreover, in this case, Jefferson finally initiated her EEO
complaint when she saw a counselor on October 2, 2009. At that time, the FAA had not ruled on
her claim for reinstatement, thus, it is difficult to accept that the premise that the possibility of
reinstatement deterred the initiation of the EEO process. Under these facts, the Court does not
find that equitable tolling is appropriate:
Equitable estoppel applies if a defendant actively prevents a
plaintiff from suing on time; equitable tolling applies if the
plaintiff, despite due diligence, cannot obtain vital information
about the existence of her claim.
Jenkins v. Mabus, 646 F.3d 1023, 1027-28 (8th Cir. 2011).
Inasmuch as Jefferson cannot establish a viable case of equitable tolling (or equitable
estoppel), she cannot establish that she timely exhausted her administrative remedies. This is
fatal to any employment discrimination case, but takes on added significance when the defendant
is a federal employer because, in such cases, “federal courts have historically ‘extended [such]
equitable relief only sparingly’ because it involves a waiver of sovereign immunity.” Jenkins,
646 F.3d at 1028 (quoting, in part, Irwin v. Dep’t of Veterans Affairs, supra, 498 U.S. at 96, 111
at 457).
One final matter needs to be addressed. In her pleadings regarding the FAA’s motion to
dismiss, Jefferson has indicated to the Court that she would like to amend her complaint to add a
count for retaliation based on the FAA’s denial of her application for reinstatement that occurred
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after Jefferson initiated contact with an EEO counselor. The Federal Rules of Civil Procedure
provide that amendments to the pleadings are to be liberally permitted:
A party. . . may amend his pleading only by leave of Court or by
written consent of the adverse party; and leave shall be freely
granted when justice so requires.
FED. R. CIV. P. 15(a). The courts that have analyzed the “justice” language in Rule 15 have
concluded that:
Under this policy, only limited circumstances justify a district
court’s refusal to amend the pleadings: undue delay, bad faith on
the part of the moving party, futility of the amendment or unfair
prejudice to the opposing party.
Sanders v. Clemco Industries, 823 F.2d 214, 216 (8th Cir. 1987). The decision to permit a party
to amend its pleadings is left to the discretion of the district court. Humphreys v. Roche
Biomedical Laboratories, Inc., 990 F.2d 1078, 1081 (8th Cir. 1993). In this case, the Court
concludes that any amendment would be futile.
The alleged retaliation alleged by Jefferson is a “discrete retaliatory act.” National
Railroad Passenger Corp. v. Morgan, supra, 536 U.S. at 111, 122 S.Ct. at 2070. As such, this
claim of retaliation requires independent adherence to the EEO administrative prerequisites, i.e.,
Jefferson must have initiated a separate EEO process within 45 days of the retaliation. In this
case, there is no evidence to suggest that Jefferson has pursued any (timely or not) EEO
complaint regarding the FAA’s alleged retaliation in October of 2009. Under these facts, the
Court believes that permitting an amendment to Jefferson’s complaint would be futile.
Accordingly, it is
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ORDERED that Defendant’s Motion To Dismiss, With Supporting Suggestions, filed
August 8, 2011 [Doc. 11] is GRANTED for lack of subject matter jurisdiction.
/s/ John T. Maughmer
JOHN T. MAUGHMER
U. S. MAGISTRATE JUDGE
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