CARTER v. SOCIAL SECURITY ADMINISTRATION
Filing
17
OPINION fld. Signed by Judge Jose L. Linares on 11/23/15. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN CARTER,
/
Plaintiff,
V.
Civil Action No.: 15-2340 (JLL)
UNITED STATES SOCIAL SECURITY
ADMINISTRATION, and CAROLYN W.
COLVIN. COMMISSIONER,
OPINION
Defendants.
LINARES, District Judge.
This matter comes before the Court by way
of the United States Social Security
Administration (“SSA”) and its Commissione
r (collectively “Defendants”)’s Motion to Dism
iss
John Carter (“Plaintiff’)’s Complaint. (ECF No.
11 (“Mov. Br.”)). The Court has considered the
parties’ submissions and decides this matter
without oral argument pursuant to Rule 78
of the
Federal Rules of Civil Procedure. For the reaso
ns set forth below, the Court grants Defendan
ts’
Motion to Dismiss.
BACKGROUND
Plaintiff was employed by Defendant SSA from
1996 to 2011. (ECF No. 1 (“Compi.”)
¶J
1, 16). In February 2011, Plaintiff suffered a strok
e as a result of high blood pressure and diab
etes,
which left him unable to work without the assis
tance of an electric wheelchair. (Id.
¶f 4, 9). At
the time of his stroke, Plaintiff was sixty-two
years old. (Id. ¶ 14). Defendants’ employee, Patri
cia
McMillan (“McMillan”), approved Plaintiff’s
sick leave, which expired toward the end of June
1
2011. (Id.
¶J 5-6).
At that time, Plaintiff requested advanced sick leave from MeMillan, which
she subsequently denied. (Id.
¶J 7-8,
12). Plaintiff then retired. (Id.
¶ 16).
On September 28, 2011, Plaintiff contacted McMillan and asked to be rehired
as an
annuitant. (Mov. Br. at 2). McMillan advised Plaintiff that she did not have
authority to rehire
annuitants. (Id. at 2-3). In November, McMillian was informed that she
could submit names for
annuitant reemployment for a six-week timespan; however, McMillan did
not submit any names
because she was unaware of any short-term employment opportunities at
the time. (Id.)
On October 31, 2011, Plaintiff requested counseling with the
Equal Employment
Opportunity Commission (“EEOC”), raising the issue of employment
discrimination on account
of disability. (See Moving Br., Ex. 3 at SSA26-41 (“Counseling Report
”)). On December 2, 2012,
Plaintiff signed an EEO Counseling Report which indicated “physical
disability” as the sole issue
raised for counseling and specifically identified the issue for counseling
as Defendants’ failure to
rehire Plaintiff as an annuitant. (Mov. Br. at 3). The EEO counseling
period ended on December
7, 2011, and Plaintiff filed a formal EEOC complaint on December 16,
2011. (Id. at 3-4).
By letter dated February 18, 2012, the EEOC notified Plaintiff
that the Commission had
accepted his complaint, and identified the sole issue for investigation
as: “[w]hether the Agency
subjected you to disparate treatment on the basis of physical disabil
ity (diabetes, high blood pressure,
and complications due to a stroke), when on September 28, 2011,
you were not rehired by the Agency
as an annuitant.” (Id., Ex. 2 at SSAO18-21 (“Notice of Accepted
Claim”)). This letter also advised
Plaintiff of his right to amend his initial complaint throughout
the investigation. (Id. at SSAOI 9).
Relying upon Plaintiff’s EEOC complaint, the resulting EEO investi
gation focused on the issue of
‘An annuitant is a retired employee who has been rehired
by the Agency. See Report, Office of the Inspector
General, A- 13-15-25018, The Social Security Administration
Rehired Annuitants (January 2015).
2
Defendant’s failure to rehire Plaintiff due to “disparate treatment on the
basis of physical disability.”
(Id.).
The investigation terminated on May 24, 2012, and an accompa
nying letter notified
Plaintiff that he could request a hearing before an Administrativ
e Judge. (Mov. Br. at 5-6). On
June 26, 2012, Plaintiff requested such a hearing. (Id. at 6). Plain
tiff then sent a letter to the Social
Security Administration, Office of the General Counsel—
not the Administrative Judge—
requesting to amend his initial EEOC complaint to include
the issue of “forced retirement.” (Id.
at 7). Plaintiff did not move to amend his EEOC complain with
t
the Administrative Judge. (Id.).
The Administrative Judge issued an Order on June 19, 2013, dism
issing Plaintiff’s claim because
no evidence existed as to Defendants’ failure to rehire Plain
tiff due to a physical disability. (Id.)
Plaintiff then retained counsel and appealed the Administrativ
e Judge’s order to the Office
of Federal Operations (“OFO”), arguing, among other things,
that the Administrative Judge failed
to take into account that Plaintiff was discriminated against beca
use he was forced to retire due to
his age and disability. (Id. at 7-8). The OFO affirmed the
Administrative Judge’s Order and did
not address Plaintiff’s forced retirement claim. (Id. at 8).
The OFO informed Plaintiff of his right
to file a civil action within ninety days after receiving their
Order. (Compl.
¶ 8).
Plaintiff filed this action in federal court on April 2, 2015,
in a three-count complaint,
alleging:
(1) discriminatory termination in violation of the Ame
ricans with Disabilities Act
(“ADA”); (2) Defendants’ failure to make reasonable acco
mmodations, in violation of the ADA;
and (3) discriminatory termination in violation of the
Age Discrimination in Employment Act
(“ADEA”). (Compi.). Notably, Plaintiff does not alleg
e the SSA’s failure to rehire him as an
annuitant as the basis for any claims. (See Compl.).
3
Defendants filed the instant Motion to Dismiss on September 18, 2015, allegin
g that
Plaintiff failed to exhaust the administrative remedies, and Plaintiff filed opposi
tion on November
2,2015. (ECF No. 15
(“Opp. Br.”)).
Defendants replied on November 9,2015. (ECF No. 16.)
LEGAL STANDARD
A. Generally
On a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), “[cjourts are
required to accept all well-pleaded allegations in the complaint as
true and to draw all reasonable
inferences in favor of the non-moving party.” Phillips v. Cty. ofAllegheny,
515 F.3d 224, 231 (3d
Cir. 2008). However, “[f]actual allegations must be enough to raise
a right to relief above the
speculative level.” Bell All. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
. Courts are not required
to credit bald assertions or legal conclusions draped in the guise of factual
allegations. See In re
Burlington Coat Factoty Secs. Litig., 114 F.3d 1410, 1429 (3d Cir.
1997). “A pleading that offers
‘labels and conclusions’ or a ‘formulaic recitation of the elements
of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twom
bly, 550 U.S. at 555). Thus, a
complaint will survive a motion to dismiss if it contains “sufficient factual
matter
, accepted as true,
to ‘state a claim to relief that is plausible on its face.” Id. (quotin
g Twombly, 550 U.S. at 570).).
In evaluating a plaintiff’s claim at the motion to dismiss stage,
“courts generally consider
only the allegations contained in the complaint, exhibits attache
d to the complaint and matters of
public record.” Pension Ben. Guar. Corp. v. White Consol. Indus.,
Inc., 998 F.2d 1192, 1196 (3d
Cir. 1993) (citations omitted). Additionally, courts can
properly look beyond the complaint to matters of public record
including court files, records and letters of official actions
or
decisions of government agencies and administrative
bodies,
documents referenced and incorporated in the complaint
and
4
documents referenced in the complaint or essential to a plaintiff’s
claim which are attached to a defendant’s motion.
Green v. Potter, 687 F. Supp. 2d 502, 509 n.5 (D.N.J. 2009) (citation omitted).
Here, Defendants seek dismissal of Plaintiff’s Complaint on the grounds that Plaintiff has
failed to exhaust his administrative remedies. (Mov. Br.). Plaintiff contends that Defendants have
not met their burden of showing that he has failed to exhaust all available administrative remedies.
(Opp. Br. at 5).
B. Exhaustion of Administrative Remedies
Dismissal under Rule 12(b)(6) is particularly appropriate where plaintiffs fail to exhaust
all
administrative remedies available to them prior to filing suit. See Robinson v. Dalton, 107
F.3d
1018, 1020 (3d Cir. 1997) (“It is a basic tenet of administrative law that a plaintiff must exhaust
all required administrative remedies before bringing a claim for judicial relief.”) (citing McKar
t v.
United States, 395 U.S. 185, 193 (1969)).
Failure to exhaust administrative remedies of
employment discrimination claims is an affirmative defense, and “the defendant bears the
burden
of pleading and proving” a plaintiff’s failure to exhaust. Williams v. Runyon, 130 F.3d 568,
573
(3d Cir. 1997).
Federal employees who believe they have been unlawfully discriminated against in
employment are required to exhaust administrative remedies prior to filing a complaint in federal
court. As the Third Circuit has recognized, this exhaustion requirement serves two functions:
First, it puts the employer on notice that a complaint has been lodged against [it) and gives
[it) the opportunity to take remedial action. Second, it gives the EEOC notice ofthe alleged
violation and an opportunity to fulfill its statutory responsibility of seeking to eliminate
any alleged unlawful practice by informal methods of conciliation, conference, and
persuasion.
Bihier v. Singer Co., 710 F.2d 96, 99 (3d Cir. 1983).
5
In order to further these purpose of administrative review, “claims of
discrimination must
be alleged in the administrative complaint,” which “provides notice to the
defendant and defines
the scope of the investigation.” Raffaele v. Potter, No. 2010 WL 81684 *6
7,
(E.D. Pa. Mar. 4,
,
2010) (citing Waiters v. Parsons, 729 F.2d 233 (3d Cir. 1984)). Howev
er, even where a specific
claim is not alleged in the original EEOC complaint, a claimant has ample
opportunity to amend
his complaint throughout the administrative process. 29 C.F.R.
§ 1614.106(d). Specifically, “[a]
complainant may amend a complaint at any time prior to the conclu
sion of the [EEOC]
investigation to include issues or claims like or related to those raised
in the complaint.” Id.
Moreover, a claimant may also “file a motion with the administrativ
e judge to amend a complaint
to include issues or claims like or related to those raised in the complaint.”
Id.
Even where a plaintiff has failed to amend his EEOC complaint
to include additional
grievances, courts have held that the exhaustion requirement is satisfie
d where “the acts in the
subsequent.. suit are fairly within the scope of the prior EEOC compl
aint, or the investigation
.
arising therefrom.” Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996).
In determining the “scope
of the prior EEOC complaint,” the Court should consider whether the
claims alleged therein fairly
encompass the claims alleged in the federal suit. Id. at 1296. If the
new claims can be said to be
encompassed within the claims raised in the underlying EEOC investi
gation, then the purposes of
the exhaustion requirement—namely, “to afford the EEOC the
opportunity to settle disputes
through conference, conciliation, and persuasion, avoiding unnece
ssary action in court”—can be
said to have been met. Id.
ANALYSIS
Defendants argue that this Court should dismiss all of Plaintiff’s
claims because Plaintiff
failed to timely exhaust the administrative remedies available
to him. (Mov. Br. at 13, 14, 16.)
6
Specifically, Defendants contend that Plaintiff has: (1) failed to make
timely allegations to the
EEOC with regards to the claims he raises in the instant Complaint, as require
d
under promulgating
regulations; (2) failed to amend the initial EEOC complaint to include
the allegations under which
he now seeks relief, as permitted under 29 C.F.R.
§ 1614.106(d), and lastly; (3) failed to move for
amendment before the Administrative Judge, which he was permitted
to do under 29 C.F.R.
§
1614.106(d). (Id.).
In response, Plaintiff contends that the EEOC regulations are “malleable”
and argues that
he informally amended his complaint. (Id. at 6-8). Plaintiff states
that he “took multiple steps to
amend his complaint and raised the issue of forced retirement throughout
the procee
dings.” (Opp.
Br. at 5-7). Further, Plaintiff contends that “[t]he fact that the EEO[C
] chooses not to investigate
a claim in light of Plaintiffs amendment before issuing its Final Agenc
y Decision does not
preclude Plaintiff from filing the claim in federal court.” (Opp. Br.
at 10).
This Court considers each phase of the administrative procedure in turn,
and the extent to which
Plaintiffs allegations of forced retirement and failure to accommodat
e were raised during each
phase.
L
Counseling Phase
Section 1614.1 05(a)( 1) of Title 29 of the Code of Federal Regula
tions provides that a
complainant “must initiate contact with a{n EEOCI Counselor within
45 days of the date 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.” Where a plaintiff alleges age discrim
ination under the ADEA, he has
“two alternative routes for pursuing a claim of age discrimination
.” Podobnik v. United States
Postal Service, 409 F.3d 584, 589 (3d Cir. 2005).
administrative procedures as set forth in 29 C.F.R.
7
A plaintiff may choose to invoke the
§ 1614.105(a)(1), or, alternatively, he “must,
within 180 calendar days of the alleged discriminatory act, give the
EEOC at least 30 calendar
days prior notice of his intent to sue before filing the civil action.” Id.
(citing 29 U.S.C.
§ 633a(d)).
Here, Defendants argue that Plaintiff’s claims are time-barred becaus
e he failed to seek
counseling within the requisite time period. (Mov. Br. at 11-16).
Indeed, the Counseling Report
states the sole complaint as: “Denied Request-rehired annuitant”
and the sole redress sought as:
“Rehired as an annuitant or be notified when any availability positio
n is opened.” (See Moving
Br., Ex. 3, SSA26-41 (“Counseling Report”) at SSAO3 1). Plaintiff,
on the other hand, directs this
Court to notes from the Counselor’s initial phone interview, in
which the Counselor details the
events leading up to Plaintiff’s retirement, and indicates that
“Mr. Carter was forced to retire due
to his illness” when he ran out of “Sick Leave/Personal Leave.”
(Opp. Br. at 7, Ex. B (“Initial
Counseling Interview”)). The Counseling Report makes no referen
ce to Plaintiff being denied
reasonable accommodations on account ofhis disability, nor does
it make any reference to Plaintiff
having been discriminated against on account of his age. (See
id.).
II.
EEOC Investigative Phase
Notwithstanding the extent of the claims raised during the counse
ling period, Plaintiff had
the opportunity to amend his EEOC complaint to include claims
“like or related to the accepted
claim” during the course of the EEOC’s subsequent investigation
. 29 C.F.R.
February 18, 2012, the SSA wrote to Plaintiff, notifying him that
the EEOC
§ 1614.106(d). On
accepted his complaint
for investigation into the issue of “[w]hether the Agency subjec
ted [him] to disparate treatment on
the basis of physical disability (diabetes, high blood pressu
re, and complications due to a stroke),
when on September 28, 2011, [he] w[as] not rehired by the
Agency as an annuitant.” (Notice of
Acceptance, at SSAO18). The letter further advised Plainti
ff that: “In accordance with 29 C.F.R.
§ 1614.106(d), you may amend your complaint at any time prior to the conclusion
of the
8
investigation to include claims that are like or related to the accepted claim.”
(Notice of Accepted
Claim, at SSAO19). The Agency informed Plaintiff on the procedure
for amending his
complaint,
stating: “If you would like to amend your complaint, send a written
statement [to the Social
Security Administration, Office of Rights and Equal Opportunity,
Center for Complaints
Processing] that includes the specific incident(s) deemed discriminatory
, date(s) of occurrence,
responsible management official(s)/individual(s), and alleged basis
or bases of discrimination.”
(Id.).
Plaintiff has not presented any evidence that he mailed a written
statement to the SSA
seeking to amend his complaint during the EEOC’s investigation, which
occurred from March 17,
2012 through May 2, 2012. (See Moving Br., Ex. 2 at SSAO3-13
(“Report of Investigation”) at
SSAO3). Plaintiff instead directs the Court to his Affidavit, dated April
29, 2012, in which he
stated that he had “requested advance sick leave from Ms. McMillan but
was denied forcing [him]
to retire” and that he “was not afforded advanced sick leave as afforde
d to others in the office.”
(Opp. Br. at 7, Ex. C (“Affidavit”)). However, in that same Affidavit,
Plaintiff responded “Yes”
to the following question:
Q3:
At issue is the following: Whether the Agency subjected you to dispara
te treatment
on the basis of physical disability (diabetes, high blood pressure, and
complications due to
a stroke), when on September 28, 2011, you were not rehired
by the Agency as an
annuitant. Is this correct?
(Id.) (emphasis added).
Plaintiff also directs this Court to his “Rebuttal Affidavit” execut
ed on April 30, 2012, in
which he suggests that Ms. McMillan wrongfully denied his
request for advanced sick leave,
forcing him to retire. (Opp. Br. at 7, Ex. D (“Rebuttal Affida
vit”)). Plaintiff states that his
“interrogatories in the administrative proceedings further indicate
his belief that he was wrongfully
forced to retire because he was not afforded advanced leave.”
9
(Opp. Br. at 7, Ex. E
(“Interrogatories”)). This Court has reviewed answers to the Interrogatories,
and notes that they
do indicate Plaintiff’s belief that he was forced into retirement because he
was denied advanced
sick leave.
(See id.).
Notably, in response to the interrogatory as to why he sought EEO
Counseling, Plaintiff stated that his oral requests for a wheelchair were
not responded to and that
“[e]rnployees who are incapacitated for duty because of serious illness
or disability may be given
advanced [sic] sick leave for up to 30 days.” (Id.).
On June 15, 2012, the EEOC’s final Investigative Report was filed,
which lists the sole
issue as “[w]hether the Agency subjected Complainant to disparate
treatment on the basis of
physical disability
.
.
.,
when on September 28, 2011, he was not rehired by the Agency as
an
annuitant.” (Report of Investigation, at SSAO47). The Report further
identifies the “Description
of Complaint,” as the “[d]enial of rehire as annuitant,” and indicates
the “[djates of alleged
discrimination” as September 28, 2011 through November 3, 2011.
(Report at SSAO9).
Accordingly, it is clear from the Investigative Report that the EEOC
did not consider Plaintiffs’
statements that he was forced to retire and denied reasonable accom
modations to be an attempt to
expand his claims against Defendants and that the EEOC did not
otherwise investigate those
allegations.
11!.
Administrative Decision Phase
Upon receiving the Investigative Report, Plaintiff sought a hearing
on his claims before an
Administrative Judge (“AJ”). (See Mov. Br., Ex. 3 at 1-5 (“AJ
Opinion”)). Prior to the AJ’s
ruling, Plaintiff had a third opportunity to formally amend his
EEOC compliant to include the
claims at issue by filing a motion with the AJ. 29 C.F.R.
§ 1614.106(d) (“After requesting a
hearing, a complainant may file a motion with the administrative
judge to amend a complaint to
include issues or claims like or related to those raised in the
complaint.”). Plaintiff failed to file
l0
the motion required to amend his EEOC complaint. (See AJ Opin
ion). Instead, by way of letter
dated May 28, 2013, Plaintiff sought permission from the Social
Security Administration’s Office
of the General Counsel, rather than the AJ, to “amend the com
plaint to include the issue of Forced
Retirement.” (Opp. Br. at 7, Ex. F). Thus, neither the failure
to accommodate or forced retirement
claims were brought before the AJ.
On June 19, 2013, without holding a hearing, the AJ
determined sua sponte that the matter was appropriate for sum
mary judgment, and issued an Order
Entering Judgment and Decision in favor of Defendan
ts on Plaintiffs allegation of wrongful
failure to rehire him as an annuitant.
On July 2, 2013, the Social Security Administration issue
d its Final Order, in which it
described the claim solely as Defendants’ failure to rehire Plain
tiff as an annuitant. (Mov. Br., Ex.
4 (“Final Order”). The SSA found the “AJ’s decision factu
ally and legally correct,” and therefore
fully implemented that decision. (Final Order).
On July 30, 2013, acting for the first time through counsel,
Plaintiff appealed the July 2,
2013 Final Order “on the basis that the investigation
failed to consider the issue of forced
retirement and failure to accommodate.” (Opp. Br. at 7, Ex.
F (“Appeal Letter”)). On January 22,
2015, the EEOC’s Office of Federal Operations (“OFO”)
entered an order affirming the July 2,
2013 Final Order. (Mov. Br., Ex. 6 (“Appellate Deci
sion”)). In that Order, the OFO only
considered Plaintiffs claim of failure to rehire as an
amiuitant and did not consider Plaintiffs
allegations of forced retirement or the alleged failu
re to make reasonable accommodations.
(Appellate Decision).
While Plaintiff is correct in noting that Courts have
found a plaintiff exhausted
administrative remedies even without following the
formal amendment procedures, the cases in
which Courts have excused these formal requirements
are unlike the case at bar. (Opp. Br. at 7-
11
11). In Albano v. Schering-Plough Corp., the Ninth Circuit held
that “the requirement that the
specific claim be presented in the EEOC charge does not preclude
establishing a claim in federal
court when the failure to amend the charge to reflect a new claim
is due to the fault of the EEOC.”
812 F.2d 384, 386 (9th Cir. 1990). There, the plaintiff filed a charge
with the EEOC alleging age
discrimination for failure to promote. Id. at 386. Thereafter, Plainti
ff had “no less than fourteen
conversations with the EEOC,” during at least three of which he
informed the EEOC Officer of
his belief that he was constructively terminated. Id. Plaintiff
specifically sought to amend his
EEOC complaint to add a charge of constructive discharge, but
the EEOC denied the plaintiffs
request to amend, assuring plaintiff that his claim of constructive
termination was encompassed in
the original claim. Id. Thus, the Ninth Circuit held that “equitable
considerations may excuse a
claimant’s noncompliance with the scope requirement, and
resulting failure to exhaust
administrative remedies, when the EEOC improperly refuses
to amend the claimant’s timely
EEOC charge.”
Likewise, in Steffen v. Meridian Life Insurance Co., the Court
held that plaintiffs failure
to comply with the EEOC’s formal requirements was excused where
the EEOC expressly told the
plaintiff that “he could file an informal complaint by filling
out an Intake Questionnaire, which
would protect his right to bring an ADEA action.” 859 F.2d
534, 537 (7th Cir. 1988). Finally, in
Ra[jiele v. Potter, the Court found that a plaintiff had exhausted
the administrative remedies as to
his claim of sex discrimination not identified in the origina
l EEOC complaint by making an oral
request to the administrative judge to amend his compla
int to include the allegations of sex
discrimination. No. 09-3622, 2010 WL 816847, at *6 (E.D.
Pa. Mar. 4, 2010).
Unlike the plaintiffs in the aforementioned cases, Plaintiff
here did not make any specific
request to amend his complaint to include claims of failure
to accommodate or forced retirement.
12
While Plaintiff did make references to being forced into retirement and to the denial
of reasonable
accommodations during the investigation, the EEOC did not construe these
references as an
attempt to amend the complaint, nor does it appear to this Court that the EEOC
ever represented
to Plaintiff that his claims of forced retirement and failure to accommodat
e were incorporated in
his original complaint. Indeed, the only formal attempt Plaintiff made to amend
his complaint was
directed to the Social Security Administration’s Office of the General Couns
el rather than to the
Administrative Judge presiding over Plaintiffs claim.
It is worth repeating the purposes of administrative exhaustion: “to promo
te administrative
efficiency, ‘respect[
] executive autonomy by allowing an agency the opportunity to correct its
own errors,’ provide courts with the benefit of an agency’s expertise, and
serve judicial economy
by having the administrative agency compile the factual record.” Robinson,
107 F.3d at 1020
(quoting Heyward v. Cruzan Motors, 792 F.3d 367, 370 (3d Cir. 1986)).
Given Plaintiffs failure
to provide the EEOC or Administrative Judge with any express reques
t to amend his claims,
whether that request be made orally or in writing, it would be imprudent
for this Court to hear
Plaintiffs claims in light of the well-founded purposes of administrative exhaus
tion. Accordingly,
Plaintiffs complaint must be dismissed.
CONCLUSION
For the foregoing reasons, the Court grants Defendants’ Motion to Dismis
s. An appropriate
Order accompanies this Opinion.
DATED: November3 2015
LINARES
13
UNITED STATES DISTRICT JUDGE
14
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