GILLYARD v. GEITHNER

Filing 10

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 6/5/12. 6/6/12 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALVIN J. GILLYARD,
Plaintiff,
v.
TIMOTHY F. GEITHNER, Secretary
of the United States Department
of the Treasury,
Defendant.

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CIVIL ACTION
NO. 12-125-ER

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

I.

JUNE 5, 2012

INTRODUCTION
Plaintiff Alvin J. Gillyard (“Plaintiff”) brings this

action under Title VII of the Civil Rights Act of 1964 alleging
race discrimination against Defendant Timothy F. Geithner,
Secretary of the U.S. Department of the Treasury (“Defendant”).
Plaintiff avers that as an employee of the United States Mint
located in Philadelphia, Pennsylvania, Defendant engaged in racebased discrimination against him by terminating Plaintiff during
a reduction in force and also by failing to hire Plaintiff back
for several positions for which he qualified.

In his Complaint,

Plaintiff pleads two counts: (1) violation of Title VII for race
discrimination; and (2) violation of Title VII for raced-based
retaliation.

Defendant responded with a Motion to Dismiss

Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to exhaust administrative remedies.
For the reasons that follow, the Court will grant
Defendant’s Motion and dismiss Plaintiff’s Complaint without
prejudice.

II.

BACKGROUND1
Plaintiff, who is African-American, is a former United

States Mint employee having begun his employment on November 16,
1998, as a Material Expediter in Philadelphia, Pennsylvania.
Pl.’s Compl. ¶ 8, ECF No. 1.

Plaintiff avers Defendant

terminated him in January 2002 as part of a reduction in force
(“RIF”).

Id. ¶ 9.

Defendant recalled Plaintiff in March 2004 to

a temporary two-year appointment.

Id. ¶ 10.

Upon his return,

Plaintiff learned he had had “bumping rights” over two Caucasian
Material Expediters at the time of the RIF — that is, Plaintiff
had seniority over those two employees, and Defendant should not
have terminated Plaintiff.

Id. ¶ 11.

After discovering this

information, Plaintiff complained to Adrian Crosby, Defendant’s
Equal Employment Opportunity (“EEO”) counselor, about this
alleged discriminatory treatment.

Id. ¶ 13.

Plaintiff avers

1

In accordance with the appropriate standard of review,
see infra Part III, the Court takes the facts in this section
from Plaintiff’s Complaint and assumes their truth.
2

that Crosby looked into his complaint, but did not file a formal
EEO complaint on Plaintiff’s behalf.

Id.

Crosby did not contact

Plaintiff about his complaint or have any further communication
apprising Plaintiff of his rights.
In 2007, Plaintiff obtained a Heat Treater position
with Defendant.

Id. ¶ 15.

This was a temporary position, and

although Plaintiff applied for other permanent positions, his
efforts were unavailing.

Id. ¶ 15.

After Defendant denied one

of Plaintiff’s applications for a permanent position, Plaintiff
and about seven other African-American employees filed a
complaint of race discrimination with Defendant’s Office of
Special Counsel-Merit Protection Board.
the spokesperson for this group.
dismissed the group complaint.

Id.

Id. ¶ 16.

Plaintiff was

In January 2008, Defendant

Id. ¶ 18.

Thereafter, Plaintiff

applied for a job with Defendant in Denver, Colorado.

Id. ¶ 19.

Defendant offered Plaintiff the job, but then withdrew this offer
because Plaintiff had not registered for selective service.

Id.

In March 2008, Defendant laid off Plaintiff from his temporary
Heat Treater position.

Id. ¶ 22.

Plaintiff then applied for four jobs with Defendant,
but to no avail: (1) on April 15, 2008, Defendant rejected
Plaintiff’s application for the position of Material Handler
Operator; (2) on December 22, 2008, Defendant rejected
Plaintiff’s application for the position of Metal Forming Machine
3

Operator; (3) on January 7, 2009, Defendant rejected Plaintiff’s
application for the position of Coining/Weighing/Kuster Machine
Operator; and (4) on November 16, 2010, Defendant rejected
Plaintiff’s application for the position of Metal Forming Machine
Operator.

Id. ¶¶ 23-25.

Plaintiff avers that Defendant’s

refusal to hire him was retaliation for his previous allegations
of discrimination.
On February 19, 2009, Plaintiff filed a complaint of
discrimination with the Department of the Treasury based on
Defendant’s rejection of Plaintiff’s applications for Material
Handler Operator, Metal Forming Machine Operator, and
Coining/Weighing/Kuster Machine Operator.
hearing.

Plaintiff requested a

This hearing was held before Administrative Law Judge

(“ALJ”) Jeanne M. L. Player on December 28, 2009.

On October 3,

2011, ALJ Player issued her decision granting Defendant summary
judgment and finding no discriminatory retaliation.

Within her

opinion, ALJ Player indicated that Plaintiff moved to amend his
complaint to include Defendant’s rejection of the Metal Forming
Machine Operator position.

ALJ Player denied Plaintiff’s motion,

but directed Defendant as follows: “[U]pon receipt of [the
decision], the agency should process this claim and a new claim
according to the applicable regulations, providing notice to the
complainant of the information he must provide for the formal
complaint and investigation.”

Decision Granting Summ. J.
4

Pursuant to 29 CFR § 1614.109(g) 3, Def.’s Mot. to Dismiss Ex. 3,
ECF No. 3.

On March 13, 2011, the Department of the Treasury

issued a final order implementing ALJ Player’s decision and
advised Plaintiff of his right to appeal to the EEO Commission or
file a civil complaint in a United States District Court.2

See

Dep’t of the Treasury Final Order, Def.’s Mot. to Dismiss Ex. 4.

On November 17, 2011, Plaintiff appealed ALJ Player’s
decision.

On January 11, 2012, Plaintiff filed the instant

lawsuit and withdrew his administrative appeal.

See ECF No. 1.

In his Complaint, Plaintiff claims that Defendant discriminated
against him on the basis of race when terminating Plaintiff
during the RIF.

Pl.’s Compl. ¶¶ 26-28.

Plaintiff also claims

that Defendant retaliated against him on the basis of race by
rejecting Plaintiff’s applications for various positions for
which he qualified.

Id. ¶¶ 29-31.

Defendant filed a motion to

dismiss arguing that Plaintiff failed to exhaust his
administrative remedies for both of his claims.

ECF No. 3.

2

This final order did not discuss or list Defendant’s
November 16, 2010, rejection of Plaintiff’s application for the
Metal Forming Machine Operator position. See Dep’t of the
Treasury Final Order, Def.’s Mot. to Dismiss Ex. 4, ECF No. 3.
The Court is not aware of any other administrative action with
respect to Defendant’s rejection of Plaintiff’s application for
the Metal Forming Machine Operator position.
5

Plaintiff responded in opposition.
oral argument.

ECF No. 6.

The Court held

The motion is now ripe for disposition.

III. STANDARD OF REVIEW
A party may move to dismiss a complaint for failure to
state a claim upon which relief can be granted.
12(b)(6).

Fed. R. Civ. P.

When considering such a motion, the Court must “accept

as true all allegations in the complaint and all reasonable
inferences that can be drawn therefrom, and view them in the
light most favorable to the non-moving party.”

DeBenedictis v.

Merrill Lynch & Co., Inc., 492 F.3d 209, 215 (3d Cir. 2007)
(internal quotation marks removed).

To withstand a motion to

dismiss, the complaint’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level.”
Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell Atl.

This “requires more

than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”

Id.

Although a

plaintiff is entitled to all reasonable inferences from the facts
alleged, a plaintiff’s legal conclusions are not entitled to
deference and the Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.”

Papasan v. Allain,

478 U.S. 265, 286 (1986).
The pleadings must contain sufficient factual
allegations so as to state a facially plausible claim for relief.
6

See, e.g., Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d
187, 190 (3d Cir. 2009).

“‘A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.’”
U.S. 662, 678 (2009)).

Id. (quoting Ashcroft v. Iqbal, 556

In deciding a Rule 12(b)(6) motion, the

Court is to limit its inquiry to the facts alleged in the
complaint and its attachments, matters of public record, and
undisputedly authentic documents if the complainant’s claims are
based upon these documents.3

See Jordan v. Fox, Rothschild,

O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192,
1196 (3d Cir. 1993).

IV.

DISCUSSION
Title VII requires all plaintiffs to first exhaust

their administrative remedies before bringing suit in federal
court.

See Freed v. Consol. Rail Corp., 201 F.3d 188, 191 (3d

3

In this case, Defendant puts forth several
administrative documents for the Court to consider. Plaintiff
does not dispute the authenticity of such documents and Plaintiff
bases his claims, in part, on such documents because he avers
that he timely exhausted his administrative remedies. See Pl.’s
Compl. ¶ 5. Therefore, the Court will consider these documents
in deciding Defendant’s Motion to Dismiss. See Ruddy v. U.S.
Postal Serv., 455 F. App’x 279, 283 (3d Cir. 2011)
7

Cir. 2000).

Defendant argues that Plaintiff failed to exhaust

his administrative remedies for both his claims — discrimination
during the 2002 RIF and retaliation.

The Court addresses each

claim in turn.

A.

Dismissal of Count One – Discrimination During RIF
Defendant argues that Plaintiff failed to bring a

charge of discrimination based upon the 2002 RIF within fortyfive days of Plaintiff’s termination as required by 29 C.F.R. §
1614.105(a)(1).4

In particular, Defendant argues that Plaintiff

knew that Defendant terminated him in January 2002, but did not
contact his EEO counselor until 2004.

And because Plaintiff knew

of his “injury” of termination in 2002, but Plaintiff did not
complain to the EEO counselor until 2004, Plaintiff missed the
forty-five day deadline under § 1614.105(a)(1).
4

This regulation provides:
(a) Aggrieved persons who believe they have been
discriminated against on the basis of race, color,
religion, sex, national origin, age, disability, or
genetic information must consult a Counselor prior to
filing a complaint in order to try to informally resolve
the matter.
(1) An aggrieved person must initiate contact
a Counselor within 45 days of the date of
matter alleged to be discriminatory or, in the
of personnel action, within 45 days of
effective date of the action.

with
the
case
the

Pre-complaint Processing, 29 C.F.R. § 1614.105(a)(1) (2012).
8

It is true that in order for Plaintiff, as a federal
employee, to exhaust his administrative remedies he must have,
inter alia, contacted an EEO counselor within forty-five days of
the alleged discriminatory action before filing a complaint.

See

Pre-complaint Processing, 29 C.F.R. § 1614.105(a)(1) (2012).

And

it is undisputed that Plaintiff did not contact his EEO counselor
forty-five days after Defendant terminated him in 2002.
Plaintiff may, however, have this forty-five day time
limit tolled.

Pertinent here, § 1614.105(a)(2) provides:

The agency or the Commission shall extend the 45–day
time limit in paragraph (a)(1) of this section when
the
individual shows that he or she was not
notified of the
time limits and was not otherwise aware of them, that he or
she did not know and
reasonably should not have been
known that the
d i s c r i m i n a t o r y matt e r o r p e r s o n n e l
action occurred,
that despite due diligence he or she was
prevented
by circumstances beyond his or her control
from
contacting the counselor within the time limits,
or
for other reasons considered sufficient by the agency
or the Commission.
Id. § 1614.105(a)(2).

In accordance with this tolling

regulation, Plaintiff argues that he did not know that when
Defendant terminated him in 2002 he had “bumping rights” over two
Caucasian employees, or that Defendant should have terminated one
of those Caucasian employees during the 2002 RIF.

Therefore, he

did not know and could not have known about the alleged
discrimination in 2002.

9

Plaintiff’s Complaint contains the following averments
with respect to the 2002 RIF and his subsequent discovery that he
had “bumping rights” over two Caucasian employees:
9.

In or about January 2002, Plaintiff was subjected
to Reduction in Force (RIF).

10.

In or about March 2004, Defendant recalled
Plaintiff and placed Plaintiff in a temporary
position, 2-year appointment.

11.

Upon Plaintiff’s return, Plaintiff discovered that
Plaintiff should not have been RIFed because
Plaintiff had bumping rights over two Caucasian
Material Expediters, Kenny Allen and Crawford, who
had less seniority than Plaintiff, but Defendant
failed to advise Plaintiff of his bumping rights
over these two Caucasian comparators.

Pl.’s Compl. ¶¶ 9-11.

The standard under § 1614.105(a)(2) is

whether Plaintiff “did not know and reasonably should not have []
known that the discriminatory matter or personnel action
occurred.”

29 C.F.R. § 1614.105(a)(2) (emphasis added).

Plaintiff’s Complaint fails to plead any facts to allow the Court
to plausibly infer that he reasonably should not have known of
the discriminatory termination.

Plaintiff does not allege that

he attempted to find out why Defendant terminated him in 2002,
such as an investigation about whether he had some kind of
seniority over other workers that Defendant did not terminate.
See Miller v. Hersman, 594 F.3d 8, 12 (D.C. Cir. 2010) (“[T]o
toll the 45–day limitation period under regulation
1614.105(a)(2), the plaintiff has a responsibility, when

10

possible, to further investigate a personnel action in order to
determine whether the action was discriminatory.”); Caprio v.
Peters, 345 F. App’x 824, 827-28 (3d Cir. 2009) (holding that
plaintiff must demonstrate lack of awareness as to defendant’s
motivation for termination was reasonable).

Plaintiff simply

provides no facts for the Court to consider, let alone conclude,
that Plaintiff met the forty-five day tolling standard under §
1614.105(a)(2).5

5

Even assuming Plaintiff satisfies the forty-five day
tolling standard under § 1614.105(a)(2), after contacting his EEO
counselor in 2004 Plaintiff took no action to protect his rights
until, at the earliest, 2008. The length of time from the
alleged discrimination to the filing of the Complaint troubles
the Court and brings to bear the equitable doctrine of laches.
See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 121-22
(2002) (stating employers may raise laches defense in employment
discrimination cases); see also Brzozowski v. Corr. Physician
Servs., Inc., 360 F.3d 173, 181 (3d Cir. 2004) (same). “This
defense requires proof of (1) lack of diligence by the party
against whom the defense is asserted, and (2) prejudice to the
party asserting the defense.” Nat’l R.R. Passenger, 536 U.S. at
121-22 (internal quotation marks omitted). Defendant argued that
Plaintiff’s conduct in this case meets at least the first prong
of this defense at oral argument. See Mot. to Dismiss Hr’g Tr.
10:1-6, May 15, 2012 (“[A]t some point our position is that if
he, in fact, did go to a counselor as he says, and says I have
been the victim of discrimination, file a complaint and nothing
ever happens, then he has a duty to pursue and prosecute the
claim that he believes he has.”). Yet, Defendant failed to
articulate any prejudice from Plaintiff’s inaction. The Court
declines to consider this defense at this time, however, as it is
premature to do so. Plaintiff must first provide enough facts to
plausibly show he is entitled to the forty-five day tolling under
§ 1614.105(a)(2).
11

Accordingly, the Court will dismiss Count One without
prejudice.

Plaintiff is granted leave to file an amended

complaint in order to provide sufficient facts for the Court to
plausibly infer he exhausted his administrative remedies.

B.

Dismissal of Count Two – Retaliation
Defendant argues that Plaintiff’s claim for retaliation

must also be dismissed for failure to exhaust administrative
remedies.

Specifically, Defendant argues that Plaintiff did not

wait until his administrative appeal was final before filing the
instant lawsuit.

Thus, there was no final adjudication regarding

Count Two, and the Court must dismiss this count as prematurely
filed because Plaintiff did not wait 180 days after filing his
appeal to file this civil action.
Title 29 C.F.R. § 1614.407 provides the time limits for
an employee alleging discrimination under Title VII, the Age
Discrimination in Employment Act (“ADEA”), and the Rehabilitation
Act to file a civil action.

Specifically, it provides:

A complainant who has filed an individual complaint, an
agent who has filed a class complaint or a
claimant who has filed a claim for individual relief
pursuant to a class complaint is authorized under title
VII, the ADEA and the
Rehabilitation Act to file a
civil action in an appropriate United States District
Court:
(a) Within 90 days of receipt of the final action on
an individual or class complaint if no appeal has been
filed;
12

(b) After 180 days from the date of filing an
individual or class complaint if an appeal has not
been filed and final action has not been taken;
(c) Within 90 days of receipt
final decision on an appeal; or

of

the

Commission’s

(d) After 180 days from the date of filing an appeal
with the Commission if there has been no final decision
by the Commission.
Civil Action: Title VII, Age Discrimination in Employment Act and
Rehabilitation Act, 29 C.F.R. § 1614.407 (2012).

Plaintiff

argues that the agency issued its final decision on October 13,
2011.

Although Plaintiff filed an appeal on November 17, 2011,

he withdrew this appeal and filed suit on January 11, 2012.
Thus, Plaintiff argues that the final decision on October 13,
2011, was the final administrative action because Plaintiff
withdrew his appeal.

And, as Plaintiff filed his complaint

within ninety days of the October 13, 2011, “final decision,” he
complied with § 1614.407.

Therefore, he exhausted his

administrative remedies.
Plaintiff is incorrect.

The ninety-day deadline is for

when “no appeal has been filed” or when the Commission issues a
final decision on the appeal.

Id. §§ 1614.407(a), (c).

The only

regulation that discusses a pending appeal is subsection (d).
This subsection allows a plaintiff to file a civil complaint 180
days after filing an appeal if that appeal is still pending on
the 180th day.

Id. § 1614.407(d).

13

Nowhere in the regulation

does it permit Plaintiff to withdraw his appeal and then proceed
under subsection (a) or (c) without some final action from the
Commission.
Plaintiff argues that there is no statute or regulation
that prevents him from withdrawing his appeal and then filing
suit.

There is no need for such a statute or regulation because

§ 1614.407 is clear that once an appeal is filed, regardless of
whether Plaintiff withdraws his appeal or not, Plaintiff must
wait at least 180 days after filing if there has been no final
action from the Commission.

Indeed, while the Third Circuit has

not spoken on the issue, other courts hold that a plaintiff may
not withdraw his appeal and proceed to file a civil action in an
attempt to bypass administrative deadlines.

See, e.g., Morris v.

Jackson, No. 11-701, --- F. Supp. 2d ----, 2012 WL 362042, at *4
(D.D.C. Feb. 6, 2012) (holding that “[a] voluntary dismissal
cannot be used to circumvent the requirement of exhaustion”);
Noisette v. Geithner, 693 F. Supp. 2d 60, 69 (D.D.C. 2010)
(rejecting argument that withdrawing appeal allows plaintiff to
file civil suit without waiting 180 days or until disposition of
appeal).

The Court agrees.

To allow Plaintiff to withdraw his

appeal and file a civil complaint outside of the specified time
limits of § 1614.407 would undermine the administrative process.
Moreover, Plaintiff’s citation to 29 C.F.R. § 1614.409
in support of his argument is equally unavailing.
14

That

regulation provides, “Filing a civil action under § 1614.408 or §
1614.409 shall terminate Commission processing of the appeal.

If

private suit is filed subsequent to the filing of an appeal, the
parties are requested to notify the Commission in writing.”6
Effect of Filing a Civil Action, 29 C.F.R. § 1614.409 (2012).
Plaintiff is incorrect that this regulation provides textual
support for his argument that the filing of his suit here was not
premature.

While the filing of an action under § 1614.409 may

terminate the Commission processing of an appeal, it is still not
a final action for purposes of exhaustion.

Title 29 C.F.R. §

1614.405(a) provides, “The Office of Federal Operations, on
behalf of the Commission, shall issue a written decision setting
forth its reasons for the decision.

The Commission shall dismiss

appeals in accordance with §§ 1614.107, 1614.403(c) and

6

The regulations were restyled in 1999, and this
restyling renumbered the current § 1614.408 as § 1614.407. See
Fed. Sector Equal Employ’t Opportunity, 64 Fed. Reg. 37644-01,
37659 (July 12, 1999) (to be codified at 29 C.F.R. §§ 1614.407409). Section 1614.410 was renumbered as § 1614.409. The
references within current § 1614.409 to § 1614.408 and § 1614.409
were not changed, however, to reflect the renumbering.
Therefore, it is understood that the current § 1614.409 actually
refers to the filing of complaints under § 1614.407 and §
1614.408, not § 1614.408 and § 1614.409, as terminating the
processing of an appeal. See Lunday v. Kempthorn, No. 07-00084,
2010 WL 3521729, at *4 n.1 (D.N.D. Sept. 2, 2010) (citing Smith
v. Potter, 445 F.3d 1000, 1004 (7th Cir. 2006)).
15

1614.410.”7
(2012).

Decisions on Appeals, 29 C.F.R. § 1614.405(a)

Moreover, “[a] decision issued under [§ 1614.405(a)] is

final within the meaning of § 1614.407 unless the Commission
reconsiders the case.”

Id. § 1614.405(b).

Therefore, the

Commission must formally dismiss an appeal before there is a
final action so a plaintiff may proceed to file suit within
ninety days after that final action pursuant to § 1614.407(a).
Accordingly, the action does not become final without this formal
dismissal, and a plaintiff may not circumvent the 180-day
moratorium on filing a civil action without first waiting for
this formal dismissal.
In this case, the Commission did not dismiss
Plaintiff’s appeal in writing until March 30, 2012.

Therefore,

the clock began to run on Plaintiff’s ninety-day time limit to
file an action on March 30, 2012.

Plaintiff’s filing of a

complaint on January 11, 2012, before this final decision, is
governed by § 1614.407(d).

Under that subsection, Plaintiff’s

filing is premature because he filed his appeal on November 17,
2011, and he had to wait until May 15, 2012 — 180 days after
filing his appeal — before filing suit.

Therefore, the Court

will dismiss Count Two without prejudice as Plaintiff filed the

7

Again, due to the renumbering, reference here to 29
C.F.R. § 1614.410 is in actuality a reference to § 1614.409.
16

instant suit prematurely.

As the March 30, 2012, administrative

action was the final administrative action in this case, see 29
C.F.R. § 1614.405(b), Plaintiff has until June 28, 2012, to file
a civil action.

See 29 C.F.R. § 1614.407(c).

Plaintiff is

granted leave to file an amended complaint within the ninety-day
time limit under § 1614.407(c).

V.

CONCLUSION
For the reasons above, the Court will grant Defendant’s

Motion to Dismiss.

Plaintiff is granted to leave to file an

amended complaint consistent with this Memorandum Opinion.
appropriate order will follow.

17

An