Flores v. United States of America

Filing 49

OPINION AND ORDER. GRANTED 35 MOTION to Dismiss/Lack of Jurisdiction. The instant case is DISMISSED with prejudice. Signed by Judge Salvador E Casellas on 3/17/2009.(LB)

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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO Y O M A R A FLORES Plaintiff, v. U N IT E D STATES OF AMERICA et al Defendant CIVIL NO. 07-1152 (SEC)

O P I N I O N AND ORDER O n August 15, 2008, the United States of America filed a motion to dismiss (" D e f e n d a n t" ). Docket # 35. Plaintiff Yomara Flores ("Plaintiff") opposed (Docket # 37) and D e f e n d a n t replied (Docket # 39). After reviewing the filings and the applicable law, D e f e n d a n t's motion to dismiss is GRANTED. F a c tu a l Background P la in tif f filed suit against Defendant under Title VII of the Civil Rights Act of 1964, 42 U .S .C . § 2000 et seq., the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e (k), A rtic le s 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31 § 5141 & 5142 (2 0 0 7 ), the Commonwealth's Constitution and several state laws,1 arguing that she suffered d is c rim in a tio n due to her pregnancy. Plaintiff seeks indemnization for Defendant's alleged d is c rim in a to ry actions, including actual and liquidated damages, back and front pay, personal p a in and suffering, costs, and attorney's fees. A c c o rd in g to the complaint, Plaintiff was a Food Inspector for the United States D e p a rtm e n t of Agriculture from July 11, 2004 to July 30, 2005. On September 2004, she b e c a m e aware that she was pregnant, and notified her employer about her condition. Plaintiff

Plaintiff filed a complaint on February 23, 2007. Docket # 1. An Amended Complaint was filed on March 22, 2007 (Docket #4), and a second amended complaint was filed on June 2, 2007 (Docket # 6).

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c la im s that, thereafter, she was subjected to discrimination and harassment because of her 3 p re g n a n c y until her constructive discharge on July 31, 2005. Specifically, Plaintiff alleges that 4 D e f e n d a n t would make fun of her, calling her "la preñaita", that they would complain about 5 h e r performance, stating that Plaintiff was tired all the time and telling her that she wasn't better 6 th a n anyone else because of her pregnancy, that she was forced to abstain from going to the 7 b a th ro o m , that she was forced to be on her feet or sitting down for long periods of time, that she 8 w a s exposed to dangerous substances, that she was forced to work overtime and on Sundays, 9 a n d that she was not granted reasonable accommodation pursuant to her doctor's orders. As to 10 th e latter, Plaintiff avers that on March 3, 2005, "her supervisors informed her she could not 11 k e e p her job with the restrictions imposed by the doctor and asked plaintiff to have the doctor 12 iss u e another medical certificate lifting the restrictions." Docket # 4 at 5. Pursuant to the 13 a f o re m e n tio n e d events, on March 18, 2005, Plaintiff contacted the U.S. Department of 14 A g ric u ltu re 's ("USDA") Civil Rights Division and reported the alleged discrimination. 15 T h e re a f te r, Plaintiff left for maternity leave. She alleges that upon returning from maternity 16 le a v e , the discriminatory actions continued, she was criticized for her work performance, and 17 s h e was retaliated against because of filing a pre-complaint process at the agency's Civil Rights 18 D iv isio n . Due to her work situation, Plaintiff resigned on July 31, 2005. 19 On August 15, 2008, Defendant filed the instant motion, arguing that Plaintiff failed to 20 e x h a u s t administrative remedies, specifically, that she did not consult an Equal Employment 21 O p p o rtu n ity Counselor ("EEO Counselor") within the statutory 45 days following the alleged 22 d is c rim in a to ry action. Based on the foregoing, Defendant requests the dismissal of the case for 23 la c k of subject-matter jurisdiction. 24 d is c rim in a to ry action occurred on March 5, 2005, and the counseling process with the EEO 25 C o u n s e lo r began on March 29, 2005, therefore, she did comply with the 45 day period. 26 In opposition, Plaintiff contends that the alleged

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3 F e d . R. Civ. P. 12(b)(1) 4 R u le 12(b)(1) is the proper vehicle for challenging a court's subject matter jurisdiction. 5 Valentín v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1 st Cir. 2001). Under this rule, a wide 6 v a rie ty of challenges to the Court's subject matter jurisdiction may be asserted, among them 7 th o s e based on sovereign immunity, ripeness, mootness, and the existence of a federal question. 8 Id. (citations omitted); see also Hernández-Santiago v. Ecolab, Inc., 397 F.3d 30, 33 (1 st Cir. 9 2 0 0 5 ) (discussing application of Rule 12(b)(1) challenge in cases where the court allegedly has 10 d iv e rs ity jurisdiction). A Rule 12(b)(1) motion may also be based on the plaintiff's failure to 11 e x h a u s t administrative remedies that are a prerequisite to the suit. United States v. Lahey Clinic 12 H o s p ., Inc., 399 F.3d 1, 8 fn.6 (1st Cir. 2005). Justiciability is a component of a court's subject 13 m a tte r jurisdiction, and, as such, must be reviewed following Rule 12(b)(1)'s standards. 14 S u m ito m o v. Quantum, 434 F. Supp. 2d 93 (D.P.R. 2006). A court faced with a Rule 12(b)(1) 15 m o tio n should give it preference. Dynamic Image Technologies, Inc. v. U.S., 221 F. 3d 34, 37 16 (1st Cir. 2000). 17 A plaintiff faced with a motion to dismiss for lack of subject matter jurisdiction has the 18 b u rd e n to demonstrate that such jurisdiction exists. See Lord v. Casco Bay Weekly, Inc., 789 19 F . Supp. 32, 33 (D. Me. 1992); see also SURCCO V. PRASA, 157 F. Supp. 2d 160, 163 (D. 20 P .R . 2001). In this context, a court is empowered to resolve factual disputes by making 21 re f e re n c e to evidence in the record, beyond the plaintiff's allegations, without having to convert 22 th e motion to dismiss into one for summary judgment. Id. Moreover, "[w]here a party 23 c h a lle n g e s the accuracy of the pleaded jurisdictional facts, the court may conduct a broad 24 in q u iry, taking evidence and making findings of fact." Hernández-Santiago v. Ecolab, Inc., 397 25 F . 3d 30 (1st Cir. 2005). Therefore, the court may consider extrinsic materials, "and, to the 26

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e x te n t it engages in jurisdictional fact-finding, is free to test the truthfulness of the plaintiff's 3 a lle g a tio n s ." Dynamic, 221 F. 3d at 38. That is, the principle of conversion of a motion to 4 d is m is s into a motion for summary judgment when extrinsic materials are reviewed, does not 5 a p p ly in regards to a motion to dismiss for lack of subject matter jurisdiction. Id. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Applicable Law and Analysis T itle VII provides a "vehicle through which an individual may seek recovery for e m p lo ym e n t discrimination on the grounds of race, color, religion, gender, or national origin." F ra n c e s c h i v. United States VA, 514 F.3d 81, 85 (1st Cir. 2008). Specifically, Title VII p ro h ib its an employer from discharging an individual, or otherwise discriminating against an in d iv id u a l, because of such individual's sex. 42 U.S.C. § 2000e-2(a). The term "because of sex" is defined as including "because of pregnancy." Gorski v. N.H. Dept. of Corrections, 290 F.3d 4 6 6 , 471 (1 st Cir. 2002). N e v e rth e le s s , "[j]udicial recourse under Title VII . . . is not a remedy of first resort." F ra n c e s c h i, 514 F.3d at 85 (citing Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005)). Before a n employee may sue in federal court under Title VII, she must first exhaust administrative re m e d ie s . Id.; see also Rios v. Rumsfeld, 323 F. Supp. 2d 267, 272 (D.P.R.2004); M o ra le s -V a lle lla n e s v. Potter, 339 F.3d 9, 18 (1st Cir. 2003); Love v. Pullman Co., 404 U.S. 5 2 2 , 523 (1972). The exhaustion requirement provides "the employer with prompt notice of the c la im ," and "create(s) an opportunity for early conciliation." Rios v. Rumsfeld, 323 F. Supp. 2 d 267, 272 (D.P.R. 2004) (citing Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996). T h e re a f te r, the civil complaint's scope must be limited by the charge filed with the EEOC (or a p p ro p ria te administrative agency), and the investigation which can reasonably be expected to re s u lt from that filing. Powers v. Grinnell Corp., 915 F.2d 34, 38 (1st Cir. 1990).

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P u rs u a n t to 42 U.S.C.A. § 2000e-5(e)(1), a Title VII plaintiff must exhaust the 3 a d m in is tra tiv e remedies available to him within the 180 days following the conduct complained 4 o f , or within 300 days, if the person aggrieved initially started proceedings with a local agency 5 w ith authority to grant or seek relief from such practice. 42 U.S.C. § 2000e-5(e); see also 6 R iv e ra -H u e r t a s v. Puerto Rico, 212 Fed. Appx. 1, 3 (1st Cir. 2006); Chico-Vélez v. Roche 7 P ro d u c ts , Inc., 139 F.3d 56, 58 (1st Cir. 1998); Bonilla v. Muebles J.J. Alvarez, 194 F. 3d 275, 8 2 7 8 (1st Cir. 1999). Since Puerto Rico is a so-called "deferral" jurisdiction, for employees in 9 P u e rto Rico, all administrative remedies must be exhausted within 300 days of the alleged 10 u n la w f u l employment practice. Frederique-Alexandre v. Dep't of Natural & Envtl. Res., 478 11 F .3 d 433, 437 (1st Cir. 2007). 12 T itle VII' Section 2000e-16 governs the remedies available to federal employees who 13 a lle g e discrimination. Subsection (a) provides that "all personnel actions affecting employees 14 o r applicants for [federal] employment ... shall be made free from any discrimination based on 15 ra c e , color, religion, sex, or national origin." Id. Subsection (b) grants the EEOC the authority 16 to enforce Subsection (a), and provides the commission with the authority to issue rules, 17 re g u la tio n s and orders to carry out its responsibilities. Id. Therefore, the EEOC "was assigned 18 th e responsibility of establishing the mechanisms and deadlines for federal employees and 19 a p p lic a n ts to employment to initiate the administrative process for claims based on 20 d is c rim in a tio n under Title VII." See 42 U.S.C. § 2000e-16(b); Quinones-Rodriguez v. 21 T h o m p s o n , No. 02-2552, 2005 U.S. Dist. LEXIS 33002 at *10. 22 E E O C regulations require a federal employee to first initiate a pre-complaint process 23 w ith an EEO counselor, and then file an administrative complaint with the agency, prior to 24 f ilin g suit in federal court. Therefore, the first step is the agency's pre-complaint procedure, 25 w h ic h requires "that aggrieved employees who believe they have been discriminated against on 26

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th e basis of race, color, religion, sex, national origin, age or handicap [sic] consult a Counselor 3 p rio r to filing a complaint in order to try to informally resolve the matter." 29 C.F.R. § 4 1 6 1 4 .1 0 5 (a )(1 ). The employee must consult the "EEO Counselor `within 45 days of the date 5 o f the matter alleged to be discriminatory, or in the case of personnel action, within 45 days of 6 th e effective date of the action.'" Quinones-Rodriguez, No. 02-2552, 2005 U.S. Dist. LEXIS 7 3 3 0 0 2 at *10; Rojas v. Principi, 326 F. Supp. 2d 267, 273 (D.P.R. 2004); 29 C.F.R. 8 1 6 1 4 .1 0 5 (a )(1 ). The regulations further provide that the 45-day term may be extended by the 9 a g e n c y, or the EEOC, under specific equitable circumstances to be proven by the employee. 10 29 C.F.R. § 1614.105(a)(2). 11 When advised that a complaint has been filed by the aggrieved employee, the EEO 12 C o u n s e lo r must submit a written report within 15 days to the agency office designated to accept 13 c o m p la in ts , discussing the issues set forth by the employee, and the actions taken during 14 c o u n s e lin g . 29 C.F.R. § 1614.105 (c). Unless the aggrieved employee agrees otherwise, or 15 c h o o s e s an alternative dispute resolution procedure, the EEO Counselor shall conduct the final 16 in te rv ie w within 30 days of the date the aggrieved employee contacted the agency's EEO 17 C o u n s e lo r for counseling. 29 C.F.R. § 1614.105 (d). If the issues before the EEO Counselor 18 a re not resolved, the counselor shall inform the aggrieved employee in writing, no later than the 19 th irtie th day after contacting said counselor, of the employee's right to file a discrimination 20 c o m p la in t. Id. Prior to the end of the 30-day period, the employee may agree in writing to 21 p o s tp o n e the final interview and to extend the counseling period for an additional period not 22 to exceed 60 days, after which, if matters are not resolved, the EEO Counselor shall inform the 23 e m p lo ye e in writing about the right to file a discrimination complaint. 29 C.F.R. § 1614.105 (e). 24 After the pre-complaint procedure is finalized, the employee can proceed to the second 25 s te p , that is, the filing of a complaint within 15 days of the receipt of the EEO Counselor's 26

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n o tic e under 29 C.F.R. § 1614.106. The agency must conduct an impartial and appropriate 3 in v e stig a tio n of the complaint within 180 days of its filing, unless the parties agree otherwise. 4 Id . However, prior to a request for a hearing, the agency may dismiss an entire complaint under 5 2 9 C.F.R. § 1614.107.2 In that case, the agency shall notify the complainant of its determination, 6 th e reasons for its decision, and inform her that the claims will not be investigated. Id. at (b). 7 If dissatisfied with the agency's final determination, the employee must file a judicial complaint 8 w ith in 90 days of the agency's final action. 42 U.S.C. § 2000e-16 (c). Therefore, an employee 9 m a y sue his employer in federal court "only if, the EEOC (or the appropriate administrative 10 a g e n c y) has dismissed the administrative complaint..." Jorge v. Rumsfeld, 404 F.3d 556, 564 11 (1 s t Cir. 2005); Franceschi, 514 F.3d at 85. Notwithstanding the above, if the EEOC or 12 a p p ro p ria te agency fails render a final action after 180 of the filing of the initial complaint, the 13 e m p lo ye e may file suit in federal court. See 42 U.S.C. § 2000e-5(f)(1); 42 USCS § 2000e-16 14 (c ). With limited exceptions, the failure to exhaust this administrative process "bars the 15 c o u rth o u se door." Id. (citing Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 16 1 9 9 9 ); see also Jorge, 404 F.3d at 564. 17 T h e gist of Defendant's motion to dismiss is that Plaintiff failed to exhaust 18 a d m in is tra tiv e remedies, insofar as she did not request counseling within the 45 day period 19 a llo tte d by 29 C.F.R.1614.105(1). Defendant alleges that from March 18, 2005 to March 29, 20 2 0 0 5 , the EEO Counselor attempted to contact Plaintiff every day in order to conduct the initial 21 22 23 24 25 26
An agency may dismiss an entire complaint for several reasons, such as the employees' failure to comply with the applicable time limits provided by 29 C.F.R. § 1614.105, when the complainant cannot be located despite reasonable efforts and the complainant has not responded within 15 days to a notice of proposed dismissal sent to her last known address, when the agency has provided complainant with a written request to provide relevant information or otherwise proceed with the complaint, and when the complainant has failed to respond to the request within 15 days, provided that the request included a notice of the proposed dismissal, among other reasons. See 29 C.F.R. § 1614.107(a).
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in te rv ie w , but she did not respond to his requests. Finally, on March 29, 2005, the EEO 3 C o u n s e lo r was able to contact Plaintiff. On said date, Plaintiff explained to the counselor that 4 s h e had been discriminated against because of her pregnancy, and that Defendant had told her 5 th a t if she couldn't work the entire shift, she could not work at all. The EEO Counselor advised 6 P la in tif f of her rights and responsibilities, and informed her of the right to engage in a 7 m e d ia tio n process as an alternative to counseling. Defendant alleges that Plaintiff informed the 8 E E O Counselor that she wanted to "drop it" (the complaint), despite the counselor's warning 9 th a t, if she withdrew her complaint, she would not be able to pursue the same allegations at a 10 la te r date. According to the EEO Counselor, Plaintiff acknowledged that her complaint would 11 b e closed, and agreed to receive, and return completed, a "Notice of EEO Pre-Complaint 12 C lo s u re /V o lu n ta ry Dismissal," ("Notice of Voluntary Dismissal"), which was sent to Plaintiff 13 t h e next day via USPS Certified Mail. Defendant avers that although Plaintiff admits she 14 re c e iv e d said notice on April 7, 2005, she did not complete and return it as instructed. 15 M o re o v e r, Defendant avers that, on April 12, 15, 19, and 21, 2005, the EEO Counselor 16 a tte m p te d to follow up on the status of the Notice of Voluntary Dismissal, however, Plaintiff 17 d id not respond to his inquiries. As a result, Plaintiff's informal complaint was dismissed, and 18 h e r case was closed. Plaintiff returned to work on May 2005, and on July 30, 2005, she 19 re s ig n e d . 20 On November 1, 2005, Plaintiff's attorney, Ms. Angelique Doble-Bravo ("Doble21 B ra v o " ), contacted the EEO Office, and informed the EEO Counselor that Plaintiff wanted to 22 re s u m e EEO counseling pursuant to the case initiated on March 18, 2005. At that date, the 23 a g e n c y informed Doble-Bravo that counseling under said complaint could not be resumed since 24 th e time limits for EEO Counseling had expired, and the case had been closed. However, on 25 N o v e m b e r 16, 2005, upon Plaintiff's insistence, a new case was opened and, on December 19, 26

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2 0 0 5 , Plaintiff was once again referred for counseling on the same issues of alleged 3 d is c rim in a tio n . After several unsuccessful attempts to resolve the matters presented by Plaintiff, 4 o n February 1, 2006, the EEO Counselor issued a "Notice of Final Interview (NOF) Notice of 5 R ig h t to File (NRF) a Discrimination Complaint under 29 C.F.R. Part 1614 FSIS-2006-00258" 6 (" N R F " ). Docket # 35-2. On February 24, 2006, Plaintiff filed a formal complaint at the 7 U S D A 's Office of Civil Rights. 8 U p o n reviewing the record, this Court notes that Defendant does not dispute the fact that 9 P la in tif f contacted the EEO Counselor on March 18, 2005, that is, within the 45 day period 10 p ro v id e d by 29 C.F.R. 1614.105(a)(1). Instead, they argue that the pre-complaint process 11 s ta rte d on said date was voluntarily dismissed by Plaintiff on March 29, 2005. In support of the 12 la tte r, Defendant provides the EEO Counselor's Notice of Voluntary Dismissal, sent to Plaintiff 13 o n March 30, 2005, and which reads as follows: 14 15 16 17 18 19 20 21 22 23 24 25 26 [ o ]n Friday, March 18, 2005 you contacted the FSIS Civil Rights division and in itia te d an informal EEO Complaint alleging employment discrimination. You p a rtic ip a te d in your initial interview on March 29, 2005. In the interview you s ta te d that you did not want to pursue your case. You were informed that you would be served with the appropriate documents via U S P S Certified Mail to formally close your case. To finalize your election to v o lu n ta rily withdraw your claims, please sign, date, and return the Agency Copy o f this document to me in the enclosed envelope. ... B y my signature below, I understand I am waiving all right to a hearing or a p p e a ls related to the claims raised in this informal complaint, and that the A g e n c y will close my complaint. I have not been intimidated or coerced to w ith d ra w my complaint by any person(s) or through any conditions placed on me. Docket # 35-3. B a s e d on the foregoing, Defendant argues that Plaintiff voluntarily dismissed her case, and had w a iv e d any right to reassert her claims. They contend that, despite granting Plaintiff the o p p o rtu n ity to request EEO Counseling once again on December 2005, the EEO Counselor c o n tin u o u s ly advised her that her new claim might be held untimely by the USDA's Civil

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R ig h ts Office due to her prior voluntary dismissal of her prior informal complaint. See Docket 3 # 35-2. As such, Defendant argues that the counseling process initiated in December 19, 2005, 4 th a t is, 244 days after the date of the alleged discriminatory actions, was untimely, since the 5 a lle g e d discriminatory actions took place in March, 2005. 6 There is no controversy as to the fact that Plaintiff received the EEO Counselor's Notice 7 o f Voluntary Dismissal, however, she did not complete and return it. Plaintiff argues that said 8 f o rm does not warn the employee that failure to submit the document could entail the dismissal 9 o f the case. On the contrary, she contends that the notice states that the employee must complete 10 a n d sign it in order to formally close the case. Since she did not send the completed form, she 11 a s s u m e d that her case had not been closed. Notwithstanding, Plaintiff contends that she called 12 t h e EEO Counselor on May 4, 2005 to "follow up on her case" and he told her it had been 13 d is m is s e d on March 29, 2005. Docket # 37. Therefore, as of May 2005, she was aware that her 14 c a s e at the USDA's Office of Civil Rights had been closed. Nevertheless, she did not take 15 f u rth e r action until November 1, 2005, when her attorney, Doble-Bravo, contacted the EEO 16 C o u n s e lo r. On even date, Doble-Bravo informed the EEO Counselor that Plaintiff had not 17 s ig n e d the Notice of Voluntary Dismissal because she wanted to continue with the case. 18 Moreover, she requested information about the status of the case, and the steps required to 19 p ro c e e d with Plaintiff's claim. 20 On November 16, 2005, the EEO Counselor sent an email to Doble-Bravo which reads, 21 in pertinent part, as follows: 22 23 24 25 26 [ o ]n March 18, 2005 Ms. Yomara Flores contacted the FSIS Civil Rights D iv is io n and requested counseling. She was assigned to me for counseling [sic]. A tte m p ts to initiate counseling with Ms. Flores ensued for a period of 11 days u n s u c c e s sf u lly. Ms. Flores participated in her initial interview on Tuesday March 2 9 , 2005. In her interview, Ms. Flores alleged that the FSIS had discriminated a g a in s t her because of her sex.

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In addition to providing a verbal overview of her rights and responsibilities, I also a d v ise d Ms. Flores of her right to request participation in Alternative Dispute R e s o lu tio n (ADR). Ms. Flores was advised that she would be served with a N o tif i c a tio n of Written Rights and Responsibilities and that she would have to e le c t between Traditional EEO counseling and ADR in order that the EEO re so lu tio n (EEO Counseling) process continue. Ms. Flores advised that she did n o t want to pursue her complaint stating "I just want to drop it." Ms. Flores was f u r th e r advised that if she voluntarily withdrew her complaint, the complaint w o u ld be closed according to her wishes. Ms. Flores acknowledged that her d e c is io n not to pursue her complaint was solely her personal choice and was not c o e rc e d or influenced in her decision not to pursue her claim. In keeping with M s . Flores request her case was officially closed on March 30, 2005 and she re c e iv e d the package on April 07, 2005. However, she failed to return the c o m p le te d forms. Ms Flores never informed the office that she was not going to withdraw her case o r that she wanted to pursue her claim. There are also no provisions in the EEOC R e g u la tio n at 29 C.F.R. 1614 or EEOC Management Directive 110 for reinstating a claim other than in a case where a complaint was closed resolved through a S e ttle m e n t Agreement and that Settlement Agreement is found to be out of c o m p lia n c e through no fault of the formerly aggrieved party. If Ms. Flores wishes to raise a claim of employment discrimination she must do s o by contacting our Civil Rights Division...and requesting EEO Counseling. She w ill be provided the opportunity to participate in EEO Counseling according to th e provisions in 29 C.F.R. 1614 and MO 110. Docket # 35-3. S u b s e q u e n tly, Doble-Bravo asked the EEO Counselor whether Plaintiff would be allowed to ra is e the same claim of employment discrimination as she did on March 18, 2005. Docket # 352 at 13. The EEO Counselor informed Doble-Bravo that Plaintiff would be allowed to pursue E E O Counseling. However, he also noted that: ( . . .) M s . Flores was made fully aware of the consequences of her voluntary withdrawal of her c o m p la in t and she alone requested that her case be closed. In terms of whether or not Ms. Flores would be successful in prevailing in her claim, g iv e n the history of her previous participation, I cannot and would not attempt to identify w h a t decision(s) the agency or an Administrative Hearing Judge might make if Ms. F lo re s elects to re-enter the process with the same claim after voluntarily withdrawing h e r initial claim.

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Y e s , Ms. Flores will be accepted into the EEO Counseling process as any other a g g rie v e d employee or applicant for employment pursuant to Title 29 C.F.R 1614. Once c o u n s e lin g is again completed and if/or where there is no resolution, Ms. Flores will h a v e the right to pursue a formal complaint. It will then be Ms. Flores' burden to explain w h y she voluntarily withdrew from the process in her initial complaint. She will also h a v e the burden of meeting the "timeliness" requirements for seeking counseling [45 c a le n d a r days from the alleged discriminatory action]; and the fact that she failed to a c tiv e ly participate and cooperate in the process that resulted in delays and disruptions o f the process. On December 19, 2005, Plaintiff requested EEO Counseling. After several attempts to

8 c o n ta c t Plaintiff, the EEO Counselor managed to conduct the first interview, during which 9 P la in tif f reasserted all of her prior allegations of discrimination. The final interview was held 10 o n February 1, 2006, and the informal counseling process was closed on said date via the 11 iss u a n c e of the NRF letter, which provides the following: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 T h i s memorandum is to inform you that the Informal Counseling phase of the m a tte r you presented to me on Thursday, January 5, 2006 has expired. Your d isp u te has not been resolved, and because of the circumstances described above, yo u r entitlement to file a formal employment discrimination complaint will be d e c id e d by the USDA Office of Civil Rights. If you wish to pursue this matter, yo u are required to file a formal complaint of discrimination. Your complaint [ o ] n Monday, December 19, 2005 you contacted the Civil Rights Division re q u e stin g to file a formal complaint of sex discrimination for claims that had p re v io u s ly been counseled in case number FSIS-2005-00210. In our initial in te rv ie w on January 5, 2006 you raised the same claim of a "denied a c c o m m o d a tio n " in pregnancy that was raised when you sought counseling on M a rc h 18, 2005 and subsequently withdrew voluntarily on March 29, 2005. In your December 19, 2005 request for counseling you were advised that you had b e e n counseled on the matter and that the case had been officially closed upon yo u r request to voluntarily withdraw on March 30, 2005. You agreed that you had v o lu n ta rily withdrawn the complaint and that were in no way intimidated or c o e rc e d into making your decision to withdraw the case. You acknowledged re c e iv in g your Withdrawal Notice from your EEO counselor [sic]. However, you m a in ta in that you did not sign and return the Withdrawal Notice and as such you b e lie v e that your case was not officially closed. Upon your insistence that you be p ro v id e d counseling and in keeping with the FSIS' policy of fair and equitable tre a tm e n t of all employees and applicants, your request for counseling was a c c e p te d . You were advised of the absence of regulatory provisions for reopening o f previously counseled and closed cases, and the untimely (re)stating of your a lle g e d discriminatory action.

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m u s t be in writing, signed, and filed, by mail within FIFTEEN (15) CALENDAR D A Y S OF RECEIVING THIS NOTICE. D o c k e t #35-2 at 16. O n February 24, 2006, Plaintiff filed a formal complaint at the USDA's Office of Civil Rights.

5 A s of the date of the filing of the instant suit, the agency had not issued a final determination 6 o n Plaintiff's case. However, according to Plaintiff's second amended complaint, on March 28, 7 2 0 0 7 , the agency rendered a final decision dismissing her complaint.3 Docket # 4. 8 A lth o u g h Plaintiff argues that the EEO Counselor failed to inform her about her rights 9 a n d responsibilities, the record shows otherwise. See Docket # 35-2. The specificity of the EEO 10 C o u n s e lo r's records and statements show that Plaintiff was granted an opportunity to obtain 11 c o u n s e lin g and that she was adequately informed about her rights, responsibilities, as well as 12 a b o u t the possibility of engaging in alternate dispute resolution. In his affidavit, the EEO 13 C o u n s e lo r provides that he advised Plaintiff that she would also have to complete and return 14 a Notification of Written Rights and Responsibilities, and the counseling election forms that 15 w o u ld be mailed to her. Furthermore, the counselor informed her of the need to provide 16 s u f f ic ie n t information to initiate and investigate her claim, such as the names of her supervisors 17 a n d the dates of the alleged acts of discrimination. However, Plaintiff refused to provide said 18 in f o rm a tio n , and instead informed him that she did not wish to pursue the case. Thereafter, the 19 c o u n s e lo r informed Plaintiff that her decision to voluntarily withdraw her complaint was noted, 20 a n d that the withdrawal form would be sent by mail. 21 Upon reviewing the Notice of Voluntary Dismissal, this Court finds that it clearly 22 p ro v id e s that its completion is a mere "formality." Docket # 35-3. As such, Plaintiff's case was 23 e f f e c tiv e ly closed on March 30, 2005. Albeit Plaintiff claims that she did not sign the Notice 24 o f Voluntary Dismissal because she wanted to continue with her case, she did not take any 25 26
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Plaintiff failed to provide a document accrediting her complaint's dismissal.

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a c tio n to inform the EEO Counselor, despite his repeated attempts to contact her. Even after 3 P la in tif f allegedly called the EEO counselor in May 2005, when he informed her that the case 4 h a d been closed, she did not actively question the dismissal or pursue her claims until 5 N o v e m b e r 2005. Furthermore, she never complained about the EEO Counselor's alleged 6 e x a c tin g treatment prior to filing the instant suit, nor requested that her case be reassigned to 7 a n o th e r counselor. Therefore, Plaintiff was fully informed on how to proceed with her case if 8 s h e wished to do so, and the initial complaint process was dismissed solely because of her 9 d is in te re st in pursuing her claim. 10 Upon reviewing the abovementioned letters and the EEO Counselor's affidavit, this 11 C o u rt finds that the EEO Counselor warned Plaintiff on various occasions about the possible 12 c o n s e q u e n c e s of withdrawing her complaint back in March 29, 2005. See Docket # 35-2. The 13 E E O Counselor also advised both Plaintiff and her counsel, that despite being allowed to initiate 14 c o u n s e lin g for a second time, she would have to explain why she failed to actively participate 15 in the initial complaint process, and voluntarily withdrew her claim. Furthermore, the EEO 16 C o u n s e lo r noted that Plaintiff would bear the burden of showing her compliance with the 17 tim e lin e s s requirement imposed by 29 C.F.R. 1614.105(a)(1). 18 Moreover, the NRF clearly states that because of the particular circumstances of 19 P la in tif f 's case, her "entitlement to file a formal employment discrimination complaint will be 20 d e c id e d by the USDA Office of Civil Rights." The EEO Counselor stated, in no uncertain 21 te rm s , that Plaintiff had untimely restated her discrimination claims. Docket #35-2 at 16. As 22 s u c h , the agency's decision to allow Plaintiff to resume counseling on December 2005, and 23 s u b s e q u e n tly file a formal complaint, did not constitute a waiver of their right to dismiss 24 P la in tif f 's complaint for failure to comply with the appropriate time-limits. This Circuit has 25 re c o g n iz e d that it is "well-settled rule that agencies do not waive a timeliness defense merely 26

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b y accepting and investigating a discrimination complaint." Mercado v. Ritz-Carlton San Juan 3 H o te l, Spa & Casino, 410 F.3d 41, 45 (1 s t Cir. 2005). More so considering that the EEO 4 C o u n s e lo r emphasized "the absence of regulatory provisions for reopening of previously 5 c o u n s e le d and closed cases." 6 Considering that Rule 12(b)(1) grants courts the discretion to resolve factual disputes by 7 m a k in g reference to evidence in the record, and beyond the plaintiff's allegations, this Court 8 c o n c lu d e s that Plaintiff did not appropriately exhaust administrative remedies and, as a result, 9 h e r claims are time-barred. As such, Plaintiff's Title VII claims are DISMISSED with 10 p r e ju d ic e . Upon this Court's dismissal of Plaintiff's federal claims, all pendent state law claims 11 a re DISMISSED with prejudice.4 12 I T IS SO ORDERED. 13 S a n Juan, Puerto Rico, this 17th day of March, 2009. 14 15 16 17 18 19 20 21 22 23 24 25 26
Notwithstanding, this Court notes that a federal employee's remedies under Title VII are exclusive. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 94 (1990). Therefore, even if Plaintiff's federal claims were not dismissed, her claims under state law fail.
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