Perkins v. Secretary of Department of Health & Human Services et al
Filing
15
ORDER denying 8 Motion for Reconsideration. Signed by Chief Judge Jeffrey L. Viken on 4/23/13. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
SHAWN M. PERKINS,
Plaintiff,
vs.
SECRETARY OF DEPARTMENT OF
HEALTH & HUMAN SERVICES,
HONORABLE KATHLEEN
SEBELIUS, and SIOUX SAN
HOSPITAL - INDIAN HEALTH
SERVICES,
Defendants.
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CIV. 13-5005-JLV
ORDER DENYING
MOTION FOR
RECONSIDERATION
On January 9, 2013, plaintiff Shawn M. Perkins, appearing pro se, filed a
complaint against defendants alleging gender discrimination, wrongful
termination, and retaliatory actions. (Docket 1). The complaint states Mr.
Perkins was employed at the Sioux San Hospital in Rapid City, South Dakota,
as a health technician until December 2, 2011. Id. at p. 4. Mr. Perkins alleges
he was subject to “gender discrimination, wrongful termination, and
subsequent retaliatory actions [and that he was] illegally terminated . . .
without due process . . . .” Id. The complaint states Mr. Perkins’ claims were
dismissed at the administrative level as untimely. Id. at p. 1.
“[P]ro se complaints are to be construed liberally . . . .” Stone v. Harry,
364 F.3d 912, 914 (8th Cir. 2004) (referencing Estelle v. Gamble, 429 U.S. 97,
106 (1976). On February 4, 2013, the court dismissed the complaint for
“fail[ing] to state a claim upon which relief can be granted. 28 U.S.C.
§ 1915(e)(2)(B)(ii).” (Docket 7 at p. 4).
Mr. Perkins filed a motion for reconsideration of the court’s dismissal of
the complaint. (Docket 8). Mr. Perkins asserts the court misunderstood the
nature of his claim and submitted additional documentation for consideration.
Id. The submission discloses that on June 1, 2012, Mr. Perkins contacted the
Department of Health & Human Services (“DHHS” or the “agency”) regarding
alleged sex discrimination and reprisal/retaliation by his former employer, the
Sioux San Hospital in Rapid City, South Dakota. Id. at p. 2. Sioux San
Hospital is a part of the Indian Health Service and the Public Health Service
within DHHS.
Mediation was conducted at the administrative level on August 27, 2012,
but was unsuccessful. Id. After attempting mediation a complainant is
required “to file a discrimination complaint within 15 days of receipt of the
notice[.]” 29 CFR §§ 1614.105(d) & 1614.106(b). The complaint “must be filed
with the agency that allegedly discriminated against the complainant.” 29 CFR
§ 1614.106(a). On November 28, 2012, DHHS dismissed Mr. Perkins’ formal
complaint as untimely. (Docket 8 at p. 3). The complaint was deemed
untimely because it was not filed within 15 days of Mr. Perkins’ receipt of the
notice of his right to file a formal complaint. Id.
2
“Title VII prohibits employment discrimination on the basis of sex, see
42 U.S.C. § 2000e–2(a)(1) (1994), but also ‘establishes an administrative
procedure which a complaining employee must follow before filing a lawsuit in
federal court.’ ” Briley v. Carlin, 172 F.3d 567, 571 (8th Cir. 1999) (citing
Williams v. Little Rock Municipal Water Works, 21 F.3d 218, 222 (8th Cir.
1994). “In order to exhaust administrative remedies, the claimant is required
to demonstrate good faith participation in the administrative process, which
includes making specific charges [filing a formal complaint with the agency]
. . . .” Id.
“To preserve [his] right to maintain a suit alleging employment
discrimination against an agency of the United States, a claimant must
exhaust [his] administrative remedies by filing a claim of discrimination with
the allegedly offending agency in accordance with published procedures.”
Leorna v. U.S. Dept. of State, 105 F.3d 548, 550 (9th Cir. 1997) (citing Brown
v. General Services Administration, 425 U.S. 820, 832 (1976)). “Generally, a
party must exhaust [his] administrative remedies before [he] can obtain judicial
review of an agency decision.” Id. at 552. “The purpose of this requirement is
to avoid any unnecessary or premature judicial intervention into the
administrative process by allowing the administrative agency in question to
exercise its expertise over the subject matter and giving the agency an
opportunity to correct any mistake that may have occurred in the proceeding.”
Id.
3
By not timely filing a formal complaint with the agency, Mr. Perkins
failed to exhaust his administrative remedies.1 Id. See Bailey v. U.S. Postal
Service, 208 F.3d 652, 654 (8th Cir. 2000) (“Before bringing discrimination
claims, Title VII plaintiffs must exhaust available administrative remedies.”).
Dismissal of the complaint was proper because the “lawsuit is foreclosed due to
[his] failure to exhaust the available administrative remedies.” Briley, 172 F.3d
at 574. Accordingly, it is hereby
ORDERED that plaintiff’s motion for reconsideration (Docket 8) is denied.
Dated April 23, 2013.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
1
Neither Mr. Perkins’ complaint nor the motion for reconsideration allege
equitable tolling to excuse his non-compliance with the regulations. See Briley,
172 F.3d at 570 (“Equitable tolling will extend a deadline missed due to an
employee’s excusable ignorance, but the doctrine is precluded once it is shown
that the employee was generally aware of [his] rights.”).
4
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