Hobson v. Hagel

Filing 25

REPORT AND RECOMMENDATION: The undersigned recommends that Defendant's Partial Motion to Dismiss be treated as a motion for summary judgment per Rule 12(d) of the Federal Rules of Civil Procedure. Furthermore, the undersigned recommends that Defendant's Motion be GRANTED as to the claims made in paragraphs eleven and fifteen of Plaintiff's complaint. The undersigned recommends that Defendants Motion be DENIED as to Plaintiff's claims of discrimination in regards to her non-selection for the LARS position and the AP position. Signed by Magistrate Judge John S. Bryant on 8/17/2015. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
FAYE R. HOBSON,
Plaintiff,
v.
CHARLES T. HAGEL, Secretary,
Department of Defense,
Defendant,

)
)
)
)
)
)
)
)
)
)

3:14-cv-01540
JUDGE TRAUGER
MAGISTRATE JUDGE BRYANT

To: The Honorable Aleta A. Trauger, District Judge
Report and Recommendation
Currently pending in this action is defendant Charles T. Hagel’s Partial Motion to
Dismiss. (Docket Entry No. 14). By order entered October 3, 2014 (Docket Entry No. 12), this
matter was referred to the undersigned for case management and to recommend ruling on
any dispositive motion. For the reasons given below, the undersigned recommends that
Defendant’s Motion to Dismiss be treated as a motion for summary judgment. Further, the
undersigned recommends such motion be GRANTED IN PART and DENIED IN PART.
I. Statement of the Case
Plaintiff is a teacher with the Department of Defense Domestic Dependent
Elementary and Secondary Schools (DDES) at Camp Humphreys, Korea. (Docket Entry No.
1, p. 3, ¶ 14). She has repeatedly tried to gain employment at Fort Campbell, Kentucky,
applying for over thirty-one positions at the base, including twenty-two at Fort Campbell

High School (FCHS). (Id. at pp. 3-4, ¶¶ 11, 15). Related to these efforts, Plaintiff has a history
of filing Equal Employment Opportunity (EEO) complaints dating back to 2005. (Id. at p. 2, ¶
6).
Plaintiff applied for and interviewed for a Language Arts Reading Specialist (LARS)
position at FCHS. (Docket Entry No. 16, Ex. 1, Bates 000015, ¶ 13a). The job listing was
subsequently canceled and the position was never filled. (Docket Entry No. 16, Ex. 7, Bates
000099). Plaintiff was notified of this action via email on August 5, 2013. (Docket Entry No.
20, Ex. 2, Bates 000110). She subsequently applied for a Secondary Education teaching
position and an Advanced Placement (AP) English teaching position at FCHS. (Docket Entry
No. 16, Ex. 1, Bates 000015, ¶ 14(6)). Plaintiff’s name was referred for selection for the
Secondary Education position but was not referred for the AP English position. Id.
Plaintiff filed a “Complaint of Discrimination in the Federal Government” (EEO
Complaint) with the Diversity Management and Equal Opportunity Office of the
Department of Defense Education Activity (DODEA) on September 15, 2013. (Docket Entry
No. 16, Ex. 13). After Plaintiff participated in counseling, the Investigations and Resolutions
Directorate of the Defense Civilian Personnel Advisory Service conducted an investigation of
her complaint and issued a report dated March 7, 2014. (Docket Entry No. 16, Ex. 6).
Plaintiff subsequently requested a final agency decision (FAD) on March 24, 2014. (Docket
Entry No. 16, Ex. 12, p. 1). DODEA found that Plaintiff was not a victim of discrimination
2

and dismissed the EEO Complaint. (Id. at p. 6). Plaintiff then filed the civil complaint
forming the basis for the instant case. (Docket Entry No. 1).
II. Conversion to Motion for Summary Judgment
If a court considers matters outside the pleadings when ruling on a 12(b)(6) motion,
the court must treat such a motion as a motion for summary judgment under Rule 56. FED. R.
CIV. P. 12(d). Where one party is likely to be surprised by the court’s proceeding in summary
judgment, notice is required. Salehpour v. Univ. of Tennessee, 159 F.3d 199, 204 (6th Cir.
1998) (citing Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 393 (6th Cir.1975)).
Here, Plaintiff was aware that matters outside the pleadings had been submitted to the court.
In fact, Plaintiff also submitted extrinsic material in her response to Defendant’s Motion. A
party cannot claim to have been “surprised by the conversion of the motion to dismiss into a
motion for summary judgment when the party was aware that materials outside the pleading
had been submitted to the court before the court granted the motion.” Song v. City of

Elyria, 985 F.2d 840, 842 (6th Cir.1993). The undersigned therefore recommends Defendant’s
Motion be treated as a motion for summary judgment under Rule 56.
III. Standard of Review
To prevail on a motion for summary judgment, the moving party must demonstrate
that “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a); Miller v. Calhoun County, 408 F.3d 803,
3

811–12 (6th Cir. 2005). A “genuine issue of material fact” exists when the proof upon which
that issue turns could induce a reasonable jury to return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The burden of establishing the
absence of a factual dispute rests with the moving party. Id. at 250 n.4.
In deciding whether summary judgment is appropriate, the court “must look beyond
the pleadings and assess the proof to determine whether there is a genuine need for trial.”

Sowards v. Loudon County, 203 F.3d 426, 431 (6th Cir. 2000), cert. denied, 531 U.S. 875
(2000). In so doing, the district court must “draw all reasonable inferences in favor of the
nonmoving party” in its analysis of the affidavits and other submissions. Sadie v. City of

Cleveland, 718 F.3d 596, 599 (6th Cir. 2013) (citing Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
IV. Conclusions of Law
In her Verified Complaint (Docket Entry No. 1), the pro se Plaintiff seems to assert
multiple claims of discrimination in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-16. Plaintiff contends she was discriminated against when she was not
selected for a number of open positions with the Department of Defense Domestic
Dependent Elementary and Secondary Schools (DDES) at Fort Campbell High School (FCHS)
in Kentucky. (Docket Entry No. 1, pp. 3-4, ¶¶ 11, 15). Plaintiff alleges she applied for more
than twenty-two positions at FCHS and interviewed for two of those positions. (Id. at p. 4, ¶
4

15). However, the only EEO complaint in the record before this Court addresses Plaintiff’s
non-selection for two open positions at FCHS. (Docket Entry No. 16, Ex. 13). This Report
and Recommendation will address in turn: Plaintiff’s claims unrelated to the most recent
EEO complaint (“old claims”), Plaintiff’s EEO complaint relating to the Language Arts
Reading Specialist (LARS) position, and Plaintiff’s EEO complaint relating to the English
with Advanced Placement (AP) English Literature & Composition position.
A. Plaintiff’s Claims Unrelated to the Most Recent EEO Complaint
Plaintiff alleges in her complaint that she applied for thirty-one positions at Fort
Campbell and was not interviewed for any of those positions, despite being “well qualified.”
(Docket Entry No. 1, p. 3, ¶ 11). She further alleges she applied for twenty-two positions at
FCHS and was interviewed for only two of those positions. (Id. at p. 4, ¶ 15). She was not
hired for any positions for which she interviewed. (Id.). Because Plaintiff is proceeding pro

se, her complaint is to be “liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (pro se complaint must be held to less stringent
standards than formal pleadings drafted by lawyers). In liberally construing Plaintiff’s
complaint, the undersigned believes Plaintiff pleads that she was discriminated against when
she was not hired for the thirty-one jobs for which she applied at Fort Campbell.

5

Defendant moves that the old claims be dismissed for failure to exhaust administrative
remedies. Plaintiff initially contacted the DODEA Diversity Management and Equal
Opportunity Office on August 12, 2013, after receiving notification of her non-selection on
August 5. (Docket Entry No. 16, Ex. 1). Plaintiff’s EEO complaint addresses only two
positions for which she applied and makes no mention of the twenty-two or thirty-one other
positions noted in her complaint. (Docket Entry No. 16, Ex. 13). In the evidence before this
Court, the undersigned believes it is clear that Plaintiff’s old claims were not included in the
EEO Complaint.
Even if such claims were included in the EEO Complaint, they were certainly not
timely. The right to maintain a Title VII action against the Federal Government is predicated
on the timely exhaustion of administrative remedies. The failure to exhaust administrative
remedies is a basis for dismissal of a Title VII claim against the Government. Hunter v. Sec'y

of U.S. Army, 565 F.3d 986, 993 (6th Cir. 2009) (citing Benford v. Frank, 943 F.2d 609, 612
(6th Cir.1991)). A person must initiate contact with an EEO counselor within forty-five days
of an adverse action to preserve her right to seek an administrative or civil remedy. 29 C.F.R.
§ 1614.105(a)(1). The counselor must advise the complainant of her right to file a formal
complaint requesting a financial agency decision (FAD). 29 C.F.R. § 1614.105(b). Such a
formal complaint must be filed within fifteen days of notification by the counselor. 29 C.F.R.
§ 1614.106(b). After adjudication of her administrative EEO complaint and issuance of a
6

FAD, the plaintiff can then file a civil action, but must do so within ninety days of receiving
the FAD. 42 U.S.C. § 2000e-16. Here, it is nearly impossible that Plaintiff applied for and was
denied selection for over twenty positions within the limited timeframe required for the
filing of EEO complaints under federal law.
Additionally, Plaintiff does not address the old claims in her response to Defendant’s
motion. (Docket Nos. 23, 24). If the moving party satisfies its burden on a motion for
summary judgment, then the burden of going forward shifts to the nonmoving party to
produce evidence that results in a conflict of material fact to be resolved by a jury. Cox v.

Kentucky Dep't of Transp., 53 F.3d 146, 150 (6th Cir. 1995) (citing FED. R. CIV. P. 56).
Plaintiff was on notice that extrinsic evidence was before this court, as demonstrated by her
response to Defendant’s Motion. Plaintiff has failed to answer Defendant’s Motion with
regard to the old claims. Therefore, the undersigned recommends that Defendant’s Motion
be GRANTED as to the old claims. 1
B. Language Arts Reading Specialist (LARS) Position
Plaintiff’s EEO complaint alleges she was discriminated against when she was not
hired to fill the 0413 Language Arts Reading Specialist (LARS) position at FCHS. She applied
for the LARS position and was subsequently interviewed for that position. (Docket Entry No.
1

This does not prevent the Plaintiff from claiming that prior EEO complaints caused the retaliatory discrimination
she alleges in the complaint.

7

16, Ex. 4, p. 8, Bates 000198). The certificate for that position was soon canceled and no one
was hired. (Docket Entry No. 16, Ex. 7, Bates 000099). In her EEO Complaint, Plaintiff seems
to believe the LARS position was canceled in retaliation for her prior EEO complaints; she
specifically asks for an explanation as to why the position was canceled. (Docket Entry No.
16, Ex. 13, Plaintiff's Formal Complaint, p. 3) (“I am requesting an explanation as to why the
LARS position was cancelled.”). However, neither acceptance letter from the DODEA
Diversity Management and Equal Opportunity Office makes mention of the LARS complaint.
(Docket Entry No. 16, Exs. 2, 3). Both letters address only the Advanced Placement (AP)
position discussed infra. The Government also contends the EEO Complaint was limited to
the AP position. (Docket Entry No. 15, p. 8).
In this Circuit, a Title VII judicial complaint is limited to “the scope of the [EEO]
investigation reasonably expected to grow out of the charge of discrimination.” Dixon v.

Ashcroft, 392 F.3d 212, 217 (6th Cir. 2004) (quoting Weigel v. Baptist Hosp. of East
Tennessee, 302 F.3d 367, 380 (6th Cir.2002)). Plaintiff clearly alleges in her EEO complaint
that the cancellation of the LARS position was a result of discrimination against her. It is
reasonable to expect that Plaintiff’s allegation would be included in the scope of the resulting
investigation. In fact, the investigator gathered records related to the LARS position as part
of his investigation into the EEO Complaint. (Docket Entry No. 16, p. 3, ¶ 6). Furthermore,
Plaintiff’s filing of the EEO Complaint was timely as to the LARS position. Plaintiff was
8

notified via email that the LARS position was canceled on August 5, 2013. (Docket Entry No.
16, Ex. 4, p. 17). She filed the EEO Complaint on September 15, 2013, well within the fortyfive day period required by law. The undersigned recommends Defendant’s Motion be
DENIED as to Plaintiff’s claim of discrimination in regards to the LARS position.
C. Advanced Placement (AP) English Literature & Composition Position
Plaintiff’s EEO complaint alleges she was discriminated against when she was not
hired to fill the 0310 English with Advanced Placement (AP) English Literature &
Composition position at FCHS. Defendant’s Memo in support of the Motion concedes that
Plaintiff’s EEO complaint as to the AP position was timely. (Docket Entry No. 14, p.8). The
Memo argues that Plaintiff’s claim must fail as to the AP position because “no action was
taken on the recruit/fill action.” (Id. at p. 10). Defendant provides no authority to
substantiate its claim that failing to fill a vacant job posting is per se not actionable.
Accordingly, on the record, the undersigned recommends Defendant’s Motion be DENIED as
to Plaintiff’s claim of discrimination in regards to the AP position.2
III. Recommendation
For the reasons stated above, the undersigned recommends that Defendant’s Partial
Motion to Dismiss be treated as a motion for summary judgment per Rule 12(d) of the
2

The partial denial of Defendant’s Motion does not foreclose any future motions under Rule 56.

9

Federal Rules of Civil Procedure. Furthermore, the undersigned recommends that
Defendant’s Motion be GRANTED as to the claims made in paragraphs eleven and fifteen of
Plaintiff’s complaint. The undersigned recommends that Defendant’s Motion be DENIED as
to Plaintiff’s claims of discrimination in regards to her non-selection for the LARS position
and the AP position.
Any party has fourteen (14) days from receipt of this Report and Recommendation in
which to file any written objections to it with the District Court. Any party opposing said
objections shall have fourteen (14) days from receipt of any objections filed in which to file
any responses to said objections. Failure to file specific objections within fourteen (14) days
of receipt of this Report and Recommendation can constitute a waiver of further appeal of
this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Million, 380 F.3d
909, 912 (6th Cir. 2004) (en banc).
ENTERED this 17th day of August, 2015.
s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

10