Wright v. McHugh

Filing 13

ORDER GRANTING 3 Motion to Dismiss. Signed by Judge David A. Ezra. (rf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LAURA L. WRIGHT,

)
)
Plaintiff,
)
)
v.
)
)
JOHN McHUGH, Secretary,
)
Department of the Army,
)
)
Defendant.
)
________________________________ )

CV NO. 5:13-CV-449-DAE

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S
HOSTILE WORK ENVIRONMENT AND REASONABLE
ACCOMMODATION CLAIMS
Before the Court is a Motion to Dismiss filed by Defendant John
McHugh, Secretary, Department of the Army (“Defendant”). (Dkt. # 3.) Plaintiff
Laura L. Wright (“Plaintiff”) did not file a response. The Court held a hearing on
Defendant’s Motion to Dismiss on January 17, 2014. At the hearing, Anita
Anderson, Esq. appeared on behalf of Plaintiff; Robert Shaw-Meadow, Esq.
appeared on behalf of Defendant. For the reasons that follow, the Court GRANTS
Defendant’s Motion to Dismiss (Dkt. # 3).

1

BACKGROUND
On May 28, 2013, Plaintiff filed the instant action for recovery
pursuant to Title VII of the Civil Rights Act of 1964, the Age Discrimination in
Employment Act, and the Americans with Disabilities Act. (“Compl.,” Dkt. # 1.)
Plaintiff claims that Defendant engaged in unlawful discrimination by subjecting
her to harassment, hostile work environment, and retaliation on the basis of her
age, disability, and sex. (Id. ¶ 8.)
Plaintiff is a former civilian veterinarian for the Department of the
Army at Fort Sam Houston in the Army’s Anesthesia Support team, Animal
Medicine Branch. (Id. ¶ 6.) Plaintiff’s duties included the care, treatment and
management of laboratory animals and government-owned animals used for
training soldiers for emergency and combat medical treatment. (Id. ¶ 9.)
Plaintiff claims to suffer from attention deficit hyperactivity disorder
(“ADHD”). (Id. ¶ 6.) Plaintiff does not claim that she was diagnosed with such a
disorder, but rather claims that she “meets the diagnostic criterion for ADHD as set
out in the Diagnostic and Statistical Manual of Mental Disorders, Edition IV
(“DSM-IV”), which provides, in relevant part:
1. Six (or more) of the following symptoms of hyperactivity-impulsivity have
persisted for at least six months to a degree that is maladaptive and
inconsistent with developmental level:
Hyperactivity
2

a. Often fidgets with hands or feet or squirms in seat
b. Often leaves seat in classroom or in other situations in which
remaining seated is expected
c. Often runs about or climbs excessively in situations in which it is
inappropriate (in adolescents or adults, may be limited to subjective
feelings of restlessness)
d. Often has difficulty playing or engaging in leisure activities quietly
e. Is often “on the go” or often acts as if “driven by a motor”
f. Often talks excessively
Impulsivity
g. Often blurts out answers before questions have been completed
h. Often has difficulty awaiting turn
i. Often interrupts or intrudes on others (e.g., butts into conversations or
games).
(Id.)1
During December 2009, Dr. Kristen Rohde, D.V.M., one of Plaintiff’s
supervisors, allegedly played a joke on Plaintiff concerning her ADHD. 2 (Id.
¶ 14.) Plaintiff complained to Dr. Rohde, but Dr. Rohde allegedly said it was
funny and told Plaintiff that “she should [get] over it.” (Id.)
On December 29, 2009, Dr. Rohde counseled Plaintiff regarding
several of Plaintiff’s behaviors that were inappropriate for the workplace. (Id.
¶ 12.) Dr. Rohde’s memorandum listed behaviors such as: eavesdropping,
interrupting conversations, overreacting and misinterpreting overheard

1

At the hearing, counsel for Plaintiff averred that Plaintiff had a medical diagnosis
from a doctor in Virginia. However, neither Plaintiff’s Complaint, nor any other
document in the record reveals anything other than Plaintiff’s “self-diagnosis.”
2

Plaintiff does not provide the factual background regarding the joke.
3

conversations, barging into other employees’ cubicles to talk and interrupting their
work without consent, discussing matter related to the Army’s mission with
superiors not in Plaintiff’s chain-of-command and with strangers. (Id.) At the
meeting, Dr. Rohde instructed Plaintiff to announce “knock-knock” before entering
someone else’s cubicle and to quit sending emails to other employees. (Id. ¶ 15.)
Dr. Rohde also reprimanded Plaintiff for setting up a study session without her
approval for an upcoming veterinary exam related to the use of animals by the
military and other federal agencies. (Id.)
On January 8, 2010 and January 9, 2010, Dr. Rohde again counseled
Plaintiff about her behaviors. (Id. ¶ 16.) Plaintiff asked Dr. Rohde to consider the
impact of her ADHD. (Id.)
On February 8, 2010, Dr. Rohde and Dr. Deaton, Dr. Rohde’s
supervisor, counseled Plaintiff once again. (Id. ¶ 17.) At this meeting, Plaintiff
asked both supervisors to accommodate her ADHD and referred them to a website
providing recommended accommodations for a wide variety of disabilities covered
by the ADA. (Id.) She also gave both supervisors a copy of “ADHD for
Dummies.” (Id.) After the meeting, Plaintiff distributed ADHD literature to her
coworkers, which she was later reprimanded for. (Id. ¶ 18.)

4

On March 1, 2010, Plaintiff requested an accommodation, which
included being moved away from other cubicles because of the serious distraction
and her inability to tune it out. (Id. ¶ 19.) Dr. Rohde denied that request. (Id.)
On March 5, 2010, during a training exercise, Plaintiff improperly
anesthetized a goat. (Id. ¶¶ 22–24.) During the exercise, she administered the first
dosage of anesthesia, but the goat did not respond. (Id. ¶ 22.) She then gave the
goat additional anesthesia. (Id.) According to Plaintiff, “[t]he goat went down[,]
but was over-anesthetized and needed ‘bagging’ i.e., oxygen and monitoring to
prevent tachycardia until the animal is stabilized, a time-consuming activity.” (Id.)
Dr. Rohde reprimanded Plaintiff for the improper anesthetization. (Id. ¶ 24.)
On March 10, 2010, Plaintiff informed Dr. Rohde that she was
planning on submitting her required written reasonable accommodation forms. (Id.
¶ 20.) On March 17, 2010, Plaintiff filed her formal request for accommodation
and gave a copy to Dr. Rohde. (Id. ¶ 25.) In Plaintiff’s request, she sought leave
to have her ADHD medications adjusted, a cubicle change, and more structuring of
her required activities to prevent disruption of other employees’ activities. (Id.)
That same day, Dr. Rohde filed a formal request for permission to terminate
Plaintiff. (Id. ¶ 26.)
On March 26, 2010, Dr. Rohde issued Plaintiff a letter of termination
effective April 2, 2010. (Id. ¶ 27.) The letter stated that Plaintiff’s termination was
5

due to an improper anesthetization of a goat on March 5, 2010, interruption of
others’ conversations, not being respectful of other employees’ work spaces and
privacy, interrupting training classes with comments unrelated to the topic,
distracting others from their focus on work, discussing the mission with outsiders,
and being rude and unprofessional. (Id. ¶ 28.)
On March 30, 2010, Plaintiff contacted Equal Employment
Opportunity (“EEO”) Counselor Ernest Ytuarte to allege that her receipt of a
termination letter was retaliation for her request for a reasonable accommodation
and to allege that she was subjected to discrimination on the basis of her age,
disability, and sex. (Dkt. # 3, Ex. 1 ¶ 5.) 3 Ytuarte conducted her intake counseling
on April 1, 2010. (Id.) On April 29, 2010, Plaintiff was provided a Notice of
Right to File a Formal Complaint. (Id.) The Notice advised Plaintiff that she had
fifteen days from receipt of the notice to file her complaint. (Id.) Plaintiff’s
counsel, Lorenzo Tijerina, acknowledged receipt of the notice on April 29, 2010 by

3

The Supreme Court has held that in deciding a motion to dismiss, a court may
consider documents incorporated into the complaint by reference. Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). By attaching documents
to a motion to dismiss that are referred to in a plaintiff’s complaint and that are
central to her claim, “the defendant merely assists the plaintiff in establishing the
basis of the suit, and the court in making the elementary determination of whether
a claim has been stated.” Collins v. Morgan Stanley Dean Witter, 224 F.3d 496,
499 (5th Cir. 2000). In this case, the notices to Plaintiff are referenced in
Plaintiff’s Complaint and are dispositive when determining whether Plaintiff has
failed to state a claim due to a lack of administrative exhaustion.
6

email. (Id.) However, Plaintiff did not file a Complaint within the fifteen-day time
period, and Ytuarte closed the docket. (Id.)
On May 13, 2010, Plaintiff was issued a second termination letter.
(Compl. ¶ 30.) The second letter advised that Plaintiff’s effective termination date
was changed to May 13, 2010. (Id.) The letter also advised that Plaintiff would
receive disability payments from March 26, 2010 to May 13, 2010, as a result of
Plaintiff’s respiratory illness and post-traumatic stress disorder from her prior
employment at the United States Department of Agriculture (“USDA”). (Id.)
On June 14, 2010, Plaintiff again contacted EEO Counselor Ytuarte
alleging reprisal from the second termination letter. (Dkt. # 3, Ex. 1 ¶ 6.) Plaintiff
also alleged her previous complaints of hostile work environment discrimination
on the basis of her age, disability, and sex, and denial of a reasonable
accommodation. (Id.) In a letter to Plaintiff’s counsel, Ytuarte explained that he
did not accept Plaintiff’s complaints of age, disability, and sex discrimination
because those claims were identical to earlier claims that had expired. (Dkt. # 3,
Ex. 1-C.) Ytuarte stated,
Paragraph (b) (1-20) [describing the alleged harassment] is dismissed
in accordance with the referenced provisions of 29 Code of Federal
Regulations (CFR) 1614.107(a)(2), which states that a complaint that
fails to comply with the applicable time limits specified in 1614.105
and 1614.106 may be dismissed. 29 C.F.R. 1614.106(b) states that a
formal complaint of discrimination must be filed within 15 calendar
days from receipt of the “Notice of Right to File” which gives the
complainant notice of his/her right to file a formal complaint.
7

You/your client made previous contacts with the EEO office,
specifically 30 March 2014, subsequently, you/your client received a
Notice of Right to File on 29 April 2010 via email and acknowledged
receipt of such; and did not pursue an EEO complaint within the
required timeframe. To allege discrimination and continuous
harassment for the time period in question prior to 29 April 2010
would be untimely filed as you/your client had the opportunity to
pursue this claim during her previous contacts with the EEO office.
(Id. (emphasis added))
However, Ytuarte advised that he did accept Plaintiff’s reprisal
claims because the previous complaint concerned a letter of termination dated
March 26, 2010, which had subsequently been rescinded. (Id.) According to
Ytuarte, the new complaint of reprisal was based on the second termination letter,
issued May 13, 2010, and therefore was a “new claim” that was timely filed. (Id.)
Ytuarte stated that the letter operated as a “partial dismissal” of Plaintiff’s
complaint and that “[i]f [Plaintiff] believe[d] the claims in this complaint ha[d] not
been correctly identified, please notify [Ytuarte], in writing, within five (5)
calendar days after you receive this letter, and specify why you believe the claims
have not been correctly identified.” (Id.)
On July 27, 2010, Plaintiff filed a formal complaint of discrimination
and reprisal with the Department of Army. (Compl. ¶ 31.) On February 2, 2011,
the Department conducted a formal investigation and fact-finding conference. (Id.)
The investigator did not find that Plaintiff was subject to discrimination or reprisal.
(Id.)
8

In May 2011, Plaintiff filed charges against Defendant with the Equal
Employment Opportunity Commission (“EEOC”). (Id. ¶ 32.) Plaintiff requested a
formal hearing and investigation. (Id.) Nearly two years later, on April 24, 2013,
the administrative law judge assigned to the case issued an order setting a hearing
on April 30, 2013. (Id. ¶ 35.) On April 25, 2013, Plaintiff informed the
administrative law judge that because the EEOC had not issued a final decision
within 180 days, Plaintiff intended to pursue her claims in federal court and
therefore withdrew her complaint with the EEOC. (Id. ¶¶ 36–38; Id., Ex. 1 at 2.)
About a month later on May 28, 2013, Plaintiff filed suit in federal court. (Dkt.
# 1.) Defendant subsequently filed a Motion to Dismiss that is currently before the
Court. (Dkt. # 3.)
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which relief can be granted.” In
analyzing a motion to dismiss for failure to state a claim, “[t]he court accepts ‘all
well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)
(quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467
(5th Cir. 2004)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
9

Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
DISCUSSION 4
Defendant argues that all of Plaintiff’s claims except the reprisal
termination claim should be dismissed for failure to exhaust administrative
remedies. (Dkt. # 3 at 7.) Defendant posits two reasons warranting dismissal of
the majority of Plaintiff’s discrimination claims: (1) Plaintiff failed to file a formal
complaint of discrimination within fifteen days of Receiving the Notice of Right to
File on April 29, 2010; and (2) Plaintiff failed to timely object within five days of
the Agency’s November 3, 2010 framing of the issues accepted for investigation
and dismissed as untimely. (Id. at 9.)
A.

Failing to File Formal Complaint of Discrimination Within Fifteen
Days of Receiving Notice of Right to File
The exhaustion of administrative remedies is a prerequisite to filing

suit, under either Title VII, the ADEA, or the ADA. See Taylor v. Books A
Million, Inc., 296 F.3d 376, 378–79 (5th Cir. 2002) (Title VII claim); Coke v. Gen.

4

Although Local Court Rule 7(e)(2) provides that “[i]f there is no response filed
within the time period prescribed by this rule, the court may grant the motion as
unopposed,” this Court’s practice is to examine the merits of an unopposed motion.
10

Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir. 1981) (en banc) (ADEA
claim) 5; Dao v. Auchan Hypermarket, 96 F.3d 787, 789 (5th Cir. 1996) (ADA
claim).
In order for a federal-employee plaintiff to exhaust administrative
remedies, a federal-employee-plaintiff must first comply with the EEO regulations
as set forth in 29 C.F.R. § 1614.105 et seq. To begin, federal employees must
“initiate contact with [an EEO] counselor within 45 days of the date of the matter
alleged to be discriminator, or in the case of personnel action, within 45 days of the
effective date of the action.” 29 C.F.R. § 1614.105(a)(1). After an employee
initiates contact with an EEO Counselor, the EEO Counselor has thirty days to
conduct an interview with the employee. Id. § 1614.105(d). If the matter has not
been resolved by the Counselor, aggrieved employee, and employer, the Counselor
shall inform the aggrieved person in writing of the right to file a discrimination
complaint, not later than the thirtieth day after contacting the Counselor. Id. “The

5

While exhaustion of administrative remedies is always required for Title VII
claims, federal employees asserting claims under the ADEA may choose between
either pursuing their administrative remedies through their employing agency (the
EEO) and the EEOC, or proceeding directly to federal court. Stevens v. Dep’t of
Treasury, 500 U.S. 1, 5–6 (1991); 29 C.F.R. § 1614.201(a). However, once a
plaintiff has decided to pursue his ADEA claim though the EEO administrative
process, he must exhaust these administrative remedies before filing an action in
federal court. See White v. Frank, 895 F.2d 243, 244 (5th Cir. 1990) (per curiam).
Thus, because Plaintiff sought EEO counseling and pursued her Title VII, ADEA,
and ADA claims administratively, she is required to exhaust her administrative
remedies before filing suit in federal court.
11

notice shall inform the complainant of the right to file a discrimination complaint
within 15 days of receipt of the notice . . . .” Id. “A complaint must be filed within
15 days of receipt of the notice . . . .” 29 C.F.R. § 1614.106(b). If the employee
fails to file his or her formal complaint within this fifteen-day period, the agency
may dismiss the action. 29 C.F.R. § 1614.107(a)(2).
Defendant seizes upon these regulations to argue that because
Plaintiff’s Complaint reurges the claims previously dismissed for failure to file a
formal complaint within fifteen days, Plaintiff’s Complaint should be dismissed for
failure to exhaust. Defendant is certainly correct that where a plaintiff has failed to
meet the fifteen-day deadline to file a formal complaint, a plaintiff’s claims are
subject to dismissal for failure to exhaust. In Casimier v. U.S. Postal Service, the
Fifth Circuit held that because a plaintiff “failed to file a formal EEO complaint
within fifteen days of his receipt of the Notice of Final Interview from the Postal
Service’s EEO Office, as required under 29 C.F.R. § 1614.106(b),” the plaintiff
“failed to timely exhaust his administrative EEO remedies.” 142 F. App’x 201,
204 n.1 (5th Cir. 2005) (per curiam). Likewise, in Joseph v. Potter, the court held,
“If an employee fails to file a formal EEO complaint within fifteen days of
receiving notice of his right to do so, he has failed to timely exhaust his
administrative remedies, and he is therefore barred from pursuing his
discrimination claim in federal court.” Civil Action No. H-04-1886, 2006 WL
12

1581894, at *2 (S.D. Tex. June 6, 2006) (citing Oaxaca v. Roscoe, 641 F.2d 386,
388 (5th Cir. 1981) (concluding that a federal court properly dismisses a claim
where the plaintiff has failed to timely comply with the administrative filing
requirements)).
However, Defendant’s argument overlooks the fact that Plaintiff’s
current Complaint before the Court was filed within the fifteen-day time period.
Indeed, after receiving her second termination letter on May 13, 2010, Plaintiff
initiated another contact with EEO Counselor Ytuarte on June 14, 2010. Ytuarte
sent Plaintiff a Notice of Right to File a Complaint of Discrimination on July 13,
2010, and Plaintiff filed a formal complaint on the fourteenth day—July 27,
2010—within the fifteen-day time limit.
Nevertheless, Defendant is correct that Plaintiff’s Complaint reurged
the same allegedly discriminatory practices that had been previously dismissed by
the EEO Counselor for failure to timely file within the fifteen-day time period.
Presumably, Plaintiff reurged the identical claims because she was given a second
termination letter with a later termination date. Thus, the Court must answer the
question that logically follows: did the second termination letter allow Plaintiff to
reurge her discrimination claims by restarting the applicable time limits required
for administrative exhaustion?

13

1.

Limitations Period Begins on Date of Alleged Unlawful
Employment Action

It is well-established that the relevant limitations periods for
discrimination claims begin at the time of the allegedly discriminatory decision,
even if the consequences of the allegedly discriminatory act do not occur until
later. Del. State Coll. v. Ricks, 449 U.S. 250, 257–58 (1980); see also Christopher
v. Mobil Oil Corp., 950 F.2d 1209, 1217 n.2 (5th Cir. 1992) (holding that in Title
VII cases, “the limitations period starts running when the plaintiff knows of the
discriminatory act”).
In Phillips v. Leggett & Platt, Inc., the Fifth Circuit held that “the
limitations period begins when an employee is unambiguously informed of an
immediate or future termination.” 658 F.3d 452, 456 (5th Cir. 2011). There, the
employer, Leggett, consolidated two of its Mississippi facilities, and informed
Phillips, a sixty-six-year-old employee, that there were no positions available for
her at the new facility and that she would be laid off on July 30, 2007. Id. at 453–
54. Phillips suspected that she was denied a position at the new facility because of
her age. Id. at 454. Four business days after Phillips’ employment ended, Leggett
recalled Phillips to work on a temporary basis at the new facility to assist with
consolidation. Id. After five months of working on a temporary basis, Phillips was
officially terminated on January 2, 2008. Id. On March 5, 2008, Phillips filed an

14

age-discrimination claim with the Equal Employment Opportunity Commission.
Id. Leggett argued that Phillips did not timely file her age-discrimination claim.
On appeal, the Fifth Circuit held that the “limitations period begins on
the date of the alleged unlawful employment action; once the plaintiff has
knowledge sufficient to support the ADEA claim, the 180-day limitations period
begins.” Id. at 455 (citing Barrow v. New Orleans S.S. Ass’n, 932 F.2d 473, 477–
78 (5th Cir. 1991)). The court then looked to Delaware State College v. Ricks, 449
U.S. 250 (1980), wherein in the context of the non-tenured professor’s teaching
contract, the Supreme Court had held that the limitations period began to run on
the date the tenure decision was made and communicated to the plaintiff, “even
though one of those effects of the denial of tenure—the eventual loss of
employment—did not occur until later.” Id. (citing Ricks, 449 U.S. at 258). The
court also relied on Chardon v. Fernandez, 454 U.S. 6 (1981), which had held that
when non-tenured professor-plaintiffs were notified by letter that their
appointments would terminate at a specified date in the future, and the Supreme
Court held that the statute of limitations began at “the time of the discriminatory
act, not at the point at which the consequences of the act became painful.” Id.
(citing Chardon, 454 U.S. at 6–8).
The court then concluded that Phillips’ 180-day limitations period
began on “the date of notice of termination, rather than the final date of
15

employment.” Id. at 456 (quoting Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th
Cir. 1988)). As the court explained, the notice of termination must be “based upon
an objective standard, focusing upon when the employee knew, or reasonably
should have known, that the adverse employment decision had been made.’” Id.
(quoting Clark, 854 F.2d at 765). “The notice of termination must be unequivocal
to start the running of the limitations period.” Id. (citing Thurman v. Sears,
Roebuck & Co., 952 F.2d 128, 133 (5th Cir. 1992)). Because Phillips was
unequivocally told that she would be terminated on July 30, the limitations period
began on that date. Id.
Similarly, in McAleer v. Prudential Insurance Company of America,
the court addressed whether a second termination letter altered the limitations
period for filing a discrimination claim. 928 F. Supp. 2d 280 (D. Mass. 2013).
There, a fifty-nine-year-old sales associate, McAleer, failed to meet his sales
targets, and as such, his employer, Prudential, informed him of his termination by a
letter on July 24, 2009. Id. at 283. The letter noted that McAleer had accrued
fifty-eight days of unused paid time off, and therefore calculated the effective date
of his termination as October 13, 2009. Id. After his last day in the office, and on
the first day he began to be paid for his unused vacation days, McAleer requested
and received short-term disability leave lasting twelve weeks, until October 17,
2009. Id. Because McAleer did not spend his unused vacation time while on
16

disability leave, this extended his effective termination date from October 13, 2009
until December 21, 2009. Id. Prudential issued McAleer a new termination letter,
superceding and replacing the previous letter, and memorializing the new effective
termination date. Id. It was not until nearly a year later that McAleer filed an agediscrimination complaint with the Equal Opportunity Employment Commission
(“EEOC”) on August 31, 2010. Id. at 284.
On appeal, Prudential argued that McAleer’s claim should be
dismissed because he did not file his claim within the requisite 300 days of July 24,
2009. Id. Prudential contended that the July 24, 2009 letter was unequivocal
notice of termination and any extensions of the effective date of termination were
purely administrative and did not affect whether he would be employed by the
company going forward. Id. at 284–85. McAleer, on the other hand, argued that
because Prudential’s November 4, 2009 letter “replaced and superceded” the July
24, 2009 letter and reflects the extension of his effective termination date, he did
not have unequivocal notice until November 4, 2009. Id. at 285.
The court found McAleer’s position “untenable for a number of
reasons.” Id. First, the court held that “the existence of a second letter does not
change when McAleer had notice of his termination.” The court explained,
The Supreme Court has made clear that the statute of limitations
begins to run at the time of the allegedly discriminatory decision, even
if the plaintiff’s employment continues, and the consequences of the
allegedly discriminatory act—in this case termination—do not occur
17

until later. Del. State Coll. v. Ricks, 449 U.S. 250, 257–58 (1980).
Prudential notified McAleer of his termination on July 24, 2009. The
fact that the final consequences of that decision came later does not
change when McAleer learned of the decision. Nor does a
confirmatory, superceding letter somehow wipe away more than three
months of McAleer’s knowledge that Prudential had fired him.
Id. (emphasis added).
Second, the court dismissed McAleer’s argument that a reasonable
person would have believed that Prudential had rescinded its decision to terminate
him because his termination date was pushed back for two months. Id. Absent any
allegation that McAleer was able to return to work, “the only reasonable
interpretation is that Prudential merely adjusted the effective date of his
termination to account for his short-term disability leave, not that Prudential had
reconsidered his termination, certainly not that it had rescinded its termination.”
Id. Thus, because McAleer did not file his claim with the EEOC 300 days after the
unequivocal July 24, 2009 termination letter, the Court dismissed McAleer’s
claims as untimely. Id. at 285–86.
As a result of the holdings in Phillips and McAleer, this Court can
confidently conclude that the timely filing requirements applicable to Plaintiff’s
discrimination claims began to accrue when she was unequivocally notified of her
termination on March 26, 2010. (Compl. ¶ 27.) Thus, as of March 26, 2010,
Plaintiff had forty-five days to contact an EEO counselor, which she did, and then
had fifteen days to file a formal complaint after receiving a Notice of Right to File
18

a Complaint of Discrimination, which she did not. Failure to abide by these
carefully outlined time limits warrants dismissal for failure to adhere to the
administrative exhaustion requirements. See Casimer, 142 F. App’x at 204 n.1;
Joseph, 2006 WL 1581894, at *2.
The fact that Plaintiff was issued a second termination is immaterial
for purposes of calculating the timely filing deadlines. As McAleer made clear,
“[t]he fact that the final consequences of that decision came later does not change
when [Plaintiff] learned of the [termination] decision.” 928 F. Supp. 2d at 285. It
was mere happenstance that the Army was required to rescind its first letter of
termination because of Plaintiff’s status as a federal employee receiving disability
retirement benefits from her previous employment with the USDA. The second
termination letter did not alter the required time limits for filing a discrimination
claim. Plaintiff was unequivocally notified of her termination on March 26, 2010;
thus, as of that date, Plaintiff was required to abide by the EEO’s filing deadlines.
The second termination letter does not resurrect Plaintiff’s untimely filed
discrimination claims to afford Plaintiff another bite at the
administrative-exhaustion apple.
2.

Equitable Remedies

Although Plaintiff did not timely file her formal Complaint with the
EEO office within the required fifteen-day timeframe, the fifteen-day time limit is
19

subject to such equitable defenses as waiver, estoppel, and equitable tolling. 29
C.F.R. § 1614.604(c) (“The time limits in this part are subject to waiver, estoppel,
and equitable tolling.”).
As a preliminary matter, however, the Court observes that the
equitable defenses of waiver and equitable tolling are not applicable to the instant
action. Defendant has not waived a limitations defense; in fact, Defendant has
consistently argued that Plaintiff’s failure to timely file her Complaint with the
EEO warrants dismissal for lack of administrative exhaustion. (See Dkt. # 3; see
also id., Ex. 1C.) Furthermore, equitable tolling is also inapplicable because that
defense applies when: (1) a pending action between parties in the wrong forum; (2)
the plaintiff’s unawareness of the facts supporting this claim because defendant
intentionally concealed them; and (3) an agency’s misleading the plaintiff about
his/her rights. Phillips, 658 F.3d at 457 (citing Granger v. Aaron’s, Inc., 636 F.3d
708, 712 (5th Cir. 2011)). The factual allegations recited in Plaintiff’s Complaint
do not suggest that any of above scenarios applies.
The third equitable defense, estoppel, bars an employer from asserting
a limitation period as a defense when the employee’s failure to comply with the
deadlines was a result of the employer’s misconduct. Rivers v. Geithner, --- F.
App’x ----, 2013 WL 6623542, at *3 (5th Cir. 2013) (per curiam); see also
Christopher v. Mobil Oil Corp., 950 F.2d 1209, 1215 (5th Cir. 1992) (noting that
20

estoppel is warranted when a “plaintiff’s unawareness of the facts necessary to
support a discrimination charge or unawareness of his legal rights—is due to
defendant’s misconduct”); Rhodes v. Guiberson Oil Tools, 927 F.2d 876, 879 (5th
Cir. 1991) (“If the defendant did conceal facts or misled the plaintiff and thereby
caused the plaintiff not to assert his rights within the limitations period, the
defendant is estopped from asserting the EEOC filing time as a defense.”) “The
employee ‘bears the burden of presenting facts which, if true, would require a court
as a matter of law to estop the defendant from asserting the statute of limitations.’”
Rivers, 2013 WL 6623542, at *4 (quoting McGregor v. La. State Univ. Bd. of
Supervisors, 3 F.3d 850, 865 (5th Cir. 1993)).
Plaintiff is not entitled an estoppel defense because she has not
demonstrated any facts that Defendant’s second termination affirmatively misled
her about her termination date. See Ramirez v. City of San Antonio, 312 F.3d 178,
184 (5th Cir. 2002) (“A court will equitably toll limitations period only when the
employer’s affirmative acts mislead the employee.”). The only reason Defendant
sent the subsequent letter extending her termination date was because Plaintiff was
a former federal employee receiving disability payments from her tenure at the
USDA. The Court cannot conclude that Defendant “intended to induce [Plaintiff]
not to file suit.” McGregor, 3 F.3d at 865. While the second termination letter
may have “created a practical problem” for Plaintiff, “it did not alter the legal
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effect of earlier notice of an allegedly improper employment action.” Phillips, 658
F.3d at 458.
B.

Failing to Timely Object to the Agency’s Framing of the Issues
Accepted for Investigation Within Five Days
Defendant also argues that Plaintiff’s claims should be dismissed for

not objecting to Ytuarte’s issue-framing letter within five days. (Dkt. # 3 at 10–
11.)
Several courts have concluded that a failure to object to an agency’s
framing of the issues warrants dismissal. See, e.g., Clayton v. Rumsfeld, 106 F.
App’x 268, 271 (5th Cir. 2004) (“Clayton did not object to the framing of the issue
by the EEOC and the ALJ, which issue did not include her demotion claim. Thus,
Clayton’s demotion claim was abandoned, and the employer was not given the
opportunity effectively to try to eliminate possible discriminatory practices and
policies.”); Dollis v. Rubin, 77 F.3d 777, 780 (5th Cir. 1995) (holding that because
plaintiff did not object to the issues as stated by the Resolution Complaint Center,
summary judgment was appropriate as to those claims given that plaintiff did not
exhaust her administrative remedies).
Therefore, when the Army’s EEO office made clear which of
Plaintiff’s claims it would investigate and which claims it would dismiss (due to
the previous untimely filing) and provided Plaintiff with an opportunity to object in
writing within five days of its November 3, 2010 determination, Plaintiff’s failure
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to object constitutes abandonment. Consequently, Plaintiff failed to exhaust her
administrative remedies.
CONCLUSION
For the aforementioned reasons, the Court GRANTS Defendant’s
Motion to Dismiss Plaintiff’s hostile work environment and reasonable
accommodation claims (Dkt. # 3). However, the Court notes that Plaintiff’s
reprisal termination claim is not dismissed.
IT IS SO ORDERED.
DATED: San Antonio, Texas, January 17, 2014.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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