McCarthy, Thomas v. Wilsack, Thomas
Filing
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ORDER denying plaintiff's 9 Motion for Default Judgment; granting plaintiff's 15 Motion to Modify Request for Relief; granting defendant's 10 Motion to Dismiss with respect to plaintiff's claim that defendant mishandle d his administrative complaint. The motion is DENIED with respect to plaintiff's claims that defendant discriminated against him by refusing to interview him for two loan specialist positions. Defendant may have until February 8, 2016, to fi le an early motion for summary judgment devoted solely to the issue whether plaintiff complied with the administrative prerequisites for his claims. The parties should not anticipate that the court will extend the April 15, 2016 deadline for filing dispositive motions if a decision on an early motion for summary judgment is pending then. Signed by District Judge Barbara B. Crabb on 1/5/2016. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - THOMAS M. McCARTHY,
OPINION AND ORDER
Plaintiff,
15-cv-312-bbc
v.
THOMAS J. VILSACK,
Secretary, U.S. Department of Agriculture,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Thomas McCarthy has filed a complaint in which he alleges that
defendant Thomas Vilsack “discriminate[d]” against him by failing to interview him for
positions in the Department of Agriculture. Plaintiff does not identify in his complaint what
type of discrimination he believes occurred or the law or laws that he believes defendant
violated. Instead, plaintiff refers generally to 74-pages of documents that are attached to the
complaint.
In addition, plaintiff alleges that a counselor at the Equal Employment
Opportunity office “stonewalled” his administrative complaint when he filed it in 2013.
Defendant has filed a motion to dismiss for failure to state a claim upon which relief
may be granted under Fed. R. Civ. P. 12(b)(6). Dkt. #10. With respect to plaintiff’s
allegations regarding not being interviewed, defendant does not challenge the sufficiency of
plaintiff’s allegations of discrimination, but instead argues that plaintiff did not properly
exhaust his administrative remedies. With respect to plaintiff’s allegations about the EEO
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counselor, defendant argues that the alleged conduct does not violate the law.
Also before the court are two motions filed by plaintiff. In his “motion for judgment
and settlement,” plaintiff says that defendant missed his deadline for responding to the
summons and complaint, so he asks the court to award him his requested relief. Dkt. #9.
In his “request to modify remedy,” plaintiff asks the court to award “13 years back pay and
13 years credited towards retirement.” Dkt. #15.
I am denying plaintiff’s motion for judgment because defendant responded to the
summons and complaint within the 60-day deadline for doing so. I am denying defendant’s
motion to dismiss with respect to plaintiff’s claims that defendant discriminated against him
by failing to interview him for two jobs because it is not clear from the complaint or its
attachments that plaintiff failed to meet an administrative deadline.
I am granting
defendant’s motion to dismiss with respect to plaintiff’s allegations against the EEO
counselor because there is no cause of action for the conduct plaintiff alleges. Finally, I am
granting plaintiff’s request to modify his requested relief. I will treat the filing at docket no.
15 as an addendum to the complaint.
OPINION
A. Plaintiff’s Motion for Default Judgment
On October 13, 2015, plaintiff filed his “motion for judgment and settlement,” dkt.
#9, which I construe as a motion to enter default judgment against defendant. Plaintiff says
that he is entitled to judgment because defendant missed his deadline for responding to the
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summons and complaint.
Under Fed. R. Civ. P. 12(a)(2), a federal officer must respond to a complaint within
60 days after service on the United States attorney. In this case, plaintiff served his
complaint on the United States attorney on August 21, 2015, dkt,. #8-1, and defendant
filed his motion to dismiss on October 19, 2015, dkt. #10, which was within the 60-day
deadline. Accordingly, I am denying plaintiff’s motion for a default judgment.
B. Defendant’s Motion to Dismiss
1. Failure to interview
Plaintiff alleges that defendant discriminated against him by failing to interview him
for two “loan specialist” positions, one in Wisconsin and one in Minnesota. Plaintiff also
refers to a position for “area director” for which he did receive an interview in 2010.
Although plaintiff does not say whether he was hired, he does not allege that defendant
discriminated against him with respect to the area director position. Further, he does not
respond to defendant’s argument that the complaint should not be construed as raising a
claim regarding the area director position, so I will not discuss it further.
With respect to plaintiff’s claims regarding the loan specialist positions, defendant
relies on the attachments to plaintiff’s complaint to construe the complaint as raising claims
for race, sex and age discrimination under Title VII of the Civil Act and the Age
Discrimination in Employment Act. Plaintiff does not dispute this characterization of the
complaint in his opposition brief, so that is how I will construe the complaint as well.
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Defendant argues that plaintiff’s discrimination claims should be dismissed because
plaintiff did not comply with 29 C.F.R. § 1614.105(a)(1), which requires a plaintiff bringing
a Title VII claim or ADEA claim against a federal agency to contact an EEO counselor
“within 45 days of the date of the matter alleged to be discriminatory or, in the case of
personnel action, within 45 days of the effective date of the action.” Courts in this circuit
must “bar claims if the forty-five day requirement is not satisfied and there is no occasion
for equitable tolling.” Lapka v. Chertoff, 517 F.3d 974, 981 (7th Cir. 2008).
A failure to comply with the preconditions for filing a discrimination lawsuit is an
affirmative defense. Salas v. Wisconsin Dept. of Corrections, 493 F.3d 913, 921 (7th Cir.
2007). Ordinarily, this means that the defense cannot be raised in the context of a motion
to dismiss under Fed. R. Civ. P. 12(b)(6). Yassan v. J.P. Morgan Chase and Co., 708 F.3d
963, 975-76 (7th Cir. 2013). However, an exception to this rule exists when the plaintiff’s
own allegations in his complaint or the documents attached to the complaint show that the
defendant is entitled to the affirmative defense. O'Gorman v. City of Chicago, 777 F.3d
885, 889 (7th Cir. 2015) (“[A]lthough a plaintiff need not anticipate or overcome
affirmative defenses . . . , if a plaintiff alleges facts sufficient to establish a . . . defense, the
district court may dismiss the complaint on that ground.”); Centers v. Centennial Mortgage,
Inc., 398 F.3d 930, 933 (7th Cir. 2005) (plaintiff “may plead himself out of court by
attaching documents to the complaint that indicate that he or she is not entitled to
judgment”).
In this case, defendant relies on documents attached to the complaint in an attempt
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to show that plaintiff did not contact an EEO counselor within the 45-day deadline. In
particular, he cites letters dated April 6, 2011, and April 21, 2011, in which the Department
of Agriculture informed plaintiff that it “anticipate[d] making a selection [regarding which
candidates would be interviewed for loan specialist positions] within 45 days.” Dkt. #1-1
at 3. Defendant then cites a letter from plaintiff to “Civil Rights USDA-Rural Development”
dated September 5, 2013, in which plaintiff says that he wants to “start a complaint”
regarding defendant’s failure to interview him for the loan specialist positions. Id. at 1. In
addition, defendant cites an administrative decision of the department in which September
6, 2013 is identified as the date on which plaintiff “initiated informal EEO counseling.” Id.
at 23.
At the pleading stage, these documents are not sufficient to show that defendant is
entitled to judgment. First, plaintiff does not concede in his September 2013 letter that the
letter was his first contact with an EEO counselor. Although it appears that the agency
found in its decision that plaintiff did not initiate contact until September 2013, defendant
does not argue that the agency’s findings must be given preclusive effect in this court, and
I cannot assume that plaintiff agrees with the agency’s finding. Carroll v. Yates, 362 F.3d
984, 986 (7th Cir. 2004) (by attaching administrative decision to complaint, plaintiff is not
vouching for accuracy of conclusions in that decision).
Second, defendant does not point to any allegations or documents attached to the
complaint showing when the agency actually made its decision regarding which candidates
to interview. Because 29 C.F.R. § 1614.105(a)(1) gives a complainant 45 days from the
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“date of the matter alleged to be discriminatory” to contact a counselor, it is the date that
defendant chose not to interview plaintiff that is controlling. The letters defendant cites
indicate when the agency anticipated it would make a decision. However, defendant cites
no authority suggesting that the agency was required to make a decision by the anticipated
date.
Thus, even if I assume that plaintiff did not contact the EEO counselor until
September 2013, I cannot say as matter of law that plaintiff failed to comply with §
1614.105(1)(a).
Accordingly, I am denying defendant’s motion to dismiss with respect to plaintiff’s
claims regarding defendant’s failure to interview him. If defendant believes that he can show
that plaintiff failed to meet an administrative deadline and is not entitled to tolling,
defendant may have until February 8, 2016 to file an early motion for summary judgment
devoted solely to that issue.
2. Mistreatment during the administrative proceedings
Plaintiff includes the following paragraph in his complaint: “I also encountered a
counselor named Renee Brown at the Equal Employment Opportunity Office of the USDARural Development in Washington, D.C. who just stonewalled my complaint in the initial
phase of my complaint in 2013 and early 2014. I had to make a complaint against her and
that agency too.” To the extent that plaintiff intends to bring a separate claim for an alleged
failure to handle his administrative complaint properly, I agree with defendant that plaintiff
has failed to state a claim upon which relief my be granted. There is no cause of action in
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this context for the way an agency processes a complaint.
Jordan v. Summers, 205 F.3d
337, 342 (7th Cir. 2000) (“Jordan's failure-to-process claim does not state a claim upon
which relief can be granted, and Customs is entitled to judgment as a matter of law.”). “If
a party is not happy with the result he received from the [agency], he is free to file a
discrimination lawsuit in federal court, which is what plaintiff did.” Stewart v. Shinseki, No.
12-cv-337-bbc, 2012 WL 2328213, at *2 (W.D. Wis. June 19, 2012). If plaintiff believes
that the agency’s conduct hindered his ability to meet administrative deadlines, he is free to
make that argument at the summary judgment stage as a reason for rejecting any arguments
by defendant that the case should be dismissed for plaintiff’s failure to meet one or more of
those deadlines.
ORDER
IT IS ORDERED that
1. Plaintiff Thomas McCarthy’s motion for a default judgment, dkt. #9, is DENIED.
2. Plaintiff’s motion to modify his request for relief, dkt. #15, is GRANTED.
Plaintiff’s motion will be treated as an addendum to plaintiff’s complaint.
3. Defendant Thomas Vilsack’s motion to dismiss, dkt. #10, is GRANTED with
respect to plaintiff’s claim that defendant mishandled his administrative complaint. The
motion is DENIED with respect to plaintiff’s claims that defendant discriminated against
him by refusing to interview him for two loan specialist positions.
4. Defendant may have until February 8, 2016, to file an early motion for summary
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judgment devoted solely to the issue whether plaintiff complied with the administrative
prerequisites for his claims. Filing such a motion does not affect the parties’ rights to file a
separate motion for summary judgment on other issues. However, the parties should not
anticipate that the court will extend the April 15, 2016 deadline for filing dispositive
motions if a decision on an early motion for summary judgment is pending then.
Entered this 5th day of January, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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