Belton v. Principi ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
WILLIE D. BELTON, SR., )
)
Plaintiff, )
)
v. ) Civil Action No. 04-704 (EGS)
)
ERIK K. SHINSEKI,1 )
Secretary of Veteran )
Affairs, )
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Willie D. Belton, Sr., proceeding pro se, has
brought claims against defendant, the Secretary of Veteran
Affairs, under the Age Discrimination in Employment Act (“ADEA”),
29 U.S.C. § 633a et seq., the Americans With Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., and Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.
After plaintiff filed an amended complaint, defendant moved to
dismiss or, in the alternative, for summary judgment. Upon
consideration of defendant’s motion, the responses and replies
thereto, the applicable law, the entire record herein, and for
the reasons stated below, the Court GRANTS defendant’s motion to
dismiss and DENIES AS MOOT defendant’s motion for summary
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Pursuant to Federal Rule of Civil Procedure 25(d),
Secretary Shinseki, in his official capacity as the Secretary of
Veteran Affairs, is automatically substituted as the named
defendant.
judgment.
I. Background
Plaintiff is an African-American male who was forty-eight
years old when his amended complaint was filed. Am. Compl. ¶ 6.
Plaintiff joined the Veterans Administration (“VA”) in 1981 as an
electrician’s helper. Id. ¶ 6. He alleges that he was disabled
while in military service and that his lower back is “rated at
20%.” Id. ¶ 9. Plaintiff claims that he was subjected to
intentional discrimination, retaliation, and a hostile work
environment based on his age, race, and disability. Id. ¶¶ 8-10.
Specifically, plaintiff claims that he applied for a General
Engineer position (Vacancy Announcement No. VAR-DV-0-1956) in
April 2000.2 Id. ¶¶ 20, 27. He alleges that he was qualified
for the position but that he was not selected or notified of the
non-selection. Id. ¶ 27. Defendant, however, points to evidence
that plaintiff was notified of his ineligibility for the position
on May 12, 2000. Def.’s Statement of Material Facts Not in
Genuine Dispute ¶ 3; Pl.’s Opp’n Ex. B-1.
Plaintiff also claims that he was harassed by his
supervisor. In particular, plaintiff alleges that his supervisor
sent plaintiff e-mails requesting that he complete his work
2
Plaintiff alleges that he applied for the position in
April 2000, while the EEO letter sent to plaintiff by defendant
refers to the application date as May 2000. Because the relevant
date is when plaintiff was notified of his non-selection,
however, this discrepancy is immaterial.
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orders on the same day they were assigned to him. Am. Compl.
¶ 9. He also claims that he received a phone call at home from
his supervisor, who threatened physical harm after plaintiff
filed complaints. Id. ¶ 14. Finally, plaintiff alleges that his
supervisor retaliated against him by forcing him to work with a
co-worker who plaintiff claims was known to be “dangerous.”
Id. ¶ 16. More generally, plaintiff contends that he was
discriminated and retaliated against because the VA refused to
provide him with “electrically protective clothing.” Id. ¶¶ 10-
12.
Plaintiff contacted an Equal Employment Opportunity (“EEO”)
counselor on June 25, 2001 with claims of harassment and non-
selection on the basis of race and physical disability. See
Def.’s Mot. Ex. 1. He then filed an initial EEO complaint on
August 24, 2001. Id. On January 3, 2002, the VA accepted for
further processing plaintiff’s harassment claim and rejected as
untimely his non-selection claim because plaintiff did not
contact a counselor within forty-five days of the date of his
non-selection. See id. at 4. On September 25, 2003, plaintiff
was placed in a “Leave Without Pay” status pending resolution of
workers’ compensation claims related to his continued
unauthorized absences from work. See Def.’s Exs. 7-8. When his
workers’ compensation claims were denied by the Department of
Labor on March 15, 2004, plaintiff was placed in an “Absent
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Without Leave” status. See Def.’s Mot. Exs. 7-8.
Plaintiff filed a complaint in this Court in April 2004 and
sought leave to amend the complaint in March 2005. Defendant
moved to dismiss the amended complaint pursuant to Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6) or, in the alternative,
for summary judgment pursuant to Rule 56. Plaintiff filed a
“preliminary” opposition and, after defendant filed a reply,
moved for an extension of time to respond to defendant’s reply
and to obtain counsel.3 The Court granted plaintiff’s motion,
directing plaintiff to file a “final opposition” and permitting
defendant to file a surreply. The parties did so, and the motion
is ripe for decision.
II. Standard of Review
A. Rule 12(b)(1)
On a motion to dismiss for lack of subject-matter
jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1), the plaintiff bears the burden of establishing that the
court has jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992). Because subject-matter jurisdiction focuses on
the court’s power to hear the claim, however, the court must give
the plaintiffs’ factual allegations closer scrutiny when
resolving a Rule 12(b)(1) motion than would be required for a
3
Plaintiff did not succeed in securing the representation
of counsel, and has instead proceeded pro se for the duration of
this lawsuit.
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Rule 12(b)(6) motion for failure to state a claim. Macharia v.
United States, 334 F.3d 61, 64, 69 (D.C. Cir. 2003). Thus, to
determine whether it has jurisdiction over the claim, the court
may consider materials outside the pleadings where necessary to
resolve disputed jurisdictional facts. Herbert v. Nat’l Acad. of
Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992).
B. Rule 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 8(a), a pleading
stating a claim for relief must contain “‘a short and plain
statement of the claim showing that the pleader is entitled to
relief’” in order to provide the defendant with “fair notice of
the claims against” him. Ciralsky v. CIA, 355 F.3d 661, 669, 670
(D.C. Cir. 2004) (quoting Fed. R. Civ. P. 8(a)); see also
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per curiam).
“[W]hen a complaint adequately states a claim, it may not be
dismissed based on a district court’s assessment that the
plaintiff will fail to find evidentiary support for his
allegations or prove his claim to the satisfaction of the
factfinder.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563
n.8 (2007). In considering a 12(b)(6) motion, the Court should
construe the complaint “liberally in the plaintiff’s favor,”
“accept[ing] as true all of the factual allegations” alleged in
the complaint. Aktieselskabet AF 21. November 2001 v. Fame Jeans
Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (alteration in original)
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(quoting Kassem v. Wash. Hosp. Ctr., 513 F.3d 251, 253 (D.C. Cir.
2008)). A plaintiff is entitled to “the benefit of all
inferences that can be derived from the facts alleged.” Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
C. Pro se litigants
The pleadings of pro se parties are “to be liberally
construed, and a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson, 127 S. Ct. at 2200 (internal
citations and quotation marks omitted). But “although a court
will read a pro se plaintiff’s complaint liberally,” a pro se
complaint, no less than any other complaint, “must present a
claim on which the Court can grant relief.” Chandler v. Roche,
215 F. Supp. 2d 166, 168 (D.D.C. 2002) (citing Crisafi v.
Holland, 665 F.2d 1305, 1308 (D.C. Cir. 1981)). Because pro se
litigants are afforded a more lenient pleading standard, their
failure to respond to an argument is not construed as a
concession unless they have been advised of this rule. See Neal
v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992); Fox v. Strickland,
837 F.2d 507, 509 (D.C. Cir. 1988). This Court gave such notice
by way of an Order issued on November 26, 2004. Defendant also
provided plaintiff with the requisite notice in its renewed
motion to dismiss or for summary judgment filed on May 19, 2005.
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III. Discussion
A. Non-Selection Claim
An aggrieved federal employee must initiate contact with an
EEO counselor within forty-five days of the date of the event
believed to be discriminatory or retaliatory; for personnel
actions, contact must occur within forty-five days of the
effective date of the personnel action. 29 C.F.R. §
1614.105(a)(1). Although this time limit is not a jurisdictional
bar to bringing suit in federal court, it nevertheless operates
like a statute of limitations to bar claims not timely raised
before the employer agency. See Bowden v. United States, 106
F.3d 433, 437 (D.C. Cir. 1997). The D.C. Circuit, moreover, has
emphasized that courts should exercise their equitable power to
toll the statute of limitations “only in extraordinary and
carefully circumscribed instances.” Mondy v. Sec’y of Army, 845
F.2d 1051, 1057 (D.C. Cir. 1988).
Under this standard, plaintiff’s discrimination claim based
on non-selection for the General Engineer vacancy must be
dismissed as untimely. Plaintiff alleged in his complaint that
he was never notified of his non-selection, but has since
acknowledged that he was notified of his ineligibility for the
position on May 12, 2000. See Pl.’s Opp’n ¶ 6; Pl.’s Ex. 2.
Plaintiff, however, did not contact an EEO counselor until June
25, 2001, more than thirteen months later. See Def.’s Mot. Ex.
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1. Plaintiff argues that he was late in contacting an EEO
counselor because the May 12, 2000 letter did not advise him of
the time limits. Pl.’s Opp’n at 2. The Court certainly
recognizes that the prudent course for defendant would have been
to provide such notice to plaintiff. The agency’s failure to do
so, however, does not constitute the type of “extraordinary”
circumstance that merits equitable tolling of the forty-five day
limit. See, e.g., Williams v. Munoz, 106 F. Supp. 2d 40, 43
(D.D.C. 2000) (citing examples of cases of equitable tolling
where the defendant “engaged in affirmative misconduct” or
“tricked plaintiff into allowing the filing deadline to pass”).
In short, because plaintiff has failed to demonstrate that the
forty-five day filing limit should be excused, his non-selection
claim must be dismissed for failure to exhaust administrative
remedies. The Court therefore grants defendant’s motion to
dismiss this claim for lack of subject matter jurisdiction.
B. Remaining Claims
Plaintiff’s amended complaint also alleges retaliation and
harassment claims based on age, race, and disability. In his
opposition to defendant’s motion, however, plaintiff states that
he “withdraws his claim of age discrimination as to the
harassment, but is without knowledge as to the awardee of the
non-selection claim as to the General Engineer position.” Pl.’s
Opp’n ¶ 3. Additionally, plaintiff’s opposition accepts most of
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defendant’s statement of material facts, disputing only two
statements: (1) defendant’s allegation that his non-selection
claim was untimely, and (2) the characterization of his worker’s
compensation claims. Compare Def.’s Statement of Material Facts
¶¶ 4, 8, with Pl.’s Opp’n at 4. Because plaintiff was given
notice that failure to contest defendant’s arguments would result
in the Court treating his claims as conceded, the Court will
grant defendant’s motion to dismiss plaintiff’s claims of age
discrimination, retaliation, harassment, and a hostile work
environment. See, e.g., Fox, 837 F.2d at 509; Stephenson v. Cox,
223 F. Supp. 2d 119, 122 (D.D.C. 2002) (“[W]hen a plaintiff files
a response to a motion to dismiss but fails to address certain
arguments made by the defendant, the court may treat those
arguments as conceded, even when the result is dismissal of the
entire case.”).
IV. Conclusion
For the reasons set forth above, the Court GRANTS
defendant’s motion to dismiss and DENIES AS MOOT defendant’s
motion for summary judgment. An appropriate Order accompanies
this Memorandum Opinion.
SIGNED: Emmet G. Sullivan
United States District Judge
July 27, 2009
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