United States District Court, D. Alaska
ORDER RE MOTION FOR SUMMARY JUDGMENT
SHARON
L. GLEASON, UNITED STATES DISTRICT JUDGE.
Before
the Court at Docket 34 is Defendant's Motion for Summary
Judgment. Ms. Anthony-Pierre opposed at Docket 38. Defendant
replied at Docket 42. Oral argument was not requested and was
not necessary to the Court's decision.
FACTUAL
BACKGROUND
Heather
Anthony-Pierre is a former employee of Army & Air Force
Exchange Service (“AAFES”), who began working for
AAFES in 1997. In the fall of 2010, she suffered an
on-the-job injury to her left knee.[2] When she returned to work in
January 2012, she was given a position in central checkout in
order to accommodate work restrictions ordered by her
doctor.[3] Ms. Anthony-Pierre states that she then
“worked in a sedentary position at central checkout for
a period of one and a half years without any incident or
injury”[4] Ms. Anthony-Pierre asserts that she was
then “transferred to a new position by HR in the
tobacco area which required repetitive movement, including
getting up and down from a seated position to retrieve
tobacco products for customers.”[5] She explains:
As a result, my right knee and leg began to swell while I was
at work. My supervisors, Wanda Morissette and Ann Hendricks,
were the first ones that noticed the condition of my right
leg and knee (swelling). I then went to Mr. Fisher's
office to show him the condition of my right leg on the way
out of the office to the doctor. Mr. Fisher made a comment
that he doubted my being hurt based on rumors he heard from
other workers. Despite the fact that I had a valid written
Doctor's not stating otherwise.
No incident report was written or filed by any member of
management regarding the injury to my right knee [ ] with the
Workman's Comp division. When I asked Management (Mark
and Anne Hendricks) why they did not complete an incident
report, I was told because I had already had surgery on my
left knee, they did not feel it was necessary. I was told
they would inform Workman's Comp about my right knee,
however, this was never done. I was forced to file a report
with Workmen's Comp on my own because they failed to do
so. . . . [T]here were other employees (under-aged) that
management made accommodations for and rang up tobacco and
liquor purchases - they were not forced to change positions
like I was. No reasonable accommodation was made due to my
injury (disability).[6]
On
September 11, 2013, Ms. Anthony-Pierre saw her doctor for
pain in her left knee, although she indicated to the doctor
that she had instability in both knees.[7] On September 13,
2013, Ms. Anthony-Pierre was diagnosed by Kris Kile, a family
nurse practitioner, with a “left knee arthoscopy
partial lateral menisectomy” and was deemed disabled
from work starting on that date.[8] Her expected return date was
listed as “TBD.”[9]
Ms.
Anthony-Pierre sought workers' compensation for the
condition related to her left knee, but her claim was denied
based on a medical opinion that the 2010 injury had been
resolved.[10] In summer 2014, she submitted a
Worker's Compensation claim based on an alleged workplace
injury to her right leg that occurred on August 26,
2013.[11] This claim was denied on August 12,
2014.[12]
Ms.
Anthony-Pierre did not return to work at AAFES. On December
7, 2014, AAFES notified Ms. Anthony-Pierre that she was being
administratively separated from employment because she had
been in leave without pay (“LWOP”) status for
more than one year, pursuant to governing
regulations.[13] Ms. Anthony-Pierre did not dispute the
LWOP separation, but she filed a grievance in which she
requested to return to work under new medical
restrictions.[14] On January 7, 2015, AAFES denied the
grievance.[15]
PROCEDURAL
BACKGROUND
On
January 21, 2015, Ms. Anthony-Pierre made initial contact
with her agency's EEO office.[16] On January 23, 2015, Ms.
Anthony-Pierre received Appendix 17, which informed her that
upon receiving the Notice of Right to File a Discrimination
Complaint (Appendix 12), she must filed her written formal
complaint within 15 days.[17] On March 31, 2015, Ms.
Anthony-Pierre received the Notice of Right to File a
Discrimination Complaint (Appendix 12).[18] This document
informed her of the necessity of filing a written complaint
within 15 calendar days-here, by April 15, 2015-based on the
date she received the Notice.[19]
On May
5, 2015, Ms. Anthony-Pierre filed her EEO complaint, which
did not contain an explanation for its
untimeliness.[20] On May 19, 2015, AAFES issued a Final
Agency Decision, dismissing Ms. Anthony-Pierre's EEO
complaint as untimely pursuant to 29 C.F.R. §
1614.106(b) and 29 C.F.R. §
1614.107(a)(2).[21] On June 22, 2015, Ms. Anthony-Pierre
appealed the dismissal of her complaint to the
EEOC.[22] On October 23, 2015, the EEOC affirmed
the Agency's final decision, stating that Ms.
Anthony-Pierre did not timely file her complaint and did not
provide an adequate justification for the untimeliness to
warrant extension of the deadline.[23]
On
January 21, 2016, Ms. Anthony-Pierre filed the instant
Complaint in this Court.[24] On February 26, 2016, the Court
issued an Order to Show Cause with regard to Ms.
Anthony-Pierre's untimely filing of her EEO formal
complaint.[25] Ms. Anthony-Pierre provided a response
stating that at the time of the deadline for filing her EEO
complaint she was worried about her mother's back
surgery.[26] Ms. Anthony-Pierre also stated that a
close friend had passed away unexpectedly around that
time.[27] Ms. Anthony-Pierre also stated:
I was very ill and I called AAFES letting Miss Felecia
Goolsby . . . know what my situation [was] because at that
time I was severely distraught with grief. I was told by Miss
Goolsby she would forward my situation to Miss Shirley A.
Hudson [who] never respond[ed] to me. Miss Goolsby told me to
send in my documents as soon as I can and I was never told if
it was late that I could appeal my documents late arrival or
I would've done so.[28]
The
Court allowed the case to go forward.[29] Now before
the Court is Defendant's motion for summary judgment.
LEGAL
STANDARD
I.
Jurisdiction
This
Court has jurisdiction over this matter under 28 U.S.C.
§ 1331 because it is a civil action arising under
federal law, 42 U.S.C. § 2000e et seq. and 29
U.S.C. § 791 et seq. This Court also
has jurisdiction pursuant to 42 U.S.C. § 2000e-5(f)(3),
which specifically grants jurisdiction over Title VII claims
to the district courts.
II.
Motion for Summary Judgment
Federal
Rule of Civil Procedure 56(c) directs a court to grant
summary judgment if the movant “show[s] that there is
no genuine issue as to any material fact and that [the
movant] is entitled to a judgment as a matter of law.”
When considering a motion for summary judgment, a court views
the facts in the light most favorable to the non-moving party
and draws “all justifiable inferences” in the
non-moving party's favor.[30] To reach the level of a
genuine dispute, the evidence must be such “that a
reasonable jury could return a verdict for the non-moving
party.”[31] If the evidence provided by the
non-moving party is “merely colorable” or
“not significantly probative, ” summary judgment
is appropriate.[32]
DISCUSSION
Ms.
Anthony-Pierre brings her claims of employment discrimination
pursuant to Title VII of the Civil Rights of Act of 1964, 42
U.S.C. § 2000e et seq., and the Rehabilitation
Act of 1973, 29 U.S.C. § 791 et
seq.[33] Her Complaint alleges: (1) she was
assigned to a different register in 2013;[34] (2) her
supervisors did not file a workers' compensation claim on
her behalf regarding her knee problems in August or September
2013; and (3) AAFES discriminated against her when it
separated her from employment in December 2014 after she had
been in LWOP status for over a year.
A
federal employee seeking to pursue a court action against her
employer pursuant to Title VII or the Rehabilitation Act must
first exhaust her administrative remedies.[35] Federal
regulations require that an employee “must consult a[n]
[EEO] Counselor prior to filing a complaint in order to try
to informally resolve the matter” and must do so
“within 45 days of the date of the matter alleged to be
discriminatory.”[36]
Here,
some of Ms. Anthony-Pierre's discrimination claims relate
to actions that occurred in 2013, including the claim that
she was transferred to a new position and the claim that her
supervisors refused to submit a workers' compensation
claim. Ms. Anthony-Pierre acknowledges her “failure to
consult an EEO counselor within 45 days of” these
alleged discriminatory actions in 2013.[37] Therefore,
Ms. Anthony-Pierre's claims regarding any events that
occurred in 2013 are untimely.[38]
In her
opposition to the motion for summary judgment, Ms.
Anthony-Pierre asks the Court to “use its discretion to
excuse [this] technical failing[].”[39] A district
court may apply the doctrine of equitable tolling when
administrative deadlines are missed. But that doctrine
requires a plaintiff to show: “(1) that [she] has been
pursuing h[er] rights diligently, and (2) that some
extraordinary circumstance stood in h[er] way and prevented
timely filing.”[40] With her opposition, Ms.
Anthony-Pierre filed an affidavit in which she avers,
“I had no idea I needed to see the EEO counselor within
45 days of being discriminated or I would have done this back
in 2013.”[41] However, Ms. Anthony-Pierre acknowledged
during her deposition testimony that she had received EEO
training during her employment, which included instruction on
how and when to file a formal complaint. She also
acknowledged that she understood the procedure for filing a
complaint.[42] Ms. Anthony-Pierre's recent
contradictory affidavit does not create a genuine issue of
material fact.[43] Ms. Anthony-Pierre has not demonstrated
the requisite extraordinary circumstances sufficient to allow
the Court to excuse the lengthy delay in consulting an EEO
counselor with respect to the 2013 claims. Moreover, Ms.
Anthony-Pierre's assertion that she was unaware of the
necessity of contacting an EEO Counselor within 45 days of
the alleged discriminatory conduct, even if true, would not
warrant equitable tolling.[44]
Ms.
Anthony-Pierre timely consulted with an EEO counselor with
respect to the December 2014 separation claims. But as to
those claims, 29 C.F.R. § 1614.106(b) provides that a
formal “complaint must be filed within 15 days”
of when a plaintiff is notified of her right to file a
discrimination complaint. Ms. Anthony received a Notice of
Right to File a Discrimination Complaint from AAFES on March
31, 2015.[45] Ms. Anthony-Pierre thus had until April
15, 2015 to file her formal complaint with respect to the
December 2014 separation claims; she did not do so until May
5, 2015.[46] Therefore, her EEO complaint regarding
the December 2014 administrative separation was untimely.
Ms.
Anthony-Pierre asks the Court to excuse the delayed filing of
the EEO complaint. But as with the delay in consulting the
EEO counselor regarding the 2013 claims, Ms. Anthony-Pierre
has not demonstrated “that some extraordinary
circumstance stood in h[er] way and prevented timely
filing” with respect to the December 2014
claims.[47] Ms. Anthony-Pierre's recent
affidavit states, “I was prevented from filing the
complaint because of concern for my Mother, who had surgery
on March 31, 2015 and because on April 12, 2015, a close
family friend fell off a cliff and died.”[48] While the
surgery of a close relative can be quite stressful and the
death of a friend is indeed tragic, neither of these events,
either singly or in combination, are the type of
extraordinary circumstances that could warrant equitable
tolling.[49]
CONCLUSION
In
light of the foregoing, Defendant's Motion for Summary
Judgment at Docket 34 is GRANTED. The Clerk of Court is
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