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Durr v. Geithner

United States District Court, Fourth Circuit

August 12, 2013

TIMOTHY FRANZ GEITHNER et al., Defendants.


ALEXANDER WILLIAMS, Jr., District Judge.

Defendant's Motion to Dismiss or, Alternatively, for Summary Judgment is pending before the Court. The Court has reviewed the record and deems a hearing unnecessary. For the following reasons, the Court GRANTS Defendant's Motion to Dismiss.


Pro se Plaintiff Winzoir Van Durr, an African-American male, has filed a pro se Complaint sounding in disability discrimination. Plaintiff has named Timothy Franz Geithner, onetime Secretary of the Treasury, as Defendant. Jack Lew has succeeded Geithner as Secretary of the Treasury. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes Lew, in his official capacity, as Defendant.

Plaintiff alleges that he worked for Defendant from December 2001 to July 2007, at which time he alleges that Defendant constructively discharged him. On March 22, 2006, Plaintiff requested a reasonable accommodation based on having cancer. Doc. No. 27-5 at 1. Defendant denied his request on June 2, 2006. On the same day, Plaintiff orally complained to an EEO counselor. See id. On July 12, 2006, Plaintiff filed a formal complaint of discrimination with Defendant's EEO office (Office). In his complaint, Plaintiff alleges that Defendant discriminated against him because of his "race, age, sex, reprisal [sic], and physical and mental disability." Doc. No. 27-3 at 3. The gravamen of Plaintiff's complaint is that Defendant unlawfully denied his request for a reasonable accommodation for his cancer condition. To support this claim, Plaintiff states that Defendant "constructively denied me the reasonable accommodation and stonewalled, hell hacked and used abused means and refuse to answer or cooperate with me and refused or failed to provide me an answer to my request [sic]." Id.

On September 29, 2006, Defendant sent Plaintiff a letter stating that it had received Plaintiff's complaint and accepted it for processing. Doc. No. 27-4. The letter references prior communications between Plaintiff and an EEO counselor and states that Plaintiff had agreed to withdraw certain claims. Based at least in part on these prior communications, the letter states that the Office planned to investigate six claims. Id. at 1-2. Three of these six claims relate to Plaintiff's allegation that Defendant failed to provide him with a reasonable accommodation for his cancer, such as being denied sick leave and the option to work from home. Similarly, claim 4 states that "[b]eginning on August 14, 2006, and on-going, the Complainant was placed on Absent Without Leave (AWOL) status during times when he had requested sick leave status." Id. at 2. The remaining two claims neither state nor relate to constructive discharge. See id. The record does not reflect that Plaintiff ever challenged this characterization of his complaint.

On August 27, 2007, the Office issued a Final Agency Decision (FAD) on Plaintiff's complaint. Doc. No. 27-5. Although the Office dismissed several of Plaintiff's claims, the Office found that Defendant had discriminated against Plaintiff based on disability when it delayed and subsequently denied Plaintiff's request to work from home. Id. at 15. Consequently, inter alia, the Office ordered Defendant to pay Plaintiff "compensatory damages in the amount of $4, 000." Id. at 17.

Plaintiff appealed the Office's FAD. On February 19, 2010, the EEOC issued an appellate decision affirming in part and reversing in part the Office's FAD. In pertinent part, the EEOC concluded that Defendant also discriminated against Plaintiff based on disability when it denied Plaintiff sick leave and placed him on AWOL status. See Doc. No. 27-6 at 2. The EEOC further ordered Defendant to pay Plaintiff additional compensatory damages, ordering Plaintiff to submit evidence of such damages. See id.

Through letters submitted in April 2010, Plaintiff requested $1, 475, 570 in compensatory damages. Plaintiff based this figure partly on allegations that Defendant's discrimination forced him to retire earlier than he had planned, thereby causing him to sell his house at a loss and incur other losses. See id. Plaintiff essentially concedes that he first raised this theory of constructive discharge in the April 2010 correspondence. See Doc. No. 29 at 3. In a second FAD (Second FAD) issued on July 12, 2010, the Office awarded Plaintiff $40, 000 in compensatory damages. Id. at 5. The Office did not base this award on Plaintiff's assertion that Defendant had constructively discharged him, concluding that Plaintiff "did not allege constructive discharge and there was no adjudication or decision on that issue." Id. at 4. On February 3, 2011, the EEOC issued a decision affirming the Second FAD. Doc. No. 27-7. The EEOC likewise concluded that Plaintiff's constructive discharge "claim was not part of his complaint [] and the Commission did not find constructive discharge." See id. at 6.

On October 20, 2011, Plaintiff filed the instant action in the Northern District of Florida. Plaintiff filed his First Amended Complaint on January 4, 2012. Doc. No. 7. Plaintiff generally alleges that Defendant discriminated against him by denying his requests for "reasonable accommodations, sick leave, annual leave, and leave without pay." Doc. No. 7 at 4. Plaintiff further alleges that he did not voluntarily retire in July 2007. Rather, Plaintiff alleges that Defendant forced him to retire because missing work was the only way that he could obtain proper treatment for his cancer. See id. at 5.

The Northern District of Florida transferred the case to this District. See Doc. No. 18-19. After Court-ordered service, Defendant filed a Motion to Dismiss or, Alternatively, for Summary Judgment (Motion to Dismiss). See Doc. No. 27-1. Defendant argues that Plaintiff's claims fail because he (1) did not assert a constructive discharge claim in his EEO complaint and (2) did not contact an EEO counselor within forty-five days of his alleged constructive discharge. This Motion is ripe.


A. Motion to Dismiss-12(b)(1)

Generally, "a failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim." Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009) (citation omitted). "Courts may consider materials outside the pleadings to determine whether they have subject matter jurisdiction." Bennett v. Kaiser Permanente, Civil Action No. 10-CV-2505 AW, 2013 WL 1149920, at *2-3 (D. Md. Mar. 20, 2013) (citation omitted). Although the Fourth Circuit has held that the failure of a federal employee to timely contact an EEO counselor does not, per se, deprive courts of subject matter jurisdiction, the issue is still whether the employee has exhausted administrative remedies. See Zografov v. V.A. Medical Ctr., 779 F.2d 967, 969-70 (4th Cir. 1985). "Motions to dismiss for failure to exhaust administrative remedies are governed by Fed.R.Civ.P. 12(b)(1)...." Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D. Md. 2003) (citation omitted); Puryear v. Shrader, Civil No. PJM 11-3640, 2013 WL 1833262, at *1 (D. Md. Apr. 30, 2013) (citation omitted). "[I]f the governmental entity ...

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