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STACK v. TURNAGE

April 4, 1988

JULIE STACK, Plaintiff,
v.
GENERAL THOMAS TURNAGE, ET AL., Defendants



The opinion of the court was delivered by: CONABOY

 RICHARD P. CONABOY, UNITED STATES DISTRICT JUDGE.

 PROCEDURAL HISTORY

 Plaintiff, Julie Stack, initiated this action by filing a complaint in the United States District Court for the Eastern District of Pennsylvania. Thereafter, the action was transferred to the Middle District of Pennsylvania upon motion of the Defendants. Plaintiff named in the complaint the following Defendants: General Thomas Turnage, Administrator of the Veterans Administration; the Veterans Administration Medical Center of Wilkes-Barre, Pennsylvania; James Mahoney, Plaintiff's Supervisor at the Veterans Administration Medical Center in Wilkes-Barre, Pennsylvania; and the United States of America. The complaint contains four (4) counts alleging three separate causes of action against the various Defendants. Count I is for employment discrimination based on sex based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e-1, et seq.; Count II of the complaint alleges a state pendent claim of intentional infliction of emotional distress against the Defendant Mahoney; Count III of the complaint sets forth a claim under Federal Tort Claims Act against the United States of America; and Count IV of the complaint sets forth a claim for punitive damages against Defendant Mahoney.

 In response to the complaint, the Defendants have filed a motion to dismiss, or in the alternative, for summary judgment. The Defendants argue that Count I should be dismissed because the Plaintiff has failed to exhaust her available administrative remedies; Counts II and IV should be dismissed on the grounds that the Court lacks subject matter jurisdiction over pendent party Mahoney; Count III should be dismissed because the Plaintiff has failed to pursue her available administrative remedies under the Federal Tort Claims Act.

 On November 16, 1987, the parties stipulated that the Defendants, Veterans Administration and Veterans Administration Medical Center were improper parties to this action and that they should, therefore, be dismissed. On November 30, 1987, the stipulation was approved by the Court.

 FACTS

 Plaintiff was employed by the Veterans Administration Medical Center in Wilkes-Barre, Pennsylvania, in November, 1979.

 Plaintiff alleges that beginning April, 1984, her supervisor continually attempted to form a "personal" relationship with her, which the Plaintiff refused. Plaintiff alleges that as a result of her refusal to enter into the non-work related relationship with her supervisor, she was subjected by her supervisor to various forms of sexual harassment, loss of job opportunities, disciplinary action, reassignments, and unfavorable working conditions. Plaintiff further alleges that the Veterans Administration and the Medical Center failed to take any corrective actions to prevent her supervisor from harassing and sexually discriminating against her despite informal attempts on her part to resolve the situation. On February 10, 1986, the Plaintiff met with the Veterans Administration Medical Center's EEO counselor to discuss acts of discrimination and harassment directed toward her while an employee at the Medical Center.

 Plaintiff received a notice of final interview with the EEO counselor on April 8, 1986. Thereafter, she filed on April 8, 1986, a formal complaint with her EEO counselor. Plaintiff alleges that she was forced to take sick leave at that time, and during this period she saw both a physician and a psychologist. In June, 1986, Plaintiff alleges that she felt compelled to resign her position in order to prevent her physical and psychological health from deteriorating any further.

 Defendants currently maintain that Plaintiff's failure to comply with the regulations by submitting her complaints in an untimely fashion for administrative review severely hampered the agency's attempt to properly investigate her claims. On June 6, 1986, the EEO officer, Michael H. Parnell, advised Plaintiff's counsel of the specific problems encountered by the agency due to the untimeliness of her complaint and her allegations' lack of specificity. In that regard, Plaintiff was directed to submit additional information stating the specific incidents giving rise to her complaint, and whether Mrs. Stack contacted an EEO counselor concerning each incident.

 Defendants indicate in their brief in support of the motion to dismiss that the Plaintiff responded to the request for information, however, it is not exactly clear as to what the Plaintiff submitted.

 On October 10, 1986, Plaintiff's counsel wrote a letter to the Veterans Administration advising it of his legal representation of Plaintiff and requesting further advice regarding the resolution of Plaintiff's discrimination charges. Plaintiff avers that on December 12, 1986, she had not received her response from the Veterans Administration and, accordingly, filed the instant case in federal court.

 ANALYSIS

 EXHAUSTION of TITLE VII ADMINISTRATIVE REMEDIES.

 Before filing a Title VII suit in federal court, a federal employee is generally required to exhaust administrative remedies. See Brown v. General Services Administration, 425 U.S. 820, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976).

 The applicable regulation provides that a federal agency may accept a discrimination complaint only if:

 
(T)he complainant brought to the attention of the Equal Opportunity Counselor the matter causing him to believe he had been discriminated against within thirty calendar days of the date of that matter, or, if a personnel ...

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