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Zawoysky v. Charles E. Kelly Support Facility USAR Installation


May 17, 2010


The opinion of the court was delivered by: Ambrose, District Judge



Defendant, Charles E. Kelly Support Facility (CEK) USAR Installation, has filed a Motion to Dismiss pro se Plaintiff's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket No. 7). Pro se Plaintiff filed a Brief in Opposition. (Docket No. 9). As set forth more fully below, after careful consideration of the Motion and related filings, said Motion (Docket No. 7) is granted.


I. Background

At the time pro se Plaintiff filed his Complaint, he was a civilian army employee working at the Charles E. Kelly U.S. Army Reserve Support Facility. The Complaint asserts that Plaintiff was subject to unsafe working conditions due to improper maintenance of the ventilation system, including the removal of asbestos in November of 2000. (Docket No. 1, p. 1). Plaintiff became ill in March of 2001 and by July of 2001, Plaintiff was in a coma for two to three weeks. Id. He returned to work on a partial basis in April of 2002. Id. In 2003, Plaintiff started to think about filing a lawsuit, but decided to wait until he retired. (Docket No. 1, pp. 1-2). Then, during an EEO meeting in July of 2008, Plaintiff was told he had 45 days to file a complaint. Id., at p. 2. As a result, Plaintiff filed an EEO Complaint in August of 2008.*fn1

On October 17, 2008, Plaintiff's EEO Complaint*fn2 was dismissed as untimely pursuant to 29 C.F.R. §1614.107(a)(a). (Docket No. 1-8, p. 1). Plaintiff filed a timely appeal with the EEOC. Id. The EEOC affirmed the agency's final decision dismissing Plaintiff's Complaint on the basis of timeliness on April 16, 2009. Id., at p. 3. Plaintiff then filed a request for reconsideration, which was denied on June 4, 2009, because the request failed to meet the requirements for reconsideration set forth in 29 C.F.R. §1614.405(b). (Docket No. 1-9, p. 1).

On September 1, 2009, Plaintiff filed his Complaint in this Court. (Docket No. 1). On March 5, 2010, Defendant filed a Motion to Dismiss, or in the alternative, Motion for Summary Judgment. (Docket No. 7). The briefing for the same is complete.

II. Legal Discussion

A. Standard of Review*fn3

Failure to exhaust "constitutes a possible ground for dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Phillips v. Sheraton Society Hill, 163 Fed.Appx. 93, 2005 WL 3484200 (3d Cir. Dec. 21, 2005). When deciding whether to grant or deny a 12(b)(6) motion the Supreme Court has held:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atlantic Co. v. Twombly, 550 U.S. 544, 555 (2007) (cites and footnote omitted); see also, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (a plaintiff's factual allegations must be enough to raise a right to relief above the speculative level).

Most recently, in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), the Supreme Court held, ". . . a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at1949 (citations omitted).

In Iqbal, the Court specifically highlighted the two principles which formed the basis of the Twombly decision: First, for the purposes of a motion to dismiss, courts must accept as true all factual allegations set forth in the complaint, but courts are not bound to accept as true any legal conclusions couched as factual allegations. Id. at 1949-1950. See also, Fowler v. UPMC Shadyside, 578 F.3d 203 (3d. Cir. Aug. 18, 2009). Second, a complaint will only survive a motion to dismiss if it states a plausible claim for relief, which requires a court to engage in a context-specific task, drawing on the court's judicial experience and common sense. Id. at 1950. Where well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but has not shown -- the complainant is entitled to relief. Id., citing, F.R.Civ.P. 8(a)(2).

B. Title VII and ADEA Claims

Defendant argues that Plaintiff's Title VII claims and ADEA claim must be dismissed for:

(1) failure to exhaust his administrative remedies, and (2) failure to state a claim. (Docket No. 8, pp. 4-9).

1. Failure to Exhaust

It is well-established that, if required, "a plaintiff must exhaust all required administrative remedies before bringing a claim for judicial relief." Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997). Title VII and the ADEA require plaintiffs to exhaust administrative remedies prior to bringing a claim in district court. 42 U.S.C. §2000e-5(e)(1) ("Title VII"); 29 U.S.C. §626(d)(2) ("ADEA"). One of the requirements for exhausting administrative remedies is the timely filing of an administrative charge. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Failure to comply with this requirement is grounds for dismissal on the basis of failure to exhaust administrative remedies.

Federal employees who believe they have suffered a violation of discrimination based on, inter alia, sex, race, color, national origin, or religion (Title VII claims), or age (ADEA claims) must contact an agency's EEO counselor within 45 days of the complained incident. 29 C.F.R. §1614.105(a)(1).*fn4 I note that nowhere in Plaintiff's Complaint, however, does Plaintiff discuss any type of discrimination, let alone discrimination because of his race (Caucasian), his national origin (American), his gender (male), his religion (Catholic), and his age (53) when he was required to work in a building that was not properly maintained and had poor circulation from 1995 through 2001.*fn5 Nonetheless, even if the Complaint can be construed to somehow allege the same, Defendant argues that Plaintiff's Title VII and ADEA claims are barred because he failed to exhaust his administrative remedies in a timely manner. Even under the most liberal reading of Plaintiff's Complaint, I agree with Defendant that Plaintiff failed to timely file his Title VII and ADEA claims.

Plaintiff should have filed his claim(s) within 45 days of his alleged discrimination. Plaintiff filed his complaint with the EEOC in August of 2008. Thus, his discrimination had to have occurred 45 days prior thereto. In other words, his discrimination had to have occurred sometime between June of 2008 and August of 2008 for his contact with the agency to be timely.

Plaintiff's discrimination/injury described in the Complaint occurred, at the outset, in August of 2001. This is approximately 7 years beyond the 45 day prescribed time period. Thus, Plaintiff failed to timely contact an EEO counselor. Therefore, Plaintiff failed to timely exhaust his administrative remedies.

I will now turn to whether the time for filing should have been equitably tolled.

2. Equitable Tolling

Pro se Plaintiff's Complaint may be read to assert the doctrine of equitable tolling. Equitable tolling stops a limitations period from running when the accrual date has already passed. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994). Equitable tolling of a limitations period applies: "(1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Id. There is no evidence that the second or third scenarios are applicable to this claim. Furthermore, there is no suggestion that Defendant actively misled Plaintiff into not filing his claim. To the contrary, according to his Complaint, Plaintiff started thinking about filing a claim in 2003, but thought that he would wait until he retired. (Docket No. 1, p. 2). Plaintiff simply failed to exercise due diligence with regard to preserving his legal rights. The assertion that he was told at an EEO meeting in July of 2008 that employees have 45 days to file a complaint does not change things. There is no allegation of active misleading on the part of Defendant respecting Plaintiff's claim. Equitable tolling is an extraordinary remedy that should be used sparingly. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990). There is absolutely nothing in the Complaint that would lead this Court to believe there was any active misleading on the part of Defendant to trick or induce Plaintiff into not filing his charge with the EEO counselor in a timely manner. As such, the application of equitable tolling is not warranted in this case.

Thus, Plaintiff's Title VII and ADEA claims are time barred. Therefore, dismissal of those claims is warranted. Consequently, Plaintiff's Title VII and ADEA claims must be dismissed with prejudice*fn6 for failure to exhaust.*fn7

C. The Federal Employment Compensation Act ("FECA"), 5 U.S.C. § 8101, et seq.

Defendant also asserts that to the extent that Plaintiff is alleging an injury arising during the course of his federal employment, as opposed to discrimination, the exclusive remedy is FECA. (Docket No. 8, pp. 9-10). FECA "provides an exclusive and comprehensive worker's compensation scheme to federal employees for injuries that are 'sustained while in the performance of [their] duty.'" Horton v. U.S., 114 Fed.Appx. 931, 932 (Aug. 8, 2005), quoting, 5 U.S.C. §8102(a).*fn8

"Where [the] FECA applies, it unambiguously precludes 'all other liability of the United States" either "under a workmen's compensation statute or under a Federal tort liability statute.' " Di Pappa v. U.S., 687 F.2d 14, 17 (3d Cir. 1982), quoting, 5 U.S.C. § 8116(c). The decision to award FECA benefits is entrusted to the Secretary of Labor, whose decision is final and conclusive and not subject to review by this or any other court. 5 U.S.C. §8128(b).*fn9

Here, there is no doubt, based on the allegations of his Complaint, that Plaintiff contends he sustained injuries during the scope and course of his performance of his duties of employment. (Docket No. 1). Therefore, his exclusive remedy for the same is under FECA and is not subject to this court's jurisdiction. Consequently, dismissal with prejudice is warranted pursuant to FECA.

D. Federal Tort Claims Act ("FTCA"), 28 U.S.C. §2671, et seq.

Defendant also asserts that to the extent that Plaintiff would have any claim under the Federal Tort Claims Act ("FTCA"), said claim should be dismissed for failure to exhaust. (Docket No. 8, pp. 10-12). FTCA waives the sovereign immunity of the federal government in a limited number of circumstances to allow civil actions against the United States for injuries caused by a federal employee while acting within the scope of his or her employment. 28 U.S. C §2679(b)(1).*fn10

FTCA is the exclusive remedy for claims for money damages sounding in tort for injuries resulting from acts of federal agencies or employees. Id. A plaintiff must exhaust his administrative remedies before commencing an action based on an FTCA claim. 28 U.S.C. §2675(a);*fn11 McNeil v. U.S., 508 U.S. 106, 107-113 (1993). As set forth above, failure to exhaust is a fatal defect. McNeil, 508 U.S. at 111. In this case, there is simply no indication of what Plaintiff's FTCA claim(s) is or even that he filed an administrative claim prior to instituting the present suit. What is known, however, is that the alleged events occurred in 2001. Absent prior exhaustion for events that occurred in 2001, dismissal with prejudice*fn12 is warranted.*fn13

28 U.S.C.A. § 2675(a).


And now, this 17th day of May, 2010, upon consideration of Defendant's Motion to Dismiss (Docket No. [7]) is granted. The Complaint is hereby dismissed with prejudice. The case shall be marked "closed."

Donetta W. Ambrose United States District Judge

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