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Alvin J. Gillyard v. Timothy F. Geithner

June 5, 2012

ALVIN J. GILLYARD,
PLAINTIFF,
v.
TIMOTHY F. GEITHNER, SECRETARY OF THE UNITED STATES DEPARTMENT OF THE TREASURY, DEFENDANT.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

I. INTRODUCTION

Plaintiff Alvin J. Gillyard ("Plaintiff") brings this action under Title VII of the Civil Rights Act of 1964 alleging race discrimination against Defendant Timothy F. Geithner, Secretary of the U.S. Department of the Treasury ("Defendant"). Plaintiff avers that as an employee of the United States Mint located in Philadelphia, Pennsylvania, Defendant engaged in race-based discrimination against him by terminating Plaintiff during a reduction in force and also by failing to hire Plaintiff back for several positions for which he qualified. In his Complaint, Plaintiff pleads two counts: (1) violation of Title VII for race discrimination; and (2) violation of Title VII for raced-based retaliation. Defendant responded with a Motion to Dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to exhaust administrative remedies.

For the reasons that follow, the Court will grant Defendant's Motion and dismiss Plaintiff's Complaint without prejudice.

II. BACKGROUND*fn1

Plaintiff, who is African-American, is a former United States Mint employee having begun his employment on November 16, 1998, as a Material Expediter in Philadelphia, Pennsylvania.

Pl.'s Compl. ¶ 8, ECF No. 1. Plaintiff avers Defendant terminated him in January 2002 as part of a reduction in force ("RIF"). Id. ¶ 9. Defendant recalled Plaintiff in March 2004 to a temporary two-year appointment. Id. ¶ 10. Upon his return, Plaintiff learned he had had "bumping rights" over two Caucasian Material Expediters at the time of the RIF - that is, Plaintiff had seniority over those two employees, and Defendant should not have terminated Plaintiff. Id. ¶ 11. After discovering this information, Plaintiff complained to Adrian Crosby, Defendant's Equal Employment Opportunity ("EEO") counselor, about this alleged discriminatory treatment. Id. ¶ 13. Plaintiff avers that Crosby looked into his complaint, but did not file a formal EEO complaint on Plaintiff's behalf. Id. Crosby did not contact Plaintiff about his complaint or have any further communication apprising Plaintiff of his rights.

In 2007, Plaintiff obtained a Heat Treater position with Defendant. Id. ¶ 15. This was a temporary position, and although Plaintiff applied for other permanent positions, his efforts were unavailing. Id. ¶ 15. After Defendant denied one of Plaintiff's applications for a permanent position, Plaintiff and about seven other African-American employees filed a complaint of race discrimination with Defendant's Office of Special Counsel-Merit Protection Board. Id. ¶ 16. Plaintiff was the spokesperson for this group. Id. In January 2008, Defendant dismissed the group complaint. Id. ¶ 18. Thereafter, Plaintiff applied for a job with Defendant in Denver, Colorado. Id. ¶ 19. Defendant offered Plaintiff the job, but then withdrew this offer because Plaintiff had not registered for selective service. Id. In March 2008, Defendant laid off Plaintiff from his temporary Heat Treater position. Id. ¶ 22.

Plaintiff then applied for four jobs with Defendant, but to no avail: (1) on April 15, 2008, Defendant rejected Plaintiff's application for the position of Material Handler Operator; (2) on December 22, 2008, Defendant rejected Plaintiff's application for the position of Metal Forming Machine Operator; (3) on January 7, 2009, Defendant rejected Plaintiff's application for the position of Coining/Weighing/Kuster Machine Operator; and (4) on November 16, 2010, Defendant rejected Plaintiff's application for the position of Metal Forming Machine Operator. Id. ¶¶ 23-25. Plaintiff avers that Defendant's refusal to hire him was retaliation for his previous allegations of discrimination.

On February 19, 2009, Plaintiff filed a complaint of discrimination with the Department of the Treasury based on Defendant's rejection of Plaintiff's applications for Material Handler Operator, Metal Forming Machine Operator, and Coining/Weighing/Kuster Machine Operator. Plaintiff requested a hearing. This hearing was held before Administrative Law Judge ("ALJ") Jeanne M. L. Player on December 28, 2009. On October 3, 2011, ALJ Player issued her decision granting Defendant summary judgment and finding no discriminatory retaliation. Within her opinion, ALJ Player indicated that Plaintiff moved to amend his complaint to include Defendant's rejection of the Metal Forming Machine Operator position. ALJ Player denied Plaintiff's motion, but directed Defendant as follows: "[U]pon receipt of [the decision], the agency should process this claim and a new claim according to the applicable regulations, providing notice to the complainant of the information he must provide for the formal complaint and investigation." Decision Granting Summ. J. Pursuant to 29 CFR § 1614.109(g) 3, Def.'s Mot. to Dismiss Ex. 3, ECF No. 3. On March 13, 2011, the Department of the Treasury issued a final order implementing ALJ Player's decision and advised Plaintiff of his right to appeal to the EEO Commission or file a civil complaint in a United States District Court.*fn2 See Dep't of the Treasury Final Order, Def.'s Mot. to Dismiss Ex. 4.

On November 17, 2011, Plaintiff appealed ALJ Player's decision. On January 11, 2012, Plaintiff filed the instant lawsuit and withdrew his administrative appeal. See ECF No. 1. In his Complaint, Plaintiff claims that Defendant discriminated against him on the basis of race when terminating Plaintiff during the RIF. Pl.'s Compl. ¶¶ 26-28. Plaintiff also claims that Defendant retaliated against him on the basis of race by rejecting Plaintiff's applications for various positions for which he qualified. Id. ¶¶ 29-31. Defendant filed a motion to dismiss arguing that Plaintiff failed to exhaust his administrative remedies for both of his claims. ECF No. 3.

Plaintiff responded in opposition. ECF No. 6. The Court held oral argument. The motion is now ripe for disposition.

III. STANDARD OF REVIEW

A party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering such a motion, the Court must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." DeBenedictis v. Merrill Lynch & Co., Inc., 492 F.3d 209, 215 (3d Cir. 2007) (internal quotation marks removed). To withstand a motion to dismiss, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. Although a plaintiff is entitled to all reasonable inferences from the ...


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