Durr v. Geithner, No. 8:2012cv02137 - Document 35 (D. Md. 2014)
Court Description: MEMORANDUM OPINION (c/m to Plaintiff 8/22/14 sat). Signed by Chief Judge Deborah K. Chasanow on 8/22/14. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : WINZOIR VAN DURR : v. : Civil Action No. DKC 12-2137 : JACOB J. LEW, SECRETARY OF TREASURY : MEMORANDUM OPINION Presently pending and ready for resolution in this disability discrimination case is the motion for relief from the August 12, 2013 dismissal order pursuant to Fed.R.Civ.P. 60(b) filed by pro se Plaintiff Winzoir Van Durr. (ECF No. 34). On October 20, 2011, Plaintiff filed a complaint against Timothy Franz Geithner, former Secretary of the United States Department of the Treasury, in the Northern District of Florida. 1).1 (ECF No. Plaintiff filed an amended complaint on January 4, 2012.2 (ECF No. 7). In the amended complaint, Plaintiff, a former employee with the Department of the Treasury, alleged that he was diagnosed with cancer during his employment and was denied 1 As Judge Williams noted in his memorandum opinion, Jacob J. Lew succeeded Timothy Geithner as Secretary of the Treasury, thus he has been substituted as Defendant in his official capacity. 2 The case was transferred to this district from the Northern District of Florida on July 16, 2012. (ECF Nos. 18 & 19). sick leave, annual leave, and leave requested a reasonable accommodation. that [The Agency s] illegal without pay after (Id. at 4). actions placed he He stated [him] into an intolerable position and he left the government in order to be properly treated. (Id.). Plaintiff alleged that he retired from the Department of the Treasury in July 2007 when he was constructively discharged. Defendant moved summary judgment. to dismiss or, in the alternative, for Judge Williams issued a memorandum opinion and order on August 12, 2013, dismissing Plaintiff s complaint (ECF Nos. 32 & 33).3 on failure to exhaust grounds. Williams concluded that Plaintiff did not Judge exhaust his administrative remedies as to the constructive discharge claim. Plaintiff filed the November 15, 2013. instant motion for reconsideration on (ECF No. 34). Fed.R.Civ.P. 60(b) states that, [o[n motion and just terms, the court may relieve a party or its legal representative from a final judgment, following grounds: excusable neglect; (1) (2) order, or mistake, newly proceeding inadvertence, discovered on of the surprise, or evidence any that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 3 59(b); (3) fraud (whether The case was transferred to the undersigned on January 24, 2014, after Judge Williams retired. 2 previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. Motions for reconsideration are an extraordinary remedy which should be used sparingly. Pacific Ins. Co. v. Am. Nat l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). Plaintiff s motion does not meet any of the grounds for reconsideration set forth in Rule 60(b). asserts that [o]nly after th[e] EEOC Plaintiff s motion administrative efforts concluded through its normal progression that ended on July 2011 did Plaintiff, not agreeing with the relief sought and the relief not being in line with standard practices filed this case in Federal Court. (ECF No. 34, at 1). Plaintiff s argument is premised on a misunderstanding of the exhaustion requirement and the memorandum opinion. Title VII requires, and the Fourth Circuit has held, that the scope of a judicial complaint is administrative charge. limited to allegations in the EEOC Jones v. Calvert Group Ltd., 551 F.3d 297, 300 (4th Cir. 2009); Adams v. Wallenstein, 814 F.Supp.2d 516, 523 (D.Md. 2011) ( Because the ADA incorporated the procedural requirements of Title VII, a plaintiff must exhaust 3 his administrative remedies as to those claims before filing a complaint. ). A Title discrimination claims VII lawsuit stated in may the only include initial those charge, those reasonably related to the original complaint, [] those developed by reasonable investigation of the original complaint, and those contained in official amendments to the EEO complaint. Jones, 551 F.3d at 300; Khoury v. Meserve, 268 F.Supp.2d 600, 608 (D.Md. 2003) (holding that a plaintiff who took no official action to amend her administrative charge of discrimination had not exhausted her remedies with respect included in the original charge). to the claim not Although Plaintiff insists that he filed his federal lawsuit only after all administrative efforts had actually not been the concluded, case (ECF concerning No. his 34, at 2), constructive this is discharge claim. The record reflects the following chain of events during the administrative phase. Plaintiff filed a formal complaint of discrimination on July 12, 2006, alleging discrimination on the basis of race, disability. complaint reasonable age, (ECF that the sex, No. reprisal, Department accommodation when physical Plaintiff 27-3). and alleged and in mental his of the Treasury denied he was diagnosed with Plaintiff later withdrew some of his claims. EEO him a cancer. On August 27, 2007, the EEO Office issued a Final Agency decision finding that 4 Defendant had discriminated against Plaintiff based on disability and ordered payment of compensatory damages in the amount of $4,000. (ECF No. 27-5). decision on September 28, 2007. Plaintiff appealed the (ECF No. 27-6, at 2). On February 19, 2010, the EEOC issued an appellate decision, EEOC 0120080078, affirming in part the original decision, but also finding that the Department of Treasury failed reasonably to accommodate Plaintiff when he was denied sick leave and charged AWOL. (Id.). The EEOC ordered Defendant to pay additional compensatory damages and required Plaintiff to submit evidence of such damages. 8, 2010, Plaintiff then submitted a letter, dated April requesting $1,475,570 in compensatory damages. Apparently, in this correspondence, he stated that because of the agency s discrimination he was forced to retire earlier than he had planned . . . and has subsequently incurred debts which he is unable to pay because of his forced retirement. (Id.).4 Plaintiff retired sometime in 2007. Judge Williams noted in his memorandum opinion that the April 2010 correspondence was the first time Plaintiff alleged constructive discharge.5 The memorandum opinion concluded that 4 In a second Final Agency Decision, dated July 12, 2010, Plaintiff was awarded $40,000 in compensatory damages. 5 Notably, in a later decision adjudicating Plaintiff s request for reconsideration of the EEOC s decision regarding compensatory damages, the EEOC wrote: 5 Plaintiff failed to exhaust his administrative remedies as to the constructive discharge claim on several grounds. [a]lthough Plaintiff Complaint that stonewalled Plaintiff Defendant his [did] stonewalling still Complaint in thereafter; requests not forced Plaintiff allege[d] thus, his him for 2006 he to and could July 12, constructively for a assert quit. Defendant continued not have No. when to he do and Defendant s 32, at 8). filed the EEO a year so asserted discharge when he filed his EEO complaint. EEO accommodation, that (ECF 2006 denied reasonable satisfactorily worked July in First, for constructive Nor did Plaintiff amend his EEO complaint to add a constructive discharge claim. Judge Williams noted that the constructive discharge claim also was not reasonably related to the other claims A review of the record shows that Complainant did not make a claim of involuntary retirement until his submission of his claim for compensatory damages in April 2010, pursuant to our order in EEOC Appeal No. 0120080078. The record is unclear as to the date of Complainant s actual retirement. Complainant is advised that if he wishes to pursue a claim of constructive discharge, he may file a mixedcase EEO complaint (appealable to the Merits System Protection Board (MSPB)), by initiating contact with an Agency EEO counselor, or he may file a mixed-appeal with the MSPB. (ECF No. 34-2, at 3) (emphases added). 6 Plaintiff asserted, as there was no indication that the EEO investigated the constructive discharge claim. Judge Williams also noted that Plaintiff never challenged the EEOC s characterization of his claims as not relating to constructive discharge. (ECF No. 32, at 8-9). Williams reasoned Plaintiff counselor within that forty-five discharge in 2007. days failed of the to Moreover, Judge contact alleged an EEO constructive As a first step, the employee must seek consultation, regarding the adverse employment action, with an EEO counselor within forty-five days of the effective date of the alleged Figueroa v. discrimination. Geithner, 711 29 C.F.R. F.Supp.2d 562, ยง 1614.105(a)(1); 570 (D.Md. 2010). Judge Williams found that Plaintiff did not allege nor did the record reflect that he contacted an EEO counselor forty-five days of his forced resignation in July 2007. No. 32, at 9). Plaintiff did not even raise within (ECF constructive discharge until April 2010. Plaintiff has not established any ground for relief under Rule 60(b).6 be denied. For the foregoing reasons, Plaintiff s motion will A separate Order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 6 Plaintiff s motion will be denied, thus his request that the court appoint an attorney for him because he cannot afford one is moot. 7
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