Glidden v. Furgal et al
Filing
41
ORDER RULING ON REPORT AND RECOMMENDATIONS adopting 39 Report and Recommendations, granting defendants' 22 Motion to Dismiss, finding as moot 36 Motion to Stay Scheduling Order. Signed by Honorable Joseph F Anderson, Jr on 03/11/09. (bshr, )
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IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF SOUTH CAROLINA C O L U M B IA DIVISION P h i llip E. Glidden, ) ) P l a i n t if f , ) v. ) ) David Furgal; Craig Valentine; Chanel Frazier; ) S a n d r a Harrison; Shelia E. Edmunds, ) ) D e f e n d a n ts . ) ____________________________________ ) C/A No.: 3:08-1532-JFA-PJG
ORDER
T h is matter is before the court for review of the Magistrate Judge's report and re c o m m e n d a tio n dated February 20, 2009 [dkt. #39] ("Report") made in accordance with 28 U .S .C . § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g) (D.S.C.). T h e magistrate judge makes only a recommendation to the Court, to which any p a rty may file written objections . . . . The Court is not bound by the re c o m m e n d a tio n of the magistrate judge but, instead, retains responsibility for t h e final determination. The Court is required to make a de novo d e te rm in a tio n of those portions of the report or specified findings or re c o m m e n d a tio n as to which an objection is made. However, the Court is not re q u ire d to review, under a de novo or any other standard, the factual or legal c o n c lu s io n s of the magistrate judge as to those portions of the report and r e c o m m e n d a tio n to which no objections are addressed. While the level of s c ru tin y entailed by the Court's review of the Report thus depends on whether o r not objections have been filed, in either case the Court is free, after review, to accept, reject, or modify any of the magistrate judge's findings or r e c o m m e n d a tio n s . W a lla c e v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992) (citatio n s omitted). T h e pro se plaintiff, Phillip E. Glidden, initiated this action against the defendants a lle g in g claims of discrimination under Title VII of the Civil Rights Act of 1964, as
a m e n d e d , 42 U.S.C. §§ 2000e, et seq. ("Title VII"). Specifically, plaintiff contends he was s u b j e c te d to verbal abuse and intimidation while he served as an employee of the United S ta te s Postal Service Mail Handling Facility in West Columbia, South Carolina. D ef en d an ts filed a motion to dismiss on August 26, 2008 [dkt. #22], and the court is s u e d an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), notifying p la in tiff of the summary dismissal procedure and possible consequences if he failed to a d e q u ate ly respond to the motion for summary judgment. Plaintiff's response in opposition to the motion was filed on September 25, 2008 [dkt. #30]. T h e Magistrate Judge's Report recommends that the defendants' motion to dismiss s h o u ld be granted on grounds that plaintiff has not exhausted his administrative remedies b e f o r e filing a Title VII claim in federal court. The Report suggests that the individual def en d an ts are not proper defendants in this federal employment discrimination action, which b y statute can only be brought against the head of the agency or department in his official c a p a c ity. The Report sets forth in detail the relevant facts and standards of law on this m a tte r, and the court incorporates such without a recitation. Plaintiff was advised of his right to file objections to the Report by March 9, 2009. As of the date of this order, the court has n o t received any objections to the Report. Title VII provides the exclusive remedy for discrimination claims in federal e m p lo ym e n t and outlines the procedures by which an aggrieved person may seek relief from u n la w f u l discrimination. Brown v. Gen. Serv. Admin, 425 U.S. 820, 835 (1975).
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A d d itio n a lly, such a civil action is limited to the head of the department, agency or unit, as a p p ro p ria te . 42 U.S.C. § 2000e-16(c). Therefore, the proper defendant in this suit is the P o s tm a s te r General, not the named individual defendants. Although plaintiff in his response u n ila te ra lly changed the caption and attempted to amend his complaint to name the P o s tm a ste r General as a defendant in this matter, he did so without leave of court or consent o f the opposing party as required by Fed. R. Civ. P. 15(a). Independently, as the Report recommends, the action is subject to dismissal because p l a in t if f has not properly exhausted his administrative remedies. While Title VII creates a rig h t of action for employees alleging discrimination, federal employees must exhaust their a d m in istra tiv e remedies before exercising this right. Laber v. Harvey, 438 F.3d 404, 415 (4th C ir. 2006). T h e Report reviews various Fourth Circuit and sister Circuit precedent and notes that th e courts have not been uniform in their treatment of the exhaustion of remedies. For e x a m p le, in Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009), the Fourth C irc u it stated that the failure of a plaintiff to exhaust the administrative remedies of a Title V II claim deprives the federal court of subject matter jurisdiction. However, the court in D a v is v. N.C. Dep't of Corr., 48 F.3d 134, 140 (4th Cir. 1995) referred to one of the steps to accomplish exhaustion as a "jurisdictional prerequisite" and stated that such a failure to c o m p ly means that the court's jurisdiction had not been properly invoked. Regardless of w h e th e r the analysis is conducted under a 12(b)(1) or 12(b)(6) framework, there appears no
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d is p u te that as of the date of the filing of plaintiff's lawsuit on April 10, 2008, he had not re c e iv e d a right-to-sue letter. Plaintiff filed his original complaint with the agency on November 29, 2007 and a f in a l agency decision issued on December 18, 2007, dismissing the complaint on procedural g ro u n d s . Plaintiff then filed an timely appeal with the Commission on January 2, 2008 p u rs u a n t to 29 C.F.R. § 1614.402(a) and has the option to file an action in this court after 180 d a ys of the filing of the appeal or within 90 days of receiving the Commissioner's final d e c is io n . Plaintiff filed this action in this court prematurely, prior to the expiration of the re q u is ite 180-day waiting period after appealing the agency's decision to the Commission. T h e record is unclear as to whether the agency has completed its investigation of the merits o f his claim, although in plaintiff's reply to the defendants' motion he asserts that the agency d ism iss e d his claim based on the fact that he filed suit in federal court. Ultimately, this f a ilu re to exhaust by plaintiff means that neither the agency nor the Commission has fulfilled its investigation of the merits of plaintiff's claim. Thus, the court finds plaintiff's claim is p re m a tu re in this court. In light of the standard set out above, after reviewing the law and the Report, the court is of the opinion that further oral argument would not aid in the decisional process. The court f in d s the Magistrate Judge's recommendation fairly and accurately summarizes the facts and a p p lie s the correct principles of law. The court, therefore, adopts the recommendation of the M a g is tra te Judge and incorporates the Report by specific reference.
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T h e court grants defendants' motion to dismiss and dismisses this action without p r e ju d ic e . Plaintiff may choose to refile this action against the Postmaster General within 9 0 days of receiving the Commissioner's final decision on his appeal. If in fact, the C o m m is s io n e r has dismissed plaintiff's claim based on the fact that he filed suit in federal c o u r t, plaintiff should attach such documentation to his refiled suit. Should plaintiff choose to refile this action, he should take care to indicate whether he has obtained a right-to-sue le tte r, and should make specific allegations setting forth exactly what he claims the d e f e n d a n ts did to him which constituted discrimination under Title VII. IT IS SO ORDERED.
M arc h 11, 2009 C o lu m b ia , South Carolina
J o s e p h F. Anderson, Jr. U n ite d States District Judge
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