Petty v. Fed. Bureau of Prisons

DARREN L. PETTY, Plaintiff, v. FEDERAL BUREAU OF PRISONS, andKATHLEEN H. SAWYER, DIRECTOR, Defendants.

Civil No. 17-03682 (RBK/AMD)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY CAMDEN VICINAGE

November 1, 2019

NOT FOR PUBLICATION

OPINION

KUGLER, United States District Judge:

This matter comes before the Court on Defendants Federal Bureau of Prisons ("BOP") and Director Kathleen H. Sawyer's¹ Motion for Partial Summary Judgment (Doc. No. 26). Plaintiff Darren L. Petty, a BOP employee, asserts that after he sought relief from workplace discrimination the BOP retaliated by repeatedly refusing to promote him, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. Defendants contend that Plaintiff has not complied with Title VII's administrative exhaustion requirement, meaning that he cannot bring any claims in this action for not being promoted or selected for other BOP positions (the "non-selection claims"). For the reasons set forth below, Defendant's Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

A. Factual Background

Plaintiff is an employee of the BOP, currently working at Federal Correctional Institution ("FCI") Fort Dix in New Jersey. Doc. No. 1 ("Compl.") at 3. In his Complaint, he appears to allege that the BOP started improperly passing him over for promotion in 2013. Id. at 4. Between May 2013 and May 2017, he applied for ninety-three job vacancies at the BOP. Doc. No. 26-3 ("SUMF") at ¶ 33. Of these, he was hired three times, withdrew his application five times, and was found not qualified or ineligible thirty-nine times. Id. at ¶ 34. He was found qualified but not among the best qualified ten times and was considered as an exception to merit promotion sixteen times. Id. at ¶ 36. He was on the best-qualified list and considered, but not selected, for 101 positions, most of these for promotion to Lieutenant.² Id. at ¶ 36.

During his employment at the BOP, Plaintiff initiated the Equal Employment Opportunity ("EEO") complaint process four times. Id. at ¶ 38. The first instance, Case No. BOP-2015-0024, came while Plaintiff was employed as a Senior Officer Specialist at FCI Estill in Estill, South Carolina. Id. at 39, 43. On October 1, 2014, Plaintiff contacted a BOP EEO counselor to make an informal complaint, alleging that he experienced retaliation and discrimination based on his race, color, and sex after reporting wrongdoing at his institution. Id. at ¶ 40. The EEO counselor issued Plaintiff a notice of right to sue on October 31, 2014, and Plaintiff filed a formal EEO complaint on November 7, 2014. Id. at ¶ 41. The BOP accepted for investigation his claim that "[f]rom July 2014 through November 2014, [he was] subject to harassment in the form of lowered performance evaluations, falsified documents, an Employee Assistance Program (EAP) letter, and written and verbal comments." Id. at ¶ 42.

As the investigation progressed, Plaintiff attempted to amend his EEO complaint several times. Id. at ¶¶ 44-52. Of relevance here, in April 2015 Plaintiff attempted to add a claim that he had been passed over for promotion to a position at Federal Detention Center ("FDC") Miami. Id. at ¶ 48. In May 2015, the BOP informed Plaintiff that this claim would only be considered as additional evidence in support of his pending claim and thus would neither be added to the complaint as a new claim to the complaint nor investigated. Id. at ¶ 49. Plaintiff was able to successfully amend his complaint to include a claim that he was subject to two investigations in retaliation for reporting misconduct. Id. at ¶¶ 51-52.

On July 18, 2015, Plaintiff requested a hearing before the United States Equal Opportunity Commission ("EEOC"). Id. at ¶57. The BOP sent Plaintiff a copy of the Report of Investigation on July 31, 2015. Id. at ¶ 59. On July 30, 2015, Plaintiff sought to amend his complaint with an allegation that his new captain could not "voucher [him] out" to two institutions that called for him, harming his career. Id. at ¶ 60. On August 17, 2015, he again attempted to amend his complaint with a claim of non-selection for promotion at FCI Estill. Id. at ¶ 61. On September 30, 2015, the BOP informed Plaintiff that these amendment requests could not be included in the investigation because the Report of Investigation had already been completed, and that if he wished to pursue these claims he could contact an EEO counselor. Id. at ¶ 65-67.

Plaintiff's claims moved through the initial stages of the EEOC hearing process. Id. at ¶¶ 68-74. However, Plaintiff refused to comply with the BOP's interrogatory requests, causing the presiding administrative judge to dismiss the case for failure to prosecute, returning the case to the agency for final decision. Id. at ¶¶ 75-79. The case remains pending before the agency. Id. at ¶ 80.

Meanwhile, in April 2016 Plaintiff initiated a new EEO proceeding, Case No. BOP-2016-0640. In this case, Plaintiff alleged that the BOP's Office of Internal Affairs ("OIA") hadimproperly sustained an allegation against him. Id. at 81. Plaintiff's formal EEO complaint alleged that this action was retaliatory and discriminatory on the basis of race, sex, and sexual orientation. Id. at ¶ 83. However, in an August 18, 2016 letter, the Director of the EEO staff for the Department of Justice informed Plaintiff that his complaint was dismissed for failure to state a claim because it was an improper collateral attack on an OIA investigation. Id. at ¶¶ 84-85.

Plaintiff appealed the dismissal of his EEO complaint to the EEOC, but the EEOC denied his appeal on the grounds that Plaintiff did not suffer an adverse action as a result of the OIA investigation. Id. at ¶¶ 87-90. Plaintiff moved for reconsideration, but the EEOC denied his motion. Id. at ¶¶ 92-94.

Plaintiff began the EEO process a third time in March 2017, in Case No. BOP-2017-0520. Id. at ¶ 95. In his informal counseling session, Plaintiff alleged that an associate warden at FCI Fort Dix discriminated against him on the basis of race, color, sex, and disability, and retaliated against him for protected activity, when she indicated that he had been disciplined during a reference check for a correctional counselor position he had applied for at Metropolitan Detention Center ("MDC") Brooklyn. Id. at ¶ 95. The EEO counselor issued Plaintiff a notice of right to file a discrimination complaint, but Plaintiff has not yet filed a formal EEO complaint in this matter. Id. at ¶¶ 96-97.

On October 19, 2018, Plaintiff contacted an EEO counselor, initiating Case No. BOP-2019-0214. Id. at ¶ 98. In this case, Plaintiff alleges that he has been retaliated against, harassed, and discriminated against by an Office of Inspector General investigation into allegations of sexual assault and sexual harassment made against him by a white female employee at FCI Fort Dix. Id. Plaintiff alleges that this investigation has resulted in various non-selections. Id. at ¶100. Plaintiff filed a formal EEO complaint in this matter on February 20, 2019. Id. at ¶ 102.

B. Procedural History

Plaintiff commenced this lawsuit on May 23, 2017. Compl. at 1. In his Complaint, Plaintiff alleges that the OIA investigation that he challenged in Case No. BOP-2016-0640 was improper because the investigator used "the incorrect program to sustain the misuse" in retaliation for Plaintiff filing complaints. Compl. at 3. Plaintiff claims that as a result of the improper OIA investigation he has been passed over for promotion "at least 50 times" despite being qualified. Id. at 4. Defendants filed their Answer (Doc. No. 17) to the Complaint on June 14, 2018, and the present motion for partial summary judgment on March 8, 2019.

II. LEGAL STANDARD

The court should grant a motion for summary judgment when the moving party "shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue is "material" to the dispute if it could alter the outcome, and a dispute of a material fact is "genuine" if "a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Matsushida Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) ("Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968))). In deciding whether there is any genuine issue for trial, the court is not to weigh evidence or decide issues of fact. Anderson, 477 U.S. at 248. Because fact and credibility determinations are for the jury, the non-moving party's evidence is to be believed and ambiguities construed in his favor. Id. at 255; Matsushida, 475 U.S. at 587.

Although the movant bears the burden of demonstrating that there is no genuine issue of material fact, the non-movant likewise must present more than mere allegations or denials tosuccessfully oppose summary judgment. Anderson, 477 U.S. at 256. The nonmoving party must at least present probative evidence from which jury might return a verdict in his favor. Id. at 257. The movant is entitled to summary judgment where the non-moving party fails to "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

III. DISCUSSION

While Plaintiff's Complaint does not specify his cause of action, its reference to retaliation indicates that he is bringing his claim under Title VII. Doc. No. 1 at 3.³ In any event, Title VII is his only viable cause of action. See Robinson v. Dalton, 107 F.3d 1018, 1020-21 (3d Cir. 1997) (noting that Title VII is "the exclusive remedy for federal employees to allege discrimination in the workplace").

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