Swauger v. Ashley

JOHN SWAUGER, Plaintiff v. ROBERT P. ASHLEY, JR., Director, DEPT. OF DEFENSE - DEFENSE INTELLIGENCE AGENCY, Defendant.

Case No. 5:19-cv-01039-HNJ

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

May 7, 2020

MEMORANDUM OPINION AND ORDER

This action proceeds before the court on Defendant Robert P. Ashley's Motion to Dismiss. (Doc. 7). Ashley seeks an order dismissing John Swauger's disability discrimination, retaliation, and hostile work environment claims against him due to the court's lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, due to a failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).

The court concludes Swauger's claims warrant dismissal because he failed to exhaust his administrative remedies, and equitable tolling cannot relieve such failure. Therefore, based upon the analysis herein, the court GRANTS Ashley's motion to dismiss for Swauger's failure to exhaust his administrative remedies and DISMISSES WITH PREJUDICE Swauger's complaint.

STANDARD OF REVIEW

"Federal courts are courts of limited jurisdiction" and, as such, possess the power to hear cases only as authorized by the Constitution or United States' laws. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "[B]ecause a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case." Smith v. GTE Corp., 236 F.3d 1292, 1299 (11^th Cir. 2001). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). In addition, federal courts possess "an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006).

Federal Rule of Civil Procedure 12(b)(1) permits a district court to dismiss a case for "lack of subject-matter jurisdiction." Fed. R. Civ. P. 12(b)(1). The plaintiff bears the burden of persuasion on establishing the court's subject matter jurisdiction. OSI, Inc. v. United States, 285 F.3d 947, 951 (11^th Cir. 2002) (citing Thomson v. Gaskill, 315 U.S. 442, 446 (1942)).

The Eleventh Circuit establishes particular modes of review for Rule 12(b)(1) challenges to subject matter jurisdiction:

[A] motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) can be based upon either a facial or factual challenge to the complaint. If the challenge is facial, the plaintiff is leftwith safeguards similar to those retained when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised . . . Accordingly, the court must consider the allegations in the plaintiff's complaint as true . . . A facial attack on the complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion . . .

Factual attacks, on the other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits are considered. Furthermore, . . . the district court has the power to dismiss for lack of subject matter jurisdiction on any of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.

McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11^th Cir. 2007) (citing, inter alia, Williamson v. Tucker, 645 F.2d 404, 412 (5^th Cir. 1981); Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11^th Cir. 1990)) (internal quotation marks and alterations omitted).

Therefore, a factual challenge to subject matter jurisdiction typically permits a "trial court . . . to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Williamson, 645 F.2d at 412-13. No presumptive truthfulness would attach to a plaintiff's claims, and "the existence of disputed material facts [would] not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id.; see also Lawrence, 919 F.2d at 1528-29.

A plaintiff must exhaust his or her administrative remedies as a "jurisdictional prerequisite" to filing a lawsuit under the Rehabilitation Act. Crawford v. Babbitt, 186F.3d 1322, 1326 (11^th Cir. 1999); accord Thomas v. Nicholson, 263 F. App'x 814, 815 n.1 (11^th Cir. 2008) (per curiam) ("It is well-settled that, as a jurisdictional prerequisite, a federal employee must timely exhaust administrative remedies prior to filing an employment discrimination suit under Title VII.") (citing Crawford, 186 F.3d at 1326); Brown v. Snow, 440 F.3d 1259, 1263 (11^th Cir. 2006) ("[O]ur case law establishes that '[a] federal employee must pursue and exhaust her administrative remedies as a jurisdictional prerequisite to filing a Title VII action . . . .'") (second alteration in original) (quoting Crawford, 186 F.3d at 1326); see Doe v. Garrett, 903 F.2d 1455, 1461 (11^th Cir. 1990) ("[P]rivate actions against federal government employers under the [Rehabilitation] Act . . . must satisfy 'the requirement of exhaustion of administrative remedies in the manner prescribed by section [794a(a)(1)] and thus by Title VII.'") (second alteration in original) (quoting Milbert v. Koop, 830 F.2d 354, 357 (D.C. Cir. 1987)).¹

Accordingly, a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction constitutes the proper vehicle for challenging a plaintiff's failure to exhaust administrative remedies in the federal employment sector. See Brown, 440 F.3d at 1263 ("We have applied the exhaustion requirement to affirm dismissals for lack of subject matter jurisdiction when the employee did not provide information requested by the investigating agency."); Hawkins v. Esper, 5:18-cv-00127-AKK, 2019 WL 5963520, at *5 (N.D. Al. Nov. 13, 2019) (the plaintiff failed to exhaust his administrative remedies pursuant to Title VII, thus precluding the court's subject matter jurisdiction over his claims); Dillard v. Runyon, 928 F. Supp. 1316, 1325 (S.D.N.Y. 1996) ("If a [Title VII] claimant has not met the filing requirements, . . . there is no waiver of sovereign immunity, and accordingly, no subject matter jurisdiction. . . .Accordingly, defendant's motion here properly is characterized as one pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss for lack of subject-matter jurisdiction."); 5B Charles Alan Wright, Arthur R.Miller & May Kay Kane, Federal Practice and Procedure § 1350 (3d ed. 1995) ("[T]he Rule 12(b)(1) motion to dismiss for a lack of subject matter jurisdiction . . . may be appropriate when the plaintiff has failed to exhaust administrative procedures that have been established, typically by statute, as a prerequisite to his bringing suit.").²

And to be sure, a plaintiff's failure to comply with administrative filing deadlines constitutes a failure to exhaust administrative remedies, notwithstanding a plaintiff's timely filing of a complaint in federal court. See Hall v. Potter, No. 06-CV-5003(JFB)(AKT), 2009 U.S. Dist. LEXIS 18955, at *18-19 (E.D.N.Y Mar. 4, 2009) ("Where a plaintiff fails to appeal a decision to the EEOC within the thirty-day statutory limit but does ultimately file a civil action within ninety days of the EEOC's final determination of that untimely appeal, the timely filing of the federal court action does not cure that plaintiff's original failure to abide by the requisite filing periods."). The plaintiff bears the burden of proving he exhausted his administrative remedies. See Crawford, 186 F.3d 1322; OSI, Inc., 285 F.3d at 951 ("In the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists.").

STATUTORY AND REGULATORY FRAMEWORK

The Rehabilitation Act prohibits federal and private employers from discriminating against employees on the basis of a disability. 29 U.S.C. § 701, et seq., as amended. The Rehabilitation Act incorporates by reference the "remedies, procedures, and rights" prescribed in § 2000e-16 of the Civil Rights Act of 1964. Id. § 794a(a)(1). Thus, an aggrieved federal employee must press a disability discrimination claim pursuant to the administrative complaint and appeals process provided in the Equal Employment Opportunity Commission ("EEOC") regulations. See id; 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.103(a).

The employee must first attempt to resolve his or her claim through informal counseling. Id. § 1614.105(a). If informal counseling fails to resolve the matter, theemployee may file a discrimination complaint with the allegedly offending agency. Id. § 1614.106(a)-(c). The agency must investigate the matter upon receipt of the complaint, after which the employee may request a hearing before an EEOC administrative judge ("AJ"). Id. §§ 1614.106(e), 1614.108(f). Once the AJ renders a decision, the agency must "take final action on the complaint by issuing a final order within 40 days of receipt of the hearing file and the administrative judge's decision." Id. § 1614.110(a). If the agency fails to issue a final order within the forty-day period, the AJ's decision becomes the final action of the agency by operation of law. Id. § 1614.109(i).

The employee may file an appeal from an agency's adverse, final action with the EEOC Office of Federal Operations ("OFO") within thirty days of the receipt thereof. Id. §§ 1614.401(a), 1614.402(a). Alternatively, an employee who elects not to file an appeal with the OFO may file a civil action in the district court within ninety days of receipt of the agency's final action. Id. § 1614.407(a). "[W]hen a...