JOHNSON v. VENEMANJOHNSON v. VENEMAN
Pro se plaintiff Eugene Johnson brings this complaint against the United States Department of Agriculture (“USDA“) alleging discrimination and retaliation claims under
Plaintiff Eugene Johnson is an African-American male born in 1957. Beginning in 1997, Johnson worked at the USDA in the OBPA as a Program Analyst. Compl. ¶ 6, 8. Johnson alleges that while he was working for the OBPA, he was denied training and tuition assistance for job-related coursework at the University of Maryland, despite the fact that white female employees received tuition assistance. Compl. ¶ 10. Johnson also alleges delays of weeks and months in receiving promotions for which he was eligible, including not receiving his last promotion from GS-12 to GS-13, despite the fact that he received a fully successful performance rating for the relevant rating period from October 1, 2001 to September 30, 2002. Compl. ¶¶ 8, 21. On September 23, 2002, Johnson filed an informal EEO complaint against the USDA in response to being denied the GS-13 promotion. Compl. ¶ 22.
On February 12, 2003, Johnson filed a formal EEO complaint alleging Title VII and ADEA claims of race, age and sex discrimination.1 Compl. ¶ 3. Johnson‘s EEO complaint, as amended on April 8, 2003, alleges discrimination relating to: (1) denials of training requests and tuition assistance for work-related courses; (2) denial of a promotion on September 23, 2002;
Johnson alleges that on April 7, 2003, he was put on a Performance Improvement Plan (“PIP“) for 90 days as retaliation for his EEO complaint. Compl. ¶ 22. At the conclusion of the PIP, on July 11, 2003, he received a letter stating that his performance during the PIP was unacceptable and denying him a within-grade increase (“WGI“) from GS-12, step 2 to GS-12, step 3. Compl. ¶ 24. Johnson requested reconsideration of the USDA‘s refusal to grant him the WGI, but his request was denied on August 12, 2003. Compl. ¶¶ 25-26. Johnson appealed that denial to the Merit System Protection Board (“MSPB“) on September 5, 2003. Compl. ¶ 26.
On November 12, 2003, at an MSPB appeal status hearing presided over by Judge Barbara Mintz, Johnson and the USDA entered into an agreement to settle the pending claims and all other claims Johnson may have had against the USDA. USDA Mot., Ex. 2 at 3 (hearing transcript). The hearing proceeded as entered as follows:
JUDGE MINTZ: [...] Before we went on the record, the parties reached a settlement in this issue. Mr.
Alderman, do you want to list the basic parts of the settlement agreement as you understand them? [...]
[...]
MR. ALDERMAN: We have: That Mr. Johnson will be allowed to finish his detail, which is currently 120 days and expected to go through the middle of January;
That thereafter, Mr. Johnson will be placed on administrative leave for 60 days;
That Mr. Johnson‘s within grade increase denial will be reversed, and he will be placed at GS-12 step 3, retroactively to whenever the correct date was;
That Mr. Johnson‘s record will be cleared of the PIP and the below fully successful evaluation, so that the last evaluation will reflect that Mr. Johnson was at a fully successful level of performance.
At the end of the 60 day administrative leave period, Mr. Johnson will resign from his position.
[...]
And future employers will be referred to a neutral reference[...]
JUDGE MINTZ: Mr. Johnson also agrees to withdraw all litigation he has or could have against the [USDA] arising out of his employment?
MR. ALDERMAN: Correct, Your Honor.
[...]
And no attorneys’ fees.
[...]
JUDGE MINTZ: Is there anything else?
MR. RAMSEY [USDA Departmental Administration attorney]: No.
JUDGE MINTZ: Okay. I‘m assuming you want this settlement agreement entered into the record for enforcement by the MSPB?
MR. ALDERMAN: Yes, Your Honor.
MR. RAMSEY: Yes.
[...]
JUDGE MINTZ: Okay. I don‘t know whether you‘re going to reduce this to writing. There‘s no need to reduce the settlement agreement to writing. It is on the record, and I have that, and it will be on tape. But if you want to, you can send me a copy. But I will be dismissing this case as soon as the Court Reporter gets me a copy of the tape.
MR. ALDERMAN: To speak for the Appellant, we are perfectly content to have the settlement agreement be on the record.
JUDGE MINTZ: Okay.
MR. RAMSEY: What action will be taken to remove the EEOC claim?
MR. ALDERMAN: We will dismiss the EEOC claim today.
MR. RAMSEY: Okay.
[...]
USDA Mot., Ex. 2 at 3-7.
Later that day, Alderman sent notice to the EEOC that Johnson was voluntarily dismissing his EEO complaint with prejudice. USDA Mot., Ex. 3.
On November 17, 2003, Judge Mintz issued an Initial Decision (“Initial Decision“) dismissing the MSPB appeal of the August 12, 2003 WGI denial. USDA Mot., Ex. 4. The Initial Decision said that the settlement “appears to have been freely and voluntarily entered into by the parties,” and included a section titled, in bold, ”NOTICE TO APPLICANT.” USDA Mot., Ex. 4 at 1-3. This section stated that the decision would become final on December 22, 2003, and listed instructions on how to file a petition for review of the Initial Decision to the MSPB “if you believe that
On November 25, 2003, Johnson sent a letter to David Fax of the USDA under his EEO complaint caption, with the heading “COMPLAINANT DOES NOT AGREE WITH NOTICE OF DISMISSAL.” USDA Mot. at 11; Ex. 5. In this letter, Johnson stated that the November 12 settlement agreement was read into the record “without my agreement to settle,” and that the letter was “to inform you that
Also on November 25, 2003, the EEO issued an order dismissing Johnson‘s complaint based on Alderman‘s November 12 notice of voluntary dismissal. USDA Mot., Ex. 6 at 1. This order also included instructions that the USDA must issue a Final Order within 40 days of the Agency‘s receipt of the decision, notifying Johnson whether the USDA will fully implement the decision, and that Johnson would then have 30 days after he received the Final Order to appeal it. USDA Mot., Ex. 6 at 3.
On December 11, 2003, David Fax of the USDA sent Johnson a letter and duplicate email: (1) confirming that the agency received Johnson‘s “November 25, 2003 notification that Mr. Leslie D. Alderman III no longer represents” Johnson; (2) confirming that the agency had completed its performance under the settlement by revising Johnson‘s performance appraisal to “Fully Successful,” backdating the payment for his WGI as of July 14, 2003, and expunging all USDA personnel records of the performance issues, WGI denial, and EEO activity; and (3) requesting that Johnson complete his part of the agreement, including that he resign no later than March 16, 2004. USDA
Following Fax‘s letter, Johnson took the 60 days administrative leave provided for in the settlement agreement, and then ultimately resigned on March 15, 2004, though he stated that he was “resigning under constructive discharge reasons.” Johnson Opp‘n., Unnumbered Ex. (resignation letter from Johnson to USDA).
On May 5, 2004, Johnson filed a motion for waiver of time limit and a petition to vacate the settlement agreement. USDA Statement of Undisputed Fact ¶ 9. On June 29, 2005, the MSPB affirmed its decision to dismiss the case. USDA Statement of Undisputed Fact ¶ 9.
On September 17, 2004, Johnson filed his complaint in the above-captioned case. He alleged the Title VII and ADEA discrimination claims related to age, race, sex and reprisal described above, and requested a jury trial, declaratory judgment, back pay and front pay, attorney‘s fees, and compensatory and punitive damages of $6 million. Compl. at 12.
Finally, Johnson alleged that after his resignation, the USDA retaliated by attempting to prevent him from obtaining unemployment compensation. Compl. ¶ 62.
Under
A. Motion for Summary Judgment under Fed. R. Civ. P. 56(c)
Under
B. Pro Se Litigants
The pleadings of pro se parties “[are] to be liberally construed, and the pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (internal quotation marks and citations omitted).
III. Discussion
A. Waiver of Title VII Claims Arising Prior to the November 12, 2003 Settlement
The USDA argues that the Title VII claims that Johnson had or could have had at the time of the November 12, 2003 hearing settlement are barred by that agreement. USDA Mot. at 6. A settlement agreement concerning Title VII claims is sufficient to bar subsequent litigation of those claims. See, e.g., Maceda v. Billington, 2003 U.S. Dist. LEXIS 19263, No. 01-0461, at *6-7 (D.D.C. Jan. 17, 2003) (granting summary judgment for defendant Library of Congress based on prior settlement of employee‘s Title VII claims); Anzueto v. WMATA, No. 89-0522, 1992 WL 613240, at *1 (D.D.C. June 8, 1992) (”Anzueto I“) (same, except in favor of public transportation defendant) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 n.15 (1974)). A Title VII waiver must be “knowing and voluntary,” which means that it is “executed
The USDA argues that the November 12 settlement satisfied the “knowing and voluntary” waiver requirement because, in sum: (1) Johnson did not object to the agreement at the hearing; (2) Johnson‘s own counsel was authorized to speak for Johnson and agreed to the waiver; (3) the settlement was presided over and approved by a judge; (4) the judge in her Initial Decision concluded that the waiver was entered into voluntarily and both parties understood the terms; and finally (5) Johnson did not contest the waiver after a reasonable period of time, 35 days from the date of the Initial Decision. USDA Mot. at 8-10; USDA Reply at 4. Johnson argues that he did not enter the agreement voluntarily or knowingly, and that he protested the settlement by letter and termination of his attorney as soon as he “learned the terms of the agreement.” Johnson Opp‘n at 2.
The USDA provides sufficient evidence to show that the settlement agreement was “knowing and voluntarily” entered into, since Johnson agreed to the settlement through his attorney, did not personally object to the settlement despite being present, and the administrative judge stated she had “determined the parties understood the terms of the agreement.” USDA Mot., Ex. 4 at 1. Further, Johnson ultimately accepted the
B. Waiver of the ADEA Claims Arising Prior to the November 12, 2003 Settlement
In contrast to Title VII waiver requirements, the
Because Johnson‘s claim involves a settlement of an EEO claim, and alleges discrimination of a kind prohibited under
The USDA largely does not address the elements of OWBPA‘s higher “knowing and voluntary” waiver requirements, but instead relies on its general arguments for the Title VII “knowing and voluntary” waiver outlined above. USDA Mot. at 8-10. The USDA makes two arguments that address the OWBPA, however. First, that the OWBPA‘s implicit requirements for a written document were met by the transcription of the hearing. USDA Mot. at 9. Second, that even if the OWBPA applies, the higher OWBPA waiver requirements apply only to the ADEA claims, and the Title VII claims are still barred by the settlement agreement waiver. USDA
The USDA is correct that the OWBPA does not heighten the “knowing and voluntary” waiver requirements for claims other than ADEA claims. Under
The District Court has addressed the OWBPA requirements for knowing and voluntary waiver of ADEA claims. In Anzueto v. Washington Metropolitan Area Transit Authority (”Anzueto II“), a Hispanic Washington Metropolitan Area Transit Authority (“WMATA“) employee brought Title VII and ADEA discrimination claims against WMATA. 357 F. Supp. 2d 27, 28 (D.D.C. 2004). During litigation, Anzueto signed a waiver agreement of any potential claims against WMATA in exchange for enrollment in a new retirement program. Id. at 29. WMATA moved for dismissal based on the agreement and argued that the release met the OWBPA requirements for knowing
The waiver here differs from the waiver in Anzueto II because the November 12, 2003 settlement transcript makes no specific reference to waiving ADEA claims. USDA Mot., Ex. 3. The waiver thereby violates the OWBPA, which in part requires any waiver of ADEA-covered claims to specifically reference the ADEA.6
Though the ADEA claims survive the waiver analysis, the USDA separately argues that the ADEA claims existing at the time of the November 12, 2003 settlement are barred due to failure to exhaust. USDA Mot. at 10-12. As a general rule, parties “must exhaust prescribed administrative remedies before seeking relief from federal courts.” McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992). Thus, a party must timely pursue all applicable administrative remedies before bringing discrimination claims to federal court. See Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (citing Brown v. GSA, 425 U.S. 820, 832-33 (1976)). The defendant bears the burden of pleading and proving the untimely exhaustion of administrative remedies because it is an affirmative defense. Id. After a showing of failure to exhaust, the plaintiff may plead facts that support an equitable exception to the timeliness rule. Id.
1. Appeal of MSPB Initial and Final Decisions
A timely petition for review of an MSPB Initial Decision must be made to the clerk of the MSPB within 35 days of issuance, or within 30 days if received by the petitioner more than 5 days from the date of issuance.
The USDA has met its burden of showing failure to exhaust the MSPB settlement‘s administrative remedies. Johnson failed to timely appeal the Initial and Final Decisions of the MSPB, and has not offered good cause for his belated appeal. See
2. Appeal of EEOC Dismissal
A timely appeal of a dismissed EEO complaint must be made to the Office of Federal Operations within 30 days after the agency issues a Final Order implementing the decision.
The USDA argues that Johnson failed to exhaust the EEOC administrative remedies because Johnson “does not allege that he filed an appeal” of the EEOC dismissal order. USDA Statement of Undisputed Fact ¶ 7. Johnson asserts he properly filed the action before the Court because the EEOC took no final action within 180 days after he filed his complaint. Johnson Opp‘n at 3,7. Johnson supports this with a “right to sue” letter, dated July 22, 2004, from the EEOC complaints division. Johnson Opp‘n., Unnumbered Ex. (letter from Hickey to Johnson dated July 22, 2004).
There is no evidence presently before the Court that the USDA issued a timely Final Order in compliance with the
D. Exhaustion of Title VII and ADEA Claims Arising Subsequent to the November 12, 2003 Settlement
Johnson alleges that after the November 12, 2003 agreement, the USDA retaliated against him by refusing or opposing payment of unemployment benefits. Compl. ¶ 62. The USDA argues that Johnson has failed to show he has exhausted his administrative remedies regarding the alleged retaliation, and this compels the Court to dismiss. USDA Reply at 5. The USDA relies on the Declaration of Sadhna G. True, Director of Adjudication and Compliance for the USDA to show failure to exhaust. Ms. True
The USDA‘s declaration shows that no EEOC complaint related to alleged discrimination occurring after November 12, 2003 has been filed. Because there is no record that any new complaints have been filed, and because Johnson fails to address this issue in his opposition, the USDA has met its burden of showing failure to exhaust. Accordingly, the Court grants USDA‘s motion to dismiss Johnson‘s claim of unemployment benefit retaliation which arose after the November 12, 2003 settlement.
IV. Dismissal of Defendants Other than the Head of the USDA
The USDA argues that two defendants who are not the head of the USDA should be dismissed. The proper defendant in a civil employment discrimination action is “the head of the department, agency, or unit, as appropriate.”
Johnson‘s complaint clearly makes allegations against these defendants concerning acts done in their official capacity. Compl. ¶¶ 42-43. Accordingly, the Court GRANTS the USDA‘s request to dismiss the individually-named defendants, Geraldine Broadway and Jacquelyn Chandler.
V. Conclusion
For the reasons above, the USDA‘s Motion for Summary Judgment is DENIED IN PART with respect to ADEA claims alleged in his EEOC complaint, and GRANTED IN PART with respect to the remaining ADEA and Title VII claims. The Court also GRANTS the USDA‘s request to dismiss the two allegedly improperly named defendants.
Signed: Emmet G. Sullivan
United States District Judge
August 6, 2008