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Hobson v. Mattis

United States District Court, M.D. Tennessee, Nashville Division

May 24, 2017

FAYE R. HOBSON, Plaintiff,
v.
RETIRED GENERAL JAMES MATTIS, Secretary, Department of Defense, Defendant.

          MEMORANDUM

          ALETA A. TRAUGER United States District Judge

         Before the court is the defendant's Motion to Dismiss under 12(b)(1), or in the Alternative for Summary Judgment. (Doc. No. 45.) As explained herein, a plaintiff's failure to administratively exhaust her claims does not deprive the court of jurisdiction; dismissal under Rule 12(b)(1) is not warranted. However, the defendant's alternative motion for summary judgment based on the plaintiff's failure to exhaust administrative remedies will be granted.

         I. Factual and Procedural Background

         At all relevant times, plaintiff Faye Hobson worked for the United States Department of Defense Education Activity (“DoDEA”) as a Language Arts teacher at Camp Humphreys High School in South Korea, Pacific District. (Pl.'s Resp. to Def.'s Statement of Material Facts, Doc. No. 51 ¶ 1.) She is an African American woman and has been a teacher with the DoDEA for thirteen years. (Verified Compl., Doc. No. 1 ¶¶ 3, 21.)

         The plaintiff alleges that the DoDEA, acting through the plaintiff's supervisor, Principal Susan Kennedy, paid her $2, 795 as Extra Duty Compensation (“EDC”) for acting as Senior Class Sponsor during School Year (“SY”) 2013-2014, but it paid a white female, Michelle Mundy, EDC in the amount of $3, 915 for performing the same task during SY 2014-2015. (Id.) The plaintiff contends that the difference in pay was the result of race discrimination and that this discrimination was “expanded” when Kennedy prohibited the Senior Class of 2014 from publicly acknowledging Hobson as their Senior Class Sponsor at their graduation ceremony. (Id.) She also alleges that Kennedy did not award her “an incentive award due to personal reasons.” (Id. ¶ 6.) She learned of the pay discrepancy on January 30, 2015, and learned that she had been denied the incentive award on February 2, 2015. (Id.)

         Hobson's teaching position at Camp Humphreys was covered by a collective bargaining agreement (“CBA”) between the defendant and the labor union, the Overseas Education Association (“OEA”), representing the plaintiff's work unit. (Doc. No. 51 ¶ 2.) The CBA's Grievance Procedure is contained in Article 12 thereof. (CBA Art. 12, Doc. No. 47-7.) Step 1 of the procedure provides for the presentation and resolution of informal grievances. Step 2 provides for a formal, written presentation of the employee's grievance to her supervisor in the format prescribed by Article 12. The supervisor is to issue a written decision on the grievance within seven days. (CBA Art. 12 § 4.) Within ten days after receipt of that decision, the employee may advance the grievance to Step 3 by seeking review of that decision from the Regional Director of her division. The regional review is to be completed and a final decision rendered within twenty days from its receipt. (Id.) Thereafter, an aggrieved employee dissatisfied with that final decision may seek arbitration, but it appears that the union actually has to make the decision whether to proceed to arbitration on behalf of the employee. (See Id. § 6 (“Should either the Employer or the [OEA] be dissatisfied with the final decision of the other party in a grievance covered by this Agreement, the party ([OEA] or Employer) that brought the grievance may proceed to arbitration.”).)

         On February 3, 2015, the plaintiff invoked the CBA Grievance Procedure by filing a Step 2 formal written grievance pursuant to Article 12, Section 4 of the CBA (the “CBA grievance”). (See Grievance, Doc. No. 47-2, at 2 (“This grievance is being submitted under Step 2 of the grievance procedure.”); CBA Art. 12 § 4, Doc. No. 47-7, at 6 (defining procedure for submitting a formal written grievance under Step 2 of the Grievance Procedure).) In her CBA grievance, the plaintiff asserted claims based on the same events that underlie her claims in this court: that another employee was paid a higher rate in SY 2014-2015 for the same extra duties the plaintiff had performed in SY 2013-2014 as the Senior Class Sponsor; that the senior class was not allowed to present gifts to her at the graduation ceremony; and that she was denied an incentive award. The plaintiff mentions in the CBA grievance that she “find[s] it ironic and somewhat insulting that the Senior Class Advisor compensation increased when a Caucasian female [was] serving as sponsor and not while . . . an African American served as Senior Class Advisor” (Doc. No. 47-2, at 6), but she does not actually purport to assert a claim of discrimination based on race.

         The CBA grievance was denied at Step 2 on February 18, 2015. (Doc. No. 47-3.) The plaintiff elevated it to Step 3 on February 26, 2015. (Doc. No. 47-4.) In her Step 3 appeal, the plaintiff does not mention race at all. She attributes the discrepancies in EDC to “blunt acts of favoritism.” (Doc. No. 47-4, at 3.) She received a Notice of Final Decision on April 2, 2015, notifying her that the grievance had been denied at that level as well. (Doc. No. 47-5.) The plaintiff did not request to proceed to arbitration.

         Instead, on April 5, 2015, the plaintiff made her initial contact with Lucy Sabanal, an EEO Counselor with the defendant's EEO office, about this matter. (See Counselor's Report, Doc. No. 47-9.) On April 30, 2015, the plaintiff filed a formal written complaint with the defendant's EEO office, alleging that she had suffered discrimination on the basis of race and retaliation for having engaged in protected activity. (Doc. No. 47-6.) The specific events she complained about included the lower EDC for being Senior Class Sponsor for SY 2013-2014, compared to the EDC for the same position during SY 2014-2015, and the principal's refusal to give her an incentive award. (Formal EEO Compl., Doc. No. 47-6, at 3.)

         By letter dated May 15, 2015, the EEO dismissed the plaintiff's formal complaint of discrimination on the basis that, because the plaintiff had opted initially to proceed under the CBA Grievance Procedure, she no longer had the option of filing an EEO complaint based on the same events. (Doc. No. 47-1, at 3 (citing 29 C.F.R. § 1614.301(a)).) The letter also provided notice to the plaintiff of her right to appeal the dismissal of her claims to the EEOC or to file a civil action in this court. (Id. at 4.)

         The plaintiff filed her Verified Complaint (Doc. No. 1) in this court on July 2, 2015, against the Secretary of the United States Department of Defense, in his official capacity, asserting claims of race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (“Title VII”). The matter was initially assigned to district Judge Todd Campbell and referred to the magistrate judge. The defendant filed his Motion to Dismiss under Rule 12(b)(6) in October 2015. (Doc. No. 17.) In September 2016, Judge Campbell revoked the reference to the magistrate judge as it pertained to the Motion to Dismiss and denied that motion without prejudice to its being refiled as a Motion for Summary Judgment that complied with Local Rule 56.01. (Doc. No. 32.) Thereafter, this case was transferred to the undersigned on the basis that it is related to two other cases filed by the plaintiff that are or were pending before this judge.

         Now before the court is the defendant's Motion to Dismiss under Rule 12(b)(1), for lack of subject matter jurisdiction, and alternative Motion for Summary Judgment based on the plaintiff's failure to exhaust administrative remedies. (Doc. No. 45.) The defendant has resubmitted with this motion all the same documents previously filed in support of his motion to dismiss for failure to state a claim (Doc. No. 17). (Compare Doc. Nos. 19 and 47.) The motion has been fully briefed, and is ripe for review. The court has withdrawn the referral of this motion to the magistrate judge.

         II. Characterization of the Motion

         Although styled “in the alternative” as a motion for summary judgment, the primary basis for the defendant's motion is that the court lacks subject matter jurisdiction over the plaintiff's Title VII claims as a result of her failure to properly exhaust administrative remedies before filing suit in federal court. (See Doc. No. 46, at 2 (“Defendant moves to dismiss Plaintiff's civil action for lack of subject matter jurisdiction . . . .”); id. at 8 (“This Court lacks jurisdiction because Plaintiff failed to exhaust her administrative remedies in the negotiated grievance process . . . .”).)

         The Sixth Circuit, however, has expressly recognized that, “where a plaintiff has not exhausted administrative remedies, a district court may not dismiss the [Title VII] claim on jurisdictional grounds.” Adamov v. U.S. Bank Nat'l Ass'n, 726 F.3d 851, 855-56 (6th Cir. 2013) (citing Arbaugh v. Y&H Corp., 546 U.S. 500 (2006); Hill v. Nicholson, 383 F. App'x 503 (6th Cir. 2010)).[1] Rather, failure to exhaust is an affirmative defense that may be waived by the defendant. See Id. at 856 (reversing and remanding the dismissal of the plaintiff's Title VII retaliation claim, holding that the district court had erred in dismissing the claim sua sponte based on lack of subject matter jurisdiction and that the defendant “forfeited the argument that [plaintiff] did not exhaust his retaliation claim by failing to raise it to the district court”). Accordingly, the court rejects the defendant's argument that dismissal is warranted under Rule 12(b)(1) for lack of subject matter jurisdiction.

         Because the motion is brought “in the alternative” as one for summary judgment, the court construes it as arguing that the defendant is entitled to summary judgment in his favor as a matter of law, likewise based on the plaintiff's failure to exhaust. The defendant still has not strictly complied with Local Rule 56.01, because he did not file a “separate, concise statement of the material facts, ” with each separately numbered “fact” ...


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