United States District Court, M.D. Tennessee, Nashville Division
DEBBIE L. DOWELL, Plaintiff,
DAVID BERNHARDT, Acting Secretary, U.S. Department of the Interior, Defendant.
RICHARDSON, UNITED STATES DISTRICT JUDGE.
before the Court is a Report and Recommendation of the
Magistrate Judge (Doc. No. 55), to which Plaintiff has filed
Objections (Doc. No. 63), Defendant has filed a Response to
Objections (Doc. No. 65), and Plaintiff has filed a Reply
(Doc. No. 66). The Magistrate Judge recommended that
Defendant's Partial Motion to Dismiss (Doc. No. 35) be
granted and that Plaintiff's claims based on events that
allegedly occurred before October 24, 2017 and after June 26,
2018 be dismissed as untimely.
pending before the Court is Plaintiff's Motion for
Reconsideration (Doc. No. 59), which the Court construes as a
Motion for Review under Fed.R.Civ.P. 72(a). Therein,
Plaintiff asks the Court to overrule the Magistrate
Judge's Order denying as moot (in light of his
recommendation that Defendant's Partial Motion to Dismiss
be granted) Plaintiff's Motion to Strike Defendant's
Partial Motion to Dismiss. Defendant has filed a Response.
(Doc. No. 62).
is an employee of the U.S. Department of the Interior, Bureau
of Indian Affairs, in Nashville, Tennessee. Plaintiff's
pro se Complaint in this action alleges that
Defendantsubjected her to retaliation,
discrimination, a hostile work environment, and intentional
infliction of emotional distress in violation of Title VII
and the Americans with Disabilities Act (“ADA”).
(Doc. No. 1). An email attached to Plaintiff's
Complaint indicates that on December 8, 2017, Plaintiff
requested mediation with an Equal Employment Opportunity
(“EEO”) counselor concerning alleged harassment
and retaliation. (Doc. No. 1-3 at 5). Plaintiff states in her
Complaint that she filed a formal charge with the EEO
counselor on February 22, 2018. (Id. at 5). She also
claims to have received her Notice of Right to Sue letter
from the EEO on May 18, 2018 (id.), but the document
she attached to her Complaint and identified as a Notice of
Right to Sue letter is not a Notice of Right to Sue letter;
rather, it is a “Revised Acceptance Letter” that
vacates and revises the agency's prior acceptance
letter with regard to Plaintiff's first
complaint to the EEO office. In other words, the letter
attached to the Complaint (Doc. 1-1) is notice to Plaintiff
of which allegations the EEO accepted to investigate, not a
notice to Plaintiff of the results of that investigation.
Complaint here in federal court was filed on January 30,
2019. (Doc. No. 1). Since Plaintiff's filing of the
Complaint, the parties have submitted additional documents
that are mentioned in or related to allegations of the
Complaint. For example, the Final Agency Decision on
Plaintiff's first EEO complaint, dated March 14, 2019, is
filed at Doc. No. 36-1. A Partial Acceptance letter (Doc. No.
36-2) indicates Plaintiff's second EEO complaint was
filed on October 25, 2018.
moved to dismiss certain of Plaintiff's claims as either
untimely or not administratively exhausted. (Doc. No. 35).
The Magistrate Judge recommended that Defendant's motion
(Doc. No. 55) be granted. The Magistrate Judge also denied,
as moot, Plaintiff's Motion to Strike Defendant's
motion. (Doc. No. 56).
magistrate judge issues a report and recommendation regarding
a dispositive pretrial matter, the district court must review
de novo any portion of the report and recommendation
to which a proper objection is made. Fed.R.Civ.P. 72(b)(3).
The district judge may accept, reject, or modify the
recommended disposition, review further evidence, or return
the matter to the magistrate judge with instructions.
to Fed.R.Civ.P. 72(a), upon review of a Magistrate
Judge's Order on a non-dispositive matter, the Court may
modify or set aside any part of that Order that is clearly
erroneous or is contrary to law. 28 U.S.C. §
636(b)(1)(A). The “clearly erroneous” standard
applies only to factual findings, while legal conclusions are
reviewed under the “contrary to law” standard.
Norfolk Cty Retirement Sys. v. Community Health Sys.,
Inc., No. 3:11-cv-00433, 2019 WL 3003647, at * 1 (M.D.
Tenn. Apr. 19, 2019); Equal Emp't Opportunity
Comm'n v. Burlington Northern & Santa Fe Ry.
Co., 621 F.Supp.2d 603, 605 (W.D. Tenn. 2009). A finding
of fact is “clearly erroneous” when although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed. JSC MCC EuroChem v.
Chauhan, 3:17-mc-00005, 2018 WL 3872197, at * 2 (M.D.
Tenn. Aug. 15, 2018). A legal conclusion is contrary to law
if it contradicts or ignores applicable precepts of law, as
found in the Constitution, statutes, or case precedent.
Id. “The Court is not empowered to reverse the
magistrate judge's finding [on a non-dispositive matter]
simply because the Court would have decided the issue
differently.” Shabazz v. Schofield, No.
3:13-CV-00091, 2014 WL 6605504, at *1 (M.D. Tenn. Nov. 19,
accordance with Rule 72(b)(3), the Court has reviewed de
novo the portions of the Report and Recommendation to
which Plaintiff objected. In her Responses 1 and 4 and also
on pages 4-7 of her Objections, Plaintiff contends that,
contrary to the Magistrate Judge's finding that Plaintiff
first contacted an Equal Employment Opportunity
(“EEO”) counselor with her complaints on December
8, 2017, she actually first contacted the EEO counselor
around February 10, 2016. (Doc. No. 63).
participation in the EEO process in February 2016, however,
was in reference to the complaint of a co-employee, not
herself. Plaintiff signed a statement in connection with the
investigation of an EEO complaint of Roger Markos, a
co-worker. (Doc. No. 40 at 10-13). Roger Markos was the
complainant, and he (not Plaintiff) could have filed
an appeal or civil action based on the agency final action on
his complaint. 42 U.S.C. § 20003-16(a) and (c); 29
C.F.R. § 1614.407. Plaintiff could not have appealed
from Mr. Markos' EEO proceeding. A federal employee who
alleges that she has been a victim of discrimination must
exhaust her administrative remedies (not someone
else's). Dixon v. Ashcroft, 392 F.3d 212, 217
(6th Cir. 2004). Plaintiff's first contact with the EEO
counselor about her own complaints and to initiate
action on her own behalf was in December 2017. (Doc.
No. 36-1 at 3). Thus, Plaintiff has not shown that the first
statement of the Magistrate Judge with which she takes issue
should be rejected.
Response 2, Plaintiff disagrees with the Magistrate
Judge's statement that the only claims of Plaintiff that
were accepted by the agency (the U.S. Department of the
Interior) for investigation in connection with her complaint
designated DOI-BIA-18-0150 were those that allegedly occurred
on November 3, 2017; December 7, 2017; January 10, 2018; and
April 25, 2018. (Doc. No. 63 at 1). Again citing her
participation as a witness in Mr. Markos's EEO
proceeding, Plaintiff argues that the information she gave in
connection with Markos' proceeding in February 2016 was
investigated by the EEO and designated as DOI-BIA-18-0150.
Plaintiff is focused on the date (February 2016) of her
alleged “protected activity”-her reporting
related to Markos's complaint. But the relevant dates for
timing purposes under Title VII are the dates of the alleged
retaliatory or discriminatory conduct; that is, the dates of
the adverse employment ...