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Dowell v. Bernhardt

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

December 19, 2019

DEBBIE L. DOWELL, Plaintiff,
DAVID BERNHARDT, Acting Secretary, U.S. Department of the Interior, Defendant.



         Pending 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.

         Also 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).[1] 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).


         Plaintiff 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 Defendant[2]subjected 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).[3] 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[4] 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.

         The 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.[5]

         Defendant 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).


         When a 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. Id.

         Pursuant 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, 2014).


         In 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).

         Plaintiff's 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.

         In 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 ...

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