to allow her to work. Dillard did not return to the Bronx Post Office for work any time thereafter.
Six months later, on June 25, 1994, Dillard's December 1993 removal was reviewed at an arbitration hearing. Frank Giordano, the union's "National Business Agent" represented Dillard at that hearing (id. P 18); Ismael Medina, a "Labor Relations Specialist" represented Duke and USPS; and Joseph S. Cannavo, Jr. served as the arbitrator. (Arb. Decision at 1, attached to compl.)
On June 30, 1994 the arbitrator ruled that Dillard's dismissal was proper. He found that USPS established that it had just cause to remove Dillard because she: (1) violated the terms of her settlement agreement, and (2) failed to call in her absences. (Arb. Decision at 4-6) Dillard claims that she realized that she had been terminated only when the arbitrator announced his decision. (Dillard Aff. P 19).
Upon realizing that she had been terminated, Dillard went to the Manhattan office of the New York State Human Rights Commission ("NYSHRC") to file a complaint for discrimination. The receptionist there told Dillard that she could file a complaint only with a Postal Service EEO counselor. (Id.) Accordingly, on July 1, 1994, Dillard sought counseling at the Postal Service EEO office in Manhattan. She spoke to a counselor there, Ms. McDoughe, who told Dillard the EEO could not help her because she was too late -- i.e., she had contacted the EEO more than 45 days after her termination, in violation of EEOC regulation 29 C.F.R. § 1614.105(b) (1995). See infra p. 13. The counselor advised Dillard to "seek help from churches or other charitable organizations." (Id. P 20)
Dillard then returned to NYSHRC where she was allowed to file a complaint. (Id. P 21) A month later, in August 1994, having received no response from NYSHRC, Dillard returned to the EEO office. There, she received and subsequently completed an EEO Precomplaint Counseling form. (Id. P 22) In November 1994, still awaiting a response from the EEO and NYSHRC, Dillard called NYSHRC. They told her they could not find her file. (Id. P 23)
Next, Dillard came to this court and met with a clerk in the pro se office. He told her that to sue here, she first must file an EEO complaint and obtain a right-to-sue letter. (Id. P 24) Accordingly, Dillard returned to the EEO office and on December 12, 1994 met with a counselor named Ms. Eghlie, who told her that she could file a complaint, as long as she justified her failure to do so within 45 days of her December 10, 1993 termination. (Id. P 25) Dillard filed such a complaint, but has not submitted a copy of that complaint here. (Id.)
On May 2, 1995 USPS dismissed Dillard's complaint because of her failure to contact the EEO within 45 days of her termination. The dismissal made no mention of the existence or absence of a basis to extend the time limit, or of any argument Dillard may have made to extend that limit. USPS informed Dillard that she could appeal its decision to the EEOC within 30 days or file a complaint in federal court within 90 days. (Id. P 26 & Ex. G) On May 8, 1995 Dillard appealed the agency's decision to the EEOC.
On June 7, 1995, Dillard, acting pro se, filed a complaint for Title VII relief in this court. Runyon now moves to dismiss that complaint for Dillard's failure to exhaust her administrative remedies. For purposes of this motion, Dillard is represented by counsel.
As a threshold matter it is necessary to decide whether this motion properly is characterized and resolved as one to dismiss for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), or as one to dismiss for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). The difference is important for both substantive and procedural reasons.
Substantively, the motions address different questions. A motion pursuant to Fed. R. Civ. P. 12(b)(1) challenges the court's power to resolve a dispute, regardless of the merits of that dispute. If a defendant moves for dismissal under Fed. R. Civ. P. 12(b)(1) and on other grounds, the court must consider the Rule 12(b)(1) challenge first, because a finding that subject matter jurisdiction does not exist moots all other issues. United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1155-56 (2d Cir.), cert. denied, 508 U.S. 973, 125 L. Ed. 2d 663, 113 S. Ct. 2962 (1993). In contrast, a motion pursuant to Fed. R. Civ. P. 12(b)(6) assumes that the court is authorized to resolve the dispute and tests whether there is a legal dispute to resolve.
The motions differ procedurally as well. On a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), the court may consider matters outside the pleadings, such as affidavits, documents, deposition testimony and the like. The court generally is prohibited from considering such matters on a motion to dismiss for failure to state a clam upon which relief can be granted. If the parties present and the court considers matters outside the pleadings on such a motion, the court must treat the motion as one for summary judgment pursuant to Fed. R. Civ. P. 56, and afford the parties an opportunity to present the material necessary to support or oppose that type of motion, i.e. materials demonstrating the absence or existence of a material fact issue, rather than the validity of plaintiff's claim assuming the facts to be true. Fed. R. Civ. P. 12(b) (1994).
The issue of subject-matter jurisdiction is particularly significant in suits against the United States because in such cases that issue relates to the doctrine of sovereign immunity. First principles of sovereign immunity dictate that the United States cannot be sued without its consent. United States v. Mitchell, 463 U.S. 206, 212, 77 L. Ed. 2d 580, 103 S. Ct. 2961 (1983). The same holds true for agencies and officers of the United States. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).
Congress can waive the federal government's sovereign immunity through clear and unequivocal statutory language. Congress also may impose certain conditions on its waiver of the federal government's sovereign immunity. A statute of limitations may be one such condition. United States v. Dalm, 494 U.S. 596, 608, 108 L. Ed. 2d 548, 110 S. Ct. 1361 (1990); United States v. Mottaz, 476 U.S. 834, 841, 90 L. Ed. 2d 841, 106 S. Ct. 2224 (1986). Waivers of sovereign immunity, and their limiting conditions, must be strictly construed. Library of Congress v. Shaw, 478 U.S. 310, 314, 92 L. Ed. 2d 250, 106 S. Ct. 2957 (1986).
Sovereign immunity raises a jurisdictional bar to suit. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 114 S. Ct. 996, 1000, 127 L. Ed. 2d 308 (1994). If the government has not waived its sovereign immunity, or if the conditions under which the government has agreed to waive that immunity have not been met, federal subject matter jurisdiction does not exist. United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941); Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991), cert. denied, 504 U.S. 942, 119 L. Ed. 2d 203, 112 S. Ct. 2277 (1992). In other words, a claimant may not sue the government without complying with all statutory and regulatory prerequisites. Morales v. United States, 38 F.3d 659, 660 (2d Cir. 1994); Wyler v. United States, 725 F.2d 156, 159 (2d Cir. 1983) (failure to meet administrative requirements of the FTCA deprives court of jurisdiction); Keene v. United States, 700 F.2d 836, 841 (2d Cir. 1983) (same).
In 1972 Congress amended Title VII of the Civil Rights Act of 1964 and waived the government's sovereign immunity for suits alleging discrimination in a government workplace on the basis of race, sex, color, religion or national origin. 42 U.S.C. § 2000e-16 (1994). Congress sought to "create an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination." Brown v. General Servs. Admin., 425 U.S. 820, 829, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976). Cf. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975) (holding that Title VII does not preempt other remedies for aggrieved employees of private employers).
But Congress did not waive the federal government's sovereign immunity unconditionally. Government employees can sue their employer pursuant to Title VII only if they first timely exhaust their administrative remedies, as defined by statute and regulations promulgated thereunder. 42 U.S.C. § 2000e-16(c) (1994); Brown v. General Servs. Admin., 425 U.S. 820, 835, 48 L. Ed. 2d 402, 96 S. Ct. 1961 (1976). A federal employee's suit after failure to avail herself of her administrative remedies, or after failure to avail herself of those remedies in a timely fashion, does not trigger the waiver of sovereign immunity and deprives a federal court of subject-matter jurisdiction to hear that employee's claim. Johnson v. Frank, 828 F. Supp. 1143, 1149 (S.D.N.Y. 1993).
Exhaustion of administrative remedies requires that a federal employee comply with EEOC regulations. First, a claimant must consult a counselor at her agency's EEO office within 45 days of the alleged discriminatory act. 29 C.F.R. § 1614.105(a)(1) (1995). At this session, the EEO officer must advise the claimant in writing of her rights and responsibilities, including, inter alia, "administrative and court time frames." Id. § 1614.105(b). If, after a mandatory 30-day counseling period the matter cannot be resolved informally, the EEO officer must inform the claimant of the claimant's right to file a discrimination complaint with the agency. Id. § 1614.105(d). The claimant must file such a complaint within 15 days of receipt of the notice. Id. § 1614.106(b). The agency then is required to conduct a "complete and fair investigation of the complaint." Id. § 1614.106(d)(2). If the agency dismisses the complaint, the claimant may: (1) appeal that dismissal to the EEOC, or (2) file a civil action in federal district court. Id. § 1614.110.
When interpreting and applying these requirements, it is important to keep in mind the general purposes of Title VII and the specific purposes of Title VII's prerequisites. On the one hand, Title VII seeks to remedy discrimination in the workplace; its aims "would be defeated if aggrieved plaintiffs were absolutely barred from pursuing judicial remedies" because of an excusable failure to meet a technical requirement. Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984). On the other hand,
procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. . . In the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.