ERIC F. MELGREN, District Judge.
Plaintiff Donald Culbertson ("Culbertson"), a former employee of the United States Penitentiary ("USP") in Leavenworth, Kansas, brings claims for disability discrimination pursuant to the Americans with Disabilities Act of 1990 ("ADA")
Culbertson was born with atrophy on the right side of his body, which restricts the total movement of his right leg and makes it difficult for him to grip with his right hand. From 1989 to 2010, Culbertson worked as a WS-8 Maintenance Mechanic Foreman Supervisor at USP Leavenworth in Leavenworth, Kansas. Culbertson also served a brief term as the Acting General Foreman from October 2009 through January 2010 and received an "Outstanding" evaluation during that period. On occasion, Culbertson also filled in as Acting General Foreman on a temporary basis throughout his career.
In June 2010, a federal employment website, USAJOBS.com, posted the position of General Foreman at USP Leavenworth. Culbertson applied for this position and was placed on a list of nine "Best Qualified" applicants. Scott Whitson, Facilities Administrator for the North Central Region in Kansas City, Missouri, received the list of nine "Best Qualified" applicants. Whitson was Culbertson's supervisor at USP Leavenworth from 1994 through 2000 and described Culbertson as a "very good worker."
Culbertson alleges that his experience as Maintenance Mechanic Foreman Supervisor and Acting General Foreman made him more qualified than the successful applicant for the position of General Foreman. According to Culbertson, Whitson and Nalley refused to promote him due to his disability. But Defendant asserts that Nalley did not know Culbertson and had no knowledge of his disability. Additionally, Whitson provided sworn testimony that he did not consider Culbertson's disability when he chose not to recommend him for the General Foreman position.
When his application for the General Foreman position was denied, Culbertson filed an EEOC complaint, alleging that he had been discriminated against because of his disability. Following an investigation and hearing regarding Culbertson's 2010 disability discrimination claim, the EEOC rendered a final decision in Defendant's favor and issued Culbertson the right to bring a civil lawsuit. Culbertson subsequently filed a two-count complaint in this Court. In his first count, Culbertson alleges that Defendant discriminated against him by permitting discriminatory conduct during a new-employee training course in 1989, subjecting him to disparaging comments made by co-workers and supervisors, and refusing to hire him for the position of General Foreman in 1990, 1993, 1994, 1998, 2000, 2003, and 2010. In his second count, Culberson alleges that Defendant refused to promote him in retaliation for filing an EEOC complaint in 1998. In response to Defendant's dispositive motions, Culbertson also mentions "glass ceiling" or hostile work environment claims not asserted in his EEOC charge or complaint to this Court. Defendant now seeks to dismiss all but Culbertson's 2010 discrimination claim for failure to exhaust administrative remedies and requests summary judgment on that remaining claim.
Federal courts are courts of limited jurisdiction.
Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.
Culbertson admits that he did not exhaust his administrative remedies with respect to Defendant's refusal to promote him to General Foreman in 1990, 1993, 1994, 1998, 2000, or 2003. Likewise, Culbertson has not alleged that he filed an EEOC charge regarding the discriminatory treatment he allegedly suffered during the 1989 new-employee training course. Both parties agree that because Culbertson did not exhaust administrative remedies regarding specific and discrete instances of discrimination in 1989, 1990, 1993, 1994, 1998, 2000, or 2003, this Court lacks jurisdiction over any discrimination claims arising therefrom. Accordingly, the Court must grant Defendant's motion to dismiss these claims pursuant to Fed. R. Civ. P. 12(b)(1).
Requiring a Title VII claimant to exhaust administrative remedies serves the dual purposes of providing notice of the claims to the charged party and ensuring that the administrative agency has the opportunity to investigate and resolve the claims.
In an initial charge, a plaintiff's failure to mark boxes for particular allegations creates a presumption against claims represented by the unchecked boxes.
In this case, Culbertson marked boxes for disability discrimination and physical discrimination on his EEOC charge, but he failed to check the box for retaliation or "Reprisal." In Culbertson's narrative description, he does not allege or allude to any retaliatory conduct. Furthermore, during the administrative hearing regarding Culbertson's discrimination charge, the EEOC Administrative Judge asked if any other issues or claims needed to be addressed, and Culbertson did not mention any claim or allegations of retaliation. For these reasons, the Court finds that Culbertson has failed to rebut the presumption against his claim for retaliation, which was not marked on his EEOC charge. Therefore, the Court finds that Culbertson has failed to exhaust his administrative remedies concerning his discriminatory retaliation claims, and must dismiss Count II of Culbertson's complaint under Fed. R. Civ. P. 12(b)(1).
It is unclear whether Culbertson intends to pursue a glass ceiling or hostile work environment claim. Culbertson has not alleged such claims in his EEOC charge or his complaint, but he alludes to such claims in his response to Defendant's motion to dismiss. A plaintiff bears the burden of proving that he exhausted the applicable administrative remedies.
For the reasons stated above, this Court lacks subject matter jurisdiction over all but Culbertson's 2010 claim of disability discrimination, for which Defendant now moves for summary judgment. Culbertson alleges that Defendant's failure to promote him constitutes disability discrimination in violation of the ADA and the Rehabilitation Act. The ADA and the Rehabilitation Act apply the same standards in employment discrimination claims.
Here, Culbertson cannot establish a prima facie case that the 2010 denial of his application for General Foreman was discriminatory. To establish a prima facie failure to promote case alleging disability discrimination, Culbertson must show that "(1) he has a `disability' within the meaning of the Americans with Disabilities Act; (2) he was qualified, with or without reasonable accommodation, to perform the essential job functions of the position he sought; [and] (3) his employer refused the promotion under circumstances which give rise to an inference the decision was based on his disability."
However, Culbertson cannot satisfy the third element of a prima facie showing of a disability discrimination claim. Nalley and Whitson were responsible for making promotion decisions in this case. It is uncontroverted that Nalley did not know of Culbertson's disability. Further, Whitson provided sworn testimony that he did not consider Culbertson's disability in any way when deciding whether to suggest Culbertson for the position of General Foreman. Culbertson failed to controvert this fact
Culbertson's attempt to attribute a discriminatory motive to Defendant by showing multiple denials of his application for the position of General Foreman and through allegations of frequent disparaging and insulting comments made to him about his disability fails because such allegations are not supported by anything more than their inclusion in Culbertson's complaint to this Court. These bald assertions do not create a genuine issue of material fact that can withstand the sworn testimony supporting Defendant's motion for summary judgment. Because Culbertson cannot make a prima facie showing of discrimination regarding his 2010 failure to promote claim, the Court must enter summary judgment in Defendant's favor.