RICHARD F. BOULWARE, II, District Judge.
Before the Court are Plaintiff Lola McGee's Motion to Compel re Proposed Discovery, Motion for Sanctions re Scheduling Order, and Motion for Sanctions re Discovery. ECF Nos. 224, 226, 241. Also before the Court are Defendant Megan J. Brennan's Motion to Withdraw as Attorney and Motion for Summary Judgment. ECF Nos. 231, 241. The Court denies Plaintiff's Motions and grants Defendant's Motions.
Plaintiff Lola McGee ("McGee"), a pro se party, filed the following claims in her Amended Complaint (ECF No. 8), against the Postmaster General
The Court makes the following findings of undisputed and disputed facts, incorporating by reference its factual findings from the Court's previous Order (ECF No. 166), and Plaintiff and Defendant's statements of undisputed facts in their briefing for the instant motion for summary judgment and other documents in the record.
Plaintiff Lola McGee is a former United States Postal Service (USPS) employee. She was born in 1962. She was employed by USPS from 1998 through September 10, 2009. During her time at USPS, McGee applied for 17 positions and was denied for all of them.
In 2008, she applied for a promotion to a position of Manager, Customer Services at Huntridge Station in 2008. The position ultimately went to Thomas Jack, who was born in 1954. McGee also applied for a position of Manager, Customer Services, at King Station in 2008. That position also went to Thomas Jack. McGee also applied for promotions at Sunrise Station and Winterwood Station. The managerial position at Sunrise station went to Samson Pillus, who was born in 1955.
On November 1, 2008, McGee filed her first EEOC (Equal Employment Opportunity Commission) complaint, in which she alleged various counts of discrimination and workplace retaliation dating back to 2005. The National EEO Investigative Services Office (NEEOISO) of USPS dismissed all claims occurring prior to July 10, 2008 as untimely. Plaintiff's remaining claims were for harassment and hostile work environment, charging of sick leave hours, and non-selection for a managerial position.
On August 11, 2009, NEEOISO issued its Final Agency Decision, finding no discrimination regarding the 2008 complaint. On May 27, 2009, Plaintiff filed a second EEO complaint, alleging discrimination based on sex, physical and mental disability, and retaliation for denial of a lateral transfer requested on April 9, 2009. On October 21, 2009, the NEEOISO issued a Final Agency Decision finding no discrimination regarding the 2009 complaint. McGee was advised, in each final decision, of her right to appeal the EEO decisions within thirty days. McGee did not file appeals.
Between August 2009 and August 2011, McGee sent fifteen letters related to or regarding her claims against the USPS, to various parties, including the NEEOISO, her district manager, and Senator Harry Reid's office. McGee filed her appeal of the 2008 and 2009 EEO decisions on September 6, 2011, almost two years past the 30-day deadline to appeal. On November 9, 2012, the EEOC dismissed McGee's appeal, finding that it was untimely filed. The EEOC noted that McGee had argued that the reason for her delay was because she was "severely ill and in mental turmoil."
However, the EEOC found that this explanation was too general to justify a finding of incapacitation that would allow an untimely appeal. On December 4, 2012, McGee requested reconsideration of the EEOC's denial of her appeal. On reconsideration, McGee argued that her mental state was very debilitating, and that she was unable to keep up with her appeals. She provided a letter from her treating psychiatrist dated November 20, 2012, in which the psychiatrist states that McGee had been his patient since May 5, 2010. The psychiatrist's letter stated that McGee was unable to file her appeal because of her depression. On May 31, 2013, the EEOC denied McGee's request for reconsideration. The EEOC found that McGee had not shown that she was so incapacitated by her condition that she was unable to meet the time limits. The EEOC relied on the fact that McGee had sent letters to the USPS and the USPS's National Equal Employment Office on September 12, 2009, November 11, 2009, and October 5, 2010, which the EEOC said demonstrated that she was capable of addressing her discrimination claims during that period.
The parties dispute whether the Manager, Customer Services position at Winterwood Station was cancelled in 2008. Defendants state the vacancy was cancelled and thus the position was not awarded to anyone. To support their position, Defendants attach excerpts from the investigative summary of McGee's EEO complaint, which notes that the vacancy was cancelled on December 15, 2008. Defendants also attach a printout of an email from April 13, 2009 with the subject title "McGee-Additional Selection Packages," that has a handwritten note stating that the Winterwood station posting from December 2008 was cancelled.
By contrast McGee claims that the Winterwood station position was open at least until January 2009. She writes in her opposition to Defendant's motion that "[p]hone records can prove that plaintiff receive [sic] an interview for Winterwood Station in January 2009." ECF No. 245 at 4.
Generally, documents submitted by pro se litigants are to be "liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers."
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
The ADEA forbids employers from engaging in age discrimination against individuals who are at least 40 years old. 29 U.S.C. §§ 623(a)(1); 631(a). The ADEA applies to federal employees and applicants for federal employment. 29 U.S.C. § 633a(a). To survive summary judgment on an ADEA violation, a party must establish a prima facie case of age discrimination.
At the pre-trial stage, a district court can impose case-dispositive sanctions for discovery abuses under Rule 37 of the Federal Rules of Procedure, which states: "[i]f a party . . . fails to obey an order to provide or permit discovery," the court may, inter alia, "render default judgment against the disobedient party." Fed. R. Civ. P. 37(b)(2)(A)(vi). The Ninth Circuit has held that "belated compliance with discovery orders does not preclude the imposition of sanctions."
Under FRCP 37(b), if a party fails to obey an order to provide or permit discovery, including an order under Rule 26(f), then the court where the action is pending may issue "further just orders," and may "dismiss the action or proceeding in whole or part." Fed. R. Civ. P. 37(b)(2)(A)(v).
Local Rule 26-7 of the District of Nevada requires that all motions to compel "set forth in full the text of the discovery originally sought and any response to it." LR 26-7(b). The local rules further provide that discovery motions may not be considered unless the party moving to compel has made a good-faith effort to meet and confer and has included a declaration setting forth the details of the meet-and-confer conference about each disputed discovery request. LR 26-7(c).
The Rules of Civil Procedure and the Ninth Circuit generally caution courts against the granting of summary judgment when there may be pending relevant discovery. Fed. R. Civ. P. 56(d) (providing that the court may defer or deny motions for summary judgment to allow time for discovery if facts essential to opposition are unavailable);
Local Rule 26-7 of the District of Nevada requires that all motions to compel "set forth in full the text of the discovery originally sought and any response to it." LR 26-7(b). The local rules further provide that discovery motions will not be considered unless the party moving to compel has made a good-faith effort to meet and confer and has included a declaration setting forth the details of the meet-and-confer conference about each disputed discovery request. LR 26-7(c). McGee has made no such showing in her motion to compel, and per the Local Rules, the Court is free to disregard and deny the motion.
But even disregarding these requirement, McGee's motion has no merit. In her motions to compel and for sanctions, McGee insists that she had not received the discovery that she has requested. But McGee has failed to show that the information allegedly missing is relevant to her remaining ADEA claim. McGee list of remaining necessary documents includes:
Of the list of documents McGee claims she needs, the only ones that are relevant to her age discrimination claim are the documents related to the age of the individuals who received promotions in lieu of McGee. But Defendants maintain that they have submitted all relevant documents in their possession regarding the non-promotions. ECF No. 232 at 13. Defendants provided McGee with a complete 148-page investigative report, excerpts of which Defendants also attach to their motion for summary judgment, regarding her 2008 EEO complaint. The investigative report includes matrices that list the birthdate, years of service, race, sex, and previous USPS employment for each applicant for the positions, including the applicants who received positions over McGee. The report is admissible as a public record pursuant to Rule 803(8) of the Federal Rules of Evidence. Fed. R. Evid. 803(8). For this reason, the Court finds that continuing discovery would be fruitless and unable to assist McGee with proving her remaining viable claim. McGee's motion to compel is denied.
The Court also denies McGee's Motion for Sanctions. The Court does not find that Defendants have violated Rule 37 of the Federal Rules of Civil Procedure. Rather, the Court finds that Defendants have complied with the Court's orders regarding discovery. There is no sanctionable behavior here.
The Court now turns to Defendant's Motion for Summary Judgment, and considers the threshold issue of whether any of McGee's non-promotions are time-barred from being considered within McGee's ADEA claim.
A federal employee who believes that they have been discriminated against under the ADEA has two options. The first option is to file an administrative complaint with the EEOC. 29 C.F.R. § 1614.105. If pursuing this option, the employee must meet with an EEOC counselor within 45 days of the discriminatory action in order to informally resolve the matter. 29 C.F.R. § 1614.105(a)(1). This meeting must occur prior to filing the complaint.
Defendants argue that McGee forfeited her ability to raise 13 of the 17 non-promotions in this case because she did not meet with an EEO counselor within 45 days of the contested personnel actions as required. Because McGee did not meet this threshold requirement, the final agency decision on McGee's 2008 EEO complaint dismissed all non-promotions that had occurred before July 12, 2008. Defendants further argue that McGee cannot be found to have brought those claims under the bypass provision either. The earliest document that McGee sent to the EEOC that could be construed as a notice of intent to sue was dated October 5, 2010—well over 180 days after the alleged discriminatory conduct took place in 2008.
McGee states in her opposition to Defendants' motion that "all 17 positions were investigated," ECF No. 245 at 3, but submits no documentary evidence and never states that she did in fact 1) meet with an EEOC counselor within 45 days of the 13 non-promotions or 2) submit a notice of intent to sue with the EEOC earlier than October 5, 2010.
The Court does not agree with Defendants that the Ninth Circuit has held that the bypass provision and the administrative option are mutually exclusive.
Even though McGee's claims regarding the 13 non-promotions are time-barred, the Court could excuse the failure to preserve the claims via the equitable doctrines of tolling, waiver, or estoppel.
The Court could also find the claims preserved if it finds that the 13 other non-promotions relate back to a violation that was timely filed. In order to make such a finding, the Court must consider a plaintiff's claims to be "reasonably related to the allegations in the charge to the extent that those claims are consistent with the plaintiff's original theory of the case."
Having found and agreed with Defendants that only the four non-promotions at Huntridge, King, Sunrise, and Winterwood may be considered, the Court now considers whether McGee has a prima facie case of age discrimination. The
The Clerk of the Court is instructed to enter judgment in favor of Defendants and close the case.