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November 26, 1991

GIRISH A. PATEL, Plaintiff,
EDWARD DERWINSKI, Secretary of Department of Veterans Affairs, EARL N. HILL, Director of the V.A. Supply Depot, Defendants.


The opinion of the court was delivered by: ILANA DIAMOND ROVNER



 Plaintiff, Girish A. Patel ("Patel") brought this action against defendants, Edward Derwinski ("Derwinski"), the Secretary of the Department of Veteran Affairs (the "VA"), and Earl N. Hill ("Hill"), the Director of the Veteran's Affairs Supply Depot (the "Depot") in Hines, Illinois pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16 ("count I"), and the first amendment to the United States Constitution ("count II"). Plaintiff filed the instant action on November 14, 1990. He alleges that the VA discriminated against him on the basis of his national origin. Furthermore, Patel alleges that the VA violated his first amendment right to freedom of association. Defendants Derwinski and Hill have moved to dismiss Hill as a defendant in count I. *fn1" Defendants also have moved to dismiss both the Title VII and first amendment claims for lack of subject matter jurisdiction and count II for failure to state a claim upon which relief can be granted. In the alternative, defendants have moved for summary judgment. For the reasons set forth below, defendants' motion to dismiss will be granted. Counts I and II of plaintiff's first amended complaint will be dismissed with prejudice.


 For purposes of defendants' motion to dismiss, the Court accepts as true the factual allegations in the first amended complaint and views those allegations in the light most favorable to plaintiff. Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir. 1990); see also Ed Miniat, Inc. v. Globe Life Ins. Group, Inc., 805 F.2d 732, 733 (7th Cir. 1986), cert. denied, 482 U.S. 915, 107 S. Ct. 3188, 96 L. Ed. 2d 676 (1987). Thus, the facts recited herein are those alleged in plaintiff's complaint. Plaintiff is a citizen of the United States of East Indian ancestry. He was hired as an assistant chief of the cataloging division of the Depot in January, 1989. In December 1989, plaintiff was informed that his employment at the Depot would be terminated. On behalf of plaintiff, Hill then spoke to plaintiff's supervisor and the chief of the Depot's personnel division about other possible employment opportunities at the Depot. However, on January 2, 1990, Hill learned that plaintiff had told African-American employees at the Depot that "they were being targeted for adverse job actions." Hill purportedly then informed Patel that such conduct would foreclose any further employment opportunities in either the public or private sector. Patel alleges that after January 2, 1990, he was not considered for alternate positions at the Depot. Other Depot employees, however, whose jobs also were terminated but who had not engaged in similar conduct with African-American employees were provided lower grade positions at the Depot. As a result, plaintiff alleges that the VA's decision to terminate him and to deprive him of the opportunity to obtain an alternate position was based on his national origin and his association with African-American employees. Defendants' actions, therefore, purportedly were in violation of Patel's civil rights and of his right to freedom of association under the first amendment.

 Plaintiff alleges that on or about January 25, 1990, he filed charges of discrimination with Andrei Cooper ("Cooper"), a counselor with the Equal Employment Opportunity Commission ("EEOC"). *fn2" By that allegation, Patel purportedly refers to a letter dated January 25, 1990, which was addressed to Hill, the EEO officer for the Depot, with a copy forwarded to Cooper. In that letter, Patel alleged that officials at the Depot had discriminated against him due to his national origin and sex because he is an "Asian Indian Male." (See Defendants' Mem. Ex. 8). Moreover, Patel also charged that his discharge was a "reprisal to [his] 'Whistle Blowing' actions." (Id.)

 Patel's letter of January 25 eventually led to a letter from Cooper to Patel dated May 12, 1990. (See Defendants' Mem. Ex. 9) This letter, headed "Notice of Final Interview with EEO Counselor" (the "Notice"), explained that a final counseling interview was held concerning Patel's claims. The letter also outlined the procedure for filing a formal complaint with the appropriate EEO official at the VA. Specifically, the Notice provided that Patel was required to file a formal complaint of discrimination "within 15 calendar days after receipt of this notice." (Id.) There is a dispute between the parties as to when Patel received this Notice. In a letter to the VA's EEO office dated October 25, 1990, Patel claims to have received the letter on October 18, 1990, although the letter itself is dated May 12, 1990. (See Defendants' Mem. Ex. 11.) Defendants apparently contend that the Notice was issued on May 12, 1990, and therefore, it should have been received by Patel shortly thereafter. For purposes of the pending motion to dismiss, the Court will resolve this factual dispute in Patel's favor and will assume that plaintiff received the letter in October, rather than May, 1990. After receiving the Notice, Patel then sent his October 25, 1990 letter to the VA. (Defendants' Mem. Ex. 11.) In addition to outlining the above problems with his receipt of the Notice, plaintiff's letter also set out the events which formed the basis for his claim of discrimination. Moreover, Patel wrote that "by this letter I am filing my complaint with you, just to comply [with the] 15 day deadline" set out in the Notice. (Id. at 4.) Less than one month later, on November 14, 1990, plaintiff filed the present lawsuit in this Court.


 A. Count I -- Exhaustion of Administrative Remedies.

 Defendants base their exhaustion argument on a number of alternative grounds. First, they claim that Patel failed to file a formal complaint within fifteen days of receipt of the Notice. In addition, they contend that Patel's October 25 letter does not meet the requirements for a formal complaint. They also assert that plaintiff's January 25 letter cannot be considered a formal complaint, and that even if it were, Patel failed to consult with an EEO counselor prior to filing the complaint. Finally, defendants contend that even if the October 25 letter is considered a formal complaint, Patel failed to wait 180 days after filing that grievance to initiate the instant lawsuit in this Court. According to defendants, therefore, Patel has failed in several ways to exhaust his administrative remedies, thus depriving this Court of subject matter jurisdiction over his Title VII claim. In resolving defendants' motion, the Court will focus only on defendants' final exhaustion argument. The Court finds that plaintiff's action is premature and that the Court therefore lacks subject matter jurisdiction over the Title VII claim.

 In response to defendants' exhaustion arguments, plaintiff contends that the Court must accept the averments of his first amended complaint, specifically that 180 days passed without a final agency decision on the January 25, 1990 complaint. Therefore, plaintiff maintains that he exhausted his administrative remedies and that this Court has subject matter jurisdiction over his Title VII claim. (See Plaintiff's Mem. at 2-3; see also Complaint para. 1) Defendants counter that when a court considers a motion to dismiss for lack of subject matter jurisdiction, it may properly resolve disputed jurisdictional questions by looking beyond the allegations of the complaint. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 184, 56 S. Ct. 780, 783, 80 L. Ed. 1135 (1936); Rennie v. Garrett, 896 F.2d 1057, 1057-58 (7th Cir. 1990); Grafon Corp. v. Hausermann, 602 F.2d 781, 783" (7th Cir. 1979). Defendants particularly take issue with the allegation that 180 days passed after the filing of the complaint with the agency, contending that less than one month passed between the filing of the October 25 complaint and the initiation of this lawsuit. For the reasons discussed below, the Court agrees with defendants that it may resolve this dispute by looking beyond the allegations of plaintiff's complaint. The 180-day waiting period required by 42 U.S.C. § 20003-16(c) and 29 C.F.R. § 1613.281(b) is a jurisdictional prerequisite to the filing of a lawsuit in federal court. Accordingly, in analyzing its jurisdiction, the Court is not limited to the allegations in plaintiff's complaint.

 It is well-settled that aggrieved employees seeking to advance Title VII claims in federal court must first exhaust their available administrative remedies. Brown v. General Services Administration, 425 U.S. 820, 832, 96 S. Ct. 1961, 1967, 48 L. Ed. 2d 402 (1976); Rennie, 896 F.2d at 1861-62. Unless the administrative process is exhausted according to the applicable statutes and regulations, the Court generally is without jurisdiction to act. See Tolbert v. United States, 916 F.2d 245, 247-48 (5th Cir. 1990). A jurisdictional issue presented by defendants' motion which the parties do not address, however, is the impact of the Seventh Circuit's decision in Rennie on the way in which the Court should analyze the present motion. In Rennie, the Court of Appeals reversed its earlier decision in Sims v. Heckler, 725 F.2d 1143 (7th Cir. 1984), and held that the thirty-day time limitation imposed by 29 C.F.R. § 1613.214(a)(1)(i) for consulting with an EEO counselor was in the nature of a statute of limitations and that it was not a prerequisite to federal court jurisdiction. Rennie, 896 F.2d at 1062. When compliance with the applicable regulation presents a statute of limitations, rather than a jurisdictional issue, a district court is prohibited from looking beyond the face of plaintiff's complaint in order to resolve factual disputes relating to the exhaustion issue. Id. Rennie does not control the instant case, however. The 180-day waiting period at issue here cannot similarly be construed as a statute of limitations because 29 C.F.R. § 1613.281(b) does not require that any action be taken by a date certain; instead, that regulation forbids the filing of a lawsuit until the expiration of the requisite waiting period. Thus, ...

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