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Threatt v. Jackson

April 16, 2008


The opinion of the court was delivered by: Marvin E. Aspen, District Judge


Presently before us is Defendant Alphonso R. Jackson's Motion for Summary Judgment. Jackson, Secretary of the United States Department of Housing & Urban Development ("HUD"), argues that Plaintiff Kenika Threatt's employment discrimination and retaliation claims fail because they are untimely, unexhausted and unsupported. For the reasons set forth below, we grant HUD's motion.*fn1


Plaintiff Kenika Threatt was formerly employed by HUD as an economic development specialist based out of its Chicago regional office. (Def.'s Facts ¶ 3.) On June 19, 2002, Threatt contacted a HUD equal employment opportunity counselor, claiming that she had been subjected to sex discrimination and harassment as evidenced by a number of incidents. Following this initial pre-complaint counseling, she filed a formal complaint with HUD's Office of Departmental Equal Employment Opportunity (DEEO) on August 6, 2002. (Id. ¶ 5.) Threatt alleged discriminatory conduct on the part of Victor Thornton, Jeff Ruster, Mark Walling, and Ray Willis. (Id.) On December 23, 2004, the DEEO issued its final decision, concluding that Threatt had not proven her allegations of unlawful discrimination. (Id. ¶ 6; Def.'s MSJ, Ex. 2.)*fn4

HUD apparently reorganized during 2004, resulting in a slightly different supervisory structure for Threatt. (Pl.'s Resp. to Def.'s Facts ¶ 8; Pl.'s Resp., Ex. 1.) Alice Hamilton and Ray Willis became Threatt's first- and second-level supervisors, respectively. (Def.'s Facts ¶ 8.)

Beginning August 3, 2004, Threatt and two male HUD employees attended a training session in Indianapolis, Indiana. On July 30, 2004, their supervisor, Ray Willis, informed them by email that they were expected to work the morning of August 2 prior to traveling to Indianapolis that afternoon. (Def.'s MSJ, Ex. 10, Willis 7/30/04 email.) None of them did so and, upon their return, Willis asked each to submit three hours of leave time to cover their August 2 absences. (Def.'s MSJ, Ex. 7, Hamilton Aff. at 2; Def.'s MSJ, Ex. 8, Willis Aff. at 2.) The two male employees who attended the training complied and requested leave time. (Def.'s MSJ, Ex. 8, Willis Aff. at 2.) Neither employee had prior EEO activity. (Def.'s MSJ, Ex. 11.)

Threatt had previously contacted Vernita Wood, the timekeeper, and requested to use an hour of annual leave for that time. (Def.'s MSJ, Ex. 9, Wood Aff. at 1.) Because Threatt had no annual or sick time available, Wood charged her with one hour of leave without pay. (Id.) While Threatt alleges that Hamilton, her first-line supervisor, approved two additional hours of leave for the morning of August 2, Hamilton does not remember Threatt requesting such leave time or allowing it. (Def.'s MSJ, Ex. 7, Hamilton Aff. at 2.) On approximately August 10, Willis met with Threatt and asked that she request an additional two hours of leave, which she refused. (Def.'s MSJ, Ex. 10, Willis 8/11/04 email; Def.'s MSJ, Ex. 8, Willis Aff. at 2.) Willis then charged Threatt with two hours of AWOL, or absence without leave. (Def.'s MSJ, Ex. 10, Willis 8/11/04 email; Def.'s MSJ, Ex. 8, Willis Aff. at 2.) Several weeks later, Threatt requested three hours of leave, and Hamilton approved that time off without charging Threatt's leave account, effectively negating the AWOL charge. (Def.'s MSJ, Ex. 7, Hamilton Aff. at 3.)

After completing the DEEO's informal pre-complaint procedure, Threatt filed a second formal complaint with the DEEO on October 1, 2004 (the "2004 DEEO Complaint"), asserting that Willis engaged in multiple acts of discrimination. (Def.'s Facts ¶ 9; Pl.'s Resp. to Def.'s Facts ¶ 9; see Def.'s MSJ, Ex. 4.) On October 29, 2004, the DEEO informed Threatt that it accepted two of her six allegations for further investigation. (Def.'s Facts ¶¶ 9-10; Def.'s MSJ, Ex. 4.) Although the DEEO accepted the third and fourth claims set out in the 2004 DEEO Complaint, specific to the AWOL time charged against Threatt, it dismissed the first and second claims as untimely. (Def.'s Facts¶ 10.) The DEEO also dismissed the fifth and sixth claims for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). (Id.; Def.'s MSJ, Ex. 4 at 2-3.) On March 1, 2006, the DEEO issued its final decision on the 2004 DEEO Complaint, finding that Threatt failed to establish any connection between her August 2002 EEO activity and the August 2004 AWOL charge. (Def.'s Facts ¶ 15; Def.'s MSJ, Ex. 12 at 4.)

In June of 2006, Hamilton issued Threatt an evaluation indicating that her performance was "unacceptable" in several ways, further described in a separate document entitled "Justification for EPPES Rating for Period Ending January 31, 2006." (Def.'s MSJ, Exs. 13-14.) At the same time, on June 21, 2006, HUD placed Threatt on an 90-day opportunity-to-improve plan ("OIP"). (Def.'s MSJ, Ex. 15.) On January 12, 2007, Hamilton issued Threatt a Notice of Proposal to Remove, describing Threatt's alleged ongoing deficiencies and options for responding to the notice. (Def.'s MSJ, Ex. 16.) The notice sets forth numerous assignments Threatt failed to complete during the OIP period, including generation of letters and reports and certain computer training. (Id.) On May 11, 2007, Ronald Herbert -- Director of HUD's Office of Field Management and Willis' immediate supervisor -- informed Threatt that she would be removed from service effective May 15. (Def.'s MSJ, Ex. 19 at 5.)

Prior to her termination, Threatt filed a third formal EEO complaint on March 26, 2007 (the "2007 DEEO Complaint"), asserting three claims against HUD relating to her impending removal and performance reviews. (Def.'s MSJ, Exs. 17-18.) On May 3, 2007, the DEEO notified Threatt that it accepted two of the three charges for investigation, but dismissed her claim that her supervisors discriminated and retaliated against her by improperly evaluating her work from 2003 through 2006. (Def.'s MSJ, Ex. 18.) On June 12, 2007, Threatt requested that the DEEO amend her complaint to include a claim based on her May 15 termination. (Def.'s MSJ, Ex. 20.) Threatt simultaneously asked the DEEO to dismiss (or at least stay investigation of) the amended portion of the claim "since it is being reviewed by the federal court." (Id.; Def.'s Facts ¶ 22.) The DEEO acquiesced to this request, amending Threatt's complaint pursuant to 29 C.F.R. § 1614.106(d) and staying its investigation. (Def.'s MSJ, Ex. 21; Def.'s Facts ¶ 22.)

On July 11, Threatt asked the DEEO to dismiss the 2007 DEEO Complaint pursuant to 29 C.F.R. § 1614.107(a)(3) because we had permitted her to amend her lawsuit to include the termination claim. (Def.'s MSJ, Ex. 22; Def.'s Facts ¶ 23.) The DEEO issued its final decision on September 27, 2007, dismissing the 2007 DEEO Complaint entirely because Threatt's three pending claims are also part of this lawsuit. (Def.'s MSJ, Ex. 23; Def.'s Facts ¶ 23.)


Summary judgment is proper only when "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed R. Civ. P. 56(c). A genuine issue for trial exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). This standard places the initial burden on the moving party to identify "those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986) (internal quotations omitted). Once the moving party meets this burden of production, the nonmoving party "may not rest upon the mere allegations or denials of the adverse party's pleading" but rather "must set forth specific facts showing that there is a genuine issue [of material fact] for trial." Fed. R. Civ. P. 56(e). In deciding whether summary judgment is appropriate, we must accept the nonmoving party's evidence as true, and draw all inferences in that party's favor. See Anderson, 477 U.S. at 255.


A. Exhaustion of Termination Claim

Before proceeding to the merits of the present motion, we address HUD's contention that Threatt failed to exhaust the termination claim contained in her 2007 DEEO Complaint. (Def.'s MSJ at 9-10,14.) Although Threatt inexplicably failed to respond to this argument in her opposition brief,*fn5 we find as a matter of law that she sufficiently exhausted the 2007 DEEO Complaint.

HUD correctly states that "[f]ederal employees asserting Title VII claims must timely exhaust their administrative remedies before they may assert their claims in a lawsuit." Kruger v. Principi, 420 F. Supp. 2d 896, 906 (N.D. Ill. 2006); Gagnon v. Potter, No. 05-324, 2006 WL 2051730, at *2 (N.D. Ind. July 19, 2006); McSwain v. Runyon, 990 F. Supp. 1001, 1003 (N.D. Ill. 1998); see, e.g., More v. Snow, 480 F. Supp. 2d 257, 269-70 (D.D.C. 2007) (describing exhaustion procedures and purposes); King v. Gonzalez, No. 03-126, 2005 WL 1175135, at *9 (N.D. Ind. May 5, 2005) (same). For federal employees, like Threatt, the process begins informally by contacting an EEO counselor "within 45 days of the date of the matter alleged to be discriminatory." 29 C.F.R. § 1614.105(a)(1). After engaging in counseling sessions, including a final interview, the counseler then informs the aggrieved employee in writing of the right to file a formal discrimination complaint. Id. § 1614.105(d). Any such formal complaint must be filed by the aggrieved employee within 15 days of receipt of the counselor's above- described notice. Id. § 1614.106(b). Generally, the relevant EEO agency must "conduct an impartial and appropriate investigation of the complaint within 180 days of the filing of the complaint." Id. § 1614.106(e)(2). The complainant is free to amend the EEO complaint "at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint." Id. § 1614.106(d). In that event, the agency "shall complete its investigation within the earlier of 180 days after the last amendment . . . or 360 days after the filing of the original complaint." Id. § 1614.106(e)(2). Title VII then permits aggrieved employees to file civil actions "[w]ithin 90 days of receipt of notice of final action taken by a department [or] agency," or 180 days after the employee's filing of the initial charge. 42 U.S.C. § 2000e-16(c); see also 29 C.F.R. § 1614.407(a), (b). Working together, the statute and regulations give the administrative agency up to 180 days to complete its investigation of the employee's claims and attempt conciliation, at which time the employee may take the matter to federal court.

HUD does not dispute that Threatt promptly participated in the informal counseling procedure and timely filed the 2007 DEEO Complaint on March 26, 2007, after receiving the Notice of Proposal to Remove dated January 12, 2007. Rather, HUD argues that Threatt abandoned her third charge by repeatedly requesting, and ultimately obtaining, its dismissal under 29 C.F.R. § 1614.107(a)(3) because she alleged identical claims in this lawsuit. (Def.'s MSJ at 9-10,14.) To recap critical dates, Threatt asked the DEEO on June 12, 2007 to amend her administrative charge to include the termination claim and to dismiss her complaint in light of the ongoing litigation. Threatt filed a Second Amended Complaint in this lawsuit on July 18, 2007 to add the same termination claim. She again asked the DEEO to dismiss her complaint on July 11, 2007, and the DEEO complied on September 27, 2007.

The relevant regulations provide, in pertinent part, that "the agency shall dismiss an entire complaint . . . that is the basis of a pending civil action in a United States District Court in which the complainant is a party provided that at least 180 days have passed since the filing of the administrative complaint." 29 C.F.R. § 1614.107(a)(3). Accordingly, the DEEO is required to dismiss an administrative complaint under such circumstances. In this case, more than 180 days had passed since Threatt's filing of the 2007 DEEO Complaint when the DEEO dismissed it on September 27.*fn6 Further, Threatt's July 18 Second Amended Complaint is plainly based on her 2007 DEEO Complaint and the allegations contained therein, and HUD does not argue otherwise. As a result, the DEEO was authorized -- indeed, obligated -- to dismiss Threatt's entire charge. 29 C.F.R. § 1614.107(a)(3). Although not a decision on the merits, the DEEO's September 27 is a final agency action, triggering Threatt's right to sue. 42 U.S.C. § 2000e-16(c); see also Hill v. Potter, 352 F.3d 1142, 1145 (7th Cir. 2003) (noting that "exhaustion" means that complainant cannot sue "untilhe has received a right-to-sue letter from the ...

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