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Bailey v. Department of Commerce

United States District Court, S.D. Indiana, New Albany Division

September 27, 2017

BETRENIA BAILEY, Plaintiff,
v.
DEPARTMENT OF COMMERCE, PENNY PRITZKER, in her official capacity as the United States Secretary of Commerce, Defendants.

          ENTRY ON DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT

          TANYA WALTON PRATT, JUDGE

         This case arises out of an employment dispute between Plaintiff Betrenia Bailey (“Bailey”) and Defendant Penny Pritzker, in her official capacity as the United States Secretary of Commerce (“the Secretary”). Bailey challenges the termination of her employment with the United States Department of Commerce (“Commerce”), arguing that it occurred on the basis of age, in violation of the Age Discrimination in Employment Act (“ADEA”). The Secretary has filed a Motion to Dismiss and requested that the Court convert it into a Motion for Summary Judgment. (Filing No. 25.) For the reasons described below, the Court converts the Secretary's Motion to Dismiss into a summary judgment motion, and GRANTS the Motion for Summary Judgment.

         I. BACKGROUND [1]

         At the time she filed her Amended Complaint, Bailey was 53 years old. She began her employment with the United States Department of Commerce on March 3, 2008 as a statistical clerk at the Jefferson Call Center in Jeffersonville, Indiana. Her duties included performing telephone interviews, explaining the purpose of surveys, and following up with survey respondents. (Filing No. 10 at 3.) Eric Milliner (“Milliner”) became the Chief Branch Manager of the Jefferson Call Center in or around December 2010. (Filing No. 10 at 3.) Bailey alleges that while she had consistently received positive performance reviews before Milliner's tenure, by April 2011 Milliner began to systematically take adverse employment actions against her and against other statistical clerks who were over the age of 40. (Filing No. 10 at 3.) For example, Milliner would assign the over-40 clerks higher workloads than other clerks and accuse them of “idleness, ” failing to call in (which resulted in unexcused absences), and parking violations. (Filing No. 10 at 4.) Bailey identifies three under-40 statistical clerks-Charee Stoner, Nidra Carter and Seth Weathers-who engaged in conduct similar to Bailey's, but were not disciplined. (Filing No. 10 at 4.) Bailey alleges that she suffered several adverse employment actions because of her age, including being orally counseled, being issued a written reprimand, and being given 3-day and 14-day suspensions.

         In a letter dated March 10, 2012, Milliner informed Bailey that he was proposing termination of her employment, due to an absence from work without authorization and failure to follow proper call in procedures. (Filing No. 34-11 at 1.) Bailey submitted a response to the termination proposal through a union representative. (Filing No. 34-10 at 1.) On that same day, she also filed a complaint of employment discrimination (an “EEO Complaint”), checking the boxes indicating that she believed she was discriminated against on the basis of her sex and age, and also in retaliation for having reported sexual harassment in the workplace. (Filing No. 34-12 at 1.) In a letter dated April 23, 2012, Karen Silloway, the Assistant Division Chief of the National Processing Center, determined that the reasons listed in Milliner's March 10, 2012 letter were fully supported by the evidence, and she sustained Bailey's termination. (Filing No. 34-13 at 1.) On October 16, 2012, Commerce issued a final decision regarding Bailey's EEO Complaint, concluding that she was not removed due to her sex, age, or reprisal for a protected activity. (Filing No. 25-2 at 4.)

         On November 13, 2012, Bailey filed a mixed-case appeal of her termination with the Merit Systems Protection Board (“MSPB”). (Filing No. 25-2 at 1.) After a hearing, on March 11, 2013, an Administrative Law Judge (“ALJ”) issued an initial decision regarding Bailey's appeal. The ALJ concluded that Commerce established by a preponderance of the evidence that Bailey had been absent without authorization. (Filing No. 25-2 at 4.) The ALJ also concluded that Bailey did not establish by a preponderance of the evidence that Commerce removed her on the basis of age, (Filing No. 25-2 at 10), or as a result of retaliation for engaging in a protected activity (Filing No. 25-2 at 15). The ALJ determined, however, that in fashioning a penalty for Bailey's unauthorized absence, “the agency violated [Bailey's] due process rights by denying her notice of the specific information considered used to remove her and an opportunity to respond.” (Filing No. 25-2 at 19.) The ALJ stated that Commerce may not remove Bailey “unless and until she is afforded a new and constitutionally correct removal procedure”, (Filing No. 25-2 at 19), and ordered Commerce to cancel the removal and restore Bailey to employment, effective April 23, 2012. (Filing No. 25-2 at 19.)

         On April 12, 2013, Commerce filed a petition for review of the ALJ's initial decision. (Filing No. 25-3 at 1.) Bailey did not file a petition for review of the ALJ's findings regarding her age discrimination and retaliation claims. (Filing No. 25-1 at 2.) On June 6, 2014, the MSPB issued a final order on Bailey's mixed case appeal. (Filing No. 25-4 at 1.) The MSPB denied the petition for review and affirmed the ALJ's initial decision, which became the MSPB's final decision. (Filing No. 25-4 at 2.) This includes the ALJ's findings regarding Bailey's age discrimination and retaliation claims, which Bailey did not appeal. (Filing No. 25-4 at 7.) In addition, Bailey did not appeal the MSPB's decision regarding her discrimination claims either to the Equal Employment Opportunity Commission (“EEOC”) or to a federal district court.

         Based on the MSPB's decision, Bailey's employment was reinstated. (Filing No. 25-1 at 2.) Following her reinstatement, on April 8, 2013, Bailey's removal was proposed again, for the same unauthorized absence that was at issue in her first removal. Id. A second removal became effective on June 1, 2013. Id. On July 1, 2013, Bailey filed a mixed-case appeal to the MSPB challenging her second removal.[2] In this second appeal, she challenged her termination, arguing that she was unlawfully terminated because of her age, gender, because she complained about sexual harassment, or because she raised concerns under the Whistleblower Protection Law. (Filing No. 25-5 at 6.) Commerce filed a narrative response to Bailey's appeal, arguing that the ALJ's prior order-regarding the first termination-found that Bailey failed to prove her affirmative defense of age discrimination. (Filing No. 25-6 at 7.) Commerce also stated in a footnote that Bailey did not appear to be raising an age discrimination claim in her second appeal. (Filing No. 25-6 at 7.) In her July 23, 2014 pre-hearing submission, Bailey indicated that the following four questions were at issue in her appeal to the MSPB: (1) whether the agency had proven by a preponderance of the evidence the essence of the charge of Failure to Follow Proper Procedures and unauthorized absences as described in the letter proposing to remove Bailey, dated April 8, 2013; (2) whether the penalty of removal was within the tolerable limits of reasonableness; (3) whether her removal was permissible after the issuance of the MSPB's Decision dated June 6, 2014; and (4) whether the agency unlawfully retaliated against her for filing an initial appeal of her first termination. (Filing No. 25-7 at 1.) In that filing, Bailey also indicated that she waived her right to a hearing in the appeal. (Filing No. 25-7 at 4.)

         Following a status conference on August 7, 2014, the ALJ issued an order and summary, summarizing the discussion held that the status conference. (Filing No. 25-8 at 1.) In it, the ALJ addressed the issues raised by Bailey, and discussed the following affirmative defenses identified by Bailey: retaliation for her EEO activity, retaliation for having filed her initial MSPB appeal, and laches. (Filing No. 25-8 at 4.) The ALJ opined that Bailey had waived all other affirmative defenses, waived her right to a hearing, and requested that the matter be adjudicated on the written record. (Filing No. 25-8 at 5.) The ALJ indicated that the record would close on September 18, 2014, and that all evidence and argument must be filed by that date. (Filing No. 25-8 at 5.) On October 27, 2015, the ALJ issued her initial decision. (Filing No. 25-9.) The ALJ concluded that Bailey had not established either of her affirmative defenses-retaliation or laches-and that she had waived all other affirmative defenses. (Filing No. 25-9 at 6; Filing No. 25-9 at 10-15.) The ALJ affirmed the agency's decision. (Filing No. 25-9 at 18.)

         On November 30, 2015, Bailey filed a Complaint in this Court, (Filing No. 1), and filed the operative Amended Complaint on January 30, 2016, (Filing No. 10). Bailey alleges only one claim in her Amended Complaint-that Commerce discriminated against her on the basis of age, in violation of 29 U.S.C. § 623 et seq., the Age Discrimination in Employment Act. The Secretary filed a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment. (Filing No. 25.) That Motion is now ripe for the Court's review.

         II. MOTION TO DISMISS UNDER RULE 12(b)(5)

         The Secretary moves to dismiss Bailey's Amended Complaint on the grounds that Bailey has failed to establish that she has properly served all required parties. (Filing No. 26 at 14.) As this issue is jurisdictional, the Court addresses it first. In order to serve a United States officer in her official capacity, the Federal Rules of Civil Procedure require that the plaintiff serve the United States and send a copy of the summons and complaint to the officer. Fed.R.Civ.P. 4(i)(2). Service upon the United States is accomplished by delivering a copy of the summons and of the complaint to the United States attorney for the district where the action is brought and sending a copy of each by registered or certified mail to the Attorney General of the United States. Fed.R.Civ.P. 4(i)(1). Thus, three copies of the summons and complaint must be sent: (1) to the officer; (2) to the United States attorney for the district where the action is brought; and (3) to the Attorney General of the United States.

         If proper service is not accomplished within 120 days of the filing of the complaint, the court “must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Fed.R.Civ.P. 4(m). Thus, where the plaintiff fails to show “good cause, ” the court is left with two options: (1) dismiss the action without prejudice; or (2) order that service be made within a specified time. United States v. McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006). Ultimately, “the decision of whether to dismiss or extend the period for service is inherently discretionary.” Cardenas, 646 F.3d at 1005 (citing United States v. Ligas, 549 F.3d 497, 501 (7th Cir. 2008)). Rule 12(b)(5) establishes that a complaint can be dismissed for insufficient service of process. If process is insufficient, the court lacks personal jurisdiction over the defendant, thus implicating Rule 12(b)(2). Id. (citations omitted). In making its determination, the court may consider affidavits and other documentary evidence. Id. at *2 (citations omitted).

         Bailey has served the United States attorney for the district in which this action was filed, (Filing No. 23), and the Secretary acknowledges that Bailey has served the United States Secretary of Commerce, (Filing No. 26 at 15). Bailey has not, however, served the Attorney General of the United States, as required by Rule 4(i)(1). Bailey has been counseled on a number of occasions by the Court on the necessity of doing so, and she has received multiple extensions of time. On June 2, 2016, the Court issued Bailey an order to show cause “as to why her complaint should not be dismissed without prejudice because of her failure to serve the defendant within 120 days of filing.” (Filing No. 11.) Following Bailey's response, the Court granted her an extension until July 20, 2016 to serve the Amended Complaint and directing her to file proof of service by August 3, 2016. (Filing No. 13.) On August 10, 2016, having received no proof of service, the Court ordered Bailey to file a proof of service by August 12, 2016. (Filing No. 14.) Bailey's counsel responded that he had been “dealing with limitations caused by [a heart] procedure” that was performed on August 12, 2016. (Filing No. 15 at 1.) The Court construed that response as a request for more time, granting Bailey until August 29, 2016 to serve the Attorney General, and ordering her to file proof of service by September 12, 2016. (Filing No. 17.) On September 12, 2016, Bailey filed a response, stating that the Amended Complaint was served on Commerce via certified mail on ...


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