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David Schupbach, et al v. Robert M. Gates

November 2, 2011

DAVID SCHUPBACH, ET AL., PLAINTIFF,
v.
ROBERT M. GATES, SECRETARY, DEPARTMENT OF DEFENSE, DEFENDANT.



The opinion of the court was delivered by: Judge Gregory L. Frost

Magistrate Judge Norah McCann King

OPINION AND ORDER

This matter is before the Court on Defendant's Motion to Dismiss ("Defendant's Motion") (ECF No. 2), Plaintiffs' Memorandum in Opposition to Defendant's Motion (ECF No. 22), Plaintiffs' Supplement to their Memorandum in Opposition (ECF No. 23), Defendant's Reply Memorandum (ECF No. 24), Plaintiffs' Second Motion to Supplement their Memorandum in Opposition to Defendant's Motion, Instanter (ECF No. 28). For the reasons that follow, the Court GRANTS Defendant'smotion and GRANTS Plaintiffs' motion.

I. Background

Plaintiffs, Ricky Oltman and David Schupbach, were employed by Defendant in the Department of Defense Logistics Agency. On November 13, 2007, Plaintiffs filed a class action complaint with their employer's Equal Employment Opportunity ("EEO") Department alleging sex and age discrimination based on the class's non-selection for Job Opportunity Announcement (JOA) DSCC-07-3119. There were originally five members of the class complaint; however, two of the members withdrew prior to the filing of the formal complaint. Plaintiffs remained as members of the class with Plaintiff Oltman acting as the class agent and C. Philip Henry, President, IFPTE Local 7, acting as their representative.

On July 1, 2008, Administrative Judge Elliot Porter dismissed Plaintiffs' class complaint for failure to satisfy the legal requirements of a class complaint. Plaintiffs proceeded to pursue their complaints as individual complaints while retaining Henry as their representative. Plaintiffs separately withdrew their formal complaints of discrimination in July 2009.

In April 2010, Plaintiffs petitioned their respective Administrative Judges requesting that their withdrawals be rescinded and their cases reopened so they could file their individual complaints in a United States district court. Both Administrative Judges denied Plaintiffs' requests. In July 2010, Plaintiffs contacted the Defense Logistics Agency Land and Maritime EEO Manager, Charles Palmer, to request that the Agency reopen their individual complaints. Plaintiffs claimed that they did not understand that by withdrawing their administrative complaints they were also waiving their rights to file their claims in federal district court.

On August 10, 2010, EEO Manager Palmer contacted Plaintiffs and requested that they provide evidence that they did not knowingly waive their rights. Counsel for Plaintiffs responded to Palmer on September 29, 2010, asserting that the forms that Plaintiffs signed in July 2009 did not state they were waiving their rights to subsequently file their claims in court. On October 4, 2010, Palmer informed Plaintiffs that the Agency would not reopen their individual complaints.

On February 11, 2011, Plaintiffs filed this action, alleging claims for gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and age discrimination in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). On April 18, 2011, Defendant filed Defendant's Motion, arguing that he is entitled to dismissal of this action because Plaintiffs fail to state a claim upon which relief may be granted. Specifically, Defendant argued that Plaintiffs failed to exhaust their administrative remedies and that their claims are barred by the applicable statute of limitations.

On May 11, 2011, Plaintiffs requested and were granted an extension of time in which to respond to Defendant's Motion. On May 19, 2011, Plaintiffs again requested an extension of time in which to respond to Defendant's Motion. In this second motion, Plaintiffs informed the Court that they needed sixty days to conduct limited discovery so that they could sufficiently respond to Defendant's Motion. Plaintiffs indicated that they were in need of the form signed by Plaintiffs that was identified in one of the exhibits to Defendant's Motion that Defendant claimed showed that Plaintiffs knowingly waived their rights to file an action in federal court. This Court granted Plaintiffs' motion for an extension of time for the purpose of engaging in discovery.

Defendant had not responded to Plaintiffs' motion for an extension of time to conduct discovery before the Court granted that motion, and indeed, informed the Court through a motion for a protective order that it opposed Plaintiffs' request to engage in discovery. (ECF No. 13.) Defendant indicated that it voluntarily provided the document that Plaintiffs claimed they needed in discovery. On July 25, 2011, this Court granted Defendant's motion for a protective order, concluding that Plaintiffs did not need any further information from Defendant to oppose Defendant's Motion. (ECF No. 18.)

On August 4, 2011, Plaintiffs filed a motion to amend the complaint (ECF No. 21), which was unopposed. On September 7, 2011, the Court granted Plaintiffs' motion to amend. (ECF No. 25.) The amended complaint added the statement: "Administrative exhaustion and timeliness requirements are subject to equitable tolling and equitable estoppel." (ECF No. 21 On August 8, 2011, Plaintiffs filed their Memorandum in Opposition to Defendant's Motion (ECF No. 22), and on August 15, 2011, Defendant filed its Reply Memorandum in Support of its Motion (ECF No. 24).

On October 11, 2011, Plaintiffs filed their Second Motion to Supplement their Memorandum in Opposition to Defendant's Motion, Instanter. (ECF No. 28).

II. Standard

Defendant moves for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendant and Plaintiffs, however, present numerous documents in support of their arguments for or against dismissal of this action. As Plaintiffs correctly note, when matters outside of the pleadings are relied upon, the Court may convert a motion to dismiss to one for summary judgment. Rule 12 of the Federal Rules of Civil Procedure provides the mechanism for such a conversion:

Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

Fed. R. Civ. P. 12(d).

Here, the Court finds that both parties have been given a reasonable opportunity to present all the material that is pertinent to Defendant's Motion. Indeed, "Plaintiffs request that the Court consider [Defendant's] Motion as one for summary judgment where the Plaintiffs have put forth factual evidence." (ECF No. 22 at 6.) Defendant does not oppose this conversion. Therefore, the Court will treat Defendant's Motion as one for summary judgment.

Summary judgment is appropriate "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court may therefore grant a motion for summary judgment if the nonmoving party who has the burden of proof at trial fails to make a showing sufficient to establish the existence of an element that is essential to that party's case. See Muncie Power Prods., Inc. v. United Techs. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

The "party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions" of the record which demonstrate "the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting Fed. R. Civ. P. 56(e)). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255 (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Muncie Power Prods., Inc., 328 F.3d at 873 (quoting Anderson, 477 U.S. at 248). See also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (the requirement that a dispute be "genuine" means that there must be more than "some metaphysical doubt as to the material facts"). Consequently, the ...


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