The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KELLY PRIGMORE ) CASE NO. 5:22-CV-01773
Plaintiff, )
) JUDGE JOHN R. ADAMS
vs. )
)
)
LOUIS DEJOY, ) ORDER AND DECISION
Postmaster General of the United States, )
)
Defendants. )
)
)
This matter is before the Court on Defendant Louis Dejoy’s, Postmater General of the
United States, motion for summary judgment. Doc. 14-1. For the following reasons, Defendant’s
motion for summary judgment is GRANTED, and the matter is hereby DISMISSED.
I. FACTS
The following facts are relevant to the Court’s review. Plaintiff Kelly Prigmore, an African
American woman, began her employment with the United States Post Office (“USPS”) sometime
in 2020. Doc. 14-1, p. 1, citing Doc. 1, ¶11, 16. Plaintiff is currently employed as a Mail Handler.
Id. Plaintiff has a Caucasian coworker named Misty Kittle who allegedly began her employment
with USPS at the same time as Plaintiff. Doc. 1, ¶13. In October of 2020, Plaintiff applied for the
position of Postal Support Employee (“PSE”) and was required to submit a background check.
Doc. 14-1, p. 1, citing Doc. 1 at ¶20, 22. “Plaintiff, an African American employee, claims that
her Caucasian coworker, Misty Kittle, was not subjected to the required background check when
applying for the same PSE position.” Doc. 14-1, p. 2, citing Doc. 1 at ¶ 24, 28, 29.
1
Plaintiff contends that on or about November 2, 2020, Ms. Kittle called a human resources
representative to inquire as to the status of her application while Plaintiff listened in on speaker
phone. Doc. 1, ¶23, 24. Plaintiff asserts that the HR representative informed Ms. Kittle that her
background check had expired but that the representative would submit the expired background
check with her application. Doc. 1, ¶29. Plaintiff contends that on that same date, she called HR
to inquire about the status of her application and was informed that her application could not move
forward because her background check was not up-to-date as required. Doc. 1, ¶¶ 34, 42. Plaintiff
contends that she “immediately contacted the EEOC on November 2nd, 2020 and requested to file
a complaint of racial discrimination.” Doc. 1, ¶44. Plaintiff contends that “[t]he EEOC refused to
accept Plaintiff’s complaint and indicted that Ms. Kittle had to be starting in the position before a
complaint could be taken or filed.” Doc. 1, ¶45. Plaintiff asserts that Ms. Kittle was verbally
offered the PSE position on or about November 5, 2020, despite not having an up-to-date
background check. Doc. 1, ¶ 32, 33.
On November 16, 2020, the USPS confirmed Ms. Kittle’s appointment to the PSE position
via letter, setting her orientation for November 23, 2020. Doc. 14-2. Ms. Kittle began the PSE
position on December 5, 2020. Doc. 14-3; Doc. 14-4, ¶ 6. Despite official documentation of Ms.
Kittle’s start date, Plaintiff alleges that Ms. Kittle started the position on January 10, 2021. Doc.
1, ¶ 46
On January 25, 2021, Plaintiff requested pre-complaint processing with an Equal
Employment Opportunity (“EEO”) counselor. Doc. 1, ¶47; Doc. 14-5, p. 1; Doc. 1-1, p. 1. On
December 9, 2021, the EEO sent Plaintiff a Notice of Right to File an Individual Complaint of
Discrimination and on December 21, 2021, Plaintiff filed a formal complaint of discrimination.
Doc. 14-5, p. 2; Doc. 1-1, p. 1. On January 6, 2022, Plaintiff’s complaint was dismissed as untimely
because she failed to initiate contact with an EEO counsel within 45 days of the alleged
discriminatory action as required under 29 C.F.R. 1614.105(a). Doc. 1, ¶48; Doc. 14-5, p. 3; Doc.
1-1, p. 2. On July 5, 2022, the U.S. Equal Employment Opportunity Commission affirmed the
Agency’s final decision dismissing Plaintiff’s formal complaint. Doc. 1-1, p. 2.
On October 4, 2022, Plaintiff filed suit against the USPS alleging race discrimination under
Title VII of the Civil Rights Act of 1964. Doc. 1, ¶2. Prior to the case management conference,
Defendant informed the Court of its position that Plaintiff’s case was filed untimely
administratively, and therefore the case should be dismissed before discovery commenced. Doc.
12, p. 3. At the case management conference, the Court concluded that the issue of administrative
exhaustion should be briefed prior to the commencement of any discovery. Accordingly,
Defendant moved for summary judgment, arguing that Plaintiff failed to exhaust her administrative
remedies as required to file the instant suit. Upon review, the Court agrees.
II. LEGAL STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure governs summary judgment motions
and provides:
The judgment sought shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law * * *.
In reviewing summary judgment motions, this Court must view the evidence in a light most
favorable to the non-moving party to determine whether a genuine issue of material fact exists.
White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943–944 (6th Cir. 1990).
A fact is “material” only if its resolution will affect the outcome of the lawsuit. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is appropriate whenever the
non-moving party fails to make a showing sufficient to establish the existence of an element
essential to that party’s case and on which that party will bear the burden of proof at trial. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Moreover, “the trial court no longer has a duty to
search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v.
J.C. Bradford & Co., 886 F.2d 1472, 1479–1480 (6th Cir. 1989) (citing Frito–Lay, Inc. v.
Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988)). The non-moving party is under an affirmative
duty to point out specific facts in the record as it has been established which create a genuine issue
of material fact. Fulson v. City of Columbus, 801 F. Supp. 1, 4 (S.D. Ohio 1992). The non-movant
must show more than a scintilla of evidence to overcome summary judgment; it is not enough for
the non-moving party to show that there is some metaphysical doubt as to material facts. Id.
III. LAW AND ANALYSIS
Defendant contends that Plaintiff has failed to exhaust her administrative remedies, and
therefore it is entitled to judgment as a matter of law. Doc. 14-1, p. 5. Plaintiff is a federal
employee. In order to bring the present action, she must comply with the pre-complaint process
found in 29 C.F.R. §1614.105. “In permitting federal employees to sue under Title VII, Congress
conditioned the government’s waiver of sovereign immunity upon a plaintiff’s satisfaction of
‘rigorous administrative exhaustion requirements and time limitations.’” McFarland v.
Henderson, 307 F.3d 402, 406 (6th Cir. 2002) quoting, Brown v. General Services Administration,
425 U.S. 820 (1976). 425 U.S. at 833. “Exhaustion is required in order to give federal agencies an
opportunity to handle matters internally whenever possible and to ensure that the federal courts
are burdened only when reasonably necessary. The deadlines allow an employer to investigate
promptly before evidence becomes stale. It is an employer’s burden to prove that an employee
failed to properly exhaust his administrative remedies.” O’Malley v. Potter, 2005 U.S. Dist. LEXIS
20918 (E.D. Pa. Sept. 19, 2005).
According to the applicable regulations, Plaintiff was required to “initiate contact with a
Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of
personnel action, within 45 days of the effective date of the action.” 29 C.F.R. §1614.105(a)(1).
The Commission has explained that it
has adopted a “reasonable suspicion” standard to determine when the 45-day
limitation period is triggered. See Davis v. Department of the Air Force, EEOC
Appeal No. 01A21734 (March 18, 2003) and Bowser v. U.S. Postal Service, EEOC
Appeal No. 01A05301 (June 13, 2002), both citing Howard v. Department of the
Navy, EEO Request No. 05970852 (February 11, 1999). Moreover, the
Commission has held that waiting until one obtains “proof” of discrimination
similarly will not toll the time limit. See Hernandez v. U.S. Postal Service, EEOC
Appeal No. 01A43044 (September 10, 2004) and Bracken v. U.S. Postal Service,
EEOC Request No.05900065 (March 29, 1990).
Doc. 14-5, p. 3.
At issue herein is what is the discriminatory act that triggered the 45-day clock. In the
dismissal of the Plaintiff’s formal EEO complaint, the agency set forth the specific issue alleged
as follows:
You alleged discrimination based on Race (Black) when: On a date not specified in
November 2020, you were informed that your background check was out of date
and could not be used to hire you to a different position, but a co-worker was told
on the same day that even though her background check was out of date, they could
use it to hire her to a different position.
Doc. 14-5, p.3. Plaintiff does not dispute that her January 25, 2021 Complaint was well outside
of the 45-day timeframe from this specific instance. In fact, Plaintiff “did not claim that [she was]
unaware of the time limit for contacting an EEO Counselor and the record contains an affidavit
attesting to the fact that the EEO poster is appropriately displayed at your facility.” Doc. 14-5, p.
3. The Commission concluded that because the employer properly displayed the notice informing
Plaintiff of her rights, Plaintiff had constructive knowledge of the 45-day requirement. Id.
Accordingly, the Commission dismissed her complaint as untimely. Id. Plaintiff took steps to
appeal this decision to the EEOC, who set forth the specific act of discrimination date as follows:
On December 21, 2021, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination based on race when, on November 9, 2020,
she was informed that her background check was out-of-date and could not be used
to hire her into a different position. Complainant further alleges that a co-worker
was told on the same day that although her background check was out-of-date, it
could be used to hire her into a different position.
Doc. 1-1, p. 1. Tellingly, in a footnote regarding the date in question, the EEOC noted “While the
Agency’s final decision indicates that the alleged discriminatory event occurred on an unspecified
date in November 2020, Complainant states that the event occurred on November 9, 2020.” Id.
(emphasis added). Thus, it is clear that Plaintiff believed the discriminatory act to be when she
spoke to HR in November of 2020.
In her opposition, Plaintiff asserts that she attempted to file her EEO “Complaint regarding
this issue on November 9, 2020, but she was informed that because Ms. Kittle had not begun
working in the PSE position, according to USPS records, that she needed to wait to file her
complaint.” Doc. 15-1, p. 5. In support, Plaintiff offers only an undated and unverified document
with no explanation as to its origin, noting that Plaintiff complained that on November 2, 2020 she
was informed her background check was out of date and could not be used to hire. Doc. 15-2.
While the document appears to be from the EEO, it is unclear what the document is intended to
convey, or the source of information contained in the document. Regardless, the document shows
nothing more than the fact that on some unspecified date, Plaintiff complained about the November
2020 incident, and that complaint was ultimately dismissed due to untimely counseling contact.
Id. This is in fact what the EEO explained in its December 21, 2021 decision. Doc. 14-5. When
reviewed in light of the EEOC documents provided by Plaintiff herself clearly stating that she
initiated contact on January 25, 2021, this undated and unverified document does not create a
genuine issue of material fact as to whether Plaintiff’s initial complaint was made in November of
2020 rather than on January 25, 2021. Finally, the EEOC explained that “Complainant has not
alleged that she was unaware of the time limitations for seeking timely EEO contact, or that she
was prevented by reasons beyond her control from timely contacting an EEO Counselor[.]” Doc.
1-1, p. 2. Accordingly, Plaintiff fails to establish a genuine issue of material fact as to whether she
timely contacted an EEO Counselor about the November incident.
Contrary to her unsupported assertion that she initially contacted the EEO in November of
20201, Plaintiff asserts in this action two new discriminatory acts from which she contends she
timely initiated the January 25, 2021 EEO action. Based on this post-hoc rationalization, Plaintiff
contends that she has exhausted her claims and therefore her case is properly before this Court.
According to Plaintiff, these acts are as follows:
(1) the conversation held on November 2, 2020 where the Caucasian human
resources personnel told Misty Kittle, a Caucasian woman, that she could use an
outdated background check to apply for the PSE position and then told Plaintiff, an
African American woman, minutes later, that she could not use an outdated
background check to apply for the same position (Complaint, ECF No. 1, PageID
#2, ¶¶ 23-42); (2) When Misty Kittle was offered the position; and (3) When Ms.
Kittle started her position, which, based on information obtained from Misty Kittle
herself, and another Plant Manager at USPS, was January 10, 2021. (See Exhibit
B). Plaintiff then filed her complaint with the EEOC on January 25, 2021, which
was well within the 45 day time period.
Doc. 15-1, p. 4. At the administrative level, Plaintiff maintained the November 2020 instance as
the specific discriminatory act date. Subsequent information regarding the co-workers start date
could be perceived as evidence or a continuation of the alleged discrimination but does not amount
to a specific instance of discrimination in and of itself. Even assuming it did, Plaintiff did not raise
1 Plaintiff submitted an affidavit of facts along with her opposition to Defendant’s motion for summary
judgment. Doc. 15-3. The affidavit is silent as to any alleged conversation with the EEO in November of 2020.
that issue within the formal EEO process set forth, and therefore, may not raise it for the first time
here.2 Accordingly, Plaintiff has filed to properly exhaust her claim and Defendant is entitled to
judgment as a matter of law.
IV. CONCLUSION
For the reasons set forth herein, the Defendant’s motion for summary judgment is
GRANTED. Plaintiff’s complaint is DISMISSED.
IT IS SO ORDERED.
DATE: January 4, 2024 /s/ John R. Adams
Judge John R. Adams
UNITED STATES DISTRICT COURT
2 Plaintiff asserts that discovery is necessary on the issue of Ms. Kittle’s start date because the USPS provided
“inconsistent records showing the start date of Misty Kittle, the USPS employee for whom Plaintiff’s complaint was
based upon, creating a genuine issue of material fact as to Ms. Kittle’s start date, and the timeliness of Plaintiff’s
complaint.” However, as noted above, Ms. Kittle start date is not the operative act the triggered the 45-day timeline,
and therefore discovery on the issue is unnecessary for this Court’s review.