Anthony-Pierre v. JBER Exchange et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
HEATHER ANTHONY-PIERRE,
Plaintiff,
v.
JAMES N. MATTIS,1 SECRETARY,
DEPARTMENT OF DEFENSE,
Defendant.
Case No. 3:16-cv-00023-SLG
ORDER RE MOTION FOR SUMMARY JUDGMENT
Before the Court at Docket 34 is Defendant’s Motion for Summary Judgment. Ms.
Anthony-Pierre opposed at Docket 38. Defendant replied at Docket 42. Oral argument
was not requested and was not necessary to the Court’s decision.
FACTUAL BACKGROUND
Heather Anthony-Pierre is a former employee of Army & Air Force Exchange
Service (“AAFES”), who began working for AAFES in 1997. 	In the fall of 2010, she
suffered an on-the-job injury to her left knee.2 	When she returned to work in January
2012, she was given a position in central checkout in order to accommodate work
restrictions ordered by her doctor.3 Ms. Anthony-Pierre states that she then “worked in a
sedentary position at central checkout for a period of one and a half years without any
1 The current Secretary has been substituted for Ashton B. Carter. See Fed. R. Civ. P. 25(d).
2 Docket 1-1 (Anthony-Pierre Statement) at 1.
3 See Docket 34-5 (Exhibit 5 – Email); Docket 1-1 at 1.
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incident or injury”4 Ms. Anthony-Pierre asserts that she was then “transferred to a new
position by HR in the tobacco area which required repetitive movement, including getting
up and down from a seated position to retrieve tobacco products for customers.”5 	She
explains:
As a result, my right knee and leg began to swell while I was at work. 	My
supervisors, Wanda Morissette and Ann Hendricks, were the first ones that
noticed the condition of my right leg and knee (swelling). I then went to Mr.
Fisher’s office to show him the condition of my right leg on the way out of
the office to the doctor. 	Mr. Fisher made a comment that he doubted my
being hurt based on rumors he heard from other workers. Despite the fact
that I had a valid written Doctor’s not stating otherwise.
No incident report was written or filed by any member of management
regarding the injury to my right knee [ ] with the Workman’s Comp division.
When I asked Management (Mark __ and Anne Hendricks) why they did not
complete an incident report, I was told because I had already had surgery
on my left knee, they did not feel it was necessary. 	I was told they would
inform Workman’s Comp about my right knee, however, this was never
done. 	I was forced to file a report with Workmen’s Comp on my own
because they failed to do so. 	. . . [T]here were other employees (under-
aged) that management made accommodations for and rang up tobacco
and liquor purchases – they were not forced to change positions like I was.
No reasonable accommodation was made due to my injury (disability).6
On September 11, 2013, Ms. Anthony-Pierre saw her doctor for pain in her left knee,
although she indicated to the doctor that she had instability in both knees.7 On September
13, 2013, Ms. Anthony-Pierre was diagnosed by Kris Kile, a family nurse practitioner, with
a “left knee arthoscopy partial lateral menisectomy” and was deemed disabled from work
4 Docket 1-1 at 1.
5 Docket 1-1 at 1.
6 Docket 1-1 at 1.
7 Docket 34-8 (Exhibit 8 – Dr. McGuire Note).
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starting on that date.8 Her expected return date was listed as “TBD.”9
Ms. Anthony-Pierre sought workers’ compensation for the condition related to her
left knee, but her claim was denied based on a medical opinion that the 2010 injury had
been resolved.10 In summer 2014, she submitted a Worker’s Compensation claim based
on an alleged workplace injury to her right leg that occurred on August 26, 2013.11 This
claim was denied on August 12, 2014.12
Ms. Anthony-Pierre did not return to work at AAFES. 	On December 7, 2014,
AAFES notified Ms. Anthony-Pierre that she was being administratively separated from
employment because she had been in leave without pay (“LWOP”) status for more than
one year, pursuant to governing regulations.13 	Ms. Anthony-Pierre did not dispute the
LWOP separation, but she filed a grievance in which she requested to return to work
under new medical restrictions.14 On January 7, 2015, AAFES denied the grievance.15
PROCEDURAL BACKGROUND
On January 21, 2015, Ms. Anthony-Pierre made initial contact with her agency’s
8 Docket 34-9 (Exhibit 9 – FNP-C Kile Note).
9 Docket 34-9.
10 Docket 34-10 (Exhibit 10 – CCSI Email).
11 Docket 34-11 (Exhibit 11 – Workman’s Comp Claim). Ms. Anthony-Pierre’s claim is dated June
30, 2014, but appears to have been received on August 5, 2014.
12 Docket 34-12 (Exhibit 12 – Notice of Controversion of Right to Compensation).
13 Docket 34-13 (Exhibit 13 – Separation from LWOP). See Docket 34-14 (Exhibit 14 – Master
Agreement, Article 29) at 2; Docket 34-15 (Exhibit 15 – EOP 15-10, Chapter 4) at 126 (both
providing that leave without pay will not be allowed for more than one year).
14 Docket 34-16 (Exhibit 16 - Grievance).
15 Docket 34-17 (Exhibit 17 – Grievance Denial).
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EEO office.16 	On January 23, 2015, Ms. Anthony-Pierre received Appendix 17, which
informed her that upon receiving the Notice of Right to File a Discrimination Complaint
(Appendix 12), she must filed her written formal complaint within 15 days.17 	On March
31, 2015, Ms. Anthony-Pierre received the Notice of Right to File a Discrimination
Complaint (Appendix 12).18 This document informed her of the necessity of filing a written
complaint within 15 calendar days—here, by April 15, 2015—based on the date she
received the Notice.19
On May 5, 2015, Ms. Anthony-Pierre filed her EEO complaint, which did not
contain an explanation for its untimeliness.20 	On May 19, 2015, AAFES issued a Final
Agency Decision, dismissing Ms. Anthony-Pierre’s EEO complaint as untimely pursuant
to 29 C.F.R. § 1614.106(b) and 29 C.F.R. § 1614.107(a)(2).21 	On June 22, 2015, Ms.
Anthony-Pierre appealed the dismissal of her complaint to the EEOC.22 On October 23,
2015, the EEOC affirmed the Agency’s final decision, stating that Ms. Anthony-Pierre did
not timely file her complaint and did not provide an adequate justification for the
untimeliness to warrant extension of the deadline.23
16 Docket 34-18 (Exhibit 18 – Counselor Report).
17 Docket 34-19 (Exhibit 19 - Appendix 17).
18 Docket 34-20 (Exhibit 20 – Appendix 12).
19 Docket 34-20.
20 Docket 34-21 (Exhibit 21 – Formal Compl.).
21 Docket 34-23 (Exhibit 23 – Notice of Dismissal).
22 Docket 34-24 (Exhibit 24 – Notice of Appeal).
23 Docket 34-25 (Exhibit 25 – Appeal Decision).
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On January 21, 2016, Ms. Anthony-Pierre filed the instant Complaint in this
Court.24 On February 26, 2016, the Court issued an Order to Show Cause with regard to
Ms. Anthony-Pierre’s untimely filing of her EEO formal complaint.25 Ms. Anthony-Pierre
provided a response stating that at the time of the deadline for filing her EEO complaint
she was worried about her mother’s back surgery.26 Ms. Anthony-Pierre also stated that
a close friend had passed away unexpectedly around that time.27 	Ms. Anthony-Pierre
also stated:
I was very ill and I called AAFES letting Miss Felecia Goolsby . . . know what
my situation [was] because at that time I was severely distraught with grief.
I was told by Miss Goolsby she would forward my situation to Miss Shirley
A. Hudson [who] never respond[ed] to me. Miss Goolsby told me to send
in my documents as soon as I can and I was never told if it was late that I
could appeal my documents late arrival or I would’ve done so.28
The Court allowed the case to go forward.29 Now before the Court is Defendant’s motion
for summary judgment.
LEGAL STANDARD
I. 	Jurisdiction
This Court has jurisdiction over this matter under 28 U.S.C. § 1331 because it is a
civil action arising under federal law, 42 U.S.C. § 2000e et seq. and 29 U.S.C. § 791 et
24 Docket 1 (Compl.).
25 Docket 3 (Order to Show Cause).
26 Docket 4 (Response to Order to Show Cause). Ms. Anthony-Pierre also provided a statement
by her mother, indicating that she did have back surgery around that time. 	Docket 4-1
(Attachment) at 3–4.
27 Docket 4 at 1.
28 Docket 4-1 at 2.
29 See Docket 5 (Order re Service and Response).
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seq. 	This Court also has jurisdiction pursuant to 42 U.S.C. § 2000e-5(f)(3), which
specifically grants jurisdiction over Title VII claims to the district courts.
II. 	Motion for Summary Judgment
Federal Rule of Civil Procedure 56(c) directs a court to grant summary judgment if
the movant “show[s] that there is no genuine issue as to any material fact and that [the
movant] is entitled to a judgment as a matter of law.” 	When considering a motion for
summary judgment, a court views the facts in the light most favorable to the non-moving
party and draws “all justifiable inferences” in the non-moving party’s favor.30 To reach the
level of a genuine dispute, the evidence must be such “that a reasonable jury could return
a verdict for the non-moving party.”31 If the evidence provided by the non-moving party
is “merely colorable” or “not significantly probative,” summary judgment is appropriate.32
DISCUSSION
Ms. Anthony-Pierre brings her claims of employment discrimination pursuant to
Title VII of the Civil Rights of Act of 1964, 42 U.S.C. § 2000e et seq., and the Rehabilitation
Act of 1973, 29 U.S.C. § 791 et seq.33 Her Complaint alleges: (1) she was assigned to a
30 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
31 Id. at 248.
32 Id. at 249–50.
33 Docket 1 at 1; Docket 1-2 (Appeal) at 1. Ms. Anthony-Pierre’s Complaint formally identifies only
Title VII as the basis for her claim. Docket 1 at 1. However, Defendant identifies the Rehabilitation
Act as the basis of her claim. Docket 34 at 2. Similarly, the EEO appeal decision identified the
Rehabilitation Act as the statutory basis for her formal EEO complaint. Docket 34-25 at 1. The
language of the Notice of Receipt of Discrimination Complaint issued to Ms. Anthony-Pierre
recognizes the possibility of civil action under either Title VII or the Rehabilitation Act. Docket 22
(Notice of Receipt) at 10. Accordingly, the Court treats Ms. Anthony-Pierre’s Complaint as alleging
discrimination in violation of both statutes.
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different register in 2013;34 (2) her supervisors did not file a workers’ compensation claim
on her behalf regarding her knee problems in August or September 2013; and (3) AAFES
discriminated against her when it separated her from employment in December 2014 after
she had been in LWOP status for over a year.
A federal employee seeking to pursue a court action against her employer
pursuant to Title VII or the Rehabilitation Act must first exhaust her administrative
remedies.35 	Federal regulations require that an employee “must consult a[n] [EEO]
Counselor prior to filing a complaint in order to try to informally resolve the matter” and
must do so “within 45 days of the date of the matter alleged to be discriminatory.”36
Here, some of Ms. Anthony-Pierre’s discrimination claims relate to actions that
occurred in 2013, including the claim that she was transferred to a new position and the
claim that her supervisors refused to submit a workers’ compensation claim. 	Ms.
Anthony-Pierre acknowledges her “failure to consult an EEO counselor within 45 days of”
these alleged discriminatory actions in 2013.37 	Therefore, Ms. Anthony-Pierre’s claims
regarding any events that occurred in 2013 are untimely.38
34 Ms. Anthony-Pierre alleges that management “did not follow [her] [d]octor’s written instructions
requiring that [she] be allowed to work in a sedentary position – instead they required [her] to
change positions and put [her] in a position that require [her] to work in a non-sedentary position.”
Docket 1-1 at 2.
35 Green v. Brennan, 136 S. Ct. 1769, 1775 (2016) (citing 42 U.S.C. § 2000e–16(c)).
36 29 C.F.R. §§ 1614.105(a), (a)(1).
37 Docket 38 at 7.
38 See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113–114 (2002) (“Each incident of
discrimination 	and each 	retaliatory adverse employment 	decision 	constitutes 	a separate
actionable ‘unlawful employment practice.’ . . . [D]iscrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in timely filed charges.”).
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In her opposition to the motion for summary judgment, Ms. Anthony-Pierre asks
the Court to “use its discretion to excuse [this] technical failing[].”39 A district court may
apply the doctrine of equitable tolling when administrative deadlines are missed. But that
doctrine requires a plaintiff to show: “(1) that [she] has been pursuing h[er] rights diligently,
and (2) that some extraordinary circumstance stood in h[er] way and prevented timely
filing.”40 With her opposition, Ms. Anthony-Pierre filed an affidavit in which she avers, “I
had no idea I needed to see the EEO counselor within 45 days of being discriminated or
I would have done this back in 2013.”41 	However, Ms. Anthony-Pierre acknowledged
during 	her 	deposition 	testimony 	that 	she 	had 	received 	EEO 	training 	during 	her
employment, which included instruction on how and when to file a formal complaint. She
also acknowledged that she understood the procedure for filing a complaint.42 	Ms.
39 Docket 38 at 2.
40 Menominee Indian Tribe of Wisconsin v. United States, 136 S.Ct. 750, 755 (2016) (quoting
Holland v. Florida, 560 U.S. 631 (2010)).
41 Docket 39 (Anthony-Pierre Affidavit) at 2, ¶ 9. Ms. Anthony-Pierre also “ask[s] that this Court
use its discretion and excuse [her] technical flaws, so that justice can prevail in this case.” Docket
39 at 3, ¶ 14.
42 Docket 34-26 at 76–77 (Anthony-Pierre Deposition). During Ms. Anthony-Pierre’s deposition,
the following exchange occurred:
Sara T. Gray: Do you remember completing an EEO rights and whistleblower
protection training?
Ms. Anthony-Pierre: Yes, ma’am.
Ms. Gray: Okay. And in that training, you learned that if you felt like you had been
discriminated against that you had a right to file a complaint, correct?
Ms. Anthony-Pierre: Yes, ma’am.
. . .
Ms. Gray: And you learned how and when to contact an EEO counselor, correct?
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Anthony-Pierre’s recent contradictory affidavit does not create a genuine issue of material
fact.43 	Ms. 	Anthony-Pierre 	has 	not 	demonstrated 	the 	requisite 	extraordinary
circumstances sufficient to allow the Court to excuse the lengthy delay in consulting an
EEO counselor with respect to the 2013 claims. 	Moreover, Ms. Anthony-Pierre’s
assertion that she was unaware of the necessity of contacting an EEO Counselor within
45 days of the alleged discriminatory conduct, even if true, would not warrant equitable
tolling.44
Ms. Anthony-Pierre: Yes, ma’am.
Ms. Gray: And that you had the right to mediation, correct?
Ms. Anthony-Pierre: Yes, ma’am.
Ms. Gray: And how and when to file a formal complaint?
Ms. Anthony-Pierre: Yes, ma’am.
. . .
Ms. Gray: And I don’t need to know about the tests. I just wanted to make sure
that you had the training.
Ms. Anthony-Pierre: Oh, yes, ma’am. Yes, ma’am.
Ms. Gray: And that you understood your right?
Ms. Anthony-Pierre: Yes, ma’am.
Ms. Gray: And that you understood the procedure?
Ms. Anthony-Pierre: Yes, ma’am.
43 See Van Asdale v. Int'l Game Tech., 577 F.3d 989, 998 (9th Cir. 2009) (“The general rule in the
Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting [her] prior
deposition testimony.” (quoting Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991))).
44 See Carter v. Chang, 2016 WL 5661873, at *2 (C.D. Cal. Sept. 28, 2016) (“[A]s a general matter,
neither the lack of legal sophistication, . . . nor ignorance of the law, constitutes an ‘extraordinary
circumstance’ entitling petitioner to any equitable tolling of the limitation period.” (citing Raspberry
v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006))).
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Ms. Anthony-Pierre timely consulted with an EEO counselor with respect to the
December 2014 separation claims. 	But as to those claims, 29 C.F.R. § 1614.106(b)
provides that a formal “complaint must be filed within 15 days” of when a plaintiff is notified
of her right to file a discrimination complaint. 	Ms. Anthony received a Notice of Right to
File a Discrimination Complaint from AAFES on March 31, 2015.45 Ms. Anthony-Pierre
thus had until April 15, 2015 to file her formal complaint with respect to the December
2014 separation claims; she did not do so until May 5, 2015.46 	Therefore, her EEO
complaint regarding the December 2014 administrative separation was untimely.
Ms. Anthony-Pierre asks the Court to excuse the delayed filing of the EEO
complaint. 	But as with the delay in consulting the EEO counselor regarding the 2013
claims, Ms. Anthony-Pierre has not demonstrated “that some extraordinary circumstance
stood in h[er] way and prevented timely filing” with respect to the December 2014
claims.47 	Ms. Anthony-Pierre’s recent affidavit states, “I was prevented from filing the
complaint because of concern for my Mother, who had surgery on March 31, 2015 and
because on April 12, 2015, a close family friend fell off a cliff and died.”48 	While the
surgery of a close relative can be quite stressful and the death of a friend is indeed tragic,
neither of these events, either singly or in combination, are the type of extraordinary
circumstances that could warrant equitable tolling.49
45 Docket 34-19; Docket 34-20.
46 Docket 1–2 at 1.
47 Menominee Indian Tribe of Wisconsin, 136 S.Ct. at 755.
48 Docket 39 at 3 ¶12.
49 See, e.g., Barbett v. Logistics Application, Inc., 845 F.Supp. 2d 164, 167–68 (D.D.C. 2012)
(holding that plaintiff’s claim of mental anguish related to mother’s death “is not enough for
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CONCLUSION
In light of the foregoing, Defendant’s Motion for Summary Judgment at Docket 34
is GRANTED. The Clerk of Court is directed to enter a final judgment accordingly.
DATED this day of 15th June, 2018.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
equitable tolling to apply”); Miles v. Potter, 2007 WL 1890685, at *6 (E.D. La. June 28, 2007)
(holding death in the family did not warrant equitable tolling); Brundin v. United States, 1996 WL
22370, at *5 (S.D.N.Y. Jan. 19, 1996) (holding death of plaintiff’s father does not alone warrant
equitable tolling).
Defendant also asserts in the motion that Ms. Anthony-Pierre would be unable to state a claim on
the merits under the applicable McDonnell Douglas test. Docket 34 at 17–21 (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Defendant states that Ms. Anthony-Pierre
fails to establish a prima facie claim because her “case fails on the fourth element of the claim—
whether similarly situated individuals outside her protected class were treated more favorably or
there are other circumstances surrounding the termination action that give rise to an inference of
discrimination.” Docket 34 at 19. Defendant further asserts that even if Ms. Anthony-Pierre could
establish a prima facie case, her claim would ultimately fail because AAFES had a legitimate,
non-discriminatory reason to separate Ms. Anthony-Pierre from employment, which Ms. Anthony-
Pierre cannot show was pretextual. Docket 34 at 20. Ms. Anthony-Pierre does not address this
issue in her response. 	Nevertheless, because of the aforementioned untimeliness of Ms.
Anthony-Pierre’s claims, the Court need not reach the merits of the case.
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