Summary: Plaintiff, a female physician, brings suit against her employer, the Department of Health and Human Services (HHS), for Title VII violations. HHS moves for summary judgment because Plaintiff rejected the agency’s offer of full relief, and thus failed to exhaust her administrative remedies. The Court denied HHS’s motion as it found the law no longer requires a federal employee to accept an offer of full relief.


Case Name: Dillard v. HHS

Case Number: A2-01-115

Docket Number: 29

Date Filed: 10/15/02

Nature of Suit: 442


IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

NORTHEASTERN DIVISION
 

Dorothy Dillard, M.D.,

Plaintiff,

-vs-

Honorable Tommy G. Thompson, Secretary of the Department of Health and Human Services,

Defendant.

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MEMORANDUM AND ORDER

 

I.  Introduction

    Before the Court is a motion for summary judgment submitted by the Department of Health and Human Services (doc. #16). Plaintiff, Dr. Dillard, is a female physician employed by the Department of Health and Human Services (HHS) at the Indian Health Services Clinic in Fort Totten, North Dakota. She brings forth Title VII, Title VII retaliation, and intentional infliction of emotional distress claims against HHS. HHS moves for summary judgment based on Plaintiff’s failure to exhaust her administrative remedies. For the reasons set forth below, HHS’s motion for summary judgment is DENIED (doc. #16).

II. Background

    Plaintiff initiated administrative proceedings claiming she was sexually harassed and retaliated against in violation of Title VII of the United States Code. Her allegations were directed against Dr. Montaniel, the director of the Fort Totten Clinic. She claims Dr. Montaniel sexually harassed her, and when she refused his advances he retaliated against her by denying sick leave and failing to decrease her workload after she injured herself.

    After an investigation, the EEO determined that Plaintiff was in fact subject to sexual harassment and retaliation. The EEO ordered the agency to offer Plaintiff compensatory damages including both pecuniary and non-pecuniary losses, reasonable attorney’s fees, disciplinary actions and sexual harassment training for Dr. Montaniel, and expungement of all documents regarding the leave restrictions placed against Plaintiff. The EEO also informed Plaintiff that she had until October 4, 2001 to commence a civil action in federal court.

    On September 24, 2001, HHS asked Plaintiff for an itemized list of damages and attorney’s fees. However, on October 4, 2001, instead of accepting HHS’s offer, Plaintiff decided to file the instant action. HHS moves for summary judgment because Plaintiff’s refusal to accept the agency’s offer of full relief constitutes a failure to exhaust her administrative remedies.

III.Discussion

    Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Here, HHS is claiming it is entitled to judgment as a matter of law because Plaintiff did not exhaust her administrative remedies. The Court, however, disagrees with HHS.

    Before a federal employee may file a lawsuit in federal court she must exhaust her administrative remedies. Artis v. Francis Howell North Van Booster Assn Inc., 161 F.3d 1178, 1183 (8th Cir. 1998). HHS relies on the case, Briley v. Carlon, 172 F.3d 567, 570 (8th Cir. 1999), for the proposition that a party’s rejection of a full offer of relief precludes them from filing a suit in federal court. Here, HHS contends that the agency offered Plaintiff full relief. However, the question of whether Plaintiff was offered full and fair relief is not in issue.

    The question of full relief is no longer in issue because the case on which HHS relies is no longer good law. The Code of Federal Regulations (C.F.R.) was revised after the Briley case was decided. As a result of this revision, an aggrieved federal employee is no longer required to accept an offer of full relief. See 29 C.F.R. § 1614.107. The C.F.R. was revised because it was virtually impossible for a claimant to determine if full relief was offered. See 64 Fed. Reg. at 37644.

IV. Conclusion

    For the reasons set forth, HHS’s motion for summary judgment is DENIED (doc. #16). Plaintiff’s request for a hearing is DENIED AS MOOT (doc. #23).

    IT IS SO ORDERED.

    Dated this _____ day of October, 2002.




                                  _____________________________

                                  RODNEY S. WEBB, CHIEF JUDGE

                                  UNITED STATES DISTRICT COURT