JOAN N. ERICKSEN, District Judge.
Claiming that he was denied a promotion due to discrimination against his religious beliefs, Robert MacQueen brings this action against Janet Napolitano, Secretary of the United States Department of Homeland Security, under Title VII of the Civil Rights Act of 1964. The case is before the Court on the Secretary's Motion to Dismiss. For the reasons set forth below, the Court grants the motion.
For present purposes, the Court assumes that the Complaint's allegations, summarized below, are true. MacQueen has been employed by the United States Secret Service since 1993. In 2006, he was assigned to the Secret Service's Hong Kong office. In November 2006, MacQueen began applying for promotions to supervisory agent positions. In April 2007, MacQueen was denied a promotion to a position overseeing an Airspace Security program. Later, the Regional Supervisor for the United States Secret Service Asia, MacQueen, and MacQueen's supervisor met to discuss the denial of the promotion. The Regional Supervisor informed MacQueen that MacQueen had been rejected at the "Pre-Board" review of the promotion. At that time, Julia Pierson was the Secret Service's Assistant Director for Human Resources and Training, and her responsibilities included the "Pre-Board" review process. The Regional Supervisor informed MacQueen that Pierson had stopped his promotion. From 1997 to 1999, MacQueen worked under Pierson's direct supervision in the Secret Service's Tampa Field Office. Pierson knew of MacQueen's religious beliefs, and she made him aware of her discomfort with them. After his transfer out of the Tampa Field Office, MacQueen had no interaction
The Regional Supervisor stated that he had the power to keep MacQueen in Hong Kong for another year or, if MacQueen fought the denial of the promotion, to transfer MacQueen to a big office such as Chicago or New York. The Regional Supervisor knew that MacQueen would strongly disfavor a transfer. Due to the threat of retaliation, MacQueen chose not to contest the denial of his promotion until he was in a more secure position.
In August 2008, MacQueen was transferred to the Secret Service's Minneapolis Field Office. Within two days of reporting to the Minneapolis office, he filed a complaint with the U.S. Office of Special Counsel. The next month, the Office of Special Counsel informed MacQueen of its policy to defer discrimination complaints to the Equal Employment Opportunity Commission. In October 2008, MacQueen reported the discriminatory denial of his promotion to the Secret Service's Equal Employment Office.
The Secretary moves to dismiss this action under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court considers the motion under Rule 12(b)(6). See Coons v. Mineta, 410 F.3d 1036, 1039-40 (8th Cir.2005); cf. Jessie v. Potter, 516 F.3d 709, 713 & n. 2 (8th Cir.2008).
The Secretary asserts that the action should be dismissed because MacQueen failed to contact an Equal Employment Opportunity Counselor within 45 days of the denial of his promotion. See Bailey v. U.S. Postal Serv., 208 F.3d 652, 654 (8th Cir.2000); 29 C.F.R. § 1614.105(a) (2010). In his response to the Secretary's motion, MacQueen "concedes that he waited to initiate the administrative process until after the statute of limitations had expired." He asserts that the Court should "equitably toll [the] statute of limitations due to [his] supervisor's explicit and affirmative threat of retaliating against [him] if he attempted to fight Defendant's discriminatory conduct."
In his supplemental memorandum, MacQueen raises three arguments to avoid this result. First, he maintains that "[t]he Supreme Court and the Eighth Circuit both dictate that equitable remedies are available to a Title VII plaintiff when the defendant engages in `affirmative misconduct'. . . or `affirmatively and actively takes action that causes the employee not
Citing Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam), MacQueen maintains that "the Supreme Court ruled that an employer could be equitably estopped from asserting a timeliness defense if the employer engaged in `affirmative misconduct' to cause the employee to fail to commence the administrative process within the statute of limitations." In Baldwin, the Supreme Court discerned no reason to toll the 90-day period that the plaintiff had to bring her Title VII action. 466 U.S. at 151, 104 S.Ct. 1723. With regard to the particular point raised by MacQueen, the Court mentioned "affirmative misconduct" in the context of lulling a plaintiff into inaction:
466 U.S. at 151, 104 S.Ct. 1723 (emphasis added) (citations omitted). The Supreme Court cited three cases—Villasenor v. Lockheed Aircraft Corp., 640 F.2d 207 (9th Cir.1981) (per curiam); Wilkerson v. Siegfried Insurance Agency, Inc., 621 F.2d 1042 (10th Cir.1980); and Leake v. University of Cincinnati, 605 F.2d 255 (6th Cir. 1979)—after the emphasized sentence. In Villasenor, the Ninth Circuit stated: "A statute of limitations in some situations may be tolled if the defendant has affirmatively sought to mislead the charging party." 640 F.2d at 207-08. In Wilkerson, the Tenth Circuit stated: "[A]ction by an employer which misleads an employee and causes him to fail to file notice within 180 days of his discharge is also a factor to be considered in connection with equitable tolling or estoppel." 621 F.2d at 1045. In Leake, "the district court rejected plaintiff's argument that the 180-day limit was tolled during the time that she engaged in private, voluntary negotiations with the University on the University's assurance that it would not assert a time-bar claim against her," and the Sixth Circuit reversed:
605 F.2d at 258-59. In this case, MacQueen does not assert that the Secretary mislead or lulled him into inaction. The Court does not find his reliance on Baldwin persuasive.
In his second argument, MacQueen distinguishes Beckel, Kirk, and Carter on the ground that they did not involve a plaintiff whose delay in commencing the administrative process resulted from an explicit, credible threat of retaliation made by the employer. The Court is not persuaded by MacQueen's distinction. In Beckel, the Seventh Circuit stated:
301 F.3d at 624 (citations omitted). In Kirk, the First Circuit stated: "In the district court, Kirk argued that the delay in filing her claim of sex discrimination should be excused because `she was afraid she would lose her job if she filed earlier.' This excuse was properly rejected by the district court." 261 F.3d at 78 (citation omitted). In Carter, the Tenth Circuit stated:
225 F.3d at 1266 (citations omitted).
Finally, the Court is not persuaded by MacQueen's citation to cases that arose under the Privacy Act or that addressed the Ellerth-Faragher affirmative defense. Cf. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (stating that "discrete discriminatory acts are not actionable if time barred" and that equitable estoppel is to be applied "sparingly").
Based on the files, records, and proceedings herein, and for the reasons stated above, IT IS ORDERED THAT:
LET JUDGMENT BE ENTERED ACCORDINGLY.