US Court of Appeals for the Fourth Circuit - 907 F.2d 1459 (4th Cir. 1990)Argued Jan. 11, 1990. Decided July 12, 1990
Peter
David Greenspun, Klein & Greenspun, Fairfax, Va. (Sarah Deneke, Klein &
Greenspun, Fairfax, Va., on the brief), for plaintiff-appellant.
David
John Fudala, Hall, Markle, Sickels & Fudala, P.C., Fairfax, Va., for
defendants-appellees.
Before
PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
MURNAGHAN, Circuit
Judge:
Discharged Fairfax County Police Officer Gary Riccio brought an
action pursuant to 42 U.S.C. § 1983, alleging that the process by which the
decision to discharge him was made violated his procedural due process rights
under the Fourteenth Amendment of the United States Constitution. Riccio named
as defendants the County of Fairfax, Virginia, Fairfax County Executive J.
Hamilton Lambert, Fairfax County Police Department Chief of Police John E.
Granfield, and the Board of Supervisors of Fairfax County. After a hearing on
motions for summary judgment brought by all the parties, the district court
granted summary judgment in favor of the defendants. Riccio has appealed.
On June 24, 1987, Ann Elizabeth Stark contacted the Fairfax County
Police Department ("the Department") to report that she believed that
Riccio had made several obscene phone calls to her. Stark had tape recorded two
of the calls. That evening, Stark informed Riccio's supervisor, Lieutenant
Phillip Lively, that she received the alleged calls on June 21, 1987, and June
24, 1987. Stark apparently knew Riccio, first becoming acquainted with him when
she was in high school and he, while on duty, would spend time on school
grounds. The two apparently had subsequent encounters.
Lively immediately contacted the Department's Internal Affairs
Section, which assigned Sergeant Steven Hardgrove to investigate the matter.
Later that evening, Hardgrove contacted Riccio and interviewed him at some
length. At the interview, Riccio denied making the calls. Riccio acknowledged
that he knew Stark and that he first met her while she was in high school. He
told Hardgrove that the relationship he established with Stark and other high
school students was for the purpose of improving the image of the police
department generally and establishing himself as a police officer to whom they
could turn. He also informed Hardgrove that he was visiting his parents in
Pennsylvania on June 21, the first day of the alleged calls to Stark, and he
provided Hardgrove with specific information regarding his activities on June
24, the second day of the alleged calls to Stark.
After the interview, at 1:00 a.m. on June 25, Hardgrove informed
Riccio that he was relieved of duty, with pay, pending further investigation of
the matter. Also on June 25, Riccio received written notice that he was being
investigated for violating Department Regulations 201.3 (governing obedience to
laws and regulations) and 201.7 (governing standards of conduct).1 Hardgrove instructed Riccio not to
discuss the investigation with anyone.
As Hardgrove proceeded with his investigation, he learned that
earlier in 1987, a woman named Jennifer Dundas had accused Riccio of making
obscene phone calls to her. Although the record is not clear, it appears that
Dundas decided not to pursue a formal complaint and the Department did not make
any formal charges. Although, in his brief before us, Riccio claims that he was
"cleared of all allegations of making obscene phone calls" to Dundas,
there is no such indication in the record. Indeed, the report of Lt. Lively, who
investigated the Dundas incident, states that Riccio admitted to calling
Dundas, although he characterized the call as a practical joke.
Shortly after Riccio's suspension, several other relevant events
occurred. According to Cheryl Beaudoin, a police dispatcher in Vienna,
Virginia, Riccio informed Beaudoin, on June 25, of the charges pending against
him.2 On July 7, the Department conducted a
polygraph exam on Riccio. Riccio contends that the Department ordered him to
take the exam and in deposition testimony Hardgrove conceded that his directive
was probably construed as an order. However, it is also true that the idea of
taking a polygraph was first proposed by Riccio on the night of his suspension.3 Fairfax County Police Investigator Guy
Morgan administered the exam and concluded that Riccio was "deceptive"
in his responses.
Sheila Patterson appeals an order of the district court dismissing
her amended complaint without prejudice. Patterson's complaint alleged that her
employer, the police department of Fairfax County, Virginia, discriminated
against her on the basis of her race and her gender, in violation of myriad
civil rights provisions, including Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. Patterson also alleged that she had been deprived of
her civil rights under 42 U.S.C. §§ 1981 and 1983, and that the defendants1 were liable under
state law for intentional infliction of emotional distress.
The district court dismissed the entire amended complaint on the
ground that, at the time Patterson originally filed this lawsuit, she had not
obtained a letter from the U.S. Department of Justice (DOJ) permitting her to
proceed in federal court with regard to the most recent allegations of Title
VII violations contained in her complaint. Because the court erred both in
requiring Patterson to have obtained a right-to-sue letter and in granting a
motion to dismiss made only after Patterson had become entitled to such a
letter, we reverse and remand this case for further proceedings.
According to the amended complaint, Patterson began working as an
officer in the Fairfax County Police Department in 1983. In mid-1987, she filed
a charge with the Equal Employment Opportunity Commission (EEOC) alleging race
and gender discrimination, harassment, and retaliation for having filed an
internal grievance. She later filed another charge after being required to
undergo, between June and October 1989, three psychological examinations to
determine her fitness for duty. In August 1992, the EEOC finally issued
"Just Cause Determinations" (JCDs) on both charges.2
About seven months later, in March 1993, Patterson was accused of
throwing a message pad at another officer, striking him near an eye.
Thereafter, Patterson was suspended and ordered to submit to yet another
psychological examination. As a result of the March incident, Patterson filed a
third charge with the EEOC. She also requested and received a
"right-to-sue" letter from the DOJ regarding the two earlier charges.3 On June 16, 1993,
while the third charge was still pending before the EEOC, Patterson filed her
original complaint in the instant action. The EEOC acted much more swiftly on
the third charge, issuing a JCD on September 14, 1993. Patterson did not,
however, immediately request a right-to-sue letter on the third charge.
On December 6, 1993, the defendants moved for summary judgment,
arguing that the doctrine of laches prevented Patterson from asserting her
Title VII claims insofar as they were based on the incidents that were the
subjects of the first two charges. At a hearing on the motion on December 17,
the district court and Patterson's attorney agreed that events in 1993 may have
been sufficient, if proven, to establish a continuing violation that would, in
effect, revitalize the older incidents.4
During the hearing, the court asked Patterson's attorney whether a
right-to-sue letter had been issued regarding the latest incidents. Counsel,
apparently under the impression that the court was instead asking about the JCD
that had been issued that September, incorrectly replied in the affirmative.
Because counsel desired to plead the latest incidents in greater
detail--in particular the police chief's subsequent attempt to fire Patterson,
which she alleged was in retaliation for her having filed the third charge--the
court dismissed Patterson's complaint without prejudice and granted her ten
days to file an amended complaint.
On the same day as the hearing, Patterson's attorney contacted the
DOJ and requested a right-to-sue letter on the third charge. The letter was
faxed to him on December 22, and was attached to the amended complaint when it
was filed on December 27.
On January 7, 1994, the defendants filed, for the first time, a
motion to dismiss based in part on jurisdictional grounds. In support of their
motion, the defendants stated, quite correctly, that the latest right-to-sue
letter had not been in existence at the December 17 hearing. Patterson's
attorney confirmed to the court what had actually happened, and apologized for
having misspoken. Upon being apprised of the facts, the court stated:
I don't believe that at the time this suit was filed, without a
right-to-sue letter on the '93 claims, that I have any jurisdiction. Now, what
I will do is grant the motion to dismiss without prejudice, and you can take it
from there. And whether or not there is a [continuing violation], I will have
to deal with when and if I see it again.5 But I don't
believe that I can permit the amendment of a claim which was filed without
jurisdiction here. And I believe that right-to-sue letter on the '93 claim is
necessary for you to have jurisdiction, because, absent the '93 claim,
everything else is timebarred.
True to its word, the district court dismissed the amended
complaint without prejudice. Instead of refiling, Patterson chose to appeal.
The district court erred in requiring the actual issuance of a
right-to-sue letter. Patterson's administrative remedies are deemed to have
been exhausted--and jurisdiction thus conferred on the district court--when she
became entitled to such a letter. Moore v. City of Charlotte, 754 F.2d 1100,
1104 n. 1 (4th Cir.), cert. denied, 472 U.S. 1021 (1985); Perdue v. Roy Stone
Transfer Corp., 690 F.2d 1091, 1093 (4th Cir. 1982); White v. Federal Express
Corp., 729 F. Supp. 1536, 1552 (E.D. Va. 1990);
Assa'ad-Faltas v. Commonwealth of Virginia, 738 F. Supp. 982, 985 (E.D. Va. 1989).6 As to her claim
that the defendants retaliated against her for having filed the 1993 charge
with the EEOC, Patterson does not even need a right-to-sue letter. Nealo