Morgan v. Napolitano
Filing
19
ORDER signed by Senior Judge Lawrence K. Karlton on 5/17/10 ORDERING Plaintiff to file by 9:00 a.m. on Thursday, 5/20/2010, proof that this Court has jurisdictin over both his ADEA and Title VII claims. All documentation and testimony shall be as specific with respect to date as possible. Failure to do so will result in dismissal of Plaintiff's complaint for lack of subject matter jurisdiction. (Mena-Sanchez, L)
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1 2 3 4 5 6 7 8 9 JOHN P. MORGAN, 10 NO. CIV. S-09-2649 LKK/DAD 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 On September 21, 2009, plaintiff, a federal employee, filed a complaint against his employer alleging violations of the Age Discrimination in Employment Act ("ADEA") and Title VII. Plaintiff alleged that he "has exhausted all required administrative v. ORDER JANET NAPOLITANO, SECRETARY, U.S. DEPARTMENT OF HOMELAND SECURITY, IMMIGRATION AND CUSTOMS ENFORCEMENT, FEDERAL PROTECTIVE SERVICE, Defendants. / Plaintiff, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
remedies," but did not provide any detail as to what administrative remedies or agency decisions were made. Compl. ¶ 4. On February 18, 2010, plaintiff filed an amended complaint. On March 1, 2010, the court held a status conference. At this conference, defendant stated that she did not believe that the court had subject matter 1
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over the case because plaintiff's claims were not exhausted. Accordingly, the court ordered defendant to file a motion to dismiss for lack of subject matter jurisdiction. The court also granted plaintiff leave to file a second amended complaint ("SAC"). On March 11, 2010, plaintiff filed his second amended
complaint. In this complaint, plaintiff does not allege any facts concerning whether his claim is properly exhausted despite being aware that defendant was to challenge subject matter jurisdiction on this issue following his filing of the second amended complaint. On March 23, 2010, defendant filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim as to plaintiff's Title VII claim and a motion to strike the jury demand under ADEA. Dkt. No. 14. Defendant, however, did not move to dismiss plaintiff's ADEA claim for lack of subject matter jurisdiction. Plaintiff's opposition merely argued that he
sufficiently alleged that he exhausted his administrative remedies by his citation to 42 U.S.C. § 2000e-16(c) in support of
jurisdiction in the SAC. He continues to state that this reference is sufficient to avoid dismissal under Fed. R. Civ. P. 12(b)(6), for failure to state a Title VII claim. Plaintiff relies on an incorrect standard for determination of subject matter jurisdiction. Defendant moves to dismiss under Fed. R. Civ. P. 12(b)(1). Plaintiff, the party seeking federal jurisdiction, bears the burden of proving that jurisdiction is proper. See, e.g., Lew v. Moss, 797 F.2d 747, 749 (9th Cir. 1986). This is not a question resolved by amendment. Rather, plaintiff 2
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must prove that jurisdiction is proper. Plaintiff has not provided any such proof. Both ADEA and Title VII require administrative exhaustion prior to filing a complaint in federal court.1 The type of
exhaustion, however, is somewhat different under each statute. Specifically, under Title VII, plaintiff, as a federal employee, must first contact an EEO counselor at his employer within 45 days from the day the discrimination occurred. 29 C.F.R. §§ 1614.105, 1614.106. The EEO counselor, then, will attempt to settle the dispute. Id. If settlement is not reached, plaintiff must file a formal complaint with the EEOC within 15 days of being informed by the EEO counselor about how to file. Id. Plaintiff may then only file a civil complaint in federal court when one of four events has occurred: (1) after 180 days have passed from the day he filed his complaint, if the agency has not issued a decision and no
administrative appeal has been filed; (2) within 90 days from the day he receives the agency's decision on his complaint, so long as no appeal has been filed; (3) after 180 days from the day he filed an administrative appeal if the EEOC has not issued a decision; or (4) within 90 days from the day plaintiff received the EEOC's decision on his administrative appeal. 42 U.S.C. §§ 2000e-16(c-d), 2000e-5(f)(1). Federal courts have an independent duty to confirm subject matter jurisdiction. The court finds that plaintiff's complaint casts significant doubt over the existence of subject matter jurisdiction over both of his claims, even though defendant does not now move to dismiss plaintiff's ADEA claim for lack of jurisdiction. 3
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Under
ADEA,
plaintiff
need
not
file
an
administrative
complaint, but if he does he must follow the same procedure for filing in federal court as described above. Alternatively,
plaintiff may file a notice of intent to sue with the EEOC thirty days before filing his complaint in federal court. 29 U.S.C. § 633a(d). If plaintiff fails to complete either process, the court lacks subject matter jurisdiction over his ADEA claim. For the foregoing reasons, the court ORDERS plaintiff to file by 9:00 a.m. on Thursday, May 20, 2010, proof that this court has jurisdiction over both his ADEA and Title VII claims. Such proof includes, but is not limited to, date-stamped complaints filed with the EEOC, final decisions from the EEOC, and a date-stamped notice of intent to sue filed with the EEOC. Where such documentary evidence is not available or requires explanation, plaintiff and/or plaintiff's counsel shall file affidavit(s), under penalty of perjury, concerning the dates of the allegedly illegal acts of defendant, the actions plaintiff took with the EEO Counselor, the EEOC, or any other relevant agency concerning administrative exhaustion, and responses by the EEO Counselor, the EEOC, or any other relevant agency. All documentation and testimony shall be as specific with respect to date as possible. Failure to do so will result in dismissal of plaintiff's complaint for lack of subject matter jurisdiction. IT IS SO ORDERED. DATED: May 17, 2010.
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