Morgan v. Napolitano
Filing
62
ORDER signed by Senior Judge Lawrence K. Karlton on 6/16/2011 DENYING 58 dft's Motion to Dismiss the fifth amended complaint; a Status Conference is set for 7/11/2011 at 02:30 PM in Courtroom 4 (LKK) before Senior Judge Lawrence K. Karlton; the parties shall file status reports no later than 14 days before the status conference.(Reader, L)
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UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
JOHN P. MORGAN,
10
NO. CIV. S-09-2649 LKK/DAD
11
Plaintiff,
12
v.
O R D E R
13
14
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JANET NAPOLITANO, SECRETARY,
U.S. DEPARTMENT OF HOMELAND
SECURITY, IMMIGRATION AND
CUSTOMS ENFORCEMENT, FEDERAL
PROTECTIVE SERVICE,
16
Defendants.
/
17
18
This is an employment discrimination case arising under Title
19
VII, the Americans with Disabilities Act (“ADA”), and the Age
20
Discrimination
21
Amended Complaint (“FAC”) alleges four claims for relief: (1)
22
retaliation for plaintiff’s wife’s role as an attorney representing
23
other Department of Homeland Security employees in discrimination
24
claims against the agency; (2) retaliation because of perceived
25
aiding and abetting his wife’s representation of those employees;
26
(3)
direct
in
Employment
retaliation
for
Act
(“ADEA”).
plaintiff’s
1
own
Plaintiff’s
Fifth
participation
in
1
discrimination
claims
by
2
discrimination and retaliation. Defendant has filed a motion to
3
dismiss the Fifth Amended Complaint (“FAC”), and plaintiff opposes.
4
For the reasons stated below, defendant’s motion is DENIED.
and
(4)
direct
age
I. Background1
5
6
co-workers;
Plaintiff
began
working
for
Federal
Protective
Services
7
(“FPS”) in December, 2003. At that time, FPS was part of the
8
General
9
plaintiff’s employment, it became a part of the Department of
10
Homeland Security (“DHS”). Plaintiff was employed as a Criminal
11
Investigator with the agency in Sacramento.
12
A. Plaintiff’s age and disparaging comments
13
Services
Administration,
but
during
the
course
of
Plaintiff was born in 1947, and was over 40 years old at all
14
relevant
15
Operations, Paul Durette and other agency officials expressed a
16
preference for hiring “youthful and vigorous” employees. The
17
comments were heard by Region 9 Chief Donald Meyerhoff in September
18
2004, and again some time in between March 2005, and August 2005.
19
Additionally, Mr. Meyerhoff observed Durette refer to a list of
20
older employees as a “hit list,” of people that Durette wanted
21
eliminated from the agency. FAC ¶ 30.
22
B. Plaintiff’s wife’s representation of agency employees
23
times.
Plaintiff’s
On
several
wife,
Rayna
occasions,
Becker,
is
Deputy
an
Director
attorney
who
of
has
24
1
25
26
The background statement is derived from plaintiff’s
complaint, the factual allegations of which are taken as true for
purposes of this motion. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007).
2
1
represented agency employees in discrimination cases against the
2
agency.
3
represented
4
violations, sexual harassment, sex discrimination, retaliation, and
5
agency non-compliance with a mediation agreement. From June 1998
6
to May 2003, Becker represented Michael Conrad in complaints for
7
Title VII retaliation and non-selection for a promotion. Becker
8
also
9
retaliation claims from November 2004 to June 2006. From June 1998
10
to March 2004, Becker represented David Current in a complaint for
11
retaliation and non-selection for a promotion. From January 1999
12
to November 2000, Becker represented Tracy Kita in three EEO
13
complaints stemming from hostile work environment and retaliation.
14
From May 1999 to January 2004, Becker represented Joseph DeLisle,
15
Jr.,
16
compensation claim, and other employment matters. From December
17
2004 until June 2005, Becker represented Ronald Brewster in a
18
complaint for age and disability discrimination.
19
represented
20
discrimination claims that form the basis of this action, and also
21
represents plaintiff in this action. Becker has represented other
22
employees in similar claims against the agency. FAC ¶ 32.
Between
Margaret
represented
in
June
1998,
Koehler
Conrad
complaints
plaintiff
and
of
in
in
in
2001,
complaints
disability
Title
the
June
VII
EEO
Plaintiff’s
about
Title
discrimination
retaliation,
proceedings
a
wife
VII
and
workers’
Becker also
regarding
the
23
In the period between March 2005 and August 2005, Durette
24
complained to Meyerhoff that plaintiff’s wife was representing DHS
25
employees in discrimination claims against the agency. FAC ¶ 31.
26
In an email dated October 28, 2005 from FSP Region 9 director
3
1
Joseph
Loerzel
2
recommended that plaintiff not be selected for a Chief position for
3
which
4
“plaintiff’s wife is an attorney who handles many of FSP’s regional
5
labor cases. . . Without getting into the weeds and suggesting
6
improprieties, she seems to get background information on these
7
cases that attorneys’ [sic] usually don’t have. . . please keep
8
this correspondence confidential.” FAC ¶ 35. Ehinger forwarded the
9
email to Durette the same day. Plaintiff did not discover the email
plaintiff
to
Deputy
had
Director
applied.
In
Kenneth
the
Ehinger,
email,
Loerzel
Loerzel
stated
10
until March 20, 2008.
11
C. Plaintiff’s activity opposing discrimination within the agency
12
As
a
union
representative,
plaintiff
opposed
race
13
discrimination, age discrimination, and retaliation on behalf of
14
other FSP employees, including Nathan Bailey and Douglas Neibauer.
15
Plaintiff’s participation in the Bailey and Neibauer matters took
16
place from on or about April 2007 to August 2007. FAC ¶ 75.
17
D. Adverse employment actions
18
According to his complaint, plaintiff was subjected to a
19
number of adverse employment actions. Plaintiff alleges that the
20
adverse employment actions began in October, 2005. Prior to that
21
date, plaintiff had received praise for his accomplishments, and
22
had been put in positions of great responsibility, including
23
serving as Acting Supervisory Criminal Investigator on a temporary
24
basis.
25
requested that plaintiff be put in a permanent Chief, Threat
26
Management Branch position. Oase ordered Bruce Hori to prepare the
In
June,
2005,
Acting
Regional
4
Director
Russell
Oase
1
paperwork to place plaintiff in the position, which was vacant at
2
the time. Hori did not do the requisite paperwork. Plaintiff had
3
previously received praise from Loerzel for his accomplishments,
4
and was entrusted with special responsibilities by Loerzel.
5
Following the October 28, 2005, email regarding plaintiff’s
6
wife, plaintiff suffered numerous adverse employment actions. In
7
November, 2005, Durette cancelled plaintiff’s selection for the
8
permanent Chief, Threat Management Branch position that Oase had
9
previously awarded to plaintiff. Durette ordered that the position
10
be re-announced on a nation-wide basis with a relocation allowance.
11
In November, 2005, plaintiff’s previously scheduled annual
12
leave was cancelled. It was FSP practice to cancel such leave only
13
in emergency situations, and there was no emergency situation
14
requiring the cancellation of plaintiff’s leave. Plaintiff was
15
allowed to take his leave only after Deputy Regional Director Oase
16
intervened.
17
Starting on November 8, 2005, when plaintiff returned to
18
Sacramento
19
plaintiff was not provided a special agent to work with. This
20
lasted for two years, and was against agency practice. Working
21
without
22
interfered
23
investigations.
a
from
his
special
with
Acting
agent
his
Chief
position
jeopardized
ability
to
in
San
plaintiff’s
conduct
Francisco,
safety
proper
and
criminal
24
On November 13, 2005, plaintiff learned that he had not been
25
placed in the Chief Threat Management Branch position after it was
26
re-announced by Durette.
5
1
On December 6, 2005, supervisor Rudy Negrete told plaintiff
2
to come to San Francisco immediately to meet with agency personnel.
3
Although plaintiff was already scheduled to be in San Francisco the
4
following day, Negrete demanded plaintiff’s immediate presence.
5
Other employees who were asked to report to San Francisco were
6
given reasonable notice.
7
On January 12, 2006, Negrete gave plaintiff a notice of a
8
proposed five-day suspension for “Willful Refusal to Comply with
9
and Order, Direction, Instruction, or Assignment of a Supervisor
10
or Other Management Official.” The notice named Ruben Ballestros
11
as the supervisor whose order plaintiff had failed to comply with.
12
Plaintiff and Ballestros has discussed plaintiff’s trip to San
13
Francisco by telephone, but Ballestros had not issued an order. In
14
issuing the suspension notice, Negrete circumvented the normal
15
chain of command by preparing and issuing the suspension notice
16
without the knowledge of plaintiff’s direct supervisor, Oase.
17
Plaintiff was a member of the American Federation of Government
18
Employees (“AFGE”), and was covered by a collective bargaining
19
agreement and entitled to a grievance procedure to challenge the
20
proposed five-day suspension. Plaintiff initiated the grievance
21
procedure. In March, 2006, plaintiff was told by management that
22
he did not qualify for union representation. Plaintiff’s request
23
for additional time to submit a response to the proposed suspension
24
was denied, even though such extensions were typically granted
25
freely.
26
suspension through the grievance procedure, Dean Hunter suspended
Ignoring
the
union’s
attempt
6
to
oppose
plaintiff’s
1
plaintiff without pay for five days, starting March 13, 2006. Prior
2
to the five-day suspension, plaintiff had never been disciplined
3
in any manner. In a separate grievance, Labor Arbitrator Kathy L.
4
Eisenmenger held that plaintiff and others in his position were
5
included in the bargaining unit and were covered by the collective
6
bargaining agreement.
7
In January 2006, after receiving the suspension notice, but
8
before the actual suspension, Negrete and Ballestros required
9
plaintiff to return the government vehicle that had been assigned
10
to plaintiff the previous day. In its place, plaintiff received a
11
vehicle that was not properly equipped for criminal investigations.
12
The
13
identified as a law enforcement vehicle, and was not useful for
14
undercover and investigative assignments. The vehicle did not have
15
lights, a siren, door locking mechanisms, a radio for communication
16
with FSP, or enough trunk space to hold the equipment needed.
17
Because of the lack of trunk space, some equipment, such as a
18
breathing apparatus, weapons, ammunition, cameras, and forensic
19
tools would have to be left in the passenger or rear seating area,
20
in view of the public. It was standard practice for FSP agents such
21
as plaintiff to be assigned an unmarked sport utility vehicle,
22
rather than a vehicle of the type that was issued to plaintiff.
new
vehicle
lacked
necessary
emergency
equipment,
was
23
On January 19, 2006, plaintiff received a memo stating that
24
he had been overpaid for one pay period. On January 23, 2006,
25
Ballestros denied plaintiff’s request to take leave to attend his
26
aunt’s funeral. Plaintiff had accumulated the leave, and was
7
1
current with all of his assignments at the time. Ballestros did not
2
provide a reason for denying the leave.
3
In February, 2006, the agency announced selections for two
4
positions for which plaintiff had applied. Plaintiff was not
5
selected. Plaintiff learned of the selections when they were
6
announced generally, contrary to the normal practice of informing
7
applicants of the selections in advance.
8
On February 21, 2006, plaintiff became aware that he had not
9
been selected for a Chief, Threat Management Branch position for
10
which he had applied. Plaintiff was more qualified than the
11
selected
12
plaintiff
13
service. Applin was approximately 36 years old, and did not have
14
any prior history of opposing discrimination within the agency.
candidate,
was
not
Bruce
given
Applin.
five
In
the
preference
selection
points
for
process,
military
15
On the same day, plaintiff became aware that he had not been
16
selected for another position within the agency. The selected
17
applicant, John Hartman, was less qualified than plaintiff, younger
18
than
19
discrimination within the agency. Hartman was color blind, and
20
therefore not medically qualified for the position.
plaintiff,
and
did
not
have
a
history
of
opposing
21
Some time prior to March 23, 2006, plaintiff was contacted by
22
an EEO investigator requesting information from another employee’s
23
file. Plaintiff had been involved in that employee’s employment
24
discrimination complaint. On March 23, 2006, that employee’s
25
management file went missing, and plaintiff was unable to respond
26
to the EEO investigator’s request without the file. Plaintiff had
8
1
last left the file in the possession of Negrete. The lack of access
2
to the file caused plaintiff to appear less than competent in the
3
eyes of his supervisors and co-workers.
4
In June 2006, Regional Director Dade made disparaging comments
5
about EEO complainants at a meeting where plaintiff was present.
6
Plaintiff had a practice of openly tape recording staff meetings,
7
but did not tape record the meeting in which Dade made the
8
disparaging remarks. Shortly after the meeting, plaintiff reported
9
the remarks to EEO manager Lewis. Plaintiff told District Commander
10
Canton that he had reported the comments to Lewis. Canton, in turn,
11
told Dade that plaintiff had reported to comments to Lewis. Canton
12
and Dade believed that plaintiff had a tape recording of the
13
comments.
14
plaintiff, agency officials searched plaintiff’s office without his
15
consent, and seized all tape recordings. On December 1, 2006,
16
plaintiff’s
17
government property were seized. The personnel who conducted the
18
search did not follow normal policies and procedures. In March,
19
2007, plaintiff was informed that he was required to be interviewed
20
about the search and about his tape recordings, and that he would
21
not be allowed to have a union representative present. Plaintiff
22
reported to the interview, which was held in a small interrogation
23
room. The interview was conducted by Special Agents Anderson Wright
24
and Adrian Carter. During the interview, Wright yelled and screamed
25
at plaintiff, and slammed his hand on the table in front of
26
plaintiff. Although most of the interview was recorded, Wright
Thereafter,
office
was
at
a
date
searched
9
not
again,
specifically
and
his
known
personal
to
and
1
turned the tape recorder off when he yelled at plaintiff.
2
Around December 8, 2006, a request that plaintiff had made for
3
Factfinder Training was denied. Other employees were approved for
4
the training.
5
On April 4, 2007, plaintiff was advised that Hartman had a
6
videotape of plaintiff and Oase playing golf together, and that
7
management was concerned that they were playing golf together while
8
on leave. At the time, plaintiff was on approved annual leave.
9
On or about August 10, 2007, plaintiff received a Notice of
10
Proposed Removal. The notice proposed that plaintiff be removed
11
from federal employment for tape recording conversations without
12
consent of the parties, and for lack of candor. Plaintiff began
13
soliciting witnesses in order to oppose the proposed removal. On
14
September 13, 2007, plaintiff received a “Cease and Desist Order,”
15
signed by Canton. The order prohibited plaintiff from contacting
16
any employees for information, except through the mail. On October
17
22, 2007, the charge of tape recording conversations without
18
consent was upheld by manager Richard K. Cline, and the charge of
19
lack of candor was not sustained. Plaintiff was suspended for
20
fourteen days without pay. The suspension was vacated by an
21
arbitrator in a grievance brought by plaintiff’s union in 2009,
22
after plaintiff had already served the suspension.
23
While on suspension, plaintiff made arrangements to complete
24
his mandatory handgun qualification before returning to work.
25
Plaintiff requested that Agent Rivero not be the one to conduct the
26
qualifying session, because of previous problems plaintiff had
10
1
experienced with Rivero. Plaintiff arranged for Canton to be the
2
firearms instructor. When plaintiff reported to the range on
3
November 29, 2007, he saw Negrete and Rivera also entering the
4
building. Canton was not present, despite the assurances that
5
plaintiff had received when he arranged for the qualifying session.
6
After entering the soundproof firing range with only Negrete and
7
Rivera, plaintiff became very concerned that Rivero and Negrete
8
would
9
emergency.” FAC ¶ 90. Plaintiff continues to experience anxiety
10
physically
harm
him
or
even
shoot
him
in
a
“feigned
stemming from this incident.
11
On December 11, 2007, plaintiff was interviewed for a position
12
for which he had applied. Durette arranged for the interviewers to
13
be
14
complaints.
people
against
whom
plaintiff
had
previously
filed
EEO
15
The next day, plaintiff was informed that he was the subject
16
of an investigation, and that an interview would take place on
17
December 17, 2007 in Oakland. Plaintiff was told that he could not
18
use his government vehicle to pick his union representative up at
19
the airport in order to attend the meeting with plaintiff. Even
20
though the interview was work-related, and the union representative
21
was an FSP employee, plaintiff was required to use his own vehicle
22
to
23
interview took place in a small room, and plaintiff was under great
24
stress
25
received medical care for anxiety and high blood pressure.
26
retrieve
the
union
representative
from
the
airport.
The
throughout. After the interview, plaintiff sought and
From December 27, 2007 until December 8, 2007, plaintiff was
11
1
on sick leave. While on sick leave, plaintiff was requested to be
2
interviewed. Also while on sick leave, plaintiff was required to
3
be involved in a civil case filed by the U.S. Attorney’s office.
4
Plaintiff had had very limited involvement in a case filed by a
5
Sikh employee contesting FSP policy regarding headwear. Despite his
6
limited involvement and his sick leave status, the agency did not
7
substitute plaintiff out of the complaint, and replace him with
8
another official. Plaintiff was required to conduct further work
9
in the case, including reviewing a settlement agreement, while on
10
sick leave.
11
On June 11, 2008, while still on sick leave, plaintiff was
12
called to testify in a felony stolen vehicle case for which he was
13
the
14
telephonically
15
receive official administrative paid time in order to prepare to
16
testify, and to testify. The request was denied. On June 13, 2008,
17
plaintiff was subpoenaed to testify in the trial. Plaintiff’s
18
supervisor told him that he was not allowed to testify.
19
investigating
was
agent.
After
denied,
his
plaintiff
request
requested
to
testify
permission
to
Various agency employees continued to contact plaintiff while
20
he
21
additional
medical
22
plaintiff
regularly
23
supervisors. On May 16, 2008, Regional Director McNamara emailed
24
another
25
submitted all of the medical documentation that was required.
26
was
on
sick
agency
leave.
In
March
documentation
provided
employee,
and
from
medical
stating
that
April,
Rivero
plaintiff,
even
information
plaintiff
demanded
had
though
to
his
already
In June, 2008, plaintiff received notification that he was
12
1
barred from entering FSP office space without prior approval, even
2
though plaintiff held a top secret security clearance.
3
On June 19, 2008, plaintiff was placed on AWOL status for not
4
attending an interview that was scheduled while plaintiff was on
5
leave.
6
plaintiff’s union representative.
Plaintiff
was
not
notified
beforehand,
and
nor
was
7
Since October 28, 2005, when Loerzel sent the email about
8
plaintiff’s wife’s activity, plaintiff has not been placed in any
9
“acting” supervisory positions, despite his qualification for such
10
positions. Prior to the email, plaintiff was regularly placed in
11
acting supervisory positions. Serving as an acting supervisor is
12
important for career advancement within the agency. The agency’s
13
failure to select plaintiff for an acting supervisor position has
14
“severely jeopardized Plaintiff’s chances for future selections on
15
supervisory
16
successfully qualified.” FAC ¶ 65. In his complaint, plaintiff
17
lists several positions that he applied for, but for which he was
18
not hired.
19
E. Administrative Proceedings
job
openings
to
which
he
may
have
aspired
and
20
Plaintiff has initiated three separate EEO complaints. On or
21
about March 21, 2006, plaintiff contacted an EEO counselor to
22
complain about retaliation and age discrimination. Plaintiff later
23
filed a formal complaint alleging discrimination and hostile work
24
environment “through a series of actions beginning on or about
25
November 4, 2005.” FAC ¶ 6. This complaint was assigned the number
26
HS-06-ICE-002648 (“2648"). On or about February 22, 2008, plaintiff
13
1
contacted an EEO counselor to complain about retaliation and age
2
discrimination. He filed a formal complaint in that matter, number
3
HS-08-ICE-004459 (“4459"). FAC ¶ 18. On or about July 25, 2008,
4
plaintiff contacted an EEO counselor to complain about retaliation
5
and age discrimination. Plaintiff filed a formal complaint, HS-08-
6
ICE-007526.
7
“discriminatory non-selection of two positions for which plaintiff
8
had applied,” in addition to hostile work environment.
FAC
¶
22.
of
the
EEO
complaints
alleged
II. Standards
9
10
Each
A. Standard for a 12(b)(6) Motion to Dismiss
11
A Fed. R. Civ. P. 12(b)(6) motion challenges a complaint’s
12
compliance with the pleading requirements provided by the Federal
13
Rules.
14
must contain a “short and plain statement of the claim showing that
15
the pleader is entitled to relief.”
16
defendant “fair notice of what the claim is and the grounds upon
17
which it rests.”
18
(2007) (internal quotation and modification omitted).
19
Under Federal Rule of Civil Procedure 8(a)(2), a pleading
The complaint must give
Bell Atlantic v. Twombly, 550 U.S. 544, 555
To meet this requirement, the complaint must be supported by
20
factual allegations.
Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.
21
Ct. 1937, 1950 (2009).
22
framework of a complaint,” neither legal conclusions nor conclusory
23
statements are themselves sufficient, and such statements are not
24
entitled to a presumption of truth.
25
Twombly therefore prescribe a two step process for evaluation of
26
motions to dismiss.
“While legal conclusions can provide the
Id. at 1949-50. Iqbal and
The court first identifies the non-conclusory
14
1
factual allegations, and the court then determines whether these
2
allegations,
3
favorable to the plaintiff, “plausibly give rise to an entitlement
4
to relief.” Id.; Erickson v. Pardus, 551 U.S. 89 (2007).
taken
as
true
and
construed
in
the
light
most
5
“Plausibility,” as it is used in Twombly and Iqbal, does not
6
refer to the likelihood that a pleader will succeed in proving the
7
allegations.
8
factual allegations, when assumed to be true, “allow[] the court
9
to draw the reasonable inference that the defendant is liable for
Instead, it refers to whether the non-conclusory
10
the
misconduct
alleged.”
Iqbal,
129
S.Ct.
at
1949.
“The
11
plausibility standard is not akin to a ‘probability requirement,’
12
but it asks for more than a sheer possibility that a defendant has
13
acted unlawfully.”
14
complaint may fail to show a right to relief either by lacking a
15
cognizable legal theory or by lacking sufficient facts alleged
16
under a cognizable legal theory. Balistreri v. Pacifica Police
17
Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
18
B. Standard for a 12(b)(1) Motion to Dismiss
Id. (quoting Twombly, 550 U.S. at 557).
A
19
It is well established that the party seeking to invoke the
20
jurisdiction of the federal court has the burden of establishing
21
that jurisdiction exists. KVOS, Inc. v. Associated Press, 299 U.S.
22
269, 278 (1936); Assoc. of Medical Colleges v. United States, 217
23
F.3d 770, 778-779 (9th Cir. 2000). On a motion to dismiss pursuant
24
to Fed. R. Civ. P. 12(b)(1), the standards that must be applied
25
vary according to the nature of the jurisdictional challenge.
26
When
a
party
brings
a
facial
15
attack
to
subject
matter
1
jurisdiction,
that
2
jurisdiction contained in the complaint are insufficient on their
3
face to demonstrate the existence of jurisdiction.
4
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
5
12(b)(1)
6
safeguards similar to those applicable when a Rule 12(b)(6) motion
7
is made. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir.
8
1994), Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir.
9
1990); see also 2-12 Moore's Federal Practice - Civil § 12.30
motion
of
party
this
contends
type,
the
that
the
plaintiff
allegations
is
of
Safe Air for
In a Rule
entitled
to
10
(2009).
The factual allegations of the complaint are presumed to
11
be true, and the motion is granted only if the plaintiff fails to
12
allege an element necessary for
13
Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036,
14
1039 n.1 (9th Cir. 2003), Miranda v. Reno, 238 F.3d 1156, 1157 n.1
15
(9th Cir. 2001). Nonetheless, district courts “may review evidence
16
beyond the complaint without converting the motion to dismiss into
17
a motion for summary judgment” when resolving a facial attack. Safe
18
Air for Everyone,373 F.3d at 1039.
subject matter jurisdiction.
19
Alternatively, when a party brings a factual attack, it
20
“disputes the truth of the allegations that, by themselves, would
21
otherwise invoke federal jurisdiction.” Id. Specifically, a party
22
converts a motion to dismiss into a factual motion where it
23
“present[s] affidavits or other evidence properly brought before
24
the court” in support of its motion to dismiss. Id. Unlike in a
25
motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court need
26
not assume the facts alleged in a complaint are true when resolving
16
1
a factual attack. Id. (citing
2
(9th Cir. 2000). While the motion is not converted into a motion
3
for
4
[nonetheless] furnish affidavits or other evidence necessary to
5
satisfy its burden of establishing subject matter jurisdiction.”
6
Id.
7
jurisdiction, district courts may only rely on facts that are not
8
intertwined with the merits of the action. Id.
summary
When
judgment,
deciding
a
“the
White v. Lee, 227 F.3d 1214, 1242
party
factual
opposing
challenge
to
the
motion
subject
must
matter
III. Analysis
9
10
Defendant moves to dismiss the complaint on three grounds: (1)
11
that the Fifth Amended Complaint exceeds the scope of this court’s
12
order granting plaintiff leave to amend the complaint; (2) that the
13
court lacks subject matter jurisdiction because of plaintiff’s
14
failure to exhaust administrative remedies; and (3) that plaintiff
15
has failed to state a claim. The court addresses subject matter
16
jurisdiction first. Steel Co. v. Citizens for a Better Env't, 523
17
U.S. 83, 93-94 (1998).
18
A. Subject Matter Jurisdiction
19
Defendant argues that this court lacks jurisdiction over
20
plaintiff’s claims because plaintiff has failed to properly exhaust
21
the EEO process for some of his claims. Defendant’s argument is
22
based on the timeliness of plaintiff’s complaints to the EEO
23
office, and his failure to present some claims to the EEO office.
24
A federal employee may file an employment discrimination claim
25
in district court after exhausting administrative remedies. As a
26
"precondition to filing [an employment discrimination claim in
17
1
district court], the complainant must seek relief in the agency
2
that has allegedly discriminated against him." Kraus v. Presidio
3
Trust Facilities Division/Residential Mgmt. Branch, 572 F.3d 1039,
4
1043 (9th Cir. 2009)(quoting Brown v. GSA, 425 U.S. 820 (1976)).
5
Following an allegedly discriminatory act, a plaintiff must consult
6
an EEO counselor within 45 days. 29 CFR 1614.105(a)(1). This time
7
limit may be extended by the agency or the EEOC if the complainant
8
reasonably did not know about the discriminatory action, despite
9
due diligence.
10
For
a
29 CFR 1614.105(a)(2).
hostile
work
environment
claim,
the
continuing
11
violations principle applies. A plaintiff must consult an EEO
12
counselor within 45 days of any act that is part of the hostile
13
work environment. Discussing the statutory period for filing a case
14
in district court after the EEOC process has been exhausted, the
15
Supreme Court has held that because “the incidents comprising a
16
hostile work environment are part of one unlawful employment
17
practice, the employer may be liable for all acts that are part of
18
this single claim. In order for the charge to be timely, the
19
employee need only file a charge within 180 or 300 days of any act
20
that is part of the hostile work environment.” AMTRAK v. Morgan,
21
536 U.S. 101, 118 (2002).
22
In
this
case,
plaintiff
initiated
three
separate
EEO
23
complaints. On or about March 21, 2006, plaintiff contacted an EEO
24
counselor to complaint about retaliation and age discrimination.
25
Plaintiff later filed a formal complaint alleging discrimination
26
and hostile work environment “through a series of actions beginning
18
1
on or about November 4, 2005.” FAC ¶ 6. This complaint was assigned
2
the number HS-06-ICE-002648 (“2648"). On or about February 22,
3
2008, plaintiff contacted an EEO counselor to complain about
4
retaliation and age discrimination. He filed a formal complaint in
5
that matter, number HS-08-ICE-004459 (“4459"). FAC ¶ 18. On or
6
about July 25, 2008, plaintiff contacted an EEO counselor to
7
complain about retaliation and age discrimination. Plaintiff filed
8
a formal complaint, HS-08-ICE-007526. FAC ¶ 22. Each of the EEO
9
complaints alleged “discriminatory non-selection of two positions
10
for which plaintiff had applied,” in addition to hostile work
11
environment.
12
matter jurisdiction over “any adverse action which [plaintiff]
13
alleges occurred before February 16, 2006 (for his first EEO
14
complaint), January 8, 2008 (for his second EEO complaint), and
15
June 11, 2008 (for his third EEO complaint).” Mot. at 8.
Defendant argues that this court lacks subject
16
Indeed, the FAC alleges adverse employment actions beginning
17
around November 2005, when plaintiff’s appointment to a permanent
18
position was cancelled. FAC ¶ 37. However, each of plaintiff’s
19
claims for relief allege hostile work environment. As noted,
20
hostile work environment claims encompass a series of incidents
21
that cumulatively add up to an adverse employment action. A hostile
22
work environment charge is timely filed if one of those incidents
23
occurs within the statutory period. Plaintiff has alleged that a
24
series of events constitute a hostile work environment, altering
25
the conditions of his employment. Those alleged incidents include,
26
but are not limited to: denial of annual leave without explanation;
19
1
the agency’s failure to issue an adequate vehicle in which to
2
perform his job duties; the agency’s failure to assign a partner
3
to
4
suspension; a search of plaintiff’s office and seizure of his
5
property. Accordingly, defendant’s argument that this court lacks
6
jurisdiction to hear any claims arising outside of the 45-day
7
window for each EEO complaint is unavailing insofar as plaintiff’s
8
hostile work environment claims.
plaintiff;
denial
of
union
representation;
a
five-day
9
Plaintiff is very unlikely, however, to recover separately for
10
discreet acts that occurred outside the statutory window for each
11
EEO complaint. For example, plaintiff alleges that on November 13,
12
2005, he was not placed in a Chief position. FAC ¶ 43. This
13
occurred more than 45 days before plaintiff ever complained to an
14
EEO counselor. Plaintiff is unlikely to recover any lost wages
15
related to his non-hire for that particular position, although the
16
incident may be a component of plaintiff’s hostile work environment
17
claim, for which he can recover compensatory damages.2
18
Defendant additionally argues that some of plaintiff’s claims
19
were never presented to the EEO office. Indeed, it is difficult to
20
discern
21
presented in EEO complaints. A declaration by plaintiff, filed with
22
his opposition to the motion offers some
23
disagrees with plaintiff’s contention that “it is easy to discern”
from
the
FAC
which
of
the
various
“non-hires”
were
clarification. The court
24
2
25
26
For each claim, plaintiff seeks “retroactive promotion to
the position applied for, back pay, front pay, and other remedial
relief.” Plaintiff also seeks compensatory damages for his first,
second, and third claims. FAC 39:14-16, 23-25; 40:4-6, 13-15.
20
1
from the timing of the events alleged in the complaint that Morgan
2
had exhausted particular non-hire claims. Oppo. 8:22-24. In fact,
3
almost nothing has been easy for the court to discern in any of
4
plaintiff’s many amended complaints.
5
Plaintiff’s first EEO complaint, number 2648 filed on March
6
21,
7
announcements LAG-FSP-541798-SM-17, LAG-FSP-101859-SM-26 and LAG-
8
FSP-101313-SM-24. Plaintiff learned of his non-hire for those
9
positions on November 13, 2005, February 21, 2006, and February 26,
10
2006, respectively. Only the latter two of these non-hires occurred
11
within 45 days of plaintiff’s EEO complaint. Therefore, the court
12
finds that plaintiff’s claim for non-hire for vacancy announcement
13
LAG-FSP-541798-SM-17 was not properly exhausted, but that the other
14
two were.
15
2006,
included
Plaintiff’s
plaintiff’s
second
EEO
non-hire
complaint,
claims
number
for
4459
vacancy
filed
on
16
February 22, 2008, exhausted plaintiff’s non-hire claims for
17
vacancy announcements LAG-FPS-137696-LP-183 and LAG-FPS-145334-SM-
18
91. Plaintiff learned of his non-hire for those positions on
19
January 28, 2008, and January 23, 2008, respectively. Both of those
20
non-hires were properly presented to the EEO office.
21
Plaintiff’s third EEO complaint, number 7526 filed on July 25,
22
2008, exhausted plaintiff’s non-hire claims for vacancy positions
23
LAG-FPS-168698-LP-275 and LAG-FPS-168719 LP-276. Plaintiff learned
24
of his non-hire for both of those positions on July 9, 2008, within
25
45 days of complaining to an EEO counselor.
26
the specific non-hire claims discussed, plaintiff also complained
21
In addition to
1
of retaliation and hostile work environment in each of his EEO
2
complaints.
3
Accordingly, the court concludes that it has jurisdiction over
4
plaintiff’s claims.
5
B. The Scope of this Court’s Prior Order
6
Defendant argues that the Fifth Amended Complaint exceeds the
7
scope of this court’s prior order. This court issued an order on
8
February 10, 2011 granting defendant’s motion to dismiss, and
9
granting
plaintiff
leave
to
file
an
amended
complaint.
10
Specifically, the court instructed plaintiff to simply the factual
11
allegations in the complaint. The court also allowed plaintiff to
12
include allegations of retaliatory acts stemming from an EEO
13
complaint filed in March, 2006, and to allege retaliation for his
14
participation in the Neibauer and Bailey matters, beginning in
15
April 2007. February 10, 2011 Order, ECF No. 55.
16
Plaintiff’s Fifth Amended complaint is much improved, compared
17
to previous versions. As defendant states, some factual allegations
18
are
19
Defendant states that plaintiff’s first claim for relief, third-
20
party retaliation for his wife’s activities, incorporates facts
21
that appear to be irrelevant to his wife’s role as an attorney
22
representing
23
incorporated, although they do not mention Ms. Becker, support
24
plaintiff’s claim of hostile work environment in retaliation for
25
his wife’s activities. The same can be said about defendant’s
26
arguments with respect to plaintiff’s second, third, and forth
incorporated
into
other
claims
agency
for
which
employees.
22
they
However,
are
the
irrelevant.
paragraphs
1
claims for relief. Accordingly, the FAC does not exceed the scope
2
of this court’s February 10, 2011 order.
3
C. Failure to State a Claim
4
Defendant
argues
because
that
plaintiff
plaintiff’s
has
failed
complaint
to
allege
should
be
that
the
5
dismissed
6
discriminatory acts were the result of an unlawful discriminatory
7
motivation. Mot. 10.
8
In employment discriminations cases, “under a notice pleading
9
system, it is not appropriate to require a plaintiff to plead facts
10
establishing a prima facie case. . .” under the McDonnell Douglas
11
framework. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (U.S.
12
2002). Twombly explicitly did not overturn this holding. Twombly,
13
550 U.S. at 569-70. In Swierkiewicz, the plaintiff alleged that he
14
was terminated for reasons that are prohibited by the ADEA and
15
Title VII. The Court held that his complaint adequately stated a
16
claim by describing several events leading to his termination,
17
providing relevant dates, and including the ages and nationalities
18
of some of the persons involved in his termination. As noted in a
19
prior order in this case, it is sufficient, for example, for
20
plaintiff to allege that he was denied a promotion, and that a
21
younger and less qualified person received the promotion, or other
22
facts to support that he was denied the promotion because of his
23
age. Morgan v. Napolitano, 2010 U.S. Dist. LEXIS 105600 (E.D. Cal.
24
Sept. 22, 2010).
25
Here, plaintiff has alleged facts showing animus towards older
26
employees. The FAC alleged that Durette expressed his preference
23
1
for hiring “youthful and vigorous” employees, and that Durette
2
maintained
3
eliminated from the agency. Plaintiff has also alleged that in
4
several instances, he was passed over for promotions in favor of
5
younger, less qualified employees. From these factual allegations,
6
the court can plausibly infer that plaintiff suffered adverse
7
employment actions because of his age.
a
“hit
list”
of
older
employees
that
he
wanted
8
Similarly, plaintiff alleges that Durette complained about
9
plaintiff’s wife’s legal representation of other agency employees.
10
Although Durette’s alleged comments occurred in 2005, outside the
11
statutory period, they are evidence of Durette’s animus towards
12
plaintiff’s wife’s anti-discrimination activities. The court could
13
also infer animus for plaintiff’s wife’s activities from the email
14
sent on October 28, 2005. Although the email might be evidence that
15
management
16
information
17
management animus towards his wife’s activity and management’s
18
perception that he was aiding and abetting that activity. Both
19
theories are plausible.
was
concerned
with
his
that
wife,
Morgan
the
email
was
improperly
could
also
sharing
demonstrate
20
Defendant further argues that plaintiff’s first claim for
21
relief, that he was retaliated against for his wife’s activity, is
22
prohibited by the plain language of Title VII. Defendant argues
23
that plaintiff’s claim fails because plaintiff has not stated facts
24
showing that he was engaged in any activity for which he would be
25
protected by the anti-retaliation provisions of Title VII. This
26
court has already held that plaintiff may state a claim for third24
1
party retaliation because of his wife’s legal representation of his
2
co-workers, since such retaliation would chill enforcement of anti-
3
discrimination laws. Our order stated “in her representation of
4
Defendant’s employees, Plaintiff’s wife effectively stands in the
5
shoes of those employees and becomes the conduit through which they
6
exercise their Title VII rights.” Order 19:6-9, 20:21-23, September
7
23, 2010. ECF No. 32. Moreover, the Supreme Court recently held
8
that the anti-retaliation provisions of Title VII do prohibit
9
retaliation against close family members of those who complain
10
about
unlawful
11
dissuade employees from filing charges. Thompson v. North American
12
Stainless 562 U.S. ___ (2011). In Thompson, an engaged couple both
13
worked for the same company. Three weeks after the woman in the
14
couple filed a sex discrimination charge, the plaintiff was fired
15
from his job. Building on the holding in Burlington N&S F.R. Co.
16
V. White 548 U.S. 53 (2006) that Title VII’s anti-retaliation
17
provision prohibits a broad range of employer conduct, the Court
18
held that some third-party reprisals violate Title VII. Without
19
establishing a precise rule, the Court explained that “firing a
20
close
21
standard, and inflicting a milder reprisal on a mere acquaintance
22
will almost never do so.” The Court further concluded, by applying
23
the “zone of interest” test from Lujan v. National Wildlife
24
Federation 497 U.S. 871, 888 (1990), that the plaintiff (the man
25
who was fired) was an ‘aggrieved party’ within the meaning of Title
26
VII, and therefore had standing to sue. The Court held that,
family
discrimination,
member
will
since
almost
25
such
always
retaliation
meet
the
might
Burlington
1
according to the facts alleged by the plaintiff, “injuring him was
2
the employer’s means of harming [his fiancee] Regalado. Hurting him
3
was the unlawful act by which the employer punished her.”
4
As
with
his
age
discrimination
claim,
plaintiff
has
5
sufficiently plead his direct retaliation, third-party retaliation,
6
and perceived aiding and abetting claims. Plaintiff has pled facts
7
from which the court can plausibly infer that he engaged in
8
protected activity, that management knew about the activity and
9
didn’t like it, and that he subsequently was subjected to adverse
10
employment actions and a course of conduct constituting a hostile
11
work environment.
IV. Conclusion
12
13
For the reasons stated herein, the court ORDERS as follows:
14
[1] Defendant’s motion to dismiss the Fifth Amended
15
Complaint, ECF No. 58, is DENIED.
16
[2] A status conference is SET for July 11, 2011, at
17
2:30 p.m. The parties SHALL file status reports no later
18
than fourteen (14) days before the status conference.
19
IT IS SO ORDERED.
20
DATED:
June 16, 2011.
21
22
23
24
25
26
26
]]>
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