(PS) Khenaisser v. Jewell et al, No. 2:2015cv01205 - Document 24 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 02/09/16 RECOMMENDING that defendant's 18 Motion to Dismiss be granted; that defendants Pederson and Murillo be dismissed with prejudice; that unfair labor practice claims be dismissed without prejudice to their renewal in the proper forum; that the discrimination claims related to plaintiff's alleged termination and non-selection for the Project Manager position be dismissed for lack of subject matter jur isdiction; that the exhausted claims for discrimination be dismissed with leave to amend; and plaintiff be granted leave to amend within 30 days and defendant be granted leave to respond within 30 days thereafter as detailed in the order; referred to Judge Morrison C. England, Jr.; Objections to these F&Rs due within 14 days.(Benson, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAZEN KHENAISSER, 12 13 14 No. 2:15-cv-1205 MCE CKD PS Plaintiff, v. FINDINGS AND RECOMMENDATIONS SALLY JEWELL, et al., 15 Defendants. 16 17 Defendants’ motion to dismiss came on regularly for hearing on February 3, 2016. 18 Plaintiff Mazen Khenaisser appeared in propria persona. Chi Soo Kim appeared for defendants. 19 Upon review of the documents in support and opposition, upon hearing the arguments of plaintiff 20 and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS: 21 In this action, plaintiff alleges claims of discrimination arising out of his employment as a 22 civil engineer in the Bureau of Reclamations Design and Construction Division, Mid-Pacific 23 Region. Plaintiff resigned on June 19, 2014, the same day he received a letter of proposed 24 removal for making alarming statements found to be threatening. The letter was withdrawn after 25 plaintiff resigned. 26 Plaintiff filed a grievance on July 18, 2014 and requested union representation. On the 27 same day, plaintiff confirmed in an e-mail to Sonya Johnson, contract EEO counselor for the 28 Bureau of Reclamation, that he was pursuing only the grievance procedure regarding his 1 1 resignation and that he was not filing an EEO complaint with respect to the resignation. Reply, 2 ECF No. 20-1 at p.5. The grievance was denied at the first level on August 8, 2014 and again at 3 the second level of grievance on August 26, 2014. Defendant Pederson, president of the National 4 Federation of Federal Employees (“NFFE”) on October 27, 2014 corresponded with plaintiff by 5 e-mail, advising plaintiff that the Union would not represent plaintiff in arbitration because 6 plaintiff had resigned his position, and as such, the Union had no legal standing. ECF No.1 at p. 7 63. 8 On October 30, 2014, plaintiff contacted an EEO official, and after an interview with an 9 EEO counselor, plaintiff filed an EEO complaint on December 23, 2014 for discrimination on the 10 basis of race, religion, national origin, physical disability (back discomfort), mental disability, and 11 reprisal. Plaintiff complained about the union president declining to provide plaintiff with union 12 representation. The Bureau of Reclamation issued its Final Agency Decision on May 4, 2015 13 dismissing the EEO complaint because it alleged discriminatory acts by the union, which is not a 14 federal department or agency. 15 The instant complaint was filed on June 4, 2015. Plaintiff alleges discrimination on the 16 basis of race, religion, national origin, physical disability, mental disability and reprisal. Plaintiff 17 again alleges discrimination on the part of the union president for failing to provide 18 representation. Specifically, plaintiff alleges that “[o]n November 10th, 2014, the NFFE 19 President declined to offer my grievance representation for arbitration accepting final decision 20 from the Agency that discrimination is an EEO matter and is excluded from the Contract.” 21 Comp. at 2, Item 4. Plaintiff also alleges retaliation for participating in ADR in May 2015 and 22 pre-counseling in June. 23 Defendant moves to dismiss for lack of subject matter jurisdiction and for failure to state a 24 claim. Defendant contends this court lacks subject matter jurisdiction because plaintiff failed to 25 exhaust his administrative remedies and because this court does not have jurisdiction over unfair 26 labor practice claims. Defendant also contends that defendants Pederson and Murillo are not 27 proper parties and should be dismissed with prejudice. These contentions are correct. 28 ///// 2 1 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 2 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 3 claims alleged in the action. “A motion to dismiss for lack of subject matter jurisdiction may 4 either attack the allegations of the complaint or may be made as a ‘speaking motion’ attacking the 5 existence of subject matter jurisdiction in fact.” Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 6 594 F.2d 730, 733 (9th Cir. 1979). 7 When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, 8 no presumption of truthfulness attaches to the plaintiff’s allegations. Thornhill Publ’g Co., 594 9 F.2d at 733. “[T]he district court is not restricted to the face of the pleadings, but may review any 10 evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of 11 jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 12 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff has the burden 13 of proving that jurisdiction does in fact exist. Thornhill Publ’g Co., 594 F.2d at 733. 14 Federal subject matter jurisdiction is lacking where a plaintiff fails to exhaust 15 administrative remedies before seeking adjudication of a Title VII claim. See Lyons v. England, 16 307 F.3d 1092, 1103 (9th Cir. 2002). The exhaustion requirement also applies to disability 17 discrimination claims brought under the Rehabilitation Act. See Boyd v. U.S. Postal Serv., 752 18 F.2d 410, 412-13 (9th Cir. 1985). 19 In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for 20 failure to state a claim upon which relief can be granted, the court must accept as true the 21 allegations of the complaint in question, Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007), and 22 construe the pleading in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 23 232, 236 (1974). 24 In order to avoid dismissal for failure to state a claim a complaint must contain more than 25 “naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause 26 of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words, 27 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 28 statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim 3 1 upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A 2 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 3 the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 4 at 678. 5 Defendant Pederson is the President of the National Federation of Federal Employees 6 Local 951 and defendant Murillo is the Bureau of Reclamation Regional Director of the Mid- 7 Pacific Region. The head of the federal agency at issue is the only proper defendant in this 8 action. See 42 U.S.C. § 2000e-16(c) (Title VII); 29 U.S.C. § 794a(a)(1); Vinieratos v. United 9 States, 939 F.2d 762, 772 (9th Cir. 1991). As such, the only properly named defendant is 10 defendant Sally Jewell, the Secretary of the Interior, in her official capacity. Defendants 11 Pederson and Murillo should therefore be dismissed with prejudice. 12 In the complaint, plaintiff alleges unfair labor practice claims pursuant to the Federal 13 Service Labor-Management Relations Statute, 5 U.S.C. § 7101 et seq. Judicial review of such 14 claims, however, is limited to “the United States court of appeals in the circuit in which the 15 person resides or transacts business or in the United States Court of Appeals for the District of 16 Columbia.” 5 U.S.C. § 7123(a); see also Am. Fed’n of Gov’t Employees v. Sec’y of the Air 17 Force, 716 F.3d 633, 637 (D.C. Cir. 2013). This court therefore lacks jurisdiction over the unfair 18 labor practice claims and these claims should be dismissed without leave to amend in this court 19 since amendment would be futile. 20 With respect to plaintiff’s remaining claims of discrimination and retaliation, plaintiff has 21 exhausted only those claims relating to the union president’s declination to represent plaintiff in 22 his grievance. These are the only claims presented in plaintiff’s December 23, 2014 EEO 23 Complaint. Plaintiff’s new claims relating to discrimination in his alleged termination and non- 24 selection for the Project Manager position are not reasonably related to the allegations of the EEO 25 charge and such claims should be dismissed for failure to exhaust administrative remedies. See 26 Stache v. Int’l Union of Bricklayers & Allied Craftsmen, AFL-CIO, 852 F.2d 1231, 1234 (9th 27 Cir. 1988). Because plaintiff has failed to exhaust these claims, this court lacks subject matter 28 jurisdiction over plaintiff’s new claims regarding his termination and Project Manager position. 4 As to plaintiff’s remaining claims arising out of alleged discrimination by the union 1 2 president for declining to represent plaintiff, such conduct does not constitute an adverse 3 employment action and is not attributable to the federal agency. Plaintiff therefore fails to state a 4 prima facie discrimination claim. See Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003) 5 (plaintiff must show he belongs to protected class, was qualified for position, subjected to adverse 6 employment action, and similarly situated individuals outside protected class were treated more 7 favorably); see also Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) (employment 8 actions constituting adverse actions include termination, dissemination of negative employment 9 reference, issuance of undeserved negative performance review or refusal to consider plaintiff for 10 promotion); Kim v. Potter, No. 05–00332 JMS/LEK, 2008 WL 483596, at *17 (D. Haw. Feb. 22, 11 2008) (denial of union representation not adverse employment action). Plaintiff’s retaliation 12 claim is similarly deficient in that plaintiff fails to demonstrate any causal nexus between his 13 participation in the EEO process and any adverse employment action. See Villiarimo v. Aloha 14 Island Air., Inc., 281 F.3d 1054, 1064-65 (9th Cir. 2002) (for prima facie retaliation claim, 15 plaintiff must show he engaged in statutorily protected activity, adverse employment action 16 thereafter taken against him, and causal link connected the two events). Finally, with respect to 17 plaintiff’s disability discrimination claim, plaintiff fails to allege that he is disabled and refers 18 only to back pain because of improper seating arrangements. Compl. at 2, Item 3. This allegation 19 falls woefully short of the requirement under the Rehabilitation Act that plaintiff have a physical 20 or mental impairment that substantially limits one or more of the major life activities in order to 21 state a claim under that Act. See Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 22 2007); 42 U.S.C. §§ 12112(a), 12102; 29 U.S.C. § 705(9)(B); 29 C.F.R. § 1630.2(g). 23 Although plaintiff proffers no argument in his opposition or at oral argument which 24 suggests that amendment would be anything other than futile, in light of plaintiff’s pro se status, 25 the court will recommend that the exhausted discrimination claims be dismissed with leave to 26 amend.1 27 28 1 Plaintiff is reminded that as a pro se litigant, he is subject to Federal Rule of Civil Procedure 11(b) and that any amended complaint must be filed in conformity therewith. 5 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. Defendants’ motion to dismiss (ECF No. 18) be granted; 3 2. Defendants Pederson and Murillo be dismissed with prejudice; 4 3. The unfair labor practice claims be dismissed without prejudice to their renewal in the 5 6 7 proper forum; 4. The discrimination claims related to plaintiff’s alleged termination and non-selection for the Project Manager position be dismissed for lack of subject matter jurisdiction; 8 5. The exhausted claims for discrimination be dismissed with leave to amend; and 9 6. Plaintiff be granted leave to file an amended complaint setting forth only exhausted 10 claims for discrimination within thirty days of adoption of the herein findings and 11 recommendations; any amended complaint consist of separately and sequentially numbered 12 allegations in accordance with Federal Rule of Civil Procedure 10(b), with each claim set forth 13 separately, and in conformance with the general format of documents required under Local Rule 14 130(b), (c) and (d); and defendant be granted 30 days thereafter to respond to the amended 15 complaint. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 21 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 22 Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 Dated: February 9, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 24 25 26 27 4 khenaisser1205.mtd.57 28 6
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