Shepard v. Eric K. Shinseki, et al., No. 3:2012cv00554 - Document 71 (D. Nev. 2014)

Court Description: ORDER granting in part and denying in part 53 Motion to Dismiss. Signed by Judge Howard D. McKibben on 02/19/2014. (Copies have been distributed pursuant to the NEF - KR)
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Shepard v. Eric K. Shinseki, et al. Doc. 71 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 17 TIMOTHY SHEPARD, ) ) Plaintiff, ) ) vs. ) ) ERIC K. SHINSEKI, SECRETARY, ) DEPARTMENT OF VETERANS AFFAIRS; ) EDWARD RUSSEL, in his official ) capacity; and ALAN BITTLER, in ) his official capacity, ) ) Defendant. ) _________________________________ ) 3:12-cv-00554-HDM-VPC ORDER 18 Before the court is the defendants’ motion to dismiss (#53). 19 The plaintiff has opposed (#58) and the defendants have replied 20 (#61.) 21 Plaintiff Shepard was an employee at the Department of 22 Veterans Affairs (“VA”) in Reno, Nevada, and worked as Veteran 23 Service Representative (“VSR”) Public Contact. (See First Am. 24 Compl. 1.) In 2010, the leadership at the Reno Veterans Affairs 25 Regional Office, allegedly based on “business necessity,” made the 26 decision to move the Public Contact VSR team to a different VSR 27 team, the Predetermination team. (See Answer 6.) Plaintiff 28 1 1 Shepard suffers from the disabilities of dyslexia and dysgraphia, 2 and alleges that while he was able to perform effectively in his 3 position on VSR Public Contact team despite his disabilities, his 4 disabilities made it impossible for him to carry out his job 5 responsibilities on the VSR Predetermination team, even with 6 accommodations. 7 first notified the VA of his disabilities when he was informed of 8 his impending transfer. 9 Plaintiff Shepard repeatedly requested that he be allowed to remain (See First Am. Compl. 1-2.) Plaintiff Shepard (See First. Am. Compl. 5; Answer 6.) 10 on the VSR Public Contact team. 11 defendants denied this request, but assert that they “engaged in 12 the interactive process to provide Plaintiff a reasonable 13 accommodation” (see answer 6.). 14 administrative claims at the VA, which he pursued to varying 15 degrees. 16 Plaintiff Shepard eventually resigned from his position at the VA, 17 and alleges that he was “forc[ed]” to do so by the discriminatory 18 treatment he received while working there. 19 3-4.) 20 (See First. Am. Compl. 3-6.) The The plaintiff initiated various (See Def. Mot. 2-3; Def. Reply Maraian Dec. 2.) (See First Am. Compl. On October 15, 2012, the Plaintiff filed suit under the 21 Rehabilitation Act, alleging disability discrimination. 22 Compl. 3-6.) 23 complaint that added a retaliation claim under the Rehabilitation 24 Act. 25 (See On July 3, 2013, the plaintiff filed an amended (See First Am. Compl. 7-8.) On August 19, 2013, the defendants filed a motion to dismiss 26 (#53), which is presently before the court. 27 defendants argue that the plaintiff’s retaliation claim should be 28 dismissed due to failure to exhaust administrative remedies, that 2 In their motion, the 1 defendants Russel and Bittler should be dismissed as to the 2 discrimination claim because defendant Shinseki is the only proper 3 defendant, and that various grounds for the plaintiff’s 4 discrimination claim should also be dismissed due to failure to 5 exhaust administrative remedies. 6 STANDARD 7 (See Def. Mot. 1-2.) The Ninth Circuit has held that in order to establish subject 8 matter jurisdiction over a Title VII claim, the plaintiff is 9 required to exhaust all administrative remedies. See, e.g., B.K.B. 10 v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002).1 11 Moreover, the naming of the proper defendant under 42 U.S.C. 12 §2000e-16(c) is also considered a jurisdictional issue under Ninth 13 Circuit case law. 14 F.2d 1421, 1422 (9th Cir. 1986), overruled on other grounds by 15 Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990). The court 16 therefore construes the defendants’ motion as a motion to dismiss 17 for lack of subject matter jurisdiction under Fed.R.Civ.P. 18 12(b)(1). See Hymen v. Merit Systems Protection Bd., 799 19 Such a motion may be made on the basis that the complaint 20 fails to allege grounds for federal subject matter jurisdiction as 21 required by Fed.R.Civ.P. 8(a). 22 952 F.2d 879, 881 (5th Cir. 1992); Thornhill Publ’g Co. v. General 23 Tel. & Elecs., 594 F.2d 730, 733 (9th Cir. 1979). Meliezer v. Resolution Trust Co., Although the 24 25 26 27 28 1 There is some Ninth Circuit case law stating that administrative exhaustion under Title VII may not be a jurisdictional requirement per se, but is instead a “statutory precondition to suit.” See Vinieratos v. U.S., Dep’t of Air Force Through Aldridge, 939 F.2d 762, 768 n.5 (9th Cir. 1991). However, the majority of Ninth Circuit cases, including those cases more recent than Vinieratos (see, e.g., B.K.B.) do describe administrative exhaustion as necessary to establish subject matter jurisdiction in district court. 3 1 defendant is the moving party on a motion to dismiss, it is the 2 plaintiff who, as the party seeking to invoke the court’s 3 jurisdiction, bears the burden of establishing subject matter 4 jurisdiction.2 5 1135 (9th Cir. 1999). 6 jurisdiction until the plaintiff proves otherwise. 7 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); 8 States v. Sumner, 226 F.3d 1005, 1010 (9th Cir. 2000). 9 Hexom v. Oregon Dept. of Transp., 177 F.3d 1134, The court in effect presumes that it lacks Kokkonen v. United The nature of the burden of proof varies, however, depending 10 on whether the motion is a facial or factual attack on the 11 complaint. 12 complaint on its face, the plaintiff must affirmatively allege the 13 existence of federal jurisdiction because the court will not infer 14 it from the allegations. 15 236 F.3d 495, 499 (9th Cir. 2001), citing Smith v. McCullough, 270 16 U.S. 456, 459 (1926). 17 presume that the plaintiff’s allegations are true. 18 Reno, 238 F.3d 1156, 1157 n.1 (9th Cir. 2000). 19 presumption of truth attaches to the plaintiff’s allegations with a 20 factual attack. 21 When considering a Rule 12(b)(1) motion attacking a TOSCO v. Communities for a Better Env’t, Also, with a facial attack, the court must Miranda v. In contrast, no White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Additionally, “in resolving a factual attack on jurisdiction, 22 the district court may review evidence beyond the complaint without 23 converting the motion to dismiss into a motion for summary 24 judgment.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 25 26 27 28 2 With respect to a threshold motion to dismiss for lack of subject matter jurisdiction, if the plaintiff can show any arguable basis in law for the claim made, he may survive a Fed.R.Civ.P. 12 (b)(1) motion. Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir. 1996). 4 1 (9th Cir. 2004) (citing Savage v. Glendale Union High Sch., 343 2 F.3d 1036, 1039 n.2 (9th Cir. 2003)). 3 hand, 4 a factual motion by presenting affidavits or other evidence 5 properly before the court, the party opposing the motion must 6 furnish affidavits or other evidence necessary to satisfy its 7 burden of establishing subject matter jurisdiction.’” “‘the moving party has converted the motion to dismiss into 8 9 When, as in the case at Id. A federal court presumptively lacks subject matter jurisdiction “unless the contrary affirmatively appears.” Stock 10 West, Inc. v. Confederated Tribes of the Colville Reservation, 873 11 F.2d 1221, 1225 (9th Cir. 1989). 12 jurisdiction must exist at the time the action is commenced. 13 Morongo Band of Mission Indians v. California State Bd. of 14 Equalization, 858 F.2d 1376, 1380 (9th Cir. 1988), cert. denied, 15 488 U.S. 1006 (1989). 16 jurisdiction, and not where jurisdiction is indeed lacking, may a 17 plaintiff amend the complaint. 18 1653. 19 ANALYSIS 20 I. Federal subject matter Only where the complaint defectively alleges Id. at 1381 n.3; see 28 U.S.C. § Consideration of Exhibits Attached to Plaintiff’s Opposition 21 The defendants argue in their reply that all twenty of the 22 exhibits offered by the plaintiff in his opposition to their motion 23 “are not authenticated, and . . . also constitute hearsay.” 24 Reply 7.) 25 inadmissible and should be disregarded by this court. 26 cite Fed.R.Evid. 801 (defining hearsay) and 802 (precluding 27 admission of hearsay), as well as two Ninth Circuit cases, both of 28 which upheld district courts’ exclusion of letters from (Def. The defendants claim that the exhibits are therefore 5 (Id.) They 1 consideration when deciding a motion for summary judgment because 2 the letters were not properly authenticated. 3 of America, 285 F.3d 764, 778 (9th Cir. 1997); Lumiere (Rights) 4 Ltd. V. Baker & Taylor, 116 F.3d 484 (9th Cir. 1997). 5 addresses this evidentiary issue before addressing the defendants’ 6 other arguments, as it has a bearing on which evidence is available 7 to the court in ruling on the defendants’ motion to dismiss. 8 9 See id.; Orr v. Bank The court “It is well settled that only admissible evidence may be considered by the trial court in ruling on a motion for summary 10 judgment,” and “[t]he same rule applies when evidence is submitted 11 . . . in support of a motion to dismiss.” 12 Servs., Inc., 854 F.2d 1179, 1181-82 (9th Cir. 1988) (citing to 13 Fed.R.Civ.P. 43(e), which no longer exists, but also citing to 14 Fed.R.Evid. 101 for the proposition that the Federal Rules of 15 Evidence apply in all proceedings before the United States courts, 16 as well as to Fed.R.Evid. 1101, which lists certain exceptions to 17 Rule 101, none of which apply in the case at hand). 18 discussing when evidence may be appropriately considered at the 19 summary judgment stage applies equally to the current circumstance, 20 in which evidence is being considered by the court in ruling on a 21 motion to dismiss. 22 Beyene v. Coleman Sec. Thus, case law It is important to note that while only admissible evidence 23 may be considered when deciding a motion to dismiss, “we do not 24 focus on the admissibility of the evidence’s form. 25 focus on the admissibility of its contents.” 26 342 F.3d 1032, 1036 (9th Cir. 2003). 27 whether the evidence is currently presented in an admissible form, 28 but instead whether it “‘could be presented in an admissible form 6 We instead Fraser v. Goodale, The court looks not at 1 at trial.’” 2 F.3d 840, 846 (quoting Fraser, 342 F.3d at 1037; citing U.S. 3 Bancorp v. Fraser, 541 U.S. 937 (2004)). 4 motion to dismiss stage can contain hearsay, for example, yet still 5 be appropriately considered by the court if it can be presented at 6 trial in an admissible format (for example, with testimony). 7 e.g., Fraser, 343 F.3d at 1037; Fonseca, 374 F.3d at 846. 8 Moreover, while none of the plaintiffs’ exhibits in the case at 9 hand are authenticated by affidavits, the alternative means to Fonseca v. Sysco Food Servs. of Arizona, Inc., 374 Evidence presented at the See, 10 authentication permitted by the Fed.R.Evid. 901(b) and 902 may also 11 be considered by the court. 12 n.22-23, 778 n.24. See Orr, 285 F.3d at 777-778, 777 13 While it is possible that some or all of the plaintiffs’ 14 exhibits may be appropriately excluded from consideration at this 15 juncture based on inadmissibility at the trial stage or lack of 16 authentication, the defendants have not articulated which exhibits 17 should be excluded for which reasons. 18 plaintiffs’ exhibits include letters, emails, excerpts from 19 manuals, interrogatories, and deposition testimony, all different 20 types of evidence that may be authenticated in different ways and 21 to which different rules of evidence and different case law may 22 apply. 23 defendants have articulated no standards this court should employ 24 in determining the admissibility of the plaintiffs’ twenty various 25 exhibits, and has not offered arguments as to why any individual 26 exhibits should be excluded. 27 some of the content of the plaintiffs’ exhibits is admissible 28 because the same content has been offered and authenticated by the (See Def. Reply 7.) See, e.g., id. at 773-79; P. Opp’n Ex. 1-20. (See Def. Reply 7.) 7 The However, the At a minimum, Orr, 285 F.3d at 776; compare P. Opp’n Ex. 3 at 1-53 1 defendants. 2 with Def. Mot. Ex. B. 3 While “the party opposing the motion must furnish affidavits 4 or other evidence necessary to satisfy its burden of establishing 5 subject matter jurisdiction (Safe Air for Everyone, 373 F.3d at 6 1039 (citing Savage, 343 F.3d at 1039 n.2)), the burden is on the 7 defendants to articulate clear and appropriate objections to 8 evidence they seek to exclude. 9 all the evidence provided by both parties in making its ruling. The court will therefore consider 10 II. 11 U.S.C. § 791 - Disability Discrimination” 12 Plaintiff’s Retaliation Claim: “Retaliation in Violation of 29 In his second claim for relief, the plaintiff alleges that 13 after he filed his EEOC Complaint and the instant action, he 14 “attempted to procure various Veteran Benefit letters from the Reno 15 VA in order to assist in the refinancing of his house and other 16 personal matters.” 17 that veterans usually obtains these letters “as a matter of course” 18 and “on a regular basis,” but that he “was told that because he had 19 a pending lawsuit said letters would not be issued to him by the 20 Reno VA.” 21 failed to exhaust his administrative remedies with regard to this 22 claim. 23 (Id.) (First Am. Compl. 7.) The plaintiff states The defendants assert that the plaintiff has The Rehabilitation Act of 1973, 29 U.S.C. §§ 701-794(a), 24 “provide[s] . . . protection for handicapped persons subject to 25 discriminatory treatment.” Boyd v. U.S. Postal Serv., 752 F.2d 26 27 28 3 For all exhibits to which the court cites, page numbers refer to the page number of the ECF document the exhibit is contained within, rather than to any page numbers on the document(s) contained within the exhibit. 8 1 410, 412 (9th Cir. 1985). 2 Act makes the remedies, procedures, and rights of the Civil Rights 3 Act of 1964, 42 U.S.C. § 2000-e-16, available to employees alleging 4 a violation of § 791 of the Rehabilitation Act. 5 875 F.2d 1415, 1418 (9th Cir. 1989), overruled on other grounds by 6 Irwin, 498 U.S. 89. 7 claim under the Rehabilitation Act must therefore exhaust 8 administrative remedies under Title VII before filing a civil 9 action in federal court. Section 794(a)(1) of the Rehabilitation Johnston v. Horne, A federal employee asserting a discrimination Vinieratos, 939 F.2d 773 (9th Cir. 1991); 10 see also Bullock v. Berrien, 688 F.3d 613, 616 (9th Cir. 2012) 11 (citing Boyd v. U.S. Postal Serv., 752 F.2d 410, 413-14 (9th Cir. 12 1985)); Cherosky v. Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003). 13 As described in Bullock, the exhaustion process under Title 14 VII, which Rehabilitation Act plaintiffs must complete in order to 15 file suit in federal court, involves multiple steps. 16 17 18 19 20 21 To exhaust administrative remedies, the aggrieved federal employee must first attempt to resolve the matter by filing an informal complaint that triggers counseling by an EEOC Counselor. 29 C.F.R. § 1614.105(a). If an informal resolution is not achieved, the employee must then file a formal complaint for decision by an ALJ. See id. §§ 1614.105(d), 1614.106. The employee may file a civil action in federal district court within 90 days of receiving notice of final agency action on the employee's formal complaint by the ALJ, or after 180 days from the filing of the complaint if no final action has been taken by that time. 42 U.S.C. § 2000e–16(c); 29 C.F.R. § 1614.407(a)-(b). 22 Bullock v. Berrien, 688 F.3d at 616. Additionally, “federal 23 employees complaining of discrimination by a governmental agency . 24 . . ‘must initiate contact with a[n EEO] Counselor within 45 days 25 of the date of the matter alleged to be discriminatory.’” Lyons v. 26 England, 307 F.3d 1092, 1105 (9th Cir. 2002) (quoting 29 C.F.R. § 27 1514.105(a)(1)). “[F]ailure to comply with this regulation has 28 9 1 been held to be fatal to a federal employee’s discrimination 2 claim.” 3 F.3d 414, 416 (9th Cir. 1994)). Id. (citing Johnson v. United States Treasury Dep’t, 27 4 The purpose of the exhaustion requirement is to give the 5 agency appropriate notice of the claims and afford the agency the 6 opportunity to investigate the charge. 7 Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002). 8 purpose, “[a]llegations of discrimination not included in the 9 plaintiff’s administrative charge ‘may not be considered by a B.K.B. v. Maui Police In keeping with this 10 federal court unless the new claims are like or reasonably related 11 to the allegations contained in the EEOC charge.’” 12 (9th Cir. 2002) (quoting Green v. Los Angeles County Superintendent 13 of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989). 14 whether new claims are “like or reasonably related” to allegations 15 in the EEOC charge, the court may consider “‘such factors as the 16 alleged basis of the discrimination, dates of discriminatory acts 17 specified within the charge, perpetrators of discrimination named 18 in the charge, and any locations at which discrimination is alleged 19 to have occurred.’” 20 644 (9th Cir. 2003) (quoting B.K.B., 276 F.3d at 1100). 21 purposes of the exhaustion requirement, when determining whether a 22 new charge is “like or reasonably related” to the allegations 23 contained in the EEOC charge, it is appropriate to consider whether 24 or not the EEOC investigation resulting from the EEOC charge would 25 have reasonably encompassed or revealed the behavior alleged in a 26 new charge in federal court. 27 28 Id. at 1100 In determining Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, Given the See, e.g., id. at 645-46. The defendants’ motion to dismiss is a factual attack on subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). 10 See Safe 1 Air, 373 F.3d at 1039. 2 factual, the court does not presume that the plaintiff’s 3 allegations are truthful. 4 plaintiff, in response to the evidence properly brought before the 5 court by the defendants, must present evidence necessary to satisfy 6 its burden of establishing subject matter jurisdiction. 7 burden is always on the party seeking to invoke the jurisdiction of 8 the federal court to establish that jurisdiction exists. 9 Inc. V. Associated Press, 299 U.S. 269, 278 (1936); Assoc. of As discussed above, when the attack is See id. at 1039 n.2. Rather, the Id. The KVOS, 10 Medical Colleges v. United States, 217 F.3d 770, 778-79 (9 th Cir. 11 2000). 12 In the case at hand, the plaintiff therefore bears the burden 13 of showing that his retaliation claim is like or reasonably related 14 to his EEOC charge in claim 200P-0354-2011101640 (“claim 1640"),4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 The defendants submit that claim 1640 is the only EEO claim that the plaintiff exhausted prior to filing in federal court, and the court agrees. (See Def. Mot. 2-3.) Evidence in the record supports this conclusion, and plaintiffs do not dispute it. For evidence that claim 1640 was administratively exhausted prior to the plaintiff filing a timely civil action in federal court, see P. Opp’n Ex. 1 (EEO Counselor Report for claim 1640); Def. Mot. Ex. B (partial acceptance of EEO charge for claim 1640); Def. Mot. Ex. C (“Stipulation and Proposed Order Regarding Issues to Be Decided at the Hearing” for claim 1640); Def. Mot. Ex. D (decision from administrative law judge Virginia Mellema MaGee regarding claim 1640, which ultimately became EEOC No. 550-2011—578X, finding that “Complainant has not proffered sufficient evidence that he was subjected to a violation of the Rehabilitation Act” (Def. Mot. Ex. D at 22)); P. Opp’n Ex. 16 (“Transmittal of Final Decision or Order” regarding claim 1640, EEOC No. 550-2011-578x). For evidence that the plaintiff’s other EEO claims were not exhausted prior to the plaintiff filing in federal court, see Def. Mot. Ex. A (“Notice of Final Agency Decision of your EEO Complaint No. 200P-0354-2010104782"; defendants assert that the plaintiff neither appealed this decision nor filed a timely civil action to challenge it (see Def. Mot. 2), and the plaintiff has neither disputed this assertion nor offered any evidence to the contrary (see generally P. Opp’n)); Def. Mot. Ex. E (EEO Counselor Report for claim No. 200P-0354-2011103997; defendants assert that the plaintiff never submitted a formal complaint regarding this claim (see Def. Mot. 3) and the plaintiff has neither disputed this assertion nor offered any evidence to the contrary (see generally P. Opp’n)); Def. Reply, Maraian Dec. 2. 11 1 which would establish this court’s subject matter jurisdiction over 2 the claim. 3 claim 1640 that was accepted by the agency (see Def. Mot. Ex. B) 4 and fully exhausted (see Def. Mot. Ex. C, D.) was the plaintiff’s 5 claim that he “was discriminated against based on color (brown), 6 national origin (HIspanic) [sic], disability, age, and reprisal 7 when he was denied reasonable accommodation between November 4, 8 2010 and January 4, 2011” (Def. Mot. Ex. B. at 17). 9 plaintiff was notified of his right to assert that the claim The only claim arising out of the formal complaint for While the 10 accepted by the agency was “improperly formulated, incomplete, or 11 incorrect,” the plaintiff has not alleged that he did so or 12 provided any evidence indicating that he disputed the 13 appropriateness of the claim. 14 generally P. Opp’n.) 15 (See Def. Mot. Ex. B. at 3; see Despite supplying the report from the initial EEO counseling 16 regarding claim 1640 (P. Opp’n Ex. 1), the plaintiff, while bearing 17 the burden of proving exhaustion, has not supplied his actual 18 complaint regarding claim 1640. 19 that he “did raise the claim of reprisal,” has also not provided 20 any explanation regarding what behavior the phrase “reprisal” in 21 the accepted EEOC charge described. (See generally P. Opp’n.) 22 initial EEO counselor report states that claims made in a complaint 23 following a counseling that have not been brought to the attention The plaintiff, while asserting The 24 25 26 27 28 Given that claim 1640 is plaintiff Shepard’s only EEO claim that was properly exhausted prior to filing in federal court, the EEOC charge resulting from claim 1640 is the only charge the court will examine in determining whether the claims in the plaintiff’s First Amended Complaint were properly exhausted; whether claims in the First Amended Complaint are like or reasonably related to EEO claims the plaintiff clearly did not administratively exhaust is irrelevant to the inquiry. 12 1 of an EEO counselor or are not like or reasonably related to claims 2 brought before an EEO counselor are subject to dismissal. 3 Ex. 1 at 7.) 4 the court will therefore assume that the factual allegations as 5 described in the counselor report, P. Opp’n Ex. 1, accurately 6 approximate the factual allegations in the complaint, which were 7 ultimately accepted in the EEOC charge for claim 1640. (See P. Without evidence to the contrary from the plaintiff, 8 The plaintiff argues in his opposition that the claim of 9 “reprisal” was part of his initial EEOC complaint accepted by the 10 agency, and that this is enough to demonstrate exhaustion of his 11 current retaliation com. 12 is correct that the charge accepted by the EEOC contained the word 13 “reprisal” (see Def. Mot. Ex. B at 17), the facts plaintiff alleged 14 in support of the accepted charge, according to the counselor 15 report, do not actually contain any allegations of reprisal or 16 retaliation, but instead concern various VA employees’ alleged 17 failure to reasonably accommodate the plaintiff’s disability (see 18 P. Opp’n Ex. 1 at 3-4). 19 investigation based on the plaintiff’s allegations 20 his accepted charge would have reasonably revealed any retaliatory 21 conduct. 22 (See P. Opp’n 9-10.) While the plaintiff Thus it is difficult to see how an EEOC in support of Additionally, while the plaintiff did not allege any specific 23 perpetrators in the retaliation claim in his First Amended 24 Complaint, in his opposition to the defendants’ motion to dismiss, 25 he names Tracy Naves, defendant Bittler and “Jerry Oliver at the VA 26 in Washington D.C.” 27 Bittler were named in the plaintiff’s initial contact with his EEO 28 counselor regarding his accepted charge in claim 1640, but Mr. (P. Opp’n 6-7.) 13 Both Ms. Naves and defendant 1 Oliver was not named. 2 investigation would therefore have reasonably included 3 investigations into the behavior of Ms. Naves and defendant 4 Bittler, even though it would not have reasonably encompassed any 5 retaliatory conduct on their part. 6 would not reasonably have included any investigation of Mr. Oliver. 7 (See P. Opp’n Ex. 1 at 3-6.) The EEOC However, the EEOC investigation The second claim the plaintiff raised in his initial EEO 8 counseling regarding claim 1640, in which he alleged that he was 9 discriminated against when Ms. Naves gave him a verbal counseling 10 when he was seen talking on his cell phone while not on a break or 11 at lunch, could more accurately be described as a “reprisal” claim. 12 (See id. at 6.) 13 alleged by the defendant in this second claim are still completely 14 different from the plaintiff’s current retaliation claim, which 15 concerns his alleged denial of VA benefit letters. 16 Ex. 1.) 17 investigated the second claim because it was not accepted by the 18 agency, but was instead dismissed for failure to state a claim. 19 (See Def. Mot. Ex. B. at 16-17.) 20 record demonstrating that the plaintiff ever appealed the partial 21 dismissal of claim 1640, despite being notified of his right to do 22 so. However, the facts and dates of the behavior (See P. Opp’n Additionally, the EEOC would not have reasonably There is no evidence in the (See id. at 17.) 23 Importantly, the plaintiff did not assert his retaliation 24 claim regarding his alleged inability to receive VA benefit letters 25 until he filed his First Amended Complaint on July 3, 2013. 26 First Am. Compl. 7-8.) 27 incident because it had not yet happened at the time the EEOC was 28 conducting its investigation.” (See “The EEOC could not have investigated that Vasquez, 349 F.3d at 645. 14 The 1 plaintiff’s initial EEO counseling for claim 1640 took place on 2 November 4, 2010, his formal complaint was filed on February 28, 3 2011, and complaint was partially accepted by the agency on April 4 18, 2011. 5 The administrative law judge (“ALJ”) issued her decision on the 6 matter on July 18 2012. 7 therefore made his new allegation of retaliation related to being 8 denied VA benefit letters for the first time almost a year after 9 claim 1640 had been administratively exhausted. (See Def. Mot. Ex. B at 17; Def. Reply, Maraian Dec. 2.) (See Def. Mot. Ex. D at 4.) The plaintiff The agency was 10 therefore given no notice of these allegations and had no 11 opportunity to investigate. 12 The plaintiff argues that “[o]nce there is a claim of 13 reprisal, any and all actions of previous or ongoing reprisal are 14 subject to litigation in the Amended Complaint filed by the 15 Plaintiff.” 16 authority for this contention, and is not correct that the mere use 17 of the word “reprisal” in his initial EEOC charge has the effect of 18 allowing him to litigate, without further administrative 19 exhaustion, any and all retaliation claims. 20 regarding [his retaliation claim in the First Amended Complaint 21 are] not related to the facts in the EEOC charge,” and, as 22 discussed above, are also well outside of the range of the dates of 23 discriminatory acts specified within the charge. 24 F.3d at 644-45. 25 current retaliation claim were even mentioned in conjunction with 26 the EEOC Charge. 27 3-6. 28 partially dismissed, the “reprisal” claims made by the plaintiff in (P Opp'n 9-10.) However, the plaintiff cites no “[T]he operative facts See Vasquez, 349 Additionally, not all of the people accused in the Id.; compare P. Opp’n 6-7 with P. Opp’n Ex. 1 at Even had claim 1640 been accepted in its entirety instead of 15 1 his EEOC charge are not like or reasonably related to the 2 retaliation claim he now makes in federal court. 3 F.3d at 644; B.K.B., 276 F.3d at 1100. 4 5 6 7 8 9 See Vasquez, 349 Unlike hostile environment claims, which “by their very nature involve repeated conduct, [d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice. Nat’l Passenger Corp v. Morgan, 536 U.S. 101, 114 (2002). The 10 denial of VA benefit letters alleged by the plaintiff in his First 11 Amended Complaint, which is not like or reasonably related to the 12 facts alleged in his EEOC charge, is a discrete act of retaliation, 13 and as such must be separately and independently administratively 14 exhausted. 15 steps discussed above (see supra discussion at 9) to exhaust his 16 retaliation claim regarding his alleged denial of access to VA 17 benefit letters before this court can exercise subject matter 18 jurisdiction over the claim. 19 Id. Plaintiff Shepard must therefore follow all of the There is no evidence in the record that the plaintiff spoke 20 with an EEO Counselor within 45 days of the alleged denial of 21 benefit letters or that he followed any of the other steps required 22 to administratively exhaust this claim. 23 688 F.3d at 616; Lyons, 307 F.3d at 1105. 24 have submitted evidence showing that the plaintiff never initiated 25 any type of administrative claim 26 27 28 See Bullock v. Berrien, The defendants, however, that the VA failed to provide him with Veteran compensation letters, money letters, percentage letters, statement-ofservice letters, medically retired letters, or any type of veteran documentation that Mr. Shepard asked for and did not receive from the VA. 16 1 (Def. Reply, Maraian Dec. 2.) 2 he separately exhausted his retaliation claim regarding the denial 3 of VA benefit letters, but instead only argues that he does not 4 have to do so. 5 The plaintiff does not allege that (See P. Opp’n 9-10.) The court finds that plaintiff Shepard has failed to properly 6 administratively exhaust the claim for retaliation regarding his 7 alleged denial of VA benefit letters made in his First Amended 8 Complaint, and has therefore failed to establish that this court 9 has subject matter jurisdiction over the claim. See B.K.B., 276 10 F.3d at 1099. 11 to dismiss with regard to the plaintiff’s second claim for relief. 12 II. 13 791 - Disability Discrimination 14 Accordingly, the court grants the defendants’ motion Plaintiff’s Discrimination Claim: “Violation of 29 U.S.C. § The defendants have argued in their motion to dismiss that 15 various grounds for the first claim in the plaintiff’s First 16 Amended Complaint, for disability discrimination, should be 17 dismissed for lack of proper exhaustion. 18 that defendants Bittler and Russell should be dismissed as 19 defendants with regard to this claim, because defendant Shinseki is 20 the only proper defendant. 21 a. The defendants also argue Proper Grounds 22 The defendants argue that the only proper ground for the 23 plaintiff’s disability discrimination claim is the claim that the 24 plaintiff was denied a reasonable accommodation between November 4, 25 2010 and July 18, 2012, because this is the only claim that was 26 appropriately administratively exhausted. 27 defendants argue that the plaintiff’s claims that 28 17 (Def. Mot. 5.) The 1 2 3 the VA harassed and humiliated him based on his disabilities; the VA wrongfully eliminated Plaintiff’s job with the Public Contact Office in violation of VA policies and directives; Defendant Russell gave Plaintiff a bad reference; and Plaintiff was forced to quit his job 4 should all be dismissed from this lawsuit due to lack of 5 administrative exhaustion. 6 (Id.) In support of this argument, the defendants note that as part 7 of administrative claim 1640, the plaintiff entered into a 8 stipulation, which was then signed into an order by the ALJ, 9 agreeing that the issues to be determined by ALJ would “include” 10 whether the plaintiff was denied a reasonable accommodation between 11 November 4, 2010 and the date of her decision. 12 Def. Mot. Ex. C at 4.) 13 hearing on July 18, 2012. 14 decision, the ALJ described the “Issue” before her as: 15 16 17 18 (See Def. Mot. 5; The ALJ then issued her decision without a (Id.; Def. Mot. Ex. D.) In her Construing all the evidence in his favor, has Timothy Shepard proven, by a preponderance of the evidence, that he was subjected to discrimination based on his disability (dyslexia, major depressive disorder, bilateral shoulder condition, C3C7, bilateral ankle condition, hypertension) when he was denied a reasonable accommodate from November 4, 2010 to the present? 19 (Def. Mot. Ex. D at 7.) 20 following the above paragraph, which reads: 21 22 23 24 The decision has a footnote immediately The accepted issued also included the discrimination bases of color (brown), national origin (Hispanic), age (over 40) and reprisal (prior EEO activity). However, Complainant’s 109(g) opposition indicates that he has abandoned his color, national origin, and age discrimination claims. Furthermore, his reprisal claim appears to be restricted to an untimely allegation that he was given a bad recommendation for a job transfer in approximately June 2010. 25 (Id. at 7 n.1.) While the stipulation signed by the parties did 26 not specify that the reasonable accommodation issue was the only 27 issue to be decided, the ALJ’s decision indicates that the 28 18 1 plaintiff voluntarily abandoned all of his claims other than the 2 reasonable accommodation claim and his claim for “reprisal” related 3 to a bad recommendation prior to her decision. 4 Ex. C at 4.) 5 (Id.; Def. Mot. 5 The court will separately address each of the grounds for the 6 plaintiff’s disability discrimination claim that the defendant 7 argues have not been exhausted. 8 i. Harassment and Humiliation Based Upon Disabilities 9 The court agrees with the defendants that the plaintiff’s 10 claim that he was harassed and humiliated by the VA based upon his 11 disabilities (see First Am. Compl. 3-4) has not been fully 12 exhausted. 13 allegations of harassment in the EEOC charge for claim 1640. 14 generally P. Opp’n; P. Opp’n Ex. 1; First Am. Compl.) 15 have presented evidence that the plaintiff did initiate an 16 administrative claim, claim 200P-0354-2010104782, related to 17 harassment based on disability. 18 defendants assert, and the plaintiff does not dispute, that the 19 plaintiff neither appealed the agency’s final decision on the claim 20 nor filed a timely civil action to challenge the decision, as would 21 have been required to exhaust the claim. 22 Opp’n; Bullock v. Berrien, 688 F.3d at 616. 23 harassment encompasses an entirely separate set of facts, and, 24 indeed, an entirely separate legal theory from the lack of 25 reasonable accommodation claim made in claim 1640, so the 26 plaintiff’s harassment claim is not like or reasonably related to 27 his EEOC charge for claim 1640. See Vasquez, 349 F.3d at 644-45 28 (citing Ong v. Cleland, 642 F.2d 316, 319 (9th Cir.1981)). The plaintiff has provided no evidence that he made (Def. Mot. Ex. A.) 19 (See Defendants However, the See Def. Mot. 2; P. Additionally, 1 The court therefore finds that it lacks subject matter 2 jurisdiction over the plaintiff’s claim that he suffered harassment 3 and humiliation based on his disability in violation of the 4 rehabilitation act, and the court grants the defendant’s motion to 5 dismiss with regard to this aspect of the plaintiff’s disability 6 discrimination claim. 7 ii. Wrongful Elimination of the Plaintiff’s job with the Public Contact Office in violation of VA policies and directives 8 The court construes the plaintiff’s claims that his position 9 on the VSR Public Contact team was wrongfully eliminated in 10 violation of VA policies and directives as part of the plaintiff’s 11 argument as to why the VA failed to reasonably accommodate his 12 disabilities when it refused to return him to his position on that 13 team. (See P. Opp’n 3-6, 11.) As such, the alleged wrongful 14 elimination of the plaintiff’s position from the VSR Public Contact 15 team is not a separate claim under the Rehabilitation Act that must 16 be administratively exhausted, but rather is part of the 17 plaintiff’s argument as to why his rights under the rehabilitation 18 act were violated by the VA. 19 Given that the plaintiff’s allegation that his position was 20 wrongfully eliminated by the VA is not actually a claim under the 21 Rehabilitation Act, Title VII’s administrative exhaustion 22 requirement does not apply. Accordingly, the court denies the 23 defendants’ motion to dismiss with regard to the plaintiff’s 24 argument that his position was wrongfully eliminated. 25 iii. Bad Reference From Defendant Russell 26 27 28 20 1 With regard to the plaintiff’s claim that he received a bad 2 reference from defendant Russell (see First Am. Compl. 5; P. Opp’n 3 3), the ALJ noted 4 Complainant raised (apparently for the first time) a claim of reprisal in his 109(g) opposition, alleging that Regional Office Director Edward Russell retaliated against him in approximately June 2010 when he gave Complainant a bad reference. However, there is no indication that this claim was ever brought to an EEO counselor, was ever accepted as an issue by the agency, or was ever subject of a motion to amend. While Complainant’s reasonable accommodation claim can be construed as a recurring violation for timeliness purposes . . . the same cannot be said of Complainant’s retaliatory reference allegation. Complainant failed to raise this claim before an EEO Counselor within forty-five days or to file a timely motion to amend; therefore I find the reprisal claim untimely.” 5 6 7 8 9 10 11 (Def. Mot. Ex. D at 9) 12 As discussed above, retaliatory acts are discrete acts that 13 must be separately exhausted or be like or reasonably related to 14 claims in the actual EEOC charge in order for this court to have 15 subject matter jurisdiction. See Nat’l Passenger Corp v. Morgan, 16 536 U.S. at 114; Vasquez, 349 F.3d at 644-45; B.K.B., 276 F.3d at 17 1100. While the ALJ’s decision is not dispositive to this court’s 18 decision,5 the court agrees with the ALJ that the plaintiff’s 19 allegations regarding the bad reference from defendant Russell have 20 not been properly administratively exhausted. 21 While the defendant has submitted deposition testimony from 22 his interview with an EEO investigator regarding claim 1640 in 23 which he tells the investigator about the alleged bad reference, 24 this interview took place on July 14, 2011, more than eight months 25 26 27 28 5 The district court may reverse the decision of an ALJ, but only if it deems the decision “arbitrary, capricious, contrary to law, or not supported by substantial evidence.” Lewis v. United States, 641 F.3d 1176 (9th Cir. 2011) (citing 5 U.S.C. § 7703(c)). 21 1 after the plaintiff’s initial EEO counseling, and more than four 2 months after the plaintiff filed his formal complaint regarding 3 claim 1640. (See P. Opp’n Ex. 5 at 3.) 4 no evidence that, as part of claim 1640, he brought this factual 5 allegation to an EEO Counselor within 45 days of the alleged 6 incident, and no evidence that he followed any of the other 7 numerous steps required for administrative exhaustion of this 8 allegation. 9 Bullock, 688 F.3d at 616; Lyons, 307 F.3d at 1105. 10 The plaintiff has presented See generally P. Opp’n; First Am. Compl.; see also The defendants have provided evidence that the plaintiff did 11 discuss the alleged bad reference from defendant Russell with an 12 EEO counselor on July 8, 2011, initiating EEO claim 200P-0354- 13 2011103997. 14 place more than a year after the plaintiff alleges defendant 15 Russell gave him a bad reference. 16 (stating that defendant Russell gave the plaintiff a bad 17 recommendation when he applied for a position at the Reno VA 18 Hospital in June 2010).) 19 the plaintiffs do not dispute, that the plaintiff never filed a 20 complaint raising the issue with the agency after the counseling as 21 is required for exhaustion. 22 Opp’n.) 23 (See Def. Mot. Ex. E.) However, this counseling took (See First Am. Compl. at 5 Additionally, the defendants assert, and (See De. Mot. 3; see generally P. Furthermore, like the plaintiff’s retaliation claim regarding 24 the denial of VA benefit letters, which the court has dismissed for 25 lack of exhaustion, the claim that defendant Russell gave the 26 plaintiff a bad recommendation is not like or reasonably related to 27 the EEOC charge. 28 contained the word “reprisal,” but the factual allegations As discussed above, the claim in the EEOC charge 22 1 concerned only lack of reasonable accommodation. 2 supra at 13.) 3 (See discussion Moreover, while plaintiff Russell was named in the initial EEO 4 counseling, the plaintiff alleged only that defendant Russell and 5 others “were informed that Mr. Shepard would need training as an 6 accommodation . . . There was no response from management regarding 7 this request,“ and that defendant Russell and others “provided a 8 list of training classes that Mr. Shepard would receive,” but that 9 the training was ultimately “insufficient for Mr. Shepard who had 10 no idea what they were talking about.” 11 The factual allegations from the EEO counseling therefore do not 12 share the same operative facts as the allegation about the bad 13 reference. 14 factual allegations concerning defendant Russell are also after the 15 bad recommendation allegedly occurred. 16 The EEOC investigation of claim 1640 would thus not have reasonably 17 encompassed or revealed that the facts related to this allegation. 18 See Vasquez, 349 F.3d at 644-46. 19 (See P. Opp’n Ex. 1 at 4.) Vasquez, 349 F.3d at 645. The dates of both of the (See P. Opp’n Ex. 1 at 4) For all these reasons, the court finds that the plaintiff’s 20 claim that defendant Russell gave him a bad reference is not like 21 or reasonably related to the facts in the EEOC charge. 22 644-45; B.K.B., 276 F.3d at 1100. 23 met his burden of showing that the court has subject matter 24 jurisdiction over this claim (see B.K.B., 276 F.3d at 1099; Safe 25 Air, 373 F.3d at 1039), and the defendants’ motion to dismiss under 26 Fed.R.Civ.P. 12(b)(1) is granted with regard to the plaintiff’s 27 claim that defendant Russell gave him a bad reference. 28 iv. The plaintiff has therefore not The Plaintiff Was Forced to Quit His Job 23 See id. at 1 In her decision regarding claim 1640, the ALJ noted that the 2 plaintiff resigned from the agency on December 20, 2011. 3 Mot. Ex. D at 8.) 4 5 6 7 8 9 10 (See Def. She further stated, To the extent that Complainant is contending that the Agency’s failure to provide him reasonable accommodation forced him to resign . . . this allegation should have been brought before the Merit Systems Protection Board (MSPB). See 29 C.F.R. § 1614.302. However, as this complaint is inextricably intertwined with the EEO process, it is appropriate for me to retain jurisdiction. See Blount v. Dep’t of Homeland Security, EEOC Appeal No. 0720070010, 2009 WL 3700690 (October 21, 2009) (finding that the administrative judge ‘correctly determined that the constructive discharge claim is inextricably intertwined in the EEO process, and that it was appropriate for the AJ to retain jurisdiction over [that] matter rather than remanding it to the MPSB’).” 11 Id. at 8-9. 12 plaintiff’s claim that he was forced to quit his job because of the 13 VA’s failure to reasonably accommodate his disabilities. 14 Thus, the ALJ actually retained jurisdiction over the Id. Under 42 U.S.C. § 2000(e)-16(c), an employee may file a civil 15 action in federal court within 90 days of receiving notice of final 16 agency action on the employee’s formal complaint by an ALJ. 17 U.S.C. § 2000(e)-16(c); Bullock, 688 F.3d at 2012. 18 ALJ’s decision regarding claim 1640 did include consideration of 19 whether a lack of reasonable accommodation forced the plaintiff to 20 resign, the plaintiff has the right under 42 U.S.C. § 2000(e)-16(c) 21 to challenge the ALJ’s ruling on that issue in federal court. 22 The court therefore has subject matter jurisdiction over this 23 claim. 24 42 Given that the Id. However, to the extent that the plaintiff claims that he was 25 “forced” to quit for other reasons, such as because of the 26 defendants’ “pattern and practice of harassment and humiliation” 27 (P. Opp’n 3-4), the plaintiff’s claims have not been exhausted and 28 are not like or reasonably related to the claims in his EEOC charge 24 1 for claim 1640. 2 20), the plaintiff’s claim that he suffered harassment and 3 humiliation based on his disability was not properly exhausted; 4 thus the claim that he suffered such severe harassment and 5 humiliation that he was forced to quit his job has similarly also 6 not been exhausted, and the court does not have subject matter 7 jurisdiction over that claim. 8 9 As discussed above (see supra discussion at 19- Accordingly, the court denies the defendants’ motion to dismiss with regard to the plaintiff’s claim that he was forced to 10 quit his job due to the lack of reasonable accommodation of his 11 disabilities. 12 dismiss with regard to the plaintiff’s claims that he was forced to 13 quit his job for other reasons, such as harassment or humiliation 14 based on his disability. 15 b. However, the court grants the defendants’ motion to Proper Defendants 16 The defendants argue that defendants Russell and Bittler 17 should be dismissed as defendants from the plaintiff’s disability 18 discrimination claim because the only proper defendant in such an 19 action is the head of the agency involved. 20 head of the agency is defendant and VA Secretary Shinseki. 21 Defendants Rusell and Bittler are other employees at the VA. 22 In his opposition, the plaintiff has not disputed the defendants’ 23 contention that defendants Russell and Bittler are improper 24 defendants in this action. 25 (Def. Mot. 4.) The (Id.) (Id.) (See generally P. Opp’n.) The defendants are correct that under federal statute and 26 Ninth Circuit case law, the only proper defendant in a disability 27 discrimination suit under the Rehabilitation Act is the head of the 28 relevant department. See 42 U.S.C. § 200e-16(c); Johnston, 875 25 1 F.2d at 1418-20; Wilkins v. Daley, 49 F. Supp. 2d 1, 1 (D.D.C. 2 1999) (dismissing all defendants except the secretary of the 3 Department of Commerce, because the only proper defendant under 42 4 U.S.C. § 200e-16(c) is the head of the department). 5 not have jurisdiction over Rehabilitation Act claims brought 6 against defendants who are not the head of the relevant department. 7 See Johnston, 875 F.2d at 419. 8 defendants Russell and Bittler from remaining claims in this 9 lawsuit. 10 11 The court does The court therefore dismisses CONCLUSION In accordance with the foregoing, the defendants’ motion to 12 dismiss (#53) is hereby GRANTED IN PART AND DENIED IN PART as 13 follows: 14 (1) Dismissal is GRANTED to the defendants with regard to the 15 plaintiff’s second claim for relief, that the he suffered unlawful 16 retaliation when he was denied VA benefit letters; 17 (2) Dismissal is GRANTED to the defendants with regard to the 18 plaintiff’s claims, as part of his first claim for relief, that he 19 was harassed and humiliated based on his disabilities; 20 (3) Dismissal is DENIED to the defendants with regard to the 21 plaintiff’s arguments, as part of his first claim for relief, that 22 his position on the VSR Public Contact team was wrongfully 23 eliminated; 24 (3) Dismissal is DENIED to the defendants with regard to the 25 plaintiff’s claim, as part of his first claim for relief, that the 26 VA’s lack of reasonable accommodation of his disabilities forced 27 him to resign; 28 26 1 (4) Dismissal is GRANTED to the defendants with regard to the 2 plaintiff’s claim, as part of his first claim for relief, that 3 harassment and humiliation based on his disabilities, or any other 4 reason other than a lack of reasonable accommodation of his 5 disabilities, forced him to resign; 6 (5) Dismissal is GRANTED to the defendants in that defendants 7 Russell and Bittler are dismissed from all remaining claims in this 8 lawsuit. 9 10 IT IS SO ORDERED. DATED: This 19th day of February, 2014. 11 12 ____________________________ UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27