Bennett v Gonzales, et al

Filing 28

Order on Motion to Dismiss

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1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF ALASKA 6 7 8 DONALD E. BENNETT, 9 Plaintiff, 10 11 12 Case No. C07-00014RJB v. MICHAEL B. MUKASEY, U.S. Attorney General, et al., ORDER ON DEFENDANTS’ MOTION TO DISMISS Defendants. 13 14 15 This matter comes before the court on defendants’ Motion to Dismiss. Dkt. 19. The court has 16 17 considered the pleadings filed in support of and in opposition to the motions, oral argument via conference 18 call on March 24, 2008, and the file herein. PROCEDURAL HISTORY 19 The complaint in this matter alleges that the plaintiff was a Deputy U.S. Marshal, employed by the 20 21 United States Marshals Service (USMS) in Fairbanks, Alaska, from May 1987 until January 15, 2007. 22 Dkt. 13. The plaintiff alleges that in January 2005, while undergoing an annual medical examination, he 23 failed a blood glucose test. Dkt. 13 at 5. In April 2005, the USMS ordered him to cease work as an active 24 deputy and to turn in his vehicle and weapons. Dkt. 13 at 6. The plaintiff alleges that then Chief Deputy 25 U.S. Marshal Wanda Phillips offered him a “light duty” position. However, because there were no light 26 duty positions in the USMS office in Fairbanks, Alaska, he used annual and sick leave from April 2005 27 until March 2006 to respond to the USMS’ concerns about his medical condition. Dkt. 13 at 6-10. In 28 March 2006, the plaintiff was medically cleared to return to full duty status. Dkt. 13 at 10. ORDER Page - 1 1 The plaintiff filed a six-count complaint on June 22, 2007, naming as defendants the USMS, the 2 USMS Medical Department, U.S. Marshal Randy Johnson, Chief Deputy (retired) U.S. Marshal Wanda 3 Phillips, and (current) Chief Deputy U.S. Marshal Marc Otte. Dkt. 1. The plaintiff alleges that the USMS 4 management officials named as defendants discriminated against him based on disability (diabetes). Dkt. 5 13 at 13. The plaintiff alleges that due to the actions of the USMS, he was forced to use his accumulated 6 sick and annual leave between April 2005 and March 2006. Dkt. 13 at 14. 7 On November 28, 2007, defendants filed a motion to dismiss the plaintiff’s original complaint (Dkt. 8 1) under Fed.R.Civ.P. 12(b)(1) and (6). Dkt. 6. The plaintiff opposed the motion (dkt. 12) and filed an 9 amended complaint on January 21, 2008. Dkt. 13. On February 19, 2008, the court struck the defendants’ 10 motion to dismiss as moot. Dkt. 20. In the plaintiff’s amended complaint, Dkt. 13, Count I alleges that 11 the plaintiff was “wrongfully removed from active duty [due] to a perceived disability or record of 12 disability,” resulting in discrimination under §501 of the Rehabilitation Act, 29 U.S.C. §791. Dkt. 13 at 13 12. Count II alleges a Concert of Action by the defendants resulting in discrimination against the plaintiff. 14 Dkt. 13 at 13. Count III alleges that the plaintiff was forced to use accrued sick and annual leave while 15 defendants improperly delayed making a determination as to the plaintiff’s medical status, resulting in 16 damages pursuant to the Back Pay Act, 28 U.S.C. §5596. Dkt. 13 at 15. 17 MOTION TO DISMISS The defendants filed a Motion to Dismiss Amended Complaint on February 13, 2008. Dkt. 19. 18 19 First, the defendants contend that U.S. Attorney General Michael Mukasey is the sole proper defendant in 20 this action. Dkt. 19 at 5. Defendants state that the amended complaint improperly names the USMS, the 21 USMS Medical Department, U.S. Marshal Johnson, former Chief Deputy U.S. Marshall Phillips, and 22 current Chief Deputy Otte as defendants, and that they should be dismissed. Dkt. 19 at 10. Second, the defendants argue that the plaintiff’s Count I Rehabilitation Act claim must be dismissed 23 24 because he did not exhaust administrative remedies. Dkt. 19 at 10. Specifically, the defendants contend 25 that he failed to bring his claim to the attention of the Equal Employment Opportunity Commission (EEO) 26 in a timely fashion. In addition, defendants contend, the plaintiff alleges two new allegations of 27 discrimination that were never asserted in the plaintiff’s EEO complaint. Dkt. 19 at 10. 28 ORDER Page - 2 1 Third, the defendants allege that the plaintiff may not bring his Count II Concert of Action claim 2 before this court. Dkt. 19 at 10. The defendants say this is because the Rehabilitation Act provides the 3 exclusive remedy for federal employee disability-based employment discrimination claims against the 4 federal government. 5 6 Finally, the defendants contend that the plaintiff’s Count III Back Pay Act claims fail because the Back Pay Act does not provide an independent cause of action. Dkt. 19 at 11. 7 8 The plaintiff filed a Response in Opposition to the motion on March 4, 2008. Dkt. 23. The defendants filed a Reply on March 10, 2008. Dkt. 24. 9 STANDARD FOR MOTION TO DISMISS 10 When a motion is made pursuant to Fed.R.Civ.P. 12 (b)(1), plaintiff has the burden of proving that 11 the court has subject matter jurisdiction. Tosco Corp. v. Communities for a Better Environment, 236 F.3d 12 495, 499(9th Cir. (2001). Plaintiff must demonstrate the existence of whatever is essential to federal 13 jurisdiction, and, if plaintiff does not do so, the court, on having the defect called to its attention or on 14 discovering the defect, must dismiss the case, unless the defect can be cured by amendment. Smith v. 15 McCullough, 270 U.S. 456, 459 (1926). When considering a motion to dismiss pursuant to Rule 12(b)(1), 16 the court is not restricted to the face of the pleadings, but may review any evidence to resolve factual 17 disputes concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 18 1988), cert. denied, 489 U.S. 1052 (1989); Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th 19 Cir. 1983). Fed. R. Civ. P. 12(b) motions to dismiss may be based on either the lack of a cognizable legal 20 21 theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica 22 Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the 23 complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). “While 24 a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a 25 plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and 26 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic 27 Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007)(internal citations omitted). “Factual allegations must 28 be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in ORDER Page - 3 1 the complaint are true (even if doubtful in fact).” Id. at 1965. Plaintiffs must allege “enough facts to state 2 a claim to relief that is plausible on its face.” Id. at 1974. 3 DISCUSSION 4 1. Count I Claim under the Rehabilitation Act (RA), 29 U.S.C. §791 5 Coverage for disability discrimination in Federal employment is provided under Section 501 of the 6 Rehabilitation Act of 1973 (RA), as amended, 29 U.S.C. § 791. Boyd v. United States Postal Service, 752 7 F.2d 410, 413-14 (9th Cir. 1985). The plaintiff has alleged a claim under the RA for discrimination on the 8 basis of disability. The defendant contends that he has not exhausted his administrative remedies. Dkt. 19 9 at 10. 10 The procedures governing Title VII discrimination cases are applicable to disability discrimination 11 cases brought pursuant to the RA. 29 U.S.C. § 794a(a)(1). Pursuant to Title VII, the Equal Employment 12 Opportunity Commission (EEOC) promulgated regulations to establish procedures for the administrative 13 implementation of its provisions. See 42 U.S.C. § 2000e-16(b); 29 C.F.R. §1614. As a result, the 14 requirement of exhaustion of administrative remedies applicable to Federal employees under Title VII was 15 imported into Federal employee disability discrimination claims brought under the Rehabilitation Act. 16 Boyd v. United States Postal Service, 752 F.2d 410, 412 (9th Cir. 1985). To establish federal subject matter jurisdiction, a plaintiff is required to exhaust his or her 17 18 administrative remedies before seeking adjudication of a Title VII claim. B.K.B. v. Maui Police Dep't, 276 19 F.3d 1091, 1099 (9th Cir. 2002). A plaintiff must exhaust administrative remedies by filing a timely charge 20 with the EEOC, or the appropriate state agency, thereby affording the agency an opportunity to investigate 21 the charge. 42 U.S.C. § 2000e-5(b); see also B.K.B., 276 F.3d at 1099. In order to exhaust administrative 22 remedies related to an RA claim, a plaintiff is required to contact an EEO counselor within 45 days of an 23 allegedly discriminatory act. 29 C.F.R. § 1614.105(a)(1); Johnson v. United States Treasury Department, 24 27 F.3d 415, 416 (9th Cir. 1994). 25 Under 29 C.F.R. §105(a)(2), “[t]he agency or the Commission shall extend the 45-day time limit in 26 paragraph (a)(1) of this section when the individual shows that he or she was not notified of the time limits 27 and was not otherwise aware of them, that he or she did not know and reasonably should not have known 28 that the discriminatory matter or personnel action occurred, that despite due diligence he or she was ORDER Page - 4 1 prevented by circumstances beyond his or her control from contacting the counselor within the time limits, 2 or for other reasons considered sufficient by the agency or the Commission.” 29 C.F.R. §105(a)(2). The 45-day time limit in which to contact an EEO counselor begins to run on the date that the 3 4 employee knew or reasonably should have known that the discriminatory matter or personnel action 5 occurred. 29 C.F.R. § 1614.105(a)(2). Discriminatory acts are not actionable unless an employee initiates 6 the EEO complaint process within the applicable regulatory time limits. National Railroad Passenger 7 Corp. v. Morgan, 536 U.S. 101 (2002). A discrete discriminatory act occurs on the day it happened. Id. 8 at 109. See also Ledbetter v. Goodyear Tire and Rubber, 1127 S.Ct. 2162 (2007)(time period for filing 9 EEOC charge begins when discrete act occurs; discrete act [pay-setting] is one that occurs at a particular 10 point in time). Failure to make timely contact with an EEO counselor bars a claim, absent waiver, estoppel 11 or equitable tolling. Boyd v. United States Postal Service, 752 F.2d at 414. The record in this case shows that any alleged discriminatory act likely first occurred in April 2005, 12 13 when the plaintiff’s physician advised the USMS via letter that the plaintiff had been placed on insulin and 14 had “excellent control of his blood sugars” without documented hypoglycemia. Dkt. 13 at 7. The 15 defendants allegedly did not allow the plaintiff to return to work, and instead required the plaintiff to keep 16 a three-month continuous blood sugar log beginning in April 2005. Dkt. 13 at 7. In fact, the plaintiff 17 received four separate requests from USMS for three-month blood sugar logs between the time he was 18 ordered to cease work and when he was allowed to return to active duty. The requests occurred in April 19 2005, August 2005, December 2005, and March 2006. Dkt. 13 at 6-10. 20 However, giving the plaintiff the benefit of the doubt and heavily construing all facts in the 21 plaintiff’s favor, the real precipitating event was when the plaintiff received defendants’ letter dated August 22 5, 2005, that communicated the defendants’ refusal to allow the plaintiff to return to active duty (Dkt. 13, 23 Exhibit 6), even though the plaintiff’s physician approved the plaintiff for full duty status on July 19, 2005 24 (dkt. 13 at 7; see also Exhibit 5) (In fact, the plaintiff submitted to monthly evaluations by his physician, 25 Dr. Gianni, and each month, Dr. Gianni stated that the plaintiff had “an excellent prognosis with no 26 physical restrictions.” Dkt. 12, Exhibit 1). In addition, the USMS allegedly continued to refuse the 27 plaintiff’s return to work when “at all times” he was capable of “performing all aspects of the work” and 28 therefore, according to the complaint, the plaintiff had to use his sick and annual leave in order to be ORDER Page - 5 1 compensated during this time. Dkt. 13 at 11. By the time the plaintiff received the defendants’ August 5th, 2 2005 letter, the plaintiff should have reasonably known of his claim and made contact with an EEO 3 counselor within 45 days, which means that the plaintiff’s claim became untimely sometime in September 4 2005. See 29 C.F.R. § 1614.105(a)(2). However, the plaintiff did not initiate the administrative EEO 5 complaint process against USMS until April 11, 2006 (Dkt. 6-2 at 8), about 8 months after the plaintiff 6 received the defendants’ letter. Dkt. 13 at 7. The plaintiff filed a formal EEO complaint against USMS on 7 July 27, 2006 (Dkt. 13 at 10). 8 9 The plaintiff was required to file an EEOC claim within 45 days of USMS’s alleged refusal to allow him to return to work after the plaintiff regained control of his blood sugars. Dkt. 13 at 7. At the latest, 10 the plaintiff should have filed his EEOC claim by September 2, 2005 (45 days following receipt of the 11 defendants’ August 5, 2005 letter). Dkt. 13 at 7; see also Dkt. 13, Exhibit 6. Therefore, the plaintiff’s 12 EEOC claim, initiated on April 11, 2006, was not timely. See Dkt. 6-2 at 8. 13 Assuming the plaintiff’s argument that his contact with an EEO counselor on April 11, 2006 was 14 timely, the record shows that there was no discriminatory action within the preceding 45 days. See Dkt. 13 15 at 10. Because a discrete discriminatory act occurs on the day it happened (National Railroad Passenger 16 Corp. v. Morgan, 536 U.S. at 109), the time period for filing EEOC an charge begins when the discrete act 17 occurs (Ledbetter v. Goodyear Tire and Rubber, 1127 S. Ct. 2162). Therefore, any alleged discriminatory 18 action that occurred prior to February 26, 2006 (45 days prior to the plaintiff’s contact with an EEO 19 counselor on April 11, 2006), was not timely brought to the attention of the EEOC and may not be added 20 onto alleged discriminatory actions that occurred within the 45-day period. See National Railroad 21 Passenger Corp. v. Morgan, 536 U.S. 101 (2002). 22 The plaintiff alleges that one act of discrimination occurred during the 45 days prior to his initiating 23 contact with an EEO counselor: that “accompanying the medical clearance letter [Dkt. 13, Exhibit 16] was 24 a Medical Review Form that notified Plaintiff would soon be required to prepare another three-month 25 glucose log.” Dkt. 13 at 10. This letter from USMS, dated March 23, 2006, reinstated the plaintiff “to 26 perform the full range of duties” of his position. Dkt. 13, Exhibit 16 at 2. Any accompanying request that 27 the plaintiff prepare a glucose log does not constitute discrimination. 28 ORDER Page - 6 1 The ADA defines discrimination in 42 § U.S.C. 12112(a). The definition specifically excepts out 2 “inquiries into the ability of an employee to perform job-related functions.” 42 § U.S.C. 12112(d)(4)(B). 3 Any requests for further studies regarding plaintiff’s diabetic status clearly relate to his ability to perform 4 job-related functions. U.S. Marshals “are required to be in superior physical condition due to strenuous 5 duties,” and must be prepared for situations “involving aggressive law enforcement.” See Dkt. 12, Exhibit 6 2. Physical requirements are designed to prevent U.S. Marshals from becoming “a hazard to themselves or 7 others”(id.). Similarly, the plaintiff’s allegation that “the blood sugar standard had been lowered 8 substantially in 2004" and that the plaintiff was not notified of the change does not amount to 9 discrimination. Dkt. 13 at 12. The plaintiff has not alleged a discriminatory act occurring within the 45 10 days prior to his contact with an EEO counselor on April 11, 2007. 11 Accordingly, the plaintiff’s claim is barred unless the plaintiff can show (1) that he was not notified 12 of the time limits and was not otherwise aware of them; (2) that he did not know and reasonably should not 13 have known that the discriminatory matter occurred; or (3) that despite due diligence he was prevented 14 from contacting the counselor. 29 C.F.R. §105(a)(2). 15 First, the record shows that the plaintiff was aware of the EEO complaint process and deadlines. 16 The defendants allege that the plaintiff should have been aware of the time limits for filing an EEO 17 complaint, because posters describing the complaint process were displayed in USMS offices. Dkt. 6 at 18 12. The plaintiff states that “there were posters and pamphlets provided in the Fairbanks office of the 19 [USMS] regarding the EEO complaint procedure.” Dkt. 12, Exhibit 1 at 4-5. Second, the record shows 20 that the plaintiff should have reasonably known that a discriminatory action had occurred on or about 21 August 5, 2005, at the latest. See discussion, supra at p. 5; see also Dkt. 13 at 7. Third, although the 22 plaintiff asserts that the defendants are equitably estopped from arguing that the plaintiff’s claims are time- 23 barred due to the deceptive actions on the part of the defendants (Dkt. 12 at 4), the record does not show 24 any such deception. The decision of the Marshall’s office that denied his requests to return to work were 25 given to him in writing (Dkt. 13 at 7-10; See also Dkt. 13, Exhibits 4-16). Therefore, even construing the 26 allegations in the light most favorable to the plaintiff, the court finds nothing in the record indicating that an 27 extension of the 45-day limit for filing an EEO complaint would be appropriate. 28 ORDER Page - 7 1 2 The claims in Count I should be dismissed with prejudice on the basis that the court lacks subject matter jurisdiction. 3 2. Count II Claim for Concert of Action 4 In Count II of the complaint, the plaintiff alleges that the defendants “acted in concert in 5 discriminating against” him. Dkt. 13 at 13. The defendants assert that §501 of the Rehabilitation Act, 29 6 U.S.C. 791, is the “exclusive means of redressing disability discrimination in federal employment.” Dkt. 19 7 at 24. The defendants ask the court to dismiss this claim because it “adds nothing new to the lawsuit and 8 should be subsumed into Mr. Bennett’s Rehabilitation Act claim.” Dkt. 19 at 25. 9 Concert of Action is a tort principle where an actor is liable for harm resulting to a third person 10 from the tortious conduct of another “if he ... knows that the other's conduct constitutes a breach of duty 11 and gives substantial assistance or encouragement to the other....” Restatement (Second) of Torts §876(b) 12 (1977). The RA provides the exclusive means of redressing disability discrimination in federal 13 employment. Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir. 1985). The RA does not 14 provide a separate remedy for acting in concert to violate the RA. See 29 U.S.C. § 791. Therefore, for 15 these reasons and the reasons already listed in the discussion of Count I above (see supra at p. 4-6), the 16 court should dismiss the plaintiff’s Count II Concert of Action claim. 17 3. Count III Claim under the Back Pay Act, 5 U.S.C. § 5596 18 In the complaint, the plaintiff asserts an intent to pursue claims under the Back Pay Act, 5 U.S.C. § 19 5596. Dkt. 13 at 3. The plaintiff alleges that he is entitled to damages for the loss of approximately nine 20 months of sick and annual leave and reasonable attorney fees. Id. The defendants assert that the Back Pay 21 Act is “a statutory mechanism that operates at the relief stage but does not provide an independent basis for 22 subject matter jurisdiction.” Dkt. 19 at 25. 23 Pursuant to the Back Pay Act: 24 An employee of an agency who, on the basis of a timely appeal or an administrative found by appropriate authority under applicable law, rule, regulation, or collective bargaining agreement, to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or part of the pay, allowances, or differentials of the entitled, on correction of the personnel action, to receive for the period for which the personnel action was in amount equal to all or part of the pay which the employee normally would have earned or received...and reasonable attorney fees. 25 26 27 28 5 U.S.C. § 5596(b)(1)(A)(emphasis added). ORDER Page - 8 1 Under this provision of the Back Pay Act, the plaintiff is not an employee of an agency who, on the 2 basis of a either a timely appeal or an administrative determination, has been found by appropriate authority 3 to have been affected by an unjustified action which has resulted in withdrawal of pay. On November 30, 4 2006, the Department of Justice dismissed the plaintiff’s administrative EEO complaint on the ground that 5 the plaintiff failed to initiate the EEO complaint process in a timely fashion. Dkt 6-2, Exhibit A at 14. This 6 was a Final Agency Decision. Id. The plaintiff appealed this decision, and on March 22, 2007, the EEOC 7 affirmed the decision. Dkt. 6-2, Exhibit A at 19. The court has also determined that the plaintiff’s claim is 8 untimely. See discussion, supra at p. 5. Therefore, the plaintiff’s Back Pay Act claims should be dismissed 9 with prejudice. 10 4. Parties 11 The defendants’ claim that the United States Attorney General is the only proper defendant is 12 correct. The individual defendants should also be dismissed on that basis. 13 Therefore, it is hereby 14 ORDERED that defendants’ Motion to Dismiss (Dkt. 19) is GRANTED. The claims alleged in 15 the plaintiff’s complaint (Dkt. 13) are dismissed with prejudice. The plaintiff’s petition to transfer his claim 16 under the Back Pay Act, 5 U.S.C. § 5596, to the United States Court of Federal Claims is DENIED. 17 The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party 18 appearing pro se at said party’s last known address. 19 DATED this 25th day of March, 2008. A 20 21 ROBERT J. BRYAN United States District Judge 22 23 24 25 26 27 28 ORDER Page - 9

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