Hoover v. Shinseki et al
Filing
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ORDER denying 10 defendant's Motion to Dismiss. Signed by Judge Frederick J Martone on 4/3/12.(TLJ)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Plaintiff,
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vs.
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Eric Shinseki, Secretary, Department of)
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Veterans Affairs,
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Defendant.
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No. CV 11-00845-PHX-FJM
Tina N. Hoover,
ORDER
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We have before us defendant's motion to dismiss for lack of subject matter jurisdiction
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(doc. 10), plaintiff's response (doc. 14), and defendant's tardy reply (doc. 15).
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I
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Plaintiff works as a nurse practitioner for the Department of Veterans Affairs' Casa
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Grande Clinic. Beginning in October 2009, she reported a co-worker's alleged sexual
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harassment to upper management and participated as a witness against him in an internal
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investigation. As a result, her first and second line supervisors allegedly began retaliating
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against plaintiff for her involvement.
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On August 12, 2010, plaintiff filed a formal complaint of discrimination with the
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Office of Resolution Management ("ORM") at the Department of Veterans Affairs ("VA").
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The ORM dismissed some of her claims due to plaintiff's prior election of the union
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grievance procedure. The agency accepted for further processing claims of discrimination
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for receiving a written counseling and hostile work environment harassment, both based on
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sex, age, and/or reprisal for prior EEO activity. (Doc. 10, ex. 3 at 8). On January 30, 2011,
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plaintiff was informed in writing that she had the right to request a hearing with the EEOC,
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file a civil action, or await the final agency decision. Plaintiff filed this action on April 27,
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2011. The agency dismissed her administrative complaint on June 9, 2011 due to the
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pendency of this action. Plaintiff alleges a single cause of action for retaliation under Title
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VII of the Civil Rights Act of 1964. Defendant claims plaintiff did not file an administrative
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complaint for retaliation, and that we lack subject matter jurisdiction over unexhausted
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claims.
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II
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The United States continues to ignore the Supreme Court's clear mandate to be precise
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when using the term "jurisdiction." "In a series of recent cases, the Supreme Court has
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addressed courts' misapplication of the label 'jurisdiction' to what are actually merits-based
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dismissals for failure to state a claim." Dunlap v. United States, No. CV 11-01360-PHX-
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FJM, 2012 WL 510532, at *2 (D. Ariz. Feb. 16, 2012). "[T]he term 'jurisdictional' properly
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applies only to 'prescriptions delineating the classes of cases (subject-matter jurisdiction) and
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the persons (personal jurisdiction)' implicating that authority." Reed Elsevier, Inc. v.
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Muchnick, __ U.S. __, 130 S. Ct. 1237, 1243 (2010). To determine whether a statutory
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prerequisite is truly jurisdictional, we apply the "readily administrable bright line" rule of
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Arbaugh v. Y&H Corp., 546 U.S. 500, 516, 126 S. Ct. 1235, 1245 (2006). A rule is
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jurisdictional "[i]f the Legislature clearly states that a threshold limitation on a statute's scope
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shall count as jurisdictional." Id. at 515, 126 S. Ct. at 1245. The Supreme Court counsels
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us to focus on the legal character of the limitation, which is "discerned by looking to the
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condition's text, context, and relevant historical treatment." Reed Elsevier, 130 S. Ct. at
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1246; see Henderson ex rel. Henderson v. Shinseki, __ U.S. __, 131 S. Ct. 1197, 1204-05
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(2011).
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Before a plaintiff may bring a Title VII claim in district court, she must first exhaust
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her administrative remedies. 42 U.S.C. § 2000e-16(c); B.K.B. v. Maui Police Dep't, 276
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F.3d 1091, 1099 (9th Cir. 2002). The purpose of Title VII is "to provide an opportunity to
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reach a voluntary settlement of an employment discrimination dispute," and exhaustion
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furthers this goal. Blank v. Donovan, 780 F.2d 808, 809 (9th Cir. 1986). This requirement
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also "serves the important purposes of giving the charged party notice of the claim and
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narrowing the issues for prompt adjudication and decision."
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(brackets and quotation marks omitted).
B.K.B., 276 F.3d at 1099
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A federal employee claiming employment discrimination must seek relief from the
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allegedly discriminating agency before bringing an action in federal court. The employee
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must notify an EEO counselor at the agency within 45 days of the alleged discriminatory
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conduct. 29 C.F.R. § 1614.105(a). If the matter is not resolved, the employee may then file
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a formal administrative complaint with the agency. 29 C.F.R. § 1614.106; Sommatino v.
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United States, 255 F.3d 704, 708 (9th Cir. 2001). This charge must "describe generally the
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action(s) or practice(s) that form the basis of the complaint." 29 C.F.R. § 1614.106(c). The
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employee may appeal to the EEOC or file a civil action within 90 days of an unfavorable
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agency decision or after 180 days from the filing of the initial charge if the agency fails to
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take final action. 42 U.S.C. § 2000e-16(c). After an EEOC appeal is filed, the employee
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may file a civil action within 90 days of the EEOC's final decision or after 180 days from the
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filing of the appeal if no decision has been issued. Id.; 29 C.F.R. § 1614.407. While the
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statutory language sets out detailed procedures that must be followed before filing a court
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action, the statute does not condition our jurisdiction on proper exhaustion of administrative
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remedies.
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In addition, Congress enacted a jurisdictional provision specifically for Title VII,
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granting jurisdiction to district courts "of actions brought under" Title VII. 42 U.S.C. §
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2000e-5(f)(3). This statute does not contain any reference to exhaustion. Neither text nor
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context indicate that exhaustion of administrative remedies is jurisdictional.
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"Subject matter jurisdiction relates to the power of a court to hear the class of claims
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to which the claim belongs and is not defeated just because the claim is barred by a defense."
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Dunlap, 2012 WL 510532, at *5. Exhaustion is typically a defense, not a jurisdictional
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limitation. In Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 921 (2007), the Supreme
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Court held that the exhaustion provision in the Prison Litigation Reform Act is not
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jurisdictional, but an affirmative defense. See also Reed Elsevier, 130 S. Ct. at 1246-47
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("We similarly have treated as nonjurisdictional other types of threshold requirements that
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claimants must complete, or exhaust, before filing a lawsuit."); Day v. McDonough, 547 U.S.
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198, 205, 126 S. Ct. 1675, 1681 (2006) (describing exhaustion of state remedies as a
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nonjurisdictional threshold barrier to habeas review). While failure to exhaust may bar a
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claim, it plainly is not jurisdictional. We have jurisdiction. We turn next to exhaustion.
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III
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"EEOC charges must be construed with utmost liberality since they are made by those
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unschooled in the technicalities of formal pleading." Sosa v. Hiraoka, 920 F.2d 1451, 1458
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(9th Cir. 1990) (quoting Chung v. Pomona Valley Cmty. Hosp., 667 F.2d 788, 790 (9th Cir.
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1982)). Therefore, we may consider as exhausted "any charges of discrimination that are
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'like or reasonably related to' the allegations made before the EEOC, as well as charges that
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are within the scope of an EEOC investigation that reasonably could be expected to grow out
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of the allegations." Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003). "The EEOC's
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failure to address a claim asserted by the plaintiff in her charge has no bearing on whether
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the plaintiff has exhausted her administrative remedies with regard to that claim." B.K.B.,
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276 F.3d at 1099. When determining whether an allegation not specified in the charge is
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exhausted, we consider factors such as "the alleged basis of the discrimination, dates of
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discriminatory acts specified within the charge, perpetrators of discrimination named in the
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charge, and any locations at which discrimination is alleged to have occurred." Id. at 1100.
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Defendant contends that a difference exists between "a hostile work environment
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claim for which a base is retaliation . . . [and] a straight retaliation claim," and that plaintiff's
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administrative complaint covered only harassment and hostile work environment claims.
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(Doc. 10 at 7). But plaintiff's claim of retaliation was obviously within the scope of an
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investigation that reasonably could be expected to grow out of her allegations.
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Plaintiff's complaint was entitled "Harassment/Hostile work environment/
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Discrimination based on age, sex, prior position, and retaliation for my part in a recent
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administrative board investigation related to alleged sexual harassment by the office
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manager." (Doc. 10, ex. 2 at 2). She sought an investigation of three co-workers "for
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retaliatory harassment." (Doc. 10, ex. 2 at 3). Retaliatory actions were mentioned many
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times in plaintiff's complaint. For instance, after plaintiff received an anonymous card telling
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her to "get lost" and calling her a derogatory name, she became "concerned with retaliation."
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(Doc. 10, ex. 2 at 9). Other facts could reasonably be interpreted as alleging retaliatory
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actions by her supervisors. See Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 645 (9th
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Cir. 2003) (finding exhaustion because "[w]hile the EEOC charge does not contain the
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relevant legal theory of retaliation, it does contain the relevant factual allegations.").
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The partial acceptance letter accepted two claims for further processing: whether
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plaintiff was discriminated against on the bases of sex, age, and/or reprisal for prior EEO
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activity when she received a written counseling, and whether she was subjected to hostile
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work environment harassment on the same bases. The requests for records relating to
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plaintiff's employment checked the boxes for age, sex, and reprisal as bases of the complaint.
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The agency's investigation was clearly directed, in part, at finding evidence of retaliation for
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plaintiff's participation in the sexual harassment investigation of her co-worker.
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The factors listed in B.K.B. support plaintiff's argument that her claim was exhausted.
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All acts relating to harassment, hostile work environment, and retaliation occurred between
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August 2009 and the filing of the administrative complaint in August 2010. The same people
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are alleged to have committed all actions underlying the harassment and retaliation claims.
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All actions took place at the VA clinic in Casa Grande. Facts relating to plaintiff's
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participation in the sexual harassment investigation would necessarily have arisen during the
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investigation of plaintiff's case. The civil claim for retaliation is reasonably related to
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allegations in the charge because it is "consistent with the plaintiff's original theory of the
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case." B.K.B., 276 F.3d at 1100.
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Plaintiff did not attempt to bypass the administrative process. Her administrative
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complaint was sufficiently detailed to notify the VA of her allegations and afford it an
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opportunity to pursue conciliation. Allowing her to proceed does not circumvent Title VII's
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goal of encouraging voluntary compliance and conciliation. B.K.B., 276 F.3d at 1099. "The
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absence of a perfect 'fit' between the administrative charge and the judicial complaint is
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therefore not fatal to judicial review if the policies of promoting conciliation and avoiding
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bypass of the administrative process have been served." Ong v. Cleland, 642 F.2d 316, 319
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(9th Cir. 1981). Because plaintiff's administrative complaint included retaliation, plaintiff
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exhausted her administrative remedies.
IV
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Accordingly, IT IS ORDERED DENYING defendant's motion to dismiss (doc. 10).
DATED this 3rd day of April, 2012.
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