Dennis Simpson v. John E. Potter et al

Filing 63

MINUTES (IN CHAMBERS) by Judge A. Howard Matz: The Court GRANTS Defendant's Motion to Partially Dismiss the Complaint 48 . Specifically, Plaintiff's ADEA claims of age discrimination and the three specified disability discrimination claims are DISMISSED with prejudice. No hearing is necessary. FRCP 78; Local Rule 7-15. (jp)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-05207 AHM

Title

DENNIS SIMPSON V. PATRICK R. DONAHUE, POSTMASTER GENERAL

Present: The
Honorable

Date

June 18, 2012

A. HOWARD MATZ, U.S. DISTRICT JUDGE

Stephen Montes

Not Reported

Deputy Clerk

Court Reporter / Recorder

Attorneys NOT Present for Plaintiffs:

Proceedings:

Tape No.

Attorneys NOT Present for Defendants:

IN CHAMBERS (No Proceedings Held)

Defendant Patrick R. Donahoe, the United States Postmaster General, has moved
for partial dismissal of Plaintiff Dennis Simpson’s First Amended Complaint (“FAC”) for
lack of subject matter jurisdiction.1 For the following reasons, the Court GRANTS
Defendant’s motion.
I.

BACKGROUND

Plaintiff worked for the United States Postal Service (“USPS”) from 1976 until
2009. FAC ¶¶ 10, 32. His claims against the Postmaster General are based on the
following factual allegations, which are taken from the FAC:
Date
May 1994

Plaintiff’s Allegations

Citation

Plaintiff was wrongfully accused of falsifying his
travel pay and was placed on leave without pay.
Upon being reinstated, he was assigned to a different
position.

FAC ¶ 17.

November 2004 Plaintiff was transferred to Panorama City despite the
fact that his doctor had ordered that he not travel
more than 25 miles to a postal facility.

FAC ¶ 21.

1

Dkt. 48.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-05207 AHM

Title

DENNIS SIMPSON V. PATRICK R. DONAHUE, POSTMASTER GENERAL

Date

Date

June 18, 2012

Plaintiff’s Allegations

Citation

November 2004 Plaintiff requested a transfer to a facility closer to his FAC ¶¶ 22,
home as an accommodation, but his supervisor,
23.
Stevette Shinkle, denied his request. Shinkle also
withheld Plaintiff’s worker’s compensation forms. In
response, Plaintiff filed an EEO complaint. Plaintiff
succeeded on this EEO complaint and was awarded
$10,000 in summer 2006.
Summer 2006

Shinkle “ordered” Plaintiff to take the Metro Link
train to work.

FAC ¶ 24.

Not specified

Shinkle continued to withhold Plaintiff’s worker’s
compensation forms so that Plaintiff would not be
paid on a timely basis.

FAC ¶ 25.

Not specified

Woody DeWitt, the Van Nuys Postmaster, told
Plaintiff that he had the time and was of age to retire.
In response, Plaintiff allegedly filed “another EEO”
with Defendant asserting discrimination.

FAC ¶ 26.

Not specified

Plaintiff began to suffer back pain, but Defendant,
through his subordinates, failed to accommodate
Plaintiff’s condition. In response, Plaintiff allegedly
filed an EEO asserting disability discrimination.

FAC ¶ 27.

December 2006

Plaintiff was put on medical leave on the
recommendation of his physician.

FAC ¶ 29.

October 2007–
January 2009

Plaintiff was released to return to work by his
physician and the Postal Service’s doctor. Defendant
refused to clear him to return to work, resulting in his
constructive suspension.

FAC ¶ 47.

March 2009

Defendant failed to provide Plaintiff with proper
accommodations to enable him to return to work and,
instead, forced him to retire.

FAC ¶ 32.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-05207 AHM

Date

June 18, 2012

Title

DENNIS SIMPSON V. PATRICK R. DONAHUE, POSTMASTER GENERAL

Based on these allegations, Plaintiff raises five causes of action for: (1) violation of
the Rehabilitation Act of 1973 (“Rehabilitation Act”); (2) violation of the Age
Discrimination in Employment Act (“ADEA”); (3) violation of the Family Medical
Leave Act (“FMLA”); (4) retaliation; and (5) wrongful constructive discharge.
Defendant contends that Plaintiff has not fulfilled the procedural requirements
under the ADEA. In addition, Defendant contends that Plaintiff has not exhausted his
administrative remedies as to some of his allegations under the Rehabilitation Act.
Specifically, Defendant argues that Plaintiff may not seek relief for the following
incidents: (1) any claim for age discrimination; (2) the wrongful accusation of falsifying
travel pay in May 1994; (3) the transfer to Panorama City against his physician’s orders;
and (4) Shinkle’s retaliation in forcing Plaintiff to commute on the Metro Line train and
withholding worker’s compensation forms.2
III.

LEGAL STANDARD

A party may challenge the Complaint’s assertion of federal subject matter
jurisdiction. Fed. R. Civ. P. 12(b)(1). Such a challenge may be raised at any time. Fed.
R. Civ. P. 12(h)(3). The burden of proving that a claim is within the jurisdiction of the
federal court rests on the party asserting the existence of federal subject matter
jurisdiction. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182–83 (1936); In
Re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984 (9th
Cir. 2008).
A Rule 12(b)(1) attack on jurisdiction may be either facial or factual. Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the
challenger asserts that the allegations contained in a complaint are insufficient on their

2

The relief that Defendant actually asks for is to limit the FAC to a specific number of
allegations raised. He alludes to unspecified allegations that may not be properly before the Court but
never actually challenges them. The Court cannot and will not search the FAC for every possible
allegation that Plaintiff has not exhausted. Accordingly, the Court will limit itself to dismissing those
allegations that Defendant specifically challenged in his motion.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-05207 AHM

Date

June 18, 2012

Title

DENNIS SIMPSON V. PATRICK R. DONAHUE, POSTMASTER GENERAL

face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger
disputes the truth of the allegations that, by themselves, would otherwise invoke federal
jurisdiction.” Id. When a Rule 12(b)(1) attack is facial, the allegations in the complaint
are taken as true and all reasonable inferences are drawn in favor of the pleader. Wolfe v.
Strankman, 392 F.3d 358, 362 (9th Cir. 2004); Saridakis v. United Airlines, 166 F.3d
1272, 1276 (9th Cir. 1999). However, in a factual attack, the Court need not “accept as
true allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” Cholla Ready Mix v. Civish, 382 F.3d 969, 973 (9th Cir. 2004)
(citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). The Ninth
Circuit has held:
The general rule . . . is that a pleading’s allegations of jurisdiction are
taken as true unless denied or controverted by the movant . . . . [I]f the
movant, either in his motion or in any supporting materials, denies or
controverts the pleader’s allegations of jurisdiction, then he is deemed to
be challenging the actual existence of subject matter jurisdiction, and the
allegations of the complaint are not controlling.
Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1559 (9th Cir. 1987).
IV.

ANALYSIS

The ADEA provides a remedy for age discrimination. Similarly, the Rehabilitation
Act provides a remedy for disability discrimination. Both statutes have procedural
requirements that must be met before a claimant may file a civil action in federal court. If
a claimant fails to comply with the statutory requirements, the federal court lacks subject
matter jurisdiction. See, e.g., Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir. 2003).
A.

Plaintiff Failed to Exhaust Administrative Remedies Under the ADEA

Under the ADEA, a federal employee must satisfy one of two procedural
requirements before seeking judicial relief for alleged age discrimination. First, he may
“invoke[] the EEOC’s administrative claims process,” Whitman v. Mineta, 541 F.3d 929,
932 (9th Cir. 2008), exhaust administrative remedies pursuant to 29 C.F.R. §§ 1614.105
et seq., and then challenge the alleged discrimination in federal court. 29 U.S.C. §§
633a(b), (c); 29 C.F.R. § 1614.407.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-05207 AHM

Date

June 18, 2012

Title

DENNIS SIMPSON V. PATRICK R. DONAHUE, POSTMASTER GENERAL

To exhaust administrative remedies under this option, a claimant must initially
contact an Equal Employment Opportunity (EEO) Counselor at the agency where he
works. 29 C.F.R. § 1614.105(a)(1). If the dispute is not settled, he may then file a formal
complaint with his agency’s EEO Office. 29 C.F.R. § 1614.106. After receiving notice
that the agency has finished its investigation, he may ask the agency to issue a decision.
29 C.F.R. § 1614.108. Only after a final agency decision has been issued may the
claimant file a civil action with a federal district court or appeal it to the Equal
Employment Opportunity Commission (“EEOC”). 29 C.F.R. § 1614.110.
Second, an employee may directly file a civil action in federal court. However, the
employee must “giv[e] the Commission not less than thirty days’ notice of an intent to
file such action. Such notice shall be filed within one hundred and eighty days after the
alleged unlawful practice occurrence.” 29 U.S.C. § 633a(d); see also 29 C.F.R. §
1614.201(a); Whitman, 541 F.3d at 932.
Plaintiff failed to exhaust his administrative remedies as to any of his age
discrimination claims. The First Amended Complaint is poorly drafted and hard to
understand, but, as best the Court can tell, Plaintiff does not allege that he (1) raised age
discrimination with any EEO Counselor, (2) filed a formal complaint with his agency’s
EEO Office, (3), received notice that the agency had concluded its investigation, (4)
asked the agency to issue a final decision, or (5) notified the EEOC of his intent to sue.
The Court notes that the FAC does allege that Plaintiff filed an EEO complaint
based on disability discrimination. But there is no indication that this EEO complaint
raised age discrimination as an issue. See Leong v. Potter, 347 F.3d at 1122 (reasoning
that the plaintiff failed to exhaust administrative remedies on a disability discrimination
claim, because the plaintiff did not specifically raise disability discrimination among the
allegations in his prior EEO complaint).
Accordingly, the Court GRANTS Defendant’s motion to dismiss all of Plaintiff’s
claims of age discrimination under the ADEA.
B.

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Plaintiff Failed to Exhaust Administrative Remedies Under the
Rehabilitation Act as to Three of His Allegations
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-05207 AHM

Date

June 18, 2012

Title

DENNIS SIMPSON V. PATRICK R. DONAHUE, POSTMASTER GENERAL

The Rehabilitation Act prohibits a federal agency from discriminating against an
employee solely on the basis of a disability, Leorna v. U.S. Dep’t of State, 105 F.3d 548,
550 (9th Cir. 1997), and “is the exclusive remedy for discrimination in employment by
the Postal Service on the basis of handicap.” Boyd v. U.S. Postal Serv., 752 F.2d 410,
413 (9th Cir. 1985). A plaintiff must exhaust administrative remedies before a federal
court has jurisdiction under the Rehabilitation Act. Vinieratos v. United States, 939 F.2d
762, 773 (9th Cir. 1991); see also Leorna, 105 F.3d at 550 (“To preserve her right to
maintain a suit . . . a claimant must exhaust her administrative remedies by filing a claim
of discrimination with the allegedly offending agency in accordance with published
procedures.”). The administrative claims process is the same under the Rehabilitation
Act as under the ADEA. See 29 C.F.R. §§ 1614.101, 1614.105(a)(1), 1614.106,
1614.110.
Defendant concedes that Plaintiff exhausted his administrative remedies as to some
of his allegations of disability discrimination. But, according to Defendant, Plaintiff has
failed to exhaust his administrative remedies as to the following three allegations of
disability discrimination: (1) that he was wrongfully accused of falsifying travel pay; (2)
that he was transferred to Panorama City against his physician’s orders; and (3) that his
supervisor retaliated against him by ordering him to take the Metro Link train and by
withholding his worker’s compensation forms. Although it is not clear whether the third
claim is made under the Rehabilitation Act or Title VII, insofar as the claim raises
disability discrimination, the Court analyzes it under the Rehabilitation Act.
Plaintiff has failed to exhaust his administrative remedies as to each of the
allegations described above. Neither the FAC nor Plaintiff’s opposition states with any
specificity whether Plaintiff complained of these incidents of alleged disability
discrimination to an EEO Counselor. Plaintiff gives no indication that he ever filed an
official EEO complaint. He never states that he received notice that any agency
investigation had been completed, nor does he assert that he asked for and received a
final agency decision on his complaint. The Court has evidence only of an appeals
process from a final agency decision that did not involve any of the claims being
challenged in this motion. See Def.’s Mot. for Partial Dismissal Exs. A–C, H–N.
Accordingly, the Court GRANTS Defendant’s motion to dismiss the three
challenged allegations under the Rehabilitation Act.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-05207 AHM

Title

DENNIS SIMPSON V. PATRICK R. DONAHUE, POSTMASTER GENERAL

C.

Date

June 18, 2012

Plaintiff’s Internal Grievance Argument

Plaintiff spends the majority of his near-incomprehensible fifteen page opposition
addressing an unrelated argument. Plaintiff contends that Defendant prohibited him from
utilizing Defendant’s internal grievance procedures in connection with a lawsuit for the
breach of a Collective Bargaining Agreement (“CBA”). Moreover, Plaintiff argues that
the American Postal Workers Union (“APWU”) refused to represent him in that claim.
These arguments are inapposite to this case, since neither the CBA nor the conduct of the
APWU are at issue regarding Plaintiff’s failure to exhaust administrative remedies, and
are more relevant to a different case brought by Plaintiff, Simpson v. U.S. Postal Serv., cv
10-1635 RGK (FFMx). So disturbing is this inexplicable mistake that the Court looked
into Plaintiff’s attorney’s record before the State Bar. That record makes it particularly
appropriate for the Court to advise counsel that he must adhere to standards of
professional conduct in representing Plaintiff in this case.
V.

CONCLUSION

Based on the foregoing, the Court GRANTS Defendant’s Motion to Partially
Dismiss the Complaint.3 Specifically, Plaintiff’s ADEA claims of age discrimination and
the three specified disability discrimination claims are DISMISSED with prejudice.

No hearing is necessary. Fed. R. Civ. P. 78; Local Rule 7-15.

:
Initials of Preparer

SMO

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