Jeffrey D Chartier v. Anthony Foxx

Filing 11

MINUTES OF DEFENDANTS MOTION TO DISMISS (Dkt. 7, filed May 8, 2015) held before Judge Christina A. Snyder: In accordance with the foregoing, defendants motion to dismiss is GRANTED in part and DENIED in part. Specifically, the motion is GRANTED wit hout prejudice as to plaintiffs claims for discriminatory accrual of retirement benefits and discriminatory reassignment. The motion is otherwise DENIED. Plaintiff shall have until Thursday, August 13, 2015 to file a first amended complaint that addresses the deficiencies identified herein. Court Reporter: Khowoonsun Chong. (pj)

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

2:15-cv-00462-CAS(SHx)

Title

JEFFREY D. CHARTIER V. ANTHONY FOXX

Present: The Honorable

Date

‘O’

June 8, 2015

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk

Khowoonsun Chong
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants

Jeffrey Chartier, Pro Se

Garrett Coyle, AUSA

Proceedings:

I.

DEFENDANT’S MOTION TO DISMISS (Dkt. 7, filed May 8,
2015)

INTRODUCTION

On January 22, 2015, pro se plaintiff Jeffrey Chartier filed the instant action
against defendant Anthony Foxx, in his capacity as Secretary of the United States
Department of Transportation, Federal Aviation Administration (“FAA”) (referred to
herein as “defendant” or “the government”). Dkt. 1. Although the contours of plaintiff’s
claims are unclear from the complaint itself, in his opposition to the instant motion,
plaintiff clarifies that he alleges the following: (1) discriminatory accrual of retirement
benefits; (2) discriminatory promotion eligibility requirements; and (3) discriminatory
reassignment of plaintiff’s duties. Id.; see also Opp’n Mot. Dismiss at 5. Plaintiff
appears to bring his claims pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 701 et
seq.
On May 8, 2015, defendant filed a motion to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Dkt. 7. Plaintiff opposed the
motion, and requested a continuance, on May 22, 2015. Dkt. 8.1 Defendant replied on
1

The Court DENIES plaintiff’s request to continue the hearing on this motion.

Plaintiff’s opposition is also styled as a “Notice of Motion of Request for Sanctions
for Fraud, Misrepresentation and Late Filing.” Plaintiff, however, filed this motion on
May 22, 2015, yet scheduled the hearing date for June 8, 2015, which does not comport
with the 28-day notice period required by Local Rule 6-1. Moreover, plaintiff provides
no basis for sanctions and fails to identify any supposed fraud. In addition, plaintiff’s
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UNITED STATES DISTRICT COURT
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JEFFREY D. CHARTIER V. ANTHONY FOXX

June 3, 2015. Dkt. 10. The Court held a hearing on June 8, 2015. Having carefully
considered the parties’ arguments, the Court finds and concludes as follows.
II.

BACKGROUND

Plaintiff is a former air traffic controller at the Los Angeles Air Route Traffic
Control Center (“Los Angeles ARTCC”). See Compl. ¶¶ 1-5. On November 7, 1997,
plaintiff suffered a hypertensive stroke and was medically disqualified for the air traffic
controller position. Id. ¶ 5. Plaintiff was subsequently reassigned to a staff support
specialist position at the same salary on March 29, 1998, Toscano Decl. Ex. 2 (March 29,
1998 personnel action notification), and plaintiff’s retirement status was altered to reflect
this change in his position, Compl. ¶ 6. Plaintiff alleges that he was not told of the
reassignment. Id.
In April 1998, plaintiff filed a formal Equal Employment Opportunity (“EEO”)
complaint, seeking a reasonable accommodation (the “1998 Complaint”). Compl. ¶¶ 7-8;
Toscano Decl. Ex. 3 (Apr. 14, 1998 EEO complaint). Also in April 1998, plaintiff filed
for disability retirement with both the United States Office of Workers’ Compensation
Programs and the Office of Personnel Management. Compl. ¶ 7. Before his EEO
complaint was resolved, plaintiff received disability retirement and left the FAA in June
1998. Compl. ¶ 8; Toscano Decl. Ex. 4 (June 20, 1998 personnel action notification).
In 2002, plaintiff, represented by counsel, settled his 1998 Complaint with the
FAA (the “2002 Settlement Agreement”) by agreeing to be rehired as a staff support
specialist, a position not requiring medical qualification. See Compl. ¶ 8; Toscano Decl.

argument that defendant’s response to the complaint was late appears to be mistaken.
Although there is no proof of service on the U.S. Attorney’s Office on record, defendant
states that the U.S. Attorney’s Office was not served until March 11, 2015. Reply at 2.
Under Federal Rule of Civil Procedure 12(a)(2), “a United States officer or employee
sued only in an official capacity must serve an answer to a complaint, counterclaim, or
crossclaim within 60 days after service on the United States attorney.” Sixty days from
March 11, 2015 is May 10, 2015. Because defendant filed the instant motion on May 8,
2015, dkt. 7, the motion is timely.
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Ex. 5. Seven years later, plaintiff consulted an EEO counselor, claiming that he was
fraudulently induced to settle his 1998 Complaint because he was never given the 1998
personnel action notification form indicating his reassignment to a staff support specialist
position. Compl. ¶¶ 7–8; Toscano Decl. Ex. 9 (July 15, 2009 FAA EEO counselor’s
report). Plaintiff then filed a formal EEO complaint of discrimination on July 10, 2009.
Toscano Decl. Ex. 10 (July 10, 2009 formal EEO complaint). The FAA issued its final
agency decision dismissing plaintiff’s EEO complaint on April 1, 2011. Toscano Decl.
Ex. 12 (Apr. 1, 2011 FAA final agency decision).
Two years later, plaintiff filed a formal EEO complaint of discrimination on
August 14, 2013 (the “2013 Complaint”). Compl. ¶ 10; Toscano Decl. Ex. 13 (Sept. 27,
2013 FAA EEO counselor’s report) & 14 (September 24, 2013 formal EEO complaint).
The 2013 Complaint challenged allegedly discriminatory practices regarding plaintiff’s
(1) retirement accrual and (2) promotional eligibility. Id.
Plaintiff’s retirement accrual claim alleged that the FAA discriminated against him
on the basis of his disability because he earned retirement benefits at the lower rate
provided to staff support specialists (1.0% of annual salary—so-called “bad time”),
whereas Lisa McCurdy, a temporary staff support specialist, continued to earn retirement
benefits at the higher rate provided to air traffic controllers (1.7% of annual salary—socalled “good time”). See Compl. ¶ 9; Toscano Decl. Ex. 14. Plaintiff’s promotional
eligibility claim alleged that the FAA discriminated against him on the basis of his
disability because his medication rendered him ineligible for the one year of operational
duties normally required for promotion to supervisor—even though another FAA staff
support specialist was allegedly promoted to a supervisor position without the requisite
one year of operational duties. Compl. ¶ 10; Toscano Decl. Ex. 14.
The FAA accepted both of the claims in the 2013 Complaint for investigation.
Toscano Decl. Ex. 15 (October 30, 2013 FAA notice of acceptance); see Compl. ¶ 11.
After receiving the FAA’s report of investigation, plaintiff requested a hearing from an
administrative judge. Toscano Decl. Ex. 16. (Mar. 4, 2014 request for hearing from
administrative judge); see Compl. ¶ 11. His complaint is currently before an
administrative judge awaiting a hearing date. Compl. ¶ 11 (“The cases have stalled for

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nearly a year.”); Toscano Decl. Ex. 17 (March 17, 2014 EEO acknowledgment and
order).
In November 2014, plaintiff was transferred from the airspace and procedures
department at Los Angeles ARTCC to the quality control department due to his “erratic
schedule.” Compl. ¶ 11. Plaintiff subsequently filed another formal EEO discrimination
complaint on December 19, 2014 (the “2014 Complaint”), alleging that the change in his
assigned duties was discriminatory. Compl. ¶ 11; Toscano Decl. Ex. 18 (Dec. 19, 2014
formal EEO complaint). The FAA accepted the 2014 Complaint for investigation on
January 9, 2015, but has not issued a final agency decision. Toscano Decl. Ex. 19 (Jan. 9,
2015 FAA notice of acceptance).
Ultimately, plaintiff “requests that the Central District Court accept[] these cases as
the EEOC seems overwhelmed by funding cuts, . . . [and] [t]he EEOC system seemingly
benefits those that are allegedly responsible for discrimination as the Agencies[]have vast
resources and personnel.” Compl. ¶ 11.
III.

LEGAL STANDARD
A.

Rule 12(b)(1)

A motion to dismiss an action pursuant to Federal Rule of Civil Procedure 12(b)(1)
raises the objection that the court has no subject matter jurisdiction to hear and decide the
case. This defect may exist despite the formal sufficiency of the allegations in the
complaint. See T.B. Harms Co. v. Eliscu, 226 F.Supp. 337, 338 (S.D.N.Y.1964), aff'd
339 F.2d 823 (2d Cir.1964) (“In considering the plea for lack of jurisdiction, the formal
allegations must yield to the substance of the claim.”). A challenge to subject matter
jurisdiction “can be either facial, confining the inquiry to allegations in the complaint, or
factual, permitting the court to look beyond the complaint.” Savage v. Glendale Union
High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir.2003). Therefore, when considering a Rule
12(b)(1) motion challenging the substance of jurisdictional allegations, the Court is not
restricted to the face of the pleadings, but may review evidence, such as declarations and
testimony, to resolve any factual disputes concerning the existence of jurisdiction. See
McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). The burden of proof on a
Rule 12(b)(1) motion is on the party asserting jurisdiction. See Sopcak v. N. Mountain
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UNITED STATES DISTRICT COURT
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Helicopter Serv., 52 F.3d 817, 818 (9th Cir.1995); Ass'n of Am. Med. Colls. v. United
States, 217 F.3d 770, 778–79 (9th Cir.2000).
B.

Rule 12(b)(6)

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of the claims asserted in a complaint. Under Rule 12(b)(6), a district
court properly dismisses a claim if “there is a ‘lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable legal theory.’ ” Conservation Force
v. Salazar, 646 F.3d 1240, 1242 (9th Cir.2011) (quoting Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir.1988)). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). “[F]actual allegations must be enough to raise a right to relief above the
speculative level.” Id.
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all
material allegations in the complaint, as well as all reasonable inferences to be drawn
from them. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.1998). The complaint must be
read in the light most favorable to the nonmoving party. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir.2001); Parks Sch. of Bus., Inc. v. Symington, 51
F.3d 1480, 1484 (9th Cir.1995). However, “[i]n keeping with these principles a court
considering a motion to dismiss can choose to begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption of truth.
While legal conclusions can provide the framework of a complaint, they must be
supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th
Cir.2009) (“[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual
content,’ and reasonable inferences from that content, must be plausibly suggestive of a
claim entitling the plaintiff to relief.”) (citing Twombly and Iqbal ); Sprewell, 266 F.3d at
988; W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981). Ultimately,
“[d]etermining whether a complaint states a plausible claim for relief will . . . be a

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UNITED STATES DISTRICT COURT
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context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
Unless a court converts a Rule 12(b)(6) motion into a motion for summary
judgment, a court cannot consider material outside of the complaint (e.g., facts presented
in briefs, affidavits, or discovery materials). In re American Cont'l Corp./Lincoln Sav. &
Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir.1996), rev'd on other grounds sub nom.
Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S.Ct. 956,
140 L.Ed.2d 62 (1998). A court may, however, consider exhibits submitted with or
alleged in the complaint and matters that may be judicially noticed pursuant to Federal
Rule of Evidence 201. In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th
Cir.1999); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.2001).
IV.

DISCUSSION

As set forth above, plaintiff asserts the following three claims: (1) discriminatory
accrual of retirement benefits; (2) discriminatory promotion eligibility requirements; and
(3) discriminatory reassignment of plaintiff’s duties. Opp’n Mot. Dismiss at 5; See
generally Compl.2 The Court addresses each claim in turn.
A.

Discriminatory Accrual of Retirement Benefits

The government contends that plaintiff’s claim challenging the accrual of his
retirement benefits must be dismissed because it is time-barred, administratively
unexhausted, and fails to state a claim. Mot. Dismiss at 11.

2

The government construed plaintiff’s complaint as asserting the following five
claims: (1) plaintiff’s medical disqualification for his 1997 stroke violated a civil service
regulation; (2) plaintiff was fraudulently induced into settling his EEO complaint in
exchange for the staff support specialist position plaintiff had already been given; (3)
discriminatory accrual of retirement benefits; (4) discriminatory promotion eligibility
requirements; and (5) a change to his assigned duties was discriminatory and violated his
2002 settlement agreement. Mot. Dismiss at 1. In plaintiff’s opposition, he clarifies that
he only asserts the three latter claims. Opp’n Mot. Dismiss at 5.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

2:15-cv-00462-CAS(SHx)

Title

JEFFREY D. CHARTIER V. ANTHONY FOXX

1.

Date

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June 8, 2015

Whether the claim is time-barred

First, the government contends that plaintiff’s claim challenging his retirement
accrual is barred by the 45-day limitations period for consulting an EEO counselor.
Pursuant to 29 C.F.R. § 1614.105, a federal employee who believes he has been
discriminated against on the basis of disability “must initiate contact with a[n] [EEO]
Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the
case of personnel action, within 45 days of the effective date of the action.” 29 C.F.R. §
1614.105(a)(1). “Each discrete discriminatory act starts a new clock for filing charges
alleging that act.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). “[A]
court may not consider a discrimination claim that has not been exhausted in this manner
absent a basis for equitable tolling.” Steele v. Schafer, 535 F.3d 689, 693 (D.C. Cir.
2008); Leorna v. U.S. Dep't of State, 105 F.3d 548, 551 (9th Cir. 1997) (“The
requirement that a claim of discrimination be timely filed with the agency is subject to the
doctrine of equitable tolling.”). The doctrine of equitable tolling “has been consistently
applied to excuse a claimant’s failure to comply with the time limitations where []he had
neither actual nor constructive notice of the filing period.” Leorna, 105 F.3d at 551.
“However, once a claimant retains counsel, tolling ceases because []he has ‘gained the
‘means of knowledge’ of h[is] rights and can be charged with constructive knowledge of
the law’s requirements.’ ” Id. at 551 (quoting Stallcop v. Kaiser Found. Hospitals, 820
F.2d 1044, 1050 (9th Cir. 1987)).
In his complaint, plaintiff states that he did not learn of the allegedly
discriminatory retirement accrual until August 2013, when he discovered that co-worker
and temporary support staff specialist McCurdy was accruing retirement benefits at a rate
of 1.7%, whereas plaintiff was accruing benefits at a rate of 1.0%. Compl. ¶ 9. If the 45day period under 29 C.F.R. § 1614.105(a)(1) was triggered on this date, it appears that
plaintiff timely consulted an EEO counselor in September 2013. The government,
however, contends that the 45-day time limit was triggered in 2002, when
plaintiff—represented by counsel, Compl. ¶ 8—entered into the 2002 Settlement
Agreement, pursuant to which plaintiff resumed working for the FAA, but as a staff
support specialist rather than as an air traffic controller. Mot. Dismiss at 12. Because
plaintiff was represented by counsel during the settlement negotiations, the government

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UNITED STATES DISTRICT COURT
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contends that plaintiff had constructive notice of his allegedly discriminatory retirement
accrual no later than 2002. Id.
The Court is unpersuaded by the government’s contentions. Nothing in plaintiff’s
complaint indicates that, when plaintiff was represented by counsel in 2002, temporary
staff support specialists like McCurdy were accruing retirement benefits at a higher rate
than permanent staff support specialists like plaintiff. Indeed, in his opposition, plaintiff
asserts that “the practice where they discounted support specialist time changed
somewhere in the time frame from 2008 to 2011.” Opp’n Mot. Dismiss at 7. Construing
the complaint in the light most favorable to plaintiff, the Court accepts as true plaintiff’s
allegation that he did not learn of the allegedly discriminatory nature of his retirement
accrual until August 2013. The 45-day time bar is thus inapplicable to this claim.
2.

Whether plaintiff has failed to exhaust his administrative
remedies

Next, the government asserts that the discriminatory retirement accrual claim fails
because it is administratively unexhausted. A federal employee asserting a claim of
workplace discrimination under the Rehabilitation Act must exhaust his administrative
remedies before filing a civil action in district court. Boyd v. U.S. Postal Serv., 752 F.2d
410, 412-14 (9th Cir. 1985). The Rehabilitation Act incorporates the administrative
exhaustion procedures of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e16(c). Bullock v. Berrien, 688 F.3d 613, 615 (9th Cir. 2012) (citing 29 U.S.C. §
794a(a)(1)). After consulting with an EEO counselor, discussed supra, the employee
must subsequently file a formal discrimination complaint with his employing government
agency, 29 C.F.R. § 1614.106(a). The agency, in turn, must either dismiss the complaint
or investigate it. 29 C.F.R. § 1614.107. Once the agency completes its investigation, the
employee can either request a hearing and decision from an EEOC administrative judge,
or request an immediate final decision from the agency. 29 C.F.R. § 1614.108. Pursuant
to 29 C.F.R. § 1614.407, an employee who has filed a formal discrimination complaint
withe the EEOC may file a civil action in district court, inter alia, “[a]fter 180 days from
the date of filing a[] . . . complaint if an appeal has not been filed and final action has not
been taken.” 29 C.F.R. § 1614.407(b); 42 U.S.C. § 2000e–16(c).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
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June 8, 2015

JEFFREY D. CHARTIER V. ANTHONY FOXX

Here, plaintiff filed a formal complaint on August 14, 2013, received an
investigative report from the FAA, and subsequently requested a hearing from an EEOC
administrative judge. Mot. Dismiss at 5. Plaintiff’s complaint is currently before an
EEOC administrative judge awaiting a hearing date and, in defendant’s own words “the
FAA has not issued a final agency decision on the complaint.” Id. Citing Greenlaw v.
Garrett, 59 F.3d 994, 997 (9th Cir. 1995), the government contends that plaintiff “may
not cut short the administrative process prior to its final disposition, for upon
abandonment a claimant fails to exhaust administrative relief and may not thereafter seek
redress from the courts.” However, Greenlaw itself explains that “[c]ivil actions may
also be filed if after 180 days the agency or EEOC fails to take final action on the
matter.” Id. at 997, n. 7 (emphasis added);3 Bullock, 688 F.3d at 616 (“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.” citing 42 U.S.C. §
2000e-16(c); 29 C.F.R. § 1614.407(a)-(b)); accord Patrick v. Henderson, 255 F.3d 914,
915 (8th Cir. 2001) (“The lawsuit was timely because it was filed . . . more than 180 days
after her initial complaint was submitted for final agency action.” citing 29 C.F.R.
1614.407(a) & (b)). Indeed, as the Court of Appeals for the District of Columbia has
explained:
The 180 day provision represents a Congressional determination that
providing prompt access to the courts in discrimination disputes is so
important that the administrative process will be given only a finite time to
deal alone with a given dispute. . . . Requiring a complainant to further
pursue administrative remedies after fulfilling all the prerequisites to suit

3

Moreover, in stating that “[a] plaintiff may not cut short the administrative
process prior to its final disposition . . .” 59 F.3d at 997, the Greenlaw court relied on
Rivera v. United States Postal Service, 830 F.2d 1037, 1039 (9th Cir. 1987). Rivera held
that a claimant who withdraws his administrative claim prior to its final disposition fails
to exhaust administrative remedies, and noted that “[i]mpatience with the agency does not
justify immediate resort to the courts.” In 2012, however, the Ninth Circuit concluded
that “Rivera is no longer good law.” 688 F.3d at 617.

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UNITED STATES DISTRICT COURT
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specified by the EEOA, and most importantly, after 180 days have elapsed
without final administrative action, would frustrate that response.

Wilson v. Pena, 79 F.3d 154, 167 (D.C. Cir. 1996 (quoting Grubbs v. Butz, 514 F.2d
1323, 1327-28 (D.C. Cir. 1975)).
The government, apparently misreading 29 C.F.R. § 1614.407, contends that this
regulation “gives the complainant three options if 180 days have passed since filing a
formal discrimination complaint with the agency: (1) request a hearing from an EEOC
administrative judge, (2) file a district court action, or (3) request a final agency
decision.” The government proffers no support for this interpretation of the regulation
and the Court has found none. Accordingly, by filing this instant civil action in January
2015—well in excess of 180 days since lodging his formal, unresolved discrimination
complaint—plaintiff has exhausted his administrative remedies.
3.

Whether plaintiff has failed to state a claim

Finally, the government contends that plaintiff’s claim for discriminatory
retirement accrual fails as a matter of law. Mot. Dismiss at 13. Construing plaintiff’s
claim as one for disparate treatment on the basis of disability, the government contends
that plaintiff has failed to allege a prima facie case, since he has not identified “at least
one ‘similarly situated’ nondisabled employee.” Id. Plaintiff does not proffer a
meaningful response.
The Supreme Court “has consistently recognized a distinction between claims of
discrimination based on disparate treatment and claims of discrimination based on
disparate impact.” Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (construing the
Americans with Disabilities Act of 1990 (ADA)); see Vinson v. Thomas, 288 F.3d 1145,
1152 (9th Cir. 2002) (explaining that there is no significant difference in the analysis of
rights and obligations created by the ADA and the Rehabilitation Act, and thus the two
Acts are construed the same). In a disparate treatment case, “[t]he employer simply treats
some people less favorably than others because of their race, color, religion, sex, or [other
protected characteristic].” Id. (quoting another source). In contrast, “disparate-impact
claims ‘involve employment practices that are facially neutral in their treatment of

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different groups but that in fact fall more harshly on one group than another and cannot
be justified by business necessity.’ ” Id. Distinct analytical frameworks apply to each
theory of discrimination. See id. at 52-55.
It is unclear from the complaint which theory of discrimination plaintiff asserts.
Seizing upon plaintiff’s allegations concerning co-worker McCurdy’s differential rate of
retirement accrual, Compl. ¶ 8, the government construes plaintiff’s claim as one for
disparate treatment. Mot. Dismiss at 15. Although this appears to be a plausible
interpretation of plaintiff’s allegations, plaintiff also alleges that certain vague “practices”
regarding the classification of staff support specialists and air traffic controllers “result . .
. in disparate retirement benefits for those that are handicapped.” Compl. ¶ 10. These
latter allegations sound in a theory of disparate impact.
Because the Court cannot discern the legal theory pursuant to which plaintiff
asserts his claim for discriminatory retirement accrual, the Court cannot conclude that
plaintiff has alleged sufficient facts to support that theory. See Conservation Force v.
Salazar, 646 F.3d at 1242. Accordingly, the Court GRANTS without prejudice the
government’s motion to dismiss plaintiff’s claim for discriminatory accrual of retirement
benefits.
B.

Discriminatory Promotion Eligibility Requirements

The government contends that plaintiff’s claim concerning promotional eligibility
requirements must be dismissed because it is administratively unexhausted. Mot.
Dismiss at 15. However, as the government points out, plaintiff presented this claim to
the FAA in the same 2013 Complaint in which plaintiff presented his claim for
discriminatory retirement accrual. Id. Thus, for the reasons stated above in connection
with plaintiff’s retirement accrual claim, the Court finds that plaintiff has exhausted his
administrative remedies as to his promotion eligibility claim. The government’s motion
to dismiss the promotion eligibility claim is therefore DENIED.

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UNITED STATES DISTRICT COURT
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Title

JEFFREY D. CHARTIER V. ANTHONY FOXX
C.

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Discriminatory Change of Plaintiff’s Assigned Duties

Lastly, plaintiff claims that the 2014 change in his assigned duties at Los Angeles
ARTCC was discriminatory and “likely” violated the 2002 Settlement Agreement.
Compl. ¶ 11. Defendant contends that this claim must be dismissed because it is not
administratively exhausted and the Court lacks subject matter jurisdiction over actions to
enforce such settlement agreements. Mot. Dismiss at 16-17.
The Court agrees that plaintiff has failed to administratively exhaust this claim.
Pursuant to 42 U.S.C. § 2000e-16, a federal employee “aggrieved . . . by the failure to
take final action on his complaint,” may file a civil action “one hundred and eighty days
from the filing of the initial charge.” 42 U.S.C.A. § 2000e-16(c). This 180-day waiting
period is mandatory. Murthy v. Vilsack, 609 F.3d 460, 465 (D.C. Cir. 2010) (explaining
that “Congress sought to allow a period for the EEOC to investigate and attempt to
resolve charges through conciliation.”); Smith v. Donahoe, 917 F. Supp. 2d 562, 570
(E.D. Va.), aff'd in part, appeal dismissed in part, 542 F. App'x 230 (4th Cir. 2013) (“ [A]
federal employee only can file his or her complaint in federal court after the completion
of a 180 day period from the filing of his or her administrative complaint with the
agency.” (construing 42 U.S.C.A. § 2000e-16(c) and 29 C.F.R. § 1614.407(b))). Here,
plaintiff filed his 2014 Complaint concerning the change in his assigned duties in
December 2014, but waited just over a month to file the instant civil action in January
2015. Because plaintiff failed to comply with the mandatory 180-day waiting period set
forth in 42 U.S.C.A. § 2000e-16(c), plaintiff has failed to exhaust his administrative
remedies.
Administrative exhaustion aside, defendant also contends that the Court lacks
subject matter jurisdiction over claims, such as plaintiff’s, to enforce settlement
agreements with the federal government. Defendant relies on Munoz v. Mabus, 630 F.3d
856 , 862 (9th Cir. 2010), where the court held that “Congress’ waiver of sovereign
immunity under Title VII does not extend to suits to enforce settlement agreements
entered into without genuine investigation, reasonable cause determination, and
conciliation efforts by the EEOC.” To the extent that plaintiff alleges a breach of the
settlement agreement, it thus appears that the Court lacks subject matter jurisdiction over
plaintiff’s claim.

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

2:15-cv-00462-CAS(SHx)

Date

Title

‘O’

June 8, 2015

JEFFREY D. CHARTIER V. ANTHONY FOXX

However, as this Court recently explained, the Munoz court “implicitly held that a
claim for retaliation under Title VII is distinct from a claim for breach of a settlement
agreement with the federal government, even if the conduct underlying those two claims
is the same.” Korsunka v. Johnson, 2014 WL 1716086, at *2 (C.D. Cal. Apr. 30, 2014)
(emphasis added). “The [Munoz] court also implicitly held that district courts have
jurisdiction to adjudicate such a retaliation claim, even though they lack jurisdiction over
the claim for breach of the settlement agreement.” Id. Applying this principle to the
instant case, it appears that the conduct underlying plaintiff’s claim that the change in his
assigned duties was discriminatory is the same conduct that “likely” breached the
Settlement Agreement. Compl. ¶ 11 (alleging that change in assigned duties “was
discriminatory and was likely violating the Settlement Agreement to be returned as a
Staff Support Specialist.”). Indeed, in plaintiff’s 2014 Complaint, plaintiff makes no
reference to the 2002 Settlement Agreement or any breach thereof. Toscano Decl. Ex. 18
(Dec. 19, 2014 formal EEO complaint). Accordingly, construing plaintiff’s claim for
discriminatory reassignment as distinct from any claim that defendant breached the 2002
Settlement Agreement, the Court concludes that it does not lack subject matter
jurisdiction over the reassignment claim.
Nonetheless, because plaintiff has not administratively exhausted his
discriminatory reassignment claim, the Court GRANTS without prejudice the
government’s motion to dismis.
V.

CONCLUSION

In accordance with the foregoing, defendant’s motion to dismiss is GRANTED in
part and DENIED in part. Specifically, the motion is GRANTED without prejudice as to
plaintiff’s claims for discriminatory accrual of retirement benefits and discriminatory
reassignment. The motion is otherwise DENIED. Plaintiff shall have until Thursday,
August 13, 2015 to file a first amended complaint that addresses the deficiencies
identified herein.
IT IS SO ORDERED.
00
Initials of Preparer

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:

14

CMJ

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