Darrell Worthen v. Deborah Lee James

Filing 15

ORDER GRANTING DEFENDANTS MOTION TO DISMISS 10 by Judge Otis D. Wright, II: the Court GRANTS Defendants Motion to Dismiss with leave to amend except with respect to any claims stemming from age based discrimination consistent with this Order. Plai ntiff has until September 17, 2015 to file an amended complaint.The Court reminds Plaintiff to conform to the Local Rules by participating in any required conferences with Defendant. Although the Court understands that.Plaintiff represents himself, the Court will not be so lenient when dealing with failure to comply with the Local Rules in the future.The Court also advises Plaintiff that a Federal Pro Se Clinic is located in the United States Courthouse. (lc.) Modified on 9/3/2015 (lc).

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United States District Court
Central District of California

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DARRELL WORTHEN,

Case № 2:15-cv-01747-ODW-JC

Plaintiff,

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v.

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ORDER GRANTING

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DEBORAH LEE JAMES,

DEFENDANT’S MOTION TO

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Secretary of the Air Force

DISMISS [10]

Defendants.

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I.

INTRODUCTION

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Plaintiff Darrell Worthen (“Worthen”) brings an action against the United

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States Air Force for unlawful discrimination under Title VII. Defendant Deborah Lee

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James (“the Air Force”) moves to dismiss based on Worthen’s failure to exhaust all

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administrative remedies.

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Defendant’s Motion to Dismiss.1 (ECF No. 10.)

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For the reasons discussed below, the Court GRANTS
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FACTUAL BACKGROUND

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Worthen, an employee of the United States Air Force, alleges that the Air Force

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unlawfully discriminated against him on twelve separate occasions based on his race

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and/or in retaliation for previous discrimination complaints, between September 2011

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and November 2014.

(Compl. 2–3.)

In response to the alleged discrimination,

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After carefully considering the papers filed in support of and in opposition to the Motion, the Court
deems the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; L.R. 7-15.

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Worthen initiated contact with an Equal Opportunity (“EO”) Counselor and received

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notice of his right to file an Equal Employment Opportunity Commission (“EEOC”)

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complaint for each of these claims (Claim No. 901S12020, Claim No. 901S13031,

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and Claim No. 901S15001). (Id. Ex. 1.) Worthen alleges that he then filed three

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EEOC complaints. (Id. Ex. 2.)

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On March 10, 2015, Worthen brought this pro per employment discrimination

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case against the Air Force. (Id. 1.) He alleges unlawful discrimination based on his

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race, age, and previous participation in an EEOC investigation. (Id. 3.) Worthen

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claims that the alleged discrimination is manifested by a failure to promote, reduction

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in wages, working conditions that differed from similarly situated employees,

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harassment, bullying, intimidation, reprisal, retaliation, demotion, and wrongful

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discharge from employment for a period of time. (Id. 3–4.)

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On May 22, 2015, the Air Force moved to dismiss or, in the alternative, moved

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for a more definite statement. (ECF No. 10.) An Opposition and Reply were timely

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filed.2 (ECF Nos. 11, 12.) That Motion is now before the Court for consideration.

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III.

LEGAL STANDARD

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A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable

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legal theory or insufficient facts pleaded to support an otherwise cognizable legal

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theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To

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survive a dismissal motion, a complaint need only satisfy the minimal notice pleading

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requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v.

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Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to

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raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550

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U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual matter,

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Worthen additionally filed a Response to the Reply on July 1, 2015. (ECF No. 14 [“Resp.”].)
Under Local Rule 7-10, a response to the reply is only permitted with prior written approval by the
Court. Because Worthen represents himself, the Court treats him with leniency when dealing with
technical rules of civil procedure, so will consider the Response for this occasion. See Draper v.
Coombs, 792 F.2d 915, 924 (9th Cir. 1986).
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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009).

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The determination whether a complaint satisfies the plausibility standard is a

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“context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 679. A court is generally limited to the

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pleadings and must construe all “factual allegations set forth in the complaint . . . as

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true and . . . in the light most favorable” to the plaintiff. Lee v. City of L.A., 250 F.3d

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668, 688 (9th Cir. 2001). But a court need not blindly accept conclusory allegations,

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unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden

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State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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As a general rule, a court should freely give leave to amend a complaint that has

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been dismissed. Fed. R. Civ. P. 15(a). But a court may deny leave to amend when

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“the court determines that the allegation of other facts consistent with the challenged

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pleading could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well

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Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986); see Lopez v. Smith, 203 F.3d

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1122, 1127 (9th Cir. 2000).

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IV.

DISCUSSION

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Before filing a lawsuit with a federal court, an employee asserting Title VII

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claims must first exhaust his administrative remedies. B.K.B. v. Maui Police Dep't,

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276 F.3d 1091, 1099 (9th Cir. 2002). To exhaust his administrative remedies, the

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employee must first contact an EO Counselor to try to resolve the issue. Vinieratos v.

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U.S. Dep't of Air Force, 939 F.2d 762, 768–769 (9th Cir. 1991). If this fails to satisfy

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the individual, he must next file a timely, formal complaint with EEOC, allowing the

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agency to investigate the alleged discrimination. Id. Only after the employee receives

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a final disposition may he file a civil claim in district court. Id. at 769. An employee

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obtains a final disposition in one of two ways: (1) EEOC issues a final decision on the

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employee’s complaint, or (2) EEOC takes no action for 180 days after the employee

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files his complaint. 42 U.S.C. § 2000e–16(c). A federal district court in the Ninth

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Circuit only has jurisdiction over the charges set forth in the formal EEOC complaint

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and any allegations that are “like or reasonably related” to the charges. Sommatino v.

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U.S., 255 F.3d 704, 708 (9th Cir. 2001).
The Air Force argues that the Court must dismiss the Complaint because

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Worthen failed to exhaust his administrative remedies prior to filing.

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Specifically, the Air Force argues that Worthen never filed a formal complaint with

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EEOC for Claim No. 901S15001.3 (Id.) Worthen, however, attached the first page of

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an EEOC complaint form for Claim No. 901S15001 to the Complaint as an exhibit.

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(Compl. Ex. 2.) The Air Force questions the authenticity of this exhibit and states that

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(Mot. 1.)

it “has no record of ever having received this document.” (Mot. 2.)

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Although both parties focused their arguments entirely on the authenticity of

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this document, the Court finds another issue to be dispositive to the Air Force’s

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Motion. The Court agrees with the Air Force’s general contention that Worthen failed

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to sufficiently plead that he exhausted administrative resources.

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Worthen filed an EEOC complaint for Claim No. 901S15001, Worthen still has not

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pled that he received a final disposition for any of the three formal complaints lodged

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against the Air Force. Worthen alleges that he filed the formal complaint for Claim

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No. 901S15001 on November 26, 2014.

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disposition requirement, Worthen either needed to plead that he received a final

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agency decision or show that he did not receive a final decision from EEOC for 180

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days after filing the complaint. See Vinieratos, 939 F.2d at 768–769. Worthen makes

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no mention of any final agency decision and filed the Complaint on March 10, 2015.

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(Compl. 1.) If Worthen did not receive a final decision from EEOC, he then needed to

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wait to file the Complaint until May 25, 2015 to satisfy the 180 days requirement.

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Worthen failed to plead any similar facts for Claim No. 901S12020 and Claim No.

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901S13031.

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(Resp. 2.)

Assuming that

Thus, to satisfy the final

Given the lack of discussion regarding Worthen’s other two administrative claims (Claim No.
901S12020 and Claim No. 901S13031), the Air Force seemingly accepts that these claims were
appropriately filed.
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Finally, the Court notes Worthen improperly alleges age-discrimination by the

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Air Force. (See Compl. 3.) Worthen’s EEOC complaints make no mention of age-

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based discrimination, therefore he is precluded from alleging it for the first time in his

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Complaint. (Compl. Ex. 1.) See Shaw v. Mt. Zion Hosp. & Med. Ctr., 642 F.2d 268,

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272–273 (9th Cir. 1981) (holding that claims of race, color, and religious

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discrimination were properly dismissed where plaintiff failed to bring allegations to

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EEOC). As discussed above, the Court lacks jurisdiction over Title VII claims that

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the plaintiff has never brought to EEOC. Thus, any Title VII claims stemming from

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age-based discrimination are DISMISSED with prejudice.

See Fed. R. Civ. P.

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12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction,

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the court must dismiss the action.”).

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V.

CONCLUSION

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For the reasons discussed above, the Court GRANTS Defendant’s Motion to

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Dismiss with leave to amend except with respect to any claims stemming from age-

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based discrimination consistent with this Order. (ECF No. 10.) Plaintiff has until

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September 17, 2015 to file an amended complaint.
The Court reminds Plaintiff to conform to the Local Rules by participating in

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any required conferences with Defendant.

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Plaintiff represents himself, the Court will not be so lenient when dealing with failure

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to comply with the Local Rules in the future.

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Although the Court understands that

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The Court also advises Plaintiff that a Federal Pro Se Clinic is located in the

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United States Courthouse at 312 N. Spring Street, Room 525, Fifth Floor, Los

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Angeles, California 90012. The clinic is open for appointments on Mondays,

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Wednesdays, and Fridays from 9:30 a.m. to 12:00 p.m. and 2:00 p.m. to 4:00 p.m.

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The Federal Pro Se Clinic offers free, on-site information and guidance to individuals

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who are representing themselves in federal civil actions.

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Defendants may visit http://www.cacd.uscourts.gov/ and follow the link for

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“Pro Se Clinic—Los Angeles” or contact Public Counsel at 213–385–2977, extension

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270. Plaintiff is encouraged to visit the clinic, or seek the advice of an attorney, as

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For more information,

this case proceeds.

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IT IS SO ORDERED.

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September 3, 2015

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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