Pronechen v. U.S. Department of Homeland Security

Filing 118

ORDER signed by Senior Judge Ronald S.W. Lew on 4/14/2010 GRANTING 100 Motion for Summary Judgment. (Matson, R)

1 2 3 4 5 6 7 8 9 10 11 Ronald L. Pronechen, 12 13 14 15 16 17 18 19 20 Defendant's Motion for Summary Judgment on New Having taken the matter 21 Claim in Second Amended Complaint was originally set 22 for hearing on April 9, 2010. 23 under submission on April 5, 2010, and having reviewed 24 all papers submitted pertaining to this motion, the 25 Court NOW FINDS AND RULES AS FOLLOWS: 26 The Court hereby GRANTS Defendant's Motion for 27 Summary Judgment on New Claim in Second Amended 28 Complaint.
1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) v. ) ) ) ) Secretary of U.S. ) Department of Homeland ) Security, ) ) Defendants. ) ) ) ED-CV 06-1726 LEW ORDER Re: Defendant's Motion for Summary Judgment on New Claim in Second Amended Complaint [100]

1

Summary judgment is appropriate when the pleadings,

2 affidavits, and other supporting papers demonstrate 3 that there are no genuine issues of material fact, and 4 the moving party is entitled to prevail as a matter of 5 law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, When making this Anderson A 6 477 U.S. 317, 322 (1986).

7 determination, the Court must view the record in the 8 light most favorable to the non-moving party. 9 v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

10 "genuine" dispute is one that is supported by evidence 11 sufficient to permit a reasonable jury to find in favor 12 of the nonmoving party. 13 Id. at 247-48. Under the Age Discrimination in Employment Act, a First, the

14 federal employee who wants to assert an age 15 discrimination claim has two options. 16 complainant can give the EEOC notice of the alleged act 17 within 180 days, and then give notice of suit at least 18 30 days prior to the filing of the suit. 19 633a(c),(d); 29 C.F.R. § 1614.201. 29 U.S.C. § Or, second, the

20 complainant may pursue the complaint administratively 21 before the EEOC and appeal any loss in federal court. 22 29 U.S.C. § 633a(b),(c); 29 C.F.R. § 1614.407. 23 If an aggrieved person desires to follow the second 24 route, he or she must "initiate contact with a 25 counselor within 45 days of the date of the matter to 26 be discriminatory or, in the case of personnel action, 27 within 45 days of the effective date of the action." 28 29 C.F.R. § 1614.105(a)(1).
2

1

The 45 day time limit shall be extended "when the

2 individual shows that he or she was not notified of the 3 time limits and was not otherwise aware of them, that 4 he or she did not know and reasonably should not have 5 been known that the discriminatory matter or personnel 6 action occurred." 7 29 C.F.R. § 1614.105(a)(2). Furthermore, the 45 day time limit can also be

8 extended if a plaintiff can show "that despite due 9 diligence he or she was prevented by the circumstances 10 beyond his or her control from contacting the counselor 11 within the time limits, or for other reasons considered 12 sufficient by the agency or the Commission." 13 § 1614.105(a)(2). 14 Under federal law, an employment discrimination 15 claim accrues "upon awareness of the actual injury, 16 i.e., the adverse employment action, and not when the 17 plaintiff suspects a legal wrong." 19 Cir. 2008). Lukovsky v. City 18 and County of San Francisco, 535 F.3d 1044, 1049 (9th Two doctrines "may apply to extend the Id. at 1051. The two doctrines See id. 20 limitations period." 22 29 C.F.R.

21 are equitable tolling and equitable estoppel. 23 the existence of a possible claim within the

"If a reasonable plaintiff would not have known of

24 limitations period, then equitable tolling will serve 25 to extend the statute of limitations for filing suit 26 until the plaintiff can gather what information he 27 needs." Johnson v. Henderson, 314 F.3d 409, 414 (9th
3

28 Cir. 2002).

1

"Equitable estoppel focuses primarily on the

2 actions taken by the defendant in preventing a 3 plaintiff from filing suit, whereas equitable tolling 4 focuses on the plaintiff's excusable ignorance of the 5 limitations period and on lack of prejudice to the 6 defendant. " 8 Santa Maria v. Pac. Bell, 202 F.3d 7 1170,1176 (9th Cir. 2000). An Equal Employment Opportunity Complainant has the 9 right to amend a pending Equal Employment Opportunity 10 Complaint by adding "like or related" claims to the 11 claims raised in the pending complaint. 12 1614.106. 29 C.F.R. § According to the Rights and Responsibilities

13 Memorandum given to Plaintiff in 2004, near the 14 initiation of his Equal Employment Opportunity 15 Complaint, a complainant wishing to amend a pending 16 Equal Employment Opportunity Complaint "must submit a 17 letter describing the new incident(s) and stating that 18 you wish to amend your complaint to include the new 19 incident(s)." 20 at p. 19]. 21 Plaintiff failed to file an entirely new Equal 22 Employment Opportunity complaint after receiving 23 notification of his non-selection for the position 24 listed under Announcement 0492414. Also, Plaintiff 25 failed to file a proper amendment request for his 26 ongoing Equal Employment Opportunity complaint because 27 Plaintiff failed to follow the guidelines set forth in 28 the Rights and Responsibilities Memorandum.
4

[Dock. No. 116, Exh. B to 2nd Kett Decl.

1

Specifically, Plaintiff failed to submit a letter

2 to the address listed in the Rights and 3 Responsibilities Memorandum alleging retaliation. 4 Furthermore, Plaintiff's e-mail to the Office of 5 Personnel Management on August 1, 2004, and his e-mail 6 to David Kett on August 25, 2004, were insufficient to 7 merit an amendment to his ongoing Equal Employment 8 Opportunity complaint. Neither of Plaintiff's e-mails Plaintiff also did 9 indicated that he desired to amend his ongoing Equal 10 Employment Opportunity complaint. 11 not detail his allegation that he had been screened out 12 from applying for Announcement 0492414. 13 The Court finds no genuine issue of material fact 14 as to the following: Plaintiff did not file an entirely 15 new Equal Employment Opportunity complaint, after 16 receiving notification of his non-selection for 17 Announcement 0492414; moreover, Plaintiff failed to 18 properly request an amendment to his pending Equal 19 Employment Opportunity complaint. Therefore, the Court 20 GRANTS Defendant's Motion for Summary Judgment on New 21 Claim in Second Amended Complaint because Plaintiff is 22 time barred from raising the claim. 23 Furthermore, to establish a prima facie case of age 24 discrimination under the Age Discrimination in 25 Employment Act, Plaintiff must meet the following 26 factors: first, Plaintiff must show that he is within 27 the protected class of forty to seventy years old; 28 second, Plaintiff must show that he applied for a
5

1 position for which he was qualified; third, Plaintiff 2 must show that a younger person with similar 3 qualifications received the position. 5 Cotton v. City 4 of Alameda, 812 F.2d 1245, 1248 (9th Cir. 1987). "Establishing a prima facie case raises an 6 inference of discrimination," but this inference can be 7 rebutted by Defendant demonstrating a "legitimate, 8 nondiscriminatory" reason for its decision. Id. If 9 Defendant raises a "legitimate, nondiscriminatory" 10 reason, Plaintiff "must come forward with evidence" 11 that Defendant's reason is a "pretext" to hide 12 discrimination. 13 Id. Plaintiff successfully establishes a prima facie

14 case of age discrimination by alleging retaliation in 15 response to his prior Equal Employment Opportunity 16 complaint filing. Cotton, 812 F.2d at 1248; See GomezPlaintiff See 17 Perez v. Potter, 128 S.Ct 1931, 1932 (2008). 19 Cotton, 812 F.2d at 1248. 20 the position. 21 Perez, 128 S.Ct at 1932. 23 812 F.2d at 1248. 24 However, Defendant has successfully met its burden The 25 shifting standard by articulating a legitimate, 26 nondiscriminatory reason for not hiring Plaintiff. 27 Court finds the hiring freeze, which prevented non28 current employees from applying for positions, to be a
6

18 is between the age of forty to seventy years old.

Plaintiff was qualified for A younger person with similar See Cotton,

See Cotton, 812 F.2d at 1248; See Gomez-

22 qualifications did receive the position.

1 "legitimate, nondiscriminatory" reason for not hiring 2 Plaintiff. 3 See id. Therefore, Plaintiff fails to meet his burden

4 shifting standard by showing that Defendant's 5 legitimate, nondiscriminatory reason is merely a 6 pretext for discrimination. Plaintiff has failed to 7 proffer any argument that Defendant's legitimate, 8 nondiscriminatory reason was merely a pretext for age 9 discrimination. 10 Therefore, the Court finds no genuine issue of 11 material fact exists, as to whether Defendant's 12 legitimate, nondiscriminatory reason for not hiring 13 Plaintiff was merely a pretext for discrimination. 14 16 17 DATED: April 14, 2010 18 19 IT IS SO ORDERED. 20 21 22 23 24 25 26 27 28
7

The Court GRANTS Defendant's Motion for Summary

15 Judgment on New Claim in Second Amended Complaint.

HONORABLE RONALD S.W. LEW Senior, U.S. District Court Judge