Contreras v. California National Guard et al

Filing 15

ORDER signed by Judge Kimberly J. Mueller on 2/25/14 ORDERING that Defendants' MOTION to DISMISS 10 is GRANTED; and The CASE IS CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GRACIELA M. CONTRERAS,

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Plaintiff,

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No. 2:13-CV-1440 KJM KJN

v.

ORDER

THE CALIFORNIA NATIONAL
GUARD, et al.,
Defendants.

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This case was on calendar on January 17, 2014 for a hearing on a motion to

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dismiss filed by the U.S. Department of the Army and John McHugh, Secretary of the Army

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(collectively “defendants”). Chi Soo Kim, Assistant United States Attorney, appeared for

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defendants; R. Parker White appeared for Graciela Contreras (“plaintiff”). After considering the

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parties’ arguments, the court GRANTS the motion.

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I. BACKGROUND
On July 18, 2013 plaintiff filed a complaint against the California National Guard

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(the “Guard”),1 the U.S. Department of the Army and John McHugh, alleging three claims

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stemming from plaintiff’s termination from her employment with the Guard: (1) wrongful

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termination in violation of public policy against racial and disability discrimination in the

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At the hearing plaintiff represented she has served the Guard. It has not appeared in this

case.
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workplace; (2) intentional infliction of emotional distress; and (3) harassment. ECF No. 1. She

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alleges generally that she was employed by the Department of the Defense for twenty-nine years,

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most recently as an Equal Employment Specialist, GS-0260-09, but that on August 2, 2012,

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defendants terminated her employment because of her disability and race. Id. ¶¶ 8, 10, 14.

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Specifically, on July 23, 2012, plaintiff was notified she had to report to duty on August 2, 2012

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with a medical clearance from her doctor. Id. ¶ 22. She notified her supervisor she would need a

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two-week extension, as her doctor had recently moved from the area. Id. When she reported for

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duty on August 2, she was terminated for failure to bring a medical clearance. Id. ¶ 23.

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On November 8, 2013, defendants filed a motion to dismiss for lack of subject

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matter jurisdiction, arguing that (1) the United States has not waived its sovereign immunity for

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the state law claims; (2) plaintiff cannot bring a tort claim based on facts that would support

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claims under Title VII or the Rehabilitation Act (“RA”); (3) plaintiff never submitted an

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administrative tort claim to the army and so cannot pursue claims under the Federal Tort Claims

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Act (“FTCA”); (4) plaintiff has not exhausted her claim of discriminatory termination because

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she voluntarily withdrew those claims from the EEO process; and (5) the Civil Service Reform

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Act (“CSRA”) precludes judicial review. ECF No. 10 at 3. The court agrees with defendants that

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plaintiff cannot bring any claims under the FTCA, Title VII or the RA and so does not reach the

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preemptive effect, if any, of the CSRA.

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II. STANDARD: MOTION TO DISMISS/LACK OF SUBJECT MATTER JURISDICTION

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Federal courts are courts of limited jurisdiction and, until proven otherwise, cases

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lie outside the jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S.

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375, 377–78 (1994). Lack of subject matter jurisdiction may be challenged by either party or

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raised sua sponte by the court. FED. R. CIV. P. 12(b)(1); FED. R. CIV. P. 12(h)(3); see also

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Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583–84 (1983). A Rule 12(b)(1) jurisdictional

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attack may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a

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facial attack, the complaint is challenged as failing to establish federal jurisdiction, even assuming

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all the allegations are true and construing the complaint in the light most favorable to plaintiff.

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See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
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By contrast, in a factual attack, the challenger provides evidence that an alleged

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fact is false resulting in a lack of subject matter jurisdiction. Id. In these circumstances, the

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allegations are not presumed to be true and “the district court is not restricted to the face of the

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pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual

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disputes concerning the existence of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560

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(9th Cir. 1988). “Once the moving party has converted the motion to dismiss into a factual

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motion by presenting affidavits or other evidence properly brought before the court, the party

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opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of

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establishing subject matter jurisdiction.” Savage v. Glendale Union High Sch., 343 F.3d 1036,

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1039 n.2 (9th Cir. 2003).

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III. SOVEREIGN IMMUNITY AND THE FEDERAL TORT CLAIMS ACT

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Plaintiff asserts claims for wrongful termination in violation of public policy,

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intentional infliction of emotional distress and harassment. It is not clear there is a common law

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tort of harassment in California; plaintiff’s claim is based on her termination for failure to provide

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a medical clearance and thus appears to be a claim of employment discrimination.

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“‘In a suit against the United States, there cannot be a right to money damages

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without a waiver of sovereign immunity . . . .’” Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir.

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1983) (quoting United States v. Testan, 424 U.S. 392, 400 (1976)). The doctrine, which protects

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not only the United States but its agencies and officials from suit, is jurisdictional. FDIC v.

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Meyer, 510 U.S. 471, 475 (1994) (“Meyer”); Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997)

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(“The doctrine of sovereign immunity applies to federal agencies and federal employees acting

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within their official capacities.”). The party who sues the United States bears the burden of

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demonstrating a waiver of sovereign immunity. Holloman, 708 F.2d at 1401.

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Plaintiff argues “defendant has failed to show . . . whether Defendants were acting

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under color of state or federal law” and so dismissal is not proper. Opp’n, ECF No. 12 at 3. She

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cites to Johnson v. Orr, 780 F.2d 386 (3d Cir. 1986), which considered whether “Air National

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Guard (“ANG”) technician supervisory personnel and the New Jersey Adjutant General act under

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color of state law for purposes of 42 U.S.C. § 1983 . . . when participating in personnel decisions
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resulting in the dismissal of ANG technicians.” Id. at 387. Johnson did not consider, much less

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resolve, whether there was a waiver of sovereign immunity for state-law tort claims brought

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against a federal agency and the head of that agency acting in his official capacity. Moreover, as

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plaintiff has not brought a civil rights claim, the question whether the federal defendants could be

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deemed to have acted under color of state law has no relevance to the resolution of the

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jurisdictional issues presented by the motion to dismiss.

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Defendants recognize that the FTCA provides a limited waiver of sovereign

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immunity for certain torts committed by federal employees, Meyer, 510 U.S. at 477; 28 U.S.C.

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§1346(b), but argue plaintiff has not exhausted administrative remedies under the Act.

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Exhaustion of administrative remedies is a jurisdictional prerequisite to an FTCA suit in federal

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court. Valadez-Lopez v. Chertoff, 656 F.3d 851, 855 (9th Cir. 2011) (stating that a tort claimant

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cannot bring suit against the United States “without first filing [his] claim with an appropriate

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federal agency and either receiving a conclusive denial . . . or waiting for six months to elapse

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without a final disposition of the claim”) (internal quotation marks & citation omitted);

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Holloman, 708 F.3d at 1402 (when claimants did not file administrative claim, the FTCA’s

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“waiver of sovereign immunity is not available to them”).

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Defendants have presented the declaration of Lorenzo Ferguson, the Chief of the

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Army’s Operations and Records Branch. Decl. of Lorenzo Ferguson, ECF No. 10-2 ¶ 1.

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Ferguson avers he has access to records of all claims, including FTCA claims, for which the

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Army has investigative responsibility and his search of those records did not disclose an

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administrative claim under the FTCA filed by plaintiff. Id. ¶¶ 1-2. Plaintiff has not presented any

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evidence demonstrating any efforts to exhaust and therefore cannot pursue her claims against the

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Army and Secretary McHugh. Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1254 (9th

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Cir. 1997) (dismissing plaintiff’s claims for loss of job and intentional infliction of emotional

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distress because he did not exhaust administrative remedies under the FTCA).

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Plaintiff asks leave to amend to allege claims under Title VII and the RA if the

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court finds it lacks jurisdiction over her wrongful termination claim. ECF No. 12 at 4.2 As

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explained below, however, she has failed to exhaust her administrative remedies as to those

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claims as well.

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IV. TITLE VII, REHABILITATION ACT AND EMPLOYMENT CLAIMS

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Title VII is “an exclusive, preemptive administrative and judicial scheme for the

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redress of federal employment discrimination.” Brown v. Gen. Servs. Admin., 425 U.S. 820, 828

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(1976); Brock v. United States, 64 F.3d 1421, 1422-23 (9th Cir. 1995) (stating that federal

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employee’s claims of employment discrimination must be brought under Title VII, not FTCA);

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Davidson v. Korman, No. C 09-1695 SBA, 2010 WL 3515760, at *4-5 (N.D. Cal. Sep. 8, 2010)

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(finding federal employee’s state law claims for employment discrimination preempted by Title

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VII). In addition, the exclusive remedy for disability discrimination claims brought by federal

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employees is the RA, 29 U.S.C. § 791, which proscribes discrimination against a qualified person

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because of that person’s disability. Boyd v. United States Postal Serv., 752 F.2d 410, 412-13 (9th

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Cir. 1985); Niimi-Montalbo v. White, 243 F. Supp. 2d 1109, 1122 (D. Haw. 2003). Both Title VII

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and the RA require the employee to exhaust administrative remedies before filing suit. Vinieratos

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v United States Dept. of the Air Force, 939 F.2d 762, 768 (9th Cir. 1991). 3

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Defendants contend plaintiff abandoned her administrative complaint before

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completing the administrative process. As noted above, plaintiff suggests she should be able to

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undertake discovery to determine whether she was a state employee and thus not bound by any

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In her complaint, plaintiff invokes this court’s subject matter jurisdiction under
28 U.S.C. §1331 “because the claims herein arise under laws of the United States, Title VII.”
ECF No. 1 ¶ 1. She does not plead a Title VII claim.

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The Ninth Circuit has said that it does “not recognize administrative exhaustion under
Title VII as a jurisdictional requirement per se,” but characterizes the issue as whether a plaintiff
“has satisfied a statutory precondition to suit.” Vinieratos, 939 F.2d at 768 n.5 (emphases in
original). It has also said that a failure to exhaust EEO remedies is a jurisdictional prerequisite
and has considered such a claim under the standards of Rule 12(b)(1). Sommatino v. United
States, 255 F.3d 704, 707 (9th Cir. 2001); see also Surrell v. Calif. Water Serv. Co., 518 F.3d
1097, 1104 (9th Cir. 2008) (stating that timeliness of EEOC exhaustion and securing a right to
sue letter are not jurisdictional while exhaustion itself is jurisdictional). This court will apply the
standards of 12(b)(1) to the issue in this case.
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exclusive remedies under the RA and Title VII. ECF No. 12 at 4. Even though a member of a

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state’s National Guard may shift between federal and state service depending on her duty status,

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Perpich v. Dep’t of Defense, 496 U.S. 334, 348-49 (1990), a civilian employee of a National

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Guard unit is a federal employee. Singleton v. Merit Sys. Prot. Bd., 244 F.3d 1331, 1334 (Fed.

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Cir. 2001) (stating that technicians “are deemed to be federal employees”); Johnson, 780 F.2d at

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390 (stating that the National Guard Technicians Act “made National Guard technicians, who had

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been state ‘caretakers’ under the previous statute, federal employees”); 32 U.S.C. § 709(e) (A

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technician . . . is an employee of the Department of the Army . . . and an employee of the United

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States”). In addition, defendants have presented evidence, not rebutted by plaintiff, that plaintiff

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was hired under 32 U.S.C. § 709 as a non-dual status National Guard technician. Decl. of Kevin

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Park, ECF No. 10-3 ¶ 2; see 10 U.S.C. § 10217(a) (identifying non-dual status technicians as

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certain civilian employees of the Department of Defense who were, among other things, not

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required to join the Guard itself). At hearing, plaintiff argued she was a dual-status technician,

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but presented no evidence to support her claim.

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In a similar case, the district court for the District of Delaware rejected a plaintiff’s

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request to conduct discovery into his status as a state or federal employee: “Plaintiff must be

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aware of the description and title of the job he held for three years. . . . Plaintiff does not cite any

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authority to support the proposition that civilians may be employed by the National Guard as non-

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technicians outside the aegis of § 709.” Petr v. Delaware Air Nat’l Guard, Civ. A No. 94-327-

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SLR, 1995 WL 579634, at *3 (D. Del. Sep. 28, 1995). Plaintiff’s claim that she was terminated

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because of her race and her disability must be brought under Title VII and the RA.

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As noted, before a federal employee may proceed with a Title VII or RA claim in

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district court, she must first file a claim of discrimination with the EEOC. EEOC v. Dinuba Med.

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Clinic, 222 F.3d 580, 585 (9th Cir. 2000). In order to exhaust, “[a] plaintiff may not cut short the

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administrative process prior to its final disposition, for upon abandonment a claimant fails to

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exhaust administrative relief and may not thereafter seek redress from the courts.” Greenlaw v.

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Garrett, 59 F.3d 994, 997 (9th Cir. 1995); Vinieratos, 939 F.2d at 771 (“[A]bandonment of the

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administrative process may suffice to terminate an administrative proceeding before a final
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disposition is reached, thus preventing exhaustion and precluding judicial review.”). A plaintiff

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may pursue a claim without completing the administrative process if the EEOC has not taken

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final action within 180 days after the formal complaint has been filed. Bullock v. Berrien,

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688 F.3d 613, 616 (9th Cir. 2012).

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Defendants have presented evidence showing that plaintiff filed a formal

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complaint of discrimination with the National Guard’s EEO office on September 12, 2012. Decl.

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of Niki L. Ching, ECF No. 10-1 at 1, 5-9. On January 28, 2013, Derrik Allen, Chief of the

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Complaints Management and Adjudications Division of the National Guard accepted her

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complaint and requested an investigation by the Investigation Resolution Division. ECF No. 10-1

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at 11-12. Allen designated plaintiff’s claim that she was denied a reasonable accommodation to

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work at home as claim 3a and the termination challenge as claim 3b. Id. at 11. On February 4,

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2013, plaintiff emailed Allen, among others, stating:

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I request allegation item #3.a remain as stated and the IRD
investigation to proceed accordingly . . . .
I request a partial withdrawal of my Wrongful Termination EEO
complaint in the above noted case. Please remove allegation 3.b
from the memorandum noted above.
I am requesting my Notice of Right to Sue letter from EEOC
regarding the wrongful termination and will proceed accordingly
(ACTION NOTIFICATION).

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ECF No. 10-1 at 15. Counsel sent a similar notification on February 6, 2013. Id. at 17.

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Thereafter, on February 25, 2013, Allen notified plaintiff that his office accepted the withdrawal

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of plaintiff’s complaint that her termination was discriminatory, advised her that “[w]ithdrawal of

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a complaint terminates the administrative processing of the complaint” and notified the

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Investigation Resolution Division “to cease any investigation into this allegation.” ECF No. 10-1

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at 21, ¶¶ 1a, c & 2. Allen then sent a Revised Notice of Acceptance, repeating that plaintiff,

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through counsel, had voluntarily withdrawn the claim stemming from her termination “prior to an

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investigation.” ECF No. 10-1 at 26.

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In this case, plaintiff withdrew her termination claim from the EEOC complaint
before any investigation had been completed and any final action was taken. Plaintiff argues the
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exhaustion requirement is satisfied simply by filing an EEO complaint and her request for a right

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to sue letter is not tantamount to an abandonment of the claim. ECF No. 12 at 5-6. At argument

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on the motion, she said she asked for a right to sue letter because she had lost confidence in the

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EEO proceedings. She has cited nothing suggesting her desire to sue or her loss of confidence

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excuses or is a substitute for exhaustion. See Brown v. City of New York, 869 F. Supp. 158 (S.D.

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N.Y. 1994) (if request to withdraw an EEOC charge is granted before final action is taken, it

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deprives the court of jurisdiction to hear the withdrawn charge whether the request was “mistaken

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or otherwise”).

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V. WHETHER TO GRANT LEAVE TO AMEND

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Plaintiff asks leave to amend her complaint to raise Title VII and RA claims, but

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as noted above, her failure to exhaust means this court does not have jurisdiction over these

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claims. When amendment would be futile a court may properly deny leave to amend. Ascon

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Prop., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989). The court will not speculate

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whether plaintiff would be able to raise any claims against defendant California National Guard

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because even if plaintiff might be able to plead a viable claim, this court could not hear it.

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Virginia Office for Prot. & Advocacy v. Stewart, ___ U.S. ___, 131 S. Ct. 1632, 1638 (2011)

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(“[A]bsent a waiver or valid abrogation, federal courts may not entertain a private person’s suit

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against a State.”); Freeman v. Oakland Unified Sch. Dist. 179 F.3d 846 (9th Cir. 1999) (Eleventh

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Amendment bars FEHA claim against state agency); Krause v. Pennsylvania Dep’t of Military &

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Veteran Affairs, Civil Action No. 1:11-CV-01080, 2013 WL 5466643, at *3 (M.D. Pa. Sep. 30,

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2013) (finding Eleventh Amendment barred suit for damages against National Guard).

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IT IS THEREFORE ORDERED that:

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1. Defendants’ motion to dismiss, ECF No. 10, is granted; and

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2. The case is closed.

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Dated: February 25, 2014.

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UNITED STATES DISTRICT JUDGE

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