Wingate v. U.S. Postal Service

Filing 23

Order by Magistrate Judge Laurel Beeler granting 19 Motion to Dismiss.(lblc1S, COURT STAFF) (Filed on 7/23/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
NORMA J. WINGATE,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 12-05560 LB

ORDER GRANTING MOTION
TO DISMISS

Plaintiff,
v.

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UNITED STATES POSTAL SERVICE,
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[ECF NO. 19]
Defendant.
_____________________________________/

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INTRODUCTION

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Pro se Plaintiff Norma J. Wingate, a retired United States Postal Service (“USPS”) employee

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filed suit against the United States Postal Service for employment discrimination and retaliation.

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See Complaint, ECF No. 1.1 Documents attached to the complaint appear to allege tort claims. See,

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e.g., ECF No. 1 at 3 (fraud), ECF No. 1-3 at 1 (extortion), ECF No. 1-1 at 3-5 (invasion of privacy).

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On June 17, 2013, the USPS moved to dismiss all of Ms. Wingate’s claims. See Motion, ECF No.

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19. For the reasons discussed below, the court GRANTS the USPS’s motion to dismiss.

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STATEMENT

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Plaintiff Norma J. Wingate is a retired USPS employee. On October 26, 2009, Ms. Wingate

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contacted the USPS’s Equal Employment Opportunity (“EEO”) office. See Tam Decl. Ex. A, ECF

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page number at the top of the document.
C 12-05560 LB
(ORDER)

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No. 19-2 at 3.2 On December 24, 2009, Ms. Wingate filed a formal EEO Complaint of

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Discrimination in the Postal Service. Id. at 2. She alleged that “Manager Sharon Gray and USPS”

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discriminated against her “based on Race (African-American), Color (Black), Sex (Female),

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National Origin (Unspecified), Age (DOB: 3/3/39), Mental Disability (Stress) and Retaliation (Prior

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EEO Activity).” Id. at 9 (letter restating Ms. Wingate’s allegations); see id. at 2-3.

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Ms. Wingate’s EEO complaint alleged that she was off work from August 26 to September 14,
2009, due to “Harassment and a Hostile Work environment on Job Stress.” Id. at 3, 9. On

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September 16, 2009, Sharon Gray gave Ms. Wingate a new job assignment, but Ms. Wingate refused

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to accept the change. Id. at 5. Gray then told Ms. Wingate not to return to work and placed her in a

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“no pay status (LWOP)” for her August 26 to September 14, 2009 absence and from September 16,

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2009 forward. Id. at 5, 9.

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For the Northern District of California

UNITED STATES DISTRICT COURT

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On April 20, 2009, the USPS issued a “Final Agency Decision” regarding her complaint. See

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Tam Decl. Ex. B, ECF No. 19-3 at 2-20. The USPS found that Ms. Wingate failed to establish that

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she was subjected to discrimination or retaliation. See id. at 13-14, 16, 19. The Final Agency

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Decision stated that Ms. Wingate could appeal either to the USPS’s Merit Systems Protection Board

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(“MSPB”) or the appropriate United States District Court. Id. at 19. On May 27, 2010 Ms. Wingate

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appealed the decision to the MSPB (“Wingate I”). See Tam Decl. Ex. D, ECF No. 19-5.

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On November 3, 2010, while the MSPB appeal was pending, the USPS issued a letter informing

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Ms. Wingate that she would be fired from the USPS. See Tam Decl., Ex. C, ECF No. 19-4 at 6. She

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appealed this decision to the MSPB (“Wingate II”) and the two appeals were combined. See MSPB

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Decision, ECF No. 19-5 at 3. On August 8, 2011, MSPB Administrative Judge Grace B. Carter

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issued an initial decision, reversing Ms. Wingate’s suspension and removal. See Id. Judge Carter

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awarded Ms. Wingate back pay and ordered the USPS to restore Ms. Wingate’s employment. See

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id. at 34-35.3 Judge Carter also found that Ms. Wingate “failed to show that she was discriminated

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Because the USPS’s motion challenges the factual basis for jurisdiction, the court considers
these submissions.
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The decision gave Ms. Wingate permission to file a petition for enforcement with the MSPB
to resolve any dispute about the amount of back pay. See id. at 35.
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(ORDER)

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against on the basis of race, color, sex, age, and/or disability or because of prior EEO activity, in

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connection with the two subject actions.” Id. at 34.

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Ms. Wingate appealed Judge Carter’s decision to the Board itself. See MSPB Opinion and

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Order, Tam Decl. Ex. E, ECF No. 19-6. She argued that Administrative Judge Carter erred in

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finding that she failed to establish her discrimination claims. Id. On September 27, 2012, the Board

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affirmed Judge Carter’s initial decision that Ms. Wingate did not establish discrimination or

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retaliation. Id. The MSPB Opinion stated that Ms. Wingate could “file a civil action against the

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agency on both your discrimination claims and your other claims in an appropriate United States

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district court.” Id. at 9 (citing 5 U.S.C. § 7703(b)(2)).

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On October 30, 2012, Ms. Wingate filed a complaint with numerous attachments in this court.
See Complaint, ECF No. 1.4 Ms. Wingate alleges that the USPS is liable under Title VII for

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For the Northern District of California

UNITED STATES DISTRICT COURT

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discriminating against her with respect to her race or color, sex, and national origin. See Complaint

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¶¶ 3-5. The basic facts surrounding Ms. Wingate’s discrimination claim are:

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Put off the clock Sept. 16, 2009 without due process. Denied Pay (LWOP) for 7 months.
Falsified attendance records in order to issue a Letter of Removal. Harassed with
unnecessary letters. Conspired with Postmaster and Managers to Punish me by changing my
assignment while I was off on sick, Refused to Pay Leave.

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Complaint ¶ 6. The alleged discrimination occurred “continuously for years but more obvious

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beginning Sept. 2009 thru 2012.” Id. ¶ 7.

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Attached to the three-page complaint are 83 pages of exhibits, which include factual allegations

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handwritten on unlined paper, copies of administrative proceedings between Ms. Wingate and the

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USPS, and documents including copies of correspondence, checks, pay stubs, and attendance

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records (many of the documents also bear illegible handwritten margin notes and annotations). See

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Defendant points out that the complaint improperly names “U.S. Post Office” as the
defendant because Title VII claims must be brought against the head of the relevant agency accused
of discriminatory practices. See Motion at 7 n.1; accord 42 U.S.C. § 2000e-16(c). Accordingly,
Patrick R. Donohoe, Postmaster General of the United States is substituted in place of the U.S. Post
Office as the Defendant with respect to Ms. Wingate’s Title VII claims. See 42 U.S.C. § 2000e16(c). For purposes of this order, however, the court will refer to the Defendant as the USPS.
C 12-05560 LB
(ORDER)

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Attachments to Complaint, ECF Nos. 1-1 – 1-4.5 Ms. Wingate seek two types of relief in the

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complaint.

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First, the complaint is an appeal from the MSPB’s decision denying Ms. Wingate’s

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discrimination claim. See Complaint, ECF No. 1-3 at 1 (“I am appealing MSPBs Final Decision on

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EEO and Reconsideration on the Constructive Suspension.”). The complaint does not allege facts to

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support any of the underlying discrimination claims, though. See Complaint, passim. Ms. Wingate

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does not allege that she filed a Complaint with the EEOC or the California Department of Fair

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Employment and Housing. Id. Nor does she allege that she received a right-to-sue notice from the

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EEOC. Id. ¶ 9.

and the complaint is a “petition for enforcement” of that order. See Complaint, ECF No. 1-1 at 1-2;

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For the Northern District of California

Second, Ms. Wingate alleges that the USPS has not fully complied with the MSPB’s decision

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UNITED STATES DISTRICT COURT

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ECF No. 1-3 at 1. As alleged, the USPS failed to comply with the MSPB decision in the following

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ways:

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1. The USPS sent Ms. Wingate’s checks to the Bayview Station, where she used to work,
rather than to another address. See, e.g., id. at 1.

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2. Sharon Gray also delayed sending the checks to Ms. Wingate. See id. at 3-5
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3. The USPS withheld money from her back pay award for federal income taxes, and
improperly reduced the award to pay for health benefits and union dues. See, e.g., id. at 2.

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4. The USPS underpaid (or did not pay) the amount of pre-judgment interest on the MSPB
award. See, e.g., id. at 3; ECF No. 1-2 at 8.

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5. The USPS improperly denied Ms. Wingate pay for performance bonuses for 2009 and
2010. See Complaint, ECF No. 1-2 at 1-5.

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6. The USPS refuses to correct her attendance records to reflect the MSPB decision. See
Complaint, ECF No. 1-3 at 15.

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In addition to the documents filed in this case, on May 15, 2013, Ms. Wingate filed 59
pages of documents in her related case, Wingate v. US Post Office, No. 13-1722 LB (N.D. Cal.) (the
“2013 Case”). See 2013 Case, ECF No. 6. Among these documents is a letter dated March 10, 2013
from Ms. Wingate to the court. See ECF No. 6-1 at 5, 9-29. At the top of each page is what appears
to be a mistranscription of this matter number (“CASE NO. CV12-0550 LB”). Ms. Wingate did not
file that letter in this case and it is not part of the complaint at issue. Nonetheless, the letter would
not change the outcome of this case because the discrimination allegations fail for the same reasons
as the allegations in the complaint.
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(ORDER)

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In addition, Ms. Wingate references possible tort claims including fraud, extortion, and invasion of

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privacy.6 See ECF No. 1 at 3 (fraud), ECF No. 1-3 at 1 (extortion), ECF No. 1-1 at 3-5 (alleging

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USPS manager Gray invaded her privacy by opening her checks and reading them”).
ANALYSIS

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I. LEGAL STANDARDS

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A. Rule 12(b)(1)

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Federal Rule of Civil Procedure 12(b)(1) permits defendants to move for dismissal of a

jurisdiction by filing a complaint in federal court, a plaintiff bears the burden of establishing that

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jurisdiction See, e.g., Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994);

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Farmers Ins. Exchange v. Portage La Prairie Mut. Ins. Co., 907 F.2d 911, 912 (9th Cir. 1990).

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For the Northern District of California

complaint for lack of subject-matter jurisdiction. Because a plaintiff seeks to invoke federal

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UNITED STATES DISTRICT COURT

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Hence, a plaintiff must plead sufficient facts in the complaint to establish the court’s jurisdiction

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Fed. R. Civ. P. 8(a)(1).

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A defendant may mount either a facial or a factual challenge to the court’s jurisdiction See White

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v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial attack asserts that the lack of federal

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jurisdiction appears on the face of the complaint. See Warren v. Fox Family Worldwide, Inc., 328

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F.3d 1136, 1139 (9th Cir. 2003). In this context, a court must “accept all allegations of fact in the

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complaint as true and construe them in the light most favorable to the plaintiffs.” See id. In

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contrast, with a factual challenge, courts do not accept as true all facts in a plaintiff’s complaint and

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may evaluate extrinsic evidence and resolve factual disputes when necessary. See Roberts v.

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Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987) (quoting Augustine v. United States, 704 F.2d

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1074, 1077 (9th Cir. 1983)). Where a defendant asserts a factual challenge by presenting affidavits

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or other evidence, the party opposing the motion must present sufficient evidence to support the

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court’s subject-matter jurisdiction See Savage v. Glendale Union High School, Dist. No. 205,

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Maricopa County, 343 F.3d 1036, 1040 n. 2 (9th Cir. 2003). Dismissal of a complaint without leave

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Defendant’s motion to dismiss also mentions “what appear to be additional claims of
violations of the Fourteenth Amendment, due process, conspiracy, extortion and stalking.” Motion,
ECF No. 19 at 11.
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(ORDER)

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to amend should only be granted where the jurisdictional defect cannot be cured by amendment.

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Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

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B. Rule 12(b)(6)

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Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim

12(b)(6) “tests the legal sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir.

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2001). In order to survive a motion to dismiss, a plaintiff must allege “enough facts to state a claim

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to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

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129 S. Ct. 1937, 1949 (2009). “The plausibility standard is not akin to a ‘probability requirement,’

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for “failure to state a claim upon which relief can be granted.” A motion to dismiss under Rule

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UNITED STATES DISTRICT COURT

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but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting

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Twombly, 550 U.S. at 557.) In considering a motion to dismiss, a court must accept all of the

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plaintiff's allegations as true. Id. at 550; Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The

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plaintiff’s complaint need not contain detailed factual allegations, but it must contain more than a

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“formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. “Threadbare

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recitals of the elements of a cause of action, supported by mere conclusory statements, do not

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suffice.” Iqbal, 129 S. Ct. at 1949. In reviewing a motion to dismiss, courts may also consider

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documents attached to the complaint. Parks School of Business, Inc. v. Symington, 51 F.3d 1480,

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1484 (9th Cir. 1995) (citation omitted). Additionally, courts may consider a matter that is properly

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the subject of judicial notice, such as matters of public record. Lee v. City of Los Angeles, 250 F.3d

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668, 688 (9th Cir. 2001). If the court dismisses the complaint, it “should grant leave to amend even

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if no request to amend the pleading was made, unless it determines that the pleading could not

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possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

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2000).

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II. MS. WINGATE’S EMPLOYMENT DISCRIMINATION CLAIMS FAIL

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The USPS moves to dismiss Ms. Wingate’s discrimination claims for two reasons. First, it

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argues that the court should dismiss any discrimination claims that were not part of Ms. Wingate’s

C 12-05560 LB
(ORDER)

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MSPB complaint for failure to exhaust administrative remedies. See Motion, ECF No. 19 at 13.

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Second, the USPS moves to dismiss those discrimination and retaliation claims that were part of Ms.

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Wingate’s MSPB complaint for failure to state a claim upon which relief can be granted. Id. at 17-

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19. For both reasons, the court dismisses Ms. Wingate’s discrimination claims.

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A. Ms. Wingate Has Not Exhausted Her Administrative Remedies

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The USPS argues that the court lacks jurisdiction to hear the Title VII discrimination claims

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because Ms. Wingate did not raise them before the MSPB and thus did not exhaust her

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administrative remedies. See Motion, ECF No. 19 at 13. Id. Ms. Wingate did not respond to this

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argument. See Opp’n, ECF No. 21.

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Exhaustion of administrative remedies is a prerequisite to this court’s subject matter jurisdiction.
B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002); EEOC v. Farmer Bros. Co., 31

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For the Northern District of California

UNITED STATES DISTRICT COURT

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F.3d 891, 899 (9th Cir. 1994). See also Freeman v. Oakland Unified School Dist., 291 F.3d 632,

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638 (9th Cir. 2002) (holding that in order to establish subject matter jurisdiction over a Title VII

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claim, plaintiff must first exhaust his administrative remedies); Ross v. USPS, 696 F.2d 720, 722

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(9th Cir. 1983) (a former USPS employee alleging race discrimination could not bring an

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employment discrimination case in federal court before first exhausting internal remedies with the

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USPS).

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Federal employees asserting Title VII claims must exhaust their administrative remedies as a

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precondition to filing a civil action in federal district court. See Brown v. General Servs. Admin.,

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425 U.S. 820, 832 (1976). Generally, a federal employee must seek relief from the EEO department

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of the employing agency. See McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir. 1995); 29 C.F.R. §§

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1614.101-1614.110.

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With regard to the USPS, federal regulations require an individual alleging discrimination under

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Title VII or the ADEA to contact a USPS EEO Counselor within forty-five days of the allegedly

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discriminatory action. Id.; 29 C.F.R. § 1614.105. If the counselor is unable to informally resolve

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the matter, an individual alleging discrimination under Title VII7 must file a formal complaint with

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An individual alleging age discrimination under the ADEA is not required to file a formal
complaint with the agency before filing suit in a United States district court. See 29 C.F.R.
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(ORDER)

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the USPS’s EEO program. Id. § 1614.106. The USPS can dismiss a complaint if the complainant

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fails to state a claim. Id. § 1614.107. Otherwise, it must investigate the complaint, hold a hearing (if

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the complainant requests one), and issue a final decision, which is considered a final agency action.

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Id. §§ 1614.108-1614.110.

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When a federal employee claims he or she has been affected by both an “adverse employment

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action” and a related Title VII violation, the employee may appeal the agency’s final decision to the

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Merit Systems Protection Board (“MSPB”). See Sloan v. West, 140 F.3d 1255, 1259 (9th Cir. 1998);

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5 U.S.C. § 1201, et seq. The MSPB is a quasi-judicial government agency which adjudicates federal

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employee appeals of agency personnel actions. Sloan, 140 F.3d at 1258-59. The MSPB has

removal, (2) a suspension for more than 14 days, (3) a reduction in grade, (4) a reduction in pay, or

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For the Northern District of California

appellate jurisdiction of “adverse employment actions” which fall within one of five categories: (1) a

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UNITED STATES DISTRICT COURT

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(5) a furlough of 30 days or less. Id. at 1259.

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The MSPB also has pendent jurisdiction over discrimination claims brought in connection with

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an appeal of an “adverse employment action,” that is, an appeal of an agency action that falls within

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one of the five categories of adverse employment actions. See Sloan, 140 F.3d at 1259. When a

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federal employee claims he or she has suffered an “adverse employment action” that was affected, in

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whole or part, by unlawful discrimination, he or she may exhaust his administrative remedies by

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asserting both claims before the MSPB. See id. Such a complaint is referred to as a “mixed case

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complaint.” See id.

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If the MSPB decides it has jurisdiction of the mixed case complaint, the complaint becomes a

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“mixed case appeal” appropriately adjudicated by the MSPB. See Sloan, 140 F.3d at 1260. A

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“mixed case appeal,” in which the MSPB decides the merits of both the nondiscrimination claim

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(i.e., the adverse employment action) and the discrimination claim, may be appealed to a federal

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district court under the applicable discrimination statute. See id. at 1261; Washington v. Garrett, 10

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F.3d 1421, 1428 (9th Cir. 1993).

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If an employee appeals directly to the MSPB, an ALJ makes an initial decision which becomes

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§ 1614.201(a).
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(ORDER)

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final 35 days after issuance, unless “any party files a petition for review” with the MSPB, or the

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MSPB reopens the case on its own motion. 5 C.F.R. § 1201.113. The MSPB may either deny a

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petition for review, at which point the decision becomes “final,” 5 C.F.R. § 1201.113(b), or it may

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grant review and issue a final decision. 5 C.F.R. § 1201.113(c). Once the MSPB issues a final

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decision, the employee has three options: (1) appeal the discrimination claim to the EEOC within 30

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days, 5 C.F.R. § 1201.157; (2) appeal both the discrimination and nondiscrimination claims to the

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appropriate district court within 30 days; or (3) appeal the nondiscrimination claim to the United

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States Court of Appeals for the Federal Circuit within 60 days. 5 U.S.C. § 7703(b).

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The jurisdictional scope of a Title VII claimant’s court action depends upon the scope of

Cir. 1990) (citing Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472, 1476 (9th

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For the Northern District of California

the complaint and the agency’s investigation. Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th

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UNITED STATES DISTRICT COURT

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Cir. 1989)). The district court has subject matter jurisdiction only over discrimination claims that

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are either “‘within the scope of an EEOC investigation that reasonably could be expected to grow

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out of the allegations’ or be ‘like or reasonably related to the allegations made before the EEOC.’”

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Ulloa v. Potter, 442 Fed. App’x 334, 336 (9th Cir. 2011); see also Freeman v. Oakland Unified

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School Dist., 291 F.3d 632, 636 (9th Cir. 2002) (claims must either fall within the scope of the

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EEOC’s actual investigation or an EEOC investigation which can reasonably be expected to grow

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out of the charge of discrimination); Wlebon v. Potter, No. C 02-4512 SI, 2004 WL 834696, at *4

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(N.D. Cal. April 12, 2004 (granting summary judgment for lack of jurisdiction over claims that were

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not alleged in the EEOC complaint).

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Here, the USPS argues that Ms. Wingate’s claims for improper calculation of her back pay

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award, harassment in sending her settlement check to the wrong address, and in opening her mail

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were never presented to the MSPB and are not reasonably related to any claims that were. Motion at

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13. The court agrees. Her allegations relate to the USPS’s compliance with the MSPB decision and

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are unrelated to the allegations in her MSPB complaint as described above.

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In a factually-similar case where the district court granted summary judgment in the USPS’s

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favor on the merits of a retaliation claim, the Ninth Circuit vacated the judgment and remanded with

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instructions to dismiss the claim for lack of jurisdiction. See Ulloa, 442 Fed. App’x at 336. In

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(ORDER)

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Ulloa, the plaintiff brought a retaliation claim based on the USPS’s processing forms that were used

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to calculate Ulloa’s back pay award from a prior EEO proceeding. Id. Because the retaliation claim

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was based on actions that took place after the EEO proceeding, the court found that the claim was

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not within the scope of that investigation. Id. Nor was it “like or reasonably related to the

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allegations made before the EEOC” because the “dates, factual details and alleged perpetrators”

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were different. Id.

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Just as in Ulloa, Ms. Wingate alleges that the USPS discriminated and retaliated against her in

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the way it responded to a prior EEO proceeding. Because she did not raise these allegations in a

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new MSPB proceeding, this court lacks jurisdiction to hear them now. Accordingly, to the extent

those claims are dismissed for lack of jurisdiction. This includes claims based on allegations that

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the complaint states Title VII claims based on allegations that were not presented to the MSPB,

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UNITED STATES DISTRICT COURT

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The USPS or its employees harassed Ms. Wingate, discriminated against her, or retaliated against

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her after the MSPB ruling. These claims are dismissed without prejudice.

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B. Ms. Wingate Fails to State a Claim For Employment Discrimination or Retaliation

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The USPS also moves to dismiss the claims to for race, color, sex, age, and national origin

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discrimination that Ms. Wingate presented to the MSPB as insufficiently pleaded. Motion at 17.

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Ms. Wingate’s opposition does not respond to the USPS’s arguments.

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1. The Complaint Does Not State a Title VII Claim
For a federal employee alleging employment discrimination on the basis of race, color, national

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origina, and sex, Title VII is the only available remedy. See Brown v. General Services

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Administration, 425 U.S. 820, 834 (1976) (holding that Title VII is the exclusive judicial remedy for

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discrimination in federal employment). Title VII provides that:

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It shall be an unlawful employment practice for an employer–

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(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national origin; or

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(2) to limit, segregate, or classify his employees or applicants for employment in any way
which would deprive or tend to deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee, because of such individual's race, color,
religion, sex, or national origin.

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C 12-05560 LB
(ORDER)

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42 U.S.C. § 2000e–2(a). “The emphasis of both the language and the legislative history of the

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statute is on eliminating discrimination in employment; similarly situated employees are not to be

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treated differently solely because they differ with respect to race, color, religion, sex, or national

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origin.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71 (1977).

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To establish a prima facie case of employment discrimination under Title VII, Ms. Wingate must

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prove that (1) she belongs to a protected class, (2) she was qualified for the position, (3) she was

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subject to an adverse employment action, and (4) similarly-situated individuals outside her protected

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class were treated more favorably. See Leong v. Potter, 347 F.3d 1117, 1124 (9th Cir. 2003) (citing

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Though heightened pleading

elements of a prima facie case of discrimination. Johnson v. Riverside Healthcare System, LP, 534

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standards are not mandated in Title VII cases, Ms. Wingate must plead sufficient facts to state the

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UNITED STATES DISTRICT COURT

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F.3d 1116, 1122 (9th Cir. 2008) (citing Williams v. Boeing Co., 517 F.3d 1120, 1130 (9th Cir.

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2008)).

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Here, Ms. Wingate fails to sufficiently allege these elements. First, the complaint does not

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specify Ms. Wingate’s national origin, so it fails at the first element. With regard to race and sex

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discrimination, the documents attached to the complaint indicate that Ms. Wingate is an African-

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American woman. See Complaint, ECF No. 1-4 at 3 (MSPB opinion). Liberally construed, the

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complaint alleges that she was qualified for her previous position at the USPS. See ECF No. 1-2 at

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14-15 (document purporting to be Ms. Wingate’s performance ratings for FY2009). She also alleges

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that she was subject to adverse employment actions when she was placed on leave without pay

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status.

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Ms. Wingate fails to allege, however, any facts showing that similarly-situated individuals

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outside her protected class were treated more favorably. Therefore, Ms. Wingate’s claims based on

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race, sex, and national origin are dismissed without prejudice.

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2. The Complaint Does Not State an ADEA Claim

26

The USPS also moves to dismiss Ms. Wingate’s claims under the Age Discrimination in

27

Employment Act (“ADEA”), 29 U.S.C. § 623, et seq. See Motion at 17-18. To establish a prima

28

facie case of discrimination under the ADEA, Ms. Wingate must plead facts that plausibly support

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2
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that:
(1) she was at least 40 years old; (2) she was performing her job satisfactorily; (3)
discharged; and (4) either replaced by a substantially younger employee with equal or
inferior qualifications or discharged under circumstances otherwise giving rise to an
inference of discrimination.

4
5

Sheppard, 694 F.3d at 1049. A plaintiff need not plead each element of the prima facie showing for

6

an age discrimination claim, though mere conclusory statement are insufficient. See Heyer v.

7

Governing Bd. of Mt. Diablo Unified School Dist., No. 11-16853, 2013 WL 1320499, at *1 (9th Cir.

8

Apr. 3, 2013) (slip op.) (citing Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1050 n.2 (9th Cir.

9

2012).

element of the prima facie case. Any ADEA claim rests solely on conclusory allegations that are

12
For the Northern District of California

As with her Title VII claims, Ms. Wingate fails to allege any facts with regard to the fourth

11
UNITED STATES DISTRICT COURT

10

insufficient. See Heyer, 2013 WL 1320499, at *1 (affirming dismissal of ADEA claim where

13

complaint lacked factual assertions that plaintiff’s replacement was substantially younger or that a

14

substantially younger individual received more favorable treatment). Accordingly, Ms. Wingate’s

15

ADEA claim is dismissed without prejudice.

16

3. The Complaint Does Not State Claims for Harassment, Hostile Work Environment, or

17

Retaliation

18

Next, the USPS moves to dismiss any claims for harassment, hostile work environment, or

19

retaliation. Motion at 18. The complaint’s allegations about harassment, hostile work environment,

20

and retaliation allegations all appear to relate to actions that Ms. Wingate has not administratively

21

exhausted.

22

Although pro se pleadings are liberally construed . . . a pro se plaintiff must still satisfy the

23

pleading requirements of Federal Rule of Civil Procedure 8(a).” Jackson v. Napolitano, No. CV-09-

24

1822-PHX-LOA, 2010 WL 94110, at *2 (D. Ariz. Jan.5, 2010) (granting defendant’s motion to

25

dismiss pro se complaint for failure to state claim for disability discrimination) (internal citations

26

omitted). “Neither the Court nor the defendants should be compelled to cull through pages of

27

rambling narrative, argument and needless digression to discover the factual bases for plaintiffs’

28

claims.” Jacobson v. Schwarzenegger, 226 F.R.D. 395, 397 (C.D. Cal.2005) (dismissing complaint

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1

pursuant to Rule 8); Sevilla v. Terhune, No. 1:06–cv–00172–LJO–WMW, 2009 WL 1211393, at *1

2

(E.D. Cal. May 1, 2009) (same). Accordingly, to the extent the complaint purports to state

3

harassment, hostile work environment, or retaliation claims, they are dismissed without prejudice.

4

III. ANY TORT CLAIMS ARE BARRED BY SOVEREIGN IMMUNITY

5

In addition to the allegations based on discrimination, the complaint references a number of tort

6

claims. The USPS contends that Ms. Wingate’s tort claims are barred by sovereign immunity and

7

that the Federal Tort Claims Act (“FTCA”) does not apply. Motion at 15. Ms. Wingate’s opposition

8

brief does not address the USPS’s arguments. See Opp’n, ECF No. 21.

9

The doctrine of sovereign immunity bars actions against the United States except where it clearly

such consent, as expressly set forth by Congress, define the court’s subject matter jurisdiction to

12
For the Northern District of California

and explicitly consents to be sued. United States v. Testan, 424 U.S. 392, 399 (1976). The terms of

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UNITED STATES DISTRICT COURT

10

entertain suits against the United States. United States v. Sherwood, 312 U.S. 584, 590-91 (1940).

13

Absent a waiver, the sovereign immunity doctrine shields the federal government, its agencies, and

14

its federal employees acting in their official capacity from suit. FDIC v. Meyer, 510 U.S. 471, 475

15

(1992); Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001).

16

The FTCA provides such a waiver. 28 U.S.C. § 2675(a). The FTCA permits civil actions

17

against the United States where federal agencies or employees commit negligent or wrongful acts or

18

omissions within the scope of their employment such that the law of the forum state would consider

19

the act or omission a tort. 28 U.S.C. § 1346(b)(1). The FTCA is the exclusive remedy for tort

20

allegedly committed by federal officers acting in the scope of their employment. 28 U.S.C.

21

§ 2679(b)(1). The FTCA is also the exclusive remedy for tort actions against a federal agency,

22

regardless of the agency’s statutory authority to sue or be sued in its own name. See 28 U.S.C.

23

§ 2679(a) (1998); see Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th Cir. 1998) (per

24

curiam).

25

Before filing suit under the FTCA, a plaintiff must present his or her administrative claim to the

26

appropriate agency within two years of the incident, see 28 U.S.C. § 2401(b), and the agency must

27

either “finally den[y]” her claim or fail to arrive at a “final disposition of [her] claim within six

28

months after it is filed,” see 28 U.S.C. § 2675(a). “The claim requirement of section 2675 is

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jurisdictional in nature and may not be waived.” Burns v. United States, 764 F.2d 722, 723 (9th Cir.

2

1985). Where plaintiff fails to satisfy the claim requirement, the district court cannot assert subject

3

matter jurisdiction over the plaintiff’s FTCA claim. See 28 U.S.C. § 2675(a); McNeil v. United

4

States, 508 U.S. 106, 111-12 (1993); Burns, 764 F.2d at 723. The plaintiff in an action seeking

5

relief under the FTCA bears the burden of showing that he or she complied with the FTCA’s

6

administrative claim requirement. See Bruce v. United States, 621 F.2d 914, 918 (8th Cir. 1980).

7

The USPS argues that the court lacks jurisdiction over Ms. Wingate’s tort claims and that

8

Wingate has not complied with the FTCA’s requirements. See Motion at 15-16. The court agrees

9

and dismisses Ms. Wingate’s tort claims on several independent grounds.

(though the court construes it as naming Postmaster General Patrick Donahoe with regard to the

12
For the Northern District of California

First, Ms. Wingate’s tort claims fail because the complaint names the U.S. Postal Service

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UNITED STATES DISTRICT COURT

10

discrimination claims). A claim against either the USPS in its own name or against the Postmaster

13

General is not a claim against the United States. See Continental Cablevision v. United States Postal

14

Serv., 945 F.2d 1434, 1440 (8th Cir. 1991); see also Kennedy, 145 F.3d at 1078 (affirming district

15

court dismissal of FTCA claims where plaintiff named The USPS and the Postmaster General

16

“because the plaintiff brought an FTCA action against a person and entity not subject to the

17

FTCA”).

18

tort claims to the appropriate administrative agency. She does not argue otherwise in any of the

19

documents she submitted in opposition to the USPS’s motion. Thus, to the extent her claims arise

20

under the FTCA, they must be dismissed. But because she may still be able to present an

21

administrative claim to the SSA, the court dismisses her claims without prejudice.

Second, there is nothing in the record to suggest that Ms. Wingate ever presented any

22

Finally, the complaint mentions causes of action, such as defamation, extortion, fraud, and

23

interference with Ms. Wingate’s mail. See ECF No. 1 at 3 (fraud), ECF No. 1-3 at 1 (extortion),

24

ECF No. 1-1 at 3-5 (alleging USPS manager Gray opened her checks, read them, and delayed their

25

delivery). These claims each fall within exceptions to the FTCA’s waiver of sovereign immunity.

26

See 28 U.S.C. § 2680 (b) (“[a]ny claim arising out of the loss, miscarriage, or negligent transmission

27

of letters or postal matter”); § 2680(h) (“[a]ny claim arising out of . . . libel, slander,

28

misrepresentation, deceit, or interference with contract rights”). Accordingly, these claims are

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1

barred by the United States’ sovereign immunity and are dismissed with prejudice.

2

IV. ANY FUTURE COMPLAINT MUST BE ORGANIZED AND LEGIBLE

3
4
5

The complaint and attachments that Ms. Wingate filed are handwritten in cursive. They are
difficult to read and frequently illegible.
Should Ms. Wingate choose to file an amended complaint, she should try to type her submissions

6

or at least legibly and clearly print all words in her pleadings on double-spaced horizontal lines.

7

While she may attach documents to her complaint and reference them in the complaint, her hand-

8

written notes on them are not a substitute for putting her factual allegations in the complaint itself in

9

a way that they can be easily read. See, e.g., ECF No. 1-1 at 16 (paystub with illegible handwritten

10

annotations).

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For the Northern District of California

UNITED STATES DISTRICT COURT

11

CONCLUSION
For the reasons discussed above, the court GRANTS the USPS’s motion to dismiss. Ms.

13

Wingate’s tort claims based on defamation, extortion, fraud, and invasion of privacy are dismissed

14

with prejudice. All of her other claims are dismissed without prejudice and to the extent Ms.

15

Wingate can remedy the deficiencies identified above, she may reallege those claims in an amended

16

complaint filed by August 14, 2013. As discussed above, however, she may not raise claims that she

17

did not exhaust administratively.

18

This disposes of ECF No. 19.

19

IT IS SO ORDERED.

20

Dated: July 23, 2013

21

_______________________________
LAUREL BEELER
United States Magistrate Judge

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