Guli v. United States Attorneys Office of the Northern District of California

Filing 21

ORDER GRANTING 12 THE DEFENDANT'S MOTION TO DISMISS. The court grants the USAO's motion. The court dismisses claims one and two without prejudice and with leave to amend, and dismisses claims three through eight with prejudice. Ms. Guli may file a First Amended Complaint within 21 days from the date of this order. Signed by Magistrate Judge Laurel Beeler on 12/2/2015.(lblc2, COURT STAFF) (Filed on 12/2/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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RACHELLE GULI,

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Case No. 3:15-cv-03307-LB

Plaintiff,
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ORDER GRANTING THE
DEFENDANT'S MOTION TO DISMISS

v.
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UNITED STATES ATTORNEY’S OFFICE
OF THE NORTHERN DISTRICT OF
CALIFORNIA,

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[Re: ECF No. 12]

Defendant.
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INTRODUCTION

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Rachelle Guli sued her former employer, the United States Attorney’s Office of the Northern

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District of California (“USAO”), for discrimination and retaliation. (Complaint, ECF No. 1.1) The

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USAO moves to dismiss all of Ms. Guli’s claims. (Motion, ECF No. 12.) Ms. Guli concedes that

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seven of the claims should be dismissed, but opposes the motion with respect to the remaining

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claim. (Opposition, ECF No. 19.) Pursuant to Federal Rule of Civil Procedure 78(b) and Civil

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Local Rule 7-1(b), the court finds this matter suitable for determination without oral argument.

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The court grants the USAO’s motion, dismisses claims one and two without prejudice and with

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leave to amend, and dismisses claims three through eight with prejudice.

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Record citations are to documents in the Electronic Case File (“ECF”); pinpoint citations are to
the ECF-generated page numbers at the tops of the documents.
ORDER (No. 3:15-cv-03307-LB)

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STATEMENT

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Ms. Guli is a Filipino female who is gay. (Complaint, ECF No. 1, ¶ 3.) She is married to a

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woman. (Id. ¶ 4.) She is a member of the United States Uniformed Forces. (See id. ¶¶ 10, 41.)

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On August 10, 2014, the USAO hired Ms. Guli as a Supervisory Information Technology

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Specialist (Systems Manager). (Id. ¶ 3.) She supervised five Information Technology Specialists,

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assisted with projects, and insured systems and network operability. (Id.) Brian Wickett, the

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Security Manager, was her supervisor. (Id.) Mr. Wickett’s supervisor was Mary Cooper, an

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Administrative Officer. (Id.)

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This action involves a dispute about Ms. Guli’s working hours, a break she took, and Mr.
Wickett’s response. At a high level, the narrative is as follows. When Ms. Guli started at the

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United States District Court
Northern District of California

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USAO, she had to work from 9:00 a.m. to 6:00 p.m. each day without taking a rest or meal break.

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(Id. ¶ 7.) Ms. Guli complained to Mr. Wickett about not being able to take these breaks, but he

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dismissed or did not respond to her complaints. (Id.) He also told her that she was not the “best

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suited for the job, but [the USAO] had to hire [her] because of [her] Vet status.” (Id. ¶ 10.)

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After working at the USAO for a few weeks, Ms. Guli brought a picture of her wife to put in

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her office. (Id. ¶ 12.) After Mr. Wickett saw it, he became unresponsive to her. (Id.) Ms. Guli

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formally informed the USAO about her sexual orientation in October 2014. (Id. ¶ 4.)

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On September 24, 2014, without telling Mr. Wickett but thinking it would be alright, Ms. Guli

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left the office for about 30 minutes from 5:15 p.m. to 5:45 p.m. to go to a pharmacy. (Id. ¶ 16.)

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While she was out, Mr. Wickett called her and asked her to assist Ms. Cooper. (Id.) After Ms. Guli

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returned to the office, she found Ms. Cooper, but it turned out that Ms. Cooper no longer needed

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Ms. Guli’s assistance. (Id.) Ms. Guli thought that was the end of it. (Id.)

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It was not. Mr. Wickett questioned Ms. Guli about her absence on September 29, September

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30, and October 3, 2015, and ultimately he charged her with being “AWOL” for one and a half

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hours. (Id. ¶¶ 17-23.) On October 10, 2014, Ms. Guli met with Mr. Wickett and a representative

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from the Human Resources department regarding Mr. Wickett’s AWOL charge. (Id. ¶ 25.) The

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meeting became contentious, there was confusion about what Ms. Guli’s work hours actually were

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supposed to be, and when Ms. Guli asked the human resources representative about the federal
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ORDER (No. 3:15-cv-03307-LB)

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guidelines regarding working hours, Mr. Wickett ended the meeting. (Id. ¶¶ 25-28.) Mr. Wickett

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gave Ms. Guli seven days to resign or face serious discipline. (Id. ¶ 27.) About 15 minutes later,

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Mr. Wickett and the Human Resources representative asked Ms. Guli if they could state that she

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took her lunch breach from 5:15 p.m. to 5:45 p.m. on September 24 and only charge her with

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being AWOL for 45 minutes. (Id. ¶ 29.) Ms. Guli responded that this “wasn’t her call.” (Id.)
Thereafter, Mr. Wickett gave Ms. Guli a notice of intent to terminate her employment, and her

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employment was terminated on January 8, 2015. (Id. ¶ 32.)

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On January 8, 2015 (the same day her employment was terminated), Ms. Guli filed an EEO

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complaint with the Department of Justice, by which she challenged her termination on the bases of
race, sex, and sexual orientation discrimination, and of reprisal. (Id. ¶ 6.; Olsen Decl., ECF No.

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United States District Court
Northern District of California

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20-1, Ex. A (EEO Complaint dated January 8, 2015).2) DOJ investigated her complaint, and on

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July 1, 2014 it issued a Final Agency Decision concluding that the record did not support Ms.

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Guli’s allegations that she was subjected to discrimination or a hostile work environment because

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of her race, sex, sexual orientation, or prior EEO activity. (Complaint, ECF No. 1, ¶ 6; Olsen

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Decl., ECF No. 20-1, Ex. B (DOJ Final Agency Decision dated July 1, 2015).) DOJ also informed

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Ms. Guli of her right to appeal its decision to the Merit Systems Protection Board (“MSPB”) or

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file a complaint in federal district court. (Complaint, ECF No. 1, ¶ 6; Olsen Decl., ECF No. 20-1,

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Ex. B.)
On January 15, 2015, a week after she filed her EEO complaint with DOJ, Ms. Guli filed an

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appeal with the MSPB challenging the termination. (Olsen Decl., ECF No. 20-1, Ex. C.) On

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February 19, 2015, the MSPB dismissed her appeal without prejudice to re-filing it because at that

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time it was premature in light of her then-pending EEO complaint. (Id. (citing 5 C.F.R. §

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1201.154(c)).)
On July 16, 2015, Ms. Guli filed a complaint against the USAO in this court. (See generally

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Generally, the court does not consider material beyond the pleadings in ruling on a motion to
dismiss. See United States v. Corinthian Colleges, 655 F.3d 984, 998-99 (9th Cir. 2011). But Ms.
Guli’s complaint refers to and relies on her administrative complaints and the decisions thereon.
(See Complaint, ECF No. 1, ¶ 6.) The court thus considers those complaints and decisions—
attached as exhibits to the Olsen Declaration (ECF No. 20-1)—under the incorporation-byreference doctrine. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).
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ORDER (No. 3:15-cv-03307-LB)

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id.) She brings the following eight claims: (1) race, sex, and national origin discrimination in

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violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (2) retaliation in

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violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(3)(a); (3) military service

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discrimination in violation of the Uniformed Services Employment Rights Act (“USERRA”), 38

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U.S.C. §§ 4301-4333; (4) retaliation in violation of California Labor Code §§ 1102.5 and 98.6; (5)

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failure to provide meal and rest breaks in violation of California Labor Code § 226.7; (6) failure to

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pay overtime wages in violation of California Labor Code §§ 510, 201, 11010-11130, and 1160;

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(7) willful failure to pay wages upon separation in violation of California Labor Code §§ 201-203,

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218, and 1194; and (8) failure to provide accurate itemized wage statements and to maintain

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United States District Court
Northern District of California

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adequate records in violation of California Labor Code §§ 226 and 1174. (Id. ¶¶ 33-67.)
On September 28, 2015, the USAO filed a motion to dismiss Ms. Guli’s complaint. (Motion,
ECF No. 12.)

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ANALYSIS

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The USAO moves to dismiss claims one and two for failure to name the correct defendant.

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(Motion, ECF No. 12 at 3-4.) Ms. Guli does not oppose the dismissal of those claims so long as

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she is given leave to amend them. (Opposition, ECF No. 19 at 1-2.) The court believes this is the

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correct approach. The court therefore dismisses claims one and two without prejudice and with

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leave to amend.

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The USAO also moves to dismiss claims four through eight in part because the government

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cannot be held liable for violations of California’s wage-and-hours laws. (Motion, ECF No. 12 at

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5-7.) Ms. Guli concedes this point and says that she intends to allege federal wage-and-hour

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claims under the Fair Labor Standards Act (“FLSA”) instead. (Opposition, ECF No. 19 at 5.) The

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court dismisses claims four through eight with prejudice. The plaintiff may allege any new claims

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in her amended complaint.

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The remaining claim is claim three, which alleges military service discrimination in violation

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of the USERRA. The USERRA prohibits employers, including federal agencies, from

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discriminating against employees on the basis of their military status. See 38 U.S.C. §§ 4311,

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4324. Claims under the USERRA must be presented to the MSPB, and the claimant has a right to
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ORDER (No. 3:15-cv-03307-LB)

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appeal to the Federal Circuit. See 38 U.S.C. § 4324; Dew v. United States, 192 F.3d 366, 372 (2d

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Cir. 1999); see also Wilborn v. Johnson, 592 Fed. App’x 571, 572 (9th Cir. Jan. 30, 2015). Here,

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the USAO says that Ms. Guli never presented her USERRA claim to the MSPB and it therefore

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moves to dismiss the claim for lack of subject-matter jurisdiction. (Motion, ECF No 12 at 4-5); see

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Heckman v. Jewell, 40 Fed. App’x 800, 802 (9th Cir. Oct. 4, 2013) (remanding action and

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instructing the district court to dismiss the plaintiff’s USERRA claim for lack of subject-matter

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jurisdiction because the plaintiff failed to show that he presented his claim to the MSPB); Gafford

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v. McDonald, No. 4:14-cv-01603-JAR, 2015 WL 4651827, at *4 (E.D. Mo. Aug. 5, 2015)

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(dismissing a plaintiff’s USERRA claim for lack of subject-matter jurisdiction because the

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United States District Court
Northern District of California

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plaintiff never presented his claim to the MSPB).
Ms. Guli responds by arguing that the court has jurisdiction because this is a so-called “mixed

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case.” (Opposition, ECF No. 19 at 24.) A mixed case is “[w]hen an employee complains of a

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personnel action serious enough to appeal to the MSPB and alleges that the action was based on

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discrimination.” Kloeckner v. Solis, --- U.S. ----, 133 S.Ct. 596, 601, 184 L.Ed.2d 433 (2012). This

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argument does not change the outcome. Even for mixed cases, Ms. Guli was required to file her

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USERRA claim with the MSPB. See Sloan v. West, 140 F.3d 1255, 1259-61 (9th Cir. 1998)

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(describing in detail, and with citation to the relevant statutes and regulations, the many possible

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administrative routes a claimant may follow, all of which require a claimant to present a USERRA

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claim to the MSPB). As the government points out, after DOJ issued its Final Agency Decision,

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Ms. Guli could have filed another appeal to the MSPB and raised an USERRA claim. (Reply, ECF

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No. 20 at 3 (citing 5 C.F.R § 1208.16 and Graham v. Commodities Futures Trading Comm’n, 105

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M.S.P.R. 392, 395 (2007)); see also Olsen Decl., ECF No. 20-1, Ex. C (MSPB dismissal order

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informing Ms. Guli of her right to re-file her MSPB complaint).) She did not. Instead, she filed an

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EEO complaint with the Department of Justice, and then she filed this action. (Complaint, ECF

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No. 1, ¶ 6; Olsen Decl., ECF No. 20-1, Ex. A.) She did not raise a USERRA claim in her EEO

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complaint, and she could not have because military status is not a protected ground under Title

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VII, the Rehabilitation Act, or the Age Discrimination in Employment Act. By not presenting her

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USERRA claim to the MSPB, she waived it. See Sloan, 140 F.3d at 1260 (“If a complainant
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ORDER (No. 3:15-cv-03307-LB)

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wishes to preserve both [her discrimination and her non-discrimination] claims, he or she must not

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pursue an appeal of the EEO decision with the EEOC. Rather, he or she must file the appeal with

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the MSPB, or be deemed to have waived the non-discrimination claim.”). Accordingly, the court

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dismisses it with prejudice.
CONCLUSION

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The court grants the USAO’s motion. The court dismisses claims one and two without

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prejudice and with leave to amend, and dismisses claims three through eight with prejudice. Ms.

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Guli may file a First Amended Complaint within 21 days from the date of this order.

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IT IS SO ORDERED.
Dated: December 2, 2015
______________________________________
LAUREL BEELER
United States Magistrate Judge

United States District Court
Northern District of California

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ORDER (No. 3:15-cv-03307-LB)