Blackman-Baham v. Johnson

Filing 30

ORDER by Judge Joseph C. Spero granting in part and denying in part 20 Motion to Dismiss and dismissing complaint with leave to file an amended complaint within 45 days. (jcslc1S, COURT STAFF) (Filed on 2/21/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SHEILA BLACKMAN-BAHAM,

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Case No. 16-cv-03487-JCS

Plaintiff,
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v.
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JOHN F. KELLY, Secretary of the
Department of Homeland Security

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Re: Dkt. No. 20

Defendant.

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United States District Court
Northern District of California

ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS

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I.

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INTRODUCTION
Plaintiff Sheila Blackman-Baham, an employee of the Federal Emergency Management

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Agency (―FEMA‖), brings this action against the Secretary of the Department of Homeland

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Security1 based on alleged employment discrimination based on age, race, sex, and disability and

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retaliation for prior EEO activity. Defendant has brought a Motion to Dismiss (―Motion‖)

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seeking dismissal of Plaintiff‘s complaint for failure to exhaust administrative remedies under

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Rule 12(b)(1) and failure to state a claim under Rule 12(b)(6). The Court vacated the hearing

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pursuant to Civil Local Rule 7-1(b) and took the Motion under submission. See Docket No. 28.

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For the reasons stated below, the Motion is GRANTED in part and DENIED in part.2

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II.

BACKGROUND

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A.

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Plaintiff began working for FEMA on October 10, 2010. First Amended Complaint

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The First Amended Complaint

(―FAC‖) ¶ 6(b). She alleges that Defendant ―started harassing, and making plaintiff‘s working

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John Kelly has replaced Jeh Johnson as Secretary of the Department of Homeland Security and is
therefore substituted as a defendant. See Fed. R. Civ. P. 25(d).
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The parties have consented to the jurisdiction of the undersigned United States magistrate judge
pursuant to 28 U.S.C. § 636(c).

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environment hostile, as early as her first couple of months‖ in retaliation for her ―prior EEO

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activity.‖ Id. ¶ 6(c). This retaliation allegedly included ―attempt[ing] to disqualify [P]laintiff

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for re-employment, . . . interviewing [her] physicians, neighbors, [and] landlords[,] suggesting

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negative characteristics about [her][,] [a]ccusing [her] of acting disrespectfully, or not

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cooperating‖ and ―denying [her] training and promotional opportunities.‖ Id.; see also id. ¶ 6(d)

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(alleging that in March 2011 Defendant ―harassed plaintiff[ ] about her reinvestigation‖) & (e)

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(alleging that in April 2011 Defendant ―denied plaintiff consideration for a promotional

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opportunity, while forcing plaintiff to perform the duties of the higher grade position for almost 90

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days, without promotional pay‖).
Plaintiff further alleges that in September 2011, Defendant ―denied [her] training

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United States District Court
Northern District of California

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opportunities and additional pay, to process the first wrongful termination,‖ id. ¶ 6(f), ―barred

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[P]laintiff from her workspace, and charged her almost two weeks of Leave Without Pay.‖ Id. ¶

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6(g). According to Plaintiff, Defendant ―improperly stated facts to MSPB‖ in connection with the

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two weeks of leave without pay, causing the MSPB to rule in Defendant‘s favor based on this

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inaccurate information. Id. ¶ 6(g). Plaintiff also alleges that Defendant ―attempted to wrongfully

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terminate plaintiff as a probationary employee, based on her period of unemployment and illness.‖

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Id. ¶ 6(i). Plaintiff further alleges that Defendant ―posted termination documents on [her]

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residence in plain view of Plaintiff‘s neighbors or anyone else to see.‖ Id. ¶ 6(h). According to

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Plaintiff, Defendant ―was allowed to retract the [termination] when plaintiff proved she was in fact

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an employee, not subject to a probation period.‖ Id. ¶ 6(i).3

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Plaintiff alleges that in January 2012, Defendant wrongfully terminated her a second time,

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based on her debts during her time of unemployment and illness, and that this decision caused her

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and her family to become homeless. Id. ¶ 6(j). This decision was overturned by the MSPB in

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As discussed below, Plaintiff filed two MSPB appeals during this period, one on November 2,
2011 challenging her termination and another on December 11, 2011 seeking back pay for the
two-week period referenced above on the basis that she had been constructively suspended from
duty. See RJN, Exs. A & C. In the first MSPB proceeding, FEMA conceded Plaintiff was not a
subject to a probationary period and reinstated Plaintiff with back pay. In the second MSPB
proceeding, the Administrative Judge concluded that Plaintiff‘s absence from work during the
two-week period was voluntary and therefore did not constitute a constructive suspension.
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August 2013, at which time Plaintiff was restored to her position. Id. ¶ 6(k).
Plaintiff also alleges that Defendant mischaracterized her EEO claims (discussed below),

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tried to direct Plaintiff to the wrong place to file her EEOC case, and attempted to mislead the

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EEOC into believing that she had abandoned her claims. Id. ¶ 6(l)-(n). Plaintiff further alleges

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Defendant has continued to ―harass, not promote and discriminate[ ] against [P]laintiff continually

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since her return [to work] in August 2013.‖ Id. ¶ 6(o).

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Plaintiff alleges that the EEOC issued an ―Order/Dismissal in Favor of U.S. District Court

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Action‖ on March 24, 2016. Id. ¶ 7. She initiated this action on June 22, 2016, when she filed the

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original complaint. She filed her FAC on September 30, 2016.
Plaintiff alleges that Defendant discriminated against her based on her age, sex, race,

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United States District Court
Northern District of California

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gender and ―physical/mental disabilities.‖ Id. ¶ 5.4 She also asserts a retaliation claim based on

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her prior EEO activity (discussed below). She asserts the following claims in the FAC:
1) Claim One: Violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

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et seq. (―Title VII‖), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a

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(―ADEA‖), and the Rehabilitation Act of 1973, 29 U.S.C. § 791 (―Rehabilitation Act‖) based on

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the allegation that Defendant ―processed two wrongful terminations against [P]laintiff, because

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she was unemployed and ill for almost two years and had debt, violating [P]laintiff‘s due process

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rights.‖ FAC ¶ 9. In this claim, Plaintiff alleges that she is a ―tenured disabled employee who is

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in a protected class‖ but does not specifically identify a particular protected class. Id.
2) Claim Two: Failure to consider Plaintiff for a promotional opportunity, in violation of

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Rehabilitation Act and the Lilly Ledbetter Fair Pay Act of 2009 (Pub.L. No. 111–2) (―LLA‖)

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based on the allegation that she ―was denied consideration for a promotion and career

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advancement opportunity, although she had completed almost 90 days in the [position], without

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the additional higher grade of pay.‖ Id. ¶ 11. Plaintiff does not identify the type of discrimination

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she contends led to Defendant‘s failure to consider her for promotion and career advancement.

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Although Plaintiff does not allege specific facts in her complaint relating to her age, race or
disability, she states in her December 19, 2011 EEO Complaint that she was born in May 1963,
that she is African-American and that she suffers from depression and chronic hip and knee pain.
Wallace Decl., Ex. A.
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3) Claim Three: Retaliation for prior EEO activity, in violation of Title VII

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and the ADEA based on the allegation that ―[d]uring [P]laintiff‘s interview with the investigator,

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and during the process of [P]laintiff‘s investigation, [P]laintiff was harassed about her ongoing

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EEO case.‖ Id. ¶

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4) Claim Four: Disability Discrimination in violation of Rehabilitation Act and the LLA

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based on allegation that ―Plaintiff was denied training opportunities, which were later used against

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[her] future [deployability] . . .[w]hile other‘s outside plaintiff‘s protected class were trained, and

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entitled to additional pay.‖ Id. ¶ 15.

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5) Claim Five: Failure to afford Plaintiff additional wages, in violation of the
Rehabilitation Act of 1973 and Fair Pay Act of 2009 based on allegation that Defendant

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Northern District of California

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―prevented [P]laintiff from deploying to disaster declarations, which prevented [P]laintiff from

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earning additional wages, which were tax free . . . [w]hile other similar[ly] situated contract

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specialists not in plaintiff‘s protected class were not treated the same.‖ Id. ¶ 17. Again, Plaintiff

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does not identify a specific ―protected class.‖

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6) Claim Six: Hostile working environment in violation of the Title VII, the ADEA and

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the Rehabilitation Act based on allegation that Defendant ―subject plaintiff to harsh working

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conditions and hostile environments, while violating [P]laintiff‘s due process rights‖ even though

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Plaintiff ―was a tenured disabled employee and the defendant was well aware of [Plaintiff‘s]

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medical conditions.‖ Id. ¶ 19.

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7) Claim Seven: Disparate Treatment in violation of the Title VII, the ADEA and the

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Rehabilitation Act based on allegation that Plaintiff is a ―tenured qualified disabled employee,

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who is in a protected class‖ and ―was subjected to discriminatory treatment, different from other

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employees who were not in her protected class, but were similarly situate[ed].‖ Id. ¶ 21. Plaintiff

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does not identify the specific type of discrimination alleged under this claim.

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Administrative Proceedings5

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B.

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As set forth below, Plaintiff filed MSPB Appeals challenging her terminations in 2011 and

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2012, as well as a another MSPB appeal challenging FEMA‘s failure to pay her wages for the

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two-week period leading up to her first termination. In addition, following EEO counseling, she

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filed a formal EEO complaint on December 10, 2011 (culminating in the March 24, 2016 Order/

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Dismissal in Favor of U.S. District Court Action) (―First EEO Complaint‖) and another EEO

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Complaint on April 11, 2016 (―Second EEO Complaint‖), which is still pending.
1. The November 2, 2011 MSPB Appeal

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On October 6, 2011, Plaintiff was officially terminated from her position of contract

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specialist with FEMA, which is part of the Department of Homeland Security (―Agency‖), based

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United States District Court
Northern District of California

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on her failure to pass a background investigation conducted by the Office of Personnel

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Management (―OPM‖) and her status as a probationary employee. See Opposition, Ex. 6 (October

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6, 2011 Letter entitled ―Notice of Decision to Terminate during Probationary Period‖); RJN, Ex.

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B (February 9, 2012 Initial Decision). On November 2, 2011, Plaintiff filed an MSPB Appeal

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challenging her termination on the ground that she was hired under the Agency‘s reinstatement

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authority because of her prior Federal service with the Department of the Navy and therefore was

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not subject to a probationary period. RJN, Ex. A (November 2, 2011 Appeal) & B (February 9,

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2012 Initial Decision). The Agency conceded that Plaintiff was not, in fact, ―in a probationary

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Defendant has requested that the Court take judicial notice of: 1) three Merit System Protection
Board (―MSPB‖) appeals filed by Plaintiff and the Initial Decisions issued as to those appeals; and
2) a series of email exchanges between Plaintiff and two EEO Specialists at FEMA related to the
scope of Plaintiff‘s EEO claims. See Docket Nos. 20-2 and 26-2. Plaintiff also submitted
documents related to her administrative proceedings. See Exhibits 1-25 to Plaintiff‘s Opposition
brief, Docket Nos. 24-1 and 24-2. Defendant did not object to Plaintiff‘s reliance on these
documents or question their authenticity. Likewise, Plaintiff did not object to Defendant‘s requests
or question the authenticity of the documents Defendant filed in support of the Motion. Therefore,
the Court takes judicial notice of all of the extra-pleading documents submitted by the parties on
the basis that they are ―records and reports of administrative bodies.‖ See Interstate Nat. Gas Co.
v. S. California Gas Co., 209 F.2d 380, 385 (9th Cir. 1953); see also Lacayo v. Donahue, No. 14cv-4077 JSC, 2015 WL 993448 (Mar. 4, 2015, N.D. Cal.) (―The extrinsic evidence that Defendant
submitted all pertains to Plaintiff‘s administrative proceedings with the EEO; thus, all are either
referenced in the complaint or matters of public record and properly considered on either a
12(b)(1) or 12(b)(6) motion to dismiss.‖).
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period‖ in its November 25, 2011 response and that it had followed improper procedures in

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terminating Plaintiff. RJN, Ex. B (February 9, 2012 Initial Decision) at 3. It rescinded the

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termination and paid Plaintiff back-pay from the date of termination, October 6, 2011. Id.

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The presiding Administrative Judge (―AJ‖) then issued an order to show cause why the
appeal should not be dismissed as moot on the basis that the status quo ante had been restored. Id.

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Plaintiff did not respond or provide any evidence that she was entitled to compensatory damages

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or any further relief beyond that which had already been provided. Id. at 5. The AJ concluded the

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appeal was moot because the Agency had ―granted status quo ante relief regarding back pay,

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interest and by placing the appellant in a paid status.‖ Id. at 7. Consequently, the AJ found that the

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MSPB could ―not assert jurisdiction over the rescinded action.‖ Id. at 13; see also id. at 1 (―There

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Northern District of California

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has been no determination that the Board has jurisdiction over this appeal‖). The Initial Decision

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also included a notice informing Plaintiff that it would become the final decision of the MSPB on

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March 15, 2012 and explaining her options for appealing the decision.

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Plaintiff does not allege that she challenged the AJ‘s Initial Decision or that she pursued

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any claims related to the termination in any other forum and there is nothing in the record that

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suggests that she did.

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2. The December 13, 2011 MSPB Appeal
On September 16, 2011, two weeks prior to the termination that was the subject of the

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MSPB appeal discussed above, Plaintiff learned that her scheduled deployment to a disaster site in

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Connecticut was being cancelled and that the Agency planned to terminate her based on her failure

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to pass the background investigation discussed above. RJN, Ex. D (April 10, 2012 Initial

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Decision) at 13. Plaintiff did not return to work prior to her official termination, on October 6,

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2011, and in her December 13, 2011 MSPB appeal she alleged that she had been barred from her

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workplace without pay, amounting to a constructive suspension. RJN, Ex. C (December 13, 2011

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MSPB Appeal) at 3. In her MSPB Appeal, she sought back-pay and benefits for this two-week

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period. The AJ considered the evidence presented by Plaintiff and the Agency and dismissed

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Plaintiff‘s claim for lack of jurisdiction on the basis of her finding that Plaintiff had voluntarily

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failed to report for duty and had not been constructively suspended from duty. Id. at 23 (―The
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Board has no jurisdiction over the voluntary decision of an employee not to report for duty‖).
Like the previous decision by the AJ, the December 13, 2011 Initial Decision included a

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notice explaining to Plaintiff how she could appeal that decision. Again, Plaintiff does not allege

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that she took any further action in connection with this two-week period in any forum and there is

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nothing in the record that suggests that she did.

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3. The April 20, 2012 MSPB Appeal
On March 21, 2012, the Agency again terminated Plaintiff from her FEMA position. RJN,

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Ex. F (May 29, 2013 Initial Decision) at 5. The Agency cited her failure to pass the background

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investigation discussed above, finding that certain unpaid debts showed that she had engaged in
dishonest conduct and therefore, that she did not meet the ―suitability‖ requirement for her

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Northern District of California

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position. RJN, Ex. F (May 29, 2013 Initial Decision) at 5-8. Plaintiff filed an MSPB appeal

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challenging that termination on April 20, 2012. RJN, Ex. E (April 20, 2012 MSPB appeal).

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Whereas the Agency had followed the wrong procedures in terminating Plaintiff on October 6,

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2011, the March 21, 2012 termination was carried out according to the procedures that apply to

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non-probationary employees. See RJN, Ex. F (May 29, 2013 Initial Decision) at 5-6. Because

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the Agency apparently followed the correct procedures with respect to this termination, the focus

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of the AJ‘s initial decision was on whether the Agency‘s suitability determination was proper.

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She found that it was not. Id. at 18.

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The AJ examined in detail the specific debts that were the subject of the Agency‘s

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conclusion, which included certain unpaid taxes as well as various debts owed to other creditors.

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Id. at 16-19. As to the circumstances which gave rise to these debts, the AJ credited Plaintiff‘s

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testimony that the ―debts arose initially because illness forced her to reduce her work hours, and

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continued because extended unemployment significantly reduced her income.‖ Id. at 16. The AJ

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further found that Plaintiff ―engaged in a good faith effort to pay her taxes,‖ that there was ―no

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indication of fraud or deceit in the acquisition of any of her debts,‖ and that while Plaintiff‘s

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―circumstances have been difficult, including homelessness, continued depression and lack of

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resources, she testified that has obtained some employment which has enabled her to make efforts

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to satisfy the remaining debt.‖ Id. at 18. The AJ therefore concluded that Plaintiff‘s ―reduced
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income, extended unemployment, and physical and mental illness fully explain[ed] her financial

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circumstances‖ and that the Agency had not met its burden of showing that Plaintiff was

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unsuitable for Federal service due to dishonesty. Id. The AJ sustained Plaintiff‘s charge and

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ordered that the Agency restore Plaintiff to her position at FEMA retroactive to March 22, 2012.

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Id. at 19. Again, Plaintiff did not pursue any further challenges in any forum based on her second

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termination.

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4. The December 19, 2011 EEO Complaint
On October 19, 2011, Plaintiff sought EEO counseling – a prerequisite to filing a formal
EEO complaint. See Wallace Decl., Ex. A (December 19, 2011 EEO Complaint showing that
Plaintiff first contacted an EEO counselor on October 19, 2011). She was assigned an EEO

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Northern District of California

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counselor, Stacy Merriwether. Opposition, Ex. 3 (October 31, 2011 email from Mr. Merriwether

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informing Plaintiff that he had been assigned as her EEO counselor). Mr. Merriwether‘s email

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indicated that Plaintiff sought counseling both as to the October 6, 2011 termination and as to an

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alleged hostile work environment. Id. When Plaintiff filed her formal EEO Complaint, however,

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on December 19, 2011 (almost a month after the Agency had rescinded the October 6, 2011

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termination) she did not list her October 6, 2011 termination in her description of the conduct that

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was the basis of her discrimination claims. Wallace Decl. Ex. A (―December 19, 2011 EEO

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Complaint‖ or ―First EEO Complaint‖). Id.

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In her First EEO Complaint, Plaintiff checked the following boxes for the bases of the

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alleged discrimination: 1) Race; 2) Sex; 3) Age; 4) Physical or Mental Disability; and 5)

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Retaliation/Reprisal for prior EEO activity. Id. In the margin next to the boxes, she wrote that her

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race is ―African-American,‖ her sex is ―Female,‖ her date of birth is ―5/X/63,‖ that her disability is

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―chronic pain hip/knee [illegible] Depression‖ and that her prior EEO activity was in ―2011,

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2008.‖ Id. Plaintiff identified the ―action taken against [her] that [she] believe[d] was

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discriminatory‖ in an attachment. Id. The attachment listed the following conduct in support of

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Plaintiff‘s discrimination claims:

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1. Receipt of JPMorgan Chase Bank Statement: $34.26

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2. When my deployment was cancelled, it deprived me of overtime hours.
3. Defamation of character:
11/9/10 - Debbie Lewis, Celesta Cook accused me of time-card
fraud.
12/30/10 - Celesta questioning my therapy appointment and
schedule.
1/28/l1 - When Debbie Lewis accused me of time card fraud
8/16/11 - When Cheryl Lipari told Kimberlee Brown ―on two
occasions my behavior or communication was disrespectful or rude‖
7/25/11 When Cheryl Lipari told David Orris ―I had an attitude
problem‖
6/21/11 – When Michael Lull told me to get approval of my work
from another employee, who was not my technical Supervisor.
6/11/1 l - Within the ―Letter of Caution‖

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4. Denial of training: CON215, CON353, Disaster Contracting
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United States District Court
Northern District of California

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5. Letter of Caution: Michael Hull issued the letter; it alleged that Cheryl and et.al
complained. The complaints were all about the Regional Contracting Officers duties,
which I was not official, assigned or compensated for performing.
6. Non Selection: Personnel said ―I didn‘t qualify because I didn‘t have the training or
education‖, they failed to request ―waiver‖. Ann# MG-2011-81 369-KJD-464993D/M

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7. Tele- work denial: Michael Lull returned my request and said ―You need to provide
additional doctor‘s explanation of how this schedule will help you, and explain your
condition, whether its permanent or temporary‖.

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8. Hostile Work Environment:

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11/9/10 Celesta Cook reported to Ameka Ali ―I failed to record my
time correctly‖ time card fraud.
12/30/10 Celesta Cook questioned my working schedule again,
although it had been approved the prior month.
1/28/11 When Debbie Lewis accused me of time card fraud
2/7/11 – When Cheryl Lipari told my supervisor in Headquarters ―I
didn‘t follow proper procedures in having my training approved‖
and ―I had an attitude‖
2/22/11 –When Debbie Lewis refused to return my doctor‘s report
3/1/11 – When Cheryl Lipari‘s Administrative Specialist accused
me of ―talking too loud‖
3/3/11 – When Celesta Cook called me into her office to inform me
that ―Nancy Ward doesn‘t want me to represent her or Region IX‖.
4/11/11- When Fred Sanchez falsely accuses me of speaking
disrespectfully to him, because I disagreed with his opinion
4/21/11 – When Michael Lull calls me into his office for counseling
―Cheryl Lipari said she noticed you in the hall talking to employees,
wasting time‖
4/21/11 – When Michael Lull told me ―you are not entitled to break
by-laws‖
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Wallace Decl., Ex. A (First EEO Complaint).
In a letter dated July 13, 2012, the Director of FEMA‘s Office of Equal Rights, Pauline

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Campbell, informed Plaintiff that her office had accepted Plaintiff‘s EEO claim of ―hostile work

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environment based on race (African American), sex (Female), age (5/1963), physical disability

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(Chronic Pain, Hip/knee Replacement), mental disability (Depression) and retaliation.‖ Wallace

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Decl., Ex. B (July 13, 2012 Letter). The letter listed the following incidents that the Office of

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Equal Rights understood to be the basis of Plaintiff‘s claim:

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as ―disrespectful, rude and appeared to have an attitude problem‖ to your other co-workers.

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United States District Court
Northern District of California

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On May 11, 2011, you allege that you were not selected for the Regional Contracting
Officer position (MG-2011-81369-KJD-464993 D/M).

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On June 11, 2011 and March 11, 2011, you allege that the Regional Administrator denied
your training requests.

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On June 11, 2011, you allege you were issued a Letter of Caution that referenced
complainants about your regional contracting duties.

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On June 21, 2011, you allege your supervisor told you to get approval of work from
another employee that was not your supervisor.

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On August 16, 2011 and several occasions, you allege that your co-workers described you

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On April 21, 2011, you allege you were called to your supervisor‘s office to be

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admonished for ―wasting time.‖ You allege that your supervisor told you that you were not

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entitled to breaks by law.

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telework.

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On December 30, 2010, you allege that a co-worker questioned your therapy appointment
and schedule.

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Sometime in early 2011, you allege that your supervisor denied your request for medical

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On November 19, 2010, you allege that your co-workers accused you of timecard fraud.

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Wallace Decl., Ex. B (July 13, 2012 Letter). Plaintiff was informed that within five days she

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should submit ―written clarification‖ of her claims if she was ―not satisfied with the claims as

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identified‖ and that the Office of Equal Rights would assume that she was ―satisfied with‖ the
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claims as stated if it did not hear from her. Id.

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On July 21, 2012, Plaintiff sent an email to Ms. Campbell informing her that she had

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received the July 13, 2012 letter but that she needed an extension on the deadline to respond

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because she was homeless and was ―unable to communicate other than hand writing and sending

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through the postal service.‖ Opposition, Ex. 22. She also explained that she could ―only get to the

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mailing address once the week‖ and asked that Ms. Campbell ―[p]lease consider [her] situation

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when sending correspondence to that address.‖ Id.

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On August 29, 2012 (after Plaintiff‘s second termination and before she had been restored
to her position as a result of the second MSPB appeal), the EEO Investigator assigned to
investigate Plaintiff‘s EEO Complaint, Eddie Neal, conducted an examination of Plaintiff, under

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Northern District of California

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oath, in connection with her EEO Complaint. See Wallace Decl., Ex. C (Affidavit). Mr. Neal

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sought to establish that Plaintiff‘s March 2012 termination was not part of Plaintiff‘s claim and the

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following exchange occurred:

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Neal: Okay. Now what is your current status with the Department
of Homeland Security?

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Plaintiff: Terminated

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Neal: Okay . . .I don‘t see the termination as part of what I am
investigating. Was that filed as a separate claim?

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Plaintiff: The termination had to be filed with the MSPB Board
within thirty days after it was effected.

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Neal: Okay. So –

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Plaintiff: And they said I could not file an EEO on it if I was to file
with the MSPB Board.

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Neal: Okay. So I just wanted to make sure it wasn‘t part of what
I‘m doing. Okay. Alright.

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Id. at 3.
In response to Plaintiff‘s September 3, 2012 email, EEO Specialist Kristena Jenkins sent

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Plaintiff an email on September 5, 2012 asking Plaintiff to call her to discuss her EEO claims.

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Reding Decl., Ex. I. Plaintiff responded that she would be unable to talk with Ms. Jenkins,

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however, and told her that all of the information about her claims could be found in the original
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EEO complaint and Plaintiff‘s communications with Mr. Merriwether. Id.
On January 6, 2014, Pauline Campbell, of the Office of Equal Rights, sent Plaintiff a letter

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stating that her complaint was being amended to include ―added claims‖ and asked Plaintiff‘s

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permission to extend the 180-day deadline for investigation by 90 days. Opposition, Ex. 18.

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Plaintiff did not agree to the extension, however, stating in an email to Ms. Jenkins on February

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24, 2014 that she did not agree to the extension. Reding Decl. Ex. J. She stated: ―I am not sure

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what these ‗added claims‘ are, and at this point I do not want to spend any additional time to

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investigate them. Therefore, please move forward with this email with the claims that the

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investigation is completed.‖ Id.

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On March 23, 2016, Plaintiff notified the EEOC that she had elected to pursue her

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Northern District of California

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discrimination claim in federal district court rather than await a decision from the EEOC as her

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EEO complaint had been pending for more than 180 days. Wallace Decl., Ex. D. Accordingly, on

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March 24, 2016, an Administrative Judge of the EEOC issued an Order/Dismissal in Favor of U.S.

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District Court Action. Id.

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5. The April 11, 2016 EEO Complaint
On April 11, 2016, Plaintiff filed a second EEO complaint alleging discrimination on the

17

basis of ―Race,‖ ―Color,‖ ―Physical or Mental Disability‖ and Retaliation/Reprisal for prior EEO

18

activity. Wallace Decl., Ex. E. She also hand-wrote in the section for identifying the bases for

19

alleged discrimination ―Hostile Working Environment; Continuing Violations.‖ In the attachment

20

describing the basis for the claims, Plaintiff claimed she has been subject to ―Retaliation (2013-

21

2016); Disparate treatment (2013-2016); Denial of Training (2013-January 2016); Performance

22

Appraisal 2015 (February 9, 2015); [and] Hostile working environment (2013-2016).‖ Id. She

23

states that ―[c]ontinuing violations have been present‖ and lists the following 14 examples in

24

support of her claim:

25

1. Calls from Angela Meeks prior to my arrival, then she basically ordered that I find

26

internet access to send her a list of things I needed to accommodate my disabilities.

27

However, equipment was not received until 2015.

28

2. On arrival back to work - Angela Meeks accused me of some sort of behavior, not
12

1

resembling my personality or my professionalism.

2

3. Angela Meeks reported something wrong to Personnel Security regarding a threat made

3

to me.

4

4. Disparate treatment on the team I was placed on.

5

5. Toni/Joni/Angela/Chris - assign me to a ―Trainee‖ task book, despite my history with

6

FEMA or my past experiences.

7

6. No assignments as an 1102 until the end of 2015.

8

7. Accusations about a behavior and events that were not true.

9

8. My Performance evaluation for 2015 (when Angela Meeks attempted to add events that
were untrue). Then my rating not reflecting the removal of the negative untrue

11
United States District Court
Northern District of California

10

information,

12

9. No deployments for three years

13

10. When finally deployed, no accommodations for my disabilities

14

11. While deployed my reasonable accommodations form sent to others.

15

12. While deployed my health conditions sent to others.

16

13. While deployed, harassed by deployed supervisor in various ways (task book, work

17

assignments, treated differently than others).

18

14. Various comments made by team-mates about me being crazy or a problem employee

19

(2013-2016)

20

Wallace Decl., Ex. E. As of the date Plaintiff filed her complaint initiating this action the EEOC

21

was still investigating her claim.

22

C.

23

In the Motion, Defendant asserts that Plaintiff‘s claims should be dismissed under Rule

The Motion

24

12(b)(1) for lack of subject matter jurisdiction on the basis that she failed to exhaust her

25

administrative remedies. Motion at 2. Defendant further asserts that even if Plaintiff has satisfied

26

the exhaustion requirement, Plaintiff‘s claims should be dismissed under Rule 12(b)(6) for failure

27

to state valid claims. Id.

28

In arguing that Plaintiff failed to exhaust her administrative remedies, Defendant points to
13

1

the fact that Plaintiff challenged her two terminations in MSPB appeals, arguing that this

2

constituted an irrevocable election to proceed in that forum and bars Plaintiff‘s claims in this

3

action to the extent her claims are based on her terminations. Id. at 7-10. According to Defendant,

4

all of the remaining claims of discrimination Plaintiff asserts in this action are subject to dismissal

5

for failure to properly exhaust administrative remedies because all of the conduct listed in the

6

December 19, 2011 EEO Complaint occurred more than 45 days before she initiated EEO

7

counseling and therefore, her claims were untimely. Id. at 11. Defendant further contends

8

Plaintiff is barred from asserting claims in this action based on her suspension and terminations,

9

or the alleged failure to provide training in September 2011, see FAC ¶ 6(f), because she did not
challenge these actions in her EEO complaint. Id. at 12-13. Finally, Defendant argues that

11
United States District Court
Northern District of California

10

Plaintiff has not alleged sufficient facts to support a plausible inference that she was subject to

12

discrimination on the basis of sex, age, race or disability; nor, Defendant contends, has Plaintiff

13

alleged facts sufficient to support an inference that she was retaliated against for EEO activity. Id.

14

at 13-17.

15

In her Opposition brief, Plaintiff contends the EEOC omitted certain claims from its

16

investigation of her December 19, 2011 EEO Complaint even though she notified the EEOC of the

17

omitted claims on numerous occasions. Opposition at 15-16. In fact, Plaintiff asserts, all of the

18

claims asserted in her FAC were submitted to the agency for EEO counseling within 45 days of

19

the discriminatory conduct and included in her First EEO Complaint. Id. at 18. Plaintiff further

20

asserts that she has alleged sufficient facts to state valid discrimination claims for the purposes of

21

Rule 12(b)(6).

22

In its Reply brief, Defendant rejects Plaintiff‘s assertion that all of her claims in this action

23

were raised within 45 days in her request for EEO counseling and included in the December 19,

24

2011 EEO Complaint. Defendant further points to the fact that Plaintiff did not consent to a 90-

25

day extension of time to allow the EEOC to investigate ―added claims.‖ See Reding Decl., Ex. J.

26

Defendant also argues that even if Plaintiff included her terminations in her EEO Complaint, she

27

abandoned any claims based on the terminations by failing to cooperate and provide further

28

information about these claims to the EEO investigator. Id. at 7. In support of this contention,
14

1

Defendant cites Plaintiff‘s September 5, 2012 email to Kristena Jenkins stating that she could not

2

talk to Ms. Jenkins on the telephone about her added claims and that all of the information about

3

her claims could be found in her EEO Complaint and her communications with Mr. Neal. Reding

4

Decl., Ex. I.

5

III.

6
7
8
9

ANALYSIS
A.

Legal Standards under Rule 12(b)(1) and 12(b)(6)
1. Rule 12(b)(1)

Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a district court must
dismiss an action if it lacks jurisdiction over the subject matter of the suit. See Fed. R. Civ. P.
12(b)(1). ―Subject matter jurisdiction can never be forfeited or waived and federal courts have a

11
United States District Court
Northern District of California

10

continuing independent obligation to determine whether subject-matter jurisdiction exists.‖ Leeson

12

v. Transamerica Disability Income Plan, 671 F.3d 969, 975 n.12 (9th Cir. 2012) (internal

13

quotation marks and citations omitted). On a motion to dismiss for lack of subject matter

14

jurisdiction under Rule 12(b)(1), it is the plaintiff‘s burden to establish the existence of subject

15

matter jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1197 (9th

16

Cir. 2008). A party challenging the court‘s subject matter jurisdiction under Rule 12(b)(1) may

17

bring a facial challenge or a factual challenge. See White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

18

2000). In evaluating a facial challenge to subject matter jurisdiction, the court accepts the factual

19

allegations in the complaint as true. See Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th Cir.

20

2001). Where a defendant brings a factual challenge, on the other hand, ―a court may look beyond

21

the complaint to matters of public record without having to convert the motion into one for

22

summary judgment.‖ White, 227 F.3d at 1242 (citation omitted). Once the moving party has

23

made a factual challenge by offering affidavits or other evidence to dispute the allegations in the

24

complaint, the party opposing the motion must ―present affidavits or any other evidence necessary

25

to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.‖

26

McCarthy v. Brennan, No. 15-CV-03308-JSC, 2017 WL 386346, at *5 (N.D. Cal. Jan. 27, 2017)

27

(quoting St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)).

28
15

1
2

2. Rule 12(b)(6)
A complaint may be dismissed for failure to state a claim on which relief can be granted

3

under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ―The purpose of a motion to dismiss

4

under Rule 12(b)(6) is to test the legal sufficiency of the complaint.‖ N. Star Int’l v. Ariz. Corp.

5

Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a claimant‘s burden at the pleading stage

6

is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that ―[a] pleading

7

which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim

8

showing that the pleader is entitled to relief.‖ Fed. R. Civ. P. 8(a).
In ruling on a motion to dismiss under Rule 12(b)(6), the court takes ―all allegations of

10

material fact as true and construe[s] them in the light most favorable to the non-moving party.‖

11
United States District Court
Northern District of California

9

Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal may be based on a

12

lack of a cognizable legal theory or on the absence of facts that would support a valid theory.

13

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A pleading must ―contain

14

either direct or inferential allegations respecting all the material elements necessary to sustain

15

recovery under some viable legal theory.‖ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007)

16

(citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). ―A pleading

17

that offers ‗labels and conclusions‘ or ‗a formulaic recitation of the elements of a cause of action

18

will not do.‘‖ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

19

―[C]ourts ‗are not bound to accept as true a legal conclusion couched as a factual allegation.‘‖

20

Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). ―Nor does a

21

[pleading] suffice if it tenders ‗naked assertion[s]‘ devoid of ‗further factual enhancement.‘‖ Iqbal,

22

556 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Rather, the claim must be ―‗plausible on its

23

face,‘‖ meaning that the claimant must plead sufficient factual allegations to ―allow[] the court to

24

draw the reasonable inference that the defendant is liable for the misconduct alleged.‖ Id. (quoting

25

Twombly, 550 U.S. at 570).

26

Pro se pleadings are generally liberally construed and held to a less stringent standard. See

27

Erickson v. Pardus, 551 U.S. 89, 94 (2007). Even post-Iqbal, courts must still liberally construe

28

pro se filings. Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010). As the Ninth Circuit explained in
16

1

Hebbe v. Pliler, ―[w]hile the standard is higher, our obligation remains, where the petitioner is pro

2

se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner

3

the benefit of any doubt.‖ 627 F.3d at 342. Nevertheless, the Court may not ―supply essential

4

elements of the claim that were not initially pled.‖ Ivey v. Bd. of Regents of the Univ. of Alaska,

5

673 F.2d 266, 268 (9th Cir.1982).

6

If the Court dismisses a complaint under Rule 12(b)(6), it should ―grant leave to amend

7

even if no request to amend the pleading was made, unless it determines that the pleading could

8

not possibly be cured by the allegation of other facts.‖ Lopez v. Smith, 203 F.3d 1122, 1127 (9th

9

Cir. 2000) (en banc) (internal quotation marks and citations omitted).

10

United States District Court
Northern District of California

11
12
13
14

B.

Statutes Invoked in Support of Plaintiff’s Claims

Plaintiff asserts each of her claims under multiple statutes, each of which the Court
describes briefly below.
1. Title VII
Under Title VII, it is unlawful ―to fail or refuse to hire or to discharge any individual, or

15

otherwise to discriminate against any individual with respect to his compensation, terms,

16

conditions, or privileges of employment, because of such individual‘s race, color, religion, sex, or

17

national origin.‖ 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits employers from retaliating

18

against an employee for ―oppos[ing] any practice made an unlawful employment practice‖ under

19

Title VII. 42 U.S.C. § 2000e-3(a).

20

Title VII‘s protections were extended to federal employees in 1972, when Congress

21

amended the Act to provide that ―[a]ll personnel actions‖ affecting federal employees must be

22

―made free from any discrimination based on race, color, religion, sex, or national origin.‖ 42

23

U.S.C.A. § 2000e-16. The Ninth Circuit has further held that in enacting Section 2000e-16,

24

Congress intended to protect federal employees from retaliation. See Ayon v. Sampson, 547 F.2d

25

446, 449 (9th Cir. 1976) (―We agree with the parties that Congress, in enacting 42 U.S.C. §

26

2000e-16 and thereby extending the equal employment opportunity provisions of the Civil Rights

27

Act to federal employees, intended to include the protections from harassment and retaliation

28

embodied in the Civil Rights Act.‖).
17

1
2

2. The Rehabilitation Act
Both the Americans with Disabilities Act (―ADA‖) and the Rehabilitation Act prohibit

3

discrimination against an otherwise qualified individual based on his or her disability. Calero-

4

Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004). The Rehabilitation Act is the

5

precursor to the ADA and applies to federal employees. See Daniels v. Chertoff, No. CV 06-2891

6

PHXJAT, 2007 WL 1140401, at *2 (D. Ariz. Apr. 17, 2007) (citing 42 U.S.C. § 12111(5)(B)(i)

7

and Calero–Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 11 n. 1 (1st Cir.2004)). While

8

the ADA excludes the federal government from its definition of ―employer,‖ see 42 U.S.C. §

9

12111(5)(B)(i), the ADA‘s ―standards of substantive liability are incorporated in the

10

United States District Court
Northern District of California

11

Rehabilitation Act.‖ Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007).
―Both disparate treatment of a disabled person and refusal to make a reasonable

12

accommodation for a disabled person are actionable under the Rehabilitation Act of 1973, 29

13

U.S.C. § 791.‖ Gaytan v. Solis, No. C 07-6367 SBA, 2012 WL 2367822, at *3 (N.D. Cal. June 21,

14

2012) (citing Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002); Mustafa v. Clark County

15

Sch. Dist., 157 F.3d 1169, 1176 (9th Cir. 1998)); see also McCarthy v. Brennan, No. 15-CV-

16

03308-JSC, 2017 WL 386346, at *7 (N.D. Cal. Jan. 27, 2017) (explaining that ―‗[d]isability

17

discrimination‘ encompasses disparate treatment—denying an employee equal jobs or benefits

18

because of the employee‘s disability, 42 U.S.C. § 12112(a), (b)(4), and failure to accommodate a

19

disability, 42 U.S.C. § 12112(a), (b)(5)).‖

20

To state a prima facie case under the Rehabilitation Act based on disparate treatment, ―a

21

plaintiff must demonstrate that (1) she is a person with a disability, (2) who is otherwise qualified

22

for employment, and (3) suffered discrimination because of her disability.‖ Domingo v. Donohue,

23

No. 13-cv-4150 CRB, 2014 WL 605485, at *12 (N.D. Cal. Feb. 14, 2014) (quoting Walton v. U.S.

24

Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007)). To state a claim under the Rehabilitation

25

Act for failure to accommodate, a plaintiff must ―plead facts sufficient to plausibly allege (1) she

26

is disabled, (2) she is a qualified individual, and (3) a reasonable accommodation is possible that

27

would enable her to perform the essential functions of her job.‖ Estell v. McHugh, No. 15-cv-

28

04898-MEJ, 2016 WL 4140819, at *5 (N.D. Cal. Aug. 4, 2016) (citing Zukle v. Regents of the
18

1
2
3

Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999)).
3. The ADEA
Under the ADEA, it is ―unlawful for an employer . . . to discharge any individual or

4

otherwise discriminate against any individual with respect to his compensation, terms, conditions,

5

or privileges of employment, because of such individual‘s age.‖ 29 U.S.C.A. § 623. While the

6

term ―employer‖ excludes the United States, see 29 U.S.C. § 630(b), the ADEA also contains a

7

―federal sector provision‖ that applies to federal employees and provides that ―[a]ll personnel

8

actions affecting employees or applicants for employment who are at least 40 years of age . . .

9

shall be made free from any discrimination based on age.‖ Gomez-Perez v. Potter, 553 U.S. 474,

10

United States District Court
Northern District of California

11

479 (2008) (citing 29 U.S.C. § 633a(a)).
In order to establish a prima facie case of discrimination under the ADEA, a plaintiff must

12

show that (1) she is a member of a protected class; (2) she was qualified for her position; (3) she

13

experienced an adverse employment action; and (4) similarly situated individuals outside her

14

protected class were treated more favorably, or other circumstances surrounding the adverse

15

employment action give rise to an inference of discrimination. Whitman v. Mineta, 541 F.3d 929,

16

932 (9th Cir. 2008). Further, the Supreme Court held in Gomez-Perez that the federal sector

17

provision protects federal employees from ―retaliation for complaining about age discrimination.‖

18

553 U.S. at 488.

19

4. Lilly Ledbetter Fair Pay Act

20

The LLA was enacted into law on January 29, 2009 in order to legislatively overturn the

21

Supreme Court‘s decision in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). In

22

Ledbetter, the plaintiff asserted sex discrimination claims under Title VII, alleging that throughout

23

her career with Defendant Goodyear she had been given poor evaluations based on her sex,

24

resulting in a significantly lower salary than was being paid to her male colleagues by the end of

25

her career. 550 U.S. at 621-622.

26

Ledbetter were discrete acts that triggered the running of the time allowed to file an EEOC charge,

27

even though the effects of those decisions, in the form of lower compensation, continued into the

28

limitations period. Id. at 623, 628. As a result, the plaintiff‘s claims were found to be untimely.

The Court, however, found that the pay-setting decisions in

19

1

In response, Congress amended 42 U.S.C. § 2000e–5(e) to provide as follows:

2

6

For purposes of this section, an unlawful employment practice
occurs, with respect to discrimination in compensation in violation
of this subchapter, when a discriminatory compensation decision or
other practice is adopted, when an individual becomes subject to a
discriminatory compensation decision or other practice, or when an
individual is affected by application of a discriminatory
compensation decision or other practice, including each time wages,
benefits, or other compensation is paid, resulting in whole or in part
from such a decision or other practice.

7

42 U.S.C. § 2000e–5(e)(3)(A) (emphasis added). Similarly, the LLA also modifies the ADEA and

8

the Rehabilitation Act ―to clarify that a discriminatory compensation decision or other practice

9

that is unlawful under such Acts occurs each time compensation is paid pursuant to the

3
4
5

discriminatory compensation decision or other practice, and for other purposes.‖ See PL 111–2 [S

11
United States District Court
Northern District of California

10

181], January 29, 2009. In other words, the LLA does not create a free-standing civil rights cause

12

of action but instead, works in tandem with existing civil rights laws to ―trigger[] a new filing

13

period, in effect reviving a claim that otherwise would have been time-barred because of a failure

14

to exhaust administrative remedies within 180 days of the original discriminatory compensation

15

decision or practice.‖ Johnson v. District of Columbia, 632 F. Supp. 2d 20, 22 (D.D.C. 2009).

16
17
18

C.

Exhaustion Requirements
1. Title VII and the Rehabilitation Act

In order to bring a discrimination claim in federal district court under Title VII or the

19

Rehabilitation Act, a plaintiff first must exhaust her administrative remedies. Sommatino v.

20

United States, 255 F.3d 704, 709 (9th Cir. 2001) (Title VII); Vinieratos v. U.S., Dep't of Air

21

Force Through Aldridge, 939 F.2d 762, 773 (9th Cir. 1991) (Rehabilitation Act). ―While not all

22

administrative exhaustion requirements are jurisdictional in nature, Ninth Circuit ‗case law holds

23

that substantial compliance with the presentment of discrimination complaints to an appropriate

24

administrative agency is a jurisdictional prerequisite.‘‖ McCarthy v. Brennan, No. 15-cv-03308-

25

JSC, 2017 WL 386346, at *6 (N.D. Cal. Jan. 27, 2017) (quoting Sommatino, 255 F.3d at 709).

26

―The jurisdictional scope of the plaintiff‘s court action depends on the scope of the EEO[ ] charge

27

and investigation.‖ Leong v. Potter, 347 F.3d 1117, 1121-22 (9th Cir. 2003). In particular, the

28

district court has jurisdiction over the specific claims that were presented in the administrative
20

1

proceeding, claims of discrimination that are ―like or reasonably related to the allegations made

2

before the EEO[ ],‖ and claims that ―reasonably could be expected to grow out of the allegations‖

3

in the administrative complaint. Id. at 1122.

4

Courts must construe EEO charges ―with utmost liberality since they are made by those

5

unschooled in the technicalities of formal pleading.‖ Sosa v. Hiraoka, 920 F.2d 1451, 1458 (9th

6

Cir. 1990) (citation omitted). ―‗[T]the crucial element of a charge of discrimination is the factual

7

statement contained therein.‘‖ B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002),

8

as amended (Feb. 20, 2002) (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th

9

Cir.1970)). In B.K.B., the Ninth Circuit set forth the following factors for determining whether a
plaintiff has exhausted claims based on allegations that were not set forth in the administrative

11
United States District Court
Northern District of California

10

complaint: (1) the ―alleged basis of the discrimination;‖ (2) ―dates of discriminatory acts specified

12

in the charge;‖ (3) ―perpetrators of discrimination named in the charge;‖ and (4) ―any locations at

13

which discrimination is alleged to have occurred.‖ McCarthy v. Brennan, 2017 WL 386346, at *6

14

(quoting B.K.B., 276 F.3d at 1100). ―In addition, the court should consider plaintiff‘s civil claims

15

to be reasonably related to allegations in the charge to the extent that those claims are consistent

16

with the plaintiff's original theory of the case.‖ B.K.B., 276 F.3d at 1100.

17

2. The ADEA

18

Under the ADEA, federal employees can pursue their age discrimination claims through

19

the EEOC, which has the authority to enforce the statute‘s federal employee non-discrimination

20

provision. See 29 U.S.C. § 633(b). However, ―[u]nlike Title VII of the Civil Rights Act, 42

21

U.S.C. § 2000e–16(c), the ADEA contains no express requirement that a federal employee

22

complainant seek administrative relief, . . . except that an employee who wishes to file suit without

23

pursuing administrative remedies must give the EEOC notice of intent to sue at least 30 days

24

before filing suit.‖ Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003) (emphasis added); see

25

also Boyd v. Lynch, No. 14-56800, 2016 WL 5764439, at *1 (9th Cir. Oct. 4, 2016) (unpublished)

26

(holding that the district court had erred in dismissing an ADEA claim based on failure to exhaust

27

because ―exhaustion is not required‖ on ADEA claims) (citing Bankston, 345 F.3d at 770). In

28

particular, ADEA provides that ―[w]hen the individual has not filed a complaint concerning age
21

1

discrimination with the [EEOC], no civil action may be commenced by any individual . . . until

2

the individual has given the Commission not less than thirty days‘ notice of an intent to file such

3

action.‖ 29 U.S.C.A. § 633a(d). The Ninth Circuit has further held that even where a plaintiff

4

initiated administrative proceedings as to an ADEA claim and then abandoned them, that

5

individual is not barred from bringing the ADEA claim in federal district court. See Bankston,

6

345 F.3d at 775 (citing Bak v. Postal Service, 52 F.3d 241 (9th Cir. 1995)).

7
8
9

D.

Administrative Procedures Governing Exhaustion of Discrimination Claims and
“Mixed Complaints”
1. Procedures for Exhaustion under Title VII

The ordinary procedure for a federal employee who seeks to exhaust her Title VII or
10
Rehabilitation Act claims is to initially file an EEO complaint with her agency and then, once the
11
United States District Court
Northern District of California

agency has issued its final decision, appeal that decision to either the EEOC or a federal district
12
court. Sloan v. West, 140 F.3d 1255, 1259 (9th Cir. 1998) (citing 29 C.F.R. § 1614.310(a)). An
13
employee may also file an action in district court if, after 180 days from the date of appealing to
14
the EEOC, the EEOC has not issued a final decision on the matter. 29 U.S.C. § 1614.407(b).
15
Before a federal employee is permitted to file an EEO Complaint with the agency, she
16

must contact an EEO counselor. See 29 C.F.R. § 1614.105(a) (―Aggrieved persons who believe

17
they have been discriminated against on the basis of race, color, religion, sex, national origin, age,
18
disability, or genetic information must consult a Counselor prior to filing a complaint in order to
19

try to informally resolve the matter.‖). The regulations require that ―[a]n aggrieved person must

20
initiate contact with a Counselor within 45 days of the date of the matter alleged to be
21
discriminatory or, in the case of personnel action, within 45 days of the effective date of the

22

action.‖ 29 C.F.R. § 1614.105(a)(1). This 45-day time period may be extended, however, ―when

23
the individual shows that he or she was not notified of the time limits and was not otherwise aware
24
of them, that he or she did not know and reasonably should not have been known that the
25
discriminatory matter or personnel action occurred, that despite due diligence he or she was
26
prevented by circumstances beyond his or her control from contacting the counselor within the
27
time limits, or for other reasons considered sufficient by the agency or the Commission.‖ 29
28
22

1

C.F.R. § 1614.105(a)(2); see also 29 C.F.R. § 1614.604 (―The time limits in this part are subject

2

to waiver, estoppel and equitable tolling‖).
Similarly, the Ninth Circuit and district courts within the Ninth Circuit have found that the

4

45-day limit is not jurisdictional and therefore is subject to waiver, estoppel and equitable tolling.

5

See Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043 (9th

6

Cir. 2009) (―although the regulatory pre-filing exhaustion requirement at § 1614.105 does not

7

carry the full weight of statutory authority and is not a jurisdictional prerequisite for suit in federal

8

court, we have consistently held that, absent waiver, estoppel, or equitable tolling, failure to

9

comply with this regulation [is] . . . fatal to a federal employee‘s discrimination claim in federal

10

court.‖ (internal citations and quotations omitted)); Lacayo v. Donahoe, No. 14-cv-04077-JSC,

11
United States District Court
Northern District of California

3

2015 WL 993448, at *8 (N.D. Cal. Mar. 4, 2015) (reviewing Ninth Circuit and district court

12

authority and concluding that ―an employee‘s failure to follow to a tee the 45-day timing

13

requirements is a ‗shortcoming [that] relates to the substantive adequacy of [a plaintiff‘s]

14

complaint[,]‘ not a jurisdictional flaw‖) (citing Taylor v. Blank, No. 1:12-cv-1931 AWI JLT, 2014

15

WL 1577313, at *4 (E.D. Cal. Apr. 17, 2014); Mendoza v. Lehigh Southwest Cement Co., No. 11-

16

cv-01286 LHK, 2012 WL 1534754, at *5 (N.D. Cal. May 1, 2012); Norris v. Foxx, No. 13-cv-

17

4928 BHS, 2014 WL 935304, at *4 (W.D. Wash. Mar. 10, 2014)).6

18

The timeliness requirement for the purposes of exhaustion of discrimination claims further

19

depends on whether the claim is based on discrete acts or a single discriminatory employment

20

practice. ―[D]iscrete discriminatory acts are not actionable if time barred, even when they are

21

related to acts alleged in timely filed charges.‖ Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

22

101, 113 (2002). Thus, ―[e]ach discrete discriminatory act starts a new clock for filing charges

23
6

24
25
26
27
28

To the extent some district courts in the Ninth Circuit have concluded that the 45-day
requirement is jurisdictional, see, .e.g., , Gill v. Gen. Servs. Admin., No. 14–cv–2999–MEJ, 2014
WL 6469377, at *3 (N.D. Cal. Nov. 18, 2014); Williams v. Mabus, No. 5:13–cv–00470 HRL,
2014 WL 5305819, at *4 (N.D. Cal. Oct. 16, 2014); Goel v. Shah, No. C 13– 3586 SBA, 2014 WL
460867, at *2 (N.D. Cal. Feb. 3, 2014); Domingo v. Donohue, Nos. 13–cv–4150–CRB & 13–cv–
4151 CRB, 2014 WL 605485, at *7–8 (N.D. Cal. Feb. 14, 2014), the undersigned agrees with
Judge Corley that these decisions are not persuasive on this question for the reasons stated in
Lacayo. See 2015 WL 993448, at *8-9.
23

1

alleging that act.‖ Id.; see also id. at 114 (―Discrete acts such as termination, failure to promote,

2

denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each

3

retaliatory adverse employment decision constitutes a separate actionable ‗unlawful employment

4

practice.‘‖).
On the other hand, ―[h]ostile environment claims are different in kind from discrete acts‖

5

because ―[t]heir very nature involves repeated conduct.‖ Id. at 115. A hostile work environment

7

is an unlawful employment practice that ―occurs over a series of days or perhaps years and, in

8

direct contrast to discrete acts, a single act of harassment may not be actionable on its own.‖ Id.

9

(citation omitted). ―In determining whether an actionable hostile work environment claim exists,

10

[courts] look to all the circumstances, including the frequency of the discriminatory conduct; its

11
United States District Court
Northern District of California

6

severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and

12

whether it unreasonably interferes with an employee‘s work performance.‖ Id. (internal

13

quotations and citations omitted). Because a claim based on an unlawful employment practice is

14

made up of a series of separate acts, the Morgan Court explained, the hostile work environment

15

claim is timely so long as ―an act contributing to the claim occurs within the filing period.‖ Id. at

16

117.

17

Because of the fact-intensive nature of the inquiry as to whether a claim involves discrete

18

conduct or a single ongoing employment practice, courts sometimes decline to address the

19

question of timeliness for the purposes of exhaustion at the pleading stage of the case where it

20

cannot be determined from the pleadings whether the employment practice at issue is a discrete act

21

or ongoing. See, e.g. Guerrero v. Vilsack, 134 F. Supp. 3d 411, 432 (D.D.C. 2015) (finding that

22

plaintiff‘s claims could be construed as alleging ongoing violations and that the Court could not

23

conduct the inquiry required under Morgan at the pleading stage of the case, and also noting that

24

―other courts in the district have likewise refrained from deciding, based on an EEO complaint

25

alone, whether alleged violations are discrete or continuing.‖)

26
27

2. Procedures for Exhausting Where a Federal Employee Seeks to Pursue a
“Mixed Complaint”

28

In 1978, Congress passed the Civil Service Reform Act (―CSRA‖), 5 U.S.C. § 1201 et
24

1

seq., ―with the hope of simplifying and revising the rules and regulations governing federal

2

employees.‖ Sloan v. West, 140 F.3d 1255, 1258 (9th Cir. 1998). The CSRA created the Merit

3

System Protection Board (―MSPB‖), which is a ―quasi-judicial Government agency‖ that

4

adjudicates Federal employee appeals of agency personnel actions. Id. at 1258-59. The MSPB‘s

5

appellate jurisdiction is limited to those appeals authorized by ―law, rule, or regulation.‖ 5 U.S.C.

6

§ 7701(a). ―Generally, the Board is authorized to review ‗adverse employment actions,‘ which

7

fall into one of five categories: a removal, a suspension for more than 14 days, a reduction in

8

grade, a reduction in pay, or a furlough of 30 days or less.‖ Sloan, 140 F.3d at 1259 (citing 5

9

U.S.C. § 7512(1)-(5); 5 C.F.R. § 1201.3 (1997)).
The Board also has pendent jurisdiction over discrimination claims brought in connection

10

United States District Court
Northern District of California

11

with an ―adverse action‖ otherwise appealable to it. 29 C.F.R. § 1614.302 (1997). This means

12

that an employee seeking to pursue a claim of discrimination that is related to an adverse action

13

has the option of exhausting the discrimination claim through procedures governing MSPB

14

Appeals rather than through the EEO procedures described above. Sloan, 140 F.3d at 1259. In

15

this scenario, the employee has two options: 1) she can file a ―mixed case complaint‖ with the

16

agency EEO department that can then be appealed to the MPSB; or 2) she can file a ―mixed case

17

appeal‖ directly with MPSB. 29 C.F.R. § 1614.302(b) (―An aggrieved person may initially file a

18

mixed case complaint with an agency pursuant to this part or an appeal on the same matter with

19

the MSPB pursuant to 5 CFR 1201.151, but not both.‖).
―A mixed case complaint is a complaint of employment discrimination filed with a federal

20
21

agency based on race, color, religion, sex, national origin, age, disability, or genetic information

22

related to or stemming from an action that can be appealed to the . . .[MSPB].‖ 29 C.F.R. §

23

1614.302(a)(1). ―A mixed case appeal is an appeal filed with the MSPB that alleges that an

24

appealable agency action was effected, in whole or in part, because of discrimination on the basis

25

of race, color, religion, sex, national origin, disability, age, or genetic information.‖ 29 C.F.R. §

26

1614.302(a)(2).7 While it is up to the employee to decide which route to follow, the employee

27
7

28

Note, however, that the Ninth Circuit stated in Sloan that an appeal does not ―become a ‗mixed
case appeal‘‖ until the MSPB decides that it has jurisdiction over the case. Sloan, 140 F.3d at
25

1

may pursue only one of these options and ―whichever is filed first shall be considered an election

2

to proceed in that forum.‖ 29 C.F.R. § 1614.302(b).

3

When a mixed case is appealed to the MSPB, the MSPB must determine that it has
jurisdiction over the employee‘s claims. Nater v. Riley, 114 F. Supp. 2d 17, 24 (D.P.R. 2000),

5

aff‘d, 15 F. App‘x 11 (1st Cir. 2001). A finding by the MSPB that it lacks jurisdiction to hear a

6

claim is appealable only to the United States Court of Appeals for the Federal Circuit. Sloan, 140

7

F.3d at 1261 (―Thus, if the MSPB does not have jurisdiction over the non-discrimination claim,

8

then the case is not a ‗mixed case,‘ and any appeal of the jurisdictional determination must be filed

9

in the Federal Circuit Court of Appeals.‖). On the other hand, if the MSPB finds it has jurisdiction

10

over the appeal, the Administrative Judge decides the claims on the merits and the employee then

11
United States District Court
Northern District of California

4

has the option of seeking further MSPB review. Sloan, 140 F.3d at 1260. If the employee does

12

not appeal the AJ‘s decision to the MSPB panel within 30 days, the AJ‘s decision becomes final

13

and the employee can either appeal any related discrimination claims to the EEOC or file an action

14

in the federal district court as to the discrimination claim. Id.; see also 29 C.F.R. § 1614.310.

15
16

E.

Abandonment of Claims and the Scope of Claims That Were Exhausted in the
First EEO Complaint

As discussed above, as of the time this action was initiated Plaintiff had received a right17
to-sue letter only as to her First EEO Complaint. Thus, with respect to the claims in the FAC that
18
Plaintiff is required to exhaust, Plaintiff must establish (at least) that these claims: 1) were either
19
20
21

raised in the First EEO Complaint or are ―like or reasonably related to‖ those claims; and 2) were
not abandoned during the EEO administrative proceedings.8 Defendant raises the issue of
abandonment in its Reply brief when it argues that ―if Plaintiff raised her termination as a baisis

22
for her alleged discrimination claims, she then abandoned that claim by failing to cooperate and
23

provide further information to her EEO Specialist and Couselor.‖ Reply at 7. It also treats as

24
abandoned (without providing legal authority for doing so) certain claims that were included in
25

Plaintiff‘s First EEO Complaint but that were omitted from the July 13, 2012 letter listing the

26
27
28

1259.
8
As discussed further below, Plaintiff must also establish that her claims are timely.
26

1

claims that FEMA‘s EEO department intended to investigate. See, e.g., Motion at 4, 12

2

(describing conduct listed in July 13, 2012 letter and later stating that Plaintiff did not assert that

3

―she was denied training opportunities and additional pay‖ even though the First EEO Complaint

4

included in the list of discriminatory conduct ―Denial of training‖ and ―depriv[ation] of overtime

5

hours‖).
The Ninth Circuit has held that in certain situations, a claimant may fail to exhaust

7

administrative remedies when he or she refuses to cooperate with the Agency‘s investigation. For

8

example, in Tanious v. I.R.S., the court found that the plaintiff had failed to exhaust his

9

administrative remedies where he had ―failed to comply with Board orders to make himself

10

available for prehearing telephone conferences, failed to appear for a scheduled hearing, and

11
United States District Court
Northern District of California

6

refused to answer the Board‘s telephone calls or receive mail,‖ leading the MSPB to dismiss the

12

case for failure to prosecute. 915 F.2d 410, 411 (9th Cir. 1990). On the other hand, a claim is not

13

barred – even if the plaintiff abandoned the claim in an administrative proceeding – if the

14

administrative remedy is optional. Thus, as discussed above, a plaintiff may bring an ADEA

15

claim in federal district court even if she previously abandoned that claim in an administrative

16

proceeding. See Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003); Bak v. Postal Service, 52

17

F.3d 241 (9th Cir. 1995)); see also Bullock v. Berrien, 688 F.3d 613, 618 (9th Cir. 2012) (finding

18

that under the reasoning of Bankston, the same is true where a plaintiff seeking to assert a

19

Rehabilitation Act claim initiated and then withdrew an optional appeal to the EEOC of the AJ‘s

20

decision).

21

Because exhaustion of administrative remedies is optional as to ADEA claims, the

22

question of abandonment is not relevant to that claim. The Court also does not reach Defendant‘s

23

argument that if Plaintiff included any discriminatory termination claims in her First EEO claim

24

she subsequently abandoned them by failing to cooperate with the Agency‘s investigation of that

25

claim. It is clear from the First EEO Complaint and Plaintiff‘s sworn affidavit that she did not, in

26

fact, assert any claims for discriminatory termination in her First EEO Complaint and therefore,

27
28
27

1

the cases involving abandonment of claims are not on point.9
On the other hand, the Court rejects Defendant‘s suggestion that Plaintiff is limited to the

2
3

claims that were listed in FEMA‘s July 13, 2012 letter in establishing exhaustion of her claims.

4

A handful of district court cases in other Circuits have held that failure to respond to a ―framing of

5

the issue‖ letter from the Agency EEO department that omits claims that were included in the

6

original EEO complaint results in abandonment of the omitted claims. See, e.g., McKeithan v.

7

Boarman, 803 F.Supp.2d 63, 68 (D.D.C.2011) (internal citations and quotation omitted), aff‘d in

8

part, No. 11–5247, 2012 WL 1450565 (D.C. Cir. Apr. 12, 2012), aff‘d sub nom., McKeithan v.

9

Vance–Cooks, 498 Fed. Appx. 47 (D.C.Cir.2013); Sellers v. U.S. Department of Defense, No.
C.A. 07–418S, 2009 WL 559795 (D.R.I. Mar. 4, 2009). On the other hand, in Mokhtar v. Kerry,

11
United States District Court
Northern District of California

10

the court rejected this conclusion, finding based on the regulatory framework that governs EEO

12

investigations that ―failure to cooperate during the administrative investigation must be treated as

13

factually and legally distinct from failure to respond to the acceptance-of-claims letter.‖ 83 F.

14

Supp. 3d 49, 66 (D.D.C. 2015), aff‘d, No. 15-5137, 2015 WL 9309960 (D.C. Cir. Dec. 4, 2015);

15

see also Guerrero v. Vilsack, 134 F. Supp. 3d 411, 434 (D.D.C. 2015) (recognizing that courts in

16

the D.C. Circuit are divided as to whether a plaintiff‘s failure to respond to the agency‘s framing

17

of the issue supports a finding that a plaintiff has failed to exhaust her administrative remedies

18

with respect to those claims). The undersigned finds the reasoning of Mokhtar to be persuasive.

19

In any event, it is apparent from the record before the Court that under the facts of this case,

20

Plaintiff made clear to FEMA that she did not agree with the framing of her claim in the letter and

21

therefore, that Plaintiff did not through inaction abandon the claims that were omitted. Therefore,

22

the Court looks to the underlying EEO Complaint to determine whether Plaintiff has exhausted her

23

claims.

24
25
9

26
27
28

The Court agrees with Defendant, however, that Plaintiff may not rely on her attempts to add
such claims for the purposes of demonstrating exhaustion where she denied the Agency‘s request
for a 90-day extension to process those additional claims. It was Plaintiff‘s right to deny the
Agency‘s request and to proceed without adding any claims. As a result, however, she is limited
to the claims that were asserted in her First EEO Complaint for the purposes of exhaustion of
administrative remedies.
28

1

F.

Claim One (Wrongful Termination)

2

In Claim One, Plaintiff alleges that her rights were violated under Title VII, the ADEA,

3

and the Rehabilitation Act based on allegation that Defendant ―processed two wrongful

4

terminations against [P]laintiff, because she was unemployed and ill for almost two years and had

5

debt, violating [P]laintiff‘s due process rights.‖ FAC ¶ 9. Elsewhere in the complaint, she alleges

6

that Defendant‘s conduct was discriminatory based on her race, sex, age, and physical/mental

7

disability and in retaliation for prior EEO activity Therefore, construing the complaint liberally,

8

the Court construes this claim to allege that her two terminations by FEMA were motivated by

9

discriminatory animus based on Plaintiff‘s race, sex, age, and physical/mental disability and

10

United States District Court
Northern District of California

11

retaliatory intent related to Plaintiff‘s prior EEO activity.
1. Whether Plaintiff has Exhausted

12

As discussed above, Title VII and the Rehabilitation Act require, as a jurisdictional matter,

13

that a plaintiff must substantially comply with the ―presentment of discrimination complaints to an

14

appropriate administrative agency.‘‖ Sommatino, 255 F.3d at 709. Further, in mixed cases

15

involving claims that an adverse employment action was discriminatory, a federal employee must

16

make an election as to the forum in which she will exhaust as to the particular ―matter.‖ 29 C.F.R.

17

§ 1614.302(b). Here, Plaintiff elected to challenge both of her terminations before the MSPB. See

18

RJN, Exs. A & E (MSPB appeals for Plaintiff‘s terminations in 2011 and 2012). The Court

19

concludes that in doing so, she made an election as to her Title VII and Rehabilitation Act claims

20

based on those terminations because the word ―matter‖ in the regulation refers to the underlying

21

employment action, namely, her terminations. See Macy v. Dalton, 853 F. Supp. 350, 352 (E.D.

22

Cal. 1994) (interpreting a similar election requirement for unionized federal employees using

23

similar wording and finding that the word ―matter‖ refers to the ―underlying [employment] action‖

24

rather than the discrimination claim.) As a consequence, once the Initial Decisions of the AJ

25

became final, thirty days after their issuance, Plaintiff was required to file her discriminatory

26

termination claims within 30 days if she wished to proceed on them either before the EEOC or in

27

federal district court. See 29 C.F.R. § 1614.310. The Initial Decisions that were issued in

28

connection with Plaintiff‘s MSPB Appeals of her terminations were issued on February 9, 2012,
29

1

and May 29, 2013. See RJN, Exs. B & F. As she did not initiate this action until June 16, 2016,

2

her claims are untimely to the extent they are based on her terminations. 10
The analysis is somewhat different for Plaintiff‘s ADEA claim. As discussed above, the

3
4

Ninth Circuit has held that ADEA claims are not subject to the exhaustion requirements that apply

5

to Title VII and Rehabilitation Act claims. See Bankston v. White, 345 F.3d 768, 770 (9th Cir.

6

2003). Rather, ADEA requires only that ―[w]hen the individual has not filed a complaint

7

concerning age discrimination with the [EEOC], no civil action may be commenced by any

8

individual . . . until the individual has given the Commission not less than thirty days‘ notice of an

9

intent to file such action. 29 U.S.C.A. § 633a(d). Here, however, Plaintiff has not alleged that she
gave the required thirty days‘ notice to the Agency of her intent to assert an ADEA claim in

11
United States District Court
Northern District of California

10

federal district court. Further, as discussed above, she did not include her terminations in her First

12

EEO Complaint and therefore, she cannot rely on her exhaustion of the claims in that complaint to

13

establish that she has exhausted her administrative remedies as to the ADEA claim. Accordingly,

14

the Court finds that Plaintiff has not satisfied the prerequisites for asserting her ADEA claim in

15

federal district court.

16

2. Whether Plaintiff has Alleged Sufficient Facts to State Valid Claims

17

The Court further finds that the claims asserted in Claim One are insufficiently alleged

18

under Rule 12(b)(6). Plaintiff‘s allegations concerning Defendant‘s discriminatory motives are

19

entirely conclusory. She has alleged no specific facts that would support a plausible inference that

20

her terminations were based on her age, sex, race, or alleged physical or mental disabilities, or that

21

they were in retaliation for prior EEO activity. See Vasconcellos v. Sara Lee Bakery, No. C 13-

22

2685 SI, 2013 WL 4014520, at *2 (N.D. Cal. Aug. 5, 2013)(finding that employment

23

discrimination claims did not satisfy the requirements of Rule 12(b)(6) where the plaintiff did ―not

24

allege any facts in support of the claims that defendants terminated plaintiff on account of his

25
26
27
28

10

The Court also notes that Plaintiff expressly omitted her 2011 termination from the EEO
Complaint that she filed on December 19, 2011, see Wallace Decl., Ex. A. Moreover, she testified
under oath in the EEO proceeding that she had done so intentionally because she had been
instructed that she could not simultaneously pursue her discriminatory termination claim in her
EEO proceedings and before the MSPB. See Wallace Decl., Ex. C at 3.
30

1

physical disability, exercise of family leave, age, or filing for worker‘s compensation‖ and instead

2

―simply allege[d] in a conclusory fashion that defendants ‗considered plaintiff a problem

3

employee‘ and ‗decided to terminate plaintiff on the basis that‘ he exercised a right or based on his

4

age or physical disability.‖) Further, she has not identified any specific disability in her FAC as

5

the basis for her Rehabilitation Act claims or provided any specific facts about her prior EEO

6

activity. Therefore, the allegations in the complaint are insufficient to support a reasonable

7

inference of discrimination as to these claims.

8

For the reasons stated above, the Court DISMISSES the claims asserted in Claim One.
With respect to the Rehabilitation Act and Title VII Claims, the Court concludes that Plaintiff‘s

10

failure to timely file her discrimination and retaliation claims in federal district court or file an

11
United States District Court
Northern District of California

9

appeal with the EEOC after the MSPB‘s decision became final cannot be cured and therefore

12

dismisses those claims with prejudice. With respect to the ADEA claim, Plaintiff may be able to

13

establish that she gave the Agency the required 30 days‘ notice of intent to sue. Therefore,

14

Plaintiff will be given leave to amend to allege facts showing that she has met this administrative

15

prerequisite for bringing her ADEA claim and to allege specific facts sufficient to support an

16

inference that her two terminations were motived by age discrimination.

17

G.

18

Plaintiff‘s failure to promote claim is asserted under the Rehabilitation Act and the LLA.

Claim Two (Failure to Promote)

19

The claim appears to be based on an alleged failure to promote Plaintiff in April 2011. See FAC ¶

20

6(e). See also Opposition at 10 & Ex. 8 (May 13, 2011 email stating that Blackman did not meet

21

―the minimum training/education requirements‖ for a position described in job announcement

22

MG-2011-81369-KJD-464993D/M2). The Court further construes the claim to be based on

23

disability discrimination as the only substantive violation Plaintiff has alleged is under the

24

Rehabilitation Act.

25
26

1. Whether Plaintiff Has Exhausted
With respect to the alleged failure to promote, it appears that Plaintiff may, in fact, have

27

presented the same claim in her First EEO Complaint. In particular, in her First EEO Complaint,

28

she listed her rejection for a position identified by Announcement Number MG-2011-81 36931

1

KJD-464993D/M as one of the grounds for her discrimination complaint. Wallace Decl., Ex. A.

2

Plaintiff lists the same job in her opposition brief in connection with Claim Two. Opposition at

3

10. To the extent that Plaintiff did not initiate EEO counseling as to this conduct until October

4

19, 2011, however, her claim is not timely. See Lyons v. England, 307 F.3d 1092, 1105 (9th Cir.

5

2002) (holding that because plaintiff had not contacted EEO counselor within 45 days of incidents

6

out of which claims arose, claims were time-barred and therefore not properly exhausted); Nat’l

7

R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (―[d]iscrete acts such as termination,

8

failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of

9

discrimination and each retaliatory adverse employment decision constitutes a separate actionable

10

United States District Court
Northern District of California

11

‗unlawful employment practice.‘‖)(emphasis added).
The Court further concludes that Plaintiff cannot avoid this result by invoking the LLA.

12

The courts that have addressed the question have found that a failure to promote does not

13

constitute an ―other practice‖ under the LLA that gives rise to a new violation with each paycheck.

14

See Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 375 (D.C. Cir. 2010) (―In context,

15

therefore, we do not understand ‗compensation decision or other practice‘ to refer to the decision

16

to promote one employee but not another to a more remunerative position.‖); Ekweani v.

17

Ameriprise Fin., Inc., No. CV-08-01101-PHX-FJM, 2010 WL 749648, at *5 (D. Ariz. Mar. 3,

18

2010), aff'd, 444 F. App‘x 968 (9th Cir. 2011) (following Schuler and noting that ―[i]n the Ninth

19

Circuit, alleging a failure to promote claim is not sufficient to state a claim for compensation

20

discrimination.‖) (citing Williams v. Boeing Co., 517 F.3d 1120, 1131 (9th Cir. 2008)). The

21

undersigned agrees.

22

Nonetheless, the 45-day requirement is not jurisdictional and is subject to equitable tolling,

23

waiver and estoppel, as discussed above. Although Plaintiff has not alleged any facts that would

24

support an inference that any of these doctrines apply, she may be able to allege such facts.

25

Therefore, Plaintiff‘s claim is DISMISSED with leave to amend as to the failure to promote claim

26

based on the position discussed above to allege facts showing that the 45 day period was tolled

27

under any of these doctrines.

28

The Court concludes that Claim Two, as currently alleged, has not been exhausted.
32

1

2. Whether Plaintiff has Alleged Sufficient Facts to State Valid Claims

2

Plaintiff alleges that she was denied promotions based on her disabilities. As discussed

3

above, however, she has not identified the specific disability she contends was the basis of the

4

discrimination. Nor has she alleged any specific facts that would support an inference that the

5

promotion was denied as a result of a disability. Therefore, the Court finds that Claim Two does

6

not satisfy the requirements of Rule 12(b)(6).

7

The Court DISMISSES Claim Two with leave to amend.

8

H.

9

In Claim Three, Plaintiff alleges that ―[d]uring [P]laintiff‘s interview with the investigator,

Claim Three (Retaliation)

and during the process of [P]laintiff‘s investigation, [P]laintiff was harassed about her ongoing

11
United States District Court
Northern District of California

10

EEO case.‖ She asserts this claim under Title VII and the ADEA.

12

1. Whether Plaintiff Has Exhausted

13

In her First EEO Complaint, Plaintiff marked the box for EEO Retaliation and wrote

14

―2008‖ and ―2011‖ in the margin. The list of discriminatory actions in the attachment did not,

15

however, include any conduct related to the OPM background investigation that appears to be the

16

subject of this claim. Even if the mere fact that Plaintiff checked the box for EEO retaliation and

17

listed her 2008 and 20011 EEO activity would have led the agency to investigate the alleged

18

harassment by the OPM investigator, however, the record reflects that Plaintiff‘s claim is not

19

timely. In particular, the unsuitability finding that resulted from the investigation was the subject

20

of an August 5, 2011 letter indicating that the investigation had already concluded by that date.

21

Wallace Decl., Ex. D at 6. As a consequence, any retaliatory harassment by the investigator, even

22

if it constituted a single ongoing employment practice, would have ended more than 45 days

23

before Plaintiff initiated EEO counseling. Thus, in the absence of any allegations that this claim

24

was tolled, the Court concludes that it was untimely and not properly exhausted. Plaintiff will be

25

permitted to amend to allege, if she can, facts showing the time for initiating EEO counseling was

26

subject to waiver, estoppel or equitable tolling.

27
28

2. Whether Plaintiff has Alleged Sufficient Facts to State Valid Claims
To establish a prima facie case of retaliation, Plaintiff must prove that (1) she engaged in a
33

protected activity, (2) she suffered an adverse employment decision, and (3) there was a causal

2

link between the protected activity and the adverse employment decision. Xing Xing Lin v. Potter,

3

No. C-10-03757-LB, 2011 WL 1522382, at *12 (N.D. Cal. Apr. 21, 2011) (citing Villiarimo v.

4

Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002)). Plaintiff alleges that she was treated

5

unfairly by the OPM investigator based on her prior EEO activity but fails to provide any facts in

6

her complaint that identify this prior activity or support an inference that the investigator‘s conduct

7

was motived by her prior her prior EEO activity. Finally, as the investigator was an OPM

8

employee rather than an employee of the Department of Homeland Security, Plaintiff has not

9

alleged facts supporting an inference that the Department of Homeland Security can be held liable

10

for this conduct. Therefore, Plaintiff fails to state a valid claim. She will be permitted to amend to

11
United States District Court
Northern District of California

1

cure this defect if she can.

12

I.

13

Plaintiff alleges that she was denied training opportunities based on her disability in

Claim Four (Denial of Training Opportunities)

14

violation of the Rehabilitation Act and the LLA. Specifically, she alleges that she was ―denied

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training opportunities, which were later used against [her] future [deployability].‖ FAC ¶ 15.

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Elsewhere in the complaint, she alleges that she was denied training in September 2011. FAC ¶

17

6(f). As noted above, although Defendant states in its brief that Plaintiff did not included a failure

18

to train allegation in her First EEO Complaint, see Motion at 12, she did include the following

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entry in her list of discriminatory actions: ―Denial of Training: CON215, CON353, Disaster

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contracting.‖ The Court cannot determine, however, whether this allegation was timely as

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Plaintiff did not state in the First EEO Complaint when these training opportunities were denied.

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The Court notes that in an email exchange with her EEO counselor, Plaintiff stated that she had

23

been denied training in March 2011 and June 2011, see Opposition, Ex. 16. Thus, it appears likely

24

that the training opportunities identified in the First EEO Complaint were denied more than 45

25

days before Plaintiff initiated EEO counseling. It is possible, however, that the training

26

opportunities referenced in the First EEO Complaint were the ones that she alleged in the FAC

27

were denied in September 2011 (in which case, they would be timely). Because the Court cannot

28

determine from the allegations whether the Denial of Training Opportunities claim is timely, it
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finds that the claim fails to satisfy the exhaustion requirement as currently alleged.

2

Plaintiff will be given an opportunity to amend as to this claim to allege, if she can,

3

specific facts showing either that the training opportunities listed in her EEO Complaint occurred

4

within 45 days of EEO counseling or that the 45-day counseling period was subject to waiver,

5

estoppel or equitable tolling. The Court also finds the LLA does not apply to Plaintiff‘s failure to

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train claim and therefore does not render Plaintiff‘s claim timely in the event that the denials of

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training occurred more than 45 days before she initiated EEO counseling. See Daniels v. United

8

Parcel Serv., Inc., 797 F. Supp. 2d 1163, 1185–86 (D. Kan. 2011), aff‘d, 701 F.3d 620 (10th Cir.

9

2012) (holding that ―[d]enial of training is a discrete act that is governed by Morgan, not by the

10

[LLA]‖).
The Court further finds that Plaintiff has failed to allege any facts that would support a

United States District Court
Northern District of California

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plausible inference that the alleged denial of training was a result of a disability for the same

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reasons discussed above. Therefore, this claim does not satisfy the requirements of Rule 12(b)(6).

14

Plaintiff will be permitted to amend this claim to allege facts showing that Defendant‘s failure to

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train was based on Plaintiff‘s disabilities.

16

J.

17

In Claim Five, Plaintiff alleges that Defendant failed to afford her additional wages, in

Claim Five (Failure to Pay Additional Wages)

18

violation of the Rehabilitation Act and the LLA. In particular, she alleges Defendant ―prevented

19

[P]laintiff from deploying to disaster declarations, which prevented [P]laintiff from earning

20

additional wages, which were tax free.‖ As this claim is asserted under the Rehabilitation Act, the

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Court construes it is alleging that she was denied deployment on the basis of her disability.

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1. Whether Plaintiff Has Exhausted
In her First EEO Complaint, Plaintiff included the following entry: ―When my

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deployment was cancelled, it deprived me of overtime hours.‖ Wallace Decl., Ex. A.11 Based on

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the records before the Court, it is reasonable to interpret this claim as referring to the cancellation

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11

Although this conduct was included in the First EEO Complaint, it was omitted from the
Agency‘s July 13, 2012 Letter. See Wallace Decl., Ex. B. As discussed above, the Court relies on
Plaintiff‘s EEO complaint rather than the Agency letter in determining the scope of exhaustion.
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of Plaintiff‘s deployment referenced in the April 10, 2012 Initial Decision in the MSPB Appeal

2

relating to Plaintiff‘s alleged constructive suspension. See RJN, Ex. (April 10, 2012 Initial

3

Decision) at 13. That cancellation occurred on September 16, 2011, within 45 days of initiating

4

EEO counseling. Id. As a consequence, to the extent that this claim is based on the alleged

5

discriminatory cancellation of Plaintiff‘s deployment in September 2011, she has exhausted that

6

claim.

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8
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2. Whether Plaintiff States a Valid Claim
Like the claims discussed above, Plaintiff has alleged no facts in support of her allegation
that her deployment was cancelled on the basis of her disability. Consequently, Plaintiff fails to
state a valid claim, even though she has satisfied the exhaustion requirement as to this claim.

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United States District Court
Northern District of California

10

Plaintiff will be given leave to amend to allege specific facts in support of this claim showing that

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Defendant‘s conduct was based on her disability.

13
K.

Claim Six (Hostile Work Environment)

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Plaintiff alleges that she was subject to a hostile work environment in violation of Title
15
VII, the ADEA, and the Rehabilitation Act. Based on the statutes Plaintiff invokes in support of
16
this claim, the Court construes it broadly to allege that the hostile work environment was based on
17
her age, sex, race and disability, as well as her past EEO activity.
18
19

1. Whether Plaintiff has Exhausted
In her EEO Complaint, Plaintiff expressly stated that she had been subject to a hostile

20
work environment and, as stated above, she checked the boxes for discrimination based on age,
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race, sex, disability, and prior EEO activity. See Wallace Decl., Ex. A. Defendant contends this

22
claim was not properly exhausted because Plaintiff did not timely seek EEO counseling, pointing
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out that the specific entries in the attachment to the First EEO Complaint that were listed to show
24
a hostile work environment were dated no later than April 2011, many months before Plaintiff
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initiated EEO counseling. The Court finds that Defendant‘s reading of the EEO charge is too
narrow. As discussed above, courts must construe EEO charges ―with utmost liberality since they
are made by those unschooled in the technicalities of formal pleading.‖ Sosa v. Hiraoka, 920 F.2d

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1451, 1458 (9th Cir. 1990) (citation omitted). Plaintiff included a long list of discriminatory

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conduct in the attachment to her First EEO Complaint, listing them by number. Although number

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―8‖ was labeled ―hostile work environment,‖ many of the discrete acts listed elsewhere on her list

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could support a hostile work environment claim. Included on the list was Plaintiff‘s cancelled

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deployment (discussed above) and a credit card charge associated with that deployment for which

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Plaintiff apparently alleged she had not been reimbursed. The record reflects that the charge was

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incurred in mid-September 2011. See Opposition Exs. 14, 15.
As discussed above, under Morgan, a hostile work environment claim is timely so long as

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any of the acts that support the claim were raised in a timely manner. Plaintiff included in her First

10

EEO Complaint conduct that occurred within the 45-day period prior to initiating EEO counseling

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United States District Court
Northern District of California

9

that may be part of a hostile work environment; she also claimed that she was subject to a hostile

12

work environment. The Court concludes that at the pleading stage, that is sufficient for the

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purposes of demonstrating exhaustion of this claim.12 The Court does not, however, preclude

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Defendant from challenging this claim on exhaustion grounds at later stage of the case, when the

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Court is in a better position to evaluate whether the conduct that that occurred within the 45-day

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period was part of a continuing practice or rather, was a discrete discriminatory act for the

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purposes of Morgan.

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2. Whether Plaintiff Has Stated a Claim

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Plaintiff‘s hostile work environment claim will require that she establish that the allegedly

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discriminatory conduct of Defendant was because of Plaintiff‘s membership in a protected group,

21

whether that group is based on her age, race, sex or disability. As discussed above, Plaintiff has

22

alleged no facts linking the alleged harassment to her membership in any protected class.

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Although she alleges generally that ―[o]ther similarly situated contract specialists not in plaintiff‘s

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protected class were not treated the same,‖ see, FAC ¶ 17, such conclusory allegations are not

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12

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The Court notes that in Plaintiff‘s Second EEO Complaint, she asserts a hostile work
environment claim for the period 2013 to 2016. Wallace Decl., Ex. E. That complaint has not
been exhausted. The Court declines to address whether there should be a particular cut-off date as
to the exhaustion of Plaintiff‘s hostile work-environment claim in this action. The parties did not
brief that question and in any event, Plaintiff has not yet stated a valid hostile work environment
claim under Rule 12(b)(6).
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sufficient to meet the requirements of Rule 12(b)(6). Plaintiff will be permitted to amend to cure

2

this defect if she can.

3

L.

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In Claim Seven, Plaintiff alleges ―[d]isparate [t]reatment‖ in violation of Title VII, the

5

ADEA and the Rehabilitation Act based on the allegation that Plaintiff is a ―tenured qualified

6

disabled employee, who is in a protected class‖ and ―was subjected to discriminatory treatment,

7

different from other employees who were not in her protected class, but were similarly situat[ed].‖

8

The Court cannot discern the basis for this claim, which is entirely conclusory, or whether it has

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been exhausted. Therefore, the Court DISMISSES this claim pursuant to both Rule 12(b)(1) and

Claim Seven (Disparate Treatment Discrimination)

12(b)(6) with leave to amend.

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United States District Court
Northern District of California

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IV.

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CONCLUSION
For the reasons stated above the Court GRANTS in part and DENIES in part Defendant‘s

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Motion to Dismiss and dismisses all of Plaintiff‘s claims with leave to amend to cure the

14

deficiencies identified in this Order, as set forth below. In particular, the Court rules as follows:

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

Claim One (Wrongful Termination): DISMISSED based on failure to exhaust

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administrative remedies and failure to state a claim. Plaintiff may amend to show

17

that she has satisfied the administrative requirements for bringing her ADEA claim

18

in federal court and to allege facts that support a plausible inference that her

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terminations were based on age discrimination. Leave to amend is DENIED to the

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extent this claim is based on other forms of discrimination under Title VII and the

21

Rehabilitation Act.

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

Claim Two (Failure to Promote): DISMISSED based on failure to exhaust

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administrative remedies and failure to state a claim. Plaintiff may amend to allege

24

facts showing that the 45 deadline for initiating EEO counseling on this claim is

25

subject to waiver, estoppel or equitable tolling and to allege facts supporting a

26

plausible inference that the promotion was denied on the basis of a disability.

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

Claim Three (Retaliation): DISMISSED based on failure to exhaust administrative
remedies and failure to state a claim. Plaintiff may amend to allege facts showing
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that the 45 deadline for initiating EEO counseling on this claim is subject to waiver,

2

estoppel or equitable tolling and establish a reasonable inference that the

3

investigator was motivated by specific prior EEO conduct of which he had

4

knowledge, and that the Department of Homeland Security can be held liable for

5

his conduct.

6



Claim Four (Denial of Training): DISMISSED based on failure to exhaust

7

administrative remedies and failure to state a claim. Plaintiff may amend to allege

8

facts showing that the training identified in her First EEO Complaint was denied

9

within 45 days of initiating EEO counseling or that the 45-day deadline for
initiating EEO counseling on this claim is subject to waiver, estoppel or equitable

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United States District Court
Northern District of California

10

tolling. She may also amend to allege facts supporting a plausible inference that

12

the training was denied on the basis of a disability.

13



Claim Five (Failure to Pay Additional Wages): DISMISSED based on failure to

14

state a claim. Plaintiff may amend to allege facts showing that her deployment was

15

cancelled on the basis of a disability.

16



Claim Six (Hostile Work Environment): DISMISSED based on failure to state a

17

claim. Plaintiff may amend to allege facts showing that she was subjected to a

18

hostile work environment because of her age, sex, race and disability, as well as her

19

past EEO activity.

20



Claim Seven (Disparate Treatment): DISMISSED based on failure to exhaust

21

administrative remedies and failure to state a claim. Plaintiff may amend to allege

22

specific facts identifying the basis for this claim and that Plaintiff has exhausted

23

administrative remedies as to this claim.

24

Plaintiff, who is not represented by counsel, is encouraged to consult with the Federal Pro

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Bono Project‘s Legal Help Center in either of the Oakland or San Francisco federal courthouses

26

for assistance. The San Francisco Legal Help Center office is located in Room 2796 on the 15th

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floor at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is located in

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Room 470-S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments can be
39

1

made by calling [phone] or signing up in the appointment book located outside either

2

office, and telephone appointments are available. Lawyers at the Legal Help Center can provide

3

basic assistance to parties representing themselves but cannot provide legal representation.

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5

Plaintiff’s amended complaint shall be filed within 45 days of the date of this Order.
IT IS SO ORDERED.

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Dated: February 21, 2017
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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United States District Court
Northern District of California

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