Dragoman, Jr. v. Adams

Filing 9

ORDER GRANTING 3 MOTION TO DISMISS by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 4/5/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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LYNN FRANK DRAGOMAN, JR.,

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For the Northern District of California

United States District Court

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Plaintiff,
v.

ORDER GRANTING MOTION
TO DISMISS

KERRY LEE ADAMS,
Defendant.
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No. C 18-00845 WHA

INTRODUCTION
In this dispute between two postal service employees, defendant moves to dismiss pro se

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plaintiff’s claims for lack of subject-matter jurisdiction and failure to state a claim. For the

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reasons stated herein, the motion is GRANTED.

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STATEMENT
Pro se plaintiff Lynn Frank Dragoman, Jr. and defendant Kerry Lee Adams both work

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for the United States Postal Service — plaintiff as a letter carrier and defendant as the

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Postmaster of the Postal Service office in Graton, California. Following alleged workplace

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harassment, plaintiff filed a form CH-100 Request for Civil Harassment Restraining Order in

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Sonoma County Superior Court.

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In his request, plaintiff complained that defendant “has been following me on my mail

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route weekly and won’t stop.” Plaintiff stated that defendant has been “harassing me at work

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for appox [sic] 3 years,” and that “there are two active EEOC cases currently pending.”

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Additionally, plaintiff complained about wage issues, stating that defendant refused to pay him,

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and that plaintiff was owed “two years back wages for a signed grievance [defendant] is in non

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compliance with.” Plaintiff requested a restraining order to prevent continued harassment and

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to require that defendant stay away from plaintiff, his home, and his workplace. (Dkt. No. 1-1

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at 3–7)

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Plaintiff’s request for a temporary restraining order was denied, and a hearing date was

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set for February 13. On February 8, defendant removed the action and the hearing in Sonoma

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County Superior Court was vacated. Defendant filed the instant motion to dismiss on February

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In his opposition, plaintiff stated he was seeking a civil restraining order out of concern

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For the Northern District of California

United States District Court

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for his safety — rather than to remedy any alleged employment discrimination — stating “I am

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seeking a restraining order for my personal safety not any kind of penalty/sanction for

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[defendant’s] appalling behavior as the EEOC will handle that aspect” (Dkt. No. 6 at 3).

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This order follows full briefing and oral argument.
ANALYSIS
Requests for Civil Harassment Restraining Orders filed pursuant to Section 527.6 of the

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California Code of Civil Procedure can be construed as a complaint for the purposes of a

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motion to dismiss. Everette v. Milburn, No. 16-cv-5935-MMC, 2016 WL 7049034 at *1 (N.D.

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Cal. Dec. 5, 2016) (Judge Maxine Chesney).

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A genuine dispute appears to exist between the parties. Plaintiff may be correct that

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defendant has followed him, failed to pay back wages, and otherwise created an undesirable

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workplace environment. But, even under plaintiff’s version of the facts, defendant acted in his

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official capacity as a federal employee. There are, therefore, limitations on the causes of action

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that can be brought against defendant in his individual capacity.

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The facts alleged suggest claims arising in tort and employment discrimination.

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Because defendant is a federal employee acting in the scope of his employment, to the extent

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plaintiff alleges tortious activity, his claims are governed by the Federal Tort Claims Act. To

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the extent plaintiff alleges workplace harassment, his claims are governed by federal anti-

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discrimination statutes.
TORT CLAIMS.

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

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it has explicitly consented to be sued. United States v. Testan, 424 U.S. 392, 399 (1976). The

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FTCA is a limited waiver of that sovereign immunity, and it provides the exclusive remedy for

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torts against federal employees acting within the scope of their employment. 28 U.S.C. §

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2679(b)(1). The proper party for such a claim is the United States, rather than the individual

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employee. Id.
Prior to initiating a tort action against the United States, a claimant “shall have first

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For the Northern District of California

United States District Court

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presented the claim to the appropriate Federal agency and his claim shall have been finally

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denied by the agency in writing.” 28 U.S.C. § 2675(a). “The claim requirement of section

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2675 is jurisdictional in nature and may not be waived.” Burns v. United States, 764 F.2d 722,

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724 (9th Cir. 1985).

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Here, plaintiff’s alleged facts all describe defendant acting within his role as a Postal

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Service employee. Furthermore, the Civil Division Chief of the United States Attorney’s Office

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for the Northern District of California certified, pursuant to Section 2679(d)(2) of Title 28 of the

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United States Code, that defendant was acting within the course and scope of his employment

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with the Postal Service at all times material to plaintiff’s allegations (Dkt. No. 3-1). Therefore,

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the FTCA provides the exclusive remedy for plaintiff’s tort claims.

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Here, because defendant was acting in his official capacity as a federal employee,

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plaintiff’s claims must be dismissed for failure to bring his action against the United States as

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required by the FTCA. Furthermore, there is no indication that plaintiff submitted an

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administrative claim or has had a claim denied by the Postal Service. Accordingly, absent the

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statutory preconditions for suit, plaintiff’s tort claims must be DISMISSED.

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DISCRIMINATION CLAIMS.

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On the face of the complaint, plaintiff does not seem to allege discrimination based upon

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any protected status. Rather, plaintiff’s complaint appears to be based on a personal dislike

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between the parties.

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Defendant argues that even if plaintiff’s claims are the result of discrimination based

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upon a protected status, his claims must nevertheless be dismissed. This order agrees. Title VII

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of the Civil Rights Act is the exclusive remedy for claims of discrimination based on race,

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national origin, religion, or sex in federal employment. 42 U.S.C. § 2000e-16. The Age

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Discrimination in Employment Act is the exclusive remedy for claims of discrimination based
on age. 29 U.S.C. § 633a. And the Rehabilitation Act is the exclusive remedy for claims of

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For the Northern District of California

United States District Court

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discrimination based on disability. 29 U.S.C. § 794. Plaintiff’s claims — if construed as

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alleging violations of the above noted statutes — fail for two reasons.

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First, the proper defendant for a civil action based on each of the above noted anti-

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discrimination statutes is the head of the agency or department — which defendant is not.

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Mahoney v. U.S. Postal Service, 884 F.2d 1194, 1196 (9th Cir. 1989) (Title VII &

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Rehabilitation Act); Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir. 1986) (ADEA).

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Second, Title VII and the Rehabilitation Act require that a plaintiff exhaust his or her

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administrative remedies as a precondition to filing an action. Vinieratos v. U.S. Dep’t of the Air

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Force, 939 F.2d 762, 767–68, 773 (9th Cir. 1991). The ADEA gives plaintiffs the option of

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either exhausting all administrative remedies or giving the EEOC notice of intent to sue.

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Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003) (ADEA). Here, plaintiff alleges that he

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has filed a complaint with the EEOC, but that it is still pending (Dkt. Nos. 1-1, 6). Beyond this,

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however, there is no indication as to any specifics regarding when the complaints were filed,

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what misconduct they allege, or their status. It cannot, therefore, be said that plaintiff has

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exhausted his administrative remedies or given EEOC notice of intent to sue.

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Thus, to the extent the claims are based on Title VII, the Rehabilitation Act, or the
ADEA, they must be DISMISSED as well.

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CONCLUSION

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For the reasons stated above, defendant’s motion to dismiss is hereby GRANTED.

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Plaintiff’s complaint is DISMISSED without prejudice.

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IT IS SO ORDERED.

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Dated: April 5, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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