Cervantes v. Napolitano et al

Filing 43

ORDER denying 37 Defendant's Motion to Dismiss for Failure to State a Claim. Signed by Judge Janis L. Sammartino on 1/3/2017. (kcm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CRISTIAN CERVANTES,

Case No.: 12-cv-01045 JLS (JMA)
Plaintiff,

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ORDER DENYING DEFENDANT’S
MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM

v.
JANET NAPOLITANO, in her official
capacity as Secretary of the Department of
Homeland Security,

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(ECF No. 37)

Defendant.

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Presently before the Court is Defendant’s Motion to Dismiss Second Amended

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Complaint or, in the Alternative, for Summary Judgment (“MTD”) (ECF No. 37),

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Plaintiff’s Response in Opposition re Motion to Dismiss for Failure to State a Claim or, in

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the Alternative, for Summary Judgment (“Opp’n”) (ECF No. 39), and Defendant’s

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Response in Support re Motion to Dismiss for Failure to State a Claim or, in the Alternative,

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for Summary Judgment (“Reply”) (ECF No. 39). On July 12, 2016 the Court vacated the

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hearing set for Defendant’s MTD and took the matter under submission without oral

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argument pursuant to Civil Local Rule 7.1(d)(1). (Order Vacating Hr’g 1, ECF No. 42.)

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Having considered the parties’ arguments and the law, the Court DENIES Defendant’s

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MTD.

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12-cv-01045 JLS (JMA)

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BACKGROUND

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Plaintiff is a Mexican-American male who worked at U.S. Customs and Border

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Protection (“CBP”). (Second Am. Compl. for Damages and Injunctive Relief (“SAC”) ¶ 7,

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ECF No. 11.) On January 12, 2011 several employees senior to Plaintiff informed him that

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he would not be awarded a tenured position. (Id. ¶ 9.) One employee told Plaintiff that he

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was “too young.” (Id.) The next day, Plaintiff contacted Union President Jose Bustamante,

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told him what happened, and was told by Mr. Bustamante the reason for the non-award of

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tenure was due to Plaintiff having been “written up . . . .” (Id.) Plaintiff told Mr.

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Bustamante this “was untrue” because “he had never been counseled or given a letter of

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reprimand or even told he was the subject of a negative work issue,” and that he instead

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“believed he was the victim of discrimination and retaliation for complaining about a

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supervisor’s misconduct.” (Id.)

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Approximately one week later Plaintiff was terminated by CBP. (Id. ¶ 10.) Plaintiff

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alleges that his termination violated Title VII of the Civil Rights Act of 1964 (“Title VII”)

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because CBP discriminated against him on the basis of his ethnicity. (Id. ¶¶ 9–10, 26

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(noting CBP agent who terminated Plaintiff said “you are young and Hispanic. You could

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easily get another job anywhere else if you resigned”).)

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After his termination, Plaintiff met with Mr. Bustamante. (Id. ¶ 11.) Plaintiff alleges

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that he designated Bustamante to serve as his representative for purposes of filing an Equal

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Employment Opportunity (“EEO”) complaint. (Id.) Bustamante allegedly accepted this

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representation and called the EEO office “within 45 days of the complained of action . . .

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to obtain an EEO counselor” for Plaintiff and to explain Plaintiff’s allegations of

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discrimination.

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Bustamante “specifically requested that EEO begin the informal counseling of Plaintiff’s

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claim and was informed that the counselor would be contacting him shortly to obtain a

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factual statement from Plaintiff . . . .” (Id. ¶ 12.) Accordingly, Mr. Bustamante notified

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Plaintiff that he did not need to do anything else because the Union was taking care of the

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matter for him. (Id. ¶ 13.)

(Id.)

Plaintiff further alleges on information and belief that Mr.

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On May 26, 2011 Plaintiff filed a formal EEO complaint with CBP through its

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Oakland, California office. (Id. ¶ 15.) On June 3, 2011, CBP informed Plaintiff that his

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complaint “may not be timely” because he had waited more than forty-five days to contact

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an EEO counselor after the alleged discriminatory act. (Id. ¶ 17.) The agency required

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Plaintiff to submit an explanation as to why he was unable to initiate counseling in a timely

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manner. (Id.)

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Plaintiff responded on June 15, 2011, explaining that he had contacted Mr.

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Bustamante immediately after the termination took effect and that Mr. Bustamante had

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assured him that the matter was being addressed and that an EEO complaint was being

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filed on his behalf. (Id. ¶ 19.) He further explained that, after several unsuccessful attempts

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to follow up with Bustamante, he retained counsel, who immediately initiated counselor

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contact on March 17, 2011. (Id. ¶ 18.) Plaintiff further alleges that Mr. Bustamante had

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contacted the EEO office, then subsequently contacted CBP management to discuss

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Plaintiff’s claims, but ultimately agreed not to pursue any further action on behalf of

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Plaintiff because CBP “management did not wish for the complaint to affect its internal

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statistic regarding job related discrimination.” (Id. ¶ 20.) Plaintiff alleges he did not know

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this information “at the time,” and therefore did not communicate it to the EEO at that time.

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(Id.)

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On June 15, 2011, CBP dismissed Plaintiff’s complaint for failure to initiate EEO

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counselor contact within the forty-five-day deadline. (Id. ¶ 24.) On January 23, 2012, the

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Equal Employment Opportunity Commission’s (“EEOC”) Office of Federal Operations

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affirmed CBP’s final decision dismissing Plaintiff’s complaint. (Id. ¶ 25.)

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Plaintiff subsequently filed suit in this Court on April 27, 2012, alleging employment

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discrimination under Title VII, the Age Discrimination in Employment Act (ADEA), and

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the Fifth Amendment. (Compl., ECF No. 1.) On February 7, 2013 the Court dismissed

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Plaintiff’s ADEA and Fifth Amendment claims with prejudice and dismissed his Title VII

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claim without prejudice for failure to exhaust administrative remedies. (Order Granting

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Mot. to Dismiss Compl., ECF No. 10.) On February 21, 2013 Plaintiff filed his First
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12-cv-01045 JLS (JMA)

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Amended Complaint, (First Am. Compl., ECF No. 11), Defendant once again moved to

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dismiss, (Mot. to Dismiss for Failure to State a Claim or, in the Alternative, Mot. for Summ.

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J., ECF No. 13), and the Court again granted without prejudice the Motion to Dismiss,

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(Order Granting Mot. to Dismiss, ECF No. 21).

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On March 16, 2016 Plaintiff filed his SAC. (ECF No. 26.) Defendant filed the

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instant Motion. (ECF No. 37.) Because Defendant filed her motion as either a 12(b)(6)

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motion to dismiss or a Rule 56 motion for summary judgment, the Court first addresses

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which standard to use in reviewing the motion.

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WHETHER TO APPLY 12(b)(6) OR RULE 56

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As with her last motion, Defendant again moves to dismiss pursuant to Federal Rule

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of Procedure 12(b)(6) or, in the alternative, for summary judgment pursuant to Rule 56.

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“Federal Rule of Civil Procedure 12(b)(6) specifically gives courts the discretion to accept

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and consider extrinsic materials offered in connection with these motions, and to convert

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the motion to one for summary judgment when a party has notice that the district court may

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look beyond the pleadings.” Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th

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Cir. 2012). In the present case, there is no indication that Plaintiff was on notice that the

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Court would look beyond the pleadings. Indeed, Plaintiff’s complaint alleges only facts

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within the personal knowledge of Plaintiff, relevant sections of the Code of Federal

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Regulations and agency guidelines, and quotes from of the underlying agency decisions in

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this case. Accordingly, the Court declines to exercise its discretion to turn this motion into

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one for summary judgment under Rule 56.

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LEGAL STANDARD

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Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the

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defense that the complaint “fail[s] to state a claim upon which relief can be granted,”

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generally referred to as a motion to dismiss. The Court evaluates whether a complaint

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states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil

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Procedure 8(a), which requires a “short and plain statement of the claim showing that the

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pleader is entitled to relief.”

Although Rule 8 “does not require ‘detailed factual
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allegations,’ . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-

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harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to

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provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

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Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does

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a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

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enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557).

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

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Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible

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when the facts pled “allow[] the court to draw the reasonable inference that the defendant

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is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). That is not

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to say that the claim must be probable, but there must be “more than a sheer possibility that

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a defendant has acted unlawfully.” Id. Facts “‘merely consistent with’ a defendant’s

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liability” fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at

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557). Further, the Court need not accept as true “legal conclusions” contained in the

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complaint. Id. This review requires context-specific analysis involving the Court’s

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“judicial experience and common sense.” Id. at 678 (citation omitted). “[W]here the well-

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pleaded facts do not permit the court to infer more than the mere possibility of misconduct,

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the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’”

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Id.

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INCORPORATION BY REFERENCE

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Defendant has attached two exhibits to her motion: (1) prior written contact between

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Plaintiff and the EEO office and (2) a declaration of a CBP officer refuting many of

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Plaintiff’s allegations. (MTD Exs. 1, 2.) A district court may, but is not required, to

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incorporate documents by reference on a 12(b)(6) motion to dismiss. Davis, 691 F.3d at

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1160 (9th Cir. 2012). “Specifically, courts may take into account ‘documents whose
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contents are alleged in a complaint and whose authenticity no party questions, but which

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are not physically attached to the [plaintiff’s] pleading.’” Davis, 691 F.3d at 1160 (quoting

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Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005) (alteration original)).

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In the present case, Plaintiff, unsurprisingly, vigorously contests the veracity of and

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validity of the Court’s considering the CBP officer’s declaration.

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protestations, and that Plaintiff in his pleadings relied on his own knowledge rather than

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the contents of the declaration, the Court declines to incorporate the exhibits by reference.

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Accordingly, because the Court does not accept, or rely upon, any of the extra-pleading

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material submitted by Defendant, the motion before the Court remains a 12(b)(6) motion

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to dismiss for failure to state a claim. See Stein v. United Artists Corp., 691 F.2d 885, 889

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(9th Cir. 1982).

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Given these

ANALYSIS

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Defendant moves to dismiss the SAC on the ground that Plaintiff has failed to allege

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facts plausibly establishing that he properly exhausted administrative remedies by

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contacting an EEO counselor within the forty-five-day deadline established by 29 C.F.R.

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§ 1614.105(a)(1). Both Plaintiff’s original complaint and second amended complaint were

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dismissed on this basis; Defendant again maintains that Plaintiff has failed to cure the

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deficiencies previously identified by the Court.

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A Title VII plaintiff suing the federal government must exhaust administrative

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remedies by consulting an EEO counselor prior to filing a civil complaint. See 29 C.F.R.

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§ 1614.105(a). A plaintiff “must initiate contact with a Counselor within 45 days of the

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date of the matter alleged to be discriminatory or, in the case of personnel action, within

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45 days of the effective date of the action.” Id. at § 1614.105(a)(1). A plaintiff satisfies

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section 1614.105(a)(1) if he “initiates contact with any agency official logically connected

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with the EEO process . . . and . . . exhibits an intent to begin the EEO process.” Kraus v.

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Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1044 (9th Cir. 2009)

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(citations omitted).

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12-cv-01045 JLS (JMA)

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Defendant argues that it is clear from Plaintiff’s SAC that he failed to comply with

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the requirement to initiate contact with a Counselor within forty-five days. (MTD 6–7.)

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Even though Plaintiff has added allegations that did not appear in his last complaint—here,

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specifically that he “is informed and believes” Mr. Bustamante contacted the EEO office

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on his behalf within forty-five days—Defendant argues these are contradicted by Plaintiffs

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other allegations such that it is clear that no one contacted the EEOC within the forty-five

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day time period. With hesitation, the Court disagrees with Defendant and concludes that

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Plaintiff has plausibly alleged EEOC contact within the forty-five-day period.

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Specifically, the Defendant argues that the following allegations render Plaintiff’s
new allegations of Bustamante’s actual contact with the EEO office meaningless:
• Plaintiff states that he hired an attorney who initiated contact with the EEO
counselor “after discovering that Bustamante had not done anything in this
regard.” SAC at 4:23–25.
• “Plaintiff [sic] EEO complaint was a mere twelve (12) days beyond the 45
days (sic) period for filing an EEO complaint”. [sic] Id. at 4:26–27.
• “In fact, contact was initiated on March 17, 2011.” Id. at 5:6[.]

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(Opp’n 7 (second sic in original).) However, Defendant removes important surrounding

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context from these particular quotations in the SAC. The missing portions of the SAC that

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correspond to Defendant’s quotations are underlined below and presented in the same order

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as above.

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• [“As a result, Bustamante did not follow up his phone call to the EEO office
and obtain a counselor within the 45-day period. 21) After repeated
attempts to contact Bustamante, Plaintiff became concerned and hired the
services of an attorney who immediately initiated contact with the EEO
counselor” (SAC 4:20–23)] “after discovering that Bustamante had not
done anything in this regard.” SAC at 4:23–25.
• “Plaintiff [sic] EEO complaint was a mere twelve (12) days beyond the 45
days (sic) period for filing an EEO complaint”. [sic] Id. at 4:26–27.
• [“In the decision, Defendants erroneously states [sic] ‘Complainant did not
initiate contact with an EEO counselor until March 29, 2011—22 days
beyond the 45 day deadline.” (SAC 5:3–6.)] “In fact, contact was initiated
on March 17, 2011.” Id. at 5:6[.]

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(Compare Opp’n 7 (second sic original), with SAC ¶¶ 20–22, 24.) With context supplied,

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it becomes clear that although Plaintiff admits he did not through his attorney or by himself

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initiate contact with the EEO office by the forty-five-day deadline, he nonetheless alleges

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that “Mr. Bustamante . . . within 45 days of the complained of action called the EEO office

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to obtain an EEO counselor for the Plaintiff, explained Plaintiff’s problem regarding loss

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of his job due to discriminatory animus, and expressed to the EEO counselor a desire to

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have Plaintiff’s claim investigated pursuant to EEO Rules & Procedures.” (SAC ¶ 11.)

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Furthermore, this was not a deficiency the Court identified in its prior Order; the Court’s

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concern was instead that Plaintiff had not shown any intent on the part of Mr. Bustamante

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to begin the EEO process, (Order Granting Mot. to Dismiss 6, ECF No. 21), a concern that

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Plaintiff has now remedied, (see SAC ¶ 11).

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Because the Court concludes that Plaintiff has now sufficiently alleged timely

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contact with the EEO office through Mr. Bustamante, and because the remainder of

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Defendant’s arguments focus on the propriety of finding that Plaintiff “was entitled to the

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extension [of the forty-five-day deadline] provided by section 1614.105(a)(2) of the

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EEOC’s regulations,” (Opp’n 7), the Court need not address Defendant’s remaining

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arguments.

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CONCLUSION

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Plaintiff has adequately and accurately remedied the exact problem identified by the

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Court in its prior motions to dismiss with the additional allegations regarding what Mr.

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Bustamante specifically said to the EEO office regarding Plaintiff’s claims. (SAC ¶ 11.)

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Taking these allegations as true, as the Court must on a motion to dismiss, Defendant’s

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MTD as presented must therefore fail. Accordingly, the Court DENIES Defendant’s

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MTD.

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IT IS SO ORDERED.
Dated: January 3, 2017

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