Mathews v. Shinskenki

Filing 104

ORDER Granting 58 Defendant's Motion for Summary Judgment; Granting in Part and Denying in Part 87 Motion to Strike; Granting Plaintiff's 100 Motion for Leave to File a Sur-Reply. The Court grants Defendant's motion for sum mary judgment in its entirety. The Clerk of Court is instructed to enter judgment accordingly, terminate all pending deadlines and hearings, and close the case. Signed by Judge Michael M. Anello on 1/4/16. (All non-registered users served via U.S. Mail Service)(dlg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CARMEN MATTHEWS, Case No.: 14cv1340-MMA (BLM) Plaintiff, 12 13 14 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; v. ROBERT McDONALD, Secretary, Department of Veterans Affairs, 15 16 [Doc. No. 58] GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO STRIKE; Defendant. 17 [Doc. No. 87] GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE A SURREPLY 18 19 20 [Doc. No. 100] 21 22 Plaintiff Carmen Matthews, proceeding pro se, has filed an amended complaint 23 against Defendant Robert McDonald in his capacity as the Secretary of the United States 24 Department of Veterans Affairs, in which she alleges harassment, retaliation, and 25 wrongful termination based on gender, race, sex, and disability discrimination. See Doc. 26 No. 27. Defendant moves for summary judgment as to all of Plaintiff’s claims. See Doc. 27 No. 58. Plaintiff filed a response in opposition to the motion, see Doc. Nos. 77, 83, to 28 1 14cv1340-MMA (BLM) 1 which Defendant replied.1 See Doc. No. 86. For the reasons set forth below, the Court 2 GRANTS Defendant’s motion for summary judgment. FACTUAL BACKGROUND2 3 4 Plaintiff is an African-American female who claims to be disabled due to anxiety 5 and panic attacks. She is a former volunteer and employee with the United States 6 Department of Veterans Affairs San Diego Healthcare System (hereinafter referred to as 7 “the VA”). 8 Plaintiff started volunteering at the VA on July 5, 2010 in the Patient Advocacy 9 section of the hospital. Sometime in the fall of 2010, Plaintiff transferred to the Member 10 Services division as a volunteer after being interviewed by Robert Earnest, the supervisor 11 of the section. At the end of October or beginning of November 2010, Plaintiff applied 12 and interviewed for a paid position in a different department of the hospital. According 13 to Plaintiff, Earnest told her that she would never have a paid position at the VA. 14 Plaintiff interpreted Earnest’s comment to mean that she would not be hired for a paid 15 position because she refused to have sex with him. Plaintiff did not get the paid position 16 for which she had interviewed. Plaintiff believes that Earnest influenced this hiring 17 decision. 18 In November 2010, Plaintiff met with Elizabeth McDonald, Director of Health 19 Administration and Earnest’s supervisor, and Sheri Lacro, a Human Resources Specialist, 20 to report allegations of sexual harassment against Plaintiff by Robert Earnest. 21                                                                   22 1 23 24 25 26 27 28 Plaintiff moves for leave to file a sur-reply, which Defendant opposes. See Doc. Nos. 100, 101, 103. Because Plaintiff is proceeding pro se, the Court GRANTS Plaintiff’s motion and considers her surreply and attached supporting exhibits. Plaintiff appears to allege a new cause of action in her sur-reply brought pursuant to the Whistleblower Act of 1989, 5 U.S.C. § 2302. See Doc. No. 100 at 8. Since a defendant must have “fair notice” of a plaintiff’s claims and grounds for relief, Plaintiff cannot raise new causes of action or grounds for relief in opposition to Defendant’s motion for summary judgment. See Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006). 2 This section provides a summary of the material facts of this case; it is not an exhaustive recitation of every factual allegation set forth by Plaintiff. The material facts are taken from Defendant’s separate statement of undisputed facts and Plaintiff’s response thereto, together with pertinent exhibits and relevant deposition testimony. Where a material fact is in dispute, it will be so noted. 2 14cv1340-MMA (BLM) 1 In December 2010, Plaintiff was interviewed via telephone and hired by Allison 2 Gill, Manager of the VA Call Center, for a GS-5 level paid position as a Medical Support 3 Assistant (“MSA”). According to Plaintiff, her troubles in the Call Center began on her 4 first day after employee orientation. During a Call Center meeting led by Allison Gill 5 and Sheri Lacro, Plaintiff alleges that Gill and Lacro shared a “look” that Plaintiff 6 interpreted as being directed at her and reflective of their displeasure with her complaint 7 against Earnest. Also at that meeting, Plaintiff states that she was called out by Gill in 8 front of the other participants for wearing blue jeans. Gill informed Plaintiff that she 9 would have to wear “less casual slacks.” Plaintiff claims that there was a difference 10 between how men and women were permitted to dress for the job. 11 In January 2011, Plaintiff applied and interviewed for a GS-7 position as a 12 Research Compliance Auditor. One week later, the VA’s Human Resources department 13 advised Plaintiff that she could not take the position because she had already accepted the 14 MSA position in the Call Center. During this same time period, Gill solicited articles for 15 a new newsletter. Plaintiff submitted an article. Gill did not acknowledge receipt. The 16 newsletter never came to fruition. Also in January 2011, Plaintiff complained about the 17 noise level. Her supervisors, including Brenda Moore, the Call Center Team Lead and an 18 African-American woman, advised her that nothing could be done about the noise level. 19 On April 21, 2011, Gill emailed Plaintiff her mid-term performance review. Gill 20 informed Plaintiff that she was performing her job successfully, and that official 21 evaluations would take place in September. During a team meeting that same date, 22 Plaintiff once again complained to Gill about the noise level in the Call Center and 23 informed Gill that the noise affected Plaintiff’s breathing. Gill advised Plaintiff that there 24 was nothing she could do about the noise level. 25 In May 2011, Plaintiff applied and interviewed for one of two newly created Team 26 Lead positions in the Call Center. Gill conducted the interview together with two other 27 panel members. According to Plaintiff, Gill made sexist statements during the interview, 28 including displaying favoritism towards Plaintiff’s fellow Call Center employee, Adam 3 14cv1340-MMA (BLM) 1 Doyle, with whom Plaintiff suspected Gill of having a sexual relationship. Gill did not 2 choose Plaintiff for the Team Leader positions. Rather, on or about May 3, 2011, Gill 3 promoted two Call Center employees, April Adams and Aaron McDevitt. April Adams 4 is an African-American woman. Aaron McDevitt had been employed approximately one 5 month longer than Plaintiff. 6 On May 5, 2011, Plaintiff sought advice from the Patient Advocate Director 7 regarding purported problems and discrimination she had experienced in the Call Center. 8 The Patient Advocate Director advised Plaintiff to contact the Union. In the meantime, 9 the next day, in regards to positive feedback Plaintiff had received from veterans dialing 10 in to the Call Center, Adams sent Plaintiff an email stating “How much cash are you 11 paying the vets so I can jump on the band wagon lol.” 12 13 14 On May 10, 2011, Plaintiff met with a Union representative regarding her treatment in the Call Center. On May 12, 2011, Plaintiff met with Marlene Carvajal, the Equal Employment 15 Opportunity (“EEO”) Manager for the VA, and filed a written Report of Contact 16 regarding Gill’s alleged fraud on the VA, poor performance as a supervisor, and 17 discrimination and harassment against Plaintiff based on gender. Plaintiff concedes that 18 the internal complaint did not reference any instances of alleged racial discrimination or 19 reference the sexual harassment by Robert Earnest. The next day, Elizabeth McDonald 20 temporarily detailed Gill out of the Call Center pending the results of an Administrative 21 Investigation Board (“AIB”) inquiry into Plaintiff’s claims regarding Gill’s performance. 22 Brenda Moore was appointed as the acting supervisor of the Call Center during Gill’s 23 absence. On June 8, 2011, Plaintiff testified in front of the AIB regarding her accusations 24 against Gill. Moore, McDevitt, and Adams also testified. The following day, Plaintiff 25 approached Moore regarding the noise level in the Call Center and its impact on 26 Plaintiff’s breathing. Moore did nothing. 27 28 On June 20, 2011, Moore received a complaint from a patient advocate regarding a phone call the advocate’s patient had with Plaintiff. Plaintiff interrupted the patient 4 14cv1340-MMA (BLM) 1 multiple times during the call and responded to the patient’s question in an angry manner. 2 That same day, during another call with a patient, Plaintiff interrupted the patient while 3 the patient was speaking. 4 On June 22, 2011, Plaintiff approached Adams regarding the noise level in the Call 5 Center. Adams told three employees in nearby cubicles that Plaintiff had complained 6 about the noise level of their voices. The next day, Plaintiff asked Adams for clarity 7 regarding a new Call Center rule and Adams responded using “Ebonics.”3 Adams once 8 again spoke to Plaintiff using “Ebonics” on July 12, 2011. Plaintiff felt that this 9 constituted racial discrimination and harassment. 10 On July 20, 2011, Plaintiff sought treatment at work for stress, heart palpitations, 11 tingling in her upper arms, and shortness of breath. Plaintiff indicated that her symptoms 12 were the result of the noise level in the Call Center. 13 Gill returned as supervisor of the Call Center on August 2, 2011. Several days 14 later, at a team meeting, Plaintiff felt hostility between herself and Gill. The next day, 15 McDevitt submitted a report to Gill of insubordination by Plaintiff based on Plaintiff’s 16 refusal to read McDevitt’s emails. Also on August 3, 2011, Plaintiff sought treatment at 17 work for stress, heart palpitations, tingling in her upper arms, and difficulty breathing. 18 Plaintiff indicated that her symptoms were the result of “perceived threats” from her 19 supervisor of potential punitive action during the August 2 team meeting. 20 21 On August 16, 2011, Plaintiff contacted an EEO Counselor and filed a Complaint of Employment Discrimination with the Office of Resolution Management. 22 On August 20, 2011, Plaintiff told a veteran on the phone that she was not going to 23 continue to speak to him because the phone call had already lasted for nine minutes and 24 26 seconds. 25 On August 24, 2011, McDonald recommended to Sheri Lacro that Plaintiff’s 26                                                                   27 3 28 “Ebonics’ is also known as ‘African American Vernacular English.’” Washington v. McDonald, 2009 U.S. Dist. LEXIS 59607, at *38 (E.D. Cal. July 10, 2009) (citing Webster’s II New College Dict. (2001) p. 356, col. 1.) 5 14cv1340-MMA (BLM) 1 employment be terminated. McDonald’s recommendation was based on input from Gill 2 and Moore. In an email to Lacro, McDonald indicated that she was recommending 3 termination based on Plaintiff’s “loafing,” “willful idleness,” and wasting time, as well as 4 poor customer service. McDonald attached a call log indicating that from July 1, 2011 to 5 August l8, 2011, Plaintiff was logged into the system to take calls for less than 6 hours 6 per day for 76% of the days. McDonald noted that on June 30, 2011, Brenda Moore had 7 addressed the issue of being logged out for too long with Plaintiff, and on August 5, 8 2011, Gill advised everyone in the Call Center during a team meeting that they need to be 9 logged in for at least 6.5 hours per day. McDonald stated that after this meeting, Plaintiff 10 continued to be logged in for less than 6 hours on 5 out of 9 days. McDonald also noted 11 in the email that Plaintiff refused to read emails from the Team Leads, made personal 12 calls and surfed the internet on facility time, and took unauthorized breaks. McDonald 13 also detailed the allegations of Plaintiff’s poor customer service. 14 On September 12, 2011, Plaintiff faxed a written request for a reasonable 15 accommodation for her anxiety and panic attacks to Carvajal, who acted as Chair of the 16 VA’s Reasonable Accommodation Committee. The next day, Plaintiff authorized the 17 release of her medical records. Carvajal advised Plaintiff that she would need a doctor’s 18 note to support her request. Plaintiff provided two notes from her primary care physician. 19 Carvajal received the second note on September 23, 2011. 20 On September 26, 2011, Linette Baker, the Acting Chief of Human Resources 21 Management Service, issued a letter of termination to Plaintiff. The stated reasons for the 22 termination included poor customer service, wasting time, and failure to follow 23 instructions, including failure to read emails when instructed to do so.4 24 25 26 27 28                                                                   4 Plaintiff alleges that she did not receive the required written notice of termination pursuant to 5 C.F.R. 315.804. See Doc. No. 100 at 7. However, Baker’s September 26, 2011 letter to Matthews constitutes the written notice required under the applicable federal regulation, and cites that regulation accordingly. See Def. Ex. I. The regulation requires a federal agency when terminating an individual’s employment to notify him or her “in writing as to why he [or she] is being separated and the effective date of the action. The information in the notice as to why the employee is being terminated shall, as a minimum, 6 14cv1340-MMA (BLM) 1 Plaintiff filed this lawsuit on June 2, 2014, alleging sexual and racial harassment; 2 discrimination based on gender, race, and disability; retaliation; and failure to 3 accommodate her disability. 5 4 MOTION FOR SUMMARY JUDGMENT 5 Defendant moves for summary judgment as to all of Plaintiff’s claims. Defendant 6 argues that certain claims should be dismissed based on Plaintiff’s failure to comply with 7 the pre-filing administrative exhaustion requirement. With respect to Plaintiff’s 8 exhausted claims, Defendant argues that Plaintiff fails to establish a prima facie case of 9 discrimination and her remaining claims fail as a matter of law. In response, Plaintiff has 10 submitted over 1400 pages of legal briefs and exhibits in support of her claims.6 11 1. 12 Legal Standard “A party may move for summary judgment, identifying each claim or defense – or 13 the part of each claim or defense – on which summary judgment is sought. The court 14 shall grant summary judgment if the movant shows that there is no genuine dispute as to 15                                                                   16 17 18 19 20 21 consist of the agency’s conclusions as to the inadequacies of his performance or conduct.” 5 C.F.R. 315.804. Baker’s letter complies with this regulation. 5 In her amended complaint, Plaintiff sets forth thirty individual “counts” of discrimination, retaliation, and harassment based on her gender, race, and disability. See Doc. No. 27. The Court notes that while Federal Rule of Civil Procedure 10(b) provides that “[e]ach claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count . . .,” this provision is addressed to separate factual claims rather than to separate legal grounds for relief. Here, Plaintiff’s thirty separate “counts” are not each independent legal causes of action. Rather, Plaintiff’s numerous factual allegations set forth grounds for a variety of causes of action under, inter alia, Title VII and the Rehabilitation Act. 22 The Court has reviewed and carefully considered the entirety of Plaintiff’s submissions. However, regardless of Plaintiff’s pro se status, the Court is not obligated to “‘scour the record in search of a genuine issue of triable fact.’” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (citation omitted). To the extent Plaintiff’s legal briefs fail to cite to specific exhibits or other materials in the record, the Court is not required to search the entire record for evidence establishing a genuine issue of material fact. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir. 2001); Keenan, 91 F.3d at 1278-79 (noting that opposing papers, due to size and poor citation, “obfuscate[d] rather than promote[d] an understanding of the facts,” and declining to scour papers or the rest of the record to determine if genuine issue of material fact existed). Furthermore, “[a] party may not prevail in opposing a motion for summary judgment by simply overwhelming the district court with a miscellany of unorganized documentation.” Zoslaw v. MCA Distributing Corp., 693 F.2d 870, 883 (9th Cir. 1982). 6 23 24 25 26 27 28 7 14cv1340-MMA (BLM) 1 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 2 P. 56(a). The party seeking summary judgment bears the initial burden of establishing 3 the basis of its motion and of identifying the portions of the declarations, pleadings, and 4 discovery that demonstrate absence of a genuine issue of material fact. Celotex Corp. v. 5 Catrett, 477 U.S. 317, 323 (1986). A fact is material if it could affect the outcome of the 6 suit under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 7 (1986). A dispute about a material fact is genuine if there is sufficient evidence for a 8 reasonable jury to return a verdict for the non-moving party. Id. at 248. 9 The party opposing summary judgment cannot “‘rest upon the mere allegations or 10 denials of [its] pleading’ but must instead produce evidence that ‘sets forth specific facts 11 showing that there is a genuine issue for trial.’” Estate of Tucker v. Interscope Records, 12 515 F.3d 1019, 1030 (9th Cir.), cert. denied, 555 U.S. 827 (2008) (quoting Fed. R. Civ. P. 13 56(e)). However, as the Ninth Circuit recently reminded district courts, “it should not 14 take much for plaintiff in a discrimination case to overcome a summary judgment 15 motion.” Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 499 (9th Cir. 2015) (citations 16 and internal quotation omitted); see also Schechner v. KPIX-TV, 686 F.3d 1018, 1022 17 (9th Cir. 2012) (“As a general matter, the plaintiff in an employment discrimination 18 action need produce very little evidence in order to overcome an employer’s motion for 19 summary judgment.”). 20 In cases where a party is self-represented, courts apply the general summary 21 judgment standard, but construe the pro se litigant’s pleadings liberally in his or her 22 favor. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court 23 has instructed federal courts to liberally construe the ‘inartful pleading’ of pro se 24 litigants.”) (citations omitted). 25 2. 26 Defendant’s Motion to Strike As an initial matter, Defendant moves to strike certain exhibits submitted by 27 Plaintiff in support of her response to Defendant’s motion. See Doc. No. 87. Plaintiff 28 opposes the motion to strike. See Doc. No. 96. 8 14cv1340-MMA (BLM) 1 First, Defendant moves to strike the exhibits Plaintiff filed on October 22, 2015, 2 Doc. No. 77, pp. 273 to end, on the grounds that Plaintiff filed a second set of exhibits on 3 October 28, 2015, Doc. Nos. 83 and 83-1. Based on Plaintiff’s pro se status, the Court 4 DENIES Defendant’s motion to strike this evidence from the record. 5 Second, Defendant requests that the Court disregard the handwritten comments on 6 Plaintiff’s Exhibits 11, 18, 26, 28, 31, 42, 43, 44, 62, 71, 73, 75, 108, 117, 132, 134 and 7 138.7 Defendant argues that Plaintiff has not authenticated the handwritten comments, 8 nor provided a proper foundation for their admission into evidence. In response to 9 Defendant’s motion to strike, Plaintiff has submitted documentation which she argues 10 authenticates the handwritten comments. It appears that in certain instances the 11 handwritten interlineation was prepared by Plaintiff for submission as supplemental 12 and/or rebuttal argument to the EEO Investigator who handled her complaint. In any 13 event, the notes contain commentary on the substance of the exhibits’ contents. 14 Plaintiff’s handwritten notes, even if properly authenticated as her own, constitute 15 argument and are not admissible as evidence. As such, the Court GRANTS Defendant’s 16 motion on this ground and has disregarded the handwritten comments on Plaintiff’s 17 exhibits. 18 Finally, Defendant moves to strike Plaintiff’s Exhibit 17 in its entirety and the first 19 page of Plaintiff’s Exhibit 134 based on lack of foundation. These exhibits purport to be 20 excerpts from deposition transcripts. Defendant notes that the cover pages, witness 21 signature pages, and transcriber’s signature pages are missing from both exhibits. A 22 party seeking to introduce a deposition transcript excerpt on summary judgment must 23 attach the court reporter’s certification that the deposition is a true and correct copy of the 24 deponent’s testimony, as the court reporter who transcribed the testimony has the 25 requisite personal knowledge of the transcript’s accuracy. Orr v. Bank of Amer., 285 26 F.3d 764, 774 (9th Cir. 2002) (citations omitted). Without this certificate, a deposition 27                                                                   28 7 The Court notes that handwritten interlineations appear on many other of Plaintiff’s submitted exhibits. 9 14cv1340-MMA (BLM) 1 transcript is inadmissible for purposes of summary judgment and will not be considered. 2 See Fed. R. Civ. P. 56(c)(4); United States v. Dibble, 429 F.2d 598, 602 (9th Cir. 1970) 3 (writings are not admissible under motion for summary judgment without proper 4 foundation). In response to Defendant’s motion to strike, Plaintiff has provided certain 5 cover pages and transcriber’s signature pages. To the extent Plaintiff’s submission 6 remedies the deficiencies identified by Defendant in his motion to strike, the Court finds 7 the motion moot. Any deposition transcript excerpts offered by Plaintiff that are not 8 properly authenticated are inadmissible for purposes of summary judgment and will not 9 be considered. 10 11 3. Plaintiff’s Title VII Claims Plaintiff claims she was discriminated against and harassed on the basis of race, 12 sex, and gender. Title VII prohibits consideration of “race, color, religion, sex, or 13 national origin in employment practices,” thereby establishing protected classes. 42 14 U.S.C. § 2000e-2(m). Plaintiff is an African-American woman, thus she belongs to two 15 protected classes based on her race and gender. Title VII is the exclusive remedy for 16 claims of employment discrimination by federal employees. See Brown v. General Servs. 17 Admin., 425 U.S. 820, 829-35 (1976); Taylor v. Geithner, 703 F.3d 328, 333 (9th Cir. 18 2013). 19 a) 20 Defendant argues that to the extent Plaintiff’s Title VII claims arise out of events Administrative Exhaustion 21 occurring prior to July 1, 2011, 45 days prior to Plaintiff’s first contact with an EEO 22 counselor on August 16, 2011, the claims are subject to dismissal for failure to comply 23 with the pre-filing administrative exhaustion requirement. 24 Before bringing a Title VII claim in federal court, a federal employee must first 25 exhaust his or her administrative remedies. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 26 1099 (9th Cir. 2002). The employee must initiate contact with an EEO counselor within 27 forty-five days of the date of the alleged discrimination or adverse action. See 29 C.F.R. 28 § 1614.105(a)(1) (“An aggrieved person must initiate contact with a Counselor within 45 10 14cv1340-MMA (BLM) 1 days of the date of the matter alleged to be discriminatory or, in the case of personnel 2 action, within 45 days of the effective date of the action.”); Sommatino v. United States, 3 255 F.3d 704, 707-708 (9th Cir. 2001). For purposes of Title VII, a claim “accrues upon 4 awareness of the actual injury, i.e., the adverse employment action, and not when the 5 plaintiff suspects a legal wrong.” Lukovsky v. City & County of San Francisco, 535 F.3d 6 1044, 1049 (9th Cir. 2008). 7 Defendant has submitted uncontroverted evidence that Plaintiff’s first contact with 8 an EEO counselor occurred on August 16, 2011. See Def. Ex. J. However, it is also 9 undisputed that Plaintiff met with Marlene Carvajal, the EEO Manager for the VA, on 10 May 12, 2011. See Def. Ex. F. The Ninth Circuit has interpreted the initiation of contact 11 provision to include reporting to not only individuals with the specific job title of 12 Counselor, but also “contact with agency officials with EEO counseling responsibilities 13 or a connection to the counseling process.” Kraus v. Presidio Trust Facilities Div., 572 14 F.3d 1039, 1044 (9th Cir. 2009). Plaintiff’s meeting with Carvajal and submission of a 15 written Report of Contact as an internal complaint qualify under this standard as the type 16 of contact required under the applicable regulation. Id. at 1045 (noting that “it makes 17 good sense to interpret ‘contact with a Counselor’ pragmatically, to include contact with 18 agency officials with EEO counseling responsibilities or a connection to the counseling 19 process”). 20 To the extent Plaintiff’s Title VII claims arise out of events occurring prior to 21 March 28, 2011, 45 days prior to her first contact with Marlene Carvajal, the claims are 22 unexhausted. Lyons v. England, 307 F.3d 1092, 1105 (9th Cir. 2002) (failure to comply 23 with the 45 day requirement is “fatal to a federal employee’s discrimination claim”). 24 Furthermore, Plaintiff’s May 12, 2011 written Report of Contact submitted to Carvajal – 25 despite being quite detailed – does not include a complaint of racial or sexual 26 discrimination or harassment. Thus, to the extent Plaintiff’s racial and sexual 27 discrimination and harassment claims are based on events occurring prior to July 1, 2011, 28 45 days prior to her first contact with Carvajal regarding such allegations, the claims are 11 14cv1340-MMA (BLM) 1 2 unexhausted. In her sur-reply, Plaintiff argues that she was unaware of the requirement that she 3 initiate contact with an EEO counselor within 45 days of an alleged discriminatory event 4 or adverse employment action. “The exhaustion requirement is akin to a statute of 5 limitations and is subject to waiver, equitable estoppel, and equitable tolling.” Leong v. 6 Potter, 347 F.3d 1117, 1122-1123 (9th Cir. 2003) (citing Zipes v. Trans World Airlines, 7 Inc., 455 U.S. 385, 393 (1982); Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir. 8 1985)). The Court construes Plaintiff’s argument as a request for equitable tolling, and 9 finds it to be without merit. Plaintiff has submitted evidence in opposition to Defendant’s 10 motion for summary judgment which demonstrates that she knew of the 45 day 11 requirement at least as early as May 12, 2011, when she submitted her internal complaint 12 to Carvajal. See Doc. No. 77 at 289. Plaintiff’s signature appears at the bottom of the 13 internal complaint form, immediately below the following admonition: 14 15 If you feel that you have been discriminated against & wish to file an EEO complaint, you must contact an ORM Counselor within 45-calendar days of the alleged incident in order to preserve your EEO rights. 16 17 Id. Equitable tolling is not appropriate in this case, as Plaintiff had actual notice of the 45 18 day filing period. Leorna v. United States Dep’t of State, 105 F.3d 548, 551 (9th Cir. 19 1997). 20 b) 21 Plaintiff alleges discrimination and harassment on the basis of race and gender. Exhausted Harassment and Discrimination Claims 22 Defendant argues that Plaintiff cannot establish a prima facie case of discrimination. 23 Defendant further asserts that the alleged discriminatory acts do not give rise to an 24 actionable harassment claim. 25 To establish a prima facie case for her hostile work environment claim under Title 26 VII, Plaintiff must raise a genuine dispute of fact as to whether (1) she was “subjected to 27 verbal or physical conduct” because of her race or gender; (2) “the conduct was 28 unwelcome”; and (3) “the conduct was sufficiently severe or pervasive to alter the 12 14cv1340-MMA (BLM) 1 conditions of [Plaintiff’s] employment and create an abusive work environment.” Manatt 2 v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003). “[S]imple teasing, offhand 3 comments, and isolated incidents (unless extremely serious) will not amount to 4 discriminatory changes in the terms and conditions of employment.” Faragher v. City of 5 Boca Raton, 524 U.S. 775, 788 (1998) (citations and internal quotation marks omitted). 6 Discrimination in the form of disparate treatment occurs when, predicated upon a 7 particular trait, an employee receives treatment less favorable than other employees. 8 Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012). In pertinent part, Title 9 VII’s disparate treatment provision provides: “[A]n unlawful employment practice is 10 established when the complaining party demonstrates that race, color, religion, sex, or 11 national origin was a motivating factor for any employment practice, even though other 12 factors also motivated the practice.” 42 U.S.C. § 2000e-2(m). A plaintiff establishes a 13 prima facie claim for disparate treatment by showing that: “(1) they belonged to a 14 protected class; (2) they were qualified for their jobs; (3) they were subjected to an 15 adverse employment action; and (4) similarly situated employees not in their protected 16 class received more favorable treatment.” Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 17 2006); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “If the 18 plaintiff establishes a prima facie case, the burden of production shifts to the employer to 19 articulate a legitimate, nondiscriminatory reason for the employment decision. Although 20 the burden of production shifts to the defendant at this point, the burden of proof remains 21 with the plaintiff at all times. If the employer offers a nondiscriminatory reason, the 22 burden returns to the plaintiff to show that the articulated reason is a pretext for 23 discrimination.” Leong, 347 F.3d at 1124 (internal citations omitted). 24 Plaintiff’s only exhausted allegation of racial discrimination or harassment 25 involves April Adams, an African-American, speaking to Plaintiff using “Ebonics” on 26 27 28 13 14cv1340-MMA (BLM) 1 July 12, 2011.8 This event constitutes neither discrimination nor harassment. Plaintiff 2 did not suffer an adverse employment action as a result of this exchange, and a single 3 incident can only support a hostile work environment claim when that incident is 4 “extremely severe.” Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000). 5 Adams’ exchange with Plaintiff simply does not suffice to establish racial harassment. 6 See, e.g., Manatt, 339 F.3d at 798 (holding that racial jokes, ridicule of plaintiff’s accent, 7 and act of pulling eyes back to imitate or mock the appearance of Asians were 8 insufficient to create a hostile work environment); Vasquez v. County of Los Angeles, 349 9 F.3d 634, 643 (9th Cir. 2003) (finding no hostile environment discrimination where the 10 employee was told that he had “a typical Hispanic macho attitude,” that he should work 11 in the field because “Hispanics do good in the field.” and where he was yelled at in front 12 of others); see also Jordan v. Clark, 847 F.2d 1368, 1374-75 (9th Cir. 1988) (finding no 13 hostile work environment where “off-color” jokes were told in workplace). 14 Plaintiff’s only exhausted allegation of gender discrimination or harassment 15 involves the purportedly sexist statements made by Allison Gill during Plaintiff’s May 16 2011 interview for a Team Lead position in the Call Center, including Gill’s “endless 17 praise” of Adam Doyle, and Gill’s subsequent failure to select Plaintiff for one of the two 18 available positions.9 19 20 21 22 23 24 25 26 27 28                                                                   8 As discussed supra, Plaintiff did not administratively exhaust her claims of racial discrimination and harassment as to Allison Gill. Even if those claims were properly before the Court, Plaintiff’s allegations are not borne out by the evidence. For example, Plaintiff submits letters and deposition testimony from Donna Camp and Anita Mitchell, both of whom Gill supervised in the Call Center. See Doc. No. 83-1 at 37-41; Doc. No. 100 at 106-262. However, these individuals’ statements and testimony do not establish that Gill racially discriminated against or harassed Plaintiff. Mitchell refused to testify during her deposition that Gill was racist, while Camp testified that Gill did not like her because Camp did not “suck up” to Gill. See Doc. No. 100 at 158, 233. 9 Plaintiff asserts that Gill referred to Plaintiff as a “man” on two occasions, see Doc. No. 58-3 at 43, including once in May 2011, see Doc. No. 77 at 244. However, Plaintiff makes no such allegation in her amended complaint, nor did she include this information in either her May 12, 2011 internal EEO complaint or her November 16, 2011 complaint of employment discrimination. 14 14cv1340-MMA (BLM) 1 Title VII is not a “general civility code” and does not render actionable “‘the 2 ordinary tribulations of the workplace, such as the sporadic use of abusive language, 3 gender-related jokes, and occasional teasing’ . . . conduct must be extreme to amount to a 4 change in the terms and conditions of employment.” Faragher, 524 U.S. at 788 (internal 5 citations omitted). Gill’s statements during Plaintiff’s interview for a Team Lead 6 position do not amount to gender harassment under the standards set forth by the 7 Supreme Court. To the extent Gill made laudatory statements regarding Adam Doyle 8 during Plaintiff’s interview, or otherwise behaved inappropriately towards Doyle in front 9 of Plaintiff during the time period in question, statements or conduct that create “a 10 sexually charged environment” are insufficient to support a hostile work environment 11 claim. Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992) 12 (“A co-worker’s romantic involvement with a supervisor does not by itself create a 13 hostile work environment.). 14 Nor does this incident establish gender discrimination against Plaintiff. Even 15 assuming Plaintiff has established the first three requirements of a discrimination claim 16 based on Gill’s disparate treatment, she fails to establish the fourth. With respect to 17 Gill’s decision not to select Plaintiff for a Team Lead position, the two individuals 18 selected were April Adams, an African-American female and therefore a member of 19 Plaintiff’s protected classes, and Aaron McDevitt, a Caucasian male who had been 20 working at the VA for a longer period of time than Plaintiff.10 Furthermore, Gill’s 21 statements during the interview “endlessly praising another applicant (Adam Doyle)” do 22 not establish gender discrimination against Plaintiff, nor do they establish disparate 23 treatment, as Doyle was not hired for either of the Team Lead positions. Ackel v. Nat’l 24 Communs., Inc., 339 F.3d 376, 382 (5th Cir. 2003) (“[w]hen an employer discriminates in 25 favor of a paramour, such an action is not sex-based discrimination, as the favoritism, 26 27                                                                   10 28 Plaintiff argues that McDevitt had “less experience,” but provides no evidence to this effect and concedes that McDevitt had been working at the VA approximately one month longer than she. 15 14cv1340-MMA (BLM) 1 2 while unfair, disadvantages both sexes alike for reasons other than gender.”). With respect to the ultimate termination of Plaintiff’s employment, Plaintiff fails to 3 produce evidence that any other VA employee, facing similar allegations of poor 4 performance and misconduct, not in her protected class, received more favorable 5 treatment than she. Even if Plaintiff could establish a prima facie case of gender 6 discrimination, Defendant has offered sufficient evidence of a legitimate, non- 7 discriminatory reason for the decision to terminate Plaintiff’s employment, and Plaintiff 8 does not raise a genuine issue as to pretext. In cases based on circumstantial evidence of 9 discrimination, such as this one, a plaintiff’s evidence of pretext “must be specific and 10 substantial to defeat the employer's motion for summary judgment.” EEOC v. Boeing 11 Co., 577 F.3d 1044, 1049 (9th Cir. 2009). Plaintiff produces no actual evidence, 12 circumstantial or otherwise, that she was fired based on her gender. She offers only 13 speculation. “[A] plaintiff’s belief that a defendant acted from unlawful motive, without 14 evidence supporting that belief, is no more than speculation or unfounded accusation 15 about whether the defendant really did act from an unlawful motive.” Carmen v. San 16 Francisco Unified School District, 237 F.3d 1026, 1028 (9th Cir. 2001). 17 18 Accordingly, the Court GRANTS Defendant’s motion for summary judgment as to Plaintiff’s race- and gender-based discrimination and harassment claims. 19 c) 20 Plaintiff alleges that she was fired in retaliation for engaging in protected activity, 21 to wit, submitting an internal EEO complaint on May 12, 2011; continuing to follow up 22 on her allegations of discrimination while still employed at the VA in the Call Center; 23 and contacting an EEO counselor on August 16, 2011. Defendant argues that Plaintiff’s 24 retaliation claim fails because her May 12, 2011 complaint was not a protected activity 25 and she cannot establish that her supervisors had knowledge of her August 16, 2011 26 contact with an EEO counselor. 27 28 Retaliation Claim “Title VII’s antiretaliation provision forbids employer actions that ‘discriminate against’ an employee (or job applicant) because he has ‘opposed’ a practice that Title VII 16 14cv1340-MMA (BLM) 1 forbids or has ‘made a charge, testified, assisted, or participated in’ a Title VII 2 ‘investigation, proceeding, or hearing.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 3 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3). In this case, Plaintiff has not proffered 4 admissible “direct evidence” of retaliation, i.e., “evidence which, if believed, proves the 5 fact” of retaliatory motive “without inference or presumption.” Vasquez v. County of Los 6 Angeles, 349 F.3d 634, 640 (9th Cir. 2004). Accordingly, Plaintiff’s retaliation claim is 7 governed by the burden-shifting framework set forth in McDonnell Douglas Corp. v. 8 Green, 411 U.S. 792 (1973). To support a prima facie claim of retaliation, Plaintiff must 9 show “that (1) [s]he engaged in a protected activity; (2) [her] employer subjected [her] to 10 an adverse employment action; and (3) a causal link exists between the protected activity 11 and the adverse action.” Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). 12 Here, Plaintiff has sufficiently demonstrated that she engaged in a protected 13 activity by filing an internal complaint against Gill on May 12, 2011.11 Villiarimo v. 14 Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002) (citing Kotcher v. Rosa and 15 Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65 (2d Cir. 1992) (finding internal complaint 16 to company management was protected under Title VII, noting that “Congress sought to 17 protect a wide range of activity in addition to the filing of a formal complaint”) (internal 18 quotation marks omitted)); see also Trent v. Valley Elec. Ass’n Inc., 41 F.3d 524, 526 19 (9th Cir. 1994) (“We have held that when an employee protests the actions of a 20 supervisor such opposition is a ‘protected activity.’”). Plaintiff has produced evidence 21 sufficient to create a question of fact as to whether her supervisors were aware that she 22 was continuing to pursue her complaint of discrimination through September 2011. See 23 Doc. No. 83-1 at 285. 24 There is also no dispute that Plaintiff suffered an adverse employment action after 25 filing her May 12, 2011 internal complaint against Gill – her employment was terminated 26                                                                   27 11 28 Plaintiff’s August 16, 2011 contact with an EEO counselor also constitutes protected activity under Title VII, however, there is no evidence in the record to suggest that McDonald or Gill was aware of Plaintiff’s contact. 17 14cv1340-MMA (BLM) 1 on September 26, 2011. However, as the Ninth Circuit has held, a months-long “lapse 2 between protected activity and an adverse employment action is simply too long, by 3 itself, to give rise to an inference of causation.” Villiarimo, 281 F.3d at 1065 (citing 4 Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 398-99 (7th Cir. 1999) (four months 5 too long); Adusumilli v. City of Chicago, 164 F.3d 353, 363 (7th Cir. 1998) (eight 6 months), cert. denied, 528 U.S. 988 (1999); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 7 499, 511 (7th Cir. 1998) (five months); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 8 1395 (10th Cir. 1997) (four months)). Here, Plaintiff’s initial engagement in a protected 9 activity occurred in May 2011. Her employment was not terminated until the end of 10 September 2011, more than four months later. Even if this period of time was sufficient 11 to infer causation, “timing alone,” when “accompanied by evidence” of a plaintiff’s poor 12 work performance or behavior problems, and “coupled with a complete lack of evidence 13 of retaliatory intent, is neither specific nor substantial circumstantial evidence.” 14 Davenport v. Bd. of Trs. of the State Ctr. Cmty. College Dist., 654 F. Supp. 2d 1073, 15 1102 (E.D. Cal. 2009). 16 As direct evidence of retaliation, Plaintiff proffers her own testimony regarding 17 statements made by Elizabeth McDonald in November 2011 subsequent to the 18 termination of Plaintiff’s employment. Plaintiff testified during her deposition that 19 McDonald told her “[a]nybody that files any kind of EEO complaint, as you did, is a 20 problem employee” “to be gotten rid of.” See, e.g., Doc. No. 58-3 at 32. According to 21 Plaintiff, McDonald also told her “[i]f you promise to not sue us, we will agree to change 22 your termination status to your having resigned.” See Doc. No. 77 at 60. Importantly, 23 Plaintiff asserts that McDonald made these statements during a post-termination 24 mediation meeting. As such, the statements are inadmissible to prove Defendant’s 25 liability for retaliation. Federal Rule of Evidence 408 prohibits any party from offering, 26 for certain purposes, evidence of offers to settle or “conduct or statements made in 27 compromise negotiations regarding the claim.” Fed. R. Evid. 408(a). Here, Rule 408 28 prohibits Plaintiff from introducing McDonald’s statements to defeat summary judgment. 18 14cv1340-MMA (BLM) 1 Coleman v. Quaker Oats Co., 232 F.3d 1271, 1291 (9th Cir. 2000). 2 Even assuming Plaintiff has established a prima facie case of retaliation, Defendant 3 provides substantial evidence of Plaintiff’s poor customer service and conduct issues, 4 while Plaintiff fails to demonstrate pretext. The evidence demonstrates that Plaintiff 5 complained about Gill’s misconduct and gender discrimination, and Plaintiff was not 6 retaliated against. Rather, Gill was immediately removed from her supervisory position 7 in the Call Center while AIB conducted the requisite investigation into Gill’s conduct. 8 Plaintiff continued in her position as an MSA in the Call Center under the supervision of 9 Brenda Moore, where she remained for almost two more months after Gill’s 10 reinstatement. 11 Plaintiff submits satisfactory performance reviews with respect to individual 12 telephone calls that she received during the period of time in question to establish that the 13 VA’s stated reasons for terminating her employment were pretextual. However, this 14 evidence does not demonstrate retaliatory intent on the part of her supervisors at the VA. 15 If anything, the satisfactory performance reviews indicate that Gill continued to review 16 Plaintiff on the proper basis of the work she actually performed despite any knowledge of 17 Plaintiff’s engagement in protected activity. 18 Accordingly, the Court GRANTS Defendant’s motion for summary judgment as to 19 Plaintiff’s retaliation claim. 20 5. 21 Plaintiff’s Rehabilitation Act Claim Plaintiff alleges that Defendant discriminated against her based on her disability, 22 anxiety and panic attacks, and failed to reasonably accommodate her disability, in 23 violation of Section 501 of the Rehabilitation Act, 29 U.S.C. § 791. Defendant argues 24 that Plaintiff is not disabled within the meaning of the Rehabilitation Act. 25 To state a prima facie claim of disability discrimination, Plaintiff must 26 “demonstrate that (1) she is a person with a disability, (2) who is otherwise qualified for 27 employment, and (3) suffered discrimination because of her disability.” Walton v. United 28 States Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007). Both disparate treatment of a 19 14cv1340-MMA (BLM) 1 disabled person and refusal to make a reasonable accommodation for a disabled person 2 are actionable. See Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). A plaintiff 3 need only demonstrate that her disability was a “motivating factor” behind the 4 discrimination. See 29 U.S.C. § 791(g) (adopting ADA standards for claims under § 501 5 of the Rehabilitation Act); Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1065 (9th 6 Cir. 2005) (holding that “a motivating factor standard is the appropriate standard for 7 causation in the ADA context”). 8 9 The ADA standards incorporated into section 501 define a disability as a “physical or mental impairment that substantially limits one or more major life activities,” or a 10 “record of such an impairment,” or “being regarded as having such an impairment.” 42 11 U.S.C. § 12102(1)(A)-(C); Walton, 492 F.3d at 1005 (applying ADA standard to 12 Rehabilitation Act claim). Plaintiff maintains that she is disabled due to anxiety and 13 panic attacks, as substantiated by her primary healthcare provider, her request for a 14 reasonable accommodation, her release of medical records, and her incident reports while 15 employed in the Call Center regarding the noise level. As additional evidence of her 16 disability, Plaintiff has submitted a declaration from Reina Remy, a VA-contracted 17 licensed social worker, who began providing Plaintiff with counseling on September 30, 18 2015 after Plaintiff suffered a panic attack in August 2015. See Doc. No. 83-1 at 29-31. 19 According to Remy, Plaintiff “meets criteria for a DSM 5 diagnosis of Other Trauma and 20 Stressor Related Disorder with Adjustment-like Disorder with prolonged duration, but 21 without prolonged stressor.” Id. at 30. Remy also states that Plaintiff “self-reports this 22 was brought about while she worked at the VASDHS, and has continued since her 23 September 2011 termination from VASDHS.” Id. Based on the fact that Remy did not 24 start treating Plaintiff until four years after the termination of her employment at the VA, 25 Remy’s declaration does little to substantiate Plaintiff’s claim of disability based on panic 26 attacks and anxiety at the time of the events at issue in this action. 27 Even assuming that Plaintiff is disabled, Plaintiff’s Rehabilitation Act claim fails. 28 There is no identifiable evidence in the record to support a claim of discrimination based 20 14cv1340-MMA (BLM) 1 on Plaintiff’s anxiety and panic attacks. The individual tasked with processing Plaintiff’s 2 September 12, 2011 request for a reasonable accommodation was not involved with the 3 recommendation or decision to fire Plaintiff. To the extent Plaintiff made earlier, 4 informal requests for a reduced noise level in the Call Center as an accommodation for 5 her anxiety, Plaintiff herself has submitted evidence that steps were being taken to reduce 6 the noise level in the Call Center. A July 20, 2011 VA Incident Report noted that the 7 Call Center had requested a build-out of workstations to reduce noise levels. See Doc. 8 No. 83 at 167. And in an August 30, 2011 email to Plaintiff, Gill set forth the steps she 9 was taking to try and reduce the noise level in the Call Center, including “requisitioning 10 an entire office re-model for new workstations 7 months ago,” speaking “to each 11 employee individually about the noise level,” and addressing “the issue with everyone 12 during our staff meeting.” See Doc. No. 77 at 322. 13 Plaintiff did not submit a formal written request for a reasonable accommodation 14 until September 12, 2011, at which point Gill and McDonald had already recommended 15 that Plaintiff’s employment at the VA be terminated. Nonetheless, Plaintiff’s request was 16 processed by Marlene Carvajal. Carvajal requested and gathered the necessary 17 information regarding Plaintiff’s medical condition, and scheduled a meeting of the VA’s 18 reasonable accommodation committee. Plaintiff’s request for a reasonable 19 accommodation was never refused. Rather, Plaintiff’s employment was officially 20 terminated before the request could be brought before the committee for consideration. 21 Plaintiff has failed to raise a triable dispute as to whether she was denied a reasonable 22 accommodation. 23 Accordingly, the Court GRANTS Defendant’s motion for summary judgment as to 24 Plaintiff’s Rehabilitation Act claim. 25 6. 26 Plaintiff’s ADA Claim Plaintiff alleges a claim under the Americans with Disabilities Act, 42 U.S.C. §§ 27 12101 et seq. The Rehabilitation Act is the sole means to remedy disability 28 discrimination by a federal employer. See 42 U.S.C. § 12111(5)(B)(i) (declaring that the 21 14cv1340-MMA (BLM) 1 federal government is not an “employer” for purposes of the ADA); Newland v. Dalton, 2 81 F.3d 904, 906 (9th Cir. 1996) (noting that Section 501 incorporates ADA standards); 3 Johnston v. Horne, 875 F.2d 1415, 1420-21 (9th Cir. 1989) (concluding that Section 504 4 of Rehabilitation Act provides no cause of action against a federal employer). As such, 5 the Court GRANTS Defendant’s motion for summary judgment as to Plaintiff’s ADA 6 claim because the ADA does not apply to federal employers. 7 7. Plaintiff’s Additional Claims 8 Plaintiff also alleges claims for intentional infliction of emotional distress, 9 negligent infliction of emotional distress, violation of California’s Fair Employment and 10 Housing Act (“FEHA”), violations of the Civil Rights Act, 42 U.S.C. §§ 1981 and 1983, 11 and violation of her Fourteenth Amendment rights. These claims are subject to dismissal 12 on multiple grounds. 13 When the factual predicate of a federal employee’s additional claims is the same as 14 that behind the employee’s Title VII claim, only the Title VII remedy is available. Nolan 15 v. Cleland, 686 F.2d 806, 815 (9th Cir. 1982) (affirming dismissal of a federal 16 employee’s due process claim where it arose from same factual predicate as her Title VII 17 wrongful termination claim). Plaintiff’s additional claims are based upon the allegedly 18 discriminatory and harassing employment actions by VA employees, and therefore are 19 factually indistinguishable from her Title VII claims. See Williams v. Gen. Servs. 20 Admin., 905 F.2d 308, 311 (9th Cir. 1990) (holding that, due to its comprehensive scope, 21 Title VII preempts other claims such as tort and constitutional claims that seek to redress 22 wrongs predicated on discriminatory employment actions); White v. Gen. Servs. Admin., 23 652 F.2d 913, 917 (9th Cir. 1981) (holding that Title VII is the sole remedy for a race 24 discrimination claim by a federal employee). 25 With respect to Plaintiff’s tort claims, the FTCA is the exclusive remedy for filing 26 a civil action based on the tortious actions of a federal agency or officer. See 28 U.S.C. § 27 2679; Jerves v. United States, 966 F.2d 517, 518 (9th Cir. 1992) (“The [FTCA] vests the 28 federal district courts with exclusive jurisdiction over suits arising from the negligence of 22 14cv1340-MMA (BLM) 1 Government employees.”). The FTCA “provides that the United States is the sole party 2 which may be sued for personal injuries arising out of the torts of its employees.” Allen 3 v. Veterans Admin., 749 F.2d 1386, 1388 (9th Cir. 1984) (citing 28 U.S.C. §§ 1346(b), 4 2679(a)). Plaintiff’s tort claims are subject to dismissal for failure to name the United 5 States as the proper defendant as required by the FTCA. Furthermore, the plaintiff in an 6 action seeking relief under the FTCA bears the burden of showing that he or she 7 complied with the FTCA’s administrative claim requirement. See Bruce v. United States, 8 621 F.2d 914, 918 (8th Cir. 1980). Here, there is nothing in the record to suggest that 9 Plaintiff exhausted her administrative remedies under the FTCA prior to filing this 10 11 lawsuit. Plaintiff’s Fourteenth Amendment claim is barred by the doctrine of sovereign 12 immunity in so far as she seeks damages. A suit for damages against federal officers or 13 employees in their official capacity is essentially a suit against the United States and is 14 barred by sovereign immunity absent statutory consent. Gilbert v. DaGrossa, 756 F.2d 15 1455, 1458 (9th Cir. 1985). The United States has not waived its sovereign immunity for 16 actions seeking damages for constitutional violations. See Holloman v. Watt, 708 F.2d 17 1399, 1401-02 (9th Cir. 1983) (rejecting claimant’s argument that sovereign immunity 18 did not apply to his due process claim for damages when the federal defendants were 19 being sued in their official capacity only). 20 Finally, Plaintiff’s Section 1983 claim fails because “by its very terms, § 1983 21 precludes liability in federal government actors.” Morse v. N. Coast Opportunities, Inc., 22 118 F.3d 1338, 1343 (9th Cir. 1997) (finding the plaintiff’s complaint “invalid on its face 23 in its reliance upon § 1983 as a cause of action against alleged federal government 24 actors”); see also Ibrahim v. Dept. of Homeland Security, 538 F.3d 1250, 1257 (9th Cir. 25 2008) (recognizing “the long-standing principle that federal officials can only be liable 26 under section 1983 where there is a ‘sufficiently close nexus between the State and the 27 challenged action of the [federal actors] so that the action of the latter may be fairly 28 treated as that of the State itself.’”). 23 14cv1340-MMA (BLM) 1 2 Accordingly, the Court GRANTS Defendant’s motion for summary judgment and dismisses Plaintiff’s additional state law, constitutional, and civil rights claims. 3 4 CONCLUSION Based on the foregoing, the Court GRANTS Defendant’s motion for summary 5 judgment in its entirety. The Clerk of Court is instructed to enter judgment accordingly, 6 terminate all pending deadlines and hearings, and close the case. 7 8 9 10 IT IS SO ORDERED. DATE: January 4, 2016 ______________________________________ HON. MICHAEL M. ANELLO United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24 14cv1340-MMA (BLM)

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