Sanchez v. Brennan
Filing
35
ORDER granting in part and denying in part 24 Motion to Dismiss; granting 32 Motion to Intervene, by Magistrate Judge Michael J. Watanabe on 11/09/2015.(slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01523-PAB-MJW
ROBERT W. SANCHEZ,
Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster General, U.S. Postal Service,
Defendant.
ORDER ON
DEFENDANT’S MOTION TO DISMISS (Docket No. 24)
&
MOTION TO INTERVENE (Docket No. 32)
MICHAEL J. WATANABE
United States Magistrate Judge
Plaintiff has been pursuing an employment-discrimination complaint through an
administrative maze for over a decade. At this point, he has filed suit in this Court
(Docket Nos. 1 & 8), and Defendant has moved to dismiss (1) for failure to state a claim
as to discrimination based on national origin or retaliation, and (2) for failure to exhaust
administrative remedies as to discrimination based on disability (Docket No. 24). The
decade-long odyssey is attributable in part to an administrative class action pending
before the EEOC, which the Court will refer to as the “Pittman Class Action.” The
settlement of the Pittman Class Action is on hold pending this Court’s resolution of
Plaintiff’s claim, and class counsel seeks to intervene. (Docket No. 32.)
The parties have consented to magistrate jurisdiction for all purposes under 28
U.S.C. § 636(c). (Docket Nos. 28 & 30.) The Court has reviewed the parties’ filings
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(Docket Nos. 24, 31, 32, and 33), taken judicial notice of the Court’s entire file in this
case, and considered the applicable Federal Rules of Civil Procedure, statutes,
regulations, and case law. Now being fully informed the Court denies in part and grants
in part the motion to dismiss, and grants the motion to intervene.
Legal Standards
Defendant moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). As stated by then-Chief Judge Babcock in 2001:
Rule 12(b)(1) empowers a court to dismiss a complaint for lack of
jurisdiction over the subject matter. As courts of limited jurisdiction,
federal courts may only adjudicate cases that the Constitution and
Congress have granted them authority to hear. Statutes conferring
jurisdiction on federal courts are to be strictly construed. A Rule 12(b)(1)
motion to dismiss must be determined from the allegations of fact in the
complaint, without regard to mere conclusionary allegations of jurisdiction.
The burden of establishing subject matter jurisdiction is on the party
asserting jurisdiction.
Motions to dismiss pursuant to Rule 12(b)(1) may take two forms.
First, if a party attacks the facial sufficiency of the complaint, the court
must accept the allegations of the complaint as true. Second, if a party
attacks the factual assertions regarding subject matter jurisdiction through
affidavits and other documents, the court may make its own findings of
fact. A court’s consideration of evidence outside the pleadings will not
convert the motion to dismiss to a motion for summary judgment under
Rule 56.
Cherry Creek Card & Party Shop, Inc. v. Hallmark Mktg. Corp., 176 F. Supp. 2d 1091,
1094–95 (D. Colo. 2001) (internal citations, quotation marks, and alterations omitted).
The Tenth Circuit has recently explained the standards under Rule 12(b)(6):
. . . To withstand a Rule 12(b)(6) motion to dismiss, a complaint
must contain enough allegations of fact, taken as true, to state a claim to
relief that is plausible on its face. Disregarding conclusory statements, the
remaining factual allegations must plausibly suggest the defendant is
liable. A claim for relief is plausible when the plaintiff pleads facts
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adequate to draw a reasonable inference that the defendant is liable for
the alleged misconduct. Such facts must raise a right to relief above the
speculative level.
McDonald v. Wise, 769 F.3d 1202, 1210 (10th Cir. 2014) (internal citations, quotation
marks, and alterations omitted).
Facts as Alleged in the Complaint
Plaintiff is disabled for purposes of the Rehabilitation Act. (Docket No. 1, pp.47–
62 & Docket No. 1-1, pp.1–24.) He has filed two discrimination charges with the EEOC:
one in July 1994, and one in October 2005. (Docket No. 1, p.2.) Both charges asserted
discrimination based on Plaintiff’s race/national origin (Hispanic, and of Native American
heritage) as well as his disability. (Docket No. 1, p.2; Docket No. 1, p.15; Docket No. 11, pp. 25–27).
Plaintiff won on the 1994 charge. That charge concerned Defendant’s overtime
practices—specifically, Defendant’s failure to make various forms of overtime available
to employees classified as disabled on equal terms with those not so classified. (See
Docket No. 1, pp.15–18, 22–38.) Although the Administrative Judge in the case found
no evidence whatsoever of discrimination based on race/national origin (id. at pp.39–
40), the judge did find direct and indirect evidence of disability discrimination and
ordered the full panoply of compensatory and injunctive relief (id. at pp.40–43).
Plaintiff’s 2005 charge alleges both that Defendant has not complied with the
EEOC’s order from the earlier charge (id. at p.2), and that Defendant has created a
“continuous and constant hostile work environment” for him in retaliation for that earlier
charge (Docket No. 1-1, p.26). Defendant’s EEO office initially dismissed the 2005
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charge for failure to state a claim, believing it to be a challenge to Defendant’s thenrecent union settlement regarding overtime practices. (Id. at p.28-29.) The EEOC
overturned the dismissal on administrative appeal, finding that the claim concerned
denial of overtime as retaliation for the 1994 charge rather than denial of overtime
related to the union settlement. (Id. & Docket No. 1-2.)
Plaintiff’s 2005 charge was then subsumed into a pending administrative class
action challenging Defendant’s overtime practices with regard to disabled employees.
(Docket No. 1, p.3.) At the conclusion of that administrative class action, Plaintiff
attempted to appeal the result, but was told by the EEOC that his appeal would not be
considered. (Docket No. 8, p.3.) Plaintiff alleges that the EEOC’s refusal to hear his
appeal is in error, and that the notices he was given regarding the administrative class
action failed to advise him fully of the binding nature of the class action. (Id.)
Other Administrative Records
Defendant’s Rule 12(b)(1) argument rests on Plaintiff’s alleged failure to exhaust
administrative remedies. In support of this argument, Defendant offers administrative
records establishing the following.
On May 17, 2007, Administrative Judge David Simonton subsumed Plaintiff’s
disability-based charge into a pending administrative class action, the Pittman Class
Action. (Docket No. 24-1.) The portions of Plaintiff’s charge based on national origin
and on retaliation were held in abeyance, pending resolution of the disability-based
claims. (Id.) According to the order, Plaintiff had no choice as to the subsumed portion
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of his charge; as to the rest of it, he had a choice whether to hold those matters in
abeyance or to proceed, and he elected abeyance. (Id.)1
In October 2013, the Pittman Class Action settled for a class settlement fund of
$17.25 million. (Docket No. 24-2.) The settlement agreement, as relevant here,
provided the following timelines:
A class administrator would send a Notice of Resolution to all class members
within 10 calendar days of the Administrative Judge granting preliminary
approval to the settlement. (Id. at 9, 11.)
Class members would have 30 days to file objections. (Id.) “Objections
received after the 30-day limitations period [would be] considered only with
good cause as determined by the assigned EEOC Administrative Judge.” (Id.
p.11.)
Defendant and class counsel for the Pittman Class Action would then have 30
days to file responses to the objections. (Id.)
Within 14 days of the Administrative Judge’s final approval of the settlement,
Defendant would send a Notice of Final Agency Action to the class members,
along with Claim Forms and Releases. (Id. at 12.)
Class members would then have 45 days to return claim forms. (Id. at 13.)
On October 23, 2013, the Administrative Judge preliminarily approved the
settlement. (Docket No. 24-3.) The Notice of Resolution, sent to all class members
prior to final approval of the settlement, was 8 pages long—not including the 5-page
claim form and release. (Docket No. 24-2, pp.24–36.) The notice contained extensive
explanation of the rights and duties of class members, and the options (file a claim,
1
The EEOC File Number for Plaintiff’s 2005 charge, at least at this stage of
proceedings, appears to be 541-2007-00016X. The order subsuming part of the charge
and holding the rest in abeyance also denies Defendant’s motion to consolidate
Plaintiff’s case with another EEOC File Number, 541-2007-00058X. Neither party offers
any explanation of what that second case relates to. (See Docket No. 24-1, p.4.)
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object, or do nothing) before them. Notably, the notice also included the following
sections:
1.
Why did I get this notice package?
You are receiving this Notice of Resolution because you were identified by
the USPS as a Potential Class Member in the EEOC case known as
Pittman v. Donahoe pending before Judge Mulligan.
The Settlement Agreement resolves all Potential Class Members’ claims
regarding the Challenged Practice in this case. The Challenged Practice
in this case is that the USPS allegedly restricted the duty hours of disabled
Permanent Rehabilitation Employees in violation of the Rehabilitation Act,
between March 24, 2000 and December 31, 2012. On October 23, 2013,
Judge Mulligan issued an Order Granting Preliminary Approval of the
Settlement Agreement, but the Settlement will not be final and effective
until the EEOC Administrative Judge grants Final Approval, the Agency
issues its Notice of Final Agency Action, and all related actions and
appeals have been resolved.
This Notice of Resolution describes the Settlement Agreement. Under the
Settlement Agreement, each Potential Class Member may file a Claim
Form and Release to receive compensation. According to the USPS’
records, you are a Potential Class Member who may be eligible to receive
compensation under the Settlement.
Your rights may be affected if final approval of the Settlement Agreement
is granted by Judge Mulligan. This is your only time to submit any
objections you may have to the terms of the Settlement Agreement. If you
want to object to the Settlement, your written objections must be mailed
within thirty (30) days of receipt of this Notice of Resolution. . . .
...
7.
If I don’t agree with the terms of the Settlement, how do I tell
the Administrative Judge?
If you are a Potential Class Member, you may object to the Settlement
Agreement if you don’t agree with the terms of any part of the Settlement
Agreement. Your objection should state why you think the EEOC
Administrative Judge should not approve the Settlement Agreement. . . .
...
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12.
What am I giving up by submitting and [sic] Claim Form and
Release to obtain a Settlement Share?
If the EEOC grants final approval of the Settlement Agreement as
proposed by the Parties, you will forfeit your right to initiate or pursue any
individual claim arising out of the Challenged Practice during the Class
Period that is similar to the claims contained in this Case. This means
that, as of the date the EEOC grants final approval of the Settlement, any
similar claims that you may have will be extinguished; and the Postal
Service will be forever released from liability to you for those claims.
However, this Release of Claims against the Postal Service will apply
regardless of whether you submit a Claim Form and Release. While your
claims will be released whether or not you submit a Claim Form and
Release, as noted above, you will forfeit your right to any money damages
under the terms of this Settlement Agreement unless you submit a Claim
Form and Release. If the EEOC does not approve the Settlement
Agreement, you will not receive a Claim Form and Release, nor will you
receive any compensation pursuant to the Settlement Agreement.
...
14.
Can I exclude myself from the Settlement Agreement if it is
approved?
Pursuant to the EEOC regulations, there is no right to exclude yourself
from the Class in this Case or the Settlement. However, the EEOC does
not require that you participate in the Settlement.
(Docket No. 24-2, pp. 25, 28, 30–31.)
On April 4, 2014, the Administrative Judge finally approved the settlement
agreement, listing 50 individuals who filed objections and addressing those objections in
varying degrees of detail. (Docket No. 24-4.) Plaintiff is not listed as an individual who
filed an objection. (Id. at 26–27.)
On May 27, 2014, Plaintiff filed an appeal to the EEOC that the EEOC treated as
a challenge to the settlement agreement. (Docket No. 24-5.) The EEOC first noted that
Plaintiff did not file a timely objection to the preliminary settlement agreement. (Id. at 3.)
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The EEOC then went on to address the merits of the matter, concluding that the
Administrative Judge did not abuse her discretion in approving the settlement
agreement. (Id.) Plaintiff moved for reconsideration, but the EEOC affirmed itself on
April 22, 2015—marking the end of the administrative road for Plaintiff, and the
beginning of his 90-day clock to file a civil action in this Court. (Docket No. 1, pp.9–12.)
Discussion
I.
Plaintiff’s claims based on national origin or retaliation
Defendant first argues, under Rule 12(b)(6), that Plaintiff fails to plausibly allege
facts giving rise to an inference of discrimination based on national origin or retaliatory
animus.
Title VII makes it unlawful “to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). A plaintiff proves a violation of Title VII
either by direct evidence of discrimination or by following the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To set forth a prima facie
case of discrimination under McDonnell Douglas, a plaintiff must establish that: (1) he is
a member of a protected class; (2) he suffered an adverse employment action; (3) he
was qualified for the position at issue; and (4) he was treated less favorably than others
not in the protected class. Sanchez v. Denver Pub. Sch.,164 F.3d 527, 531 (10th Cir.
1998).
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Plaintiff has not plausibly pleaded facts giving rise either to a direct inference of
discrimination or the elements of a prima facie case under McDonnell Douglas. As to
direct evidence, the complaint—including the documents attached to it by Plaintiff, see
Fed. R. Civ. P. 10(c)—is wholly bereft of any suggestion, mention, or hint of specific
facts showing discrimination based on Plaintiff’s Native American heritage or Hispanic
ethnicity. Further, in response to Defendant’s motion to dismiss, Plaintiff points to no
specific facts that he could have alleged. Instead, he argues only that he “perceived”
the agency’s actions as being related to his national origin. (Docket No. 31, p.4 (“As to
[counsel’s] statement of being discriminated against due to being a Native American
employee, it was plaintiff[‘]s perception that plaintiff was being treated in a
discriminatory way. Not only due to the fact that plaintiff is partially disabled, but
because plaintiff is not white, and has long hair and besides being, looks Native
American.”).) Without specific factual content from which the Court could reasonably
infer discrimination based on national origin, this is insufficient to state a claim.
As to McDonnell Douglas, Plaintiff has not alleged anywhere in his Complaint,
shown through documents attached to his Complaint, facts suggesting that disabled
non-Native Americans were not subject to the same overtime restrictions he was
subject to. Accordingly, he has not pleaded the fourth element of a prima facie case.
The exact same analysis applies to Plaintiff’s retaliation claim. See Stover v.
Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004) (applying the McDonnell Douglas
framework to Title VII retaliation claims). The Complaint (including the documents
attached to it) include no facts from which the Court could reasonably infer either (1)
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direct evidence of retaliatory intent, or (2) disabled coworkers who had not engaged in
protected activity and who were not subjected to the same overtime limitations as
Plaintiff.
Accordingly, insofar as Plaintiff’s Complaint alleges discrimination based on
either national origin or retaliatory animus, it is hereby dismissed under Rule 12(b)(6).
II.
Plaintiff’s claims based on disability
Defendant next argues that, under Rule 12(b)(1), Plaintiff has not exhausted his
administrative remedies as to disability-based discrimination because he did not file a
timely objection to the settlement agreement.
Defendant’s argument misunderstands the exhaustion doctrine. As the Tenth
Circuit has recently explained:
Before filing suit under Title VII, a private plaintiff must exhaust
administrative remedies. Each discrete incident of alleged discrimination
or retaliation constitutes its own unlawful employment practice for which
administrative remedies must be exhausted. Two components of the
exhaustion requirement are at issue in this case. The first relates to the
content of the administrative charge. To establish exhaustion, a Title VII
plaintiff must show that the claim is within the scope of the administrative
investigation that could reasonably be expected to follow from the
allegations raised in the charge. Thus, the charge must contain facts
concerning the discriminatory and retaliatory actions underlying each
claim. Second, the plaintiff must submit the administrative charge in a
timely fashion. Exhaustion serves the dual purposes of protecting
employers by giving them notice of the discrimination claims being brought
against them and providing the EEOC or EEO office with an opportunity to
conciliate the claims.
In this circuit the failure to comply with the first component of
exhaustion deprives the court of jurisdiction. But the untimeliness of an
administrative claim, although an exhaustion issue, is not jurisdictional.
11
Green v. Donahoe, 760 F.3d 1135, 1140 (10th Cir. 2014) (internal citations, quotation
marks, and alterations omitted), cert. granted on other grounds, 135 S. Ct. 1892 (2015).
The Tenth Circuit bases this distinction on the EEOC’s discretion to accept untimely
complaints:
. . . This is not an uncomplicated matter. We have held that the
exhaustion of administrative remedies is a jurisdictional prerequisite to suit
under Title VII. However, we were careful to distinguish . . . between a
failure to timely file an administrative charge, which is not jurisdictional,
and a failure to file an administrative charge at all, which is a jurisdictional
bar.
As set out above, the regulations governing discrimination
complaints against federal agencies require an aggrieved person to
consult with an EEO counselor within forty-five days of the alleged
discrimination. The regulations also provide that this forty-five day limit is
to be extended under certain circumstances.
The agency or the Commission shall extend the 45–day time
limit in paragraph (a)(1) of this section when the individual
shows that he or she was not notified of the time limits and
was not otherwise aware of them, that he or she did not
know and reasonably should not have been[sic] known that
the discriminatory matter or personnel action occurred, that
despite due diligence he or she was prevented by
circumstances beyond his or her control from contacting the
counselor within the time limits, or for other reasons
considered sufficient by the agency or the Commission.
29 C.F.R. § 1614.105(a)(2) (2001) (emphasis added). The regulation thus
provides that if the aggrieved person meets the circumstances set out
therein, either the agency or the Commission must extend the time limit,
and vests both the agency and the Commission with discretion to extend
the limit for reasons other than those contained in the regulation itself. . . .
[T]he regulation clearly indicates that compliance with the forty-five day
time limit is not a matter of jurisdiction, but rather may be tolled in the
appropriate circumstances.
Sizova v. Nat. Inst. of Standards & Tech., 282 F.3d 1320, 1325 (10th Cir. 2002).
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The situation here is much the same as in Sizova. The regulation Defendant
relies upon requires that class members be given notice of a 30-day period for objecting
to a proposed settlement—but outside of describing the contents of the notice, the
regulation does not affirmatively set any actual deadline. See 29 C.F.R.
§ 1614.204(g)(4) (“It shall state that within 30 days of the date of the notice of
resolution, any member of the class may petition the administrative judge to vacate the
resolution because it benefits only the class agent, or is otherwise not fair, adequate
and reasonable to the class as a whole.”). The settlement agreement itself did set a
deadline of 30 days—but it also allowed that deadline to be extended for good cause at
the Administrative Judge’s discretion. (Docket No. 24-2, p.11 (“Objections received
after the 30-day limitations period will be considered only with good cause as
determined by the assigned EEOC Administrative Judge.”).) The objection deadlines
cannot in any way be described as jurisdictional. Rather, it is a deadline subject to
tolling, estoppel, and waiver.
Here, the EEOC waived the deadline by reaching the merits of Plaintiff’s appeal.
Although the EEOC noted that timeliness “is grounds to dismiss the instant appeal,” it
nonetheless went on to affirm the Administrative Judge on merits. (Docket No. 24-5.)
In the analogous context of appeals from immigration judges, the Tenth Circuit explicitly
held that a claimant exhausts administrative remedies if the agency reaches the merits
of the dispute:
[W]hile [the statute] requires that an alien exhaust “all
administrative remedies,” the BIA has the authority to determine its
agency’s administrative procedures. If the BIA deems an issue sufficiently
presented to consider it on the merits, such action by the BIA exhausts the
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issue as far as the agency is concerned and that is all [the statute]
requires to confer our jurisdiction. Where the BIA determines an issue
administratively-ripe to warrant its appellate review, we will not secondguess that determination. Indeed, it is a touchstone of administrative law
that “the formulation of procedures [is] basically to be left within the
discretion of the agencies to which Congress had confided the
responsibility for substantive judgments.” Vermont Yankee Nuclear Power
Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524
(1978). Administrative agencies “should be free to fashion their own rules
of procedure and to pursue methods of inquiry capable of permitting them
to discharge their multitudinous duties.” FCC v. Pottsville Broadcasting
Co., 309 U.S. 134, 143 (1940). Cf. Weinberger v. Salfi, 422 U.S. 749, 767
(1975) (holding that an agency may waive internal exhaustion
requirements).
Sidabutar v. Gonzales, 503 F.3d 1116, 1119–20 (10th Cir. 2007). This District has
applied the waiver rule in the specific context of Title VII complaints. Estes v. Vilsack,
No. 11-CV-03109-PAB-MJW, 2012 WL 4466549, at *5 (D. Colo. Sept. 27, 2012).
The Court finds that Plaintiff has not failed to exhaust his administrative
remedies—because the deadlines at issue here are non-jurisdictional, and because the
EEOC addressed the matter on the merits. Defendant makes no other argument as to
Plaintiff’s disability-based claim.2 Accordingly, Defendant’s motion is denied as to
disability-based discrimination.
Motion to Intervene
The Court agrees that class counsel has a claim or defense that shares a
common question of law or fact with Plaintiff’s disability-based claim. Fed. R. Civ. P.
24(b)(1)(B). Further, because Plaintiff’s claim concerns the administrative class action
2
Defendant does include a brief, inconclusive footnote regarding subject-matter
jurisdiction in the event the Court declines to dismiss on exhaustion grounds. (Docket
No. 24, p.13 n.7.) Defendant is free to raise this matter on summary judgment or in
some other filing. But this footnote is much too cursory—failing even to come to a
conclusion on the question presented—to be decided at this point.
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settlement fund, intervention is probably available as of right. Fed. R. Civ. P. 24(a)(2).
Accordingly, class counsel’s motion to intervene is granted.
Orders
For the foregoing reasons, it is hereby ORDERED that:
Defendant’s Motion to Dismiss (Docket No. 24) is DENIED IN PART, as
to disability-based discrimination, and GRANTED IN PART, as to
discrimination on based on national origin or retaliation; and
Dated:
The Motion to Intervene (Docket No. 32) is GRANTED.
November 9, 2015
Denver, Colorado
/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge
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