Sanchez v. Brennan
Filing
89
ORDER granting 75 Partial Motion to Dismiss Amended Complaint; denying as moot 77 Motion to Compel Discovery; denying as moot 86 Unopposed Motion for Extension of Discovery Cutoff Date and Dispositive Motion Deadline, by Magistrate Judge Michael J. Watanabe on 4/11/2016. This case is dismissed in its entirety.(slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01523-MJW
ROBERT W. SANCHEZ,
Plaintiff,
v.
MEGAN J. BRENNAN, Postmaster General, U.S. Postal Service,
Defendant.
ORDER ON
PARTIAL MOTION TO DISMISS AMENDED COMPLAINT (Docket No. 75);
MOTION TO COMPEL DISCOVERY (Docket No. 77);
UNOPPOSED MOTION FOR EXTENSION OF DISCOVERY CUTOFF DATE AND
DISPOSITIVE MOTION DEADLINE (Docket No. 86)
&
ORDER DISMISSING CASE
MICHAEL J. WATANABE
United States Magistrate Judge
Plaintiff has been pursuing an employment-discrimination complaint through an
administrative maze for over a decade. He asserts three theories of discrimination.
Two theories—racial and retaliatory discrimination—are not plausibly pleaded and must
be dismissed under Fed. R. Civ. P. 12(b)(6). The third theory is disability discrimination,
and it is very plausibly pleaded. But that claim was subsumed into an administrative
class action by the Equal Employment Opportunity Commission (“EEOC”), and Plaintiff
has refused either to participate in the settlement of that class action or to challenge it.
Instead, Plaintiff seeks to bring his claim in this Court, separately. The Court concludes
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that it has no subject-matter jurisdiction to hear a claim in this procedural posture—and
therefore, that this claim must be dismissed under Fed. R. Civ. P. 12(b)(1).
Factual Background
Plaintiff is disabled for purposes of the Rehabilitation Act. He has filed two
discrimination charges with the EEOC: one in 1994, and one in 2005. Both charges
asserted discrimination based on Plaintiff’s race/national origin and also based on his
disability. Plaintiff won on the 1994 charge to the extent it was based on disability.
Plaintiff lost on the charge to the extent it was based on race or national origin.
Plaintiff’s 2005 charge is the one now before the Court, more than ten years after
it was filed. It alleges (1) that Defendant has not complied with the EEOC’s order from
the 1994 case, (2) that Defendant has created a retaliatory hostile work environment in
response to that 1994 case, and (3) that Defendant also discriminated against Plaintiff
on the basis of race and national origin. In 2007, the EEOC “subsumed” Plaintiff’s claim
as to compliance with the 1994 order into the “Pittman Class Action,” a then-pending
administrative class action challenging Defendant’s overtime practices with regard to
disabled employees. The other portions of Plaintiff’s charge—the claims based on race
or national origin, and on retaliation—were held in abeyance, pending resolution of the
disability-based claims.
In 2014, an administrative judge approved a settlement of the Pittman Class
Action. Plaintiff filed no objections to the fairness of the settlement, and did not
participate in the settlement as a class member. He then filed an administrative appeal,
which the EEOC denied—treating it as an untimely objection to the class settlement and
3
affirming the administrative judge’s approval of the settlement. Plaintiff then brought
this lawsuit, asserting all of his original theories from the 2005 charge.
Procedural Background
The record does not reveal if Plaintiff ever administratively revived the claims that
were held in abeyance, but Defendant has not challenged those claims for lack of
administrative exhaustion. Defendant instead moved to dismiss the non-disabilitybased theories for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The Court
agreed and dismissed those claims. (Docket No. 35, pp.8-10.)
Defendant also sought to dismiss any challenge to the class settlement for failure
to exhaust administrative remedies. The Court disagreed, viewing the EEOC’s decision
to address Plaintiff’s appeal on the merits as a waiver of any procedural default.
(Docket No. 35, pp.10-13.) Following further proceedings, Plaintiff made it clear that he
does not seek to challenge the settlement of the Pittman Class Action in this lawsuit.
Rather, he seeks to assert only his own individual claims from the 2005 charge,
separately from the class action. (See Docket Nos. 58, 60, & 62.) Plaintiff filed an
Amended Complaint to reflect this intent (Docket No. 64), and judgment entered under
Fed. R. Civ. P. 54(b) dismissing any challenge to the class settlement (Docket No. 66).
Defendant has moved to dismiss the Amended Complaint to the extent it reasserts any claims based on racial or national-origin discrimination. (Docket No. 75.)
Plaintiff objected to the motion (Docket No. 83), and Defendant filed an untimely reply
(Docket No. 87). The main gravamen of the Amended Complaint is disability
discrimination, and Defendant filed an Answer to that claim. (Docket No. 76.) However,
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based on a footnote in Defendant’s initial motion to dismiss (Docket No. 24, p.13 n.7),
the Court ordered the parties to brief the Court’s subject-matter jurisdiction over
Plaintiff’s disability-discrimination theory (Docket No. 65). The parties have now done
so. (Docket Nos. 82 & 85.)
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,
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 dismisses this case.
Discussion
As a preliminary matter, the Court granted Defendant’s initial motion to dismiss
as to race, national-origin, and retaliation theories because nothing in the Complaint
supported any inference of either (1) direct proof of such animus, or (2) indirect proof
thereof under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). (Docket No.
35.) The Amended Complaint makes no improvement on this score. As a result,
Defendant’s Partial Motion to Dismiss Amended Complaint (Docket No. 75) is
GRANTED for the same reason.
As to Plaintiff’s claim of disability discrimination, a Rehabilitation Act claimant
must exhaust the procedures for administrative remedies. Hung Thai Pham v. James,
630 F. App’x 735, 737 (10th Cir. 2015). Failure to do so requires dismissal, unless the
procedural rule is both (1) non-jurisdictional and (2) waived or forfeited. Gad v. Kansas
State Univ., 787 F.3d 1032 (10th Cir. 2015). Here, the Court has already ruled that
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Plaintiff’s claim was exhausted, insofar as he sought to challenge the administrative
class action settlement. (Docket No. 34.) But Plaintiff has now clarified that he doesn’t
seek to challenge the settlement; instead, he seeks to present his individual claims
independently of the class action.1 The case thus turns on whether he can do so—or,
more accurately, whether his attempt to do so has been administratively exhausted.
The EEOC has promulgated rules governing how it handles class complaints.
See 29 C.F.R. § 1614.204. For purposes of implementing its regulations, the EEOC
has also issued Management Directive 110; Chapter 8 addresses administrative class
actions. See EEOC, EEO MANAGEMENT DIRECTIVE 110, ch. 8 (Aug. 5, 2015), available
at http://tinyurl.com/l5om857. The Tenth Circuit has recently explained how to approach
such administrative pronouncements:
In interpreting the relevant regulations, we apply the same rules we
use to interpret statutes. We begin by examining the plain language of the
text, giving each word its ordinary and customary meaning. If, after
engaging in this textual analysis, the meaning of the regulations is clear,
our analysis is at an end, and we must enforce the regulations in
accordance with their plain meaning.
If, by contrast, the meaning of the regulations is not plain, we defer
to the [agency]’s reasonable interpretations . . . unless plainly erroneous
or inconsistent with the regulations, or there is any other reason to suspect
that the interpretation does not reflect the agency’s fair and considered
judgment on the matter in question.
1
Dismissal is required if either the regulations at issue are jurisdictional or they have not
been waived or forfeited. Hung Thai Pham v. James, 630 F. App’x 735 (10th Cir. 2015).
Defendant has preserved the issue by raising it in its initial motion to dismiss. The
Court’s earlier order found the issue to be forfeited, but that holding was based on a
misapprehension of Plaintiff’s claim—believing Plaintiff intended to challenge the
settlement, rather than assert independent claims. That misapprehension is grounds for
reconsideration of the Court’s prior order. Servants of Paraclete v. Does, 204 F.3d
1005, 1012 (10th Cir. 2000). Thus, the Court need not decide whether the regulation at
issue is jurisdictional in nature. Hung Thai Pham, 630 F. App’x at 737.
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Mitchell v. Commissioner of Internal Revenue, 775 F.3d 1243, 1249 (10th Cir. 2015)
(explaining deference under Auer v. Robbins, 519 U.S. 452 (1997)). Thus, if
§ 1614.204 plainly speaks to matter at hand, the Court must apply the regulations as
written. If they do not speak plainly to the question, the Court must apply Management
Directive 110 unless there is some reason to deny it Auer deference.
The regulation prescribes how a class is to be certified and how class members
are to be notified, § 1614.204(a)-(e), but it is entirely silent on whether putative
members have a right to opt out of the class. It sets forth a process for class members
to object to a proposed settlement. § 1614.204(g)(4). It gives administrative judges the
authority to consider such objections, to reject or approve class settlements, and to bind
all members of the class to a settlement. § 1614.204(g)(2), (4). The regulation does
not explicitly mention any right to appeal an adopted class settlement. See id. For
cases that proceed on the merits, the regulation further sets forth procedures for
individual claimants in the class, following agency final action on class-wide matters.
§ 1614.204(l). That provision explains the path forward for individual complaints when
class-wide discrimination is not found, § 1614.204(l)(2), and when class-wide
discrimination is found, § 1614.204(l)(3). Aside from these provisions for claimants
participating in a class, the regulation says nothing relevant about individual claims.
Management Directive 110 is more explicit. It states that “[i]f a class complaint is
certified, all individual complaints that raise claims identical to the definition of the class
claim(s) shall be subsumed within the class complaint.” EEO MANAGEMENT DIRECTIVE
110, ch. 8, sec. III. The directive goes on to provide:
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C.
Individuals May Not Opt Out
The class members may not “opt out” of the defined class; however, they
do not have to participate in the class or file a claim for individual relief. All
class members will have the opportunity to object to any proposed
settlement and to file claims for individual relief if discrimination is found.
Id., sec. VI. This is unequivocal, although the language about “not hav[ing] to
participate in the class” could be explained better.2 Management Directive 110 provides
claimants a right to appeal the decision to subsume their claims into the class action.
Id., sec. III(b). But to the extent the issues are “identical,” the claims will be subsumed
nonetheless. Id., sec. III n.2. The directive explicitly sets out an appellate procedure,
for those who object to an administrative judge’s approval of a class settlements. Id.,
sec. VIII(C)(3).
The Court sees no reason why Management Directive 110 is not entitled to Auer
deference on this matter. Two Circuits have afforded the directive deference as to
another EEOC regulation. Kraus v. Presidio Trust Facilities Div./Residential Mgmt.
Branch, 572 F.3d 1039, 1045 (9th Cir. 2009); Culpepper v. Schafer, 548 F.3d 1119 (8th
Cir.2008). Here, as in those cases, the provisions of the directive are not plainly
erroneous, contrary to the regulation, or contrary to the applicable statutes. Importantly,
they leave Plaintiff with multiple opportunities to appeal the administrative decisions.
Thus, the Court will treat Management Directive 110 as a binding interpretation of
§ 1614.204.
2
In context, the language appears to mean that individuals can choose to forego
compensation altogether—in other words, that they can walk away from their claims.
Given the title “Individuals May Not Opt Out” and the first clause in the sentence, the
clause about not “participating” clearly cannot mean that individuals may pursue their
claims separately—even if a non-lawyer like Plaintiff might read it that way.
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Accordingly, Plaintiff’s routes to individual relief on his disability claim were (1) to
appeal the 2007 decision to subsume his claims into the Pittman Class Action, or (2) to
participate in the class, including the process for appealing a class settlement. Cf.
Rahman v. Vilsack, 673 F. Supp. 2d 15 (D. D.C. 2009) (claimant specifically excluded
from terms of class settlement agreement had exhausted administrative remedies and
could pursue individual claims). Neither route would have allowed him to retain
individual claims if (1) his claims were, in fact, identical to those in the Pittman class,
and (2) the Pittman Class settlement was, in fact, fair and reasonable. But those routes
would have at least allowed judicial review of those two questions.
Plaintiff did not do the first, and he has disclaimed any intent to do the second.
As a result, he has not exhausted his administrative remedies and this Court lacks
jurisdiction over the case.
Orders
For the foregoing reasons, it is hereby ORDERED that:
Defendant’s Partial Motion to Dismiss Amended Complaint (Docket No.
75) is GRANTED;
Plaintiff’s claims are therefore DISMISSED WITH PREJUDICE under Fed.
R. Civ. P. 12(b)(6) to the extent they are based on retaliation or
racial/national-origin discrimination;
Plaintiff’s claims are sua sponte DISMISSED WITHOUT PREJUDICE
under Fed. R. Civ. P. 12(b)(1) to the extent they are based on disability
discrimination;
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The pending motions at Docket No. 77 and Docket No. 86 are DENIED
AS MOOT; and
Dated:
This case is dismissed in its entirety.
April 11, 2016
Denver, Colorado
/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge
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