Jenkins v. Salazar

Filing 16

MEMORANDUM DECISION AND ORDER Granting 13 MOTION to Dismiss filed by Kenneth L Salazar. This case is dismissed in its entirety with prejudice. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

AMBER D. JENKINS,
Case No. 1:12-CV-00315-EJL
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
SALLY JEWELL, Secretary of the U.S.
Department of Interior, in her official
capacity,
Defendant.

INTRODUCTION
Pending before the Court in the above-entitled matter is the Defendant’s Motion to
Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1). The time for filing
responsive briefing has passed and the matter is ripe for the Court’s consideration. Having
fully reviewed the record herein, the Court finds that the facts and legal arguments are
adequately represented in the briefs and record. Accordingly, and in the interest of
avoiding further delay, and because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument, the Motion shall be decided on
the record before this Court without oral argument.

MEMORANDUM DECISION AND ORDER - 1

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Amber D. Jenkins filed the Complaint in this matter against the Secretary
of the Department of the Interior, arguing she was unlawfully discriminated against
because she was not hired back following her pregnancy. (Dkt. 1, 7.) The claim appears
to raise a cause of action asserting a violation of Title VII of the Civil Rights Act of 1964,
as amended by the Pregnancy Discrimination Act (42 U.S.C. § 2000e(k)). (Dkt. 2, 7.) The
Defendant has filed the instant Motion to Dismiss arguing jurisdiction is lacking in this
case because the United States has not waived sovereign immunity. (Dkt. 13.) The
Plaintiff has not filed any response to the Motion and the time for doing so has expired.
STANDARD OF LAW
Federal courts are courts of limited jurisdiction and, until proven otherwise, cases
lie outside the jurisdiction of the court. Kokkonen v. Guardian Life Ins. Co. of America,
511 U.S. 375, 377–78 (1994). A Rule 12(b)(1) jurisdictional attack may be either facial or
factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
The attack may be a “facial” one where the defendant attacks the sufficiency of the
allegations supporting subject matter jurisdiction. See Thornhill Publ'g Co., Inc. v.
General Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). In a facial attack, the
complaint is challenged as failing to establish federal jurisdiction, even assuming all the
allegations are true and construing the complaint in the light most favorable to plaintiff.
See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004); see also Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1988) (When considering a “facial” attack
MEMORANDUM DECISION AND ORDER - 2

made pursuant to Rule 12(b)(1), courts consider the allegations of the complaint to be true
and construe them in the light most favorable to the plaintiff.).
By contrast, in a factual attack, the challenger provides evidence that an alleged
fact is false resulting in a lack of subject matter jurisdiction. Safe Air for Everyone, 373
F.3d at 1039. A “factual” attack challenges “the existence of subject matter jurisdiction in
fact.” Thornhill, 594 at 733. The Defendant in this case has raised a factual attack to
subject matter jurisdiction. (Dkt. 13.)
In these circumstances, the allegations are not presumed to be true and “the district
court is not restricted to the face of the pleadings, but may review any evidence, such as
affidavits and testimony, to resolve factual disputes concerning the existence of
jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). “Once the
moving party has converted the motion to dismiss into a factual motion by presenting
affidavits or other evidence properly brought before the court, the party opposing the
motion must furnish affidavits or other evidence necessary to satisfy its burden of
establishing subject matter jurisdiction.” Savage v. Glendale Union High Sch., 343 F.3d
1036, 1039 n. 2 (9th Cir. 2003). When considering a factual attack on subject matter
jurisdiction, “the district court is ordinarily free to hear evidence regarding jurisdiction
and to rule on that issue prior to trial, resolving factual disputes where necessary.”
Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983) (citing Thornhill, 594
F.2d at 733). “[N]o presumptive truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the trial court from evaluating for
MEMORANDUM DECISION AND ORDER - 3

itself the merits of jurisdictional claims .” Thornhill, 594 F.2d at 733 (quoting Mortensen
v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)).
Jurisdictional dismissal is “exceptional” and warranted only “‘where the alleged
claim under the constitution or federal statutes clearly appears to be immaterial and made
solely for the purpose of obtaining federal jurisdiction or where such claim is wholly
insubstantial and frivolous.’” Safe Air for Everyone, 373 F.3d at 1039 (quoting Bell v.
Hood, 327 U.S. 678, 682–83 (1948)). However, “[t]he relatively expansive standards of a
12(b)(1) motion are not appropriate for determining jurisdiction...where issues of
jurisdiction and substance are intertwined. A court may not resolve genuinely disputed
facts where ‘the question of jurisdiction is dependent on the resolution of factual issues
going to the merits.’” Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)
(quoting Augustine, 704 F.2d at 1077). In such a case, “the jurisdictional determination
should await a determination of the relevant facts on either a motion going to the merits
or at trial.” Augustine, 704 F.2d at 1077 (citing Thornhill, 594 F.2d at 733-35).
DISCUSSION
In June of 2006, Plaintiff began working as a contract employee at the National
Interagency Fire Center’s Casual Payment Center (CPC), an Interior Department Agency
of the Bureau of Land Management (BLM). Plaintiff alleges she was told that she would
be hired and promoted but her training and promised promotion were delayed after she
returned from maternity leave. Plaintiff makes various allegations concerning statements
made by Kristy Valentine, including that it would be difficult for Plaintiff to go through
MEMORANDUM DECISION AND ORDER - 4

training “with an infant in the office.” Plaintiff further contends that she had favorable
performance appraisals prior to her pregnancy but after she informed Ms. Valentine that
she was pregnant and would be taking maternity leave she was not rehired for her
position. Plaintiff claims, among other things, that her employment was cancelled and she
was not rehired for her position because of her new pregnancy and not, as her employer
told her, due to staffing needs and budgetary constraints.
The materials submitted with her Amended Complaint show that Plaintiff filed a
discrimination claim against CPC which was dismissed. (Dkt. 7-1.) Plaintiff then filed a
formal complaint with the BLM which was also dismissed for lack of standing finding
Plaintiff was not a federal employee but, instead, an employee of ATA Services, Inc.
(ATA) - a private sector, non-governmental organization. (Dkt. 7-1.) Thereafter, Plaintiff
initiated this action.
1.

Subject Matter Jurisdiction
Defendant’s Motion to Dismiss asserts that because the United States has not

waived its sovereign immunity as to suits by non-employees, the Plaintiff’s claim against
the Interior Department must be dismissed. (Dkt. 13.) The Plaintiff has not responded to
the Motion and the time for doing so has passed.1 The Court has considered the merits of
the Motion and finds as follows.

1

Local Civil Rule 7.1(e) states that the failure to timely file any response documents required by
the rule in a timely manner may be “deemed to constitute a consent to ... the granting of said motion....”
MEMORANDUM DECISION AND ORDER - 5

“Absent a waiver, sovereign immunity shields the Federal Government and its
agencies from suit.” FDIC v. Meyer, 510 U.S. 471, 475 (1994). “Section 717 of Title VII
protects federal employees and provides an express waiver of sovereign immunity in suits
against the government for discriminatory employment practices.” Munoz v. Mabus, 630
F.3d 856, 861 (9th Cir. 2010) (citing 42 U.S.C. §§ 2000e–5(f), 2000e–16). This waiver is
limited, however, to actions for damages brought by federal employees. See Lopez v.
Johnson, 333 F.3d 959, 961 (9th Cir. 2003); 42 U.S.C. § 2000e-16(c).
The Ninth Circuit has recognized two testes used to determine whether an
individual was a federal employee: the common law hybrid test and the joint employment
test. See Lopez, 333 F.3d at 962. The common law hybrid test places the greatest
emphasis on whether the government had “the right to control and direct the work of the
plaintiff, not only as to the result to be achieved, but also as to the details by which that
result is achieved.” See id. at 963. Primary factors to be considered under this test include:
whether the government is involved in the plaintiff's training, whether the government
supervises the plaintiff’s work performance, whether the plaintiff is performing an
integral part of the government's business, whether the decision to terminate the plaintiff
was solely within the power of the contracting employer, and whether the government
paid the plaintiff's wages and social security taxes and provided vacation time. Secondary
factors include whether the plaintiff worked on government premises, whether the
plaintiff used governmental equipment, and whether the government is involved in the
means and manner of the plaintiff’s work.
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The joint employment test asks “whether ‘one employer [,] while contracting in
good faith with an otherwise independent company, has retained for itself sufficient
control of the terms and conditions of employment of the employees who are employed
by the other employer.’” Id. at 963 (discussing Redd v. Summers, 232 F.3d 933, 938 (D.C.
Cir. 2000).
Under either test, the critical question is which entity maintained control over the
Plaintiff in her employment. In this case, the Court finds that ATA retained primary
control over Plaintiff’s employment and, therefore, Plaintiff was not a federal employee.
In her Amended Complaint Plaintiff concedes that she was a contract employee of
ATA at the time period in question, ATA had contracted with BLM to provide staffing
for CPC, all contract employees were employees of ATA, under the contract ATA
retained supervisory authority over the contract employees, and ATA sent Plaintiff the
notification that she was not offered a position. (Dkt. 7.)
In support of its Motion to Dismiss, the Defendant has supplied the Affidavit of
Ms. Valentine. (Dkt. 13-2.)2 Ms. Valentine is an employee of BLM as the Manager of
CPC and the Project Inspector for the contract between the BLM and ATA.2 Her
2

Under Rule 12(b)(1), a motion to dismiss may attack “the substance of the complaint’s
jurisdictional allegations.” Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir. 2007) (citing St. Clair
v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)). “Under such circumstances, the court may expand its
review and ‘rely on affidavits or any other evidence properly before the court.’” Id. (citations and
quotations omitted).
2

Plaintiff’s Amended Complaint states that she reported directly to Ms. Valentine, a BLM
employee, until sometime in 2008 when ATA was awarded the contract to provide staffing at CPC and,
thereafter, Plaintiff no longer was supervised by Ms. Valentine. (Dkt. 7.) Plaintiff further alleges that her
August 24, 2010 performance appraisal was signed by Ms. Valentine. (Dkt. 7.) A review of the
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Affidavit confirms that ATA had contracted with the BLM to provide staffing services at
the CPC during the relevant time. Under this arrangement, ATA stationed an on-site
supervisor at the CPC to oversee the work of the contract employees, finalize
performance appraisals, provide ratings, and write individual comments on the
employees’ evaluations. (Dkt. 7-1, 13-2.) Contract employees contacted the ATA
supervisor if they were unable to work a scheduled shift. Further, BLM did not have the
authority to terminate the employment of ATA employees. (Dkt. 13-2.)
Attached to Ms. Valentine’s Affidavit is a portion of the contract between ATA
and the BLM. (Dkt. 13-2, Ex. 1.) Under the contract, the contract employees like the
Plaintiff were required to clearly indicating that they were a contractor employee in all
correspondence and by wearing identification and affixing name plates to there offices.
(Dkt. 13-2, Ex. 1.) Further, the contract provides that contract employees were not to
attend Government employee meetings, unless notified, and Government employees were
not to participate in contractor employment interviews, unless specifically approved.
(Dkt. 13-2, Ex. 1.) Notably, the contract states:
Supervision shall be the responsibility of the Contractor. Any Contract
employee problems in performance, attendance, or other personal problems
shall be referred to the On-Site Supervisor to be referred on to the
Contractor.

performance appraisal attached to the Amended Complaint, however, does not have any signatures on it.
(Dkt. 7.) The appraisal lists Ms. Valentine as the CPC center manager but also lists the ATA lead.
Plaintiff has not responded to the Motion or supplied any other information or supporting materials to
rebut the Defendant’s evidence that at the time period in question the Plaintiff was not supervised by
anyone at BLM. The Court finds that the evidence in the record establishes that supervision of the
Plaintiff was done by ATA.
MEMORANDUM DECISION AND ORDER - 8

(Dkt. 13-2, Ex. 1 at B.14(a).) Again, the On-Site Supervisor was provided by ATA, not
the Government Agency. Further, contract employees’ time records were maintained by
ATA. Although the Government was obligated to provide the necessary office space and
equipment needed for the contract employees to perform their work, ATA was liable for
all loss or damage to any such space or equipment. (Dkt. 13-2, Ex. 1 at B.21.)
Based on the foregoing, the Court finds that Plaintiff was a contract employee of
ATA and not an employee of the federal government. The contract between BLM and
ATA for staffing services at CPC evidences that the control over the work of the contract
employees such as Plaintiff was retained by ATA. Ms. Valentine’s Affidavit further
shows that ATA was responsible for controlling, supervising, and managing the Plaintiff.
Furthermore, ATA retained the authority to complete performance reviews and terminate
a contract employee. In this case, it was ATA who tendered the letter to the Plaintiff
notifying her that she would not be offered a position. (Dkt. 7-1.) The Department of
Interior Office of Civil Rights findings further shows that the control over Plaintiff’s
employment as a contract employee of ATA was retained by ATA. (Dkt. 7-1.)
The Court does note that under the contract the Government reserved the right to
refuse any contractor employees recommended or referred by the Contractor and had the
ability to require the contractor to immediately remove an individual who did not conform
to the contract requirements or jeopardize successful performance of the contract. (Dkt.
13-2, Ex. 1 at B.14(d), B.15.) These retained rights by the Government do not change the
fact that ATA retained primary control over the Plaintiff as its employee. The Court
MEMORANDUM DECISION AND ORDER - 9

concludes that neither the BLM nor CPC were a joint-employer with ATA and, therefore,
they are not subject to liability under Title VII. See, e.g., Lopez, 333 F.3d at 962-63
(citing Redd, 232 F.3d at 936-38). Thus, the United States did not waive sovereign
immunity and the Motion to Dismiss is granted.
“Ordinarily, a case dismissed for lack of subject matter jurisdiction should be
dismissed without prejudice so that a plaintiff may reassert his claims in a competent
court.” Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988). Where, “however, the
bar of sovereign immunity is absolute: no other court has the power to hear the case, nor
can the [plaintiffs] redraft their claims to avoid the exceptions to the [statute],” the action
may be dismissed with prejudice. Id. That is the case here.
The claims raised in this case shall be dismissed with prejudice because there is no
subject matter jurisdiction over these claims in any federal court due to sovereign
immunity. Frigard, 862 F.2d at 204 (Where the jurisdictional bar is absolute, dismissal
with prejudice is appropriate.). Thus, amending the claims would be futile and dismissal
with prejudice is proper.
2.

Leave to Amend
Federal Rule of Civil Procedure 15(a) provides that after a responsive pleading has

been filed, a party may amend their pleading only by leave of the court or written consent
of the adverse party. Such leave should freely be given when justice so requires. Fed. R.
Civ. P. 15(a)(2). “Liberality in granting a plaintiff leave to amend is subject to the
qualification that the amendment not cause undue prejudice to the defendant, is not
MEMORANDUM DECISION AND ORDER - 10

sought in bad faith, and is not futile. Additionally, the district court may consider the
factor of undue delay.” Bowles v. Reade, 198 F.3d 752, 757-58 (9th Cir. 1999) (citation
omitted).
Under the circumstances here, justice does not require granting leave to amend.
Any amendment would be futile as there is no waiver of sovereign immunity. See
Shermoen v. United States, 982 F.2d 1312, 1319-20 (9th Cir. 1992); Pink v. Modoc Indian
Health Project, Inc., 157 F.3d 1185, 1189 (9th Cir. 1998). Further, the Plaintiff was
afforded an opportunity to amend her Complaint which she took advantage of by filing
supplemental materials. (Dkt. 7-1.)
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Defendant’s Motion
to Dismiss (Dkt. 13) is GRANTED and this case is DISMISSED IN ITS ENTIRETY
WITH PREJUDICE.

DATED: February 20, 2014

Honorable Edward J. Lodge
U. S. District Judge

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