Anoruo v. Shinseki

Filing 22

ORDER Granting with prejudice 9 Motion to Dismiss. FURTHER ORDERED that 12 Motion for Leave to File a SAC is DENIED. The Clerk is directed to close this matter. Signed by Judge Miranda M. Du on 8/23/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOSEPH CHIDI ANORUO,
Plaintiff,

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ORDER

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Case No. 2:11-cv-02070-MMD-CWH

v.
ERIC K. SHINSEKI, Secretary of Veteran
Affairs,

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(Def.’s Motion to Dismiss – dkt. no. 9)
(Plf.’s Motion for Leave to File a Second
Amended Complaint – dkt. no. 12)

Defendant.

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I.

SUMMARY

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Before the Court is Defendant Shinseki’s Motion to Dismiss (dkt. no. 9), and

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Plaintiff’s Motion for Leave to File a Second Amended Complaint (dkt. no. 12). For

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reasons discussed below, Defendant’s Motion is granted with prejudice and Plaintiff’s

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Motion is denied.

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II.

BACKGROUND

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Pro se Plaintiff Joseph Anoruo is a pharmacist and employee1 of the Department

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of Veteran Affairs (“DVA”). On December 22, 2011, Plaintiff filed a Complaint alleging

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that Defendant discriminated against him on the basis of national origin in violation of

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It is unclear from the facts provided in the Complaint whether Plaintiff is a current
or former employee of the DVA.

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Title VII of the Civil Rights Act of 1964. (Dkt. no. 1.) Plaintiff alleges that while employed

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with the DVA, he experienced three instances of discrimination: (1) the DVA denied his

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application for the Education Department Reduction Program; (2) Plaintiff was not

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selected for a pharmacy supervisory position at the Mike O’Callaghan Federal Hospital;

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and (3) Plaintiff experienced discrimination when authorities at the DVA closed down

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Plaintiff’s pharmacy infectious disease clinic. Plaintiff alleges that these actions amount

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to disparate treatment and retaliation under Title VII.

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On March 30, 2012, Defendant filed a Motion to Dismiss, claiming that all of

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Plaintiff’s allegations must be dismissed because Plaintiff has not exhausted his

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administrative remedies. Plaintiff filed a hybrid Response and Motion for Leave to File a

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Second Amended Complaint (dkt. no. 12). In his Motion, Plaintiff states that he intends

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to “reformulate the content and form” of his First Amended Complaint (“FAC”). (Dkt. no.

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12 at 7.)

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Complaint (“SAC”) contains two time-barred claims and two additional claims that are

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also without merit.

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III.

Defendant counters by arguing that Plaintiff’s proposed Second Amended

DISCUSSION

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A.

Legal Standard

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide

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“a short and plain statement of the claim showing that the pleader is entitled to relief.”

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Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While

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Rule 8 does not require detailed factual allegations, it demands more than “labels and

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conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft v.

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Iqbal, 556 US 662, 678 (2009) (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

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“Factual allegations must be enough to rise above the speculative level.” Twombly, 550

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U.S. at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient

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factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at

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678 (internal citation omitted).
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In Iqbal, the Supreme Court clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, a district court must accept as true all

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well-pled factual allegations in the complaint; however, legal conclusions are not entitled

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to the assumption of truth. Id. at 679. Mere recitals of the elements of a cause of action,

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supported only by conclusory statements, do not suffice. Id. at 678. Second, a district

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court must consider whether the factual allegations in the complaint allege a plausible

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claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s complaint

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alleges facts that allow a court to draw a reasonable inference that the defendant is

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liable for the alleged misconduct. Id. at 678. Where the complaint does not permit the

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court to infer more than the mere possibility of misconduct, the complaint has “alleged–

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but not shown–that the pleader is entitled to relief.” Id. at 679 (internal quotation marks

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omitted). When the claims in a complaint have not crossed the line from conceivable to

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plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570.

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A complaint must contain either direct or inferential allegations concerning “all the

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material elements necessary to sustain recovery under some viable legal theory.”

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Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,

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1106 (7th Cir. 1989) (emphasis in original)).

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B.

Plaintiff Has Failed to Exhaust his Administrative Remedies

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“To establish federal subject matter jurisdiction, a plaintiff is required to exhaust

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his or her administrative remedies before seeking adjudication of a Title VII claim.”

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Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002). “Exhaustion of administrative

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remedies under Title VII requires that the complainant file a timely charge with the

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EEOC, thereby allowing the agency time to investigate the charge.” Id.

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In order to exhaust administrative remedies, federal employees like Plaintiff must

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first consult with an Equal Employment Opportunity (“EEO”) counselor within forty-five

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(45) days of the alleged discriminatory incident(s). If the matter is not resolved, a plaintiff

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must file a formal administrative complaint with the agency that allegedly discriminated

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against him within fifteen (15) days of receiving notice from the EEO counselor. See 29
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C.F.R. § 1614.105(a), (d); 29 C.F.R. § 1614.106(a), (b). Failure to comply with these

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requirements is “fatal to a federal employee’s discrimination claim.” Lyons, 307 F.3d at

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1105 (citation omitted).

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The three allegedly discriminatory events described in Plaintiff’s FAC occurred on

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May 24, 2004 (denial of Plaintiff’s application for the Education Department Reduction

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Program), September 9, 2007 (closure of a pharmacy infectious disease clinic), and May

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18, 2009 (non-selection for a pharmacy supervisory position at the Mike O’Callaghan

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Federal Hospital). All parties agree that Plaintiff did not contact an EEO officer until July

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30, 2010, well outside the forty-five day required timeframe.

See 29 C.F.R. §

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1614.105(a)(1). Plaintiff argues that the 45-day window to consult with an EEO officer

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should be measured from the date that the DVA cut off all communications with him,

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which was June 24, 2010.

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runs from the date of the allegedly discriminatory act, not the last date of communication

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with the allegedly discriminatory person or agency. See id.

However, the timeframe for corresponding with the EEO

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Nor is Plaintiff entitled to equitable tolling of his claims. Plaintiff argues that he is

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entitled to equitable tolling because the DVA actively misled him regarding whether it

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would provide him an internal remedy. (Dkt. no. 12 at 5.) The Ninth Circuit recognizes

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equitable tolling when (1) the defendant has engaged in wrongful conduct; or (2)

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extraordinary circumstances make it impossible for the plaintiff to timely assert a claim.

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Torres v. County of Lyon, No. 3:07-cv-538, 2009 WL 905046, at *5-6 (D. Nev. March 31,

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2009). “‘Wrongful conduct’ consists of a defendant’s fraudulent concealment of relevant

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facts without any fault or lack of due diligence by the plaintiff.” Id. at 5 (citation omitted).

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Plaintiff fails to plead any facts giving rise to an inference that the DVA fraudulently

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concealed whether it would provide him with an internal remedy. Further, Plaintiff’s

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decision not to contact an EEO officer until 2010 demonstrates a lack of due diligence on

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his part. The allegations in the FAC demonstrate that Plaintiff had been in discussion

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with various officials at DVA for 7-8 years before bringing this lawsuit. Despite this,

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Plaintiff did not contact an EEO counselor until June 2010.
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For these reasons, Plaintiff’s Title VII claims against Defendant are dismissed with
prejudice.

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C.

Allowing Plaintiff to file a SAC Would be Futile

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In his proposed SAC, Plaintiff alleges what are essentially the same two Title VII

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causes of action as he alleged in his FAC. (Dkt. no. 12 at 14.) As such, allowing Plaintiff

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to allege the two Title VII causes of action included in his proposed SAC would be futile.

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Although leave to amend a complaint is liberally granted under Fed. R. Civ. P. 15, “leave

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to amend need not be granted if the proposed amended complaint would subject to

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dismissal.” Bellanger v. Health Plan of Nev., Inc., 814 F. Supp. 914, 916 (D. Nev. 1992)

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(citing United Union of Roofers, Waterproofers, and Allied Trades No. 40 v. Insurance

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Corp. of Am., 919 F.2d 1398 (9th Cir.1990); see also Johnson v. Am. Airlines, 834 F.2d

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721 (9th Cir. 1987) (stating that “courts have discretion to deny leave to amend a

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complaint for ‘futility’, and futility includes the inevitability of a claim’s defeat on summary

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judgment.”)

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In his proposed SAC, Plaintiff adds two additional causes of action: (1) breach of

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employment contract between Plaintiff and the United States amounting to $62,518.94 in

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damages; and (2) a common law theory of unjust enrichment.

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The unjust enrichment claim is futile because the United States has not waived its

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sovereign immunity for quasi-contractual claims such as unjust enrichment. See Am.

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Cargo Transport, Inc. v. United States, No. CO5-393, 2007 WL 3171423, at *4 (W.D.

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Wash. Oct. 26, 2007) (citing as grounds for dismissal of a plaintiff’s unjust enrichment

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claim the fact that “the government has not waived its sovereign immunity as to causes

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of action based on contracts implied by law, i.e., quasi-contract . . . .”).

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The Court does not have jurisdiction over the proposed breach of contract claim.

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This is because the Court of Federal Claims has jurisdiction over claims against the

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United States for more than $10,000. Munoz v. Mabus, 630 F.3d 856, 864 (9th Cir.

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2010). It is true that Plaintiff may have a colorable breach of contract claim. Defendant

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argues that this cause of action is time-barred. Breach of contract claims against the
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United States are governed by a six year statute of limitations.

28 U.S.C. § 2501

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(“[e]very claim of which the United States Court of Federal Claims has jurisdiction shall

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be barred unless the petition thereon is filed within six years after such claim first

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accrues.”) Plaintiff alleges that the breach of contract occurred in 2010. (Dkt. no. 12 at ¶

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50.) Defendant argues that this was clearly not the case based on Plaintiff’s Complaint.

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On review, the Court disagrees. It is unclear from the Complaint when the date of the

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alleged breach of contract occurred. However, it would be improper for Plaintiff to bring

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such a claim in this Court. The proper venue for this claim is the Court of Federal

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Claims.
For these reasons, it would be futile for Plaintiff to file any of the causes of actions

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alleged in his proposed SAC in this Court. The Motion is accordingly denied.

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III.

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CONCLUSION
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss (dkt. no. 9) is

GRANTED with prejudice.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File a SAC (dkt.
no. 12) is DENIED.
The Clerk of the Court is directed to close this matter.
DATED THIS 23rd day of August 2012.

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UNITED STATES DISTRICT JUDGE

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