McGee v. Donahoe

Filing 166

ORDER granting in part and denying in part ECF No. 106 Motion to Dismiss. Signed by Judge Richard F. Boulware, II on 10/10/2017. (Copies have been distributed pursuant to the NEF - KR)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 LOLA MCGEE, 8 Plaintiff, 9 10 Case No. 2:13-cv-01426-RFB-VCF v. ORDER Defendant’s Motions to Dismiss (ECF No. 106) PATRICK R. DONAHOE, et al. 11 Defendants. 12 I. 13 This case is before the Court on a renewed Motion to Dismiss (ECF No. 106) filed by 14 15 Defendant USPS Postmaster General Megan J. Brennan. For the reasons stated below, the Motion to Dismiss is GRANTED in part and DENIED in 16 17 INTRODUCTION part. II. 18 BACKGROUND 19 McGee raises the following claims in her Amended Complaint (ECF No. 8), against the 20 Postmaster General and against individual Defendant employees of the United States Postal 21 Service (USPS), in their official capacities: a.) a hostile work environment claim based on race 22 discrimination under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; b.) a race 23 discrimination claim under Title VII; c.) a race discrimination claim under, 42 U.S.C. § 1981; d.) 24 a gender discrimination claim under Title VII; e.) an Age Discrimination in Employment Act 25 (ADEA) claim, 29 U.S.C. § 62 et seq.; f.) a retaliation claim under Title VII; and g.) a disability 26 discrimination claim under the Rehabilitation Act, 29 U.S.C. § 794. 27 /// 28 /// 1 III. FACTUAL ALLEGATIONS 2 The following factual allegations are taken from Plaintiff’s complaint. Lola McGee is an 3 African-American woman and is a former federal employee with over 11 years of federal 4 employment. Most recently, McGee worked at the USPS as a Supervisor and Acting Manager in 5 Customer Service. On September 10, 2009, following alleged discrimination by the USPS, Ms. 6 McGee was allegedly forced into medical disability retirement. 7 McGee alleges that she suffers from major depression, post-traumatic stress disorder, 8 anxiety disorder, panic disorder, and peripheral sensory neuropathy. McGee claims that various 9 employees and supervisors at the USPS retaliated and discriminated against her from 10 approximately 2004 to 2009 based on her disability, race, age, and gender. As a result, McGee 11 suffered emotional distress and adverse health consequences. 12 In this case, the Court ordered limited jurisdictional discovery to determine whether 13 equitable tolling should apply to McGee’s claims, in response to Defendant’s original Motion to 14 Dismiss which argued lack of subject matter jurisdiction. See Young v. U.S., 769 F.3d 1047, 1052 15 (9th Cir. 2014) (“Allegations of jurisdictional facts . . . are not afforded presumptive truthfulness; 16 on a motion to dismiss for lack of subject matter jurisdiction, the court may hear evidence of those 17 facts and resolve factual disputes where necessary.”) (citations and quotation marks omitted).; see 18 also Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008) (“[Jurisdictional discovery] may 19 be appropriately granted where pertinent facts bearing on the question of jurisdiction are 20 controverted or where a more satisfactory showing of the facts is necessary.”) (citations and 21 internal quotation marks omitted). The Court finds the following facts to be undisputed, based on 22 this jurisdictional discovery: 23 • On November 1, 2008, McGee filed her first EEO complaint, in which she alleged 24 various counts of discrimination and workplace retaliation dating back to 2005. 25 The National EEO Investigative Services Office (NEEOISO) of USPS dismissed 26 all claims occurring prior to July 10, 2008, as untimely. Plaintiff’s remaining 27 claims were for harassment and hostile work environment, charging of sick leave 28 hours, and non-selection for a managerial position. On August 11, 2009, -2- 1 NEEOISO issued its Final Agency Decision, finding no discrimination regarding 2 the 2008 complaint. 3 • On May 27, 2009, Plaintiff filed a second EEO complaint, alleging discrimination 4 based on sex, physical and mental disability, and retaliation for denial of a lateral 5 transfer requested on April 9, 2009. On October 21, 2009, the NEEOISO issued a 6 Final Agency Decision finding no discrimination regarding the 2009 complaint. 7 • within thirty days, but did not file appeals. 8 9 McGee was advised, in each final decision, of her right to appeal the EEO decisions • Between August 2009 and August 2011, McGee sent fifteen letters related to or 10 regarding her claims against the USPS, to various parties, including the NEEOISO, 11 her district manager, and Senator Harry Reid’s office. 12 • almost two years past the 30-day deadline to appeal. 13 14 McGee filed her appeal of the 2008 and 2009 EEO decisions on September 6, 2011, • On November 9, 2012, the EEOC dismissed McGee’s appeal, finding that it was 15 untimely filed. The EEOC noted that McGee had argued that the reason for her 16 delay was because she was “severely ill and in mental turmoil.” However, the 17 EEOC found that this explanation was too general to justify a finding of 18 incapacitation that would allow an untimely appeal. 19 • On December 4, 2012, McGee requested reconsideration of the EEOC’s denial of 20 her appeal. On reconsideration, McGee argued that her mental state was very 21 debilitating, and that she was unable to keep up with her appeals. She provided a 22 letter from her treating psychiatrist dated November 20, 2012, in which the 23 psychiatrist states that McGee had been his patient since May 5, 2010. The 24 psychiatrist’s letter stated that McGee was unable to file her appeal because of her 25 depression. 26 • On May 31, 2013, the EEOC denied McGee’s request for reconsideration. The 27 EEOC found that McGee had not shown that she was so incapacitated by her 28 condition that she was unable to meet the time limits. The EEOC relied on the fact -3- 1 that McGee had sent letters to the USPS and the USPS’ National Equal 2 Employment Office on September 12, 2009, November 11, 2009, and October 5, 3 2010, which the EEOC said demonstrated that she was capable of addressing her 4 discrimination claims during that period. 5 McGee filed her federal complaint on August 8, 2013 (ECF No. 1), and filed her Amended 6 Complaint on February 26, 2014. (ECF No. 8). Federal Defendant filed a Motion to Dismiss on 7 July 28, 2014, arguing that McGee’s Complaint should be dismissed because she had not 8 exhausted her administrative remedies and the Court therefore lacks subject matter jurisdiction 9 over the case. (ECF No. 18). On September 11, 2015, the Court held a hearing on the Motion to 10 Dismiss and denied it without prejudice, to allow the parties to engage in limited discovery 11 addressing what claims Plaintiff previously raised in filings with the EEOC, and whether equitable 12 tolling should be applied to Plaintiff’s delayed filings of appeals to the EEOC rulings. (ECF No. 13 57). Federal Defendant renewed its Motion to Dismiss on May 16, 2016. (ECF No. 106). McGee 14 filed her Response on August 5, 2016. (ECF No. 136). Defendant filed a Reply on August 15, 15 2016. (ECF No. 138). The Court held a hearing on the renewed Motion to Dismiss on December 16 19, 2016. (ECF No. 144). 17 18 19 III. LEGAL STANDARD A. Motion to Dismiss 20 An initial pleading must contain “a short and plain statement of the claim showing that the 21 pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The court may dismiss a complaint for failing to 22 state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a motion to 23 dismiss, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and 24 are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Sec. Servs., 25 Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted). 26 To survive a motion to dismiss, a complaint need not contain “detailed factual allegations,” 27 but merely asserting “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause 28 of action’” is not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic -4- 1 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it 2 contains “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 3 face,” meaning that the court can reasonably infer “that the defendant is liable for the misconduct 4 alleged.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In sum, at the 5 motion to dismiss stage, “[t]he issue is not whether a plaintiff will ultimately prevail but whether 6 [he] is entitled to offer evidence to support the claims.” Cervantes v. City of San Diego, 5 F.3d 7 1273, 1274-75 (9th Cir. 1993) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (emphasis 8 in original). 9 “As a general rule, a district court may not consider any material beyond the pleadings in 10 ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) 11 (citation and internal quotation marks omitted). If the district court relies on materials outside the 12 pleadings submitted by either party to the motion to dismiss, the motion must be treated as a Rule 13 56 motion for summary judgment. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). Two 14 exceptions to this rule exist. First, the court may consider extrinsic material “properly submitted 15 as part of the complaint,” meaning documents either attached to the complaint or upon which the 16 plaintiff’s complaint necessarily relies and for which authenticity is not in question. Lee, 250 F.3d 17 at 688 (citation omitted). Second, the court “may take judicial notice of matters of public record.” 18 Id. (citation and internal quotation marks omitted). 19 20 21 IV. DISCUSSION – MOTION TO DISMISS A. Failure to Administratively Raise Claims 22 Defendant first argues that McGee failed to exhaust administrative claims not specifically 23 addressed in her 2008 and 2009 EEO Complaints. The 2008 EEO Final Agency Decision stated 24 that it investigated and dismissed the following allegations: “From July 12, 2008, the complainant 25 has been subjected to hostile work environment harassment regarding working conditions, taken 26 off higher level details assignments, treated in a disrespectful, cruel, and rude manner, and received 27 threats from management officials. On or around September 8, 2008, the complainant became 28 aware that she had been charged 32 hours of sick leave. Since July 12, 2008 the complainant has -5- 1 not been selected for the position of Manager, Customer Services, and on December 9, 2008, the 2 complainant was informed that she was not selected for the Manager’s position at King’s Station. 3 The complainant has not been paid higher level pay since August 22, 2008. During December 4 2008, Management requested that complainant’s badge access . . . be removed.” (ECF No. 106-1, 5 at 4). 6 The 2009 EEO final agency decision states that it investigated and dismissed the following 7 allegations: discrimination based on sex, retaliation for prior EEO activity, physical disability, and 8 mental disability, when on or around April 8, 2009, complainant was denied a lateral transfer to 9 the city of Las Vegas and sent back to North Las Vegas. (ECF No. 106-1, at 62.) 10 Defendant does not specifically articulate which of McGee’s claims, as alleged in the 11 Amended Complaint, were not raised in her administrative complaints. “[S]ubstantial compliance 12 with the presentment of discrimination complaints to an appropriate administrative agency is a 13 jurisdictional prerequisite.” Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001) 14 (emphasis in original). However, “The district court has jurisdiction over any charges of 15 discrimination that are ‘like or reasonably related’ to the allegations in the EEOC charge, or that 16 fall within the ‘EEOC investigation which can reasonably be expected to grow out of the charge 17 of discrimination.” Id. (citing Deppe v. United Airlines, 217 F.3d 1262, 1267 (9th Cir. 2000)). 18 The Court finds that all of McGee’s claims are “like or reasonably related” to the 19 allegations in McGee’s EEOC charges, and that the claims therefore do not fail on the basis of not 20 having been raised at the administrative level. However, the Court now proceeds to an analysis of 21 whether those claims were properly administratively exhausted. 22 23 24 B. Administrative Exhaustion and Time Barring – Title VII and Rehabilitation Act Claims i. Legal Standard 25 “In order to bring a Title VII claim in district court, a plaintiff must first exhaust her 26 administrative remedies.” Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001) (citations 27 omitted). “[A]bandonment or failure to cooperate in the administrative process prevents 28 exhaustion and precludes judicial review.” Id. at 708. In order to file a Rehabilitation Act lawsuit, -6- 1 a plaintiff must also file a discrimination charge with the EEOC. 42 U.S.C. § 12117(a); 42 U.S.C. 2 2000(e)-16. Rehabilitation Act claims are analyzed under the same law as Title VII claims. See 3 Lopez v. Johnson, 333 F.3d 959, 961 (9th Cir. 2003). ii. Analysis 4 5 Defendant argues that McGee’s claims are time barred, because she did not file her civil 6 action within 90 days of the USPS’ final decision on her EEO claims, nor did she timely appeal 7 those decisions. 8 In issuing its final agency decisions in 2009, NEEIOSO advised McGee that she had the 9 right to appeal the final decisions within 30 calendar days of receipt of the decisions, or 10 alternatively, to file a civil action within 90 calendar days of receipt of the decisions. McGee failed 11 to timely appeal or file a civil action within the limitations period. On August 11, 2009, NEEOISO 12 issued its Final Agency Decision as to McGee’s 2008 complaint, finding no discrimination. On 13 October 21, 2009, the NEEOISO issued a Final Agency Decision as to McGee’s 2009 complaint, 14 finding no discrimination. McGee filed her appeal of the 2008 and 2009 EEO complaint decisions 15 on September 6, 2011, almost two years past the 30-day deadline to appeal. Therefore, McGee’s 16 Title VII and Rehabilitation Act claims have been brought outside of the statute of limitations. 17 McGee has requested that the Court equitably toll the statute of limitations from October 18 21, 2009, the date of her final denial by the EEO, until September 2011, when she filed her appeal. 19 A final decision on that appeal was issued on May 31, 2013, and Plaintiff filed her federal 20 complaint on August 8, 2013, within 90 days of that final decision on appeal. Generally, a litigant 21 seeking equitable tolling bears the burden of establishing two elements: (1) that he has been 22 pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. See 23 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The “invocation of the equitable tolling doctrine 24 is not appropriate in cases in which the litigant has failed to meet a deadline as a result of ‘garden 25 variety’ neglect.” Washington v. Garrett, 10 F.3d 1421, 1437 (9th Cir. 1993). 26 Plaintiff argues that she was incapacitated by illness and unable to file her appeal until 27 September 2011. Jurisdictional discovery was conducted in this case, and the record reflects that 28 during the time of McGee’s alleged incapacitation, in July 2010, her treating doctor, Dr. Reed, -7- 1 provided a Psychiatric/Psychological Impairment Questionnaire in response to a request from her 2 attorneys. In that questionnaire, in response to the question, “Can your patient manage benefits in 3 his or her own best interest?,” Dr. Reed answered, “Yes.” Dr. Reed testified in her deposition that 4 Plaintiff was incapable of taking care of her personal needs “during the time when she was going 5 through the panic attacks, was hospitalized for the heart palpitations . . . they was ruling out if she 6 had a heart attack, ruling out if she had a stroke . . . .” (ECF No. 106-3 at 19). McGee was 7 hospitalized in April 2009. In her deposition, Dr. Reed states that as of August 2010, she believed 8 McGee was capable of managing benefits in her own best interest. Dr. Reed wrote a letter on June 9 24, 2013, at McGee’s behest, stating that McGee had been incapable of filing timely appeals 10 because of her condition; however, this letter was written four years after Dr. Reed had last treated 11 McGee. 12 McGee has submitted a notarized letter from May 2016, from Dr. Rick Jenkins, a treating 13 physician, who states that in his professional medical opinion, McGee was incapacitated during 14 2009-2011, due to Post Traumatic Stress Disorder (PTSD) and depression. (ECF No. 136-4). 15 However, according to Dr. Jenkins’ deposition, he did not begin treating McGee until May 2010. 16 (ECF No. 106-4). 17 The record reflects that McGee filed an “Intent to Sue” letter on October 5, 2010, with the 18 EEOC. On August 4, 2009, she sent a letter to Harry Reid’s office requesting assistance related to 19 her allegations against USPS. On September 12, 2009, she sent a letter to NEEOISO requesting a 20 Final Agency Decision regarding her 2009 EEO complaint. On September 22, 2009, she sent a 21 letter to her district manager advising him that she was giving herself a retirement party, and 22 requesting that the invitation be emailed and posted. On November 11, 2009, she sent a letter to 23 NEEIOSO, advising them that she had received the Final Agency Decision regarding her 2008 24 EEO complaint, and notifying them that she had legal representation. On December 9, 2009, 25 McGee sent a letter to the U.S. Department of Labor, advising them of her change of address and 26 requesting a correction of her job title. On July 1, 2010, McGee sent a six-page letter to the Office 27 of Workers’ Compensation Programs, in which she described her issues and claims against USPS 28 in detail. -8- 1 Based on its review of the evidence submitted with the motions in this case, pursuant to 2 jurisdictional discovery, the Court will not equitably toll the statute of limitations for the entire 3 period between the 2009 Final Agency Decisions, and the 2011 filing of McGee’s appeal of those 4 decisions. The Court does not credit the opinions of Dr. Jenkins as to McGee’s condition prior to 5 May 2010, which is when he began treating McGee. The Court also does not credit Dr. Reed’s 6 evaluation as to McGee’s condition during the relevant time period, as Dr. Reed discontinued 7 treating McGee in April 2009. During the relevant time period, McGee submitted many letters to 8 federal officials and agencies regarding her case and claims, including an Intent to Sue letter in 9 2010. Therefore, the Court finds that McGee was capable of appealing her EEO decisions sooner 10 than September 2011. Although the statute of limitations may have been equitably tolled due to 11 extraordinary circumstances during some of the intervening period between her 2009 denial and 12 her 2011 appeal, due to McGee’s suffering from PTSD and depression, McGee was not precluded 13 by extraordinary circumstances throughout this entire period from filing an appeal. Short of 14 equitably tolling the statute of limitations during that entire intervening period, McGee’s Title VII 15 and Rehabilitation Act claims are precluded by the statute of limitations. Therefore, McGee’s Title 16 VII and Rehabilitation Act claims are dismissed with prejudice. 17 18 19 C. Administrative Exhaustion and Time Barring – ADEA and Section 1981 Claim i. Legal Standard 20 “Unlike Title VII of the Civil Rights Act . . . the ADEA contains no express requirement 21 that a federal employee complainant seek administrative relief . . . except that an employee who 22 wishes to file suit without pursuing administrative remedies must give the EEOC notice of intent 23 to sue at least 30 days before filing suit.” Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003) 24 (internal citation marks and quotations omitted). 25 ii. Analysis 26 Defendants have generally argued that all of McGee’s claims are time barred, due to her 27 untimely filing of her administrative appeal. However, they have not raised a specific argument 28 regarding McGee’s ADEA claim, nor regarding her Section 1981 claim. Whereas Title VII and -9- 1 ADA claims require administrative exhaustion, and have specific statutory time limits for litigation 2 based on administrative exhaustion, Defendants have raised no law, and the Court is not aware of 3 any, that requires administrative exhaustion of ADEA claims or Section 1981 claims. McGee sent 4 an Intent to Sue letter to the EEOC on October 5, 2010. While the Ninth Circuit has held, in cases 5 when there are simultaneous administrative and judicial proceedings, that for prudential reasons, 6 plaintiffs were required to exhaust their administrative remedies, it specifically declined to apply 7 such a rule in a case where there were no administrative remedies pending. Bankston, 345 F.3d at 8 777. Therefore, the Court rejects this argument as to McGee’s ADEA discrimination and 9 10 Section 1981 race discrimination claims, and allows those claims to proceed. 11 12 V. CONCLUSION 13 Accordingly, Motion to Dismiss (ECF No. 106) is GRANTED as to Plaintiff’s Title VII 14 and Rehabilitation Act claims, and DENIED as to Plaintiff’s claims under the ADEA and 42 15 U.S.C. § 1981. 16 17 DATED this 10th day of October, 2017. 18 __________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 - 10 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?