Martinez-Luengo v. Shimseki
Filing
50
OPINION AND ORDER granting 43 Motion In Compliance and dismissing all claims with prejudice. Final judgment shall be thus entered. Signed by Judge Juan M Perez-Gimenez on 2/2/2012.(PMA)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
ANTONIO MARTINEZ,
Plaintiff,
v.
CIV. NO. 10-1304 (PG)
ERICK K. SHIMSEKI, Secretary
DEPARTMENT OF VETERANS AFFAIRS,
Defendant.
OPINION AND ORDER
Before the Court was defendant’s motion to dismiss (Docket No. 43) and
plaintiff’s opposition thereto (Docket No. 47). For the reasons set forth
below, the Court GRANTED the defendant’s request on January 10, 2012, see
Docket No. 49.
I. BACKGROUND
On April 12, 2010, plaintiff Dr. Antonio Martinez (“Martinez” or
“Plaintiff”), filed the above-captioned claim against the Department of
Veterans Affairs (“Defendant” or “the Department”) seeking redress for alleged
discrimination on the basis of sex under Title VII of the Civil Rights Act of
1964 (“Title VII”), 29 U.S.C. §§ 2000e et seq.1
Plaintiff
is
a
gynecologist
who
began
working
for
the
Veterans
Administration (“VA” or “the agency”) Caribbean Health System in San Juan,
Puerto Rico in 1997 on a part-time basis. Plaintiff simultaneously maintained
a
private
practice
office.
Effective
October
13,
2007,
the
Defendant
terminated the Plaintiff’s employment because he had incurred in a “conflict
of interest” when he self-referred a VA patient to his private practice office
and treated this patient. On November 15, 2007, Plaintiff filed a sex
discrimination claim against Defendant before the Equal Employment Office
(“EEO”) of the VA, Case No. 2001-0672 2008-100338. On January 14th, 2010, the
EEO of the VA issued the Right to Sue letter, which the Plaintiff received on
January 16, 2010.
1
In his complaint, Plaintiff also included claims pursuant to the Due Process and
Equal Protection Clauses, which the Court dismissed. See Docket No. 39.
CIV. NO. 10-1304 (PG)
Page 2
After meeting with the parties, the court scheduled the jury trial to
begin on December 5, 2011. See Docket No. 24. On the eve of trial, the
Defendant informed the Court that insofar as Plaintiff had failed to exhaust
his administrative remedies with regards to his sex discrimination claim, the
case
was
improperly
before
the
Court.
Considering
the
timing
of
the
Defendant’s defense, the Court postponed the jury trial to January 11, 2012
and ordered the Defendant to brief the Court on the issue by December 12th,
2012. See Docket No. 39. The Defendant, after seeking an extension of time,
filed a motion in compliance with this Court’s order on December 15, 2011
(Docket No. 43) seeking the dismissal of Plaintiff’s sex discrimination claim
for failure to exhaust administrative remedies. The Plaintiff filed his
response on January 3, 2012. See Docket No. 47. After careful review of the
parties’ filings and the applicable caselaw, on January 10, 2012, the Court
issued a line order granting the Defendant’s request for dismissal and
vacating the jury trial. See Docket No. 49. As follows, the Court shall set
forth the reasoning behind the Court’s decision.
II. STANDARD OF REVIEW
Motions to dismiss brought under FED.R.CIV.P. 12(b)(1) and 12(b)(6) are
subject
to
the
same
standard
of
review.
See
Negron-Gaztambide
v.
Hernandez-Torres, 35 F.3d 25, 27 (1st Cir.1994). Firstly, when ruling on a
motion to dismiss for failure to state a claim, a district court “must accept
as true the well-pleaded factual allegations of the complaint, draw all
reasonable inferences therefrom in the plaintiff’s favor, and determine
whether the complaint, so read, limns facts sufficient to justify recovery on
any cognizable theory.” Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10,
15 (1st Cir.2009) (citing LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507,
508 (1st Cir.1998)). Additionally, courts “may augment the facts in the
complaint by reference to (i) documents annexed to the complaint or fairly
incorporated into it, and (ii) matters susceptible to judicial notice.”
Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir.2008) (internal citations
and quotation marks omitted).
In determining whether dismissal of a complaint is appropriate pursuant
to Rule 12(b)(1) or 12(b)(6), the court must keep in mind that “[t]he general
rules of pleading require a short and plain statement of the claim showing
that the pleader is entitled to relief. … This short and plain statement need
only give the defendant fair notice of what the … claim is and the grounds
upon which it rests.” Gargano v. Liberty Intern. Underwriters, Inc., 572 F.3d
CIV. NO. 10-1304 (PG)
Page 3
45, 48 (1st Cir.2009) (internal citations and quotation marks omitted).
Nevertheless, “even under the liberal pleading standard of Federal Rule of
Civil Procedure 8, the Supreme Court has … held that to survive a motion to
dismiss,
a
complaint
must
allege
a
plausible
entitlement
to
relief.”
Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95 (1st Cir.2007) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing
Twombly, 550 U.S. at 556). That is, “[f]actual allegations must be enough to
raise a right to relief above the speculative level, … , on the assumption
that all the allegations in the complaint are true (even if doubtful in
fact)….” Twombly, 550 U.S. at 555 (internal citations and quotation marks
omitted). “Determining whether a complaint states a plausible claim for relief
will … be a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950.
“In resolving a motion to dismiss, a court should employ a two-pronged
approach. It should begin by identifying and disregarding statements in the
complaint that merely offer legal conclusions couched as fact or threadbare
recitals
of
the
elements
of
a
cause
of
action.”
Ocasio-Hernandez
v.
Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. April 1, 2011) (citing Twombly, 550
U.S. at 555) (internal quotation marks omitted). Although a complaint attacked
by a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
“does not need detailed factual allegations, … , a plaintiff’s obligation to
provide the grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do … .” Twombly, 550 U.S. at 555 (internal citations and quotation
marks omitted). That is, the court “need not accept as true legal conclusions
from the complaint or naked assertions devoid of further factual enhancement.”
Maldonado v. Fontanes, 568 F.3d 263, 266 (1st Cir.2009) (citing Iqbal, 129
S.Ct. at 1960). “Non-conclusory factual allegations in the complaint must then
be treated as true, even if seemingly incredible.” Ocasio-Hernandez, 640 F.3d
at 12 (citing Iqbal, 129 S.Ct. at 1951).
When evaluating the plausibility of a legal claim, a court may not
“attempt to forecast a plaintiff’s likelihood of success on the merits; a
well-pleaded complaint may proceed even if … a recovery is very remote and
unlikely.” Ocasio-Hernandez, 640 F.3d at 12-13 (citing Twombly, 550 U.S. at
CIV. NO. 10-1304 (PG)
Page 4
556). Thus, “[t]he relevant inquiry focuses on the reasonableness of the
inference of liability that the plaintiff is asking the court to draw from the
facts alleged in the complaint.” Ocasio-Hernandez, 640 F.3d at 13.
III. DISCUSSION
In its motion, the Department set forth that, on October 26, 2007,
Martinez filed an appeal before the Merit System Protection Board (“MSPB” or
“the Board”) wherein he alleged that his termination was the result of
discrimination based on his military status in violation of the Uniformed
Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301
et seq. See Dockets No. 43-1, 47-2. Shortly thereafter, on November 15, 2007,
the Plaintiff also filed a complaint of employment discrimination based on sex
before the EEOC. See Dockets No. 43-2, 47-3. The Department now contends that
pursuant
to
29
C.F.R.
1614.302(b),
Plaintiff
had
to
include
his
sex
discrimination claim in his appeal before the MSPB, as opposed to bifurcating
his two different discrimination claims. See Docket No. 43. According to
Defendant, Plaintiff’s omission now renders this Court without jurisdiction
to entertain his sex discrimination claim. Despite the Plaintiff’s vehement
opposition, this Court agrees with the Defendant.
“Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
as amended, prohibits employment discrimination on the basis of race, color,
religion, sex, or national origin.” Ricci v. DeStefano, 129 S.Ct. 2658, 2672
(2009). Pursuant to Title VII, a plaintiff is required to exhaust his/her
administrative remedies before suing in federal court, including by filing a
complaint with the EEOC. See Uphoff Figueroa v. Alejandro, 597 F.3d 423, 431
(1st Cir.2010) (quoting Frederique-Alexandre v. Dep’t of Natural & Envtl.
Res., 478 F.3d 433, 440 (1st Cir.2007); Jorge v. Rumsfeld, 404 F.3d 556,
564-65 (1st Cir.2005)). Nevertheless, “when a federal employee claims he or
she has been affected by both an “adverse employment action” and a related
Title VII violation, administrative remedies may be exhausted for Title VII
purposes by asserting both claims before the MSPB.” Sloan v. West, 140 F.3d
1255, 1259 (9th Cir.1998).
The Merit System Protection Board has statutory jurisdiction to hear
appeals from adverse personnel actions that amount to a removal, a suspension
for more than 14 days, a reduction in grade or pay, or a furlough of 30 days
or less. See 5 U.S.C. §§ 7512, 7701(a); 5 C.F.R. § 1201.3. “A federal employee
aggrieved by a personnel action that is reviewable by the MSPB has two paths
of redress if he attributes the employing agency’s decision, at least in part,
CIV. NO. 10-1304 (PG)
Page 5
to discriminatory animus.” McCarthy v. Vilsack, No. 08-3076, 2009 WL 929888,
at *1 (7th Cir. April 07, 2009). According to 5 U.S.C. § 7702, an employee
affected by an action that the employee may appeal to the MSPB who also
alleges that a basis for the action was discrimination can bring his case
before the Board and it will render a decision on both the personnel action
and the discrimination claim. See Greenhouse v. Geren, 574 F.Supp.2d 57, 65
(D.D.C.2008) (citing 5 U.S.C. § 7702). This type of action is called a “mixed
case appeal.”2 In essence, “[a] “mixed case appeal” is a case determined by the
Board to be within its jurisdiction; namely, a case which presents an
appealable non-discrimination claim coupled with a discrimination claim.”
Sloan, 140 F.3d at 1259 (citing 29 C.F.R. § 1614.302(a)(2)). Alternatively,
a federal employee may file with the Equal Employment Office of his or her
agency
a
“mixed
case
complaint,”
which
is
“a
complaint
of
employment
discrimination filed with a federal agency EEO based on race, color, religion,
sex, national origin, age, disability, or genetic information related to or
stemming from an action that can be appealed to the [Board].” 29 C.F.R.
§ 1614.302(a)(1).
Now, “an aggrieved person may initially file a mixed case complaint with
an agency … or an appeal on the same matter with the MSPB pursuant to 5 CFR
1201.151, but not both.” 29 C.F.R. § 1614.302(b) (emphasis ours). “An
aggrieved employee (or, as in this case, an aggrieved former employee) has a
choice between these two options - but [he] may not avail herself of both.”
Stoll v. Principi, 449 F.3d 263, 265 (1st Cir.2006) (citing 29 C.F.R.
§ 1614.302(b); Castro v. United States, 775 F.2d 399, 404 & n. 5 (1st
Cir.1985)). “[W]hichever is filed first shall be considered an election to
proceed in that forum.” 29 C.F.R. § 1614.302(b). “From that point forward, the
complainant must exhaust [his] claim in the chosen forum.” Principi, 449 F.3d
at 265 (citing Economou v. Caldera, 286 F.3d 144, 149 (2d Cir.2002) (holding
that a federal employee who had first filed a formal appeal with the Board was
required to exhaust his administrative remedies in that forum and could not
move at will to the other track)).
In the case at hand, it stems from the filings now before the Court that
on October 26, 2007, the Plaintiff first filed an appeal with the MSPB
2
According to 29 C.F.R. § 1614.302(a)(2), a “mixed case appeal” is “an appeal filed
with the MSPB that alleges that an appealable agency action was effected, in whole or in
part, because of discrimination on the basis of race, color, religion, sex, national origin,
disability, age, or genetic information.”
CIV. NO. 10-1304 (PG)
Page 6
alleging he was denied a promotion and eventually terminated because of his
military status. See Docket No. 47-2. However, prior to exhausting his
remedies in the Board, on November 15, 2007, Martinez filed a mixed case
complaint before the EEO of the VA claiming he was terminated because of his
sex (male). See Docket No. 47-3. As argued by the Defendant, the “election of
remedies doctrine is dispositive here.” Principi, 449 F.3d at 266. Much like
in Principi, the Plaintiff here initially filed an appeal with the Board
thereby making an election of remedies. “Thus, when [he]
subsequently
attempted to switch horses in mid-stream and filed a formal EEO complaint with
the agency … - during the pendency of [his] appeal before the Board - that
filing was a nullity.” Id.
To say more would be to paint the lily. With two
remedial paths open to [him], the [plaintiff] chose to
test the legitimacy of [his] termination by filing a
formal appeal with the Board. The proceedings before
the Board were in full flower when [he] reversed
direction and submitted a formal EEO complaint. Having
elected to travel one path (before the Board), [he]
forfeited her right simultaneously to explore the
alternative path (before the Commission).
Id.
Moreover, in Martinez’s case, he failed to follow the proper practices
and procedures regarding the content of an MSPB appeal, which state, in
relevant part, that an appeal before the Board must contain “a statement of
the reasons why the appellant believes the agency action is wrong … ,” 5
C.F.R. § 1201.24(a), including allegations of prohibited discrimination, see
5 C.F.R. § 1201.151-1201.153. In fact, if after filing an appeal, a claimant
wishes to submit an additional claim or defense, the appellant may do so “at
any time before the end of the conference(s) held to define the issues in the
case. An appellant may not raise a new claim or defense after that time,
except for good cause shown.” 5 C.F.R. § 1201.24(b).
If Plaintiff believed, as he obviously did, that his termination was
based, in whole or in part, on sex discrimination, he was under the obligation
to include said claim in his initial appeal before the MSPB,3 or at the very
least, request that this claim be subsequently amended to add this particular
claim. However, the Plaintiff here neither included his sex discrimination
3
Pursuant to 5 C.F.R. § 1201.153, an appeal raising issues of prohibited
discrimination must “state that there was discrimination in connection with the matter
appealed, and it must state specifically how the agency discriminated against the
appellant….”
CIV. NO. 10-1304 (PG)
Page 7
claim in his original appeal or amended the proceedings before the MSPB to
include these allegations. Therefore, the Court finds that Defendant’s
contention that the Plaintiff failed to exhaust administrative remedies with
regards to his sex discrimination claim is correct.
In his defense, the Plaintiff contends that the Defendant itself failed
its statutory duty pursuant to 29 C.F.R. § 1614.302(b) to properly notify the
Plaintiff of his rights and/or the proper procedure to follow,4 and thus, the
Defendant cannot now argue that Plaintiff waived his sex discrimination claim.
In addition, Martinez also argues that the agency failed to properly dismiss
his mixed case complaint in accordance with 29 C.F.R. § 1614.302(c).5 In light
of Defendant’s own failures, Martinez requests that the time limitations on
his sex discrimination claim be subjected to equitable tolling. See Docket
No. 47.
In
support
of
this
argument,
the
Plaintiff
cites
to
Mercado
v.
Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41 (1st Cir.2005). In
Mercado, the First Circuit Court of Appeals stated that “time limitations are
important in discrimination cases, and that federal courts therefore should
employ equitable tolling sparingly.” Id. at 46 (citing Bonilla v. Muebles J.J.
Alvarez, Inc., 194 F.3d 275, 278 (1st Cir.1999)). The following five factors
are generally considered when determining whether to allow equitable tolling
in a particular case:
4
The cited regulation states, in pertinent part, that:
An agency shall inform every employee who is the subject of an
action that is appealable to the MSPB and who has either orally
or in writing raised the issue of discrimination during the
processing of the action of the right to file either a mixed case
complaint with the agency or to file a mixed case appeal with the
MSPB. The person shall be advised that he or she may not
initially file both a mixed case complaint and an appeal on the
same matter and that whichever is filed first shall be considered
an election to proceed in that forum.
29 C.F.R. § 1614.302(b).
5
Pursuant to 29 C.F.R. § 1614.302(c), where neither the agency nor the MSPB
administrative judge questions the MSPB’s jurisdiction over the appeal on the same matter,
an agency decision to dismiss a mixed case complaint on the basis of the complainant’s prior
election of the MSPB procedures shall be made as follows:
[the agency] shall dismiss the mixed case complaint pursuant to
§ 1614.107(d) and shall advise the complainant that he or she
must bring the allegations of discrimination contained in the
rejected complaint to the attention of the MSPB, pursuant to 5
CFR 1201.155. The dismissal of such a complaint shall advise the
complainant of the right to petition the EEOC to review the
MSPB’s final decision on the discrimination issue.
29 C.F.R. § 1614.302(c).
CIV. NO. 10-1304 (PG)
Page 8
(1) lack of actual notice of the filing requirement;
(2) lack of constructive knowledge of the filing
requirement; (3) diligence in pursuing one’s rights;
(4) absence of prejudice to the defendant; and (5) a
plaintiff’s reasonableness in remaining ignorant of the
filing requirement. … These factors are not exhaustive,
however; it is in the nature of equity to entertain
case-specific factors that may counsel in favor of
tolling.
Mercado, 410 F.3d at 48 (citing Kelley v. N.L.R.B., 79 F.3d 1238, 1248 (1st
Cir.1996)).
With regards to the first two factors, the Court stated that it has
recognized “that an employer’s violation of the EEOC posting requirement may
provide a … basis for an extended filing period where the employee had no
other actual or constructive knowledge of the complaint procedures.” Mercado,
410 F.3d at 46 (internal citations and quotation marks omitted) (emphasis
ours).
Therefore,
applying
equitable
tolling
to
a
particular
set
of
circumstances will depend on whether or not - despite a plaintiff’s assertions
- he/she had either actual or constructive knowledge of his/her Title VII
rights within the meaning of our caselaw. See id. at 48.
Actual knowledge does not mean specific awareness of
the 300-day statutory filing period; rather, actual
knowledge occurs when an employee becomes generally
aware that he possesses a legal right to be free from
the type of discrimination he has alleged. …
Constructive knowledge, meanwhile, would be presumed if
the employer had complied with its statutory obligation
to post the EEOC notices in conspicuous locations, and
it also is presumed when an employee has retained an
attorney - in both instances, regardless of whether the
plaintiff in fact is aware of his rights.
Id. at 48-49 (internal citations omitted) (emphasis ours).
In the case at hand, it stems from the exhibits filed by Martinez in his
response
that
he
retained
an
attorney
to
represent
him
during
the
administrative proceedings. See Docket No. 47-2. Therefore, pursuant to
Mercado, Martinez can be presumed to have had constructive knowledge of his
rights and his claim cannot be subject to equitable tolling. See Kale v.
Combined Ins. Co. of America, 861 F.2d 746, 753 (1st Cir.1988) (“If the court
finds that the plaintiff knew, actually or constructively, of his ADEA rights,
ordinarily
there
could
be
no
equitable
tolling
based
on
excusable
ignorance.”).
Finally, the Plaintiff argues there was only a mixed case complaint
before the agency’s EEO and never a mixed case appeal before the Board insofar
as he never included his sex discrimination claim in the appeal. See Docket
CIV. NO. 10-1304 (PG)
Page 9
No. 47. Martinez now claims that it is now “too late for Defendant to claim
before this Court that Plaintiff should have filed a mixed case appeal.” See
Docket No. 47 at page 12. The Court disagrees. First of all, the applicable
statutes provide that a claimant can only pursue his administrative claims in
one of the two fora, namely, the MSPB or the agency’s EEO. See 29 C.F.R.
§ 1614.302; 5 C.F.R. § 1201.151-1201.153. “In this case, when [he] was
terminated, Plaintiff choose to pursue [his] administrative grievances through
an appeal to the MSPB, and in so doing [he] could not later file a separate
EEO action.” Fissel v. Napolitano, No. 09-0005, 2009 WL 3624719 at *6 (M.D.Pa.
October 29, 2009).
[I]f Plaintiff believed that [his] termination was
motivated by discrimination, once [he] chose to file a
case with the MSPB, [he] was required to have raised
[his] claims in that administrative forum and fully
exhausted [his] remedies there before coming to court.
[He] did not do so, and cannot now come into court with
a Title VII claim based on [his] EEO complaint. To say
more would be to paint the lily. With two paths from
which to choose, Plaintiff chose to file [his] case
with the MSPB. [He] did not pursue [his] discrimination
claims in that forum, and cannot resuscitate them
through an EEO filing or a Title VII action in this
court.
Id. Moreover, as previously stated, the filing before the EEOC was a nullity
pursuant to the applicable caselaw, and thus, there was no such mixed case
complaint as argued by the Plaintiff. Consequently, this argument also fails
as a matter of law.
In conclusion, despite the particular circumstances in this case being
an issue of first impression in this circuit, the Court is persuaded by the
Defendant’s argument that the Plaintiff failed to properly exhaust his
administrative remedies with regards to his sex discrimination claim. As a
result, because the MSPB did not consider the claim of discriminatory
removal based on sex on the merits, this Court lacks subject-matter
jurisdiction to hear this claim and it is thus DISMISSED WITH PREJUDICE.
IV. CONCLUSION
For the reasons stated above, Defendant’s motion (Docket No. 43) is
hereby GRANTED and Plaintiff’s sex discrimination claim pursuant to Title VII
is
hereby
accordingly.
DISMISSED
WITH
PREJUDICE.
Final
judgment
shall
be
issued
CIV. NO. 10-1304 (PG)
Page 10
IT IS SO ORDERED.
In San Juan, Puerto Rico, February 2, 2012.
S/ JUAN M. PEREZ-GIMENEZ
JUAN M. PEREZ-GIMENEZ
SENIOR U.S. DISTRICT JUDGE
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