Johnson v. Yang

Filing 14

ORDER granting dft's 8 Motion to Dismiss; denying as moot dft's 10 Motion to Stay; the court dismisses this action without prejudice by Judge Robert S. Lasnik.(RS) cc pltf

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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VALERIE D. JOHNSON,
Plaintiff,

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Case No. C15-167RSL
v.

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JENNY YANG, Chair, Equal Employment
Opportunity Commission,

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ORDER GRANTING MOTION TO
DISMISS

Defendant.

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I. INTRODUCTION

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This matter comes before the Court on “Defendant’s Motion To Dismiss.” Dkt. # 8.

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Having reviewed the memoranda and exhibits submitted by the parties, the Court finds as

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follows.

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II. DISCUSSION
Plaintiff is an employee of the United States Equal Employment Opportunity Commission

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(“Commission” or “EEOC”) who has filed suit against defendant alleging that the Commission

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discriminated against her because of her race and retaliated against her for protected activity, in

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violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (“Title VII”). Plaintiff

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filed an administrative EEO complaint on January 7, 2015, Dkt. # 9 (Murphy Decl.) ¶ 3, and

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filed this action on February 5, 2015, Dkt. # 1 (Compl.).

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ORDER GRANTING MOTION TO DISMISS - 1

Plaintiff has not exhausted her administrative remedies, which is a precondition to filing

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suit under Title VII. See, e.g., Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002);

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Vinieratos v. United States Dep’t of Air Force ex rel. Aldridge, 939 F.2d 762, 769 (9th Cir.

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1991). Under 29 C.F.R. § 1614.407, after filing an EEO complaint, a plaintiff must wait a

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minimum of 180 days before filing suit in district court unless the Commission issues a final

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action on her complaint within that timeframe.1 Once a party appeals to a statutory agency,

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board or commission, the appeal must be exhausted; “impatience with the agency does not

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justify immediate resort to the courts.” Rivera v. United States Postal Service, 830 F.2d 1037,

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1039 (9th Cir. 1987). Plaintiff filed this action within 30 days of filing her EEO complaint, and

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no final decision has been issued regarding the latter, Dkt. # 9 (Murphy Decl.) ¶ 4 (plaintiff’s

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claims have not yet even been investigated). Thus, plaintiff has failed to exhaust her

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administrative remedies. While the exhaustion requirement is subject to equitable modification,

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see, e.g., Thompson v. Holder, 2014 WL 584884, at *2 (D. Nev. Feb. 11, 2014), the Court finds

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no equitable reason not to apply § 1614.407 in this case.

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Plaintiff suggests that her current claims should be exempt from the above exhaustion

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requirement because, according to plaintiff, they are related to retaliation claims that she

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previously raised in this District and that were dismissed without prejudice in 2011. Dkt. # 12

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(Pl. Resp.) at 3. In her previous action, plaintiff alleged that the Commission breached a 2006

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settlement agreement between the parties by refusing to give her priority consideration for a

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position as a mediator in the Commission’s Seattle office, Johnson v. E.E.O.C., C09-1867JCC

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The regulation states the following:
A complainant who has filed an individual complaint . . . is authorized under title VII . . .
to file a civil action in an appropriate United States District Court:
(a) Within 90 days of receipt of the final action on an individual or class complaint if no
appeal has been filed;
(b) After 180 days from the date of filing an individual or class complaint if an appeal has
not been filed and a final action has not been taken;
(c) Within 90 days of receipt of the Commission's final decision on an appeal; or
(d) After 180 days from the date of filing an appeal with the Commission if there has
been no final decision by the Commission.
29 C.F.R. § 1614.407.

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ORDER GRANTING MOTION TO DISMISS - 2

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(W.D. Wash. Dec. 31, 2009) (Dkt. # 1) (Compl.); plaintiff argued that the Commission’s conduct

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was discriminatory and retaliatory, Johnson v. E.E.O.C., 2011 WL 814320, at *2 (W.D. Wash.

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Mar. 2, 2011); Johnson, C09-1867JCC (W.D. Wash. Feb. 22, 2011) (Dkt. # 53 at 7) (Pl. Brief)

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(arguing Commission breached the agreement and retaliated against plaintiff by terminating her

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temporary assignment to the mediation unit). Here, plaintiff alleges that, after complaining

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about a subsequent breach of the agreement in 2014, she was appointed to this position in order

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to resolve this dispute, and that she subsequently faced discrimination and was retaliated against

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for complaining about the breach. Dkt. # 3 (Am. Compl.) at 2. According to plaintiff, this

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action seeks to “resurrect” her previous civil action in light of the Commission’s more recent

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retaliatory conduct. Dkt. # 12 at 3-5; see Dkt. # 3 (Am. Compl.) at 2-3.

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The Court finds plaintiff’s argument unsupported and unpersuasive, and it finds no

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authority or evidence indicating that plaintiff’s claims have been exhausted (or that exhaustion is

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not required). While it mentions her previous action, the Complaint here only alleges Title VII

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violations related to events occurring in 2014, years after the conduct giving rise to her previous

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suit. Dkt. # 3 (Am. Compl.) (violations followed her new complaint about a breach and

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subsequent appointment as a mediator). Ninth Circuit precedent indicates that, in some

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circumstances, claims arising after the filing of an EEO complaint need not be separately

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exhausted. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) (new allegations

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of discrimination not included in an administrative charge may be considered if they are like or

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reasonably related to claims in the charge that will be properly exhausted, or fall within the

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scope of an EEOC investigation that reasonably could be expected to grow out of the charged

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allegations). However, even assuming arguendo that plaintiff’s previous retaliation claims were

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properly exhausted, plaintiff’s current action concerns a distinct pattern of discriminatory and

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retaliatory conduct, and thus her current claims should be properly exhausted before she can

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raise them in this forum. Cf. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-13

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(2002) (indicating that plaintiffs must exhaust their administrative remedies for each “discrete”

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ORDER GRANTING MOTION TO DISMISS - 3

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incident of discrimination or retaliation that rises to the level of an unlawful employment

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practice).

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III. CONCLUSION
For all of the foregoing reasons, the Court GRANTS defendant’s motion to dismiss. Dkt.

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# 8. The Court DISMISSES this action without prejudice. Accordingly, defendant’s

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outstanding motion to stay is DENIED as moot. Dkt. # 10.

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DATED this 1st day of June, 2015.

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A

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Robert S. Lasnik
United States District Judge

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ORDER GRANTING MOTION TO DISMISS - 4