Cale v. United States of America

Filing 49

ORDER granting Defendant's 35 Motion to Dismiss. Plaintiff's claims are hereby dismissed without leave to amend. Having dismissed his claims, the Court hereby DENIES Plaintiff's recent request for appointment of counsel. (Dkt. No. 48 .) Signed by Judge Marsha J. Pechman. (PM)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

EDWARD CALE,
Plaintiff,

11

UNITED STATES,
Defendant.

14
15
16
17

THIS MATTER comes before the Court on Defendant’s Motion to Dismiss. (Dkt. No.
35.) Having reviewed the Motion, the Response (Dkt. No. 38), the Reply (Dkt. No. 47) and all
related papers, the Court GRANTS the Motion.

18
19
20
21

ORDER GRANTING MOTION TO
DISMISS

v.

12
13

CASE NO. C17-1099-MJP

Background
Plaintiff Edward Cale filed this action claiming that, during the course of his employment
with the United States Postal Service (“USPS”), he was subjected to harassment, bullying,
physical assault, and employment discrimination by various managers and employees. 1 (See

22
23
1

24

Plaintiff initially filed this action in King County District Court, seeking an Order of
Protection against USPS employee Navdeep Dhaliwal. (Dkt. No. 1, Ex. A.) The United States

ORDER GRANTING MOTION TO DISMISS - 1

1

Dkt. No. 14.) In particular, Plaintiff claims he was injured when (1) his supervisor once told him

2

to stand in “poison”; (2) his supervisor once “grabbed [his] hand and violently ripped it towards

3

her”; (3) he was once overcome by a strong odor while working; and (4) he was once attacked or

4

menaced by dogs while working. (Id.) Plaintiff further claims that he was subjected to

5

discrimination because he is a Caucasian male. (Id.) Plaintiff appears to assert claims for hostile

6

work environment; physical assault; retaliation; violation of Title VII of the Civil Rights Act of

7

1964 (“Title VII”), 42 U.S.C. § 2000e; and violation of the Comprehensive Environmental

8

Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9610. (Id.)

9
10

The United States now moves to dismiss for lack of subject matter jurisdiction and failure
to state a claim.

11
12

Discussion
I. Legal Standard

13

Under Federal Rule of Civil Procedure 12(b)(1), the Court must dismiss a complaint if it

14

lacks subject matter jurisdiction over the claim. Fed. R. Civ. P. 12(b)(1). Under Rule 12(b)(6),

15

the Court may dismiss a complaint for failure to state a claim upon which relief can be granted.

16

Fed. R. Civ. P. 12(b)(6). In ruling on a motion to dismiss under either Rule 12(b)(1) or 12(b)(6),

17

the Court construes the complaint in the light most favorable to the non-movant. Livid Holdings

18

Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005); see also Wolfe v.

19

Strankman, 392 F.3d 358, 362 (9th Cir. 2004). The Court must accept as true all well-pleaded

20

allegations of material fact and draw all reasonable inferences in favor of the plaintiff. Wyler

21

Summit P’Ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). Where, as here, a

22
23
24

removed the case to Federal Court, and the Court entered an order substituting the United States
as defendant pursuant to the Federal Tort Claims Act (“FTCA”). (Dkt. No. 9.)

ORDER GRANTING MOTION TO DISMISS - 2

1

plaintiff appears pro se, the Court must construe his pleadings liberally and afford the plaintiff

2

the benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th

3

Cir. 1988).

4

II. Rule 12(b)(1)

5

A. Tort Claims

6

Because each of Plaintiff’s tort claims arise from the action of a federal employee “acting

7

within the scope of [her] office or employment,” 2 his exclusive remedy is the FTCA, 28 U.S.C. §

8

2679(b)(1). Before filing a claim under the FTCA, a plaintiff must exhaust all administrative

9

remedies. See McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants

10

from bringing suit in federal court until they have exhausted their administrative remedies.”);

11

Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000) (“The requirement of an administrative

12

claim is jurisdictional,” and as such “must be strictly adhered to. This is particularly so since the

13

FTCA waives sovereign immunity.”) (internal quotation marks ad citation omitted). Plaintiff has

14

never presented an administrative claim to USPS. (Dkt. No. 35 at 6; Dkt. No. 37 at ¶¶ 4, 6.)

15

Because Plaintiff has failed to exhaust his administrative remedies, the Court finds that it is

16

without jurisdiction to hear his tort claims.

17

B. Title VII Claims

18

Before filing a claim for employment discrimination on the basis of race, ethnicity,

19

religion, or gender, a federal employee must exhaust administrative remedies. Bullock v.

20

Berrien, 688 F.3d 613, 616 (9th Cir. 2012). The Ninth Circuit has explained this requirement as

21

follows:

22
23
24

2

The United States Attorney for the Western District of Washington has certified that
Ms. Dhaliwal was acting in the course and scope of her employment. (See Dkt. No. 4.)

ORDER GRANTING MOTION TO DISMISS - 3

1

To exhaust administrative remedies, the aggrieved federal employee must first
attempt to resolve the matter by filing an informal complaint that triggers
counseling by an EEOC Counselor. 29 C.F.R. § 1614.105(a). If an informal
resolution is not achieved, the employee must then file a formal complaint for
decision by an ALJ. See id. §§ 1614.105(d), 1614.106. The employee may
file a civil action in federal district court within 90 days of receiving notice of
final agency action on the employee's formal complaint by the ALJ, or after
180 days from the filing of the complaint if no final action has been taken by
that time. 42 U.S.C. § 2000e–16(c); 29 C.F.R. § 1614.407(a)-(b).

2
3
4
5
6

Id. While Plaintiff initiated a complaint with the EEOC, he did so on June 28, 2017, and the

7

agency has yet to issue a notice of final action. (Dkt. No. 35 at 9; Dkt. No. 36 at ¶¶ 2-4, Ex. A.)

8

Further, he filed his judicial complaint just days later on July 7, 2017, well before the expiration

9

of the 180-day term. (See Dkt. No. 1.) Because Plaintiff has failed to exhaust his administrative

10

remedies, the Court finds that it is without jurisdiction to hear his Title VII claim.
C. CERCLA Claim

11
12

CERCLA does not provide a private right of action against the United States. See 42

13

U.S.C. § 9610. Instead, it provides that “[a]ny employee . . . who believes that he has been fired

14

or otherwise discriminated against . . . may, within thirty days after such alleged violation occurs,

15

apply to the Secretary of Labor for a review of such firing or alleged discrimination.” 42 U.S.C.

16

§ 9610(b). The Secretary of Labor’s determination is then subject to judicial review. Id.

17

Because Plaintiff has not followed this procedure, and the United States has not waived its

18

sovereign immunity, the Court finds that it is without jurisdiction to hear his claim under

19

CERCLA.

20
21

III. Rule 12(b)(6)
The United States moves to dismiss Plaintiff’s claims concerning wrongdoing by his

22

labor union. (Dkt. No. 14 at 1-2). Because Plaintiff’s complaints about his labor union do not

23

state claims against the United States, the Court dismisses each of these claims under Rule

24

12(b)(6).

ORDER GRANTING MOTION TO DISMISS - 4

1
2

IV. Leave to Amend
While leave to amend is ordinarily granted, dismissal without leave to amend is proper

3

where it is clear that “the complaint could not be saved by any amendment.” Sonoma Cty. Ass’n

4

of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1118 (9th Cir. 2013). Having found that

5

Plaintiff filed this case before exhausting his administrative remedies, the Court declines to grant

6

leave to amend, as no amendment could save Plaintiff’s claims from dismissal.

7
8

Conclusion
Because Plaintiff has failed to exhaust administrative remedies with regard to each of his

9

claims, and because no amendment could save his claims, the Court GRANTS Defendant’s

10

Motion to Dismiss. Plaintiff’s claims are hereby dismissed without leave to amend. Having

11

dismissed his claims, the Court hereby DENIES Plaintiff’s recent request for appointment of

12

counsel. (Dkt. No. 48.)

13

The clerk is ordered to provide copies of this order to all counsel.

14

Dated April 23, 2018.

16

A

17

Marsha J. Pechman
United States District Judge

15

18
19
20
21
22
23
24

ORDER GRANTING MOTION TO DISMISS - 5