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Okello v. Dominguez

August 5, 2005

LWANDA OKELLO, PLAINTIFF,
v.
CARI M. DOMINGUEZ, CHAIR, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, DEFENDANT.



The opinion of the court was delivered by: Marilyn Hall Patel District Judge United States District Court Northern District of California

MEMORANDUM & ORDER

Re: Defendant's Motion to Dismiss; Defendant's Motion to Transfer

On June 24, 2004, plaintiff Lwanda Okello filed this action against defendant pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act, ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 794(a). Specifically, plaintiff alleges that he was discriminated against based on race, sex, age, disability, and reprisal when defendant failed to transfer him from the Oakland, California office of the Equal Employment Opportunity Commission ("EEOC") to the EEOC's Seattle, Washington office. Defendant now moves to dismiss plaintiff's complaint under the doctrine of res judicata or, in the alternative, moves to transfer this action to the United States District Court for the Western District of Washington pursuant to 28 U.S.C. § 1404(a). Having considered the parties' arguments and submissions and for the reasons set forth below, the court enters the following memorandum and order.

BACKGROUND

Plaintiff resides in Oakland, California. Pl.'s Compl. at 1. He began working at the EEOC's Oakland office in 1988 and is currently employed at that office as a GS-1810-12 Investigator. Def.'s Req. for Judicial Notice ("RJN"), Exh. 1 at 3 (Recommended Decision, EEO Complaint No. 0-9800056-OA). Between 1989 and 1998, plaintiff periodically applied for a hardship transfer to the Seattle office. All of plaintiff's requests were denied. RJN, Exh. 1 at 3-4; RJN, Exh. 3 ¶¶ 4-6 (Employment Discrimination Complaint Case No. 00-CV-597). Consequently, plaintiff filed an action in this court in February 2000 alleging that he had been denied a hardship transfer on account of his race, sex, and disability (high blood pressure and dyslexia). Id., Exh. 3 ¶¶ 4-6.

Subsequent to the filing of plaintiff's February 2000 complaint, the government moved to transfer the proceedings to the Western District of Washington, asserting that the site of the alleged discrimination and various related records were located in Seattle. RJN, Exh. 5 at 3 (Order Denying Defendant's Motion to Dismiss and Granting Defendant's Motion to Transfer for Convenience). This court granted that motion on August 16, 2000, and the action proceeded to summary judgment in the transferee court. Id. On August 14, 2001, the court in the Western District of Washington granted defendant's motion for summary judgment, holding that although plaintiff had established a prima facie case of race and sex discrimination, he had failed to submit substantial evidence showing that defendant's motivation for rejecting his request for reassignment was discriminatory. RJN, Exh. 7 at 4 (Order Granting Defendant's Motion for Summary Judgment).

On January 14, 2002, plaintiff asked Joyce A. Hendy, Director of the EEOC's Oakland office, for a transfer to Seattle for the purpose of accommodating his alleged disability. Okello v. Dominguez, EEOC Complaint Nos. 200200051 and 200300104 at 4 (March 17, 2004) (hereinafter "Final Decision"). Two days later, Hendy sent plaintiff's request by fax and regular mail to Barbara Lawrence, EEOC Disability Program Manager ("DPM"),*fn1 and to Jacqueline Bradley, EEOC Director of Field Management Programs in Washington, D.C. Id., Tab F, Exh. F-6. After four months had passed without a response, plaintiff inquired about the status of his request, and Lawrence told him that she had never received Hendy's January 2002 transmission. Id., Tab F, Exh. F-14.

On August 5, 2002, plaintiff filed a formal administrative complaint with the EEOC's Office of Equal Opportunity. In that complaint, plaintiff alleged that he was discriminated against based on his race, sex, age, and disability when his January 16, 2002 request to be transferred to Seattle was not processed in a timely manner. Final Decision, Tab A, Exh. A-1. In addition, plaintiff alleged discrimination based on the fact that he had engaged in activity protected under Title VII: namely, he had previously filed a civil action and several EEO complaints alleging discrimination based on his race, sex, age, and disability. Id. at 7.

During the months that followed, the EEOC continued to process plaintiff's transfer request, which had by this time been assigned to several EEOC employees in Washington, D.C., including a new Disability Program Manager, Todd Denicoff, and the investigator for his case, Patricia St. Clair. Final Decision at 9 & Tab C, Exh. C1. On April 14, 2003, Denicoff denied plaintiff's request to be transferred to the Seattle office, citing the lack of a present or anticipated vacancy at plaintiff's GS-12 work level. Id. at 9.

On March 17, 2004, the Office of Equal Opportunity issued a final decision on the merits of plaintiff's administrative complaint. In that decision, which addressed both the allegedly unreasonable delay in processing his transfer request that was the subject of his January 2002 complaint and the EEOC's final decision denying that request in April 2003, the Office of Equal Opportunity denied plaintiff's claims, citing: (1) his failure to establish a prima facie case of disparate treatment based on race, sex, or age; (2) the absence of any evidence to support his assertion that the delay in processing his transfer request resulted in a failure to provide reasonable accommodation for his disability; and (3) the lack of a causal connection between plaintiff's protected activity and the actions taken by the EEOC in response to his request. Final Decision at 10.

On June 24, 2004, plaintiff filed the instant action in this court alleging discrimination on the basis of race and sex under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e et seq. Plaintiff also asserts that he has been discriminated against based on his disability in violation of the ADA, 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 794(a). Pl.'s Compl. at 2. In addition, plaintiff pleads a cause of action under 42 U.S.C. § 2000e-3(a), which prohibits an employer from taking retaliatory action against an employee on account of the employee's participation in a Title VII proceeding. 42 U.S.C. § 2000e-3(a). Defendant now moves to dismiss plaintiff's action under the doctrine of res judicata or, in the alternative, moves to transfer this action to the Western District of Washington pursuant to 28 U.S.C. § 1404(a). The following memorandum and order addresses the issues raised in defendant's motion.

LEGAL STANDARD

I. Rule 12(b)(6)

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court need not, however, accept as true allegations that are conclusory, legal conclusions, ...


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