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United States District Court, S.D. California

November 2, 2005.

JOHN OGLE, Plaintiff,

The opinion of the court was delivered by: WILLIAM HAYES, District Judge


The matter before the court is Defendant's Motion to Dismiss (#3).


  Plaintiff John Ogle filed a Complaint for Damages against Defendant Transportation Security Administration (TSA) in San Diego Superior Court on or about January 26, 2005 alleging violation of California Government Code § 12940, violation of public policy, and breach of contract. Plaintiff Ogle alleged that the Defendant TSA is and was at all times mentioned in the complaint a California corporation; that Plaintiff and Defendant entered into an employment relationship; and that Defendant terminated the employment relationship. The Complaint for Damages alleged in part that ". . . the reason on the termination papers was for a violation of employment regarding a past conviction, . . . [h]owever, Plaintiff believes . . . that he was terminated due to Defendant company discrimination against him based on his disability." Complaint for Damages Page 3. The Complaint for Damages further alleged that "Plaintiff filed a complaint with the EEOC/Department of Fair Employment and Housing and Received a Right to Sue letter dated April 22, 2004." Id.

  On April 7, 2005, Defendant TSA removed this action to the United States District Court for the Southern District of California on the grounds that the action is brought against an agency of the United States of America.

  On June 15, 2005, Defendant TSA moved the court to dismiss the complaint on the grounds that 1) the court lacks subject matter jurisdiction because Plaintiff Ogle failed to pursue his available administrative remedies before commencing this judicial action, and 2) the court lacks personal jurisdiction over the Defendant TSA because of insufficient service of process. Plaintiff Ogle asserts that he did exhaust his administrative remedies by contacting different Defendant departments and that he did effect service on Defendant.


  Defendant TSA contends that federal regulation require a federal employee to exhaust his administrative remedies by contacting an Equal Employment Opportunity (EEO) counselor within 45 days of the date of the matter alleged to be discriminatory. 29 C.F.R. § 1614.105(a)(1). Defendant TSA contends that Plaintiff Ogle failed to comply with this regulation and is not entitled to maintain an employment discrimination action. Defendant TSA further asserts that the Plaintiff has failed to serve the complaint upon the United States attorney for the Southern District of California as required by the Federal Rules of Civil Procedure.

  Plaintiff Ogle asserts that he was not allowed onto his employment premises following his termination and that on or about July 2004 he wrote a letter to the Martina Griggs Johnson, Director, Risk Management, U.S. Dept. Homeland Security/Transportation Security Administration requesting reconsideration of his termination. Plaintiff Ogle asserts that he made numerous contacts with different Department but received no resolution to this matter. Plaintiff Ogle asserts that he pursued all administrative remedies he was aware were available to him and that this court has jurisdiction as a matter of administrative default after a specific period of time. Plaintiff asserts that he served the Complaint upon the Office of General Counsel for the Department of Homeland Security in Washington, D.C. and requests an opportunity to reserve if the court rules that service was not proper.


  1. Exhaustion of Administrative Remedies

  In order for a federal employee to preserve the right to maintain a suit alleging employment discrimination against an agency of the United States, the employee must exhaust his or her administrative remedies by filing a claim of discrimination with the allegedly offending agency in accordance with published procedures. Leorna v. United States Department of State, 105 F.3d 548, 550 (9th Cir. 1997). The administrative procedures for a federal employee filing a employment discrimination claim are set forth at 29 C.F.R. § 1614. As the first step, an employee must attempt to resolve the matter by contacting an EEO counselor within 45 days of the date of the matter alleged to be discriminatory. 29 C.F.R. § 1614.105(a)(1). If the matter is not resolved within 30 days, the pre-complaint process continues with a final interview in which the aggrieved person is informed of his or her right to continue the administrative process. 29 C.F.R. § 1614.105(d).

  If the aggrieved person is dissatisfied with the results of the pre-complaint counseling, he or she may file a formal complaint with the agency within 15 days of the written notice received at the final interview. 29 C.F.R. § 1614.105(d); 29 C.F.R. § 1614.106. Individual complaints must be fairly investigated by the agency within 180 days, at which time the investigative file is given to the complainant. The complainant may request an immediate final agency decision, or seek a hearing before an administrative judge appointed by the Equal Employment Opportunity Commission (EEOC). 29 C.F.R. § 1614.108. At the conclusion of either the election for an immediate agency decision or the hearing, the agency has 60 days to issue its final decision. 29 C.F.R. § 1614.110. If dissatisfied, the complainant may file a civil action or an appeal to the EEOC.

  Claims based upon discrete acts such as a termination are only timely where such acts occur within the limitations period. See National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061 (2002); Cherosky v. Henderson, 330 F.3d 1243, 1245 (9th Cir. 2003). Administrative exhaustion requirements under federal law has been held to be a condition precedent to filing an action which a defendant may waive or be estopped from asserting. Sommatino v. United States, 255 F.3d 704, 709 (9th Cir. 2001). Where a plaintiff has never presented a discrimination complaint to the appropriate administrative authority, the Court of Appeals has held that the district court does not have subject matter jurisdiction. Id.

  Plaintiff Ogle has alleged that he was an employee of Defendant TSA on April 15, 2003 when he was fired. Plaintiff Ogle was a federal employee subject to the requirements of 29 C.F.R. § 1614. The Complaint for Damages does not allege compliance with the requisite administrative remedies or that his employer prevented him from pursuing his administrative remedies. Plaintiff's mistaken belief that Defendant TSA was a California corporation and his attempt to substitute the state discrimination remedies does not constitute presentment of his claim to the appropriate administrative authority or provide any grounds for waiver or estoppel. The Complainant must seek relief in the agency that has allegedly discriminated against him. Brown v. General Services Administration, 425 U.S. 820, 832, 96 S.Ct. 1961 (1976). "[S]ubstantial compliance with the presentment of discrimination complaints to an appropriate administrative agency is a jurisdictional prerequisite." Sommatino, 255 F.3d at 708. Plaintiff Ogle's claim for discrimination is time-barred because he never presented it to the appropriate administrative authority.

  1. Service of Process

  Rule 4(i)(1)(A) of the Federal Rules of Civil Procedure provides in part that "[s]ervice upon the United States shall be effected . . . by delivering a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney . . . or by sending a copy of the summons and complaint by registered mail addressed to the civil process clerk at the office of the United states attorney . . .". Rule 4(i)(1)(A). The court finds that Plaintiff Ogle has not effected sufficient service upon the Defendant but that allowing Plaintiff to reserve the complaint could not cure the failure to exhaust administrative remedies. CONCLUSION

  Plaintiff has failed to exhaust the administrative remedies required in order to file a claim of discrimination against the Defendant TSA. It is hereby ordered that Defendant's Motion to Dismiss (#3) is granted. The Clerk is directed to enter judgment in favor of the Defendant and against the Plaintiff.


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