United States District Court, S.D. California
November 2, 2005.
JOHN OGLE, Plaintiff,
TRANSPORTATION SECURITY ADMINISTRATION, et al., Defendant.
The opinion of the court was delivered by: WILLIAM HAYES, District Judge
The matter before the court is Defendant's Motion to Dismiss
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.
CONTENTIONS OF THE PARTIES
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
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
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
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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