United States District Court, N.D. California
November 2, 2005.
EDUARDO A. SURIANO, Plaintiff,
POSTMASTER GENERAL, Defendants.
The opinion of the court was delivered by: PHYLLIS HAMILTON, District Judge
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Defendant's motion for judgment on the pleadings, or in the
alternative, motion for summary judgment, came on for hearing
before this court on November 2, 2005. Plaintiff Eduardo A.
Suriano did not appear, and defendant John E. Potter, Postmaster
General of the United States, appeared by his counsel, Assistant
United States Attorney Chinhayi J. Coleman.
Plaintiff was formerly employed by the United States Postal
Service. He was terminated from his employment effective April 4,
2003, for irregular attendance and absence without leave. On
April 3, 2004, he filed a charge of discrimination with the
California Department of Fair Employment and Housing ("DFEH"),
alleging that he had been fired, harassed, denied accommodation,
and denied family or medical leave by his former supervisor, in
violation of the California Fair Employment and Housing Act
("FEHA"), California Government Code § 12962. Plaintiff requested
issuance of an immediate right-to-sue notice.
The form that plaintiff used to file the administrative charge
states, above his signature,
I understand that if I want a federal notice of
right-to-sue, I must visit the U.S. Equal Employment
Opportunity Commission (EEOC) to file a complaint
within 30 days of receipt of the DFEH `Notice of Case
Closure,' or within 300 days of the alleged
discriminatory act, whichever is earlier.
On April 12, 2004, DFEH issued plaintiff a notice of case closure
and notice of right to sue.
Plaintiff filed this action on March 31, 2005, alleging
unlawful termination of employment and discrimination on the
basis of "mental health condition." The complaint alleges that
the action is brought pursuant to Title VII of the Civil Rights
Act of 1964 ("Title VII") 42 U.S.C. § 2000e, et seq. Because the
plaintiff alleges discrimination on the basis of disability, the
court interprets the complaint as also asserting a claim under
the Rehabilitation Act of 1973 ("Rehabilitation Act"),
29 U.S.C. § 791, et seq.
Defendant now seeks judgment on the pleadings, or in the
alternative, summary judgment.
A. Legal Standard
Summary judgment is appropriate when there is no genuine issue
as to material facts and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56. Material facts are those
that might affect the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is "genuine" if there is sufficient evidence for a
reasonable jury to return a verdict for the nonmoving party.
Id. The court may not weigh the evidence, and is required to
view the evidence in the light most favorable to the nonmoving
party. Id. at 248.
A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion, and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Where the moving party will have the burden of proof at
trial, it must affirmatively demonstrate that no reasonable trier
of fact could find other than for the moving party. On an issue where the nonmoving party will bear
the burden of proof at trial, the moving party can prevail merely
by pointing out to the district court that there is an absence of
evidence to support the nonmoving party's case. Id. If the
moving party meets its initial burden, the opposing party must
then set forth specific facts showing that there is some genuine
issue for trial in order to defeat the motion. Anderson,
477 U.S. at 250.
B. Defendant's Motion
Defendant argues that judgment must be entered in favor of the
Postal Service with regard to plaintiff's Title VII claim,
because he failed to exhaust administrative remedies.
Specifically, defendant contends that plaintiff never contacted
an EEO counselor at the Postal Service concerning his allegations
of discrimination. Thus, defendant asserts, the court lacks
subject matter jurisdiction over plaintiff's claims. Plaintiff
filed no opposition to the motion.
Before a federal employee can pursue a civil action for
employment discrimination in district court, he must take several
other actions. First, he must initiate contact with an EEO
Counselor within 45 days of the effective date of the alleged
discriminatory personnel action. 29 C.F.R. § 1614.105(a)(1).
Second, within 15 days of receiving a notice of final interview
informing him that his claim was not resolved in the counseling
stage, he must file a formal administrative EEO complaint.
29 C.F.R. § 1614.105(d). An employee has 90 days from the date of
receipt of the agency's final decision, or 180 days from the date
of filing the EEO complaint if their has been no final agency
decision within that time, to file a civil action in district
court. 29 C.F.R. § 1614.407.*fn1
In the present case, plaintiff's employment was terminated
effective April 4, 2003. He then had 45 days from that date
until May 19, 2003, to seek EEO counseling. However, defendant
provides evidence showing that plaintiff never sought EEO
counseling and never filed an EEO complaint with the Postal
Service. Thus, he failed to exhaust administrative remedies. A
Title VII lawsuit filed before a claim is filed with the EEOC is
barred and subject to dismissal for lack of subject matter
jurisdiction. See Equal Employment Opportunity Commission v. Farmers Bros. Co., 31 F.3d 891, 899 (9th Cir.
1994). The filing of an administrative charge with DFEH cannot
substitute for the administrative actions required under Title
In accordance with the foregoing, the court hereby GRANTS
defendant's motion. Plaintiff's action is dismissed for lack of
subject matter jurisdiction.
IT IS SO ORDERED.
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