The opinion of the court was delivered by: Hayes, Judge
The matter before the court is Defendant's Motion to Dismiss Second Amended Complaint. (Doc. # 27).
On October 18, 2006, Plaintiff Mary E. Bullock initiated this action by filing her complaint. (Doc. # 1). On February 19, 2008, the Court issued an Order to Show Cause for failure to prosecute because there had been no activity in the case in over six months. (Doc. # 8). On March 3, 2008, Plaintiff filed a First Amended Complaint ("FAC"). (Doc. # 9). On July 3, 2008, this Court issued an order granting Defendants' motion to dismiss the FAC on the grounds that Plaintiff failed to exhaust administrative remedies, failed to establish a waiver of federal sovereign immunity, and failed to perfect service on the individually named Defendants. (Doc. # 17). The Court gave Plaintiff leave to amend within sixty days. Id. at 9. Plaintiff failed to do so and the case was closed. On June 9, 2009, more than nine months after the deadline for filing an amended complaint, Plaintiff filed a motion to re-open the case and for leave to file a second amended complaint. (Doc. # 20). The Court granted Plaintiff's motion to re-open pursuant to Federal Rule of Civil Procedure 60(b) on the grounds that Plaintiff's serious illness hampered her ability to monitor her case and that her failure to comply with the deadline constituted excusable neglect. (Doc. # 25). The Court allowed Plaintiff to file her Second Amended Complaint ("SAC"), which is now the operative pleading in this case. (Doc. # 26). Plaintiff's SAC names only one defendant, Stuart J. Ishimaru, who is being sued in his official capacity as Chair of the Equal Employment Opportunity Commission ("EEOC"). Id. On December 15, 2009, Defendant filed his Motion to Dismiss Second Amended Complaint. (Doc. # 27). On January 7, 2010, the Court granted the parties' joint motion to continue until March 1, 2010. (Doc. # 29).
ALLEGATIONS OF THE SECOND AMENDED COMPLAINT
Plaintiff was an administrative law judge with the EEOC. (Doc. # 26 at 4). Plaintiff began to work for the EEOC in August of 1999. Id. When Plaintiff was hired, she was suffering from multiple sclerosis ("MS"). Id. Plaintiff began requesting accommodations for conditions related to MS at work in October of 1999, but the EEOC ignored those requests. Id. Plaintiff nonetheless received "outstanding" performance evaluations for her work in 2001-2003. Id. Plaintiff was promoted during this time. Id. The EEOC retaliated against Plaintiff for seeking accommodations and for complaining about discrimination against her. Id. The EEOC attacked Plaintiff's work ethic, withheld promotion, refused to allow her to work at home, required her to work on tighter deadlines than her non-disabled colleagues, required her to provide excessive documentation of all of her work, encouraged her colleagues to ostracize her and called her a troublemaker, involuntarily transferred her and cut her pay, failed to follow procedures for evaluating her work, denied her request for reassignment, and constructively discharged her. Id. at 5. Plaintiff alleges three claims against Defendant: (1) discrimination on the basis of disability; (2) retaliation; and (3) unlawful harassment--hostile work environment. Id. at 6-7.
Plaintiff filed an informal complaint in January of 2003 with the Office of Equal Employment Opportunity of the EEOC. Id. An administrative law judge found that the EEOC was liable to Plaintiff. Id. at 3. The EEOC filed a motion for reconsideration, which was denied. Id. at 4. Plaintiff filed this lawsuit within 90 days of receiving a final order. Id. The EEOC filed an appeal with the Office of Federal Operations ("OFO"), the appellate division of the EEOC. Id. The OFO issued an opinion, but this was in error, because the EEOC's own policies require the Commission itself to adjudicate appeals where it is the respondent to an employee's complaint. Id. Plaintiff contends that the EEOC's appeal was ineffective because it was erroneously filed before the OFO, which allowed her to file her complaint without waiting for the end of the appeals process. Id. at 3-4. Plaintiff contends the EEOC intentionally appealed in the wrong forum in order to delay the proceedings. Id.
Defendant contends that the Court should dismiss Plaintiff's claims with prejudice for failure to exhaust administrative remedies or, in the alternative, grant summary judgment for Defendant and against Plaintiff. (Doc. # 27-1 at 2). Defendant contends that when either party appeals an administrative action before the EEOC, "a complainant must wait [to file suit in federal court] until either of the following two events: final action on the appeal, or 180 days from the date the appeal was filed." Id. at 3 (citing 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407(d)). Defendant contends that Plaintiff filed an appeal with the OFO on August 18, 2006, which barred her from filing suit before this Court until February 13, 2007. (Doc. # 27-1 at 3). However, Plaintiff withdrew the appeal and filed suit in this Court on October 18, 2006. Id. at 3. Defendant contends that Plaintiff was required to wait 180 days from the date she filed her OFO appeal before filing in this court despite withdrawing the complaint. Id. at 4. Defendant contends that the EEOC's appeal also triggered the 180-day waiting period. Id. at 6. Defendant contends that the EEOC did not file its appeal to the wrong entity because appeal to the OFO is mandated by 29 C.F.R. § 1614.403(a). Id. at 7. Defendant contends that the EEOC had a policy of having the Commissioners themselves, rather than the OFO, decide appeals where the EEOC is a defendant. Id. The EEOC ruled on the appeal on June 8, 2007. Id. Finally, Defendant contends that Plaintiff's complaint should be dismissed with prejudice and without leave to amend because amendment would be futile. Id.
Plaintiff contends that the administrative appeal proceedings in her case were void and have no legal effect. (Doc. # 30 at 5-6). Plaintiff contends that the EEOC appeals process did not provide her with a neutral decision maker, violating her due process rights. Id. at 6-7. Plaintiff contends that the EEOC failed to send notice of its appeal to the proper address. Id. at 7. Plaintiff contends that the EEOC conceded that the OFO was not the proper venue for an appeal. Id. Plaintiff contends that the OFO purported to transfer the appeal to the EEOC itself, but that this "transfer" was ineffective. Id. The EEOC then issued an opinion nunc pro tunc but Plaintiff contends that "[t]his attempt to retroactively resolve the issue" of the appeal being improperly filed "was of no force and effect." Id. at 8. Plaintiff contends that the procedural problems with the EEOC's appeal show "the lengths the Agency will go to try to deny Ms. Bullock her day in court, and the futility of proceeding with the administrative appeal." Id. at 9. Plaintiff contends that she was not required to exhaust administrative remedies because attempting to do so would have been futile. Id. at 10. Plaintiff contends that the EEOC intentionally delayed the proceedings before the administrative law judge and that her former supervisor told her "we will appeal this until you are dead, you will never see a dime." Id. at 11. Plaintiff contends that the delay tactics and her rapidly deteriorating health made continuing with the appeals process futile. Id. at 15. Finally, Plaintiff contends that the Court should equitably modify the provisions which required her to wait 180 days before filing a lawsuit in federal court. Id. at 16-17.
"Title VII places primary responsibility for disposing of employment discrimination complaints with the EEOC in order to encourage informal conciliation of employment discrimination claims and foster voluntary compliance with Title VII." Brown v. Puget Sound Electrical Apprenticeship & Training Trust, 732 F.2d 726, 729 (9th Cir. 1984). Title VII requires that a claimant exhaust her administrative remedies prior to filing a discrimination lawsuit in federal court. Id. In cases involving federal employees, the first step in the administrative process requires an aggrieved person who believes they have been "discriminated against on the basis of . . . handicap" to "consult a Counselor prior to filing a complaint in order to try to informally resolve the matter." 29 C.F.R. § 1614.105(a). If the matter is not resolved after the first step, the aggrieved party may file an administrative discrimination complaint. 29 C.F.R. § 1614.105(d). Either party may file an administrative appeal to the Office of Federal Operations. 29 C.F.R. § 1614.403(a). The appeal regulations provide:
The complainant, agency, agent, grievant or individual class claimant (hereinafter appellant) must file an appeal with the Director, Office of Federal Operations, Equal Employment Opportunity Commission, at P.O. Box 77960, Washington, DC 20013, or by personal delivery or facsimile. The appellant should use EEOC Form 573, Notice of Appeal/Petition, and should indicate what is being appealed.
29 C.F.R. § 1614.403 (a).
After initiating the administrative process, the aggrieved party may file a civil action in federal court after waiting a specified period of time. 29 ...