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Olivar v. Potter

September 16, 2010

JESSE OLIVAR, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL, USPS, ET AL., DEFENDANTS.



FINDINGS AND RECOMMENDATIONS

This matter came before the court on January 22, 2010, for hearing of defendant's motion to dismiss or for summary judgment. Assistant United States Attorney Bobbie J. Montoya appeared for the moving party. Plaintiff, proceeding pro se, appeared on his own behalf. Oral argument was heard, and the motion was taken under submission.

For the reasons set forth below, upon consideration of the briefing on file, the parties' arguments at the hearing, and the entire file, the court will grant defendant's motion to dismiss.*fn1

PLAINTIFF'S CLAIMS*fn2

Plaintiff alleges that his former employer, the United States Postal Service, ("USPS") discriminated against him based on his race and mental disability, subjected him to physical attacks, and retaliated against him. Specifically, in his complaint plaintiff alleges as follows. On October 1, 2001, while working at the Royal Oaks Facility in Sacramento, plaintiff told Mr. Washington, an African-American Supervisor, that he was going to file a discrimination complaint against him. On October 5, 2001, plaintiff asked Washington for time off to complete his complaint to the Equal Employment Opportunity Commission ("EEOC"). Washington became agitated, ordered plaintiff out of the office, and threatened to have him arrested.

In response, plaintiff completed a Report of Hazard or Unsafe Condition or Practice form which initiated an investigation. After plaintiff was interviewed by Mr. Young, a Caucasian manager, he was told that he would be reporting to Randy Davis, a new supervisor who was also Caucasian. However, plaintiff was not in fact assigned a new supervisor and continued reporting to Mr. Washington. Plaintiff alleges that he lost his grievance stemming from this incident because his employee union colluded with the defendant against him.

On October 16, 2001, Mr. Young asked plaintiff to lower the volume of his Rhythm and Blues music, even though country music had been playing at the same volume in the same work area all morning. Young also offered some trail mix to another Caucasian postal employee but not plaintiff.

During November and December 2001, Washington solicited volunteers for a safety captain position. Plaintiff expressed his interest in the position but was told that Jessie James, an African-American, had already been selected to fill the opening. Plaintiff asked Washington to submit his name to management for the position, but was told by Washington that management did not want plaintiff to serve in that role.

At a December 14, 2001, safety meeting plaintiff was prohibited from submitted ideas. Submitted ideas were eligible for monetary awards. Sometime thereafter plaintiff's supervisor did change, but the harassment of plaintiff did not cease.

Plaintiff was eventually placed on off duty status by a psychiatrist for some period of time, and prescribed medication. Plaintiff filed another complaint with the EEOC in response. During this time, plaintiff's medical records were somehow disclosed to other postal employees.

Plaintiff also alleges that in January of 2002 he was overpaid by Supervisor Davis. Davis could not fix the overpayment and, according to plaintiff, therefore misappropriated funds. Plaintiff filed another EEOC complaint in response to this action. Plaintiff was then transferred to a postal facility in West Sacramento, where Supervisor Arrioja, who was Hispanic, monitored plaintiff's every move. At the West Sacramento facility plaintiff was nearly stabbed by Mr. Jackson, an African American supervisor. Plaintiff was eventually fired based on the false accusation that he refused to cooperate in an investigation concerning the sale of firearms and ammunition at the workplace.

On December 11, 2008, plaintiff filed this complaint alleging violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990.*fn3 ("Compl." - Doc. No. 1.) Plaintiff alleged that he was discriminated against based on his race, color and mental disability, naming John E. Potter, United States Postmaster General, as the defendant.*fn4 Specifically, plaintiff asserts that while employed by the U.S. Postal Service he was subjected to physical attacks, collusion, retaliation, and that he had his employment terminated.

On December 22, 2009, defendant filed a motion to dismiss or, in the alternative, for summary judgment. (Doc. No. 39, "Def't's Mot. to Dismiss" .) Plaintiff filed an opposition on January 12, 2010. (Doc. No. 41, "Opp'n.".) Defendant filed an amended reply on January 15, 2010. (Doc. No. 42, "Reply".)

ANALYSIS

Defendant's motion to dismiss has been brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

I. Legal Standards Applicable to Motions Brought Pursuant to Fed. R. Civ. P. 12(b)(1) & (6)

Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).

In the present case, defendant's Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact as to certain claims set forth in plaintiff's complaint. When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, no presumption of truthfulness attaches to the plaintiff's allegations. Id. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff will have the burden of proving that jurisdiction does in fact exist. Thornhill Publ'g Co., 594 F.2d at 733.

The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "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). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.

In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).

II. Analysis

A. Statute of ...


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