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Nancy Mullen v. Office of Personnelmanagement; Equal Employment Opportunity Commission

August 14, 2012



This case, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Defendants move to dismiss plaintiff's first amended complaint pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(1), 12(b)(6), 8(a)(2), 10(b), 12(b)(5), and 4(m). Dckt. No. 22. For the reasons stated herein, the undersigned recommends that defendants' motion to dismiss be granted without leave to amend.


Plaintiff filed an original complaint against the Office of Personnel Management ("OPM") and the Equal Employment Opportunity Commission ("EEOC") on August 1, 2011, alleging violations of the federal Fair Labor Standards Act ("FLSA") and the Equal Pay Act.*fn1 Dckt. No. 1. Plaintiff's claims are not easily explained. Plaintiff alleges that she was an employee of the U.S. Bureau of Reclamation ("USBR") who accepted an early retirement that "was given to [her] by [OPM], and approved by [EEOC]" so that plaintiff could complete a "special assignment to Rebuild America." Id. at 1, 2. She alleges that this amounted to a "wrongful termination," and that "[t]he wrongful termination given by OPM was agreed to under duress on 4/30/1994 from the USBR, and not being fully informed about the work as a consultant for the USBR." Id. at 2. She contends that she "accomplished the work for the special assignment by studying at colleges and universities (about 10 years) to qualify [her] for a job to increase [her] salary," and that she is "really complaining about the low salary for this special assignment." Id. She contends that "from 2004 to the present, [she] was using [her] paralegal education and 'know how' to continue this special assignment through communications for security reasons." Id.

Plaintiff's original complaint also alleges that "[a]t the time of [her] retirement, OPM neglected to give [her] instructions on who, what, where, when and how [she] could be reemployed for additional income to supplement [her] early retirement benefits." Id.

Plaintiff also alleges that OPM "denied [her] rights to the jobs [she] had earned inside the federal government," and "request[s] to be reemployed as GS-12 or above in the federal government at a fair salary because [her] rights have been violated." Id. at 2.

According to plaintiff's original complaint, plaintiff left her GS-11 job at USBR, taking a 4-month leave without pay, to accompany her husband to Germany. Id at 2-3. She contends that she was assured by OPM that she would have no problem getting a job at the Air Force Base where her husband was being relocated, and argues that "[t]hey didn't explain that I would be taking a downgrade to a GS-5, Secretary." Id. at 3. She further alleges that "because I do not have return rights to USBR, it won't be until 1992 that I am reemployed at USBR to correct the NO RETURN RIGHTS. However, no correction to the years spent as a GS-05 to GS-11 are made, . . . ." Id.

The original complaint also alleges that OPM retaliated against plaintiff "for speaking to the Federal Women's Program (FWP) the winter of 1989 about having no return rights may be the reason for the early retirement at a low salary." Id. She contends that "[t]he EEO both in Germany and at the USBR should have found my grade level inadequate and the salary too low for these special assignments [to Rebuild America]." Id. She contends that the "EEO's job is [to] help federal employees to obtain or retain adequate job salaries not just coordinate with OPM." Id. She also contends that "[t]he EEO Office reviewed my early retirement application, but I believe now it was an approval for a special assignment to Rebuild America. The salary for the special assignment was not comparable to my GS-12 salary at the time of the early retirement." Id. at 4.

Then, after defendants moved to dismiss plaintiff's complaint, plaintiff filed a "More Definite Statement," Dckt. No. 17, which the undersigned construed as a motion to amend the complaint and which was granted. Dckt. No. 18. Plaintiff filed an amended complaint on January 26, 2012. Dckt. No. 20. The first amended complaint states that her "complaint is in the Women's Rights," and alleges that plaintiff's "early out" administered by OPM and the EEOC "had the plaintiff continue working for the federal government at a retirement income" and therefore plaintiff "is asking for $1,076,629 in back salary for 1995-2011." Id. at 1. Plaintiff cites the FLSA and alleges that "[i]t was clearly Sex Discrimination for the no promotion which was prevented by the special assignment (early retirement)." Id. at 2. Plaintiff further cites the Equal Protection Clause of the Fourteenth Amendment and the Equal Pay Act. Id. She then alleges that she "was previously the Federal Women's Program Keynote Speaker, and believes OPM and EEOC may be retaliating because of her speech to the federal workers . . . about the unfairness of job assignments." Id at 4. She contends that her "cause of action [is] sex discrimination for job qualifications and retaliation." Id. at 5.

Plaintiff contends that the statute of limitations does not apply because "April 1994 was just the beginning of this special assignment." Id. at 4. She further argues that a waiver of sovereign immunity is unnecessary since "[a] top secret to do classified work was required for the job in Germany and it may be one of the reasons the Plaintiff was chosen for the Special Assignment (early retirement)." Id. at 5.


Defendants move to dismiss plaintiff's first amended complaint, arguing that the motion should be dismissed pursuant to (1) Rule 12(b)(1) for lack of subject matter jurisdiction; (2) Rule 12(b)(6) for failure to state a claim upon which relief can be granted; (3) Rule 8(a)(2) for failure to include a short and plain statement of the claim showing that plaintiff is entitled to relief; (4) Rule 10(b) because the narrative is not delineated by paragraph numbers or separated by meaningful headings that clearly identify each specific claim that is being asserted; (5) Rule 12(b)(5) for insufficient service of process; and (6) Rule 4(m) for plaintiff's failure to effect timely service of process. Dckt. No. 22. Plaintiff opposes the motion. Dckt. Nos. 23, 30.*fn2

A. Legal Standards Under 12(b)(1) "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute . . . ." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, (1994) (internal citations omitted). Rule 12(b)(1) allows a party to seek dismissal of an action where federal subject matter jurisdiction is lacking. "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir.2001).

A party may seek dismissal for lack of jurisdiction "either on the face of the pleadings or by presenting extrinsic evidence." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a factual challenge, the court may consider evidence demonstrating or refuting the existence of jurisdiction. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). "In such circumstances, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude ...

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