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Drazich v. Mabus

United States District Court, N.D. California, San Jose Division

May 16, 2014

BRIAN F. DRAZICH, Plaintiff,
v.
RAYMOND EDWIN MABUS, JR., Secretary of the Navy, and Does 1 through 100, inclusive, Defendants.

ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS WITH LEAVE TO AMEND [RE: ECF 16]

BETH LABSON FREEMAN, District Judge.

Plaintiff Brian F. Drazich sues under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., claiming that he was discriminated against on the basis of age during his employment as a patent attorney for the United States Navy. Specifically, Plaintiff claims that he was subjected to harassment and a hostile workplace and that his security clearance was revoked for pretextual reasons in order to facilitate his termination. Following revocation of his security clearance, Plaintiff's employment was terminated on the basis that he could not perform his job duties without the clearance. Defendant Raymond Edwin Mabus, Jr., Secretary of the Navy, seeks judgment on the pleadings on the bases that the Court lacks jurisdiction to review the security clearance decision and thus lacks jurisdiction to review Plaintiff's termination, and that Plaintiff failed to satisfy an administrative prerequisite to filing suit under the ADEA.

The Court has considered the briefing submitted by the parties as well as the oral argument presented at the hearing on May 15, 2014. For the reasons discussed below, Defendant's motion is GRANTED WITH LEAVE TO AMEND.

I. BACKGROUND

Plaintiff, who is proceeding pro se, alleges the following facts. In May 2006, Plaintiff was hired as the only patent attorney in the Office of the General Counsel assigned to the Naval Air Systems Command, Naval Air Warfare Center Weapons Division, China Lake, California. (Compl. ¶ 9, ECF 1) Plaintiff, then age sixty-three, was hired to fill a vacancy left by Charlene Haley ("Haley"), who had resigned from her position as a Navy patent attorney in order to take a job in the private sector. ( Id. at p. 2 and ¶¶ 10, 12)[1] Plaintiff performed his duties without incident from his date of hire until approximately December 2008. ( Id. ¶ 15) During that period, Plaintiff received satisfactory performance reviews from his direct supervisor, John McCollum ("McCollum"). ( Id. ¶ 15) Plaintiff was "by far" the oldest attorney in the group supervised by McCollum. ( Id. ¶ 13)

In October 2008, Haley was rehired and given the position of lead patent attorney. (Compl. ¶¶ 20, 22) At that time Haley was approximately forty to forty-two years old. ( Id. ¶ 19) Beginning in December 2008, Haley and McCollum criticized Plaintiff frequently. ( Id. ¶¶ 25-31) Haley spoke to Plaintiff as though he were feeble-minded and told him he was "too slow." ( Id. ¶¶ 30-31) Moreover, if Plaintiff worked beyond his regular hours, McCollum shouted at Plaintiff to leave. ( Id. ¶ 32) In April 2009, McCollum required Plaintiff to report the time of his daily arrival to one of three paralegals. ( Id. at ¶ 33) McCollum also had the office suite re-keyed so that Plaintiff had access only to his own office; unlike other employees, Plaintiff no longer had access to the printer and copier rooms. ( Id. ¶ 34) McCollum told Plaintiff that he had taken these measures to ensure that Plaintiff did not defraud the government and because McCollum did not trust Plaintiff. ( Id. ) In March or April 2009, Plaintiff began noticing that things in his office appeared to have been moved. ( Id. ¶ 35) Throughout 2009, Plaintiff was given less work to do. ( Id. ¶ 36) He nonetheless had difficulty obtaining approval for vacation time. ( Id. ¶ 37)

In May 2009, Plaintiff cleaned out a credenza in his office; it was filled with documents that Haley had worked on prior to Plaintiff's hiring. (Compl. ¶ 38) After determining that the documents did not contain any information not already in the public domain, Plaintiff put some of the documents in his office wastebasket. ( Id. ¶¶ 39-40) On May 12, 2009, Plaintiff discovered that someone had taken the documents from his wastebasket. ( Id. ¶ 41) McCollum mischaracterized the documents as "sensitive" in an effort to get Plaintiff's security clearance revoked and his employment terminated. ( Id. ¶ 44) Plaintiff believes that McCollum was motivated by a discriminatory animus arising from Plaintiff's age. ( Id. )

On April 29, 2010, Plaintiff attended a meeting with Haley, McCollum, and McCollum's unofficial deputy, Allyson Swaney ("Swaney"). (Compl. ¶¶ 24, 54) During the meeting, Plaintiff accused McCollum of age discrimination, and McCollum did not deny the accusation. ( Id. ¶ 55) In May 2010, Plaintiff told Paul Oosburg, General Counsel of the Navy, and other upper level managers that McCollum had harassed him since 2008. ( Id. ¶ 57) Plaintiff was placed on involuntary leave in May 2010.[2] ( Id. ¶ 31) Plaintiff was terminated from employment in November 2011.[3]

Based upon these allegations, Plaintiff asserts two claims for violation of the ADEA. Claim 1 alleges that Plaintiff's employment was terminated because of his age.[4] (Compl. ¶ 64, ECF 1) Claim 2 alleges that Plaintiff was subjected to harassment and a hostile workplace. ( Id. ¶ 73) Defendant filed an answer on February 14, 2014, an amended answer on March 7, 2014, and the present motion for judgment on the pleadings on March 13, 2014. (Answer, ECF 10; Am'd Answer, ECF 15; and Mot., ECF 16)

II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(c)

"After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). A motion for judgment on the pleadings based upon lack of subject matter jurisdiction is evaluated under the standards applicable to a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(1). Shoshone Indian Tribe of Wind River Reservation v. United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012) (citing 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Civil Procedure § 1367 (3d ed. 2004)); San Luis Unit Food Producers v. United States, 772 F.Supp.2d 1210, 1218 (E.D. Cal. 2011). A motion for judgment on the pleadings based upon failure to state a claim is evaluated under the standards applicable to a motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6). McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988).

B. Federal Rule of Civil Procedure 12(b)(1)

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) raises a challenge to the Court's subject matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). "A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the movant asserts that the lack of subject matter jurisdiction is apparent from the face of the complaint. Id. In a factual attack, the movant disputes the truth of allegations that otherwise would give rise to federal jurisdiction. Id. "In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Id. "The court need not presume the truthfulness of the plaintiff's allegations." Id. Once the ...


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