United States District Court, N.D. California
Pattie Gill, Plaintiff, Pro se, San Francisco, CA.
For General Services Administration, Defendant: Claire T. Cormier, LEAD ATTORNEY, United States Attorney's Office, Northern District of California, San Jose Branch, San Jose, CA.
ORDER RE: MOTION TO DISMISS Re: Dkt. No. 8
MARIA-ELENA JAMES, United States Magistrate Judge.
Pending before the Court is Defendant General Service Administration's (" GSA") Motion to Dismiss pursuant to Federal Rule of Civil Procedure (" Rule") 12(b)(1) and (6). Plaintiff Pattie Gill has filed an Opposition (Dkt. No. 16) and GSA has filed a Reply (Dkt. No. 18). The Court finds this matter suitable for disposition without oral argument. Civ. L.R. 7-1(b). Having considered the parties' positions, relevant legal authority, and the record in this case, the Court GRANTS GSA's 12(b)(1) Motion. As jurisdiction is lacking, GSA's 12(b)(6) Motion is DENIED AS MOOT.
Ms. Gill brings this case under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, et seq. Compl. ¶ 3, Dkt. No. 1. Attached to Ms. Gill's Complaint is an EEOC Denial of Consideration (" EEOC Denial"), dated June 12, 2014, which indicates that she is a former Procurement Technician for GSA and was terminated on September 13, 2012. EEOC Denial at 1-2. Although the allegations are not entirely clear, it appears that GSA placed Ms. Gill on medical leave on an unspecified date after chemicals from perfume sprayed in the office caused an infection on her face. Compl. ¶ 4; Finch Decl. ¶ 11 and Ex. H, Dkt. No. 8-4.
According to GSA, after a period of being considered Absent Without Leave (" AWOL"), GSA advised Ms. Gill on July 9, 2012 that she was being proposed for removal and that she had 15 days from the date of her receipt of the Notice of Proposed Removal to respond to it. Finch Decl. ¶ 4 and Ex. A. On July 18, 2012, GSA sent Ms. Gill a second, superseding Notice of Proposed Removal. Id. ¶ 5 and Ex. B. On July 24, 2012, Ms. Gill requested an extension of time to respond. Id. ¶ 6 and Ex. C. That request was granted on August 9, 2012. Id. ¶ 7 and Ex. D. On September 13, 2012, GSA sent a Decision on Proposed Removal with an effective removal date of September 21, 2012. Id. ¶ 8 and Ex. E. GSA states that it made multiple attempts to deliver the Decision on Proposed Removal, both to Ms. Gill and to her union. Mann Decl. ¶ ¶ 5-9 and Exs. A and B, Dkt. No. 8-2.
According to Ms. Gill, the United States Postal Service " and other delivery services" failed to deliver GSA's correspondence. Opp'n at 2, Dkt. No. 16. As a result, Ms. Gill states that she lost contact and GSA wrongly considered her AWOL. Id. However, after she learned of the termination, she immediately filed an EEO discrimination complaint. Id. at 2-3. Ms. Gill maintains that she first learned of the removal decision on October 29, 2012. Finch Decl. ¶ 12 and Ex. I.
On December 3, 2012, Ms. Gill sought to commence the EEO complaint process by speaking via telephone with Betta Ramos, GSA's Regional EEO Specialist in the Office of Civil Rights for the Pacific Rim Region. Ramos Decl. ¶ ¶ 1, 3, Dkt. No. 8-1. During their conversation, Ms. Gill alleged discrimination relating to the termination of her employment on September 21, 2012. Id. ¶ 3. On March 18, 2013, Ms. Gill filed a formal EEO complaint, which she amended on March 20, 2013. Id. ¶ 4; Finch Decl. ¶ ¶ 9-10 and Exs. F and G. On May 22, 2013, Ms. Gill corrected and signed an EEO Investigative Affidavit. Finch Decl. ¶ 11 and Ex. H. On June 26, 2013, GSA issued its decision dismissing the discrimination complaint as untimely and advising Ms. Gill that she could appeal to the Merit Systems Protection Board (" MSPB") or file a civil action within 30 days of receipt of the decision. Id. ¶ 12 and Ex. I.
Although there is nothing in the record from the MSPB proceedings, the June 12, 2014 EEOC Denial informed Ms. Gill that the MSPB had, on November 1, 2013, issued a decision dismissing her appeal of her removal on the grounds that it was untimely filed by almost a year without good cause. EEOC Denial at 1. The Denial advised Ms. Gill that she had 30 calendar days to file a civil action. Id. at 2.
Ms. Gill filed the present Complaint on June 30, 2014, alleging that GSA discriminated against her based on her race or color (Black African American), religion (Christian), sex (Female), national origin (unspecified), and a physical medical disability. Compl. ¶ 5. Ms. Gill also alleges unspecified " harassment." Id. She claims that the alleged discrimination took place on or about April 11, 2011. Id. ¶ 7. Ms. Gill states the " basic facts" surrounding her claim of discrimination as follows: " I truly deeply feel if I was a different race, religion, sex would not stand for what I believe my medical condition would not be mistreated." Id. ¶ 6.
GSA filed the present Motion to Dismiss on September 15, 2014. GSA argues that the Court lacks subject matter jurisdiction over Ms. Gill's discrimination claims as she cannot overcome the fact that she failed to exhaust her administrative remedies in a timely manner. Mot. at 2, Dkt. No. 8. Specifically, GSA argues that Ms. Gill failed to initiate the EEO process within 45 ...