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Tekleabib v. Tillerson

United States District Court, N.D. California

June 22, 2017



          MAXINE M. CHESNEY United States District Judge.

         Before the Court is defendant Rex W. Tillerson's "Motion to Dismiss Plaintiff's Complaint for Damages Pursuant to Federal Rule of Civil Procedure 12(b)(1), " filed April 21, 2017. Plaintiff Elizabeth Tekleabib has filed opposition, to which defendant has replied.[1] Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.[2]


         In her complaint, plaintiff, who was formerly employed by the United States Department of State as a Passport Specialist (see Compl. ¶ 7), asserts two claims, each alleging a violation of Title VII of the Civil Rights Act.

         In Claim One, titled "Race Discrimination, " plaintiff alleges that, "[d]uring her employment, " she "suffered discrimination based on her race, color, and national origin, " identified as, respectively, "Black, African/African-American, Ethiopian, " and gives the following "examples" of discriminatory acts: (1) "[b]eing disciplined, including being put on a performance improvement plan and given a letter of admonishment"; (2) "[b]eing given low performance ratings"; (3) "[h]aving her work performance subject to extreme scrutiny, and working under different terms and conditions of employment than non-Black co-workers"; and (4) "[h]aving her performance criticized for not 'articulating' well enough (because she had an accent)." (See Compl. ¶ 9.) According to plaintiff, "[n]on-Black co-workers who made more errors than plaintiff were not subject[ed] to discipline." (See Compl. ¶ 10.)

         In Claim Two, also titled "Race Discrimination, " plaintiff alleges that, "[d]uring her employment, " she "was subjected to a hostile work environment based on her race/color/ national origin, including but not limited to being placed under extra scrutiny and excessive monitoring, being subjected to inappropriate racially based comments, receiving less support than non-African American coworkers, having false allegations made against her, and being subjected to intimidation and bullying." (See Compl. ¶ 17.)


         Defendant seeks dismissal of plaintiff's complaint, on the asserted ground that plaintiff did not exhaust her administrative remedies.

         At the outset, the Court addresses the procedure by which defendant has raised the issue of exhaustion. Defendant contends that a failure to exhaust deprives a district court of jurisdiction and, consequently, that the instant motion is properly brought under Rule 12(b)(1). Relying on cases holding that a party seeking dismissal under Rule 12(b)(1) may offer evidence in support thereof, see, e.g., Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (holding district court did not err in considering "evidence outside the complaint" to resolve motion to dismiss for lack of subject matter jurisdiction), defendant has submitted thirteen exhibits as support for the instant motion. As the Ninth Circuit has explained, however, "[courts] do not recognize administrative exhaustion under Title VII as a jurisdiction requirement per se, " but, rather, as a "condition precedent to suit which a defendant may waive or be estopped from asserting." See Vinieratos v. United States, 939 F.2d 762, 768 n.5 (9th Cir. 1991) (internal quotation and citation omitted). Nonetheless, the Court will consider defendant's evidence as, even if the motion had been brought under Rule 12(b)(6), each of the exhibits on which defendant relies is one as to which the Court ordinarily may take judicial notice[3] and plaintiff has not challenged the authenticity of any of those exhibits; indeed, plaintiff herself has relied on several of them in her opposition.

         The Court next considers the steps a federal employee must take to exhaust administrative remedies.

         "Title VII specifically requires a federal employee to exhaust his administrative remedies as a precondition to filing suit." Vinieratos, 939 F.2d at 767-68. The Federal Labor-Management Relations Act, specifically, 5 U.S.C. § 7121(d), "governs the methods and manner by which a federal employee with exclusive union representation may challenge an adverse personnel decision by the government agency that employs him." See id. at 768. Under § 7121(d), "a federal employee who alleges employment discrimination must elect to pursue his claim under either a statutory procedure or a union-assisted negotiated grievance procedure; he cannot pursue both avenues, and his election is irrevocable." See id. "An employee shall be deemed to have exercised his option under [§ 7121(d)] to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first." 5 U.S.C. § 7121(d).

         Where a plaintiff alleges discrimination on the basis of race, color, or national origin, the applicable statutory procedure is that set forth in Title VIII, see 29 U.S.C. § 2000e-16, and in regulations promulgated by the Equal Employment Opportunity Commission ("EEOC"), see 29 C.F.R. §§ 1614.101-1614.707. Specifically, a federal employee who elects to pursue a discrimination claim under such statutory procedure must first consult with an equal employment opportunity ("EEO") counselor, see 29 C.F.R. §§ 1614.102(b)(6), 1614.105(a), and, if dissatisfied with the outcome of the counseling, must then file an EEO complaint, see 29 C.F.R. § 1614.106. "[T]he filing of a written [EEO] complaint" constitutes a federal employee's election to proceed using the EEO process. See 29 C.F.R. § 1614.301(a).

         Here, plaintiff alleges she filed with the EEOC a "formal complaint of discrimination on her claims." (See Compl. ¶ 3.) Defendant has not disputed said allegation, and, indeed, has submitted evidence, specifically, correspondence from the EEOC to plaintiff (see Falis Decl. Exs. B-D), that establishes a formal EEO complaint was filed. (See Id. Ex. B (acknowledging receipt of "Formal Complaint of Discrimination dated April 10, 2013"); Ex. C (acknowledging receipt of EEO complaint alleging discrimination on basis of race, color, and national origin;[4] identifying allegedly discriminatory acts as placement on "Performance Improvement Plan, " receiving "letter of reprimand, " and being "subjected to a hostile work environment characterized by, but not limited to, inappropriate comments, false allegations, intimidating behavior, and excessive monitoring").)[5] In sum, plaintiff's filing of an EEO complaint constituted her irrevocable election to exhaust her administrative remedies through the EEO process with respect to the matters raised therein, specifically, (1) her placement in a performance improvement plan and her receipt of a letter of reprimand, which actions are challenged in Claim One of the instant action, [6] and (2) her subjection to a hostile work environment, which actions are challenged in Claim Two.

         Where, as here, a plaintiff elects to exhaust discrimination claims through the EEO process, the plaintiff is then "committed" to complete that process. See Vinieratos, 939 F.2d at 769. To complete the EEO process, the plaintiff must "receive a notice of right to sue." See Waters v. Heublein, 547 F.2d 466, 468 (9th Cir. 1976). Here, plaintiff alleges she received a "right to sue notice from the EEOC" (see Compl. ¶ 3), which allegation defendant has not disputed; indeed, defendant has submitted the right to sue notice (see Falis Decl. Ex. M at 3.)[7] Nevertheless, defendant argues, plaintiff failed to exhaust ...

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