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Jordan v. Presidio Trust

United States District Court, N.D. California

November 15, 2017

PATRICIA JORDAN, Plaintiff,
v.
THE PRESIDIO TRUST, et al., Defendants.

          ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT RE: DKT. NO. 79

          KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Patricia Jordan brings the instant action against Defendants Presidio Trust, the United States Equal Employment Opportunity Commission ("EEOC"), Jean S. Fraser, and Jenny R. Yang. (Second Amended Compl. ("SAC"), Dkt. No. 78.) Plaintiff alleges that she was terminated from her position with the Presidio Trust based on her age and gender, and brings a single cause of action under the Administrative Procedures Act ("APA"). (SAC ¶¶ 1, 5.) Defendants now move to dismiss Plaintiff's second amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Defs.' Mot., Dkt. No. 79.)

         Having considered the papers filed by the parties, the relevant legal authority, and the arguments advanced by counsel at the November 2, 2017 hearing, the Court GRANTS Defendants' motion to dismiss.

         I. BACKGROUND

         A. Factual Background

         The Presidio Trust ("Trust") was established as a wholly-owned government corporation to manage the Presidio, located in the Golden Gate National Recreation Area. Presidio Trust Act, Pub. L. No. 104-333 (1996) (codified as amended at 16 U.S.C. § 460bb appendix (2001)). The Presidio Trust Act exempts the Trust from certain federal laws and regulations. E.g., Presidio Trust Act § 104(b) (exempting the Trust from procurement requirements). At issue in this suit is § 103(c)(7), which states:

(7) Staff.-Notwithstanding any other provision of law, the Trust is authorized to appointment and fix the compensation and duties and terminate the services of an executive director and such other officers and employees as it deems necessary without regard to the provisions of title 5, United States Code, or other laws related to the appointment, compensation or termination of Federal employees.

         In 2004, Deputy Attorney General Noel J. Francisco issued an opinion concluding that the Trust was exempt from section 717 of Title VII of the Civil Rights Act and section 15 of the Age Discrimination in Employment Act ("ADEA"), to the extent these statutes applied to appointment, compensation, duties, or termination of Trust employees. Applicability of Anti-Discrimination Statutes to the Presidio Trust, 28 Op. Att'y Gen. 84, 84-85 (2004). In 2006, the Trust issued the "Presidio Trust Procedures Related to Claims of Workplace Discrimination, " which created a "framework for adjudicating complaints of discrimination where issues arise." (SAC, Exh. 2 at 1.) The Presidio Trust Procedures required that claims of discrimination or retaliation that related to the appointment, compensation, or termination of employees be processed in accordance with the Presidio Trust Procedures, and could not be raised to the EEOC. (Id. at 2.)

         Plaintiff worked at the Presidio's Office of the Executive Director from December 2, 2013 to August 2, 2014. (SAC ¶¶ 32-34.) During her employment Plaintiff had a medical condition affecting her uterus. (SAC ¶ 35.) In May 2014, Plaintiff had a medical problem requiring treatment, requiring her to go to her direct supervisor, Joshua Steinberger. (SAC 37-7, 39.) After Plaintiff explained her problem, Steinberger responded, "It is what it is" in a cold and impersonal tone. (SAC ¶¶ 39-2, 39-4-39-5.) Although Steinberger had previously been friendly to Plaintiff, following the meeting "he looked at Jordan like she had some type of terrible disease" and "never smiled at her anymore." (SAC ¶¶ 39-9-39-12.) Steinberger excluded Plaintiff from a departmental quarterly retreat, despite having invited her before. (SAC ¶¶ 40-1-40-3.) Plaintiff also alleges that when a co-worker asked Steinberger about his weekend, he walked over to where Plaintiff was sitting and talked about how he had "cleaned out his underwear drawer" and bought new underwear, and "how great it felt wearing clean underwear." (SAC ¶¶ 41-2-41-5.) He then looked at Plaintiff and winked; Plaintiff "felt the clear implication was she was wearing dirty, soiled underwear due to her problem, " and that he was trying to demean her in front of the group. (SAC ¶¶ 41-6-41-8.) Plaintiff then went to the restroom and cried, humiliated. (SAC ¶ 41-10.)

         On July 2, 2014, Plaintiff was informed by Steinberger and Human Resources Director Bart Ferrell that it was her last day of employment. (SAC ¶ 42-5.) Plaintiff was shocked, but when she asked why, Ferrell told her that no reason had to be given because she was an at-will employment. (SAC ¶¶ 42-6-42-8.) Ferrell gave her a document which stated that the reason for termination was due to "lack of funds." (SAC ¶¶ 42-12-42-14.) On November 14, 2014, Plaintiff noticed that the Presidio had re-advertised her prior position. (SAC ¶¶ 44-1, 44-5.)

         Plaintiff filed a claim with the EEOC and the California Department of Fair Employment and Housing. (SAC ¶¶ 46-1-46-2.) Both agencies informed her that her claim was outside their jurisdiction because she was a federal employee. (SAC ¶¶ 46-4-46-5.) Plaintiff was advised to visit the Presidio Trust's EEO Counselor. (SAC ¶ 46-6.) When Plaintiff contacted the Presidio, they were initially unable to provide the name and contact information of the EEOC Counselor. (SAC ¶ 50.) The Presidio later identified Keena Ashley as the EEOC counselor. (SAC ¶ 51.) On June 5, 2015, Plaintiff completed the intake questionnaire with Ashley, and was given the right to file a formal complaint. (SAC ¶¶ 52-53.) Plaintiff filed her formal complaint on July 10, 2015, and Ashley confirmed receipt on July 16, 2015. (SAC ¶¶ 54, 54-2.)

         On August 11, 2015, Ashley again confirmed receipt of Plaintiff's complaint, and provided the Presidio Trust Procedures. (SAC ¶¶ 45-6, 54-3.) Plaintiff alleges that this was the first time she was made aware of the Presidio Trust Procedures, as these procedures are not available online and were never provided to her when she was hired, during her employment, or when she was terminated. (SAC ¶¶ 45-4-45-11.)

         B. Procedural History

         On April 21, 2016, Plaintiff filed the instant suit, seeking declaratory relief on whether her discrimination claims are subject to the Presidio Trust Procedures, or whether her claims enjoy rights under Title VII, the ADEA, and EEOC regulations. (Compl., Dkt. No. 1.) On September 30, 2016, Defendants filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6). On January 30, 2017, the Court granted Defendants' motion to dismiss, finding that Plaintiff had: (1) failed to identify an express waiver of sovereign immunity applicable to her claim, (2) failed to establish subject matter jurisdiction, and (3) failed to demonstrate that she suffered actual injury. (Dkt. No. 49 at 7-9.) The Court gave Plaintiff leave to file an amended complaint adding APA claims. (Id. at 11.)

         On March 1, 2017, Plaintiff filed her first amended complaint, asserting two causes of action for declaratory relief and injunctive relief. (First Amended Compl. ("FAC"), Dkt. No. 51.) Defendants again filed a motion to dismiss. (Dkt. No. 63.) On July 5, 2017, the Court granted Defendants' motion to dismiss, explaining that declaratory relief and injunctive relief "are not independent causes of action, but remedies." (Dkt. No. 74 at 1 (internal quotation omitted).) The Court noted that in her opposition, Plaintiff suggested that she was actually bringing an APA claim, but explained that Plaintiff's complaint did not actually include an APA cause of action. (Id. at 2.) Thus, if Plaintiff intended to bring an APA claim, "she must explicitly plead such a claim in her amended complaint." (Id.) The Court further found that "[t]he APA claim should, at the very least, specifically identify the exact agency actions being challenged, whether it is the promulgation of the Presidio Trust Procedures . . ., the alleged 'interagency agreement' between the Defendants, or some other alleged final action." (Id.) The Court also observed that if Plaintiff was to bring an APA claim, there was a question of whether the agency discretion exception applied. (Id.)

         On August 11, 2017, Plaintiff filed her second amended complaint, asserting a single cause of action under the APA. (SAC ¶¶ 65-79.) On August 25, 2017, Defendants filed a motion to dismiss the second amended complaint pursuant to Rules 12(b)(1) and 12(b)(6). On September 25, 2017, Plaintiff filed her opposition to Defendants' motion to dismiss. (Plf.'s Opp'n, Dkt. No. 85.) On October 11, 2017, Defendants filed their reply. (Defs.' Reply, Dkt. No. 88.)

         II. ...


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