United States District Court, S.D. California
ORDER DENYING MOTION TO DISMISS
DANA M. SABRAW UNITED STATES DISTRICT JUDGE.
before the Court is Defendants Elaine Chao and United States
Department of Transportation, Federal Aviation
Administration's motion to dismiss Plaintiff Kevin
Karpe's complaint. Plaintiff filed an opposition, and
Defendants filed a reply. For the reasons set forth below,
Defendants' motion is denied.
Kevin Karpe worked as an air traffic controller for the
Federal Aviation Administration (“FAA”) for 31
years and is now retired. (Compl. ¶ 17.) Plaintiff
served in various positions during his tenure with the FAA,
including his most recent positions as Operations Supervisor
and Air Traffic Manager. (Compl. ¶ 20.) Plaintiff was
informed that these two positions were “Good
Time” positions, and thus qualified for credits toward
early retirement. (Compl. ¶¶ 5, 20-21.) The more
good time credits an employee earns, the earlier he or she
can retire. (Compl. ¶ 5.) Approximately two years prior
to his retirement, Plaintiff discovered that these positions
did not qualify for good time credits, notwithstanding the
FAA's representations. (Compl. ¶¶ 22-23.) As a
result, Plaintiff was unable to retire early and instead
worked until age 56, the mandatory retirement age. (Compl.
appealed the FAA's determination to deny his good time
benefits. (Compl. ¶ 24.) After losing his appeal,
Plaintiff filed an EEOC complaint against the FAA, alleging
the FAA's misapplication and misrepresentation of its
retirement benefits policy discriminates based on age.
(Compl. ¶ 25; Def.'s Ex. 1 (Pl.'s EEOC
Complaint).) The EEOC denied Plaintiff's
administrative claim, following its investigation of the
claim. (Compl. ¶ 26.) Plaintiff thereafter filed the
present action alleging the FAA's misrepresentation of
its retirement benefits policy constitutes age discrimination
in violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 633a. Specifically,
Plaintiff asserts a disparate impact claim, alleging that air
traffic controllers over the age of 40 are disproportionately
impacted by the FAA's misrepresentations regarding good
time positions. (Compl. ¶ 35) (“[T]he agency's
administration of its early retirement or Good Time
retirement benefits program had a significant adverse
disparate impact on plaintiff and other qualified employees
over the age of 40 in violation of the ADEA.”))
contend this action should be dismissed because (1) disparate
impact claims under the ADEA are unavailable against the
federal government as Congress did not waive sovereign
immunity for such claims, (2) Plaintiff failed to provide
administrative notice of his disparate impact claim, and (3)
Plaintiff failed to adequately plead a disparate impact
claim. These arguments raise both jurisdictional and pleading
challenges. They are addressed in turn.
courts are courts of limited jurisdiction. Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377
(1994). “If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the
action.” Fed.R.Civ.P. 12(h)(3). A defendant may raise
the defense of lack of subject matter jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(1). The plaintiff
bears the burden of establishing jurisdiction.
Kokkonen, 511 U.S. at 377.
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the claims asserted
in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v.
Block, 250 F.3d 729, 731 (9th Cir. 2001). In deciding a
motion to dismiss, all material factual allegations of the
complaint are accepted as true, as well as all reasonable
inferences to be drawn from them. Cahill v. Liberty Mut.
Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). However, a
court need not accept all conclusory allegations as true.
Rather, it must “examine whether conclusory allegations
follow from the description of facts as alleged by the
plaintiff.” Holden v. Hagopian, 978 F.2d 1115,
1121 (9th Cir. 1992) (citation omitted). A motion to dismiss
should be granted if a plaintiff's complaint fails to
contain “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556).
Disparate Impact Claims Against Federal Employers
a waiver of sovereign immunity, federal courts lack subject
matter jurisdiction over claims against the United States.
United States v. Mitchell,445 U.S. 535, 538 (1980).
Congressional waiver of sovereign immunity may not be
inferred, implied or assumed, and courts must resolve any
perceived ambiguity regarding waiver of immunity in the
sovereign's favor. United States v. Nordic Village,
Inc., 503 U.S. 30, 34 (1992) (“[T]he