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Karpe v. Chao

United States District Court, S.D. California

June 27, 2019

KEVIN KARPE, Plaintiff,
ELAINE CHAO, Secretary of Transportation, and DEPARTMENT OF TRANSPORTATION FAA, Agency, Defendants.



         Pending 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.

         I. BACKGROUND

         Plaintiff 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. ¶¶ 13-14.)

         Plaintiff 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)[1].) 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.”))

         Defendants 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.


         A. Rule 12(b)(1)

         Federal 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.

         B. Rule 12(b)(6)

         A 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).


         A. Disparate Impact Claims Against Federal Employers

         Absent 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 Government's ...

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