United States District Court, S.D. California
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND
DISMISSING WITHOUT PREJUDICE PLAINTIFF'S COMPLAINT (ECF
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE.
before the Court is Defendant Megan J. Brennan's Motion
to Dismiss Plaintiff's Complaint (“Mot., ”
ECF No. 5). Also before the court are Plaintiff Cynthia
Whitten's Opposition to (“Opp'n” ECF No.
6) and Defendant's Reply in Support of (“Reply,
” ECF No. 7) the Motion. The Court vacated the hearing
and took the matter under submission without oral argument
pursuant to Civil Local Rule 7.1(d)(1). ECF No. 8. Having
carefully considered Plaintiff's Complaint, the
Parties' arguments, and the law, the Court
GRANTS Defendant's Motion.
is an employee of the United States Postal Service
(“USPS”). ECF No. 1 (“Compl.”) ¶
11. Plaintiff alleges that she was the victim of both sexual
harassment and racial discrimination in violation of Title
VII because of certain conduct by her supervisor. See
generally Id. ¶¶ 11-49. The alleged conduct by
Plaintiff's supervisor includes Plaintiff's
supervisor “grabbing his penis suggestively and saying:
‘Good Morning![, ]' taunting her, ” and
“ogl[ing] and leer[ing] at Plaintiff in a sexual and
intimidating manner.” Id. ¶ 16.
filed a complaint with the EEOC on or about April 16, 2012.
Id. ¶ 8. Following an administrative hearing,
the EEOC denied Plaintiff's claims. See id.
Although Plaintiff appealed the EEOC's denial, the EEOC
dismissed Plaintiff's appeal on September 18, 2018,
because the appeal was “untimely.” See
Id. ¶ 9; see also Compl. Ex. A, ECF No
December 17, 2018, Plaintiff filed this lawsuit, alleging two
causes of action for sexual harassment and racial
discrimination under Title VII of the Civil Rights Act, 42
U.S.C. § 2000e-2(a)(1). See generally ECF No.
1. Claiming that Plaintiff's action is legally infirm
because Plaintiff failed to exhaust her administrative
remedies by failing to file a timely EEOC appeal, Defendant
filed the instant Motion on June 10, 2019. See
generally ECF No. 5.
Rule of Civil Procedure 12(b)(1) allows a party to assert by
motion the defense that there is a lack of subject matter
jurisdiction. Fed.R.Civ.P. 12. “A Rule 12(b)(1)
jurisdictional attack may be facial or factual.”
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004) (citing White v. Lee, 227 F.3d 1214,
1242 (9th Cir.2000). “A ‘facial' attack
accepts the truth of the plaintiff's allegations but
asserts that they ‘are insufficient on their face to
invoke federal jurisdiction.'” Leite v. Crane
Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (quoting
Safe Air, 373 F.3d at 1039). “The district
court resolves a facial attack as it would a motion to
dismiss under Rule 12(b)(6): Accepting the plaintiff's
allegations as true and drawing all reasonable inferences in
the plaintiff's favor, the court determines whether the
allegations are sufficient as a legal matter to invoke the
court's jurisdiction.” Id. (citing
Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir.
argues that jurisdiction is lacking because Plaintiff failed
to exhaust her administrative remedies, “which is a
precondition to filing suit in district court.”
See ECF No. 5-1 at 2 (citing Vinieratos v. U.S.
Dept. of Air Force, 939 F.2d 762, 768 (9th Cir. 1991)).
Defendant specifically argues that Plaintiff failed to
exhaust her administrative remedies by failing to submit a
timely appeal to the EEOC. Id. at 3. Defendant
therefore argues that Plaintiff's Complaint “should
be dismissed without leave to amend.” Id. at
4. Plaintiff seemingly concedes that she failed to exhaust
her administrative remedies but nonetheless argues that she
is “excused from the exhaustion requirement because her
claim is administratively futile and she would suffer
irreparable harm if the requirement is enforced against
her.” Opp'n at 7. Defendant counters that there are
no exceptions to the mandatory exhaustion of administrative
remedies under Title VII and Plaintiff does not establish
eligibility for equitable tolling. Reply at 1-2.
Consequently, the Court must first determine whether there
are exceptions to the exhaustion of administrative remedies
requirement and, if so, whether Plaintiff is covered by any
of those exceptions.
relies on Daly-Murphy v. Winston, 837 F.2d 348 (9th
Cir. 1988), in asserting that there are exceptions to Title
VII's requirement for exhaustion of administrative
remedies. See Opp'n at 4. In
Daly-Murphy, the district court granted summary
judgment against an anesthesiologist with the United States
Department of Veterans Affairs who alleged that her clinical
privileges had been suspended in violation of the
Administrative Procedure Act and Privacy Act. 837 F.2d at
350. The Ninth Circuit affirmed, finding that the district
did not abuse its discretion in requiring the appellant to
exhaust her administrative remedies because “the
administrative procedures involved . . . [we]re valid and no
irreparable injury [wa]s involved.” Id. at
354. In reaching this conclusion, the court explained:
Under normal circumstances, a party must exhaust its remedies
before it can obtain judicial review of an agency
decision.” . . . The purpose of the exhaustion doctrine
is to allow the administrative agency in question to exercise
its expertise over the subject matter and to permit the
agency an opportunity to correct any mistakes that may have
occurred during the proceeding, thus avoiding unnecessary or
premature judicial intervention into the administrative
process. . . . There are several exceptions to the exhaustion
requirement, however. Exhaustion of administrative remedies
is not required where the remedies are inadequate,
inefficacious, or futile[;] where pursuit of them would
irreparably injure the plaintiff[;] or where the
administrative proceedings themselves are void. . . . Unless
it is specifically required by statute, application of the
doctrine of exhaustion of administrative remedies is within
the sound discretion of the district court. . . . We will not
disturb a district court's determination of whether
exhaustion is required unless that has been a clear abuse of
this limited discretion.
Id. (first, second, fifth, and sixth alterations in
original) (quoting United Farm Workers v. Ariz. Agr.
Empm't, 669 F.2d 1249, 1253 (9th Cir. 1982)).
although the Ninth Circuit in Daly-Murphy
acknowledged the existence of exceptions to the doctrine of
exhaustion of administrative remedies, it also made clear
that those exceptions are “limited” and that
there is significant importance in preserving the
administrative process. Further, neither the district court
nor the Ninth ...