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Whitten v. Brennan

United States District Court, S.D. California

October 28, 2019

CYNTHIA WHITTEN, an individual, Plaintiff,
MEGAN J. BRENNAN, Postmaster General of the United States, Defendant.



         Presently 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.


         Plaintiff 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.

         Plaintiff 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 1-2.

         On 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.


         Federal 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. 2013)).


         Defendant 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.

         Plaintiff 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)).

         Consequently, 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 ...

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