United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS WITHOUT
PREJUDICE; ORDER VACATING HEARINGS (ECF NO. 6)
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
Plaintiff,
proceeding without counsel (“pro se”), alleges
claims under Title VII, 42 U.S.C. § 2000e. (ECF No. 1.)
Plaintiff's form complaint names the Department of
Veterans Affairs and two of the Department's employees as
Defendants, and appears to allege the following claims: (A)
disparate treatment based on race, (B) hostile work
environment, (C) retaliation, and (D) disability
discrimination. (See Id.) Defendants moved to
dismiss, arguing the Complaint is deficient on multiple
grounds. (ECF No. 6-1.) Plaintiff admitted certain
deficiencies, but generally opposed dismissal. (ECF No. 8.)
Defendant submitted a reply. (ECF No. 9.)
For the
reasons discussed below, the Court recommends Defendant's
motion to dismiss, be granted, and the case be dismissed
without prejudice.[1]
Legal
Standard
A
motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the sufficiency of the
pleadings set forth in the complaint. Vega v. JPMorgan
Chase Bank, N.A., 654 F.Supp.2d 1104, 1109 (E.D. Cal.
2009). When a court considers whether a complaint states a
claim upon which relief may be granted, all well-pled factual
allegations must be accepted as true, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), and the complaint must
be construed in the light most favorable to the non-moving
party, Corrie v. Caterpillar, Inc., 503 F.3d 974,
977 (9th Cir. 2007). To avoid dismissal for failure to state
a claim, a complaint must contain more than “naked
assertions, ” “labels and conclusions, ” or
“a formulaic recitation of the elements of a cause of
action.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555-57 (2007). Simply, the complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 570). “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.”
Id. The court is not, however, required to accept as
true “conclusory [factual] allegations that are
contradicted by documents referred to in the complaint,
” or “legal conclusions merely because they are
cast in the form of factual allegations.” Paulsen
v. CNF Inc., 559 F.3d 1061, 1071 (9th Cir. 2009).
Pro se
pleadings are to be liberally construed. Hebbe v.
Pliler, 627 F.3d 338, 342 & fn.7 (9th Cir. 2010)
(courts continue to construe pro se filings liberally even
post-Iqbal). Prior to dismissal, the court is to tell the
plaintiff of deficiencies in the complaint and give the
plaintiff an opportunity to cure them if it appears at all
possible the defects can be corrected. See Lopez v.
Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc).
However, if amendment would be futile, no leave to amend need
be given. Cahill v. Liberty Mut. Ins. Co., 80 F.3d
336, 339 (9th Cir. 1996). Although the court may not consider
information in an opposition brief to determine whether a
complaint should be dismissed, this information may be
considered in deciding whether to grant leave to amend. See,
e.g., Broam v. Bogan, 320 F.3d 1023, 1026 fn. 2 (9th
Cir. 2003).
Analysis
I.
Exhaustion of Administrative Remedies
Before
a federal employee may file a Title VII complaint in court,
he must first exhaust his administrative remedies by
“seek[ing] relief in the agency that has discriminated
against him.” Brown v. General Servs. Admin.,
425 U.S. 820, 832 (1976). To do so,
“[a] claimant . . . must first ‘consult with an
Equal Opportunity Counselor to try to resolve the
matter.' . . . If this informal effort fails to satisfy
him, then the claimant may file a formal EEO complaint. Only
after a final disposition of such a formal complaint can the
claimant seek judicial review.”
Vinieratos v. U.S., Dept. of Air Force Through
Aldridge, 939 F.2d 762, 768-69 (9th Cir. 1991) (emphasis
added). A “final disposition” of the formal
complaint may mean one of the following: “(a) adoption
by the relevant government agency of the EEO counselor's
final report, (b) a final decision by the EEOC . . . or (c)
passage of 180 days without receipt of a final decision by
either the relevant agency or the EEOC.” Id.
at 769, fn.6 (emphasis added). A plaintiff is required to
exhaust his administrative remedies prior to filing suit. Cf.
Vinieratos, 939 F.2d at 768, fn.5 (“We do not recognize
administrative exhaustion under Title VII as a jurisdictional
requirement per se . . . [rather] the issue is whether the
plaintiff has satisfied a statutory precondition to
suit.” (emphasis original)); with Sommatino v.
United States, 255 F.3d 704, 708 (9th Cir. 2001)
(“[S]ubstantial compliance with the presentment of
discrimination complaints to an appropriate administrative
agency is a jurisdictional prerequisite.”) see also
Heckler v. Ringer, 466 U.S. 602, 619 (1984)
(“[T]he purpose of the exhaustion requirement is to
prevent premature interference with agency processes and to
give the agency a chance to compile a record which is
adequate for judicial review.”) (cleaned up)).
Here,
Plaintiff consulted with the VA's EEO counselor in early
2019. (ECF No. 6-2 at 6.) On May 29, 2019, Plaintiff received
a “Notice of Right to File a Discrimination Complaint,
” which informed him of his right to file a formal EEO
complaint against the VA. (Id.) The documents before
the Court show that Plaintiff filed this formal complaint on
May 30, 2019. (See ECF Nos. 1 at 27 and 6-2 at 4.) Therefore,
the law dictates that he cannot file a complaint in federal
court (on the issues he presented to the EEO) until November
26, 2019-180 days after filing his formal EEO
complaint.[2] (See ECF No. 6-2 at 10; 42 U.S.C.A. §
2000e-5.) Because Plaintiff filed his complaint in the
instant action on July 17, 2019 (ECF No. 1), this action is
four months premature and thus subject to dismissal. See
Wrighten, 726 F.2d at 1351 (noting that
“[p]remature suits are always subject to a motion to
dismiss”).
II.
Substance of Plaintiff's Discrimination Claims
Plaintiff,
acting pro se, opposed Defendant's motion to dismiss.
(ECF No. 8.) Given this fact, it is clear to the Court that
if the EEO has not issued a final report by November 26 (the
180- day deadline for exhaustion of his claims), it is likely
Plaintiff will file a new case in this district. Thus, the
Court provides the following additional statements of law for
Plaintiff's consideration.
Title
VII of the Civil Rights Act of 1964 prohibits employers from
“‘fail[ing] or refus[ing] to hire or
discharg[ing] any individual, or otherwise discriminat[ing]
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national
origin.'” Faragher v. City of Boca Raton,524 U.S. 775, 786 (1998) (citing 42 U.S.C. §
2000e-2(a)(1)). “[T]he scope of the prohibition is not
limited to economic or tangible discrimination.”
Id. (quotation marks and citations omitted). After
meeting the exhaustion requirement (see Section I, above), a
plaintiff may sue his employer under one or multiple theories
of discrimination, including disparate treatment, hostile
work environment, and retaliation. See, e.g., Peterson v.
Hewlett-Packard Co.,358 F.3d ...