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Davis v. Department of Veterans Affairs-Veteran Benefits Administration

United States District Court, E.D. California

November 18, 2019

LEON DAVIS JR., Plaintiff,
v.
DEPARTMENT OF VETERANS AFFAIRS-VETERAN BENEFITS ADMINISTRATION, et al. Defendants.

          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 ...


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