Sommatino v. United States
| Decision Date | 14 December 2000 |
| Docket Number | DEFENDANT-APPELLEE,No. 99-16797,PLAINTIFF-APPELLANT,99-16797 |
| Citation | 255 F.3d 704 |
| Parties | (9th Cir. 2001) SHELLEY SOMMATINO,, v. UNITED STATES OF AMERICA, |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark A. O'Connor and Elizabeth C. Gianola, Horan, Lloyd, Karachale, Dyer, Schwartz, Law & Cook, Inc., Monterey, California, for the plaintiff-appellant.
Jonathan H. Levy, United States Department of Justice, Civil Division, Washington, Dc, for the defendant-appellee.
Appeal from the United States District Court for the Northern District of California Jeremy Fogel, District Judge, Presiding D.C. No. CV-97-21081-JF
Before: Stephen Reinhardt, Edward Leavy and Barry G. Silverman, Circuit Judges.
Opinion by Judge Leavy; Partial Concurrence and Partial Dissent by Judge Reinhardt
Shelley Sommatino ("Sommatino") appeals the district court's dismissal with prejudice of her action in which she asserted claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e. The district court concluded that Sommatino did not state a claim under the FTCA and that the court had no jurisdiction to consider her Title VII claims because Sommatino did not file an administrative complaint. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, and we affirm the judgment of the district court.
Sommatino was a female civilian employee of the Naval Postgraduate School in Monterey, California. According to Sommatino's allegations, one of her co-workers, Mr. Hollifield, made sexually offensive remarks to her and other female employees, and would position himself close to her to ensure contact. Hollifield frequently brushed his body against Sommatino's arms, legs, and hips. Hollifield often used loud, offensive, and vulgar language in the office.
Hollifield feigned accidental meetings outside the office for the purpose of restraining Sommatino and engaging her in private conversation. Sommatino alleged,
After complaining about Hollifield's conduct to her supervisors, Sommatino was assigned to share an office cubicle with Hollifield in October 1995. Sommatino voiced her objection, but the assignment did not change. Sommatino believed she was being retaliated against for complaining about Hollifield.
On November 30, 1995, Sommatino spoke with her Equal Employment Opportunity ("EEO") counselor, Ms. Gerry Wade, about her plight with Hollifield, the hostile environment, discriminatory conduct, and the lack of support from her superiors. Ms. Wade told Sommatino that a formal harassment complaint would be futile due to the difficulty in working with the department head, Ms. Linser. However, Ms. Wade, in a declaration, stated that at no time did she discourage Sommatino from filing an EEO complaint, and that she provided Sommatino with the forms and paper work for filing a complaint. Wade advised Sommatino to submit a memorandum each time she witnessed inappropriate behavior.
On December 1, 1995, the day after her meeting with Ms. Wade, Sommatino wrote an e-mail to her supervisor, Ms. Sweeney. In the e-mail, Sommatino stated that she had discussed with Ms. Wade the filing of three EEO complaints: one for sexual discrimination regarding Hollifield, one for racial discrimination regarding preferential treatment of a black female employee, Ms. Reed, and one for third party sexual harassment regarding Hollifield's conduct towards Ms. Sweeney and other female employees. On December 6, 1995, Sommatino again met with Ms. Wade, who advised her to forward her complaints regarding Hollifield and Reed to her supervisors. Sommatino sent an e-mail that day to her supervisors, complaining of Mr. Hollifield's loud statement, "Goddamn it" which startled Sommatino, noting her first direct request of Hollifield to stop leaning over her desk to use the electric stapler and hole punch, and noting her objection to Ms. Reed's loud and constant talking. In a third e-mail to her supervisors on December 12, 1995, Sommatino complained that she saw Hollifield cup a female supervisor's left elbow in his right hand while saying something about going home. Sommatino's e-mail stated,
On December 13, 1995, Sommatino's supervisor, Ms. Sweeney, proposed that Sommatino and another worker move to an available workstation upstairs. That same day, Sommatino e-mailed the EEO counselor and stated that this proposal was unacceptable and could be taken as a retaliatory action regarding her complaints about both Hollifield and Ms. Reed. However, in early 1996 Sommatino and another worker were moved upstairs.
Later in 1996, Sommatino's therapist instructed her not to resume her work at the Naval Postgraduate School, and Sommatino left her employment.
Sommatino filed a claim against the government under the FTCA in June 1996. The government rejected that claim, and in December 1997, Sommatino filed this action in federal district court under the FTCA. The government moved to dismiss for lack of subject matter jurisdiction, asserting that Title VII is the exclusive remedy for redress of federal employment-related discrimination, including sexual harassment and the creation of hostile work environment. The government acknowledged that the Ninth Circuit has created an exception to the exclusivity of the Title VII remedy for claims based upon highly personal violations beyond the meaning of discrimination; however, the government maintained that the complaint failed to allege facts sufficient to show the type of highly personal violations which would allow Sommatino to proceed under the FTCA. The district court dismissed the complaint with leave to amend, concluding that Title VII provided her exclusive remedy.
Sommatino amended her complaint, adding more detailed allegations. The government again moved to dismiss, on the grounds that Title VII was her exclusive remedy. The district court again dismissed the complaint with leave to amend, stating that the allegations "describe a classic case of sexual discrimination through the creation and maintenance of a hostile work environment," and, "If Sommatino cannot assert a Title VII claim within the time provided, this action will be dismissed with prejudice."
Sommatino filed a second amended complaint, claiming jurisdiction under both the FTCA and Title VII. The government moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) () because Sommatino did not exhaust the administrative complaint requirements pursuant to EEOC regulations. Sommatino opposed the motion, arguing that her e-mail messages to the EEO counselor were sufficient to satisfy the administrative complaint requirements, and, in any event, she was mislead and discouraged from filing a complaint by the EEO counselor and should be equitably relieved from the filing requirements.
The district court dismissed the second amended complaint with prejudice for lack of subject matter jurisdiction. The court concluded that the filing of an EEOC administrative complaint was a jurisdictional prerequisite to a Title VII action, and Sommatino did not comply with this requirement. Sommatino timely appealed.
The district court's dismissal for lack of subject matter jurisdiction is reviewed de novo. See Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000).
The first question is whether the district court erred in determining that it had no jurisdiction to consider Sommatino's Title VII claims because she did not substantially comply with the EEOC claim presentation requirements. 1 We conclude that the district court did not err.
In order to bring a Title VII claim in district court, a plaintiff must first exhaust her administrative remedies. 42 U.S.C. §§ 2000e-16(c); Greenlaw v. Garrett , 59 F.3d 994, 997 (9th Cir. 1995) (citing Brown v. General Serv. Admin., 425 U.S. 820, 832 (1976)). Under the Title VII statutory and regulatory scheme, a federal employee must notify an EEO counselor of discriminatory conduct within 45 days of the alleged conduct, and then, if the matter is not resolved, the employee may submit a formal administrative complaint. See 29 C.F.R. §§ 1614.105 (pre-complaint processing); 29 C.F.R. §§ 1614.106 (individual complaints).
The Supreme Court has held that the failure to file a timely EEOC administrative complaint is not a jurisdictional prerequisite to a Title VII claim, but is merely a statutory requirement subject to waiver, estoppel and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). A number of our circuit cases have also held that the administrative exhaustion requirements under Title VII are not jurisdictional but are conditions precedent to filing an action which a defendant may waive or be estopped from asserting. Vinieratos v. United States, 939 F.2d 762, 768 n.5 (9th Cir. 1991); Stache v. Int'l Union of Bricklayers, 852 F.2d 1231, 1233 (9th Cir. 1988); Valenzuela v. Kraft, Inc. , 801 F.2d 1170, 1172 (9th Cir. 1986).
However, our case law also holds that substantial compliance with the presentment of discrimination complaints to an appropriate administrative agency is a jurisdictional prerequisite. As we have...
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