Blackman-Baham v. Kelly, Case No. 16-cv-03487-JCS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtJOSEPH C. SPERO Chief Magistrate Judge
Decision Date21 February 2017
PartiesSHEILA BLACKMAN-BAHAM, Plaintiff, v. JOHN F. KELLY, Secretary of the Department of Homeland Security Defendant.
Docket NumberCase No. 16-cv-03487-JCS

SHEILA BLACKMAN-BAHAM, Plaintiff,
v.
JOHN F. KELLY, Secretary of the
Department of Homeland Security Defendant.

Case No. 16-cv-03487-JCS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

February 21, 2017


ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

Re: Dkt. No. 20

I. INTRODUCTION

Plaintiff Sheila Blackman-Baham, an employee of the Federal Emergency Management Agency ("FEMA"), brings this action against the Secretary of the Department of Homeland Security1 based on alleged employment discrimination based on age, race, sex, and disability and retaliation for prior EEO activity. Defendant has brought a Motion to Dismiss ("Motion") seeking dismissal of Plaintiff's complaint for failure to exhaust administrative remedies under Rule 12(b)(1) and failure to state a claim under Rule 12(b)(6). The Court vacated the hearing pursuant to Civil Local Rule 7-1(b) and took the Motion under submission. See Docket No. 28. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.2

II. BACKGROUND

A. The First Amended Complaint

Plaintiff began working for FEMA on October 10, 2010. First Amended Complaint ("FAC") ¶ 6(b). She alleges that Defendant "started harassing, and making plaintiff's working

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environment hostile, as early as her first couple of months" in retaliation for her "prior EEO activity." Id. ¶ 6(c). This retaliation allegedly included "attempt[ing] to disqualify [P]laintiff for re-employment, . . . interviewing [her] physicians, neighbors, [and] landlords[,] suggesting negative characteristics about [her][,] [a]ccusing [her] of acting disrespectfully, or not cooperating" and "denying [her] training and promotional opportunities." Id.; see also id. ¶ 6(d) (alleging that in March 2011 Defendant "harassed plaintiff[ ] about her reinvestigation") & (e) (alleging that in April 2011 Defendant "denied plaintiff consideration for a promotional opportunity, while forcing plaintiff to perform the duties of the higher grade position for almost 90 days, without promotional pay").

Plaintiff further alleges that in September 2011, Defendant "denied [her] training opportunities and additional pay, to process the first wrongful termination," id. ¶ 6(f), "barred [P]laintiff from her workspace, and charged her almost two weeks of Leave Without Pay." Id. ¶ 6(g). According to Plaintiff, Defendant "improperly stated facts to MSPB" in connection with the two weeks of leave without pay, causing the MSPB to rule in Defendant's favor based on this inaccurate information. Id. ¶ 6(g). Plaintiff also alleges that Defendant "attempted to wrongfully terminate plaintiff as a probationary employee, based on her period of unemployment and illness." Id. ¶ 6(i). Plaintiff further alleges that Defendant "posted termination documents on [her] residence in plain view of Plaintiff's neighbors or anyone else to see." Id. ¶ 6(h). According to Plaintiff, Defendant "was allowed to retract the [termination] when plaintiff proved she was in fact an employee, not subject to a probation period." Id. ¶ 6(i).3

Plaintiff alleges that in January 2012, Defendant wrongfully terminated her a second time, based on her debts during her time of unemployment and illness, and that this decision caused her and her family to become homeless. Id. ¶ 6(j). This decision was overturned by the MSPB in

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August 2013, at which time Plaintiff was restored to her position. Id. ¶ 6(k).

Plaintiff also alleges that Defendant mischaracterized her EEO claims (discussed below), tried to direct Plaintiff to the wrong place to file her EEOC case, and attempted to mislead the EEOC into believing that she had abandoned her claims. Id. ¶ 6(l)-(n). Plaintiff further alleges Defendant has continued to "harass, not promote and discriminate[ ] against [P]laintiff continually since her return [to work] in August 2013." Id. ¶ 6(o).

Plaintiff alleges that the EEOC issued an "Order/Dismissal in Favor of U.S. District Court Action" on March 24, 2016. Id. ¶ 7. She initiated this action on June 22, 2016, when she filed the original complaint. She filed her FAC on September 30, 2016.

Plaintiff alleges that Defendant discriminated against her based on her age, sex, race, gender and "physical/mental disabilities." Id. ¶ 5.4 She also asserts a retaliation claim based on her prior EEO activity (discussed below). She asserts the following claims in the FAC:

1) Claim One: Violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a ("ADEA"), and the Rehabilitation Act of 1973, 29 U.S.C. § 791 ("Rehabilitation Act") based on the allegation that Defendant "processed two wrongful terminations against [P]laintiff, because she was unemployed and ill for almost two years and had debt, violating [P]laintiff's due process rights." FAC ¶ 9. In this claim, Plaintiff alleges that she is a "tenured disabled employee who is in a protected class" but does not specifically identify a particular protected class. Id.

2) Claim Two: Failure to consider Plaintiff for a promotional opportunity, in violation of Rehabilitation Act and the Lilly Ledbetter Fair Pay Act of 2009 (Pub.L. No. 111-2) ("LLA") based on the allegation that she "was denied consideration for a promotion and career advancement opportunity, although she had completed almost 90 days in the [position], without the additional higher grade of pay." Id. ¶ 11. Plaintiff does not identify the type of discrimination she contends led to Defendant's failure to consider her for promotion and career advancement.

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3) Claim Three: Retaliation for prior EEO activity, in violation of Title VII and the ADEA based on the allegation that "[d]uring [P]laintiff's interview with the investigator, and during the process of [P]laintiff's investigation, [P]laintiff was harassed about her ongoing EEO case." Id. ¶

4) Claim Four: Disability Discrimination in violation of Rehabilitation Act and the LLA based on allegation that "Plaintiff was denied training opportunities, which were later used against [her] future [deployability] . . .[w]hile other's outside plaintiff's protected class were trained, and entitled to additional pay." Id. ¶ 15.

5) Claim Five: Failure to afford Plaintiff additional wages, in violation of the Rehabilitation Act of 1973 and Fair Pay Act of 2009 based on allegation that Defendant "prevented [P]laintiff from deploying to disaster declarations, which prevented [P]laintiff from earning additional wages, which were tax free . . . [w]hile other similar[ly] situated contract specialists not in plaintiff's protected class were not treated the same." Id. ¶ 17. Again, Plaintiff does not identify a specific "protected class."

6) Claim Six: Hostile working environment in violation of the Title VII, the ADEA and the Rehabilitation Act based on allegation that Defendant "subject plaintiff to harsh working conditions and hostile environments, while violating [P]laintiff's due process rights" even though Plaintiff "was a tenured disabled employee and the defendant was well aware of [Plaintiff's] medical conditions." Id. ¶ 19.

7) Claim Seven: Disparate Treatment in violation of the Title VII, the ADEA and the Rehabilitation Act based on allegation that Plaintiff is a "tenured qualified disabled employee, who is in a protected class" and "was subjected to discriminatory treatment, different from other employees who were not in her protected class, but were similarly situate[ed]." Id. ¶ 21. Plaintiff does not identify the specific type of discrimination alleged under this claim.

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B. Administrative Proceedings5

As set forth below, Plaintiff filed MSPB Appeals challenging her terminations in 2011 and 2012, as well as a another MSPB appeal challenging FEMA's failure to pay her wages for the two-week period leading up to her first termination. In addition, following EEO counseling, she filed a formal EEO complaint on December 10, 2011 (culminating in the March 24, 2016 Order/Dismissal in Favor of U.S. District Court Action) ("First EEO Complaint") and another EEO Complaint on April 11, 2016 ("Second EEO Complaint"), which is still pending.

1. The November 2, 2011 MSPB Appeal

On October 6, 2011, Plaintiff was officially terminated from her position of contract specialist with FEMA, which is part of the Department of Homeland Security ("Agency"), based on her failure to pass a background investigation conducted by the Office of Personnel Management ("OPM") and her status as a probationary employee. See Opposition, Ex. 6 (October 6, 2011 Letter entitled "Notice of Decision to Terminate during Probationary Period"); RJN, Ex. B (February 9, 2012 Initial Decision). On November 2, 2011, Plaintiff filed an MSPB Appeal challenging her termination on the ground that she was hired under the Agency's reinstatement authority because of her prior Federal service with the Department of the Navy and therefore was not subject to a probationary period. RJN, Ex. A (November 2, 2011 Appeal) & B (February 9, 2012 Initial Decision). The Agency conceded that Plaintiff was not, in fact, "in a probationary

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period" in its November 25, 2011 response and that it had followed improper procedures in terminating Plaintiff. RJN, Ex. B (February 9, 2012 Initial Decision) at 3. It rescinded the termination and paid Plaintiff back-pay from the date of termination, October 6, 2011. Id.

The presiding Administrative Judge ("AJ") then issued an order to show cause why the appeal should not be dismissed as moot on the basis that the status quo ante had been restored. Id. Plaintiff did not respond or provide any evidence that she was entitled to compensatory damages or any further relief beyond that which had already been provided. Id. at 5. The AJ concluded the appeal was moot because the Agency had "granted status quo ante relief regarding back pay, interest and by placing the appellant in a paid status." Id. at 7. Consequently, the AJ found...

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