Hemenway v. Shinseki, No. C-11-505 DMR

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtDonna M. Ryu
PartiesBRIAN HEMENWAY, Plaintiff(s), v. ERIC K. SHINSEKI, Defendant(s).
Decision Date09 July 2012
Docket NumberNo. C-11-505 DMR

BRIAN HEMENWAY, Plaintiff(s),
ERIC K. SHINSEKI, Defendant(s).

No. C-11-505 DMR


Dated: July 9, 2012


Defendant Eric K. Shinseki, Secretary of the Department of Veteran Affairs ("VA"), moves pursuant to Federal Rule of Civil Procedure 12(b)(1) to dismiss Plaintiff Brian Hemenway's Title VII employment discrimination Complaint for lack of subject matter jurisdiction or, in the alternative, pursuant to Federal Rule of Civil Procedure 56 for summary judgment. Plaintiff opposes the motion. The parties have filed consents to this court's jurisdiction pursuant to 28 U.S.C. § 636(c). [Docket Nos. 19, 32 Ex. A.] The court finds the motion appropriate for resolution without a hearing. See N.D. Cal. Civ. L. R. 7-1(b). For the reasons stated below, the court grants Defendant's motion to dismiss.

I. Background and Procedural History

This employment discrimination case arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff has been an Equal Employment Opportunity ("EEO") specialist in the VA's Office of Resolution Management ("ORM") since 2000, currently working as an EEO

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case manager. (Def.'s Mot. Ex. P (Hemenway Dep., Dec. 18, 2011) at 12:12-22, 13:8-10). On or about May 16, 2007, he contacted EEO counselor Thurie Kelly about various employment discrimination concerns. (Compl. Attach. 1 ("EEOC Decision") at 1 & n.1; Hemenway Dep. 64:19-66:3; Def.'s Mot. Ex. F.) Plaintiff was assigned to an outside counselor, Warren Triesman. (Hemenway Dep. 67:3-11.) Triesman drafted a report of Plaintiff's claims on August 26, 2007 and sent Plaintiff a copy. (Hemenway Dep. 63:6-64:8. See generally Def.'s Mot. Ex. G ("Triesman Report").) The reported listed the following as Plaintiff's claims:

CLAIM 1: Whether the aggrieved was discriminated against on the basis of Race, Color, Gender, and Reprisal when on Effective [sic] March 1, 2007, the aggrieved was reassigned to an Intake Specialist Position.
CLAIM 2: Whether the aggrieved was discriminated against on the basis of Race, Color, Gender, and reprisal when in February 2007, the agency failed to process AP's CA-1 form and failed to provide AP a supervisory receipt for the CA-1 form.
CLAIM 3: Whether the aggrieved was discriminated against on the basis of Race, Color, Gender, and reprisal when in March 2007, the agency deducted from AP's payroll for a previous overpayment without notice to AP.
CLAIM 4: Whether the aggrieved was discriminated against on the basis of Race, Color, Gender, and reprisal when in approximately August, [sic] 2007, the agency notified AP that management was disciplining AP.

(Triesman Report 7.) It also stated that Plaintiff "was informed that the claims listed above were the only claim(s) addressed during the informal EEO counseling. If a formal Complaint of Discrimination is filed, claims not discussed with ORM may not be accepted for formal complaint processing." (Triesman Report 7.)

On August 15, 2007, Triesman sent Plaintiff a letter which contained a notice of right to file a discrimination complaint. (Def.'s Mot. Ex. H (Right to File Letter); accord EEOC Decision at 1; Hemenway Dep. 86:7-17.) The letter stated that Plaintiff had 15 calendar days from the receipt of the notice to file a formal complaint and listed addresses at which to file it: (1) "Department of Veterans Affairs, Office of Employment Discrimination Complaint Adjudication [OEDCA], 810 Vermont Avenue, NW, Washington, DC [sic] 20420," (2) "Secretary of Veterans Affairs, Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, D.C., 20420," or (3) "Deputy Assistant Secretary (08), Office of Resolution Management (ORM), 810 Vermont Avenue,

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NW, Washington, D.C. 20420." (Right to File Letter at 2-3.) Plaintiff claims that he mailed a formal complaint to the Secretary of Veterans Affairs by certified mail on September 19, 2007. (Hemenway Dep. 109:13-16, 110:15-23, 115:21-116:8; accord EEOC Decision at 1.) Plaintiff concedes that he never received an "acceptance or dismissal or partial acceptance" of his complaint, "which would have typically been issued after that," (Hemenway Dep. 122:1-4), nor asked for an investigation, (Hemenway Dep. 137:9-18). Defendant insists that it "never received any such complaint." (Def.'s Mot. 5 (citing Def.'s Mot. Ex. B (Kelly Decl., Apr. 10, 2012) at ¶¶ 5, 8-10); accord EEOC Decision at 1-2.)

Plaintiff contends that he sent a letter to Kelly on September 5, 2008 and again on January 16, 2009, inquiring about the status of his purported complaint. (Def.'s Mot. Ex. K.) Kelly insists she never received either letter, and Plaintiff claims that they were returned to him as undeliverable. (Kelly Decl. ¶ 6; Hemenway Dep. 138:22-139:8.) On February 1, 2010, over two years after Plaintiff asserts that he filed his complaint, the Equal Employment Opportunity Commission ("EEOC") received a hearing request from Plaintiff, who voiced concern that more than 180 days had elapsed since he filed his complaint and that the agency had not investigated his case. (Def.'s Mot. Ex. L (Hearing Request Letter); accord EEOC Decision at 1; Hemenway Dep. 149:8-150:14.) Pursuant to the request, an EEOC supervisory administrative judge ("AJ") issued an order on February 8, 2010, instructing Defendant to produce Plaintiff's complaint file. (Def.'s Mot. Ex. C (order to Defendant); accord EEOC Decision at 1.) According to Defendant, the order marked the first time that it had heard of Plaintiff's purported complaint. (Def.'s Mot 5 (citing Kelly Decl. ¶ 4).) Defendant contacted Plaintiff and asked if he had any record of the alleged complaint's delivery. (Def.'s Mot. 5 (citing Hemenway Dep. 151:23-25).) In response, Plaintiff did not provide a copy of the complaint, but instead sent Defendant two copies of the same USPS Track and Confirm sheet. (Def.'s Mot. Ex. M (February 26, 2010 and March 1, 2010 letters submitting USPS Track and Confirm Sheet); accord Hemenway Dep. 151:18-22, 152:8-16.) The AJ also contacted Plaintiff about the absence of a formal complaint. Again, Plaintiff failed to provide a copy of a complaint, but instead submitted an e-mail from Defendant's EEO office "which makes vague reference to both an informal and formal complaint." (EEOC Decision at 2; see Def.'s Mot. Ex. D at 1.) The AJ

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remanded the case to Defendant on April, 28, 2010, finding that the e-mail did not substantiate that Plaintiff had filed a formal complaint, and that there was not enough evidence of a formal complaint to trigger the EEOC's jurisdiction:

Mr. Torres' email does not provide any information to substantiate [Plaintiff]'s claim that this "formal complaint" corresponds to [his case number]. Furthermore, [Plaintiff] has been unable to produce a copy of a formal complaint or a letter from the Agency accepting his claims. Since [Plaintiff] himself is a GS-13 EEO Specialist, it is unclear why he waited from September 2007 (when he contends he filed his formal complaint) until February 2010 (when he requested a hearing) to raise the issue of a lack of investigation. In any case, there is not enough evidence of a formal complaint specifically relating to [Plaintiff's case number] for the EEOC to assert jurisdiction. . . . The Agency should either formally dismiss the allegations in [Plaintiff's case] for lack of a formal complaint and provide [Plaintiff] with his appeal rights to OFO [Office of Federal Operations] or accept the allegations and initiate an investigation.

(Def.'s Mot. Ex. D (order remanding case) at 1-2 (emphasis added); accord EEOC Decision at 2.)

Defendant issued a Final Agency Decision on May 21, 2010, dismissing Plaintiff's complaint "because there is insufficient evidence that it was actually filed and because, in any case, the complainant has not diligent pursued it." (Def.'s Mot. Ex. E at 4 (Final Agency Decision); accord EEOC Decision at 2.)

Plaintiff appealed to the EEOC's OFO, which dismissed the appeal on October 29, 2010. (See generally EEOC Decision.) During this appeal, for the first time, Plaintiff submitted a copy of the first page of a formal complaint. The EEOC nevertheless affirmed the dismissal:

[Plaintiff] was unable to provide a copy of the formal complaint or a letter from [Defendant] acknowledging receipt of the complaint. The Commission agrees with the AJ's determination that the Track and Confirm sheet and the vague email are insufficient evidence to establish that a formal complaint was timely filed.
For the first time on appeal, [Plaintiff] presents a copy of the first page of a formal complaint. The document appears to be date stamped by the "Office of Resolution Management October 11, 2007," and "received" stamped September 25, 2007. [Plaintiff] asserts that this evidence "was not available" when the matter was before the AJ, and fails to explain, when or from where it was obtained. Further, there is no basis, claim or date of occurrence reflected on the form. Although the document repeated [sic] referenced an attachment, it is not included in the instant record.
[Plaintiff] waited over two years after he purportedly filed his formal complaint to request a hearing. We find that, particularly in light of the fact that [Plaintiff] was an EEO Specialist who should have been familiar with the EEO process, he did not diligently pursue his case. Consequently, the doctrine of laches is

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