PagáN v. United States

Decision Date14 July 2016
Docket NumberCIVIL NO.: 14-1795 (MEL)
PartiesHECTOR GONZÁLEZ PAGÁN, et al., Plaintiffs, v. UNITED STATES OF AMERICA, et al., Defendants.
CourtU.S. District Court — District of Puerto Rico

On October 30, 2015, Héctor González Pagán ("González"), Johanna Alma Matos ("Alma"), and MAR-A ("minor") (collectively "plaintiffs") filed a complaint against the United States, the Veterans Administration Center ("VA Center"), the Department of Veterans Affairs ("VA"), United States Secretary of Veterans Affairs Robert A. McDonald, United States Attorney General Eric Holder, and United States Attorney for the District of Puerto Rico Emilia Rodríguez Vélez (collectively "defendants"). ECF No. 1. This case stems out of González applying for, being given a letter of pre-offer employment regarding, and ultimately being denied a position with the VA Clinic in Mayagüez, Puerto Rico. Plaintiffs alleged violations of the constitutional right to due process, Title VII, 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA"), the Uniform Services Employment and Re-employment Rights Act ("USERRA"), Servicemembers Civil Relief Act ("SCRA"), and, through the Federal Tort Claims Act ("FTCA"), articles 1802 and 1803 of the Puerto Civil Code, 31 L.P.R.A. §§ 5141 & 5142 (imposing liability for damages caused by fault or negligence). Currently pending before the court is defendants' Motion to Dismiss the Complaint filed on April 4, 2016. ECF No. 30. Because this motion was filed almost five months after the deadline to file such motions elapsed, November 13, 2015, the portion of the motion requesting dismissal for failure to prosecution was denied on April 25, 2016.1 ECF No. 39. Due to the nature of the other issues raised by the motion, however, disposition on the merits is warranted.


Defendants' motion alleges multiple bases for dismissal: (1) that Alma does not have a cause of action under Title VII, (2) that the only proper defendant under the FTCA is the United States, (3) that federal employees have no cause of action under the ADA, (4) that González, as a member of the military, does not have a cause of action under Title VII, (5) that plaintiffs failed to exhaust in a timely manner the administrative remedies required to bring Title VII and ADEA claims, (6) that plaintiff' FTCA claims were filed outside the prescriptive period, and (7) that plaintiffs failed to state a claim under USERRA. Each of these arguments shall be addressed in turn.

a. Claims Surrendered

A few of the arguments raised by defendants can be easily disposed of because plaintiffs stipulated these matters. First, plaintiffs agreed that the claims under Title VII cannot be maintained by Alma, González's spouse.2 ECF No. 43, at 6. Second, plaintiffs conceded that theonly defendant potentially liable for the claims under the FTCA (as amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. 2679), is the United States. Therefore, the only plaintiff remaining for the Title VII claims is González and the only defendant remaining for the FTCA claims is the United States.

b. United States as an Employer under the ADA

Defendants argue that plaintiffs cannot maintain a cause of action under the ADA against the United States. Plaintiffs have not responded to this argument, but it shall be addressed on its merits.

Title I of the ADA provides that "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring . . . of employees . . . ." 42 U.S.C. § 12112(a). Covered entity is defined as an "employer, employment agency, labor organization, or joint labor-management committee." 42 U.S.C. § 12111. Under the ADA, the definition of employer "does not include (i) the United States, a corporation wholly owned by the government of the United States . . . ." 42 U.S.C. § 12111(5)(B). Thus, federal employees have no remedy for employment discrimination under the ADA. See Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 11 n.1 ("the ADA is not available to federal employees"); Enica v. Principi, 544 F.3d 328, 338 n.11 (1st Cir. 2008) (noting that, as a federal employee, the plaintiff was not covered under the ADA); Rodríguez Alzugaray v. U.S., Civ. Case No. 11-1347 (PG), 2014 WL 1275964, at *6 (D.P.R. 2014) ("It is well-settled that the federal government is excluded from the ADA's definition of employer" (internal quotations omitted)); In re Chapman, 777 F.Supp.2d 196, 197 (D. Me. 2011) ("TheADA does not cover the federal government at all . . . ."). Thus, plaintiffs cannot maintain an ADA claim against the United States. Further, the ADA is focused on the conduct of employers and does not impose individual liability. See Román-Oliveras v. Puerto Rico Elec. Power Authority, 655 F.3d 43, 52 (1st Cir. 2011). Therefore, defendants' motion to dismiss all claims alleging violation of Title I of the ADA is granted.

c. Title VII Military Exception

Next, defendants contend that González, as a uniformed member of the military, is excluded from the protections of Title VII. According to plaintiffs' allegations in the complaint, at the time González applied for employment with the Veterans Administration, he was a service member with the United States Army Reserve. ECF No. 1, at 3.

The relevant provision of the law provides that "[a]ll personnel actions affecting employees or applicants for employment . . . in military departments . . . [and] in executive agencies . . . shall be made free from any discrimination based on race, color religion, sex, or national origin." 42 U.S.C. § 2000e-16. "Military departments" includes the Department of the Army, for which González worked as member of the reserve component; and "executive agencies" includes the Department of Veterans Affairs, to which González applied for employment. 5 U.S.C. §§ 101-102, 105. Multiple United States Courts of Appeals have held that this provision only applies to civilian employees (or applicants for employment) of military departments, but that military personnel are excluded. This has always been decided, however, in the context of an employee or applicant for employment who is alleging that the military department itself discriminated against him. See e.g. Gordon v. Illinois Army Nat'l Guard, 215 F.3d 1329 (7th Cir. 2000) (unpublished) (holding that a First Sergeant in the Illinois Army National Guard could not sue the National Guard and its officials for engaging in an allegedly continuing pattern of discriminatory treatment); Corey v. United States, 124 F.3d 216 (10th Cir.1997) (unpublished) (holding that an Airman in the United States Air Force could not sue the Air Force for allegedly discriminatory actions); Randall v. United States, 95 F.3d 339, 343 (4th Cir. 1996) (holding that a Major in the United States Army could not sue the United States and Army officials for allegedly discriminatory denial of promotion); Roper v. Dep't of Army, 832 F.2d 247, 248 (2d Cir. 1987) (holding that a United States Army Reserve Sergeant could not sue the Department of the Army for allegedly discriminatory denial of promotion); Stinson v. Hornsby, 821 F.2d 1537 (11th Cir. 1987) (holding that a member of the Alabama National Guard who was on full time military duty and functioned more as military personnel than civilian could not sue the National Guard and its officers); González v. Dep't of Army, 718 F.2d 926, 927-28 (9th Cir. 1983) (holding that a Major in the United States Army could not sue the Department of the Army for allegedly discriminatory denial of promotions); Johnson v. Alexander, 572 F.2d 1219, 1224 (8th Cir. 1978) (holding that an applicant for enlistment in the United States Army could not sue Army officials for denying his enlistment). Courts have emphasized, in reaching these holdings, that military enlistment is materially different from an employer-employee relationship. Taylor, 653 F.2d at 1200; see also Roper v. Dep't of Army, 832 F.2d at 248 ("Military service continues to differ materially from civilian employment in that officers and personnel are subject to military law and unable to terminate such employment at will."); Johnson, 572 F.2d at 1223 ("An enlisted man in the Army, for example, is not free to quit his "job," nor is the Army free to fire him from his employment. Additionally, the soldier is subject not only to military discipline but also to military law.").

Here, however, González did not bring suit in his capacity as military personnel suing a military department. Although he is enlisted in a military department, he is suing an executive agency for employment discrimination. Defendants have pointed to no relevant case law statingthat the mere fact of being employed as a military service member prevents the individual from suing other federal agencies based on their employment practices. Defendants also have not alleged that the position of Medical Support Assistant with the Veterans Administration Clinic at Mayagüez, when held by a uniformed member of the United States Army Reserve, differs in any material respect from the traditional employer-employee relationship. They have not asserted, for instance, that such a Medical Support Assistant would be subject to military law. Therefore, defendants' motion to dismiss the Title VII claims on the basis of a military exception is denied.

d. Failure to Exhaust

Next defendants argue that plaintiffs' Title VII, ADEA, and FTCA claims should all be dismissed for failure to comply with statutory timing requirements.

i. Title VII and the ADEA

"Under Title VII, a federal employee must exhaust her administrative remedies before initiating a complaint of discrimination in federal court." Farris v. Shinseki, 660 F.3d 557, 562 (1st Cir.2011) (citing 42 U.S.C. § 2000e-16(c)). "Whether an employee has exhausted all [of] her...

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