Sager v. McHugh

• Citation: 942 F.Supp.2d 1137
• Decision Date: 29 April 2013
• Docket Number: Case No. C12–5910 BHS.
• Parties: Thomas E. SAGER, Plaintiff, v. John M. McHUGH, Defendant.
• Court: U.S. District Court — Western District of Washington

942 F.Supp.2d 1137

Thomas E. SAGER, Plaintiff,

v.John M. McHUGH, Defendant.

Case No. C12–5910 BHS.

United States District Court,

W.D. Washington,

at Tacoma.

April 29, 2013.

Michael Joslin Davis, Tacoma, WA, for Plaintiff.

Marion J. Mittet, U.S. Attorney's Office, Seattle, WA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Defendant John M. McHugh, Secretary of the Army's (“Army”) motion to dismiss (Dkt. 5). The Court has considered the pleadings filed in support of and in oppositionto the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.

I. PROCEDURAL HISTORY

On October 15, 2012, Plaintiff Thomas E. Sager (“Sager”), an employee of the Department of the Army, filed a complaint against the Army, alleging violations of Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”). See Dkt. 1. Sager also alleges a cause of action under the Washington Law Against Discrimination (“WLAD”). Id. On March 12, 2013, the Army filed the instant motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Dkt. 5. On April 8, 2013, Sager responded in opposition. Dkt. 8. On April 12, 2013, the Army replied. Dkt. 11.

II. FACTUAL BACKGROUND

Sager was employed by the Army at the Joint Base Lewis McChord (“JBLM”), Department of Public Works. Dkt. 1 at 1. On or about October 13, 2010, Sager, by and through his attorney of record, Michael Davis (“Davis”) contacted an Equal Employment Opportunity (“EEO”) counselor at JBML alleging that Sager had been subjected to a hostile work environment, treated in an unfair and disparate manner, and that the treatment had been ongoing for several months. Id. at 2.

Sager did not file his formal EEO complaint within fifteen days of receiving notice of his right to file an administrative complaint. Dkt. 5 (citing 29 C.F.R. § 1614.106(b)). By letters dated August 4 and September 20, 2011, Sager's attorney asked the EEO counselor for a letter advising of the right to file a formal complaint. The EEO office complied with the attorney's request and, on October 11, 2011, sent via certified mail a Notice of Right to File Formal Complaint to Sager and to his attorney, Davis, at their addresses of record. Mittet Decl., Exhibit 10. The letter sent to Davis was received at his office on October 13, 2011, and signed for by Heather Pursley (“Pursley”). Id. The notification of right to file plainly advised Sager that he needed to file a formal complaint of discrimination within “15 calendar days of receipt of the notice.” Id. The EEO office, however, did not receive Sager's formal complaint until December 20, 2011, or 68 days after his attorney received the notice. Mittet Decl., Exhibit 11. Mr. Sager was, therefore, 53 days late in filing his administrative complaint. The agency properly dismissed his administrative complaint as time-barred and the Equal Employment Opportunity Commission (“EEOC”) upheld the dismissal. Mittet Decl., Exhibits 13 and 14.

Accordingly, the Army maintains that Sager's entire judicial complaint must be dismissed for failure to state a claim upon which relief should be granted and/or lack of subject matter jurisdiction. Dkt. 5 at 3. In his response, Sager does not dispute that the filing of his formal complaint was past the 15–day deadline, but maintains that his action should not be dismissed. Dkts. 8 & 8–1 at 2–3 (Declaration of Michael J. Davis).

III. DISCUSSION

A. Standard

Fed.R.Civ.P. 12(b)(1) of the Federal Rules of Civil Procedure allows for a motion to dismiss based on lack of subject matter jurisdiction. Federal courts are courts of limited jurisdiction. Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250 (9th Cir.2006). “A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” A–Z Int'l v. Phillips, 323 F.3d 1141, 1145 (9th Cir.2003). Courts lacks subject matter jurisdiction over actions in which the plaintiff lacks standing. See Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir.2002). The burden falls on the plaintiff to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Vacek, 447 F.3d at 1250. A motion brought under Rule 12(b)(1) may be either facial, where the inquiry is limited to the allegations in the complaint, or factual, where the court may look beyond the complaint to consider extrinsic evidence. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004); Savage v. Glendale Union High School Dist. No. 205, 343 F.3d 1036, 1039 n. 2 (9th Cir.2003). When a defendant makes a facial challenge to jurisdiction, all material allegations in the complaint are taken as true, and the question for the court is whether the lack of jurisdiction appears from the face of the pleading itself. See Wolfe, 392 F.3d at 362;Miranda v. Reno, 238 F.3d 1156, 1157 n. 1 (9th Cir.2001). “If the moving party converts the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Wolfe, 392 F.3d at 362 (internal quotation marks omitted). For purposes of considering a motion to dismiss on the grounds of subject matter jurisdiction, a court may consider matters outside of the pleadings. Association of American Medical Colleges v. United States of America., 217 F.3d 770, 778 (9th Cir.2000).

When a motion to dismiss is based on more than one ground, the court should consider the Rule 12(b)(1) challenge first because the other grounds will become moot if the court lacks subject matter jurisdiction. 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure, § 1350 (2004 ed.).

B. Application of Standard

The Army moves the Court to dismiss Sager's complaint on essentially four grounds: insufficiently pled factual allegations; failure to timely exhaust administrative remedies; dissatisfaction with the EEO process does not constitute grounds for employment discrimination claims; and exclusive statutory remedies for federal employees bar him from recourse under WLAD. See Dkt. 5. In Sager's response, he admits that he failed to timely comply with the EEO's 15–day requirement for filing a formal complaint. See, e.g., Dkt. 8 at 1 & 9. However, Sager argues that he is entitled to equitable tolling or waiver for two reasons: (1) the EEO office improperly delayed his informal complaint and failed to provide counseling; (2) he did not receive the Notice of Right to File a Formal Complaint because the EEO office sent the notice to the wrong address and, although the notice was delivered to Davis, his attorney of record, Davis was out of town at the time of delivery. See Dkt. 8.

The Court must first consider whether jurisdiction exists under Fed.R.Civ.P. 12(b)(1). Thus, the Court considers whether Sager has failed to timely exhaust administrative remedies. If the Court determines that it has no jurisdiction over Sager's complaint, it is not necessary to consider the Army's other grounds for dismissal under Fed.R.Civ.P. 12(b)(6).

1. Legal Standard: Failure to Exhaust

Title VII is a limited waiver of the United States' sovereign immunity for claims of federal employment discrimination. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 92–94, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). Pursuant to Title VII, federal employees who pursue judicial claims of employment discrimination must first exhaust their administrative remedies in accordance with applicable statutory provisions. 42 U.S.C. § 2000e; see also B.K.B. v. Maui Police Department, 276 F.3d 1091, 1099 (9th Cir.2002); Leorna v. United States Department of State, 105 F.3d 548, 550 (9th Cir.1997).

The purpose of the exhaustion requirement is twofold: to give notice of the alleged violation so as to allow the agency to fix the problem if applicable, and to give the EEOC and/or agency a chance to investigate and possibly informally resolve the claim. Pacheco v. Mineta, 448 F.3d 783, 788–89 (5th Cir.2006); Ingels v. Thiokol Corp., 42 F.3d 616, 625 (10th Cir.1994); see also Ong v. Cleland, 642 F.2d 316, 318–20 (9th Cir.1981). Therefore, a complaint “must be sufficiently precise to identify the aggrieved individual and the agency and to describe generally the action(s) or practice(s) that form the basis of the complaint.” 29 C.F.R. § 1614.106(c).

The EEOC has promulgated regulations ¹ governing the acceptance and processing of discrimination complaints in federal employment cases. See29 C.F.R. §§ 1614.104– 1614.110 (detailing administrative processing of federal Title VII complaints). These regulations provide time limits for the initiation of informal pre-complaint contact with an EEO counselor, and the filing of a formal EEO complaint. To initiate informal precomplaint processing, an aggrieved federal employee must consult with an EEO counselor within forty-five days of the alleged discriminatory event. 29 C.F.R. § 1614.105(a)(1). If the matter is not resolved by informal pre-complaint counseling, the agency must provide the employee with notice of the right to file a formal complaint of discrimination. 29 C.F.R. § 1614.105(d). After receipt of notice, the employee has 15 days to file the formal complaint. 29 C.F.R. § 1614.106(b).

Time limitations such as those found in Title VII “are not arbitrary obstacles to the vindication of just claims, and therefore they should not be given a grudging application. They protect important social interests in certainty, accuracy, and repose.” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 452–53 (7th Cir.1990). These rules are not mere technicalities, but integral parts of Congress's statutory...