Tocci v. Napolitano
| Citation | 791 F.Supp.2d 994 |
| Decision Date | 14 June 2011 |
| Docket Number | No. CV–10–1324–HZ.,CV–10–1324–HZ. |
| Parties | Martin TOCCI, Plaintiff,v.Janet NAPOLITANO, Secretary, Department of Homeland Security, Defendant. |
| Court | U.S. District Court — District of Oregon |
OPINION TEXT STARTS HERE
D. Eric Woodard, Kramer & Associates, Portland, OR, for Plaintiff.Dwight C. Holton, United States Attorney, Sean E. Martin, Assistant United States Attorney, United States Attorney's Office, Portland, OR, for Defendant.
Plaintiff Martin Tocci brings this employment discrimination action against Janet Napolitano, Secretary of the Department of Homeland Security (DHS) which encompasses the Transportation Security Administration (TSA), plaintiff's former employer. Defendant moves to dismiss for failure to state a claim and for lack of subject matter jurisdiction. I grant the motion.
The following facts are taken from the Complaint. Additional facts are discussed below. Plaintiff was hired by the TSA on August 22, 2004, as a security screener. Compl. at ¶ 7. He was suspended on March 18, 2005, based on allegations of misconduct involving a failure to replace food items removed from checked baggage and eating food items while on duty. Id. He was terminated April 12, 2005. Id.
At the time of his termination, plaintiff was sixty-five years old. Id. at ¶ 10. He alleges that his termination was based upon his age, and the alleged misconduct was a pretext to justify his termination. Id.
On a motion to dismiss, the court must review the sufficiency of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. American Family Ass'n, Inc. v. City & County of San Francisco, 277 F.3d 1114, 1120 (9th Cir.2002). However, the court need not accept conclusory allegations as truthful. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir.1992).
A motion to dismiss under Rule 12(b)(6) will be granted if plaintiff alleges the “grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action [.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level, ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote omitted).
To survive a motion to dismiss, the complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[,]” meaning “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation omitted). Additionally, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. The complaint must contain “well-pleaded facts” which “permit the court to infer more than the mere possibility of misconduct.” Id.
A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1) addresses the court's subject matter jurisdiction. The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over his claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994).
A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979–80 (9th Cir.2007) (); Dreier v. United States, 106 F.3d 844, 847 (9th Cir.1996) () (internal quotation omitted). Additionally, the court may consider evidence outside the pleadings to resolve factual disputes. Robinson v. United States, 586 F.3d 683, 685 (9th Cir.2009); see also Dreier, 106 F.3d at 847 ().
Plaintiff brings four claims for relief: (1) a claim entitled “wrongful discharge” alleging that he was constructively discharged when he was subjected to an intimidating, hostile, and offensive work environment based on his age; (2) a claim for intentional infliction of emotional distress (IIED); and (3) two claims for age discrimination, with one brought under 29 U.S.C. § 623, the federal Age Discrimination in Employment Act (ADEA), and the other brought under Oregon law pursuant to Oregon Revised Statute § (O.R.S.) 659A.030. Compl. at ¶¶ 15–20. Defendant moves to dismiss the wrongful discharge, IIED, and the O.R.S. 659A.030 claims for lack of jurisdiction. Defendant moves to dismiss the federal ADEA claim for failure to state a claim.
In his memorandum in opposition to the motion, plaintiff states both that he opposes the motion to dismiss his first claim for wrongful termination, and that he concedes that the Court lacks jurisdiction over this claim because his suspension and termination rendered his hostile work environment claim moot. Pl's Resp. Mem. at pp. 1, 4. However, plaintiff conceded the claim at oral argument, obviating the need to discuss defendant's dismissal arguments.
Defendant first argues that plaintiff's IIED claim is preempted by the Civil Service Reform Act, 5 U.S.C. § 2302 (CSRA), which provides the exclusive remedy for federal employees to challenge prohibited personnel practices that fall within the definitions established by the CSRA.
As the Ninth Circuit explained in a 2008 case,
[t]he CSRA creates a “remedial scheme through which federal employees can challenge their supervisors' ‘prohibited personnel practices.’ ” Orsay v. U.S. Dep't of Justice, 289 F.3d 1125, 1128 (9th Cir.2002) (quoting 5 U.S.C. § 2302). If the challenged conduct “falls within the scope of the CSRA's ‘prohibited personnel practices,’ then the CSRA's administrative procedures are [the employee's] only remedy.” Id. The CSRA's remedial scheme is both exclusive and preemptive because “permit[ting] FTCA claims to supplant the CSRA's remedial scheme” would defeat Congress' purpose of creating “a single system of procedures and remedies, subject to judicial review.” Rivera v. United States, 924 F.2d 948, 951 (9th Cir.1991). Accordingly, where Congress has provided a process for processing prohibited personnel practices, other potential employee remedies are preempted. See [ U.S. v.] Fausto, 484 U.S. [439] at 455, 108 S.Ct. 668, 98 L.Ed.2d 830 [ (1988) ].
Mangano v. United States, 529 F.3d 1243, 1246 (9th Cir.2008).
“[P]rohibited personnel practices” under the CSRA are defined as any “personnel action” taken by someone in authority that violates one of twelve enumerated practices. 5 U.S.C. § 2302(b). “Personnel action” includes any appointment, promotion, disciplinary or corrective action, detail, transfer, reassignment, reinstatement, restoration, reemployment, performance evaluation, pay or benefits decision, mandatory psychiatric examination, or any other significant change in duties, responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A)(i)-(xi).
Plaintiff contends that defendant intentionally inflicted emotional distress on him by treating him differently because of his age, manifested by a pattern of unspecified discriminatory conduct, statements, and incidents, and culminating in his discharge based on a pretext of wrongful conduct. “The definition of ‘personnel action’ is, necessarily, broad.” Mangano, 529 F.3d at 1247. “[The plaintiff's] claim that he was unfairly terminated falls squarely within the definition of a personnel action as a ‘significant change in duties, responsibilities or working conditions' under the CSRA.” Id. Accordingly, here, plaintiff's IIED claim is preempted by the CSRA and this Court lacks subject matter jurisdiction over the claim. See Marrazzo v. Leavitt, 719 F.Supp.2d 1297, 1305 (D.Or.2010) (). I need not address defendant's alternative arguments in support of dismissing the IIED claim.
III. Age Discrimination ClaimsA. State Claim
Defendant moves to dismiss the state age discrimination claim for lack of jurisdiction. The remedies for a federal employee's employment discrimination claim against his or her federal employer are found in federal statutes, not in state statutes. Sharr v. Dep't of Transp., 247 F.Supp.2d 1208, 1213 (D.Or.2003) (). Plaintiff concedes that dismissal of this claim is appropriate. Pl's Resp. Mem. at p. 4.
B. Federal Claim
As to the ADEA claim, defendant argues that plaintiff fails to state a claim on which relief may be granted because plaintiff did not comply with pre-filing administrative prerequisites. A federal employee has two avenues of relief for alleged age discrimination by a federal employer. Forester v. Chertoff, 500 F.3d 920, 924 (9th Cir.2007) (citing 29 U.S.C. § 633a). The employee may pursue administrative remedies in accordance with the requirements of 29 C.F.R. § 1614.105, or, the employee may bypass administrative proceedings and file a civil action directly in ...
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