holding Title VII claims were barred because 11 plaintiff failed to sue the Secretary within 30 days and noting the defect “could not be 12 remedied by a Rule 15 amendment” because no “government official or entity was served 13 within the thirty-day period”
How later courts described this case
- holding Title VII claims were barred because 11 plaintiff failed to sue the Secretary within 30 days and noting the defect “could not be 12 remedied by a Rule 15 amendment” because no “government official or entity was served 13 within the thirty-day period”
- stating that Title VII is “an exclusive, preemptive administrative and judicial 22 scheme for the redress of federal employment discrimination”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 CLEAFERSE MCCOWEN, Case No.: 20cv2498-CAB-BLM
12 Plaintiff,
ORDER GRANTING MOTION TO
13 v. DISMISS PLAINTIFF’S
COMPLAINT [Doc. No. 18]
14 DEPARTMENT OF VETERANS
AFFAIRS, a government agency, and ELI
15
SISNEROS, in his employment and
16 individual capacities,
17 Defendants.
18
19 On January 14, 2021, Robert Wilkie, Secretary of the Department of Veterans
20 Affairs, filed a motion to dismiss Plaintiff’s complaint. [Doc. No. 18.] On January 29,
21 2021, Plaintiff Cleaferse McCowen filed an opposition. [Doc. No. 19.] On February 9,
22 2021, Secretary Wilkie filed a reply. [Doc. No. 20.] The Court deems the motion
23 suitable for determination on the papers submitted and without oral argument. See S.D.
24 Cal. CivLR 7.1(d)(1). For the reasons set forth below, the motion is GRANTED.
25 ALLEGATIONS OF COMPLAINT
26 On October 11, 2019, Plaintiff was a Maintenance Mechanic Leader employed by
27 the Department of Veterans Affairs. [Complaint, Doc. No. 1, Ex. 1 at p. 2.] Plaintiff
28 alleges he was subjected to a hostile work environment based on race, age and physical
1 disability. Id. at 4. Due to alleged harassment by his supervisor, Plaintiff claims his
2 working conditions became so intolerable that he had no choice but to retire. Id. at 6.
3 Plaintiff filed an EEO complaint, which was dismissed on January 29, 2020. Id. at 2.
4 Plaintiff then filed an appeal with the Merit System Protection Board (“MSPB”). Id. In a
5 decision that became final on July 20, 2020, the MSPB rejected Plaintiff’s claims, ruling
6 that his allegations “do not, either individually or collectively, meet the ‘demanding legal
7 standard’ required for a constructive discharge claim.” Id. at 7. The MSPB decision
8 informed Plaintiff of his appeal rights, including his right to file suit in federal court
9 within thirty (30) days. Id. at 14.
10 On July 30, 2020, Plaintiff filed a Complaint in the Central District of California
11 against the Department of Veterans Affairs and his former supervisor. [Doc. No. 1.] The
12 Complaint contains various federal and state law claims of discrimination, as well as a
13 claim for negligent infliction of emotional distress under California law. Id. Plaintiff
14 served his Complaint on November 9, 2020. [Doc. No. 10.] Thereafter, the case was
15 transferred to the Southern District of California. [Doc. Nos. 15, 16.]
16 LEGAL STANDARD
17 Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek
18 to dismiss a complaint for lack of jurisdiction over the subject matter. The federal court is
19 one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. v. New York, 790 F.2d 769,
20 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its
21 own subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S.
22 83, 95 (1998). When considering a Rule 12(b)(1) motion to dismiss, the district court is
23 free to hear evidence regarding jurisdiction and to rule on that issue prior to trial,
24 resolving factual disputes where necessary. See Augustine v. United States, 704 F.2d
25 1074, 1077 (9th Cir. 1983). In such circumstances, “[n]o presumptive truthfulness
26 attaches to plaintiff's allegations, and the existence of disputed facts will not preclude the
27 trial court from evaluating for itself the merits of jurisdictional claims.” Id. (quoting
28 Thornhill Publishing Co. v. General Telephone & Electronic Corp., 594 F.2d 730, 733
1 (9th Cir. 1979) ). Plaintiff, as the party seeking to invoke jurisdiction, has the burden of
2 establishing that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511
3 U.S. 375, 377 (1994).
4 A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint.
5 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule
6 12(b)(6) where the complaint lacks a cognizable legal theory or fails to allege sufficient
7 facts to support a cognizable legal theory. Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).
8 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
9 accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
10 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
11 (2007). A claim is facially plausible when the factual allegations permit “the court to
12 draw the reasonable inference that the defendant is liable for the misconduct alleged.”
13 Iqbal, 556 U.S. at 678. In other words, “the non-conclusory ‘factual content,’ and
14 reasonable inferences from that content, must be plausibly suggestive of a claim entitling
15 the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing
16 Iqbal, 556 U.S. at 678). “Determining whether a complaint states a plausible claim for
17 relief will ... be a context-specific task that requires the reviewing court to draw on its
18 judicial experience and common sense.” Iqbal, 556 U.S. at 679.
19 DISCUSSION
20 A. Plaintiff Failed to Sue the Proper Party.
21 The proper defendant in an employment discrimination case under either Title VII
22 or the ADEA is the head of the employee's agency. Romain v. Shear, 799 F.2d 1416,
23 1418 (9th Cir. 1986). In this case, that individual is the Secretary of the Department of
24 Veterans Affairs, who has not been named as a defendant. Instead, Plaintiff has named
25 the Department of Veterans Affairs and Eli Sisneros, his former supervisor. In his
26 opposition to the motion to dismiss, Plaintiff appears to concede that he cannot sue his
27 former supervisor under Title VII [Doc. No. 19 at 7:17-21] and acknowledges that his
28 attempt to sue the agency is a “misnaming error” [Doc. No. 19 at 7:22-25]. Instead,
1 Plaintiff asserts that he “is entitled to receive a grant to amend the Complaint.” [Doc. No.
2 19 at 10:12-13.] However, as set forth below, leave to amend would be futile.
3 B. Leave to Amend Would be Futile.
4 A claimant challenging an MSPB decision has 30 days to bring a civil action in
5 district court. 5 U.S.C. §7703(b)(2). Here, Plaintiff did file the Complaint within 30
6 days of the MSPB decision, but he did not sue the proper party. Under current Ninth
7 Circuit law, if the wrong defendant is sued in the original complaint, the statute of
8 limitations cannot be tolled unless the complaint is amended to name the proper
9 defendant and it satisfies the relation back requirements of Rule 15(c). Romain v. Shear,
10 799 F.2d 1416, 1418-19 (9th Cir. 1986) (holding Title VII claims were barred because
11 plaintiff failed to sue the Secretary within 30 days and noting the defect “could not be
12 remedied by a Rule 15 amendment” because no “government official or entity was served
13 within the thirty-day period”). Here, the relation-back requirements cannot be met
14 because the thirty-day period expired on August 19, 2020 and Plaintiff did not serve any
15 “government official or entity” until November 9, 2020. [Doc. No. 10.] Therefore, leave
16 to amend would be futile.1
17 C. Title VII Preempts Plaintiff’s State Law Claims.
18 Finally, all of Plaintiff's state law and common law claims are preempted because
19 Title VII is the exclusive remedy for claims of discrimination arising out of federal
20 employment. See Brown v. GSA, 425 U.S. 820, 829, 96 S.Ct. 1961, 48 L.Ed.2d 402
21 (1976) (stating that Title VII is “an exclusive, preemptive administrative and judicial
22 scheme for the redress of federal employment discrimination”); Scott v. Perry, 569 F.2d
23 1064, 1065 (9th Cir.1978) (same). The same holds true for Plaintiff’s claim of negligent
24 infliction of emotional distress. Sommatino v. United States, 255 F.3d 704, 711 (9th Cir.
25
26
27 1 Plaintiff’s request for equitable tolling because his counsel was “unaware of any 30-day requirement to
serve or add the Secretary” [Doc. No. 19 at 10:3-4], is not a basis for relief. See Spitsyn v. Moore, 345
28
1 2001) (holding Title VI preempts Federal Tort Claims Act (“FTCA”) claims and
2 || “provides the exclusive remedy for federal employees seeking to redress employment
3 || discrimination”). While Title VII does not preclude separate remedies for
4 || unconstitutional acts or for “highly personal violation[s] beyond the meaning of
5 || ‘discrimination.’ ” Otto v. Heckler, 781 F.2d 754, 757 (9th Cir. 1986) (citing Stewart v.
6 || Thomas, 538 F.Supp. 891, 896 (D.D.C.1982)), Plaintiff’s allegations that his supervisor
7 || treated him in a rude, derogatory and unprofessional manner do not rise to the level of a
8 “highly personal violation.” Id. See Wilson v. United States Dep’t of Veterans Affairs,
9 CV 10-2648 PA (AJWx), 2001 WL 13213944, 3 (C.D. Cal. Mar. 21, 2011)(finding
10 || plaintiff’s intentional infliction of emotional distress claim resulting from an alleged
11 |{hostile work environment preempted by Title VII). Therefore, Plaintiff does not state an
12 || FTCA claim.”
13 CONCLUSION
14 For the reasons set forth above, the motion to dismiss the Complaint is
15 || GRANTED WITH PREJUDICE. The Clerk shall enter judgment accordingly and
16 || CLOSE the case.
17 Dated: February 26, 2021 €
18
Hon. Cathy Ann Bencivengo
19 United States District Judge
20
21
22
23
24
25
26
> Even if Plaintiff did allege an FTCA claim, it is barred because Plaintiff has not complied with the
27 || FTCA’s administrative claim requirement. See 28 U.S.C. §2675(a); Burns v. United States, 764 F.2d
9g || 722, 724 (9th Cir. 1985)(“The [administrative] claim requirement of section 2675 is jurisdictional in
nature and may not be waived.”).