Wilkinson

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

PAUL WILKINSON, Case No. 3:24-cv-01749-AP

Plaintiff, OPINION & ORDER

v.

DOUGLAS COLLINS, Secretary, U.S.

Department of Veterans Affairs,

Defendant.

______________________________________

POTTER, United States Magistrate Judge:

Plaintiff Paul Wilkinson alleges that his former employer, the Department of Veterans

Affairs, engaged in employment discrimination against him. He brings claims of sex and age

discrimination, as well as retaliation, under Title VII of the Civil Rights Act of 1964 and the Age

Discrimination in Employment Act of 1967 (ADEA). Amend. Compl. 10-11, ECF No. 30.

This Court previously dismissed Plaintiff’s age discrimination claim, finding both that

Plaintiff had failed to allege that he had exhausted his administrative remedies and that Plaintiff

had failed to state a claim. Op. & O, ECF No 29. Plaintiff amended his complaint. Amend

Compl. Before the Court is Defendant’s second motion to dismiss Plaintiff’s ADEA claim for

failure to allege exhaustion of administrative remedies. Def.’s Sec. Mot., ECF No. 31. All parties

have consented to jurisdiction by a U.S. Magistrate Judge. ECF No. 28. Because Plaintiff has not

exhausted his administrative remedies, Defendant’s partial motion to dismiss is GRANTED.

BACKGROUND

Plaintiff previously worked for Defendant as a Night Supervisor at the Portland, Oregon,

VA Medical Center. Amend. Compl. 3. Plaintiff alleges that while employed by Defendant, the

Assistant Director of Nursing and the Associate Chief Nurse subjected him to sex and age

discrimination. Amend. Compl. 4-6. From August 2017 to October 2019, Defendant was denied

a request for sick leave, demoted, switched from the night shift to the day shift, subjected to

remedial discipline, reprimanded, and suspended. Amend. Compl. 3-8.

In December 2018 and November 2019, Plaintiff filed complaints with the Equal

Employment Opportunity Commission (EEOC) alleging sex discrimination and retaliation.

Amend Compl. 4-6. The EEOC granted summary judgment in favor of Defendant in June 2021,

and again in September 2022, after the case was transferred to a different Administrative Judge.

Amend. Compl. Ex. 2, ECF No. 30 (EEOC Compl.). The EEOC affirmed their decision on

appeal in November 2023 and denied Plaintiff’s request for reconsideration in July 2024. Id.

Plaintiff then filed this civil action alleging sex and age discrimination, as well as

retaliation.

STANDARDS

Under Rule 8(a)(2), a complaint must contain sufficient factual matter that “state[s] a

claim to relief that is plausible on its face.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations allow the

court to infer the defendant's liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S.

662, 663 (2009). A court must accept all well-pleaded, material factual allegations and construe

them in the light most favorable to the non-moving party. Lathus v. City of Huntington Beach, 56

F.4th 1238, 1240 (9th Cir. 2023). The court need not accept as true legal conclusions couched as

factual allegations. Twombly, 550 U.S. at 555. If the complaint is dismissed, leave to amend

should be granted unless “the pleading could not possibly be cured by the allegation of other

facts.” Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).

DISCUSSION

Defendant argues that Plaintiff’s complaint fails to allege exhaustion of administrative

remedies for his ADEA claim. Def.’s Sec. Mot. 4-6.1 The Court agrees.

Before bringing sex or age discrimination claims in District Court, plaintiffs must exhaust

administrative remedies and allege as much in the complaint. Under the ADEA, this can be done

in two ways. Forester v. Chertoff, 500 F.3d 920, 924 (9th Cir. 2007). First, plaintiffs can file an

age discrimination claim with the EEOC; then after 180 days or final agency determination,

plaintiffs can file in District Court. Id. (citing 29 C.F.R. §§ 1614.105, 201(c)). Alternatively,

plaintiffs can use the “bypass provision” and “file a notice of intent to file a civil action with the

EEOC within 180 days from the alleged discriminatory conduct,” and then file the age

discrimination claim in District Court at least 30 days later. Id. (citing 29 U.S.C. § 633a(d); 29

C.F.R. § 1614.201(a)).

Plaintiff argues that his “age discrimination claim arises from the same nucleus of

operative facts examined during the EEOC investigation.” Amend. Compl. 10. He further argues

that “[b]ecause the age discrimination claim would reasonably have been uncovered during a

proper investigation of the administrative complaint, the claim falls within the scope of the

EEOC investigation.” Id. While Plaintiff did attach all 798 pages of his EEOC complaint record

to his amended complaint, he does not cite to any specific pages that would indicate that he

1 Plaintiff did not respond to Defendant’s motion. His Amended Complaint does allege that his

age discrimination claim is properly before this Court and the Court has considered Plaintiff’s

arguments made in the complaint. Amend. Compl. 9-10.

brought an age discrimination claim before the EEOC. See EEOC Compl. The Court also cannot

find anything in the EEOC complaint that implicates a claim of age discrimination. See, e.g., id.

at 5-7 (Plaintiff’s Formal Complaint focuses on sexual harassment and hostile work environment

with no mention of age discrimination); id. at 28 (the Notice of Partial Acceptance notes that the

complaint raises a claim of “hostile work environment based on sex”); id. at 37-46 (Investigative

Report notes claim of hostile work environment based on sex); id. at 47-58 (Plaintiff’s written

affidavit does not mention or allude to age discrimination).

“Incidents of discrimination not included in an EEOC charge may not be considered by a

federal court unless the new claims are ‘like or reasonably related to the allegations contained in

the EEOC charge.’” Green v. Los Angeles Cnty. Superintendent of Schs., 883 F.2d 1472, 1475–

76 (9th Cir. 1989) (quoting Brown v. Puget Sound Elec. Apprenticeship & Training Tr., 732 F.2d

726, 729 (9th Cir. 1984)). The Court considers “whether the original EEOC investigation would

have encompassed the additional charges.” Green, 883 F.2d at 1476. Claims based on a different

statute or theory of liability are not reasonably related. See Leong v. Potter, 347 F.3d 1117, 1122

(9th Cir. 2003) (finding plaintiff’s claim of disability discrimination was not reasonably related

to his claims brought under Title VII).

Here, Plaintiff’s claims of age discrimination are not reasonably related to his claim of a

hostile work environment based on sex discrimination which was in the EEOC complaint. While

Plaintiff argues that a “proper” investigation would have encompassed these additional charges,

Plaintiff’s EEOC complaint and affidavit make no mention of age discrimination or any facts

that would lead to an inference of age discrimination. Cf. Leong, 347 F.3d at 1122 (“Nothing in

Leong's affidavit would have led the EEOC to suspect that he was disabled or had been subjected

to disability discrimination.”).

CONCLUSION

Defendant’s partial motion to dismiss (ECF No. 31) is GRANTED. Plaintiff’s claim

under the ADEA is dismissed.

IT IS SO ORDERED.

DATED this _1_5_th_ day of May, 2026.

__/s_/_A_m__y_ E_._ P_o_t_te_r_____________

AMY E. POTTER

United States Magistrate Judge