Opinion
Case No. CV 14-05886 DDP (JEMx)
03-24-2015
CUONG CUU HUA, Plaintiff, v. PATRICK R. DONAHOE, POSTMASTER GENERAL , U.S. POSTAL SERVICE, DONNA SOSA, POSTMASTER, U.S. POSTAL SERVICE, FRANK MALONE, POST MASTER, U.S. POSTAL SERVICE, LUIS M. GONZALEZ, SUPERVISOR, ROB LINDBLOOM, SUPERVISOR, RAYMOND TAN, SUPERVISOR, Defendants.
ORDER RE MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT [Dkt. Nos. 20, 21, 22]
Before the court is Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. Having considered the submissions of the parties, the Court grants the motion and adopts the following order. I. BACKGROUND
Cuong Cuu Hua ("Plaintiff") was a mail carrier for the United States Postal Service ("USPS"), Monterey Park branch, from 1998 until 2012. (First Am. Compl. at 3.) Plaintiff alleges he was subject to retaliatory actions by Postmaster for the Monterey Park USPS branch, Donna Sosa, Postmaster for the Rosemead USPS branch, Frank Malone, and supervisors Rob Lindbloom, Raymond Tan, and Luis Gonzalez. (Id. at 3-7.) From 2010 through 2012, Plaintiff filed a number of Equal Employment Opportunity Commission ("EEOC") complaints against Defendants Sosa, Gonzalez, Lindbloom, and Tan alleging these retaliatory actions. (Id.) Plaintiff's employment was terminated in 2012. (Id. at 7.)
Plaintiff's First Amended Complaint alleges retaliatory actions including being placed on suspension, placed on emergency off-duty non-pay status, escorted by the police, issued letters of warning, and ultimately terminated.
On July 28, 2014, Plaintiff, proceeding pro se, filed a Complaint with this Court asserting four causes of action. (Compl.) Plaintiff's Complaint asserted claims for retaliation under Title VII against individuals Sosa, Gonzalez, and Lindbloom and a claim for wrongful termination against Malone. (Id. at 7-10.) On October 6, 2014, Defendants filed a Motion to Dismiss Plaintiff's Complaint on the grounds that Plaintiff named improper defendants and failed to complete sufficient service of process. (Def. Mot. at 1, Dkt. No. 8.) On November 5, 2014, the Court granted Defendants' motion and dismissed Plaintiff's Complaint, without prejudice, with leave to amend within thirty days. (Order at 6, Dkt. No. 16.) Specifically, the Court granted Plaintiff leave to file an amended complaint naming Postmaster General Donahoe as defendant as to Plaintiff's asserted claims. (Id.)
On December 3, 2014, Plaintiff, proceeding pro se, filed a First Amended Complaint ("FAC") with this Court asserting three causes of action. (FAC at 8-11.) Plaintiff's FAC asserted claims for retaliation and discrimination on the basis of race and national origin against individuals Sosa, Gonzalez, Lindbloom, and Tan, and wrongful termination against individual Malone and Postmaster General Donahoe. (Id.)
On January 21, 2015, Defendants filed a Motion to Dismiss Plaintiff's FAC on two grounds: (1) failure to exhaust administrative remedies regarding claims of race and national origin discrimination, and (2) naming improper defendants. (Def. Mot. at 1-2, Dkt. No. 20.) Following an opposition by Plaintiff and a reply by Defendants, the Court found these matters suitable for decision without oral argument and vacated the scheduled hearing. (Order, Feb. 19, 2015, Dkt. No. 23.) II. LEGAL STANDARD
In order to survive a motion to dismiss for failure to state a claim, a complaint need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must include "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570 (2007)). When considering a Rule 12(b)(6) motion, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). III. DISCUSSION A. Improper Defendants
Under Title VII of The Civil Rights Act of 1964, 42 U.S.C. §2000-e-2, et seq., claims "based upon federal employment discrimination" are to be brought "against the director of the agency concerned." See White v. Gen. Servs. Admin., 652 F.2d 913, 916 n.4 (9th Cir. 1981). "The Postmaster General is deemed the only appropriate defendant" in an Title VII action against the USPS. Mahoney v. U.S. Postal Serv., 884 F.2d 1194, 1196 (9th Cir. 1989). There is no personal liability for employees, including supervisors, in a Title VII action. See Greenlaw v. Garret, 59 F.3d 994, 1001 (9th Cir. 1994).
As noted in this Court's previous order dismissing the individual defendants, the case law on bringing claims against USPS under Title VII is well defined. The only proper defendant under Title VII is USPS Postmaster General Brennan, and the alleged wrongful actions of Defendants Sosa, Malone, Gonzalez, Lindbloom, and Tan may provide the basis for Plaintiff's claims against Postmaster General Brennan. The Court finds Defendants Sosa, Gonzalez, Lindbloom, Tan, and Malone are improper defendants, and the Court therefore dismisses them as parties to this action. B. Administrative Exhaustion
Megan J. Brennan became Postmaster General of the USPS on February 1, 2015. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Megan J. Brennan is automatically substituted for Patrick R. Donahoe, the former Postmaster General, as defendant in this suit.
A plaintiff alleging a violation of Title VII must exhaust administrative remedies by filing a timely complaint with the Equal Employment Opportunity Commission ("EEOC") prior to filing suit in federal district court. 42 U.S.C. § 2000e-5(f)(1); Love v. Pullman Co., 404 U.S. 522, 523 (1972); Sommatino v. United States, 255 F.3d 704, 707-08 (9th Cir. 2001). The United States Supreme Court has held that failure to file a timely EEOC administrative complaint is a statutory requirement rather than a jurisdictional requirement. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). However, the Ninth Circuit also holds that "substantial compliance with the presentment of discrimination complaints to an appropriate administrative agency is a jurisdictional prerequisite." Sommatino, 255 F.3d at 708 (emphasis in original).
Due to the remedial purpose of Title VII and the lack of legal training of those initiating complaints, courts in the Ninth Circuit construe a claimant's charge liberally. E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994); Green v. Los Angeles Cnty. Superintendent of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989). Even so, the EEOC must still be afforded a chance to consider disputes before initiation of federal action where the "claims are not so closely related that agency action would be redundant." Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726, 730 (9th Cir. 1984).
One purpose of the exhaustion requirement is to provide notice to the charged party of the complainant's issues. B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002), as amended (Feb. 20, 2002). "Bypassing the administrative process under such circumstances frustrates the policy of encouraging informal conciliation and fostering voluntary compliance with Title VII." Brown, 732 F.2d at 730. See also Unemployment Compensation Commission of Territory of Alaska v. Aragon, 329 U.S. 143, 155 (1946) ("[a] reviewing court usurps the agency's function when it sets aside the administrative determination upon a ground not theretofore presented . . . .").
The jurisdictional scope of a Title VII claimant's federal action is therefore limited to "the scope of both the EEOC charge and the EEOC investigation." Farmer Bros. Co., 31 F.3d at 899. Thus, new claims of discrimination that were not included in an EEOC charge may only be considered by a federal court if they are "like or reasonably related to the allegations contained in the EEOC charge." Brown, 732 F.2d at 729; See B.K.B., 276 F.3d at 1100. In determining whether an allegation under Title VII is like or reasonably related to allegations contained in a previous EEOC charge, "the court inquires whether the original EEOC investigation would have encompassed the additional charges." Green, 883 F.2d at 1476; see also Sommatino, 255 F.3d at 708.
This means that the district court will have subject matter jurisdiction if the allegations of discrimination "fell within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." B.K.B., 276 F.3d at 1099-100 (citing Farmer Bros., 31 F.3d at 899 (internal quotations omitted)).
The Ninth Circuit has noted several factors which are appropriate to consider in determining whether the new allegations are sufficiently related, and therefore exhausted. B.K.B., 276 F.3d at 1100 (listing factors: the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred). Additionally, to the extent that the new claims are consistent with the original theory of the case, the claims are generally considered reasonably related. See Farmer Bros., 31 F.3d at 899 (ruling that plaintiff exhausted her claim for discriminatory layoff since that claim was always a part of the plaintiff's theory of the case as expressed in her explicit allegations of discriminatory failure to recall and to rehire laid-off female employees).
In the case of Shah v. Mt. Zion Hosp. & Med. Ctr., the complainant's EEOC complaint alleged sex and national origin discrimination. 642 F.2d 268, 271 (9th Cir. 1981). His federal court complaint included additional claims based on race, color, and religious discrimination, and these new claims were based on the same factual allegations as the EEOC charge. Id. at 272. The Ninth Circuit held the district court was correct to dismiss the new claims for lack of subject matter jurisdiction because, although the factual allegations were the same, the newly asserted theories were never investigated by the EEOC. Id. See also Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003)(internal citations omitted)(noting that a claim of race discrimination differs substantially from a claim of disability discrimination).
Cf. Yamaguchi v. U.S. Dep't of the Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997) (finding "[a]n investigation of [Plaintiff's] sex discrimination charge could 'reasonably [have been] expected to grow out of' her [sexual harassment] charge"); Serpe v. Four-Phase Systems, Inc., 718 F.2d 935, 937 (9th Cir. 1983) (finding claim of failure to promote because employee was female reasonably related to EEOC charge of sex discrimination in employment); Medina v. Donahoe, 854 F. Supp. 2d 733, 751 (N.D. Cal. 2012) (finding that new allegations of sexual misconduct"like or reasonable related" to sexual harassment and hostile work environment charges in administrative complaint).
In the present case, Defendants argue the newly asserted claims are not like or reasonably related to the charges before the EEOC, and that it is not reasonable to expect an investigation into the newly asserted claims would grow out of the charges asserted in the administrative complaints. The Court agrees.
An investigation into retaliation for a protected activity or disability discrimination reasonably may seek information regarding what the adverse actors knew of the complainant's prior protected activity or disability. However, while such an investigation may also look at the intent behind the charged conduct, it does not look for motives relating to race or national origin, or whether the employee was treated differently from other employees of different races or national origins.
A requirement that EEOC investigate all possible charges, including those not asserted, whenever an investigation is commenced would effectively negate the notice requirement and gridlock the investigatory purpose to narrow the issues and achieve conciliation.
In Shah, the charges of race discrimination were not reasonably related to, and were not reasonably expected to grow out of, the original investigation into national origin discrimination. Even more so here, Plaintiff's charges of race and national origin discrimination were not reasonably related to, and were not reasonably expected to grow out of, the original investigation into retaliation and disability discrimination. As in Shah, here Plaintiff's original theory of the case does not support new allegations of race and national origin discrimination.
Plaintiff's EEOC complaints included allegations of retaliation and disability discrimination in the form of letters of warning, being ordered to leave work, being placed on suspension or emergency placement, being restricted from speaking to other postal workers, and being issued notice of termination.
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Despite the Ninth Circuit's liberal construction of EEOC charges, "there is a limit to such judicial tolerance when principles of notice and fair play are involved." Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir. 2002). Nowhere in Plaintiff's EEOC complaints did Plaintiff allege race or national origin discrimination, and nothing in the EEOC complaints would have led the EEOC to believe that Plaintiff had been subjected to such discrimination.
The Court finds that Plaintiff's claims of race and national origin discrimination are not like or reasonably related to, and are not reasonably expected to grow out of the investigation into, his exhausted EEOC charges. Because Plaintiff has failed to establish that he exhausted administrative remedies as to his claims of discrimination on the basis of race and national origin, the Court dismisses those claims. C. Plaintiff's Remaining Claims
The alleged wrongful actions of the dismissed individual defendants may provide the basis for Plaintiff's claims against Postmaster General Brennan. Plaintiff alleges that Postmaster General Brennan is responsible for the actions of the dismissed individual defendants. Therefore, under a liberal construction of Plaintiff's FAC, the remaining factual and legal allegations asserted by Plaintiff, excepting the dismissed unexhausted claims, are hereby construed as asserted against Defendant Postmaster General Brennan, under a cause of action for retaliation under Title VII. IV. CONCLUSION
For the reasons stated above, Defendants' motion to dismiss is GRANTED as to the named individual defendants, and the individual defendants are DISMISSED WITH PREJUDICE. Defendants' motion to dismiss is GRANTED as to claims alleging discrimination on the basis of race and national origin. Plaintiff's claims of racial and national origin discrimination are DISMISSED WITHOUT PREJUDICE. Plaintiff's cause of action for retaliation may proceed against the USPS Postmaster General. IT IS SO ORDERED. Dated: March 24, 2015
/s/_________
DEAN D. PREGERSON
United States District Judge