KENDALL J. NEWMAN

FINDINGS AND RECOMMENDATIONS

Presently before the court is defendants' motion to dismiss and, in the alternative, motion for summary judgment (Dkt. No. 59). The court heard this matter on its law and motion calendar on September 29, 2011. (Minutes, Sept. 29, 2011, Dkt. No. 74.) Assistant United States Attorney Bobbie J. Montoya appeared on behalf of defendants. Plaintiff, who is proceeding without counsel and in forma pauperis, appeared at the hearing and represented himself. The undersigned has considered the appropriately filed briefs, oral arguments, and the appropriate portions of the record in this case and, for the reasons stated below, recommends that defendants' motion to dismiss and motion for partial summary judgment be granted. The undersigned ultimately recommends that judgment be entered in defendants' favor.

I. BACKGROUND

A. Plaintiff's First Amended Complaint

Plaintiff's First Amended Complaint (Dkt. No. 57) is the operative complaint and remains, in certain respects, difficult to decipher. Plaintiff's First Amended Complaint attaches approximately 170 pages of exhibits, and many of these 20 exhibits consist of narrative documents or compilations prepared by plaintiff.

Plaintiff alleges that he is a disabled person of Middle Eastern heritage, who also has a Muslim background. He alleges that he applied with the U.S. Department of State ("State Department" or "Department of State") to become employed as a "Foreign Affairs Officer," and took an examination in connection with that application. (First Am. Compl. at 2.) Plaintiff alleges that he was discriminated against in the application process because of his "ethnic background, religion, national origin, and disability." (Id. at 2.) Briefly stated, plaintiff alleges that he would have scored within the "top three positions" out of all of the applicants who participated in the self-assessment examination process had he been given "disability points" in addition to his score on the self-assessment portion of the examination. (See id. at 2-3.) Plaintiff contends that the State Department's failure to accord his score a "five percent increase" based on his disability, which would purportedly would have made plaintiff eligible for the position he sought, violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112; the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. (See id. at 3-5.) He also alleges that the failure to provide disability points was "grossly negligent (tort)." (Id. at 4.)

Plaintiff's First Amended Complaint repeatedly intimates that some measure of disability-based discrimination occurred because military veterans were awarded additional points for their service. (See First Am. Compl. at 7.) He alleges that the State Department's preferential award of additional points to veterans was a pretext for discrimination against disabled applicants. (See id. ("In other words hiring 'veterans' is the excuse for the defendants [sic]discrimination.").)

Plaintiff also alleges that the State Department's examination process discriminates on the basis of ethnicity and religious association. (First Am. Compl. at 5-6.) Plaintiff alleges that he was discriminated against "because he was forced to provide his original name on the application" (id. at 6); plaintiff's "original" name is "Rasoul Rahimi."

Finally, plaintiff alleges that the State Department violated his First Amendment rights, 42 U.S.C. § 1985, the ADA, and "Article III" by impeding his rights to discovery of "'workforce diversity' numbers." (See First Am. Compl. at 2, 7-8.) Plaintiff's claim appears to relate both to proceedings before the Equal Employment Opportunity Commission ("EEOC") and this court. (See id. at 2 (alleging that "Defendant took his 1st Amendment rights from his in [ sic]course of discovery at EEOC and continued to take away his 1st Amendment rights by blocking his summon to court").)

B. Procedural History

Plaintiff filed his complaint on November 22, 2010, and defendants subsequently filed a motion to dismiss or for more definite statement (Dkt. Nos. 1, 38). On June 20, 2011, the court granted defendants' motions and ordered plaintiff to file a First Amended Complaint. Order, June 20, 2011, Dkt. No. 55.) Plaintiff filed his First Amended Complaint on July 13, 2011, and defendant filed the pending motion shortly thereafter.

On August 25, 2011, and prior to the time that plaintiff was required to file a written opposition to the pending motion, the undersigned held an already-scheduled status conference in order to discuss the implications of defendants' potentially dispositive motion to dismiss and motion for summary judgment, as well as the requirements placed on plaintiff in responding to the motion. (Minutes, Aug. 25, 2010, Dkt. No. 65; Order, Aug. 29, 2011, at 1-2 ("Despite the filing of a potentially dispositive motion by defendants, the undersigned left the status conference on calendar largely for plaintiff's benefit; the undersigned intended to provide plaintiff with guidance regarding the need for plaintiff to follow the court's local rules and the Federal Rules of Civil Procedure in opposing defendants' motion."), Dkt. No. 67.) The undersigned had also intended to address whether plaintiff desired to conduct any discovery in the case prior to resolution of the portion of the motion that sought partial summary judgment. (See id. at 3-4.) However, plaintiff failed to appear at the conference, which was consistent with plaintiff's long history of failing to follow the court's orders and Local Rules, and the Federal Rules of Civil Procedure. (See id. at 4-5.) Although the undersigned could have recommended the dismissal of plaintiff's entire case pursuant to Federal Rule of Civil Procedure 41(b), the undersigned declined to do so. And because plaintiff had indicated to defendants' counsel an intention to file hundreds of pages of briefing in multiple parts in response to defendants' motion, the undersigned imposed briefing requirements on plaintiff that, among other things, limited plaintiff to filing a single opposition brief, written in 12-point font, not to exceed 25 pages excluding exhibits. (See id. at 2-4.) The court also advised plaintiff that he could file a motion to be permitted to conduct discovery pursuant to Federal Rule of Civil Procedure 56(d). (Id. at 3-4.) Plaintiff filed a motion for reconsideration of the order entered by the undersigned on August 29, 2010 (Dkt. No. 68), which was denied by the district judge assigned to this case (Order, Sept. 8, 2011, Dkt. No. 70).

Plaintiff filed a 25-page opposition brief typed in approximately 10-point font, which did not include an express Rule 56(d) motion for discovery (Dkt. No. 69). Plaintiff did not file a statement of disputed facts consistent with Local Rule 260, but attempted to dispute some of defendants' proposed undisputed facts relying on the allegations in, and attachments to, the First Amended Complaint. (See Opp'n at 14-19.) Plaintiff submitted no declarations or evidence in opposition to the motion for partial summary judgment.

On September 26, 2011, and despite the undersigned's clear warning to plaintiff regarding the filing of only one opposition brief, plaintiff filed a document entitled "Response to Summary Judgment," which constituted either plaintiff's second written opposition to defendants' motions or a sur-reply (Dkt. No. 72). Consistent with the order entered August 29, 2011, the undersigned summarily disregarded and declined to consider plaintiff's "Response to Summary Judgment," which was filed only three days prior to the hearing. (Order, Sept. 27, 2011, Dkt. No. 73.) And although the undersigned could have recommended the dismissal of plaintiff's entire case pursuant to Federal Rule of Civil Procedure 41(b), the undersigned again declined to make such a recommendation. (Id. at 1-2.)

C. The Undisputed Facts

Defendants submitted 16 numbered undisputed facts, which are reprinted below. Plaintiff does not dispute the facts numbered 1, 2, 9-13, 15, and 16. As to the remaining facts, plaintiff does not actually dispute the fact framed by defendants. Instead, plaintiff offers argument, legal conclusions, speculation, and conjecture that are not responsive to the facts proposed by defendants. (See Pl.'s Opp'n at 14-19.) Defendants' undisputed facts follow:

1. Plaintiff applied with the Department of State for two Foreign Affairs Officer positions, a GS-11 and a GS-12. Declaration of Janice M. Mason (hereinafter "Mason Decl."), filed in conjunction with the instant motion, at ¶ 6.
2. A total of 511 applicants applied for the GS-11 position, and 242 applied for the GS-12 position. Mason Decl. at ¶ 6.
3. Plaintiff scored 87.63 for the GS-11 position, and 93.48 for the GS-12
position. Mason Decl. at ¶ 9.
4. Scores were based on the applicants' answers to self-assessment questions on the application, along with any additional points for veteran's preference eligibility. Mason Decl. at ¶ 5.
5. There were 110 applicants who scored higher than plaintiff for the GS-11 position, and 26 applicants who scored higher for the GS-12 position. Mason Decl. at ¶ 7.
6. Five applicants were listed on the selection certificate for each position and referred to the selecting official for further consideration. Mason Decl. at ¶ 7; see also Mason Decl. Exhibit 3.
7. Plaintiff was not listed on either the GS-11 or GS-12 certificate. Mason Decl. at ¶ 9; see also Mason Decl. Exhibit 3.
8. No applicants were listed on the certificates that received scores lower than plaintiff. Mason Decl. at ¶ 9.
9. Plaintiff was notified by emails on or about May 4, 2009, that he had not been selected for the Foreign Affairs Officer positions. Mason Decl. at ¶ 10; see also Mason Decl. Exhibit 6.
10. On or about May 5, 2009, plaintiff contacted an EEO counselor alleging that his nonselection was discriminatory. See FAC Exhibit 5 at 2.
11. Plaintiff filed a formal EEO complaint on or about June 18, 2009. See FAC Exhibit 5 at 2.
12. On September 30, 2010, an EEOC Administrative Judge issued a decision adverse to plaintiff. See FAC Exhibit 5 at 5.
13. On November 22, 2010, plaintiff filed the instant action. Doc. #1.
14. On June 20, 2011, the Court granted the defendants' motion for a more definite statement. Doc. #55.
15. On July 13, 2011, plaintiff filed his FAC alleging violations of the ADA, Title VII, the U.S. Constitution (Article III and the 1st and 14th Amendments), 42 U.S.C. § 1985, and gross negligence. Doc. #57.
16. Named as defendants in the FAC are Secretary of State Hillary Random [sic] Clinton and Deputy Secretary of State James Steinberg. FAC at 1; see also FAC Exhibit 19 (James Steinberg Role Within the State Department).

II. LEGAL STANDARDS

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Defendant's motion seeks dismissal of plaintiff's complaint, in part, for lack of subject matter jurisdiction on the ground that plaintiff has not established that the United States waived its sovereign immunity. To confer subject matter jurisdiction in an action against a sovereign, there must exist: (1) "statutory authority vesting a district court with subject matter jurisdiction," and (2) "a waiver of sovereign immunity." Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1016 (9th Cir. 2007). Because the United States is a sovereign, it is immune from suit unless it has expressly waived its immunity and consented to be sued. See Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1087-88 (9th Cir. 2007). The United States Supreme Court has "frequently held . . . that a waiver of sovereign immunity is to be strictly construed, in terms of scope, in favor of the sovereign." Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). Moreover, the waiver cannot be implied, but must be "unequivocally expressed" in the statutory text. Id.; accord Harger v. Dep't of Labor, 569 F.3d 898, 903 (9th Cir. 2009). The party asserting a waiver of sovereign immunity bears "the burden of establishing that its action falls within an unequivocally expressed waiver of sovereign immunity by Congress. . . ." Dunn & Black, P.S., 492 F.3d at 1088.

When considering a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) or 12(h)(3), the district court is not restricted to the face of the pleadings and "may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (collecting cases); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) ("A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings or by presenting extrinsic evidence.").

B. Motion to Dismiss for Failure to State A Claim On Which Relief Can Be Granted

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).

The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved").

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see Schneider v. Cal. Dep't of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003).

C. Motion for Summary Judgment or Partial Summary Judgment

Federal Rule of Civil Procedure 56(a) provides that "[a] party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought." It further provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A shifting burden of proof governs motions for summary judgment under Rule 56. Nursing Home Pension Fund, Local 144 v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376, 387 (9th Cir. 2010). Under summary judgment practice, the moving party

always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

If the moving party meets its initial responsibility, the opposing party must establish that a genuine dispute as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). To overcome summary judgment, the opposing party must demonstrate the existence of a factual dispute that is both material, i.e., it affects the outcome of the claim under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir. 2010), and genuine, i.e., "'the evidence is such that a reasonable jury could return a verdict for the nonmoving party,'" FreecycleSunnyvale v. Freecycle Network, 626 F.3d 509, 514 (9th Cir. 2010) (quoting Anderson, 477 U.S. at 248). A party opposing summary judgment must support the assertion that a genuine dispute of material fact exists by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A)-(B). However, the opposing party "must show more than the mere existence of a scintilla of evidence." In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Anderson, 477 U.S. at 252).

In resolving a motion for summary judgment, the evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. Moreover, all reasonable inferences that may be drawn from the facts placed before the court must be viewed in a light most favorable to the opposing party. See Matsushita, 475 U.S. at 587; In re Oracle Corp. Sec. Litig., 627 F.3d at 387. However, to demonstrate a genuine factual dispute, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).

III. MOTION TO DISMISS

A. Plaintiff's Claim or Claims Brought Pursuant to the ADA

Plaintiff's First Amended Complaint alleges that defendants discriminated against him in violation of the ADA. (See First Am. Compl. at 2-4.) Plaintiff's opposition to the pending motions clarifies that plaintiff's ADA claim is premised on Title I of the ADA (Opp'n at 23), which relates to employment. Defendants contend that Title I of the ADA does not apply to the federal government and that, accordingly, plaintiff's claim or claims that defendants violated the ADA should be dismissed with prejudice. (Defs.' Memo. at 6; Defs.' Reply Br. at 3-4, Dkt. No. 71.) However, defendants acknowledge that the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq. ("Rehabilitation Act"), may provide an avenue for relief for a plaintiff alleging disability discrimination by the federal government. (See Defs.' Memo. at 6.)

Plaintiff's ADA-related claims are premised on 42 U.S.C. § 12112 (see First Am. Compl. at 2), which in relevant part provides: "No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). However, Title I of the ADA does not govern alleged discriminatory acts of the federal government. Relevant here, the term "covered entity" includes an "employer." Id. § 12111(2). In defining the term "employer," Congress expressly excluded the federal government: "The term 'employer' does not include--. . . (i) the United States, a corporation wholly owned by the government of the United States, or an Indian tribe." Id. § 12111(5)(B). In persuasive dictum in a decision ultimately addressing the applicability of Title II of the ADA to the federal government, the Ninth Circuit Court of Appeals stated the same conclusion regarding Title I's inapplicability to the federal government:

Although Congress generally included governmental employers in Title I, it exempted the federal government from that Title. See 42 U.S.C. § 12111(5)(B) ("The term 'employer' does not include . . . the United States, a corporation wholly owned by the government of the United States, or an Indian tribe. . . ."). That being so, by including governmental employers in Title I, but at the same time excluding federal governmental employers, Congress was referring only to state and local governmental employers such as defendant.

Plaintiff's First Amended Complaint alleges violations of Title I of the ADA premised on acts of the federal government. Because the federal government is expressly excluded from coverage under Title I of the ADA, plaintiff's ADA claims should be dismissed with prejudice. However, as defendants correctly note, plaintiff may potentially be able to allege a claim of disability-based discrimination against the federal government pursuant to Section 501 of the Rehabilitation Act. Defendants have moved for summary judgment in regards to such a claim, and the parties' arguments in that regard are addressed below.

B. Plaintiff's Constitutional Claims and Negligence Claim

As noted above, plaintiff alleges that defendants violated the First and Fourteenth Amendments to the United States Constitution. (See First Am. Compl. at 2-4, 7.) Relatedly, he alleges a violation of 42 U.S.C. § 1985. (Id. at 8.) Plaintiff also alleges a tort claim of "gross negligence." (Id. at 4.) Defendants move to dismiss plaintiff's tort claim and claims premised on the Constitution and federal statutes (other than Title VII and the Rehabilitation Act) on the grounds that Title VII and the Rehabilitation Act provide plaintiff's exclusive remedies for the alleged discrimination. (Defs.' Memo. at 6-9.)

Defendants are correct that, generally, Title VII is the exclusive remedy for discrimination in federal employment. See Brown v. Gen. Servs. Admin., 425 U.S. 820, 829-30 (1976) (holding that Title VII, and specifically 42 U.S.C. § 2000e-16, provides an exclusive, preemptive administrative and judicial scheme for the redress of federal employment discrimination); accord White, 652 F.2d at 916-17 (holding that 42 U.S.C. § 2000e-16 provided the exclusive remedy to a federal employee asserting job-related racial discrimination, and affirming the dismissal of claims premised on 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988, 2000d, and the U.S. Constitution). Defendants are also correct that the Rehabilitation Act, which incorporates the rights, remedies, and procedures of 42 U.S.C. § 2000e-16 in regards to claims of discrimination on the basis of a disability, see 29 U.S.C. § 794a(a)(1), generally provides the exclusive remedy for disability-based discrimination in federal employment. See Johnston v. Horne, 875 F.2d 1415, 1420 (9th Cir. 1989) (holding that Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, provides the exclusive remedy for a claim of disability discrimination by a federal employee), overruled on other grounds, Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (1990); accord Newland v. Dalton, 81 F.3d 904, 906 n.1 (9th Cir. 1996); Boyd v. U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir. 1989); Wilborn v. Ashcroft, 222 F. Supp. 2d 1192, 1206 (S.D. Cal. 2002), aff'd, 70 Fed. Appx. 469 (9th Cir. 2003). Because there are certain narrow exceptions to the exclusivity of Title VII and the Rehabilitation Act, the undersigned addresses plaintiff's claims in greater detail below.

1. Plaintiff's Purported Bivens Claims

Defendants move to dismiss plaintiff's direct constitutional challenges premised on the First and Fourteenth Amendments, 42 U.S.C. §§ 1983 and 1985, and vague reference to "Article III." (Defs.' Memo. at 8; see Reply Br. at 4-5.) Defendants argue that plaintiff may not pursue a direct constitutional challenge as provided for in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), because Title VII and the Rehabilitation Act provide the exclusive avenues for relief as to plaintiff's claims of discrimination in applying for federal employment.

"In Bivens, the Supreme Court held that the victim of a Fourth Amendment violation committed by federal officers acting under color of their authority could bring an action under federal law for money damages against the officers." Moore v. Glickman, 113 F.3d 988, 990-91 (9th Cir. 1997); see also Carlson v. Green, 446 U.S. 14, 18 (1980). In Moore v. Glickman, the Ninth Circuit Court of Appeals discussed a limitation on Bivens claims where Congress has otherwise provided a statutory remedial system to address the claim at issue:

An express limitation on the creation of a Bivens claim can be found when Congress has provided an alternative remedy which it explicitly declares to be a substitute for recovery directly under the Constitution and views as equally effective. Implied preclusion of a Bivens action can be found when defendants can demonstrate the existence of "special factors counselling hesitation in the absence of affirmative action by Congress." The presence of a deliberately crafted statutory remedial system is one "special factor" that precludes a Bivens remedy.

Under the circumstances of this case, Title VII and the Rehabilitation Act, which permit a plaintiff to pursue claims of discrimination in applying for federal employment, see 42 U.S.C. § 2000e-16; 29 U.S.C. § 794a(a)(1), constitute deliberately crafted statutory remedial systems designed to address discrimination in federal employment that preclude a Bivens remedy. See, e.g., Brazil v. U.S. Dep't of the Navy, 66 F.3d 193, 197-98 (9th Cir. 1995) (affirming dismissal of Bivens remedy where, in part, Title VII provided an exclusive judicial remedy to a civilian who alleged discrimination in federal employment), cert. denied, 517 U.S. 1103 (1996); White, 652 F.2d at 917 (holding that where the plaintiff's retaliation claim was within the scope of Title VII and the plaintiff alleged no separate constitutional claim for which there was no statutory remedy, no independent Bivens claim could proceed); Santos v. Potter, No. C-06-2948-VRW, 2007 WL 926493, at *2 (N.D. Cal. Mar. 26, 2007) (unpublished) (concluding that "because plaintiff's Bivens claim is based on defendant's allegedly discriminatory termination of plaintiff, Title VII and the ADEA constitute plaintiff's exclusive remedies").

Even if plaintiff's constitutional claims fall outside the scope of Title VII or the Rehabilitation Act, they should be dismissed to the extent they are alleged against defendants in their official capacities because sovereign immunity bars such claims. Lawsuits seeking money damages against federal government employees in their official capacities are considered lawsuits against the United States, and the United States has not waived its sovereign immunity for such damages claims. See Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991) ("The courts lack subject matter jurisdiction to hear constitutional damage claims against the United States, because the United States has not waived sovereign immunity with respect to such claims."); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) ("It has long been the rule that the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants. Thus, a suit against IRS employees in their official capacity is essentially a suit against the United States.") (citations omitted). Plaintiff has not met his burden to identify an unequivocal waiver of sovereign immunity in this regard.

2. Plaintiff's Claim of "Gross Negligence"

In regards to plaintiff's allegation of "gross-negligence," defendants argue that Title VII and the Rehabilitation Act provide the exclusive remedies for such a tort claim because plaintiff alleges the same facts to support his Title VII discrimination claim and his negligence claim. (Defs.' Memo. at 9; Reply Br. at 4-5.) In essence, defendants contend that Title VII preempts the state tort claim under the facts pled by plaintiff.

As a general matter, Title VII, and particularly 42 U.S.C. § 2000e-16, "provides the exclusive, preemptive remedy for federal employees seeking to redress employment discrimination." Sommatino v. United States, 255 F.3d 704, 711 (9th Cir. 2001) (citing Brown, 425 U.S. at 829-32). However, the Ninth Circuit Court of Appeals has held that Title VII does not preempt a Federal Tort Claims Act claim or state law tort claim "if the conduct alleged is a highly personal violation beyond the meaning of workplace discrimination." See id.

Here, plaintiff's "gross-negligence" claim is premised on the allegation that the Department of State "does not offer 'disability points' on the exam," which resulted in plaintiff scoring lower on the examination than other candidates for the position of Foreign Affairs Officer. (First Am. Compl. at 4.) At a minimum, plaintiff's allegations simply do not meet the level of egregiousness required to support an independent tort claim. In short, plaintiff has not alleged "a highly personal violation beyond the meaning of workplace discrimination"; indeed, plaintiff complains only of discrimination in connection with his application for employment with the State Department. The Ninth Circuit Court of Appeals has described the types of alleged "highly personal violations" that support an independent tort claim. For example, in Sommatino, the Court of Appeals noted that its prior decisions had permitted separate tort claims to proceed where the allegations concerned, among other things, rape by a supervisor, harassment and stalking by a supervisor to the point of causing an employee to miscarry a child, and forcible fondling and unwanted sexual advances facilitated by false imprisonment. See Sommatino, 255 F.3d at 711-12 (discussing the holdings of Brock v. United States, 64 F.3d 1421 (9th Cir. 1995); Otto v. Heckler, 781 F.2d 754 (9th Cir. 1986); and Arnold v. United States, 816 F.2d 1306 (9th Cir. 1987)); but see id. at 711-12 (holding that intentional touching and sexually suggestive and vulgar remarks did not constitute "a highly personal violation" beyond workplace discrimination). Plaintiff's allegations greatly pale in comparison to allegations found to support a tort claim independent of any Title VII claim. Accordingly, plaintiff's claim of "gross negligence" should be dismissed with prejudice.

C. Title VII and Rehabilitation Act Claims Alleged Against Defendant Steinberg

As a result of the foregoing analysis, plaintiff's remaining claims against defendants are those alleged pursuant to Title VII and the Rehabilitation Act. Defendants argue that plaintiff's Title VII and Rehabilitation Act claims are subject to dismissal with prejudice as to defendant James Steinberg because he is not a proper defendant insofar as Title VII and Rehabilitation Act claims are concerned. Defendants' argument is well-taken.

Coverage of Title VII of the Civil Rights Act of 1964 is extended to reach applicants for federal employment through 42 U.S.C. § 2000e-16, which provides that "all personnel actions affecting federal employees and applicants for federal employment shall be made free from any discrimination based on race, color, religion, sex, or national origin." Brown, 425 U.S. at 829-30 (citation and quotation marks omitted). "Title VII requires that in a civil action alleging employment discrimination by the government, 'the head of the department, agency, or unit, as appropriate, shall be the defendant.'" Vinieratos v. U.S., Dep't of Air Force, 939 F.2d 762, 772 (9th Cir. 1991) (quoting 42 U.S.C. § 2000e-16(c); accord White, 652 F.2d at 916 n.4. This requirement of Title VII also applies to claims alleged pursuant to the Rehabilitation Act. See 29 U.S.C. § 794a(a)(1) (making the remedies, procedures and rights set forth in 42 U.S.C. § 2000e-16 available in claims asserting violations of 29 U.S.C. § 791); Lopez v. Johnson, 333 F.3d 959, 961 (9th Cir. 2003) (per curiam) ("For complaints filed under section 501, the [Rehabilitation Act] borrows 'the remedies, procedures, and rights' from Title VII of the Civil Rights Act of 1964.") (citing 29 U.S.C. § 794a(a)(1)); Mahoney v. U.S. Postal Serv., 884 F.2d 1194, 1196 & n.1 (9th Cir. 1989) (stating that "the Rehabilitation Act simply makes available to victims of handicap discrimination the rights and remedies embodied in Title VII," and holding that the head of the United States Postal Service was the only appropriately named defendant).

Here, the Secretary of the U.S. Department of State, Secretary Clinton, is the proper defendant with respect to plaintiff's Title VII and Rehabilitation Act claims. Plaintiff appropriately named Secretary Clinton as a defendant, but also named Deputy Secretary of State James Steinberg as a defendant. Deputy Secretary Steinberg is not the head of the Department of State and is thus not a proper defendant in this action. Accordingly, plaintiff's Title VII and Rehabilitation Act claims should be dismissed with prejudice as to Deputy Secretary Steinberg.

IV. MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiff's remaining claims are his disability discrimination claim premised on the Rehabilitation Act, and his claims of race, religion, and national origin discrimination claims premised on Title VII. The undersigned addresses the Rehabilitation Act and Title VII in turn, and concludes that Secretary Clinton is entitled to summary judgment in regards to plaintiff's Rehabilitation Act and Title VII claims.

A. Plaintiff's Rehabilitation Act Claim, 29 U.S.C. § 791

Defendants initially move for summary judgment as to plaintiff's Rehabilitation Act claim on the grounds that plaintiff cannot substantiate a prima facie claim of disability discrimination. Because the undersigned agrees that Secretary Clinton is entitled to summary judgment on the grounds that plaintiff has not created a genuine dispute of material fact as to his prima facie claim, the undersigned does not address defendants' remaining arguments here.

"Section 501 of the [Rehabilitation Act] announces a federal government policy to prevent discrimination against the disabled in employment decisions, and expressly encourages federal government employers to employ individuals with disabilities." Lopez, 333 F.3d at 961. To state a prima facie claim of disability discrimination under the Rehabilitation Act, "a plaintiff must demonstrate that (1) [he or] she is a person with a disability, (2) who is otherwise qualified for employment, and (3) suffered discrimination because of [his or] her disability." Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007). "Section 501 [of the Rehabilitation Act] borrows its substantive standards from the Americans with Disabilities Act (ADA)." Lopez, 333 F.3d at 961 (citing 29 U.S.C. § 791(g)). If the plaintiff makes a prima facie showing, "the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment decision. The burden then shifts back to the plaintiff to produce evidence sufficient to allow a reasonable factfinder to conclude that plaintiff's articulated reason is pretextual." Wilborn, 222 F. Supp. 2d at 1207.

Defendants do not, in essence, dispute that plaintiff is a person with a disability. In regards to the first element of plaintiff's prima facie case, defendants state that they "do not dispute the disabled status of the plaintiff under the Rehabilitation Act at this time, but reserve the right to do so if plaintiff's disability discrimination claim survives this motion." (Defs.' Memo. at 10.) Accordingly, for the purpose of defendants' motion for partial summary judgment, the undersigned assumes that plaintiff is a person with a disability.

To satisfy the second element of a prima facie Rehabilitation Act claim, plaintiff must demonstrate that he was "otherwise qualified for employment" with the State Department as a Foreign Affairs Officer. The Ninth Circuit Court of Appeals has described the question of a plaintiff's qualification for employment as proceeding through a two-step inquiry:

Qualification for a position is a two-step inquiry. The court first examines whether the individual satisfies the "requisite skill, experience, education and other job-related requirements" of the position. The court then considers whether the individual "can perform the essential functions of such position" with or without a reasonable accommodation.

Regarding the issue of plaintiff's qualification for employment, defendants contend that plaintiff failed to show that he was qualified for the Foreign Affairs Officer position because he has not produced evidence verifying that he met the educational requirements for the position. (Defs.' Memo. at 10-11.) Specifically, defendants argue that plaintiff failed to meet an express requirement of the application process by not submitting his undergraduate college transcripts as verification of his education in support of his application.

One of the "Basic Requirements" for the Foreign Affairs Officer position was that the applicant possess a bachelor's degree or graduate degree in—or fulfill a minimum number of credit hours in—the subject areas of international law, international relations, political science, economics, history, sociology, geography, social or cultural anthropology, law, statistics, or the humanities. (See Mason Decl. ¶ 8 & Ex. 1 at 3-4.) Additionally, the vacancy announcement stated in bolded typeface: "All applicants MUST submit transcripts as verification of educational requirement by the closing date of this announcement. If you fail to provide requested information, or the information you submit is insufficient to verify your eligibility, you WILL lose consideration for this position." (Mason Decl. ¶ 8 & Ex. 1 at 4 (emphasis omitted).)

The declaration of Janice M. Mason, a Human Resources Specialist with the State Department who designed the job announcement and reviewed the submitted applications, states that plaintiff represented in his application that he met the educational requirement and submitted a resume stating that plaintiff possessed a bachelor's degree in Government, but that plaintiff did not submit his college transcripts as supporting or verifying documentation. (See Mason Decl. ¶¶ 1, 3-4, 8 & Ex. 5.) Accordingly, Ms. Mason declares that plaintiff "did not meet the basic qualifications for the position." (Id. ¶ 8.)

On the record before the court, plaintiff has not met his burden with respect to the first step of the "qualification" analysis as stated in Bates. Other than the resume submitted by and pointed to by defendants, plaintiff has not offered any evidence confirming that he met the educational or degree requirement for the position of Foreign Affairs Officer. Plaintiff has submitted no evidence demonstrating that he ever submitted his college transcripts as verification of his degree or completion of the required credit hours in the appropriate subjects of study. The submission of such transcripts was an express, basic requirement for the position sought; indeed, the application plainly stated that the failure to submit such transcripts would result in a loss of consideration for the position. In his opposition brief and at the hearing, plaintiff contended in conclusory fashion that he submitted his transcripts. (See, e.g., Opp'n at 12.) But, again, plaintiff failed to cite to evidence in the record substantiating his educational qualification or that he ever submitted the requisite verification of his education to the State Department. Plaintiff failed to meet his burden despite being expressly warned by defendants, in advance of the deadline for his written opposition to the motion for partial summary judgment, of the evidentiary requirements for opposing a summary judgment motion. Accordingly, the undersigned concludes that plaintiff failed to create a triable issue as to step two of his prima facie Rehabilitation Act claim. As a result, Secretary Clinton is entitled to summary judgment in regards to plaintiff's Rehabilitation Act claim.

B. Plaintiff's Title VII Claim, 42 U.S.C. § 2000e-16

Defendants also move for summary judgment as to plaintiff's Title VII claim on the grounds that plaintiff has not created a genuine dispute of fact as to plaintiff's prima facie claims of discrimination. Plaintiff's Title VII claim is premised on the fact that he was "forced" to provide his former name—Rasoul Rahimi—on the application for the Foreign Affairs Officer applications, and that this was the basis of race, ethnicity, and religious discrimination on the part of the State Department. See 42 U.S.C. § 2000e-16(a) (prohibiting discrimination on the basis of race, color, religion, sex, or nation origin in regards to personnel actions affecting federal employees or applicants for federal employment).

At the outset, the undersigned notes that plaintiff has not pointed to any evidence suggesting that he was forced to provide his former name to the State Department when applying for a job. Instead, it appears that plaintiff voluntarily provided that name on his resume, which he submitted in connection with his application. (See Mason Decl., Ex. 4 at 14.) In any event, the determination of whether plaintiff was actually forced to provide his former name is not material to resolution of the pending motion.

In opposing a motion for summary judgment as to a Title VII discrimination claim premised on disparate treatment, "a plaintiff may produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the defendant's decision, or alternatively may establish a prima facie case under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 . . . (1973)." Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1037 (9th Cir. 2005). To state a prima facie discrimination claim under the McDonnell Douglas framework, "a plaintiff must show that (1) [he] belongs to a protected class; (2) [he] applied for and was qualified for the position [he] was denied; (3) [he] was rejected despite [his] qualifications; and (4) the employer filled the position with an employee not of plaintiff's class, or continued to consider other applicants whose qualifications were comparable to plaintiff's after rejecting plaintiff." Dominguez-Curry, 424 F.3d at 1037. If the plaintiff establishes a prima facie case, it creates a rebuttable presumption that the employer unlawfully discriminated against the plaintiff, and the "burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action." Id. If the employer meets this burden, the "plaintiff then must produce sufficient evidence to raise a genuine issue of material fact as to whether the employer's proffered nondiscriminatory reason is merely a pretext for discrimination." Id. Under the McDonnell Douglas framework, "[t]he burden of persuasion, as opposed to production, however, remains with the plaintiff at all times." Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th Cir. 2004).

Here, plaintiff's Title VII claim fails for the same reason that his Rehabilitation Act claim fails; plaintiff has not created a genuine dispute of material fact regarding his prima facie case of discrimination. Assuming that plaintiff belongs to a protected class, which appears undisputed, plaintiff has not met his burden to create a triable dispute as to whether he was qualified for the position that he was denied. As with plaintiff's Rehabilitation Act claim, plaintiff did not verify or substantiate the educational requirements attendant to the position he sought and, accordingly, was not qualified. Accordingly, the undersigned recommends that Secretary Clinton be granted summary judgment as to plaintiff's Title VII discrimination claim. As a result, the undersigned does not reach defendants' alternative arguments.

V. CONCLUSION

For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

1. Defendants' motion to dismiss and alterative motion for summary judgment (Dkt. No. 59) be granted.

2. Plaintiff's claims brought pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 1983 and 1985, "Article III," and his Bivens claims and negligence claim be dismissed with prejudice as to both defendants.

3. Plaintiff's Title VII and Rehabilitation Act claims be dismissed with prejudice as to defendant James Steinberg.

4. Defendant Hillary Clinton be granted summary judgment as to plaintiff's Title VII and Rehabilitation Act claims.

5. Judgment be entered in defendants' favor, and the Clerk of Court be directed to close this case.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also E. Dist. Local Rule 304(b). Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. E. Dist. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

IT IS SO RECOMMENDED.

KENDALL J. NEWMAN

UNITED STATES MAGISTRATE JUDGE