Opinion
No. C-03-05119 EDL.
October 1, 2004
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND SETTING BRIEFING SCHEDULE FOR DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On November 19, 2003, Plaintiff Cheryl Koel filed this action against Defendant John Ashcroft alleging gender discrimination and retaliation arising from her employment as a Supervisory Deputy United States Marshal in the United States Marshal's Service. On December 23, 2003, this case was related to Koel v. Ashcroft, C-02-1289 EDL ("Koel I"). At issue is Defendant's July 18, 2004 third motion to dismiss Plaintiff's claims in the second amended complaint that arise out of Plaintiff's thirty-day suspension that was imposed by the Marshal's Service on December 10, 2003 and that commenced on December 14, 2003.
A motion to dismiss under Rule 12(b)(6) cannot be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In analyzing a motion to dismiss, the Court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party.NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).
Previously, in connection with Defendant's second motion to dismiss, Defendant argued, inter alia, that Plaintiff failed to exhaust her administrative remedies with respect to the claims based on the thirty-day suspension by failing to timely file her Merit Systems Protection Board ("MSPB") appeal. See 5 C.F.R. § 1201.154(a) (setting forth the requirement that a claimant must file an appeal with the MSPB "no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of receipt of the agency's decision on the appealable action, whichever is later."). Because Plaintiff's appeal of her suspension to the MSPB on January 30, 2004 was beyond the thirty-day deadlines, the MSPB dismissed the appeal as untimely in an order that became final on April 7, 2004. This Court's June 10, 2004 Order regarding Defendant's second motion to dismiss stated: "The Court doubts that Plaintiff could make any allegations consistent with counsel's obligations under Federal Rule of Civil Procedure 11, that the sixty-day time limit [from 5 C.F.R. section 1201.22(b)(1), which, under some circumstances, provides a thirty-day extension of the time limit for filing appeals] applied to excuse her late filing of the MSPB appeal." See June 10, 2004 Order at 4:24-26.
At that time, Plaintiff also argued in opposition to Defendant's second motion to dismiss that she was not required to exhaust her administrative remedies because the acts she complained of were like or reasonably related to the allegations in her prior EEO charge. See Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2004) ("Subject matter jurisdiction extends to all claims of discrimination that fall within the scope of the EEOC's actual investigation or an EEOC investigation that could reasonably be expected to grow out of the charge."); see also Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003) ("the district court has jurisdiction over any charges of discrimination that are `like or reasonably related to' the allegations made before the EEOC, as well as charges that are within the scope of an EEOC investigation that reasonably could be expected to grow out of the allegations."). In the June 10, 2004 Order, the Court found, inter alia, that Plaintiff failed to allege facts sufficient to satisfy Vasquez, but gave Plaintiff leave to amend to attempt to do so. Specifically, the Court stated:
Taking all allegations in the complaint as true, as required for a motion to dismiss, the Court finds that the complaint does not sufficiently allege Plaintiff's current argument based on the "like or reasonably related to" standard. While it is not clear that Plaintiff can meet the standard set out in Vasquez, leave to amend is freely given when granting a motion to dismiss. See Balistieri v. Pacifica Police Department, 901 F.2d 696, 700-01 (9th Cir. 1990).
Accordingly, Defendant's motion to dismiss Plaintiff's claim based on her thirty-day suspension is granted with leave to amend. In amending her complaint, Plaintiff should focus on the requirements set out in Vasquez for finding that claims are like or reasonably related to prior charges.
On June 28, 2004, Plaintiff filed a second amended complaint. Defendant argues that she failed to cure the lack of exhaustion by failing to allege facts sufficient to show that the claims arising from the thirty-day suspension are like or reasonably related to Plaintiff's prior claims.
Plaintiff failed to timely oppose Defendant's motion, despite having extra time to do so after the Court continued the hearing for two weeks. The opposition was due on September 7. Late in the afternoon on September 16, two days after Defendant filed a timely reply reporting that he had received no opposition, Plaintiff's counsel filed an opposition and a request to enlarge time to file an opposition. Plaintiff stated that the delay was occasioned by the need to address a new case, Porter v. California Department of Corrections, 2004 WL 2029923 (9th Cir. Sept. 20, 2004), which she argued cast doubt on Vasquez. Plaintiff misreads Porter. Moreover, the Civil Local Rules provide a specific mechanism for bringing a case to the court's attention after briefing. See Civil L.R. 7-3(d). If Plaintiff knew on September 7 when her opposition was due that she needed more time to include Porter (which was not issued until September 10), she should have timely filed her opposition and then informed the Court of Porter as provided by Local Rule 7-3(d). Alternatively, she should have sought leave on or before September 7 for an extension of time to file her opposition. Plaintiff did neither. Instead, her request to file a late brief came nine days after her opposition was due and seven days after the Porter case was issued. This is not the first time Plaintiff has failed to timely file documents; the Court warned Plaintiff in the June 10, 2004 Order that it might impose sanctions for future unexcused late filings. See June 10, 2004 Order at 2:6-8. For these reasons, Plaintiff's request to file a late brief is denied and the Court will not consider Plaintiff's untimely opposition.
Contrary to Plaintiff's assertions, Porter does not cast doubt on the validity of Vasquez. Porter only cites Vasquez when setting out the rule of making out a hostile working environment claim. See Porter, 2004 WL 2029923, *8. Porter does not involve exhaustion of administrative remedies and therefore does not speak to the issue of like or reasonably related claims addressed by Vasquez.
Her failure to timely oppose, despite warnings, itself justifies granting Defendant's motion. Moreover, even if the Court were to consider Plaintiff's untimely opposition, Plaintiff has failed to allege facts sufficient to show, pursuant toVasquez, that her claims based on the thirty-day suspension are "like or reasonably related to" her earlier claims. Plaintiff argued in her opposition and at the hearing that as a federal sector employee, she does not have to comply with the "like or reasonably related to" standard in Vasquez. See Pl.'s Opp'n at 9:19 ("It is undisputed that plaintiff did not use the procedure at issue in Vasquez."). Plaintiff contends instead that the procedure set forth in 29 C.F.R. § 1614, et seq., and specifically section 1614.107 and Management Directive 110, governs Plaintiff's claim. Plaintiff further argues that under these regulations, she need only file one discrimination and retaliation complaint with the agency and then events such as the thirty-day suspension that subsequently arise need not be raised in a separate complaint. Specifically, Plaintiff claims that "a federal employee does not need to file a new EEOC charge to allege discrimination or retaliation occurring after the filing of an earlier charge that is like or reasonably related to the allegations contained in the charge under the federal sector procedures set forth in 29 C.F.R. § 1614." See Pl.'s Opp'n at 3:21-24. Yet the Regulations cited by Plaintiff specifically adopt a "like or reasonably related to" standard for determining when an administrative complaint should be amended to add new claims. See 29 C.F.R. § 1614.106 (stating the procedure for amending the complaint). Moreover, Plaintiff did not amend her administrative complaint. Although the Regulations set out a separate procedure for federal employees to present discrimination or retaliation charges, the Regulations do not abrogate the substantive "like or reasonably related to" standard as to federal employees.
Plaintiff also relies on the policy of the Regulations and Management Directive, inter alia, to avoid fragmentation of complaints and encourage amendment of pending complaints still under investigation when new related claims arise during the investigation. See 5 C.F.R. § 1614.106(d) ("A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or reasonably related to those raised in the complaint.") (emphasis added); United States Equal Employment Opportunity Commission, Agency Processing of Formal Complaints, at III; 5 C.F.R. § 1614.107. Amending complaints that are still under investigation is patently different, however, from excusing the exhaustion of claims arising after the investigation is closed. Nowhere do the Regulations or Directive permit a complainant to rely on an earlier-filed complaint whose investigation has been closed to excuse a later failure to timely file a new complaint. Nor do the Regulations supersede Vasquez.
Application of the Vasquez "like or reasonably related to" standard to federal employees like Plaintiff is consistent with the policies underlying the charge-filing procedures for any type of employee. The policy underlying the requirement for federal employees to first file administrative charges within their agencies before litigation is the same policy that animates the requirement that state, local or private employees first file charges with the EEOC: to encourage administrative conciliation of employment discrimination claims prior to resorting to litigation. See, e.g., Ong v. Cleland, 642 F.2d 316, 319 (9th Cir. 1981).
Here, by her own admission, Plaintiff did not attempt to comply with the "like or reasonably related to" standard from Vasquez as the Court directed her to do in granting leave to amend in response to her prior argument relying on that basis. The second amended complaint does not show that the new claims are like or reasonably related to the earlier claims. Plaintiff alleges that the pattern of discrimination and retaliation culminated in the December 2003 discipline. She did not allege, however — despite being specifically directed to do so if she could — that the personnel involved in the prior claims are the same as those involved in the current disciplinary action. See Def. Mot. at n. 6; see, e.g., Vasquez, 349 F.3d at 645 (determining that the first part of the plaintiff's new retaliation claim based on retaliation for filing a prior discrimination charge with the EEOC was not related to the earlier EEOC charge because, inter alia, a different person retaliated against the plaintiff than had discriminated against him). Further, the disciplinary action that resulted in the thirty-day suspension did not take place until several months after the Marshal's Service completed its investigation of the prior charges. See, e.g., Vasquez, 349 F.3d at 645 (determining that the first part of the plaintiff's new retaliation claim based on retaliation for filing a prior discrimination charge with the EEOC was not related to the earlier EEOC charge because, inter alia, the retaliation did not occur during the time frame of the events charged in the EEOC charge). An investigation into Plaintiff's prior complaints of discrimination and retaliation would not have revealed the thirty-day suspension because it had not happened yet, so a claim of retaliation or discrimination based on the thirty-day suspension could not have grown out of the earlier charges. See Vasquez, 349 F.3d at 645 (finding that a new retaliation claim was not related to an earlier discrimination claim in part because "[t]he EEOC could not have investigated that incident because it had not yet happened at the time the EEOC was conducting its investigation.").
Accordingly, Defendant's Motion to Dismiss is granted. Leave to amend is denied here because the Court has already given Plaintiff leave to amend on this issue with specific direction to state allegations showing the claims were like and reasonably related, and she declined to do so.
In the Court's June 10, 2004 Order, the Court denied without prejudice Defendant's Motion for Summary Judgment with respect to whether Plaintiff's reassignment from OCDETF was retaliatory and granted Plaintiff's Federal Rule of Civil Procedure 56(f) request to take more discovery into this issue. The discovery has been taken and the discovery period has closed. Defendant stated at the hearing that he did not intend to re-file his summary judgment motion, but renewed the motion already on file. Plaintiff indicated that she could oppose Defendant's motion by the end of October. Therefore, Plaintiff's opposition shall be filed no later than November 2, 2004. Defendant's reply shall be filed no later than November 9, 2004. A hearing is scheduled for November 30, 2004 at 2:00 p.m.
IT IS SO ORDERED.