Grounds v. United States, 3:17-cv-01190-HZ

JANICE GROUNDS, Plaintiff, v. UNITED STATES OF AMERICA, acting by and through the Department of Energyand the Bonneville Power Administration,and RICK PERRY, Secretary of the Department of Energy, Defendants.

No. 3:17-cv-01190-HZ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

March 18, 2019

OPINION & ORDER

Beth Ann Creighton

Michael E. Rose

CREIGHTON & ROSE, PC

Powers Building

65 SW Yamhill Street, Suite 300

Portland, OR 97204

Attorneys for Plaintiff

Dianne Schweiner

US ATTORNEY'S OFFICE - DISTRICT OF OREGON

Civil Division

1000 SW Third Avenue, Suite 600

Portland, OR 97204

Attorney for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Janice Grounds brings this employment discrimination action against Defendants United States of America, acting by and through the Department of Energy and the Bonneville Power Administration ("BPA"); and Rick Perry, Secretary of the Department of Energy. Plaintiff alleges discrimination based on gender under Title VII of the Civil Rights Act of 1964 and Oregon's analogous statute, Oregon Revised Statute § ("O.R.S.") 659A.030(1)(b). Plaintiff also alleges a violation of the Equal Pay Act, 29 U.S.C. § 206(d).

Defendants move to dismiss Plaintiff's complaint for lack of subject matter jurisdiction. The Court grants Defendants' motion and dismisses Plaintiff's case.

BACKGROUND

On February 4, 2012, Plaintiff began working at BPA, a federal non-profit agency which is part of the United States Department of Energy. Compl. ¶¶ 4-5, ECF 1. She alleges that she was discriminated against in the terms and conditions of her employment and was not promoted because she is a woman. Id. at ¶ 22. She also alleges that she was paid less than her male counterparts. Id. at ¶¶ 6-20.

Plaintiff's Complaint alleges that she was hired, employed, and paid by BPA. Compl. ¶¶ 3-7. However, in a declaration attached to her Opposition to Defendants' Motion to Dismiss, Plaintiff declares that her employer is Flux, a temporary agency that paid her for her work atBPA. Grounds Decl. Dec. 28, 2018 ("Grounds Decl.") ¶¶ 6, 11, ECF 28. For the purposes of this Opinion, the Court assumes that Plaintiff alleges that both BPA and Flux are her employers.

STANDARDS

I. Subject Matter Jurisdiction

A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(1) addresses the court's subject matter jurisdiction. The party asserting jurisdiction bears the burden of proving that the court has subject matter jurisdiction over her claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A Rule 12(b)(1) motion may attack the substance of the complaint's jurisdictional allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007) (court treats motion attacking substance of complaint's jurisdictional allegations as a Rule 12(b)(1) motion); Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) ("[U]nlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency[.]") (internal quotation omitted). Additionally, the court may consider evidence outside the pleadings to resolve factual disputes. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); see also Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (a challenge to the court's subject matter jurisdiction under Rule 12(b)(1) may rely on affidavits or any other evidence properly before the court). "No presumptive truthfulness attaches to plaintiff's allegations." Id. at 685 (internal quotation omitted). "Once challenged, the party asserting subject matter jurisdiction has the burden of proving its existence." Rattlesnake Coal. v. E.P.A., 509 F.3d 1095, 1102 n. 1 (9th Cir. 2007).

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DISCUSSION

I. Title VII Claim

Defendants argue that Plaintiff failed to exhaust her administrative remedies and, thus, this Court lacks subject matter jurisdiction over her Title VII gender discrimination claim. The Court agrees.

Before bringing a Title VII claim, a federal employee must first exhaust all administrative remedies. 42 U.S.C. § 2000e-16(c); Sommatino v. United States, 255 F.3d 704, 707-708 (9th Cir. 2001). Under the Title VII statutory and regulatory scheme, a federal employee must notify an Equal Employment Opportunity ("EEO") Counselor of discriminatory conduct within 45 days of the alleged conduct. Id.; 29 C.F.R. § 1614.105(a)(1); see also Kerr v. Jewell, 836 F.3d 1048, 1054 (9th Cir. 2016). If the matter is not resolved by the counselor, the employee may file a formal discrimination complaint with the agency's EEO office. See Kerr, 836 F.3d at 1054 (citing 29 C.F.R. §§ 1614.105(d), 1614.106(a)). When the EEO office issues a final decision, the employee has the right to appeal the decision to the EEOC or file a civil action in federal district court. Id.

Title VII's regulatory deadlines for administrative exhaustion are not a jurisdictional requirement; rather, they are conditions precedent to filing an action which are subject to waiver, estoppel, or equitable tolling. Sommatino, 255 F.3d at 708; 29 C.F.R. § 1614.604. However, "substantial compliance with the presentment of discrimination complaints to an appropriate administrative agency is a jurisdictional prerequisite" to a Title VII claim. Id. The district court does not have subject matter jurisdiction in "cases where a plaintiff has never presented a discrimination complaint to the appropriate administrative authority." Id. (citing Blank v.Donovan, 780 F.2d 808, 809 (9th Cir. 1986); Scott v. Perry, 569 F.2d 1064, 1065-66 (9th Cir. 1978)).

Plaintiff does not contend that waiver, estoppel, or equitable tolling apply to excuse her from compliance with §1614.05. Pl.'s Resp. Defs.' Mot. Dismiss 6, ECF 27 ("[W]aiver, estoppel, and equitable tolling . . . are not at issue in the present motion.") Therefore, whether her Title VII claim was administratively exhausted "depends solely upon whether she 'initiate[d] contact with a Counselor within 45 days of the date of [each] matter alleged to be discriminatory.'" Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043 (9th Cir. 2009) (quoting 29 C.F.R. §1614.105(a)(1)).

Plaintiff filed this lawsuit on July 31, 2017. Compl. Prior to filing her lawsuit, Plaintiff did not present her discrimination complaint to any administrative authority—she did not contact an EEO counselor, nor did she file a formal discrimination complaint with BPA's EEO office. Therefore, this Court lacks subject matter jurisdiction over Plaintiff's Complaint.

While implicitly acknowledging her failure to present her discrimination complaint to the appropriate administrative authority prior to filing suit, Plaintiff nevertheless argues that she demonstrated "substantial compliance" and should be allowed to proceed. Her "substantial compliance" argument is based upon her formal EEOC complaint in August of 2017 and her contact of an EEO counselor in January of 2018. The Court address each in turn.

A. EEOC Complaint

Plaintiff argues that, because she filed a complaint with the EEOC, she demonstrated substantial compliance with the requirement to present her complaint to an appropriate administrative agency. Plaintiff's argument is unavailing.

On August 22, 2017, three weeks after filing the present lawsuit, Plaintiff filed a complaint with the EEOC against BPA, alleging that Plaintiff was discriminated against by BPA and David Evans Enterprises (which had formed the temporary agency Flux). Pl.'s Opp. Defs.' Mot. Dismiss, Ex. B, ECF 28-2. On September 5, 2017, EEOC Administrative Judge Steven Gaffin responded to Plaintiff's attorney in a letter and stated that it was not clear from Plaintiff's EEOC complaint whether Plaintiff is a federal employee. Pl.'s Opp. Defs.' Mot. Dismiss, Ex. C, ECF 28-3. Judge Gaffin wrote the following:

If she is [a federal employee], she must first contact an equal employment opportunity (EEO) counselor at the BPA where she worked . . . within 45 days of the personnel action or conduct causing her to believe she was discriminated against." Id.

He also explained that if Plaintiff intended to file a charge of discrimination against David Evans Enterprises (aka Flux), then she must contact the EEOC and file a private sector charge. Id.

On December 5, 2017, Defendants filed a motion to dismiss Plaintiff's Title VII claim for failure to exhaust her administrative remedies. Defs.' Mot. Dismiss, Dec. 5, 2017, ECF 4. Defendants argued that Plaintiff had not filed an EEO complaint with BPA. Id. at 4. Defendants moved to dismiss Plaintiff's claim or, if Plaintiff intended to file an EEO complaint, to stay proceedings until administrative remedies were exhausted. Id. at 5.

On January 16, 2018, Plaintiff filed an unopposed motion to stay all proceedings. Pl.'s Mot. Stay, ECF 9. In her motion, Plaintiff wrote:

Plaintiff filed a complaint with the EEOC in August of 2017. The filing was not processed because she did not exhaust the EEO process at BPA. She has since initiated the EEO process at BPA and is awaiting a response. Defendant BPA agrees to stay this case while the administrative process is pending.

Id. Plaintiff did not specify in her motion when she initiated the EEO process at BPA. However, Plaintiff does not contest the date in a declaration submitted by Defendant from BPA Equal Employment Specialist Angela Dowling, who states that she received a voicemail from Plaintiffregarding filing an EEO complaint on January 12, 2018. Dowling Dec. 6, 2018 Decl. ("Dowling Decl.") ¶ 3, ECF 22. Thus, the Court accepts as true that Plaintiff's first contact with Ms. Dowling was on January 12, 2018.¹

Plaintiff and Defendants agree that Ms. Dowling returned Plaintiff's phone call and left a voicemail message. They disagree about the contents of the message. Plaintiff declares that Ms. Dowling "informed me that I was not a federal employee so I did not need to use the EEO process and to...