Opinion
No. C 01-1410 MMC
March 12, 2002
David W. Shapiro (NYSBN 2054054), United States Attorney, Jocelyn Burton (CSBN 135879), Chief, Civil Division, Scott T. Nonaka (NY No. SN-2354), Assistant United States Attorney, San Francisco, California, for the Federal Defendants.
ORDER GRANTING FEDERAL DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This action is currently before the Court on a motion, pursuant to Fed.R.Civ.P. 56(c) and Civil L.R. 7-2, for summary judgment brought by defendants Ann Veneman, Secretary of the Department of Agriculture, the United States of America, the United States Department of Agriculture ("USDA"), Dan Glickman, former Secretary of the Department of Agriculture, James Bradley, ARS director of Human Resources in USDA, Alvin Humphrey, USDA Safety Manager, and Chester Reder, USDA Supervisor (collectively, the "federal defendants"). They seek dismissal of plaintiff's claims in their entirety and with prejudice. Having considered the papers filed in support of the federal defendants' motion, no opposition having been filed, and good cause appearing, the Court finds as follows:
In this action, plaintiff asserts claims or wrongful termination and hostile work environment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. against the federal defendants. Plaintiffs claims must be dismissed for the following reasons.
First, the Secretary is the only proper defendant in this action. In claims of alleged discrimination brought by a federal employee, Title VII expressly limits his remedy to those enumerated in the statute. Brown v. General Services Administration, 425 U.S. 820, 834-35, 96 S.Ct. 1961, 1968-69 (1976). "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. Dep's of the Air Force, 939 F.2d 762, 772 (9th Cir. 1991), (quoting 42 U.S.C. § 2000e-16(c)).
To the extent plaintiff is attempting to assert more than a Title VII claim, such claims are futile. When a federal employee asserts a claim under Title VII, that statute is exclusive of any other remedy against not only the federal government, but also against individual federal employees alleged to have participated in the discrimination. White v. General Services Admin., 652 F.2d 913, 916 (9th Cir. 1981). See also Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir. 1995) ("Under Title VII there is no personal liability for employees, including supervisors . . ."). The purpose of Title VII was to create "an exclusive, preemptive administrative and judicial scheme for the redress of federal employment discrimination." Brown, 425 U.S. at 829, 96 S.Ct. at 1966. For this reason, a plaintiff may not "bootstrap" additional causes of action against the United States, the agency, or individual employees onto his Title VII complaint.
Second, plaintiff has not exhausted his administrative remedies. "In order to bring a Title VII claim in district court, a plaintiff must first exhaust [his] administrative remedies." Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001). See also Greenlaw, 59 F.3d at 997 ("In order to litigate a Title VII claim in federal district court, [plaintiff] must have exhausted [his] administrative remedies"). "[S]ubstantial 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). Furthermore, a plaintiff must pursue his administrative remedies with diligence. See Greenlaw, 59 F.3d at 997 ("[plaintiff] must have pursued her administrative claim with diligence . . ."). "[A]bandonment or failure to cooperate in the administrative process prevents exhaustion and precludes judicial review." Sommatino, 255 F.3d at 708.
A federal employee may exhaust his administrative remedies in one of two ways, depending on the circumstances. First, an employee may file an EEO complaint with his agency. See Sloan v. West, 140 F.3d 1255, 1259 (9th Cir. 1998). If an employee pursues this remedy, he must comply with the relevant statutory and regulatory requirements. Second, if the employee claims he was affected by both an "adverse employment action" and a related Title VII violation, "administrative remedies may be exhausted for Title VII purposes by asserting both claims before the MSPB." Id. However, an employee cannot do both. See 29 C.F.R. § 1614.302(b) ("An aggrieved person may initially file a mixed case complaint with an agency pursuant to this part or an appeal on the same matter with the MSPB pursuant to 5 C.F.R. § 1201.151, but not both").
Plaintiff filed both an MSPB appeal and an EEO complaint (in fact, two EEO complaints). Once the MSPB determined it had jurisdiction over plaintiffs appeal, see Nonaka Decl., Ex. 6, at 1, plaintiff was obligated to continue down the MSPB track. Plaintiff was required to raise and pursue his discrimination claims before the MSPB. See McAdams v. Reno, 64 F.3d 1137, 1142 (8th Cir. 1995) (noting that filing of MSPB appeal after filing EEO complaint transformed plaintiff's case into an MSPB mixed case appeal and that plaintiff "was required to exhaust her claims in that forum before filing a civil action"). See also German v. Pena, 88 F. Supp.2d 222, 225 (S.D.N.Y. 2000) ("Plaintiff's allegations of discrimination could properly be brought only before the MSPB, the agency in which he initially chose to pursue all claims that his supervisors improperly evaluated him"). This was the only way for plaintiff to exhaust his administrative remedies with respect to those claims. See German, 88 F. Supp.2d at 225. He could not simultaneously pursue an EEO complaint with the USDA. Pursuant to 29 C.F.R. § 1614.107, an agency is required to dismiss a complaint that raises claims also raised in an appeal to the MSPB. See 29 C.F.R. § 1614.107(d) ("[t]he agency shall dismiss a complaint . . . [w]here the complainant has raised the matter . . . in an appeal to the [MSPB] . . .) (emphasis added). Consequently, the USDA properly dismissed plaintiffs EEO complaint in case number 980569, and the EEOC's decision affirming the dismissal was also proper.
Plaintiff failed to pursue his discrimination claims before the MSPB. On May 5, 1998, pursuant to plaintiff's motion to delay the proceedings, the MSPB dismissed plaintiff's appeal without prejudice to his re-filing by October 21, 1998. See Nonaka Decl., Ex. 6. On August 30, 1998, the USDA dismissed plaintiff's complaint in case number 980569 on the ground that the claims he sought to raise were the subject of an earlier EEO complaint and an MSPB appeal. See Nonaka Decl., Ex. 1, at 1. Despite the dismissal, plaintiff failed to continue with his MSPB appeal. Such a failure constitutes both a lack of diligence and an abandonment of the administrative process. As such, plaintiff failed to exhaust his administrative remedies. See Greenlaw, 59 F.3d at 997 ("A plaintiff may not cut short the administrative process prior to its final disposition, for upon abandonment a claimant fails to exhaust administrative relief and may not thereafter seek redress from the courts").
Accordingly, it is hereby
ORDERED that the federal defendants' motion for summary judgment is GRANTED and plaintiff's claims are hereby dismissed in their entirety; it is further
ORDERED that the federal defendants are awarded costs; and it is further
ORDERED that the Clerk shall close the file.
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED the federal defendants' motion for summary judgment is GRANTED and plaintiff's claims are hereby dismissed in their entirety; it is further ordered that the federal defendants are awarded costs; and it is further ordered that the Clerk shall close the file.