Opinion
No. 03:11-cv-01088-HU
03-26-2013
THELMA ANN FAILEY, Plaintiff, v. PATRICK R. DONAHOE, Postmaster General; SHARON BLACKBURN, Facilities Manager; and UNITED STATES POSTAL SERVICE; Defendants.
Michael Fuller Carl Cramer, Certified Law Student Olsen Daines, PC Attorneys for Plaintiff S. Amanda Marshall United States Attorney, District of Oregon Janice E. Hebert Assistant United States Attorney Chris Morgan, Certified Law Student Attorneys for Defendants
MEMORANDUM OPINION AND ORDER
ON MOTION TO DISMISS, OR IN
THE ALTERNATIVE FOR SUMMARY
JUDGMENT
Michael Fuller
Carl Cramer, Certified Law Student
Olsen Daines, PC
Attorneys for Plaintiff
S. Amanda Marshall
United States Attorney, District of Oregon
Janice E. Hebert
Assistant United States Attorney
Chris Morgan, Certified Law Student
Attorneys for Defendants
HUBEL, Magistrate Judge:
The plaintiff Thelma Ann Failey brings this discrimination action against her former employer United States Postal Service ("USPS"); Patrick R. Donahoe, who is United States Postmaster General; and Sharon Blackburn, who was the Facilities Manager at the USPS's Mount Hood Detached Distribution Center ("DDC) in Portland, Oregon, during a portion of the time Failey worked at the DCC. Failey claims she was "forced into 'early retirement' . . . because of the color of her skin, her age, and her disability[,] . . . and because she had the courage to complain of prior discrimination." Dkt. #18, Second Amended Complaint, ¶¶ 1, 16. The matter currently before the court is the defendants' "Motion to Dismiss and in the Alternative for Summary Judgment." Dkt. #31; see Dkt. ## 32, 33, 37, & 38. Failey has opposed the motion, Dkt. ## 34 & 35, and the court heard oral argument on the motion on February 7, 2013. The motion is fully briefed and ripe for decision.
I. BACKGROUND FACTS
Failey worked at the DDC as a Mail Processing Clerk for nearly ten years. She had some health problems during that time that are only documented sparsely in the record before the court. She suffered a back injury on August 30, 2000, which resulted in some type of temporary modified duty restrictions through January 23, 2001. In June 2003, Jane O. Drummond, M.D., who was treating Failey for "chronic cervical radiculopathy," indicated Failey's work on "the FSM 100 sorting machine" was exacerbating her symptoms, and Failey should be restricted to working on the machine for "four hours with two hour breaks in between."
See Dkt. #33-1, ECF pp. 49-50 - Kaiser Permanente Workers' Compensation Forms dated 1/2/01 and 1/23/01.
Id., ECF p. 51, Letter from Dr. Drummond dated June 12, 2003.
Failey apparently suffered "neck and rotator cuff injuries in 2004," which resulted in some type of work restrictions. Doctor's notes from July 2008, indicate Failey was assigned permanent modified duty restrictions as of May 29, 2007, that included no repetitive lifting over 15 to 20 pounds, no work at or above right shoulder level, and avoid work on "the AFSM 100 mail processing machine," although she was authorized to "push and pull up to 15-20# of force (not including cart or equipment weight) on wheels, etc."
Dkt. #32, ECF p. 7.
Dkt. #33-1, ECF p. 55, Kaiser Permanente Workers' Compensation Form dated 7/18/08; Dkt. #18, Second Amended Complaint, ¶ 17.
Failey was authorized to be off work from February 28, 2008, through March 27, 2008, for surgery to remove a mass in her lower left quadrant. She was seen in the ER on July 13, 2008, for an apparent neck injury, and was authorized to be off work through July 15, 2008. Upon her return, she was to be restricted to "no lifting more than 5 lbs., pushing, pulling, work at shoulder level or above [and] work requiring repeated or quick head movements for up to 2 weeks." Failey saw a doctor at Kaiser Permanente on July 18, 2008, to assert a new claim for workers' compensation benefits due to "sprain or strain of cervical spine." The workers' compensation form indicates a greater than 50% chance that Failey's injury was the "[r]esult of industrial exposure." She was released for modified work consistent with her existing restrictions through August 8, 2008. At a doctor's visit on August 12, 2008, her work restrictions were noted to be permanent.
Id., ECF p. 52, Clinician's Report of Disability dated 1/28/2008.
Id., ECF pp. 52-54
Id., ECF p. 55.
Id. The form further indicated Failey had had a previous workers' compensation claim dated April 1, 2004.
Id.
Id., ECF p. 57.
In addition to these injuries, Failey is diabetic, requiring the use of insulin.
Dkt. #32, ECF p. 7.
At the time Blackburn came to the DDC, Failey was working on "Tour 2," a shift that went from 9:00 a.m. to 5:30 p.m. She had been working that shift as "a limited duty employee . . . for about 7 years." Blackburn's interactions with Failey took place between January and September 2008. Blackburn does not hire and fire employees; her job is "to run the postal service in an efficient manner," which includes changing employees' shifts, and "[p]utting people where the need is, where the volume is." Blackburn observed that "a lot of employees on tour 2 day shift" - the shift when Failey was working - "were going home every day because there was no mail volume, and yet on swing shift around 8:00 [p.m.]," she was having to bring people in before their shift and pay a lot of overtime because of the higher mail volume. As a result, Blackburn made the business decision to "excess, meaning get rid of jobs," the Tour 2 flat sorter crew, moving those employees to different shifts. On July 25, 2008, Blackburn told Failey that she was going to be moved to Tour 3. Soon thereafter, Blackburn gave letters to all of the employees whose shifts were going to be changed, and also had a "stand-up talk" with them regarding the upcoming change. Failey received a letter dated August 8, 2008, advising her "that as a junior employee," she was "excess to the needs of the section," and her position was "no longer a necessary position based on the needs of the service due to the decrease in mail volume." The letter further stated that as of September 13, 2008, Failey's job schedule would be "1600 to 0030 with Schedule Days off on Sunday and Monday."
Dkt. #38-1, Failey's "Pre-Complaint," ECF pp. 1-2.
Dkt. #35-1, Blackburn Depo., ECF p. 10.
Id.
Id., ECF p. 11.
Id., ECF p. 10.
Dkt. #38-1, Failey's "Pre-Complaint," ECF p. 1.
Dkt. #35-1, Blackburn Depo., ECF p. 10; see Dkt. #33-1, ECF p 72.
Dkt. #33-1, ECF p 72; see id., p. 73 (indicating "As unassigned and because of no mail available in the morning shift and half of the clerks on shift 2 are being changed either their job is being abolished or being reposted.").
In the Pre-Complaint Failey submitted to the USPS Equal Employment Opportunity office (the "EEO"), she indicated she and Blackburn had had discussions previously about moving Failey to Tour 3, and Failey had told Blackburn that due to her health problems - specifically, the scheduling of her insulin injections - she would not be "able to cope physically on tour 3." Failey asked for an accommodation to allow her to stay on Tour 2. On August 13, 2008, the USPS referred Failey to the District Reasonable Accommodation Committee (the "DRAC"). The six-person DRAC met on August 21, 2008, to discuss Failey's request for accommodation. As part of their discussion, the DRAC talked with Failey by telephone. The DRAC recognized Failey's current medical restrictions, and found that none of her current restrictions related to the hours of work. The DRAC further found Failey's diabetes did not affect any of her major life activities. Failey's request for accommodation was denied.
Dkt. #38-1, Failey's "Pre-Complaint," ECF p. 1.
Id.; Dkt. #33-1, DRAC Information Evaluation Form, ECF p. 75.
Dkt. #33-1, ECF pp. 73-87.
Blackburn offered Failey a work schedule from 12:00 p.m. to 8:30 p.m., with the option of taking leave from 5:30 p.m. to 8:30 p.m. if Failey felt unable to complete the entire shift. Blackburn communicated this offer twice to an EEO representative, but Failey turned down the offer both times.
Id., ECF p. 38, EEO Investigative Affidavit of Sharon F. Blackburn.
Id.
Failey declined to accept the change from Tour 2 to Tour 3, instead taking disability retirement effective as of December 15, 2008. Her last day in pay status with the USPS was September 28, 2008.
Id., ECF p. 166, Notification of Personnel Action; see id., ECF p. 145, Final Agency Decision.
On October 22, 2008, Failey filed an "EEO Complaint of Discrimination in the Postal Service." She claimed discrimination on the basis of Race ("African American"), Age ("60 yrs"), and Disability ("neck, back, shoulder"). Failey described the nature of her discrimination claim as follows:
Id., ECF pp. 189-90.
Id., ECF p. 189.
Ms. Failey was involved in an on the job injury in August of 2000. As a result, she suffered back injuries and therefore was put on light duty. She was involved in another on the job injury in 2003 in which she sustained injuries to her neck. Finally, she suffered a shoulder injury from an on the job accident in 2004. All of the accidents required Ms. Failey to remain on light duty. During her employment she made attempts to bid for certain jobs, specifically of a supervisor nature. Although she passed all the required tests, she was told that she should not bid for those jobs because of her light duty status, although she otherwise qualified.
Once Ms. Failey was finally given an opportunity to enter the supervisor training program, she was treated differently than the others in the program. She was micro-managed and over-evaluated during the program. She was criticized for not performing certain actions, in which others in the program were not criticized for [sic]. After the program was over Ms. Failey alleged age, race and disability discrimination.
The discrimination that occurred was not a single event, but was continuous action. Each time Ms. Failey was denied a chance to apply for a supervisor position she was being discriminated against because of her race, age
and disability. She was treated differently because of her race. She was treated differently because she is 60 years old. On a number of occasions she was encouraged to seek early retirement by Sharon Blackburn. Further, she was discriminated against because of her physical disabilities. One of the reasons she was denied in applying for a supervisor position was because she was on a light duty as a result of her disabilities.
In August of 2008 Ms. Failey requested accommodations for her disability, the request being heard by the Accommodation Committee. Ms. Failey was interviewed by phone and ultimately her accommodation was denied. She did not appeal the decision.
Further, in July of 2008 she was notified that her day shift position was being excessed and that she would be required to work a new shift from 1600 to 0030. The letter encouraged employees to bid for other vacancies on other shifts. Again, because of Ms. Failey's light duty status, she was not able to bid for other jobs. Others who were moved shifts were on machines, not on light duty as was Ms. Failey. No other light duty employees were moved in the process. Her physician's [sic] have stated that due to her injuries and physical disabilities, she is not able to work any other shift but the day shift.
Id., ECF p. 190.
The National EEO Investigative Services Office of the USPS grouped Failey's narrative into five specific issues, as follows:
[Failey] alleges discrimination based on Race (African American), Age (60 years old), and Physical Disability (Neck, Back, and Shoulder) when:The EEO only accepted issues (4) and (5) for investigation. Issues (1), (2), and (3) were dismissed "in accordance with 29 C.F.R. 1614.107(a)(2)," because Failey had failed to bring those issues to the attention of an EEO counselor, and those issues did not "add to []or clarify the original complaint and could have reasonably been expected to grow out of the original complaint."
1) Since in or around 2003, [she] was not permitted to bid on certain jobs, specifically of a supervisor nature;
2) While in the supervisor training program, [she] was treated differently than others in that she was over-evaluated, micro-managed, and criticized;
3) On a number of occasions, [she] was encouraged to seek early retirement;
4) In July 2008, [she] was notified that her light duty assignment was changed from Tour 2 to Tour 3 effective September 13, 2008; and 5) On August 22, 2008, [her] accommodation request to the District Reasonable Accommodation Committee (DRAC) to remain on Tour 2 was denied.
Id., ECF p. 196, "Partial Acceptance/Partial Dismissal of Formal EEO Complaint."
Id., ECF p. 197.
Failey acknowledged that issues (1) and (2) were dismissed rightfully, but she argued the third issue was "related to issues 4 and 5, which were accepted." Failey argued one of the times "she was encouraged to seek early retirement" was after she expressed concerns regarding the change in shift from Tour 2 to Tour 3, and therefore, issue (3) was directly related to issues (4) and (5). In response, the EEO maintained its position, stating, "We do not find that this issue states a distinct and actionable claim; however, it may be cited as background information in support of the issues accepted for investigation."
Id., ECF p. 195, letter dated November 21, 2008, from Failey's attorney to the EEO Manager.
Id.
Id., ECF p. 194.
The EEO issued its final decision on Failey's complaint on June 23, 2009. The EEO noted that to establish a prima facie case of race and age discrimination, Failey had to show that she "(1) belongs to a protected class; (2) was subjected to an adverse employment action; and (3) was treated differently in this regard than similarly situated individuals who were not members of the protected group." The Agency found Failey had established the first prong, in that she is African American and was born in 1948, and she arguably had established the second prong. With regard to the third prong, however, the Agency found Failey "failed to identify any employee, not in her protected groups, who was treated more favorably than her, and [she] acknowledged that she was the only light or limited duty employee on Tour 2." The Agency noted "Blackburn testified that she excessed a whole crew of AFSM Tour 2 employees to Tour 3 . . . consist[ing] of six Mail Processing Clerks and five Mail handlers." The Agency further found that with regard to her age discrimination claim, Failey failed to show anything beyond her own speculation that the decision to excess her to Tour 3 was motivated by her age. The Agency concluded Failey had "failed to establish a prima facie case of discrimination based upon race or age."
Id., ECF pp. 136-56, Final Agency Decision.
Id., ECF p. 145 (citing Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)).
Id.
Id., ECF p. 146.
Id.
Id., ECF pp. 146-47 (citing, inter alia, Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S. Ct. 2097, 2105, 147 L. Ed. 2d 105 (2000)).
Id., ECF p. 147.
Turning to Failey's claim of disability discrimination, the EEO found Failey failed to establish a prima facie case because she had not shown she was an "otherwise qualified individual with a disability" for purposes of the Rehabilitation Act. Even if Failey had shown she was an "otherwise qualified individual with a disability," she had not shown the USPS "failed to make a needed reasonable accommodation, resulting in adverse treatment of her." And even if Failey had shown the USPS failed to accommodate her disability, she had failed to show "she was treated differently than individuals not within her protected group."
Id., ECF p. 147 (noting "EEOC Regulation 29 C.F.R. 1630.2(g) defines a person with a disability as one who: (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of having such an impairment; or (iii) is regarded as having such an impairment."); see id., ECF pp. 147-51.
Id.
Id., ECF p. 150; see id., ECF pp. 147-51.
The EEO further found that even if Failey had established a prima facie case of discrimination based on race, age or disability, the USPS management had "articulated a legitimate, non-discriminatory explanation for their actions." Specifically, the EEO noted Blackburn had excessed an entire crew of AFSM employees from Tour 2 to Tour 3, and each of those employees had been dealt with in a similar manner; i.e., by delivery of a letter explaining the situation, and with a "stand-up" talk during which Blackburn explained her decision. In addition, Blackburn "explained that according to the [collective bargaining agreement], full time employees, excess to the needs of a section, starting with that employee who [was] junior in the same craft or occupational group and in the same level assigned in that section, [would] be reassigned outside the section but within the same craft or occupation group." According to Blackburn, Failey was "the most junior of the six clerks that were excessed," and "had a bid position in the AFSM unit." Blackburn stated Failey "was still in the same occupational group and in the same level as the other AFSM Mail Processing Clerks that were being excessed, despite Failey's limited duty. The Agency further found Failey had not met her burden to show that management's stated reason was "not only a pretext, but [a] pretext for discrimination.
Id., ECF p. 151; see id., ECF pp. 137-38 (discussing the burden-shifting framework of McConnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and its progeny).
Id., ECF p. 152.
Id.
Id.
Id., ECF pp. 153-54.
The Agency concluded that Failey had failed to establish discrimination as alleged, and her complaint was "closed with a finding of no discrimination."
Id., ECF p. 154.
On July 18, 2009, Failey appealed the Agency's action to the U.S. Equal Employment Opportunity Commission ("EEOC"). Failey contended she was "an individual with a disability under the Rehabilitation Act"; she had "been unable to control her diabetes for several years"; "all of her medical documentation was not submitted to the DRAC"; "the Facility Manager told her to retire because of her medical limitations"; and "the Facility Manager made her work on the AFSM machine 100, which violated her medical restrictions." On June 10, 2011, the EEOC issued its decision affirming the Agency's final decision.
See id., ECF pp. 104-11.
Id., ECF p. 106.
Id., ECF p. 108; see id., ECF pp. 104-08.
Failey filed the instant case on September 8, 2011. After proceeding through the initial review process and receiving court-appointed counsel, Failey filed her Second Amended Complaint on January 23, 2012. It is her Second Amended Complaint that is the subject of the defendants' current motion.
Dkt. #2, Complaint.
Dkt. #18.
In her Second Amended Complaint, Failey asserts the following claims for relief:
First Claim for Relief (Unlawful Employment Practices) (42 U.S.C. § 2000e):
Count I (Discrimination Based on Skin Color) (42 U.S.C. § 2000e-2(a)) - for allegedly requiring Failey "to work on the flat sorter machine and giving her excessive work loads"; "failing to compensate her while she was in physical therapy"; "requiring her to work weekends"; "limiting her work hours
arbitrarily"; and "creat[ing] a hostile work environment that ultimately led to her forced 'early retirement.'"
Count II (Discriminatory Retaliation) (42 U.S.C. § 2000e-3(a)) - for allegedly "creating a hostile work environment, because [Failey] opposed Defendants' unlawful employment practices through a prior lawsuit and various grievances"; and, from 2004 until 2008, "requiring her to work weekends and limiting her work hours arbitrarily, because she opposed Defendants' unlawful employment practices through a prior lawsuit and various grievances."
Id., ¶¶ 43-47.
Id., ¶¶ 49 & 50.
Second Claim for Relief (Unlawful Age Discrimination) (29 U.S.C. § 623):
Count I (Discrimination Based on Age) (29 U.S.C. § 623(a)) - for allegedly "attempting to force [Failey] into quitting by giving her excessive work loads"; and "limit[ing] her work hours arbitrarily," from 2004 until 2008.
Count II (Discriminatory Retaliation) (29 U.S.C. § 623(d)) - for allegedly "creating a hostile work environment, because [Failey] opposed Defendants' age discrimination through a prior lawsuit and various grievances"; and "requiring her to work weekends and limiting her work hours arbitrarily, because she opposed Defendants' age discrimination through a prior lawsuit and various grievances."
Id., ¶¶ 53 & 54.
Id., ¶¶ 56 & 57.
Third Claim for Relief (Unlawful Discrimination Based on Disability) (42 U.S.C. § 12112) - for allegedly attempting to force Failey to quit her job, "telling her 'why don't you just retire[,]' and by giving her excessive work loads"; and "admitting to her that her transfer request would be unsuccessful because of her disability and misleading her about the elimination of her current position."
Id., ¶¶ 60 & 61.
Fourth Claim for Relief (Oregon Unlawful Employment Discrimination Law) (ORS 659A.030) - relying on her previous allegations in the pleading).
Id., ¶ 64.
Fifth Claim for Relief (Oregon Unlawful Employment Discrimination Against Injured Workers Law) (ORS 659A.040) - relying on her previous allegations in the pleading.
Id., ¶ 66.
Sixth Claim for Relief (Oregon Unlawful Employment Discrimination Against Persons with Disabilities Law) (ORS 659A.112) - relying on her previous allegations in the pleading.
Id., ¶ 68.
II. THE DEFENDANTS' MOTION TO DISMISS
A. Standards
Chief Judge Aiken of this court set forth the standard for the court's consideration of a motion to dismiss in Gambee v. Cornelius, No. 10-CV-6265-AA, 2011 WL 1311782 (D. Or. Apr. 1, 2011) (Aiken, C.J.). Judge Aiken observed:
Under Fed. R. Civ. P. 12(b)(6), a complaint is construed in favor of the plaintiff, and its factual allegations are taken as true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). "[F]or a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563[, 127 S. Ct. 1955, 1969, 167 L. Ed. 2d 929] (2007). "[G]enerally the scope of review on a motion to dismiss for failure to state a claim is limited to the Complaint." Daniels-Hall, 629 F.3d at 998.Id. at *2.
"As a general matter, a district court may not consider any material outside of the pleadings when ruling on a Rule 12(b)(6) motion." O'Connell-Babcock v. Multnomah County, Oregon, No. 08-cv-459-AC, slip op., 2009 WL 1139441 at *4 (D. Or. Apr. 24, 2009) (King, J.) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). However, the Ninth Circuit recognizes an exception to this rule that allows consideration of documents "'whose contents are alleged in a [pleading] and whose authenticity no party questions, but which are not physically attached to the . . . pleading.'" Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998) (quoting Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994)), superseded by statute on other grounds as recognized in Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 681 (9th Cir. 2006); Vanguard Prods. Group v. Merchandising Technologies, Inc., slip op., 2008 WL 939041, at *3 (D. Or. Apr. 3, 2008) (Brown, J.) (same; quoting Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)).
Although Failey does not mention her EEO complaints expressly in her Complaint, the "contents" of her EEO complaints are fairly alleged in her Complaint. The defendants clearly do not question the authenticity of the documents contained in the EEOC investigatory file because they have submitted those documents, themselves, for the court's consideration. The court finds the contents of Failey's EEO complaints are documents of the type contemplated by the Ninth Circuit in crafting the exception discussed by the Parrino court, and therefore will consider those documents in the context of the defendants' motion to dismiss.
B. Exhaustion of Remedies
The defendants argue some of Failey's claims should be dismissed because she failed to exhaust her administrative remedies with regard to those claims. Specifically, the defendants argue Failey has failed to exhaust her administrative remedies with regard to her Second Claim for Relief, Count I, where Failey alleges age discrimination due to the defendants' "attempting to force her into quitting by giving her excessive workloads, because of her age"; and that portion of her Third Claim for Relief where Failey alleges disability discrimination due to the defendants' "attempting to force her into quitting, telling her 'why don't you just retire[,]' and by giving her excessive work loads[.]" The defendants argue these claims relate to issue (3) of Failey's EEO complaint, which the EEO dismissed for failure to raise the issue before the EEO counselor.
Dkt. #32, ECF pp. 12-15.
See Dkt. #33-1, ECF p. 197.
The defendants further argue Failey has raised new claims in the instant case that have never been exhausted. These include Failey's First Claim for Relief, Counts I and II (discrimination based on skin color and a retaliation claim under Title VII), and her Second Claim for Relief, Count II (discriminatory retaliation based on age).
Dkt. #32, ECF pp. 15-17.
To establish federal subject matter jurisdiction, Failey "was required to exhaust her EEOC administrative remedies before seeking federal adjudication of her claims." EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994) (citation omitted). To determine whether Failey exhausted her administrative remedies, the court looks both to the scope of the EEO charge, and to the investigation of the charge. Id. The court has subject matter jurisdiction over Failey's Title VII claims if those claims "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.'" Id. (quoting Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990)).
Notably, "[t]he EEOC's failure to address a claim asserted by the plaintiff in her charge has no bearing on whether the plaintiff has exhausted her administrative remedies with regard to that claim." B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002) (citing Yamaguchi v. United States Dep't of the Air Force, 109 F.3d 1475, 1480 (9th Cir. 1997)). The B.K.B. court observed that the language of a claimant's EEOC charges is construed "'with utmost liberality since [the charges] are made by those unschooled in the technicalities of formal pleading." B.K.B., 276 F.3d at 1100 (citing, inter alia, Love v. Pullman Co., 404 U.S. 522, 527, 92 S. Ct. 616, 619, 30 L. Ed. 2d 679 (1972) "(stating that 'technicalities are particularly inappropriate in a statutory scheme [such as Title VII] in which laymen, unassisted by trained lawyers, initiate the process')"). "'[T]he crucial element of a charge of discrimination is the factual statement contained therein.'" Id. (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970); additional citation omitted). The court may consider allegations not specified in a claimant's administrative charge if those claims are like, or reasonably related to, the claims set forth in the administrative charge. Id. (citations omitted).
In Failey's Pre-Complaint, she alleged only disability discrimination. In the EEO Investigative Affidavit (Complaint), it is noted that Failey had "alleged discrimination based on Race (African American), Age (60 years old), and Physical Disability (Neck, Back, and Shoulder)[.]" Even a generous reading of Failey's EEO complaints reveals nothing that could be construed as an allegation that her employer retaliated against her or discriminated against her because of prior grievances or lawsuits Failey had filed. Similarly, Failey did not mention, in her EEO complaint, anything about the defendants "failing to compensate her while she was in physical therapy, because of the color of her skin," as alleged in her First Claim for Relief, Count I, paragraph 44. Thus, the court finds Failey did not exhaust her administrative remedies with regard to her claims of discriminatory retaliation in her First Claim for Relief, Count II, and her Second Claim for Relief, Count II, and her claim of race discrimination on the basis of failure to pay her while she was in physical therapy. The defendants' motion to dismiss is granted as to those claims, consisting specifically of paragraphs 44, 48-51, and 55-58 of Failey's Second Amended Complaint.
See Dkt. #38-1, Pre-Complaint.
Dkt. #35-3, ECF p. 2; see id., ECF pp. 3-10, 12-13.
With regard to Failey's claims of discrimination on the basis of "skin color," the defendants argue Failey never raised such claims in her EEO complaints. The EEOC recognized that Failey had raised a discrimination claim based on "race." Under the facts of this case, the defendants' attempt to draw a distinction between Failey's claim of discrimination based on "race," in her EEOC complaint, and her claim of discrimination based on "skin color," in her Complaint, ignores the broad reach of anti-discrimination statutes. See El-Hakem v. BJY Inc., 415 F.3d 1068, 1072-73 (9th Cir. 2005) (same, with regard to the reach of 42 U.S.C. § 1981); cf. Hernandez v. New York, 500 U.S. 352, 354, 111 S. Ct. 1859, 1863, 114 L. Ed. 2d 395 (1991) (observing, in the context of classes of individuals who may be excluded from jury service, "It may be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis."). A fair reading of Failey's Complaint indicates she intended to assert a claim for discrimination on the basis of race, as she did before the EEOC. The court will make such an assumption for purposes of the defendants' motion, and if Failey's First Claim for Relief, Count I, survives, then Failey will be afforded an opportunity to amend her Complaint to properly allege race discrimination.
Id.
Thus, assuming Failey's First Claim for Relief, Count I, properly states a claim for race discrimination, the court finds Failey exhausted her administrative remedies as to her First Claim for Relief, Count I, paragraphs 42, 43, and 45-47; her Second Claim for Relief, Count I, paragraphs 52-54; and her Third Claim for Relief, paragraphs 59-62. In these claims, Failey alleges the defendants discriminated against her by, among other things, "requiring her to work on the flat sorter machine and giving her excessive work loads," "requiring her to work weekends,""limiting her work hours arbitrarily," forcing her into early retirement, and telling her a "transfer request would be unsuccessful because of her disability and misleading her about the elimination of her current position." These are not "new claims," as argued by the defendants, as the facts underlying these claims were described by Failey (albeit not always clearly) in her EEO complaint documents.
Dkt. #18, ¶¶ 43 & 60.
Id., ¶¶ 45 & 53.
Id., ¶¶ 46 & 54.
Id., ¶¶ 47, 53, & 60.
Id., ¶ 61.
The defendants' motion to dismiss these claims for failure to exhaust is denied.
C. Failey's ADA Claim
Failey brings her Third Claim for Relief ("Unlawful Discrimination Based on Disability" under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12112. The defendants argue an ADA claim cannot lie against the federal government. Failey does not address this issue in her response to the defendants' motion.
Dkt. #18, 55 59-62; see also id., ¶ 4, jurisdictional allegation for ADA claim.
See Dkt. #34.
The defendants are correct. As the Honorable Michael R. Hogan of this court recently explained:
It is well-settled that the federal government is excluded from the ADA's definition of "employer." 42 U.S.C. § 12111(5)(B)(i) [footnote omitted]. Based on this exclusion, federal courts have concluded that the ADA provides no remedy to federal employees." Daniels v. Chertoff, 2007 WL 1140401, *2 (D. Ariz. 2007) (citing Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 11, n.1 (the ADA is not available to federal employees); see also Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003) (the entire federal government is excluded from coverage of the ADA); accord Rivera v. Heyman, 157 F.3d 101, 103 (2nd Cir. 1998) (a federal employee has no remedy for employment discrimination under the ADA).Thomas v. Astrue, slip op., 2012 WL 5198339, at *4 (D. Or. Oct. 17, 2012) (Hogan, J).
Accordingly, the defendants' motion to dismiss is granted as to Failey's Third Claim for Relief.
D. State Law Claims
The defendants argue the court lacks jurisdiction over Failey's state-law claims - her Fourth, Fifth, and Sixth Claims for Relief.
1. Fourth Claim for Relief
Failey's Fourth Claim for Relief asserts a claim under ORS 659A.030, which prohibits discrimination on the basis of "race, color, religion, sex, sexual orientation, national origin, marital status or age." Section 717 of Title VII of the Civil Rights Act provides the exclusive remedy by which a federal employee can challenge discriminatory employment practices "based on race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-16; see Charles v. Garrett, 12 F.3d 870, 873 (9th Cir. 1993) (citing, inter alia, Brown v. General Servs. Admin., 425 U.S. 820, 96 S. Ct. 1961, 48 l. Ed. 2d 402 (1976)). The statute is expressly applicable to employees of the USPS. 42 U.S.C. § 2000e-16.
Similarly, the Ninth Circuit, in agreement with every other federal circuit to have considered the issue, has held that the federal Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., "is the exclusive remedy for age discrimination claims by federal employees." Ahlmeyer v. Nevada Sys. of Higher Educ., 555 F.3d 1051, 1057 & n.5 (2009); see Ahlmeyer, passim (discussing the issue in detail).
Thus, Failey's Fourth Claim for Relief is precluded by federal law, and the defendants' motion to dismiss her Fourth Claim for Relief is granted.
2. Fifth Claim for Relief
Failey brings her Fifth Claim for Relief under ORS § 659A.040, which provides:
It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS chapter 656 or has given testimony under the provisions of those laws.ORS § 659A.040(1). To make out a prima facie case under the statute, Failey must show that "(1) [s]he invoked the workers' compensation system; (2) [s]he was discriminated against in the tenure, terms or conditions of [her] employment; and (3) the discrimination was caused by [her] invocation of workers' compensation." Krouse v. Ply Gem Pacific Windows Corp., 803 F. Supp. 2d 1220, 1226 (D. Or. 2011) (Haggerty, J) (citing Williams v. Freightliner, LLC, 196 Or. App. 83, 90, 100 P.3d 1117, 1121 (2004)).
Failey has made no allegations whatsoever relating to any workers' compensation claim. Moreover, the Federal Employees Compensation Act ("FECA"), 5 U.S.C. § 8101, et seq., "is a federal workers' compensation scheme intended to provide an exclusive remedy for work-related injuries to federal employees." Ponce v. U.S. Government, slip op., 2012 WL 292210, at *2 (D. Or. Jan. 31, 2012) (Acosta, MJ) (citing 5 U.S.C. §§ 8102(a), 8116(c)); see O'Connell v. Potter, 274 Fed. Appx. 518, 519 (9th Cir. 2008) (mem.) ("To the extent that [plaintiff's] injuries were job-related, FECA's remedy is exclusive.").
Accordingly, the defendants' motion to dismiss Failey's Fifth Claim for Relief is granted.
3. Sixth Claim for Relief
In her Sixth Claim for Relief, Failey alleges the defendants violated ORS § 659A.112, which prohibits an employer from refusing "to hire, employ or promote, to bar or discharge from employment or to discriminate in compensation or in terms, condition or privileges of employment on the basis of disability." ORS § 659A.112(1). Failey contends she was discriminated against on the basis of her "disability."
The federal Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., is the exclusive remedy for federal employees alleging disability discrimination. Thomas v. Astrue, slip op., 2012 WL 5198339 at *3 (D. Or. Oct. 17, 2012) (Hogan, J.); see Oakes v. Sec'y, U.S. Dept. of Veteran's Affairs, slip op., 2012 WL 4508000 at *8 (D. Or. Sept. 28, 2012) (Hernandez, J.) (citations omitted)). Therefore, the defendants' motion to dismiss Failey's Sixth Claim for Relief also is granted.
As to all of her state-law claims for relief, Failey argues the federal statutes cited above "only preclude state law if the federal statute is designed to remedy the same harm." Dkt. #7, p. 7 (citing Brown v. General Services Admin., 425 U.S. 820, 829- 35, 96 S. Ct. 1961, 1967-69, 48 L. Ed. 2d 402 (1976); Sommatino v. United States, 255 F.3d 704, 711 (9th Cir. 2001)). Failey misapprehends the holdings in these cases. The Sommatino court explained that the federal anti-discrimination statutes do not preclude a companion claim for "highly personal violations beyond workplace discrimination," such as sexual assault or physical violence. Sommatino, 255 F.3d at 712. Failey has made no such allegations here, nor has she asserted any state-law tort claims. The Oregon statutes upon which Failey bases her Fourth, Fifth, and Sixth Claims are specifically precluded by federal law, as discussed above.
E. Proper Parties Defendant
The defendants argue Sharon Blackburn and the United States Postal Service should be dismissed from the case, asserting the only proper party defendant in an employment discrimination action against the USPS is the Postmaster General. Failey agrees the Postmaster General is the only proper defendant as to her Title VII claims, but she argues, without citation to any authority, that "other federal discrimination protection laws and the Oregon state discrimination protection laws" allow the naming of other defendants.
Dkt. #32, ECF p. 18.
Dkt. #34, p. 8.
The court has dismissed all of Failey's claims except her Title VII claim for race discrimination, and her claim under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 629, 633a. As noted above, Failey does not deny that the Postmaster General is the only proper defendant for purposes of her Title VII claim.
With regard to Failey's ADEA claim, the Ninth Circuit Court of Appeals has long held "that 42 U.S.C. § 2000e-16(c), identifying the proper defendant in Title VII discrimination actions, also applies to age discrimination claims brought under the ADEA." Romain v. Shear, 799 F.2d 1416, 1418 (9th Cir. 1986). Therefore, the defendants' motion to dismiss Sharon Blackburn and the United States Postal Service as defendants in this case is granted.
III. THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
For the reasons discussed above, all of Failey's claims have been dismissed except (1) her First Claim for Relief, Count I, paragraphs 42, 43, 45, 46, and 47, to the extent she alleges discrimination based on race; and (2) her Second Claim for Relief, Count I, paragraphs 52, 53, and 54, alleging discrimination based on her age.
The defendants have only argued for summary judgment as to the age discrimination claim. The court therefore addresses the defendants' motion for partial summary judgment against Failey's age discrimination claim contained in her Second Claim for Relief, Count I, paragraphs 52, 53, and 54.
A. Standards
Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). In considering a motion for summary judgment, the court "must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial." Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002) (citing Abdul-Jabbar v. General Motors Corp., 85 F.3d 407, 410 (9th Cir. 1996)).
The Ninth Circuit Court of Appeals has described "the shifting burden of proof governing motions for summary judgment" as follows:
The moving party initially bears the burden of proving the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case. Id. at 325, 106 S. Ct. 2548. Where the moving party meets that burden, the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial. Id. at 324, 106 S. Ct. 2548. This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The non-moving party must do more than show there is some "metaphysical doubt" as to the material facts at issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 528 (1986). In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party's favor. Anderson, 477 U.S. at 252, 106 S. Ct. 2505. In determining whether a jury could reasonablyIn re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010).
render a verdict in the non-moving party's favor, all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S. Ct.
2505.
Notably, "[a]s a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment." Chuang v. Univ. of Calif. Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000). The Chuang court explained that this minimal evidence standard is due to the nature of employment cases, where "'the ultimate question is one that can only be resolved through a searching inquiry - one that is most appropriately conducted by a factfinder, upon a full record.'" Id. (quoting Schnidrig v. Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996)).
B. Failey's Age Discrimination Claim
The Ninth Circuit has explained the standard of review for an ADEA claim as follows:
We evaluate ADEA claims that are based on circumstantial evidence of discrimination by using the three-stage burden-shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Enlow v. Salern-Keizer Yellow Cab Co., 489 F.23d 802, 812 (9th Cir. 2004). Under this framework, the employee must first establish a prima facie case of age discrimination. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). If the employee has justified a presumption of discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its adverse employment action. Id. If the employer satisfies that burden, the employee must then prove that the reasonDiaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1207 (9th Cir. 2008); accord Brockbank v. U.S. Bancorp., slip op., 2013 WL 311326, at *1 (9th Cir. Jan. 28, 2013) (mem.).
advanced by the employer constitutes mere pretext for unlawful discrimination. Id. "As a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment." Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1124 (9th Cir. 2000).
With regard to Failey's claim that she was "forced to retire" in violation of the ADEA, she "must show that she was: '(1) at least forty years old, (2) performing [her] job satisfactorily, (3) discharged, and (4) either replaced by [a] substantially younger employee[] with equal or inferior qualifications or discharged under circumstances otherwise "giving rise to an inference of age discrimination."'" Brockbank, supra (quoting Diaz, 521 F.3d at 1207; citation omitted). With regard to her disparate treatment allegations, she must show that her age "'actually played a role in [the employer's decisionmaking] process and [her age] had a determinative influence on the outcome.'" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S. Ct. 2097, 2105, 147 L. Ed. 2d 105 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S. Ct. 1701, 1706, 123 L. Ed. 2d 338 (1993)).
Failey does not allege, and the evidence does not indicate, that she was replaced by a substantially younger employee. Failey alleges she was treated differently because of her age when (1) she was forced into quitting because she was given "excessive work loads," and (2) her hours were limited arbitrarily. The evidence fails even to suggest that these actions, if they occurred, were due to Failey's age. Three other "junior Mail Processing Clerks with restrictions were also excessed from Tour 2." All three of them were over the age of 40 (ages 57, 42, and 53). Failey has offered nothing other than her own speculation that age played a part in her employer's actions.
Dkt. #18, ¶¶ 53 & 54.
Dkt. #33-1, ECF p. 151.
--------
Even accepting all of Failey's allegations as true for purposes of the defendants' summary judgment motion, Failey still cannot prevail because the USPS had legitimate, nondiscriminatory reasons for its actions. Failey was not singled out for transfer from Tour 2 to Tour 3; an entire crew was excessed to Tour 3, with transfers based on seniority in accordance with the collective bargaining agreement between the USPS and the American Postal Workers Union. Failey was the least senior of the employees being excessed, and the other three clerks with similar jobs all were over age 40. The record contains no evidence to substantiate Failey's claim that she was given "excessive work loads." Failey has offered no evidence to suggest the stated reasons for the USPS's actions were pretextual, nor has she established that she was "forced" into early retirement.
The court finds, therefore, that Failey has failed to show the existence of any genuine issue for trial on her age discrimination claim. Accordingly, the defendants' motion for partial summary judgment on this claim is granted.
IV. CONCLUSION
The only issue remaining in the case is Failey's First Claim for Relief, Count I, alleging race discrimination. As discussed above, Failey has inartfully pled this claim as one asserting discrimination on the basis of "skin color." Failey is directed to file a Third Amended Complaint by April 12, 2013, to properly restate her claim for race discrimination against the Postmaster General only, and omitting all other claims.
IT IS SO ORDERED.
________________________
Dennis James Hubel
Unites States Magistrate Judge