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relying on Morgan to deny motion to dismiss disability harassment claim for failure to contact EEO counselor within 45 days
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Case No. 20-cv-03662-SVK
01-08-2021
ANDREW MATTIODA, Plaintiff, v. JIM BRIDENSTINE, et al., Defendants.
ORDER ON MOTION TO DISMISS FIRST AMENDED COMPLAINT
Re: Dkt. No. 18
Plaintiff Andrew Mattioda alleges that he was subjected to disability-based discrimination, harassment, reprisal, and other actions between May 2011 and March 2019, during his employment as a scientist for Defendant National Aeronautics and Space Administration ("NASA") at its Ames Research Center ("Ames"). Dkt. 16 ("First Amended Complaint" or "FAC") ¶¶ 6, 10. Before filing this lawsuit, Plaintiff filed four Equal Employment Opportunity ("EEO") complaints with NASA. Exs. A, C, D, and E to Dkt. 17-1 ("Scharf Decl.").
In this case, Plaintiff asserts multiple causes of action for violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, et seq., specifically: (1) disability discrimination and harassment, (2) failure to engage in the interactive process, (3) reprisal, and (4) failure to provide reasonable accommodation. See FAC ¶¶ 141 et seq. Defendant Jim Bridenstine ("Bridenstine") is the NASA agency head. Id. ¶ 2. Now before the Court is Defendants' motion to dismiss the FAC under Federal Rules of Civil Procedure 8(a), 12(b)(1), and 12(b)(6). Dkt. 18. All parties have consented to the jurisdiction of a magistrate judge. Dkt. 9, 12; see also Case No. 20-cv-3745 at Dkt. 14; Dkt. 20-cv-3849 at Dkt. 12; 20-cv-4457 at Dkt. 17.
Pursuant to Civil Local Rule 7-1(b), the Court deems this matter suitable for determination without oral argument. After considering the parties' submissions, the case file, and relevant law, and for the reasons discussed below, Defendants' motion to dismiss the FAC is GRANTED IN PART and DENIED IN PART.
I. BACKGROUND
This discussion of the background facts is based on the allegations of the FAC. Since August 2007, Plaintiff has been employed as a Space and Planetary Scientist with the Astrochemistry Laboratory at the NASA Ames Research Center. FAC ¶ 6. Plaintiff alleges that he has been diagnosed with disorders of his hips and spine and that he has experienced life-long ear infections. Id. ¶ 7.
A. Plaintiff's EEO Complaints
On August 21, 2015, Plaintiff contacted NASA's Office of Diversity and Equal Opportunity ("EEO") concerning his claims of discrimination and harassment based on disability, as well as reprisal for protected activity. Id. ¶ 52; see also Scharf Decl. ¶ 3 and Exs. A, B. The EEO's Notice of Acceptance of Claim delineated this first EEO complaint as follows:
Based on your disabilities (physical) and in retaliation for prior protected activity, you were discriminated against and subjected to harassment when:Id. ¶ 7 and Ex. F. Plaintiff received a right to file a formal administrative complaint of employment discrimination on November 6, 2015, and he did so on November 16, 2015. FAC ¶ 57; Scharf Decl. ¶ 3 and Ex. A.
a. your requests for accommodation were denied in 2011 and continually thereafter;
b. on July 23, 2015, your supervisor rejected your request to reconsider the "Meets Expectations" rating you received for your performance of Critical Element #2 in your 2014 - 2015 performance evaluation; and
c. you have been subjected to on-going harassment, isolation and professional humiliation and adverse rumors and innuendo on the part of your supervisors.
Plaintiff filed a second formal EEO complaint on August 22, 2016. Scharf Decl. ¶ 4 and Ex. C. The EEO's Notice of Acceptance of Claim delineated this second EEO complaint as follows:
1. Because of your race (Native American), disabilities (physical) and in retaliation for prior EEO activity, you were discriminated against when, on April 27, 2016, you was required to provide justification before you were permitted to access your own grant funds when similarly situated employees were treated more fairly.
2. Because of your disabilities (physical) and in retaliation for prior EEO activity, you were subjected to harassment (hostile work environment) which includes but is not limited to the following:
Id. ¶ 8 and Ex. G.a. On May 12, 2016, your supervisor added a caveat to your premium travel accommodation request and your funding was monitored; and
b. On May 25, 2016, you were temporarily transferred from the Space Science and Astrobiology Division to the Planetary Systems Branch.
Plaintiff filed a third formal EEO complaint on March 18, 2017. Id. ¶ 5 and Ex. D. The EEO's Notice of Acceptance of Claim delineated this third EEO complaint as follows:
1. Because of your disabilities (physical) and in retaliation for prior EEO activity (filed formal complaints), from February 11, 2011 through February 15, 2017, you were subjected to on-going acts of harassment (hostile work environment), including but not limited to threats to terminate you and ostracism resulting from your request for reasonable accommodation.Id. ¶ 9 and Ex. H.
2. Because of your disabilities (physical) and in retaliation for prior EEO activity (filed formal complaints) you were discriminated against when on February 17, 2017, you were required to include your reasonable accommodation travel funds in your work package to NASA Headquarters.
Plaintiff filed a fourth formal EEO complaint on October 2, 2017. Id. ¶ 6 and Ex. E. The EEO's Notice of Acceptance of Claim delineated this fourth EEO complaint as follows:
Because of your disability (physical) and retaliation for participating in prior protected EEO activity (filed three formal complaints of discrimination), you allege you were discriminated against when, on August 8, 2017, you were not selected for the position of Senior Scientist, Laboratory Astrophysics in the Science Directorate, Senior Technical (ST) 1330-00, advertised under Vacancy Announcement No. AR17N0002.Id. ¶ 10 and Ex. I.
According to Defendant, Plaintiff requested hearings on all four EEO complaints, but after discovery was completed and the agency filed a motion for summary judgment, Plaintiff withdrew his request for hearing before the EEOC. Dkt. 18 at 5.
B. District court litigation
Plaintiff filed four complaints in this District, on June 2, 2020; June 5, 2020; June 23, 2020; and July 6, 2020. See generally Dkt. 10. On September 3, 2020, the Court consolidated the cases. Dkt. 15. As directed by the Court, Plaintiff filed a consolidated complaint on September 14, 2020. See FAC. In the FAC, Plaintiff alleges that beginning in March 2011, he experienced harassment, discrimination, failure to engage in the iterative process/provide a reasonable accommodation, and reprisal. See id. ¶¶ 10-140. Defendant, the NASA agency head, is the proper defendant in this Rehabilitation Act case against NASA. See SAI v. Smith, No. 16-cv-01024-JST, 2018 WL 534305, at *7 (N.D. Cal. Jan. 24, 2018).
Now before the Court is Defendant's motion to dismiss the FAC. Dkt. 18. Plaintiff opposes. Dkt. 21.
Defendant filed a motion to dismiss the FAC on September 25, 2020. Dkt. 17. On the same date, Defendant filed a corrected motion to dismiss. Dkt. 18. The Court treats Dkt. 18 as the operative motion and will terminate the original motion (Dkt. 17).
II. LEGAL STANDARDS
A. Rule 8(a)(2)
Federal Rule of Civil Procedure 8(a)(2) requires that the complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Courts have power to dismiss a complaint for egregious violations of Rule 8(a)'s "short and plain" requirement. See Cafasso v. U.S. ex rel. v. Gen. Dynamics C4 Systems, Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) and cases cited therein.
Defendants argue that the FAC should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) to the extent contains allegations outside the scope of Plaintiff's EEO charges and investigation. Dkt. 18 at 11-15. If a court's subject matter jurisdiction is challenged, the party asserting that a federal court has subject matter jurisdiction bears the burden of establishing it. Kokkonen v. Guardian Life Ins. Co. of Amer., 511 U.S. 375, 377 (1994).
Under Rule 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. In ruling on a motion to dismiss, the court may consider only "the complaint, materials incorporated into the complaint by reference, and matters of which the court may take judicial notice." Metzler Inv. GmbH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). In deciding whether the plaintiff has stated a claim, the court must assume the plaintiff's allegations are true and draw all inferences in the plaintiff's favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted).
To survive a motion to dismiss under Rule 12(b)(6), the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Leave to amend must be granted unless it is clear that the complaint's defects cannot be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
III. DISCUSSION
A. Materials That Can Be Considered
As a preliminary matter, the Court must rule on the admissibility of the extra-record materials that both parties have submitted in connection with the motion to dismiss. When adjudicating a factual challenge to the court's subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), a court may consider evidence outside the pleadings, including affidavits submitted by the parties. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When adjudicating a motion to dismiss brought pursuant to Rule 12(b)(6), the Court's consideration of extra-pleading materials is more limited. Normally, the Court cannot consider matters outside of the pleadings without converting the motion into a motion for summary judgment. See Fed. R. Civ. P. 12(b)(6); 12(d); see also Ramirez v. United Airlines, Inc., 416 F. Supp. 2d 792, 795 (N.D. Cal. 2005). However, the Ninth Circuit has held courts may consider materials submitted with and attached to the complaint. U.S. v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir. 2011). A court may also consider unattached evidence on which the complaint "necessarily relies" if: "(1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the document." Id. The Court may also "take judicial notice of documents on which allegations in the complaint necessarily rely, even if not expressly referenced in the complaint, provided that the authenticity of those documents is not in dispute." Tercica, Inc. v. Insmed Inc., No. C 05-5027 SBA, 2006 WL 1626930, at *8 (N.D. Cal. June 9, 2006) (citation omitted). In addition, courts may take judicial notice of matters of public record, including "records and reports of administrative bodies." Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012); see also Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). "In the context of employment discrimination cases in particular, it is well established that courts may consider the administrative record of a plaintiff's claims before the EEOC as judicially noticeable matters of public record." Lacayo v. Donahue, No. 14-cv-04077-JSC, 2015 WL 993448, at *9 (N.D. Cal. Mar. 3, 2015) (citations omitted).
Both parties have submitted extrinsic evidence concerning Plaintiff's EEO proceedings. All these materials are either referenced in the complaint or matters of public record and properly considered in either a 12(b)(1) or 12(b)(6) motion to dismiss. The Court overrules Plaintiff's objection that because Defendant's Rule 12(b)(1) motion is "irrelevant," the evidence offered to attack the FAC is "neither relevant nor appropriate." See Dkt. 21 at 3. As for the 12(b)6 motion, the FAC necessarily relies on the administrative records, they are matters of public record, and Plaintiff has not offered any reason to doubt the authenticity of the documents. Indeed, Plaintiff himself has submitted extrinsic evidence of his EEO complaints in opposition to the motion to dismiss (see Dkt. 21-1 (exhibits to Juratovac Decl.)) and made arguments based on that evidence (see Dkt. 21 at 7-8), thereby effectively conceding that the Court may properly consider the record of Plaintiff's administrative complaints.
Accordingly, the Court will consider the documents referenced in the complaint and judicially noticeable matters of public record with respect to the motion to dismiss. However, in doing so, the Court notices only the existence of the administrative proceedings and the agency's findings and does not credit the truth of any fact recounted or matter asserted in the documents. See Lacayo v. Donahue, 2015 WL 993448, at *10.
B. Failure to Exhaust Administrative Remedies
1. Subject Matter Jurisdiction
Plaintiff sues under the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq), which prohibits federal departments and agencies (among others) from discriminating against employees solely based on disability. 29 U.S.C. § 791, 793, 794. The remedies, procedures, and rights available under Title VII of the Civil Rights Act of 1964, including sections 706(f)-(k) and 717 (42 U.S.C. §§2000e-5(f)-(k) and 2000e-16), are available to federal employees in actions against a federal agency employer under section 501 of the Rehabilitation Act. 29 U.S.C. § 794a(a)(1).
"To preserve her right to maintain a suit alleging employment discrimination against an agency of the United States, a claimant must exhaust her administrative remedies by filing a claim of discrimination with the allegedly offending agency in accordance with published procedures." Leorna v. U.S. Dept. of State, 105 F.3d 548, 550 (9th Cir. 1997) (citing Brown v. Genl. Servs. Admin., 425 U.S. 820 832 (1976)); see also Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir. 2003). To bring a claim under the Rehabilitation Act, a federal employee must first contact an EEO counselor within forty-five days of the alleged discrimination. 29 C.F.R. § 1614.105(a)(1). The agency then investigates, and the claimant may later file a formal EEO complaint. 29 C.F.R. § 1614.105(c), (d). If the latter is not resolved after the agency issues its final decision, the claimant may either file directly in federal court within 90 days (see 29 C.F.R. § 1614.407(a)) or appeal through the EEOC within 30 days (see 29 C.F.R. § 1614.401(a), 1614.402(a)). If at any time, the employee's complaint sits idle within the administrative process for more than 180 days, the employee has an immediate right to file a civil action in federal court but must do so within 90 days. See 29 C.F.R. § 1614.407(b)(d). These time limits "are subject to waiver, estoppel and equitable tolling." 29 C.F.R. § 1614.604(c).
Defendant argues that the exhaustion requirement is jurisdictional and that claims in the FAC that exceed the scope of the EEO proceedings should be dismissed for lack of subject matter jurisdiction. Dkt. 18 at 11-15. Plaintiff responds that the exhaustion requirement is a claim processing requirement and is not jurisdictional in nature. Dkt. 21 at 1-3. Defendant does not address Plaintiff's argument in its reply. See Dkt. 22.
The Ninth Circuit previously held that an employee's "substantial compliance" with the administrative complaint process is a requirement for exhaustion that precludes district court jurisdiction. See Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001). However, the Supreme Court recently held that Title VII's requirement that a party file an EEOC charge before suing in district court "is not of a jurisdictional cast" but is instead "a processing rule, albeit a mandatory one." Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843, 1850-51 (2019). Subsequently, courts in this District have held that in light of Fort Bend, "the administrative complaint requirement for Title VII claims by federal employees is not jurisdictional." Williams v. Wolf, No. 19-cv-00652-JCS, 2019 WL 6311381, at *6 (N.D. Cal. Nov. 25. 2019); see also Pringle v. Wheeler, No. 19-cv-07432-WHO, 2020 WL 4673954, at *5 (N.D. Cal. Aug. 12, 2020); Burnes v. Chavez, No. 19-CV-03420-LHK, 2020 WL 2306488, at *3 (N.D. Cal. May 8, 2020); dela Cruz v. Brennan, No. 19-cv-01140-DMR, 2020 WL 1233886, at *4 (N.D. Cal. Mar. 13, 2020).
The Court finds the analysis of these cases persuasive and concludes that the requirement of exhaustion of EEO administrative remedies is not jurisdictional. Accordingly, Defendant's motion to dismiss the FAC pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction is DENIED. However, the charge-filing requirement remains a "mandatory processing rule," and a plaintiff "must allege compliance with that requirement ... in order to state a claim on which relief may be granted." Williams, 2019 WL 6311381, at *6 (quoting Fort Bend, 139 S. Ct. at 1851) (internal quotation marks omitted). The Court therefore proceeds to consider Defendant's administrative exhaustion arguments together with Defendant's other arguments under Rule 12(b)(6).
2. Compliance with Pre-suit Filing Requirements
Plaintiff alleges in the FAC that he exhausted his administrative remedies because on four occasions, he filed EEO charges and permitted the agency to engage in more than 180 days of investigation before bringing this matter to court. FAC ¶¶ 61, 96, 111, 132. However, as discussed in Section III. A. above, in evaluating whether Plaintiff complied with the mandatory processing rule before filing suit, the Court may look beyond the face of the FAC to public records concerning Plaintiff's EEO complaints.
To show compliance with Title VII's claim presentment requirements, the allegations of a plaintiff's judicial complaint must be "like or reasonably related to" the allegations made in the EEO complaint, such that they would fall within "the scope of an [EEO] investigation which [could] reasonably be expected to grow out of the [administrative] charge." Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) (citations, internal quotations marks, and emphasis omitted). A court evaluating the similarity between an administrative complaint and a complaint filed in district court may consider "such factors as the alleged basis of the discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred." Vasquez v. City of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2004) (citation omitted). "In addition, the court should consider plaintiff's civil claims to be reasonably related to allegations in the charge to the extent that those claims are consistent with the plaintiff's original theory of the case." Pringle, 2020 WL 4673954, at *5 (citation omitted). "Procedural technicalities" should not be employed to impede the claimant from obtaining a judicial hearing on the merits. Id. (citation omitted).
Defendant argues that the following claims in the FAC are barred by Plaintiff's failure to exhaust administrative remedies: (1) claims based on incidents occurring after August 2017, which is the last date mentioned in Plaintiff's EEO complaints; (2) claims against management officials who were not identified in Plaintiff's EEO complaints; and (3) claims against Dr. Lee (who was named in the EEO complaints) that are based on discrete incidents not mentioned in the EEOC complaints. Dkt. 18 at 13-15.
a. Claims occurring after August 8, 2017
Defendant argues that claims based on incidents occurring after August 8, 2017, which is "the final date of allegations accepted by the agency," are barred because they exceed the scope of the EEO investigations. Dkt. 18 at 15; see also id. at 10-11 (citing FAC ¶¶ 107-109 and 133-140). In response, Plaintiff argues that he may properly assert claims that "can reasonably be expected to grow from any charge of discrimination," including "facts and allegations occurring not only before, but also after, the filing of the EEO complaint." Dkt. 21 at 8.
In Sosa, which Plaintiff cites in support of this proposition, the Ninth Circuit held that a claim could proceed based on its relationship to an earlier administrative charge even though "[t]he EEOC could not have investigated the claim ... because [the plaintiff] did not discover the inequality until the same month the EEOC issued its reasonable cause determination." 920 F.2d at 1457. However, another court in this District has noted that "Ninth Circuit authority appears to be somewhat inconsistent on the question of claims based on similar conduct arising after an investigation concluded." Williams, 2019 WL 6311381, at *7. The court in Williams contrasted Sosa with Vasquez, in which the Ninth Circuit affirmed dismissal of a claim based on an incident that occurred after the EEOC issued its right to sue letter, stating that "[t]he EEOC could not have investigated that incident because it had not yet happened at the time the EEOC was conducting its investigation." Id. (citing Vasquez, 349 F.3d at 645). The court in Williams conducted a careful analysis of these authorities, in which it noted that Vasquez involved a litigation claim that was dissimilar to the Plaintiff's administrative claim, and discussed Ninth Circuit authority articulating practical reasons as to when a second filing would serve no purpose. The Williams court concluded that "Ninth Circuit precedent provides that even facts occurring after the administrative agency has completed its investigation can fall within the scope of an earlier administrative complaint so long as they are sufficiently similar to the claims raised therein." Williams, 2019 WL 6311381, at *8 (emphasis added).
The court in Pringle applied this principle in holding that a plaintiff had exhausted administrative remedies for claims concerning denial of leave in 2019 that occurred after the administrative action he filed in 2016 ended. 2020 WL 4673954, at *6. The court found that "the 2019 allegations are consistent with [plaintiff]'s original theory of the case because it involves the same actors and similar conduct." Id. The court acknowledged that its decision "would allow [plaintiff] to pursue claims for leave denials that occurred more than three years after his [] 2016 EEO Complaint" but noted that "the dates of discriminatory acts specified within the charge" are only one of the factors I must weigh here" and found that "[o]n balance," the facts that "[t]he perpetrators of discrimination named in the charge are the same and the claims are consistent with [the] original theory of the case ... shows that there is substantial similarity between his administrative complaint and his Title VII claims." Id.
Here, Defendant identifies paragraphs 107-109 and 133-140 of the FAC as being based on incidents that occurred after the last incident alleged in Plaintiff's EEO complaints. Dkt. 18 at 10-11. Applying the foregoing legal principles, the Court rules as follows regarding the paragraphs of the FAC challenged by Defendant:
| FAC Paragraph | Court's Ruling |
|---|---|
| 107. On December 11, 2017, MATTIODA e-mailed Dr. Hudgins an update on a project. Dr.Hudgins responded that he could notrecommend, and did not recommend, theAstrophysics division fund any ofMATTIODA's projects. Dr. Hudgins copiedhis e-mail to NASA's Astrophysics program,and the head of NASA's Planetary ScienceProgram, as well as other leaders of NASA'sPlanetary Science program. This denial ofparticipation in the project was another effortto harass MATTIODA because of hisdisability, and to support the actions of Dr.Dotson and Dr. Lee against MATTIODA. | The Court GRANTS the motion to dismissclaims based on the incident alleged in thisparagraph for failure to exhaust administrativeremedies. The conduct alleged is notsufficiently similar to the allegations made inthe EEO complaints. Dr. Hudgins' fundingrole in the Astrophysics division does notappear in the EEO record, and he is mentionedonly in connection with different discussionsin the 2013-14 time frame. |
| 108. On December 13, 2017, MATTIODAwas notified that his Emerging Worldsproposal had been rejected for funding by thePlanetary Science division. After the rejection,MATTIODA's, coinvestigator on theproposal, Dr. Uma Gorti, asked him, "Isanyone at NASA Headquarters mad at you?"Dr. Gorti explained that her extensiveexperience with NASA proposal reviewpanels, taught her that the decision not to fundMATTIODA's proposal was "purely political"and not based on merit. Dr. Gorti also saidother Emerging Worlds proposals withidentical scores as MATTIODA's were fundedin the same call. AMES' action to reject thisproject was yet another form of reprisal. | The Court GRANTS the motion to dismissclaims based on the incident alleged in thisparagraph for failure to exhaust administrativeremedies. The conduct alleged is notsufficiently similar to the allegations made inthe EEO complaints. The Emerging Worldsproposal does not appear in the EEO record,and Dr. Gorti is mentioned only in connectionwith a different discussion in the 2013 timeframe. |
| 109. On December 20, 2017, MATTIODA e-mailed Dr. Jeff Grossman, Discipline Scientistfor Emerging Worlds program, regardingMATTIODA's rejection and the unfair ratinghis Emerging Worlds proposal had received.Eventually, Dr. Grossman agreed to providepreliminary funding for two of the three yearsrequested. MATTIODA believes Dr.Grossman's partial response was an additionalattempt to support the retaliatory efforts by Dr.Lee and Dr. Dotson against MATTIODA. | The Court GRANTS the motion to dismissclaims based on the incident alleged in thisparagraph for failure to exhaust administrativeremedies. The conduct alleged is notsufficiently similar to the allegations made inthe EEO complaints. Neither Dr. Grossmannor the Emerging Worlds proposal appears inthe EEO record. |
|---|---|
| 133. On December 13, 2017, Dr. Bicay toldMATTIODA that Dr. Bicay wanted the STposition (Dr. Sandford) to assist in negotiatingnew hires for the group and obtaining directfunding from NASA Headquarters.MATTIODA and Dr. Farid Salama had vastexperience with these two functions.In contrast, for some 10 years, Dr. Sandfordhad not had a relationship with, nor had heeven worked with, the Astrophysics Programat NASA Headquarters. This admission wasyet other evidence that NASA's rationale fornot selecting MATTIODA for the ST positionwas unworthy of credence because it wasinternally inconsistent. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. The conduct alleged is sufficientlysimilar to the allegations made in the EEOcomplaints, which discuss Plaintiff'sapplication for this specific ST position, allegesimilar conduct, and identify the same actor(Dr. Bicay). |
| 134. On April 18, 2018, an announcement wasposted for a vacant position in theAstrophysics and Astrochemistry Laboratorygroup. MATTIODA volunteered to serve onthe selection/rating panel. On April 30, 2018,during a meeting with Dr. Jeff Hollingsworth,MATTIODA told Dr. Hollingsworth that hefelt like Dr. Howell had blacklistedMATTIODA due to his disabilities and priorprotected activities. MATTIODA also told Dr.Hollingsworth that he had volunteered to be onthe selection committee for the newLaboratory Astrophysics position, but had notbeen selected for that committee. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. Although the EEO complaints donot complain about Dr. Hollingsworth,Plaintiff's non-selection for this selectioncommittee is sufficiently similar to theallegations made in the EEO complaints,which involve the same actor (Dr. Howell) andsimilar conduct, such as passing over Plaintiffand not selecting Plaintiff's candidates. |
| 135. On or about June 29, 2018, MATTIODAlearned NASA had hired a new Astrophysicsand Astrochemistry Laboratory hire.MATTIODA was not consulted regarding thenew hire, even though he was the only | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. The alleged conduct is sufficientlysimilar to the allegations made in the EEOcomplaints, which involve similar conduct, |
| potential "unbiased" Astrophysics evaluatorwhen the other two evaluators both had theirown research candidates applying for the job.Again, NASA retaliated against MATTIODAby excluding him from an assignment whereinhe was the only obvious, nonbiased selectingofficial. | such as passing over Plaintiff and not selectingPlaintiff's candidates. |
| 136. During 2018 MATTIODA workedmonths on the team's 2018 version of the LabAstro WP. MATTIODA was a senior memberof that package. On July 3, 2018, Dr. Howellannounced Dr. Ella Sciamma O'Brien ("Dr.Sciamma O'Brien") would be the point ofcontact for the work package. NASA'sselection was in direct contradiction to Dr.Bicay's prior statement that MATTIODA wasto participate in the "leadership and vision" forthe future of the Astrophysics program. Theselection was yet another form of ongoingretaliation. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. Plaintiff's non-selection as thepoint of contact for this work package issufficiently similar to the allegations made inthe EEO complaints, which involve the sameactor (Dr. Howell) and similar conduct, suchas passing over Plaintiff and not selectingPlaintiff's candidates. |
|---|---|
| 137. On August 1, 2018, Dr. Howell led a SSDivision panel meeting to review potentialNPP postdoctoral candidates. ForMATTIODA's proposed NPP candidate, Dr.Howell asked him aggressive andinterrogation-like questions regarding thatcandidate. Dr. Howell did not ask these sameaggressive and interrogation-like questions ofthe other scientists with proposed candidates.But for MATTIODA's disability and priorEEO complaints, Dr. Howell would not havetreated MATTIODA in this manner. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. The conduct alleged is sufficientlysimilar to the allegations made in the EEOcomplaints, which involve the same actor (Dr.Howell) and similar conduct, such as passingover Plaintiff and not selecting Plaintiff'scandidates. |
| 138. On August 17, 2018, MATTIODA wasinformed his NPP postdoctoral applicant wasnot selected in this round of applications. Thereasons listed for not selecting MATTIODA'scandidate mirrored Dr. Howell's commentsgiven during his aggressive questioning ofMATTIODA. Dr. Howell controlled whetherMATTIODA's NPP candidate was selected,and this non-selection was yet another form ofreprisal/retaliation. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. Plaintiff's non-selection as thepoint of contact for this work package issufficiently similar to the allegations made inthe EEO complaints, which involve the sameactor (Dr. Howell) and similar conduct, suchas passing over Plaintiff and not selectingPlaintiff's candidates. |
| 139. On October 26, 2018, when MATTIODAwas moving an item in the lab, Dr. Salama | The Court GRANTS the motion to dismissclaims based on the incident alleged in this |
| yelled out to him, "Watch it. Don't hurt yourback, I know you have back issues."MATTIODA had never told Dr. Salama abouthis back disability issues, so Defendant musthave disclosed confidential information abouthis hips, back, and accommodations withoutMATTIODA's permission. | paragraph for failure to exhaust administrativeremedies. The conduct alleged is notsufficiently similar to the allegations made inthe EEO complaints. The EEO complaints donot allege misconduct by Dr. Salama butmention Dr. Salama only in the context of anexample of differential treatment by Plaintiffby superiors. The EEO complaints do notallege conduct similar to what is alluded to inthis paragraph. |
| 140. On March 19, 2019, Ms. Kim Dufour,representative for USJobs website, toldMATTIODA that when the ST Position wasbeing evaluated in late 2017, NASA had neverrequested disability status information fromthat USJOBS system. Despite the 2017vacancy announcement having stated theposition was open to candidates withdisabilities, NASA never requested thedisability status for any candidates. NASAapparently never intended to promote anyonewith a disability, or in accord with Schedule-Apreference, or in accord with the priorrecommendations for "diversity." | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. The conduct alleged is sufficientlysimilar to the allegations made in the EEOcomplaints, which discuss Plaintiff'sapplication for this specific ST position. |
|---|
b. Claims against management officials not named in EEO complaints
Defendant argues that Plaintiff's claims against certain management officials are barred because Plaintiff's EEO charges did not include any allegations against those individuals. Dkt. 18 at 13-14; see also id. at 9-10 (citing ¶¶ 20, 51, 53, 74, 81, 82, 87, 94, 99, 106, 116).
As a general rule, Title VII plaintiffs may sue only those named in the EEOC charge, because only those parties had an opportunity to respond to the charges during the EEOC's investigation. Sosa, 920 F.2d at 1458. Based on an employee's charge against one supervisor, "the EEOC would have no reason to investigate" employees who had responsibilities outside the named employee's authority. Vasquez, 349 F.3d at 645. However, courts have developed a number of exceptions to this rule in Title VII cases and allowed suit against unnamed defendants where, for example: (1) the unnamed persons "were involved in the acts giving rise to the EEOC claims"; (2) "where the EEOC or defendants themselves should have anticipated that the claimant would name those defendants in a Title VII suit"; (3) the respondent named in the EEOC charge is a principal or agent of the unnamed party or if they are substantially identical parties; (4) if the EEOC could have inferred that the unnamed party violated Title VII; or (5) if the unnamed party had notice of the EEOC conciliation efforts and participated in the EEOC proceedings. Sosa, 920 F.2d at 1458-59 (internal quotation marks and citations omitted).
Applying the foregoing legal principles, the Court rules as follows regarding the paragraphs of the FAC that Defendant argues are barred because Plaintiff's EEO charges did not include any allegations against the individuals identified in those paragraphs (see Dkt. 18 at 9-10):
| FAC Paragraph | Court's Ruling |
|---|---|
| 20. In mid August 2011, MATTIODA had atelephone call with Ombudsman, Dr. JamesArnold ("Dr. Arnold"). On or about August17, 2011, MATTIODA then went to see anAMES Ombudsman, Jack Boyd. MATTIODAreviewed the series of events involving Dr.Lee. MATTIODA asked Mr. Boyd, "Is this anEEO Matter?" to which Mr. Boyd responded,"Just let it slide" or words to that affect. Mr.Boyd recommended MATTIODA not take anyaction to what he reported as harassment. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. An investigation of Plaintiff'scomplaints against Dr. Lee in this time framewould reasonably encompass this meetingwith Dr. Arnold. |
| 51. On August 7, 2015. MATTIODA met withDr. Arnold. MATTIODA detailed the back-ground and facts regarding his disability,multiple failed reasonable accommodations,and what he considered to be the pervasiveatmosphere of illegal harassment he had beenundergoing. MATTIODA was surprised whenDr. Arnold responded with, "I have nothingbut the highest respect for her [Dr. Dotson]."The manner of Dr. Arnold's commentsuggested he already believed Dr. Dotson wasnot guilty of any type of harassment,discrimination, or retaliation. Dr. Arnold thensuggested MATTIODA, Dr. Lee and Dr.Dotson meet together about the issues.MATTIODA said he would normally agree tosuch a meeting only if one or two events had | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. In light of references in the EEOrecord to a similar meeting (see ECF 17-2 atPDF p. 120), an investigation of Plaintiff'scomplaints would reasonably encompass thisincident.. |
| occurred and his superiors were completelyunaware of what they were doing. Despite thefacts, though, MATTIODA agreed to ameeting. | |
| 53. On August 24, 2015. MATTIODA metwith Dr. Janice Fried (AMES Anti-harassmentcoordinator) and provided the information forhis harassment and retaliation complaint. Dr.Fried admitted that it was "very difficult" toprove harassment using NASA's policies andprocedures. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. In light of references in the EEOrecord to Plaintiff filing a harassmentcomplaint with Ms. Fried on this date (seeECF 17-2 at PDF p. 51), an investigation ofPlaintiff's complaints would reasonablyencompass this incident. |
|---|---|
| 74. On or around May 12, 2016, MATTIODAsent Dr. Michael Bicay ("Dr. Bicay"), ScienceDirectorate Chief - MATTIODA's third levelsupervisor - an email, "I would like to reportcontinuing harassment by my immediatesupervisor, Dr. Jessie Dotson." MATTIODAthen detailed Dr. Dotson's actions regardingher personally imposed requirements onMATTIODA's reasonable accommodationtravel requests. MATTIODA said, "Dr.Dotson has added this additional requirementin retaliation for my previous EEO activitiesand due to my disabilities." Dr. Bicayresponded to the email saying he would speakto Dr. Dotson about the complaint.MATTIODA sent another e-mail confirminghe would file another harassment complaintand another EEO complaint regarding thesespecially imposed requirements on him as aperson with disabilities. MATTIODA statedhe would also report Dr. Dotson had discussedMATTIODA's medical issues with Dr.Sandford. MATTIODA told Dr. Bicay, "Jessieis doing this purely to embarrass me, harassme, retaliate against me and discriminateagainst me." | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. In light of references in the EEOrecord to Plaintiff's complaints about travelrestrictions in this time frame, includingemails involving Drs. Bicay and Dotson (seeECF 17-2 at PDF pp. 53-54, 129-130), aninvestigation of Plaintiff's complaints wouldreasonably encompass this incident. |
| 81. On May 18, 2016, Dr. Bicay respondedsaying he did not know enough details toeither agree or disagree with MATTIODA.But, Dr. Bicay did not offer to investigateMATTIODA's claims. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. In light of references in the EEO toa number of issues with Dr. Bicay in this timeframe, an investigation of Plaintiff'scomplaints would reasonably encompass thisincident. |
| 82. On May 19, 2016, MATTIODA confirmedto Dr. Bicay in an e-mail that MATTIODAhad fulfilled obligations required under theNASA Anti-Harassment policy to inform amanager about harassment in the work place.He also reminded Dr. Bicay about Dr. Bicay'searlier commitment (made in writing) toprovide a "healthy work environment, free ofharassment and retribution." | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. In light of references in the EEOrecord to Dr. Bicay's "healthy workenvironment" statement and Plaintiff'scomplaints about issues with Dr. Bicay in thistime frame (see ECF 17-2 at PDF pp. 51, 55,134), an investigation of Plaintiff's complaintswould reasonably encompass this incident. |
|---|---|
| 87. On May 23, 2016, MATTIODA met withDr. Deborah Feng ("Dr. Feng"), AssociateCenter Director, AMES, to initiate hisinformal harassment and reprisal complaint.MATTIODA later met with the investigator,Dr. Alfonso Vera, who said he had beenconducting investigations for many years andit was "very difficult to prove harassment.""To prove harassment, the manager basicallyhas to say, 'Yes, I was harassing him' in orderto get a finding of harassment." | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. In light of references in the EEOrecord to harassment complaints regarding Dr.Dotson in this time frame (see ECF 17-2 atPDF pp. 29-31), an investigation of Plaintiff'scomplaints would reasonably encompass thisincident. |
| 94. On or around October 4, 2016, the AMESDeputy Center Director (Dr. ThomasEdwards) issued a decision on MATTIODA'sharassment complaint about Dr. Dotson'stravel requirements. In the memorandum toMATTIODA, Dr. Edwards wrote that Dr.Dotson's actions "adversely affected yourwork environment by requiring you to discloseyour disability to managers who should notneed to know about it." Dr. Edwards alsostated, "This complaint sheds light on ashortcoming of the Agency's policies andprocedures, however. There is no clearapproach to handle the financial repercussionsof RA findings, and so managers andemployees can be left lacking the tools neededto provide accommodations." Dr. Edwardsthen requested AMES assemble a team todevelop recommendations clarifying: (1) theroles, responsibilities, and authorities inmaking reasonable accommodation travelrequest determinations, (2) which officialsshould have access to information, and (3)how to secure funds necessary to fulfillreasonable accommodation determinations.Dr. Edwards set a date of no later than March | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. In light of references in the EEOrecord to the memo referenced in thisparagraph (see ECF 17-2 at PDF p. 127), aninvestigation of Plaintiff's complaints wouldreasonably encompass this incident. |
| 31, 2017 for the team to brief centermanagement on its progress. | |
| 99. On October 4, 2016, Dr. Thomas A.Edwards ("Dr. Edwards"), Deputy CenterDirector, sent both SSA and MATTIODA amemorandum regarding MATTIODA'sinternal second discrimination and harassmentcomplaint. Dr. Edwards admitted Dr. Dotson'sactions "adversely impacted your workenvironment by requiring MATTIODA todisclose his disabilities to managers whoshould not need to know about it." Dr.Edwards also acknowledged MATTIODA's"complaint sheds light on a shortcoming of theAgency's policies and procedures" as there "isno clear approach to handle the financialrepercussions of RA findings, and so managersand employees can be left lacking the toolsneeded to provide accommodations." | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. In light of references in the EEOrecord to the memo referenced in thisparagraph (see ECF 17-2 at PDF p. 127), aninvestigation of Plaintiff's complaints wouldreasonably encompass this incident. |
|---|---|
| 106. Around March 20, 2017, MATTIODAdiscussed his new proposal concept for theAstrophysics Data Analysis program (ADAP)with Dr. Doug Hudgins, Discipline Scientist,to ensure MATTIODA's proposal conceptaligned with program requirements. Dr.Hudgins said the proposal concept was alignedwith the program requirements, soMATTIODA submitted his new proposal. Onor around May 2016, Dr. Hudgins sent an e-mail telling MATTIODA that his proposal wasnot responsive (aligned) to the programrequirements, and Dr. Hudgins had rejectedthe proposal without submitting it for review.Without copying MATTIODA, Dr. Hudginssent a separate e-mail to Dr. Dotson and Dr.Lee with the text included, "FYI." Dr.Hudgins was informing these AMES officialsthat he was acting consistently with what heknew were their efforts to curtailMATTIODA's professional development. | The Court GRANTS the motion to dismissclaims based on the incident alleged in thisparagraph for failure to exhaust administrativeremedies. The conduct alleged involves adifferent actor and different issue thanPlaintiff's EEO complaints, and there is noreason why an investigation of Plaintiff's EEOcomplaints would have elicited informationabout the incident alleged in this paragraph. |
| 116. On April 11, 2017, MATTIODAexchanged emails with Dr. Steve Howell ("Dr.Howell"), requesting a meeting. Dr. Howellresponded, "If you are having an issue withTim [Dr. Lee] and the WP [Lab Astro WP] | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. In light of references in the EEOrecord to an email to Dr. Howell in this timeframe (see ECF 17-2 at PDF p. 141), an |
| formulation, I'd suggest you take [sic] to him.Next step is to talk to your branch chief."MATTIODA then provided Dr. Howell a highlevel overview of the years of discriminationand retaliation involving Dr. Lee.MATTIODA said Dr. Lee's strippingauthority for the Lab Astro WP formulationwas a continuation of the harassment. WhenMATTIODA cited examples about Dr. Lee'sshunning and excluding MATTIODA fromcertain critical meetings, Dr. Howell admitted,"Yeah, that was kinda weird." MATTIODAalso commented he had heard Dr. Lee madeseveral derogatory comments aboutMATTIODA that included the false commentsthat MATTIODA was a "troublemaker," andhad been transferred to SST because he couldnot get along with SSA management. Dr.Howell did not offer to pass this informationonward so that NASA could start adiscrimination or harassment investigation. | investigation of Plaintiff's complaints wouldreasonably encompass this incident. |
c. Claims against Dr. Lee for incidents not identified in EEO charges
Although Dr. Lee was specifically named in Plaintiff's EEO charges, Defendant argues that the FAC includes claims against Dr. Lee that should be barred because they involve new incidents that were not raised in the previous EEO complaints. Dkt. 18 at 14; see also id. at 10 (citing ¶¶ 44, 55, 56, 60, 113, 117, 122, 123). The Court rules as follows regarding those paragraphs:
| FAC Paragraph | Court's Ruling |
|---|---|
| 44. On March 19, 2015, MATTIODA saw anear, nose, and throat ("ENT") doctor whodiscovered an ear infection and instructedMATTIODA not to fly to the 2015 ACSmeeting in Denver set for March 22-26.Previously, MATTIODA had informed Dr.Dotson about his repeated ear infections.MATTIODA then called Dr. Allamandolaabout the situation because Dr. Allamandolawas one of the conference organizers. Duringtheir discussion Dr. Allamandola admitted hehad had to argue with Dr. Lee to convince himto include MATTIODA at the conference. Dr. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. Dr. Lee is the focus of Plaintiff'sEEO complaints, and an investigation ofPlaintiff's complaints would reasonablyencompass this and other alleged incidentsinvolving Dr. Lee. Moreover, the EEO recordrefers to issues concerning Plaintiff'sattendance of the Denver conference and to aconversation with Dr. Allamandola regardingDr. Lee's lack of respect in a different timeframe (see ECF 17-2 at PDF pp. 6, 10, 117). |
| Allamandola confirmed Dr. Lee had suggestedin other meetings that Dr. Lee (a) did notrespect MATTIODA's work, (b) thoughtMATTIODA was lazy, and (c) believedMATTIODA was using his medical anddisability issues to avoid work. WhenMATTIODA later proposed doing a videopresentation for the conference, Dr. Lee liedand said the ACS organization did not permitvideo conferencing. | |
| 55. During the September 13-17, 2015 period,MATTIODA was an invited speaker at asymposium to honor Lou Allamandola'scontributions to molecular science. AfterMATTIODA's presentation, Dr. AnnemiekePetrignani and Dr. Alessandra Candian fromthe Netherlands, approached MATTIODAabout possibly collaborating on researchinvolving the overtone and combination bandsof PAHs. Neither mentioned ever speaking toDr. Lee regarding this topic, or any topic. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. This paragraph appears to givecontext to paragraph 57, which is a furthercomplaint against Dr. Lee, rather than a chargeagainst Drs. Petrignani or Candian. Dr. Lee isthe focus of Plaintiff's EEO complaints, andan investigation of Plaintiff's complaintswould reasonably encompass this and otheralleged incidents involving Dr. Lee. |
|---|---|
| 56. On October 13, 2015 MATTIODA gave aninvitational lecture to the AstrochemistrySchool held at the SETI Institute in MountainView. Because of this lecture, Dr. XinchuanHuang (Dr. Lee's postdoctoral fellow)contacted MATTIODA to discuss thepossibility of collaborating with Dr. Petrignaniand Dr. Candian. MATTIODA respondedsaying he had already discussed thispossibility with the two researchers inSeptember. MATTIODA then learned Dr. Leehad falsely claimed that he, Dr. Lee, was theone who spoke with the two researchersregarding a collaboration with MATTIODA. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph, for the reasons discussed inconnection with paragraph 55. |
| 60. On February 4, 2016, Dr. Boersma andMATTIODA met with Dr. Lee and hispostdoctoral fellow, Dr. Huang. Based onprevious exchanges with Dr. Huang,MATTIODA had initiated the meeting todiscuss potentially collaborating on a project.Dr. Boersma and MATTIODA presented theirconcept to Dr. Huang and Dr. Lee. After thepresentation, Dr. Lee made it clear Dr. Lee | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. Dr. Lee is the focus of Plaintiff'sEEO complaints, and an investigation ofPlaintiff's complaints would reasonablyencompass this and other alleged incidentsinvolving Dr. Lee. |
| was not interested in collaborating withMATTIODA and Dr. Boersma on that project.Dr. Lee stated that Dr. Boersma andMATTIODA were free to collaborate withother people. | |
| 113. Sometime around Spring 2017, Dr. TimLee ("Dr. Lee") stepped down from the SSDivision Branch Chief position. MATTIODAhad filed prior EEO Complaints against NASAand named Dr. Lee in his complaints. NASAwas well aware of MATTIODA's disabilitystatus before 2017. Despite MATTIODA'sprior EEO and harassment complaints againstDr. Lee, when Dr. Lee stepped down fromhis Branch Chief position, NASA assigned Dr.Lee to work in the Planetary Sciences Branch,alongside MATTIODA. Dr. Lee then usedabout $3,000 of Division funds to redecoratehis new office, next to MATTIODA, despitehaving previously told MATTIODA theAgency lacked funds to pay forMATTIODA's reasonable accommodationrequests. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. Dr. Lee is the focus of Plaintiff'sEEO complaints, and an investigation ofPlaintiff's complaints would reasonablyencompass this and other alleged incidentsinvolving Dr. Lee. |
|---|---|
| 117. On May 10, 2017, Mr. Mark Fonda ("Dr.Fonda") asked Dr. Lee's opinion aboutinvolving MATTIODA in a Lab Astro Tour.Dr. Lee responded, "Not Andy." Other than aretaliatory motive, Dr. Lee had no other reasonto deny this tour opportunity to MATTIODA. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. Dr. Lee is the focus of Plaintiff'sEEO complaints, and an investigation ofPlaintiff's complaints would reasonablyencompass this and other alleged incidentsinvolving Dr. Lee. |
| 122. On July 10, 2017, Dr. Lee told Dr. SteveZornetzer about MATTIODA's EEO andharassment complaints. As of June 2017,NASA had assigned Dr. Lee to be on theselection panel ("ST Panel") to select theperson filling the Sr. Technical Scientistposition. NASA allowed Dr. Lee onto thispanel, which had accepted MATTIODA'sapplication, despite the fact that Dr. Lee wasthe person against whom MATTIODA hadfiled prior EEO complaints. | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. Dr. Lee is the focus of Plaintiff'sEEO complaints, and an investigation ofPlaintiff's complaints would reasonablyencompass this and other alleged incidentsinvolving Dr. Lee. |
| 123. In that July 10, 2017 meeting, Dr. Leespoke with the other hiring panel membersabout MATTIODA. For whatever reason, and | The Court DENIES the motion to dismissclaims based on the incident alleged in thisparagraph. Dr. Lee is the focus of Plaintiff's |
| in violation of both procedures and custom, allthe members of the ST Panel either destroyed,or removed, their notes taken from thatmeeting, thus creating a spoliation of theevidence. About one month after making thesecomments about MATTIODA and otherpotential candidates to the hiring panel, Dr.Lee recused himself from serving on the STPanel. Dr. Jaya Bajpayee ("Dr. Bajpayee")replaced him. MATTIODA believes based onthe other circumstances surrounding theselection process, that Dr. Lee communicatedwith others during this one month period ofactivity. | EEO complaints, and an investigation ofPlaintiff's complaints would reasonablyencompass this and other alleged incidentsinvolving Dr. Lee. |
d. Conclusion re Exhaustion of Administrative Remedies
For the reasons discussed above, Defendant's motion to dismiss Plaintiff's claims pursuant to Rule 12(b)(1) on the basis of lack of subject matter jurisdiction is DENIED. Defendant's motion to dismiss Plaintiff's claims pursuant to Rule 12(b)(6) on the grounds of failure to exhaust administrative remedies is GRANTED IN PART and DENIED IN PART as indicated in the charts above. Where the motion to dismiss has been granted on the grounds of failure to exhaust administrative remedies, no leave to amend is granted. Although leave to amend should be freely given, it should be denied where amendment would be futile. Carrico v. City & Cnty. of S.F., 656 F.3d 1002, 1008 (9th Cir. 2011). Plaintiff cannot correct his failure to exhaust administrative remedies by filing an amended complaint.
C. Failure to State a Claim
Defendant argues that even if Plaintiff exhausted his administrative remedies, the FAC should nevertheless be dismissed because each claim in the FAC fails to state a cause of action. Dkt. 18 at 17-24.
1. Claims for disability discrimination
Defendant argues that Plaintiff's discrimination claims should be dismissed because: (1) they include allegations about discrete events that occurred prior to July 7, 2015 and for which Plaintiff did not file an EEO claim; and (2) as to the timely discrimination claims, Plaintiff failed to plead facts giving rise to a plausible claim for discrimination. Dkt. 18 at 17-18.
a. Timeliness
As discussed above, to bring a claim under the Rehabilitation Act, a federal employee must first contact an EEO counselor within forty-five days of the alleged discrimination. 29 C.F.R. § 1614.105(a)(1). "The limitations-period analysis is always conducted claim by claim" and "begins running on any separate underlying claim of discrimination when that claim accrues." Green v. Brennan, 136 S. Ct. 1769, 1782 (2016); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-115 (2002). "This requirement is not jurisdictional, but a federal employee who fails to contact an EEO counselor for pre-complaint processing risks dismissal of any subsequent complaint." Williams, 2019 WL 6311381, at *8 (citations omitted).
The parties agree that Plaintiff first contacted an EEO counselor on August 21, 2015. Dkt. 18 at 3; Dkt. 21 at 7. According to Defendant, this means that Plaintiff cannot base his discrimination claim on any conduct that occurred more than 45 days before August 21, 2015, i.e., before July 7, 2015. Dkt. 18 at 17. Both Plaintiff's first EEO complaint and the FAC in this case describe conduct dating back to 2011. See, e.g., Scharf Decl. ¶ 2 and Ex. A; FAC ¶¶ 10-47. Plaintiff characterizes these allegations of the first EEO complaint as "continuous violations spanning many years." Dkt. 21 at 7. Plaintiff argues that the existence of past acts and his knowledge of those acts does not bar him from filing charges about related discrete acts, "so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed." Id. He also argues that he is not barred from using "prior acts as background evidence to support a timely claim." Id. (citing Morgan, 536 U.S. at 102).
Morgan concerned the timely filing requirements of Title VII, which require that a charge be filed within 180 days "after the alleged unlawful employment practice occurred." Morgan, 536 U.S. at 109. The Supreme Court stated that "[a] discrete retaliatory or discriminatory act 'occurred' on the day that it 'happened.'" Id. at 110. The court rejected an argument that "the term 'practice' converted related discrete acts into a single unlawful practice for purposes of timely filing." Id. Accordingly, the court held that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges" and "[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act." Morgan, 536 U.S. at 113. However, the Court noted the following limitations on this principle:
The existence of past acts and the employee's prior knowledge of their occurrence ... does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.Id. at 113.
In Morgan, the Supreme Court also noted that the time period under Title VII for filing a charge "is subject to equitable doctrines such as tolling and estoppel," although these doctrines "are to be applied sparingly." Morgan, 536 U.S. at 113. In this case, Plaintiff does not argue that these equitable doctrines apply, and therefore the Court does not discuss them further.
Applying Morgan's holdings in another Title VII case, the Ninth Circuit concluded that "[a] discriminatory practice, though it may extend over time and involve a series of related acts, remains divisible into a set of discrete acts, legal action on the basis of each of which must be brought within the statutory limitations period." Lyons v. England, 307 F.3d 1092, 1108 (9th Cir. 2002). Subsequently, the Ninth Circuit has held that Morgan "applies with equal force to the Rehabilitation Act." Ervine v. Desert View Regional Med. Ctr. Holdings, LLC, 753 F.3d 862, 869 (9th Cir. 2014) (citation omitted).
Although Plaintiff's opposition to the motion to dismiss refers to the allegations of the first EEO complaint as "continuous violations" (Dkt. 21 at 7), the Supreme Court's decision in Morgan substantially limited the notion of continuing violations to situations involving a pattern or practice that is pervasive throughout the workplace. Williams, 2019 WL 6311381, at *9-10 (citations omitted). There is no allegation that such a situation existed in this case.
Accordingly, to the extent the FAC could be construed as bringing discrimination claims based on discrete adverse actions occurring before July 7, 2015, the motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND. Plaintiff may not present evidence of those events as a continuing violation based on a theory of discrimination, although in some circumstances evidence of past conduct that was not timely presented to the EEO may be presented "as background evidence in support of a timely claim." See Morgan, 536 U.S. at 113; see also Williams, 2019 WL 6311381, at *10. To the extent such evidence may be permissible, objections to that evidence arising under the Federal Rules of Evidence, as well as rulings on those objections, are reserved for discovery and trial.
b. Elements of claim for disability discrimination
Defendant argues that as to any timely claims for discrimination, the FAC fails to state a claim "because [such claims] have no factual support." Dkt. 18 at 18. To state a prima facie case of discrimination under the Rehabilitation Act, Plaintiff must demonstrate that (1) he is a person with a disability, (2) who is otherwise qualified for employment, meaning that he can perform the essential duties of this position with or without reasonable accommodation, and (3) suffered discrimination because of his disability. Silveria v. Wilkie, No. 18-cv-07327-EMC, 2020 WL 820377, at *7 (N.D. Cal. Feb. 19, 2020) (citing Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007)). "[A] plaintiff is not required to plead a prima facie case of discrimination or retaliation in order to survive a motion to dismiss," but "courts still look to the elements of the prima facie case "to decide, in light of judicial experience and common sense, whether the challenged complaint contains sufficient factual matter, accepted as true, to state a claim for[]relief that is plausible on its face." Cloud v. Brennan, 436 F. Supp. 3d 1290, 1300-01 (N.D. Cal. 2020) (citations omitted).
Defendant argues that Plaintiff's claim for disability discrimination should be dismissed because he fails to allege that he suffered discrimination because of his disability. Dkt. 18 at 18. According to Defendant, the only facts Plaintiff pleads that show a connection to his disability concern Dr. Dotson's request that Plaintiff provide concurrence from the manager of travel funds for Plaintiff's travel requests, and Dr. Lee's request that Plaintiff include reasonable accommodation funding in his travel fund request. Id. (citing FAC ¶¶ 65, 68, 69, 70, 72, 73, 75-80, 104-105). Defendant argues that these actions do not constitute discrimination but instead "demonstrate management's attempts to work with Plaintiff to ensure that the agency fulfilled his reasonable accommodation requests." Id. Plaintiff's opposition to the motion to dismiss focuses on Defendant's administrative exhaustion argument and does not address Defendant's argument that the acts alleged in the FAC do not constitute discrimination. See Dkt. 21.
Defendant's argument essentially offers an alternative, non-discriminatory interpretation of the conduct attributed to Drs. Dotson and Lee. However, Defendant has not identified a missing element of Plaintiff's claim for discrimination. Plaintiff has met the standard of pleading a plausible claim for discrimination, and accordingly Defendant's motion to dismiss Plaintiff's claims for disability discrimination is DENIED.
2. Claims for harassment based on disability
Defendant argues that Plaintiff's claims for harassment based on disability should be dismissed because if such a cause of action exists: (1) Plaintiff's harassment claims include allegations about events that occurred prior to July 7, 2015 and for which Plaintiff did not file an EEO claim; and (2) as to the timely discrimination claims, Plaintiff failed to plead facts giving rise to a plausible claim for harassment. Dkt. 18 at 18-21.
a. Timeliness
As discussed above, in Morgan the Supreme Court held that claims of discrete discriminatory acts must be filed within the appropriate time period. Morgan, 536 U.S. at 113. However, Morgan also noted that "[h]ostile environment claims are different in kind from discrete acts" because "[t]heir very nature involves repeated conduct." Id. at 115. Accordingly, "a hostile work environment claim ... will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." Id. at 122; see also Lyons v. England, 307 F.3d 1092, 1106-1107 (9th Cir. 2002).
Here, the FAC includes alleged incidents of harassment that occurred after July 7, 2015, which as discussed above is the cut-off date for actions to be included in Plaintiff's first EEO complaint. See, e.g., FAC ¶¶ 48-57, 65, 70, 72-74, 80, 103, 105, 107. Taking Plaintiff's allegations are true and drawing all inferences in Plaintiff's favor, as the Court must do on a motion to dismiss, the Court finds that the FAC adequately alleges that the harassment that predated July 7, 2015 was part of the same unlawful employment practice as the harassment that occurred after that date. The Court therefore DENIES the motion to dismiss Plaintiff's harassment claims as untimely; however, as discussed in the following section, the Court will dismiss Plaintiff's harassment claims because they fail to plausibly allege all required elements of such a claim.
b. Elements of a harassment claim
As an initial matter, Defendant argues that "the Ninth Circuit has not determined whether the ADA or Rehabilitation Act gives rise to a claim of harassment." Dkt. 18 at 19 (citations omitted). The parties have not fully briefed this issue. Accordingly, adopting the approach taken by another court in this District, on the present motion to dismiss this Court will "[a]ssume[] without deciding that such a claim exists and that the Ninth Circuit would adopt a test for disability based harassment claim that is similar to the one articulated by the Fifth Circuit." See Anello v. Berryhill, No. 18-cv-00070-DMR, 2019 WL 285197, at *11 (N.D. Cal. Jan. 22, 2019). The Fifth Circuit states that in order to prove a claim of disability-based harassment, the plaintiff must prove: (1) that he belongs to a protected group; (2) that he was subjected to unwelcome harassment; (3) that the harassment complained of was based on his disability or disabilities; (4) that the harassment complained of affected a term, condition, or privilege of employment; and (5) that the employer knew or should have known of the harassment and failed to take prompt, remedial action. Id. at *11 (citing Flowers v. S. Reg'l Physician Servs. Inc., 247 F.3d 229, 235-36 (5th Cir. 2001)). "Moreover, the disability-based harassment must be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment." Id. at 236 (quotation marks omitted).
The harassment cause of action in the FAC includes an assertion that Defendant engaged in harassment by "failing to treat plaintiff in the same manner as non-disabled employees, continuously and pervasively harassing MATTIODA over many years (including with respect to evaluations and promotions), and directing adverse treatment against him because of his disability conditions." FAC ¶ 142. The Court is not required to accept conclusory allegations as true. See Iqbal, 556 U.S. at 678-79. Moreover, Plaintiff must do more than "simply recite the elements of a cause of action." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
The FAC alleges a series of remarks by Drs. Lee and Dotson that Plaintiff alleges were harassing. See, e.g., id. ¶¶ 11, 19, 26, 30, 48. Many, if not all, of these alleged remarks have no readily apparent link to Plaintiff's disability. For example, Plaintiff cites as an "example[] of harassment" a conversation in which Dr. Lee allegedly said he did not respect Plaintiff's work and that Dr. Allamondola "is doing all the work for you." FAC ¶¶ 18-20. Another "harassing comment[]" identified by Plaintiff concerns Dr. Lee's statement that Plaintiff should seek labor funding from NASA Headquarters since Plaintiff chose to step down from the Deputy Branch Chief position. Id. ¶ 30. Plaintiff also claims that Dr. Dotson's request that Plaintiff sign a letter rejecting his reconsideration request concerning his performance rating was "harassing because the agency's regulations required Dr. Dotson, not MATTIODA, to sign that form." Id. ¶ 48. In his opposition to the motion to dismiss, Plaintiff does not address the elements of a disability claim or identify where he pleaded facts connecting the allegedly harassing actions and his disability.
Even if Plaintiff had pleaded facts showing a link between the conduct attributed to others and Plaintiff's disability, Plaintiff fails to plead facts establishing a plausible claim that this conduct rose to the level of severe and pervasive conduct. To be actionable harassment, the alleged conduct must be "sufficiently pervasive or severe to alter the conditions of employment and create an abusive working relationship." See Flowers, 247 F.3d at 236. To meet that threshold, a plaintiff must show that "the workplace is permeated with 'discriminatory intimidation, ridicule, and insult.'" Anello, 2019 WL 285197, at *11 (quoting Fowler v. Potter, No. C 06-04716-SBA, 2008 WL 2383073, at *9 (N.D. Cal. June 9, 2008) and Morgan, 536 U.S. 101 at 116)). Courts must "determine whether an environment is sufficiently hostile or abusive by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Anello, 2019 WL 285197, at *11 (quoting Farragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). Again, Plaintiff's opposition to the motion to dismiss does not address or establish whether the FAC plausibly alleges severe and pervasive conduct.
The Court concludes that the FAC fails to adequately allege harassing conduct that is linked to his disability and that is sufficiently pervasive or severe to alter the conditions of employment and create an abusive working relationship. Accordingly, the Court GRANTS WITH LEAVE TO AMEND the motion to dismiss the harassment claims.
3. Claims for reasonable accommodation
Defendant argues that Plaintiff's claims for failure to provide reasonable accommodation based on disability should be dismissed because: (1) Plaintiff's claims for failure to provide reasonable accommodation include allegations about events that occurred prior to July 7, 2015 and for which Plaintiff did not file an EEO claim; and (2) as to the timely claims, Plaintiff failed to plead facts giving rise to a plausible claim for failure to provide reasonable accommodation. Dkt. 18 at 21-22.
a. Timeliness
A claim for failure to provide reasonable accommodation may include only those discriminatory acts that occurred within 45 days prior to the Plaintiff's EEO report. See Yonemoto v. Shulkin, 725 Fed. Appx. 482, 485 (9th Cir. 2018). Several of Plaintiff's claims for reasonable accommodation are based on incidents that occurred more than 45 days before August 21, 2015, i.e., before July 7, 2015. See, e.g., FAC ¶¶ 10, 12, 21, 22-28, 40-41. Accordingly, to the extent the FAC could be construed as bringing claims based on alleged failure to provide reasonable accommodation occurring before July 7, 2015, the motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND.
b. Elements of a claim for failure to provide reasonable accommodation
To state a prima facie case for failure to accommodate a disability, a plaintiff must show that (1) he is disabled, (2) he is a qualified individual who can perform the essential functions of the job position with or without reasonable accommodation, and (3) that a reasonable accommodation is possible. Estell v. McHugh, No. 15-cv-04787-MEJ, 2020 WL 4140819, at *5 (N.D. Cal. Aug. 4, 2016) (citations omitted). A "reasonable accommodation" is defined as "[m]odifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position[.]" Silveria, 2020 WL 820377, at *8 (citing 29 C.F.R. § 1630.2(o)(ii)).
Plaintiff's timely claims for failure to accommodate appear to relate to Plaintiff's request for upgraded travel. See FAC ¶¶ 68, 72. Plaintiff concedes in the FAC that at least one of these travel accommodation requests was granted. Id. ¶ 69-70, 72-77. Plaintiff's complaint appears to be that he was required to provide additional approvals regarding the funds to be used for upgraded travel. Id. However, "[a]n employer is not obligated to provide an employee the accommodation he requests or prefers, the employer need only provide some reasonable accommodation." Zikovic v. So. Cal. Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002). Moreover, "[w]hen accommodation is required to enable the employee to perform the essential functions of the job, the employer has a duty to gather sufficient information from the applicant and qualified experts as needed to determine what accommodations are necessary to enable the applicant to perform the job." Buckingham v. U.S., 998 F.2d 735, 740 (9th Cir. 1993) (internal quotation marks and citation omitted) (emphasis in original). "An accommodation is not reasonable if it results in undue hardship - that is, when it causes 'more than a de minimis cost to the employer'" or other impacts. Hayes v. Potter, No. C-02-0437 VRW, 2006 WL 8448504, at *5 (N.D. Cal. 2006) (quoting Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999)).
Here, Plaintiff's claims for failure to provide reasonable accommodation rely on allegations that Plaintiff was required to provide additional documentation about available funding for his requested travel upgrades. Because cost is a relevant consideration for the agency in determining whether a proposed accommodation is reasonable and not an undue hardship, under the facts of this case, the allegations of the FAC are insufficient to support a claim for failure to provide reasonable accommodation. Accordingly, the Court GRANTS WITH LEAVE TO AMEND the motion to dismiss the claims for failure to provide reasonable accommodation.
4. Claims for reprisal
Defendant argues that Plaintiff's claims for reprisal should be dismissed because: (1) Plaintiff's claims for failure to provide reprisal include allegations about events that occurred prior to July 7, 2015 and for which Plaintiff did not file an EEO claim; and (2) as to the timely claims, Plaintiff failed to plead facts giving rise to a plausible claim for reprisal. Dkt. 18 at 22-24.
a. Timeliness
Under Morgan, claims for reprisal are not subject to the continuing violations doctrine, and instead each retaliatory adverse employment decision concerns a separate actionable unlawful employment practice that must be the subject of a timely complaint. Morgan, 536 U.S. at 114. Accordingly, to the extent the FAC could be construed as bringing claims based on alleged acts of reprisal occurring before July 7, 2015, the motion to dismiss is GRANTED WITHOUT LEAVE TO AMEND.
b. Elements of a claim for reprisal
To state a claim for retaliation, a plaintiff must allege: (1) that he engaged in a protected activity; (2) that he was subsequently subjected to an adverse employment action; and (3) that a causal link exists between the two. Silveria, 2020 WL 820377, at *9 (citing Manatt v. Bank of America, 339 F.3d 792, 800 (9th Cir. 2003)).
With respect to Plaintiff's timely claims for reprisal, he identifies several alleged incidents that he contends were retaliation for his prior EEO complaints, such as the following: (1) Dr. Dotson's imposition of additional requirements for Plaintiff's travel requests in May 2016 (FAC ¶ 74); (2) Dr. Lee's exclusion of Plaintiff from a meeting with Dr. Boersma in February 2017 (id. ¶ 103); (3) Dr. Grossman's "partial response" to Plaintiff's request for funding in December 2017 (id. ¶ 109); (4) Dr. Lee's direction to exclude Plaintiff from a Lab Astro Tour in May 2017 (id. ¶ 117); (5) Plaintiff's exclusion from decisions regarding hiring and postdoctoral candidate selection in June and August 2018 (id. ¶ 135, 138); and (6) Dr. Howell's designation in July 2018 of someone other than Plaintiff as the point of contact for a work package on which Plaintiff was a senior member (id. ¶ 136).
Other than labeling these incidents as retaliatory, Plaintiff does not plead any facts connecting these incidents to his prior protected EEO activity. Accordingly, the Court GRANTS WITH LEAVE TO AMEND the motion to dismiss the claims for reprisal.
C. Failure to Satisfy Rule 8(a)
Defendant also argues that the FAC fails to satisfy the "short and plain statement" requirement of Rule 8(a)(2). Dkt. 18 at 15. Given the history of this case, which involved consolidation of four separate lawsuits and an order that Plaintiff file a consolidated complaint, the Court concludes that the FAC, which consists largely of a chronological recitation of Plaintiff's factual allegations, complies with the requirements of Rule 8(a). However, in a Second Amended Complaint ("SAC"), Plaintiff must consolidate each cause of action and identify supporting paragraphs. For example, whereas the FAC contains four causes of action for reprisal (Counts Three, Six, Nine, and Eleven), the SAC should contain a single cause of action for reprisal that refers to the specific supporting paragraphs. The SAC must similarly consolidate the FAC's multiple causes of action for disability discrimination, harassment, failure to engage in the interactive process, and failure to provide reasonable accommodation into one count for each type of claim, and it must refer to the specific supporting paragraphs for each of those counts.
IV. CONCLUSION
For the foregoing reasons, the Court ORDERS as follows:
1. Defendants' motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction is DENIED.//// //// ////
2. Defendants' motion to dismiss the FAC under Rule 12(b)(6) is DENIED IN PART and GRANTED IN PART.
3. If Plaintiff wishes to attempt to address the deficiencies identified in this order for which he has been granted leave to amend, and if he can do so in compliance with Rule 11 standards, he may file a Second Amended Complaint ("SAC") within 21 days of the date of this order. The SAC must consolidate Plaintiff's duplicative causes of action and provide references to specific supporting paragraphs, as explained in Section III.C. above. The Plaintiff must file as an exhibit to the SAC a redline comparing the FAC and SAC.
4. Following the filing of a SAC, Defendant must file a response within 21 days.
5. If Defendant responds by filing a motion to dismiss the SAC, Plaintiff must file an opposition to that motion within 14 days. Defendant may file a reply within 7 days of the filing of Plaintiff's opposition. The Court will advise the parties if a hearing is necessary.
6. If Defendant responds by filing an answer to the SAC, he must on the same date file a Notice of Need for Case Management Conference.
SO ORDERED. Dated: January 8, 2021
/s/_________
SUSAN VAN KEULEN
United States Magistrate Judge