Nahmens v. Vilsack

• Court: District Court, E.D. California
• Decided: March 29, 2024
• Docket: 2:22-cv-01039
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CATHERINE NAHMENS, No. 2:22-cv-01039-TLN-JDP 12 Plaintiff, 13 v. ORDER 14 THOMAS VILSACK, SECRETARY OF AGRICULTURE AND MERIT 15 SYSTEMS PROTECTION BOARD, 16 Defendants. 17 18 This matter is before the Court on Defendants Thomas Vilsack, Secretary of the United 19 States Department of Agriculture (“Vilsack”), and the Merit Systems Protection Board’s 20 (“MSPB”) (collectively, “Defendants”) Motion to Dismiss. (ECF No. 10.) Plaintiff Catherine 21 Nahmens (“Plaintiff”) filed an opposition. (ECF No. 13.) Defendants filed a reply. (ECF No. 22 14.) For the reasons set forth below, the Court GRANTS Defendants’ Motion to Dismiss. (ECF 23 No. 10.) 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 This case concerns alleged employment discrimination and retaliation based on gender, 3 disability, and veteran status. Plaintiff identifies as a disabled Caucasian woman in her forties 4 and a veteran of the United States Army. (ECF No. 8 at 2–3.) She began working with the 5 United States Department of Agriculture (“USDA”) in November 2016 as a Farmer Loan Officer 6 Trainee. (Id. at 4.) 7 In July 2018, Plaintiff requested an accommodation because she suffered from post- 8 traumatic stress disorder, insomnia, and anxiety from her service in the Army. (Id. at 4–5.) 9 Plaintiff alleges her supervisor, Ehab El Liessy (“El Liessy”), did not believe she suffered from 10 any ailments and requested documentation from her physician to obtain any accommodations. 11 (Id. at 6.) Plaintiff complied and produced a letter from a physician appointed by the Veteran’s 12 Administration. (Id.) Upon receiving the letter in December 2018, El Liessy permitted Plaintiff 13 to start and end work late to make up any hours she lost attending appointments. (Id.) Plaintiff 14 was promoted to Farm Loan Officer the following year. (Id. at 7.) 15 In early 2020, El Liessy ordered Plaintiff to take a debt settlement application to two 16 farmers who allegedly had an existing agreement with Plaintiff to pay off their remaining debt 17 through treasury offset payments and forwarded an email from the “State Office”1 which read, 18 “Lupe re-open special servicing and complete the 2580 review.” (Id.) According to Plaintiff, 19 both tasks were her co-worker Lupe’s duties, not hers, and Plaintiff refused to perform them. (Id. 20 at 7–8.) El Liessy subsequently suspended Plaintiff for insubordination. (Id.) 21 At some later point, Plaintiff emailed the “State Office,” copying El Liessy, to clarify that 22 Morais already had an existing agreement in place to pay off their remaining debt that El Liessy 23 already approved. (Id. at 8.) Plaintiff alleges El Liessy was irate and immediately called her, 24 yelling “Why would you disrespect me like that? Is that what they taught you in the military? 25 Now the State Office thinks I don’t know what I am doing. How can you undermine my 26 authority? I’m going to make your life very difficult.” (Id.) 27 1 Plaintiff does not identify “State Office.” 28 1 Shortly after their phone call, El Liessy revoked Plaintiff’s disability accommodation and 2 no longer permitted her to start and end work late to make up any hours she lost attending 3 appointments. (Id. at 9.) Plaintiff alleges El Liessy revoked her accommodation “without 4 discussion or interactive process.” (Id.) Plaintiff appealed her suspension and filed a complaint 5 with the United States Equal Employment Opportunity Commission (“EEOC”), alleging a hostile 6 work environment, discrimination, and retaliation based on gender, veteran status, and disability. 7 (Id. at 9, 11.) Plaintiff’s appeal was denied, and she served her suspension in May 2020. (Id. at 8 11.) 9 In July 2020, Plaintiff began teleworking full-time in light of the COVID-19 pandemic but 10 was out for six weeks after having surgery on her shoulder. (Id. at 12.) Upon returning from her 11 leave of absence, Plaintiff alleges USDA gave her a limited accommodation that permitted her to 12 have a flexible start time but denied her other accommodation requests. (Id.) 13 A few months later, Plaintiff requested advanced sick leave and provided a note from her 14 physician. (Id.) USDA rejected her sick leave request because her doctor’s note was allegedly 15 not from a qualifying physician. (Id.) Plaintiff then filed her second EEOC complaint in 16 November 2020, alleging harassment, discrimination, and retaliation based on veteran status, 17 disability, and gender. (Id. at 13.) The following month, Plaintiff alleges USDA approved her 18 advanced sick leave request without a doctor’s note. (Id.) This cycle — Plaintiff requesting 19 advanced sick leave with a doctor’s note and USDA rejecting the doctor’s note — continued over 20 the next several months and culminated in Plaintiff filing her third EEOC complaint, alleging 21 similar violations. (Id.) EEOC dismissed all three of Plaintiff’s complaints, and Plaintiff did not 22 appeal the dismissals. (Id. at 16–17.) 23 On February 14, 2022, USDA placed Plaintiff on paid administrative leave and told her 24 that she was being proposed for termination. (Id. at 14.) Plaintiff alleges she received a notice of 25 her proposed removal with references to the regulations she supposedly violated but avers the 26 notice was deficient. (Id.) Specifically, Plaintiff alleges the notice was overinclusive and 27 underinclusive, referencing nonexistent federal regulation sections and sections Plaintiff did not 28 violate. (Id. at 14–15.) 1 On March 18, 2022, Plaintiff received a notice of termination, ending her employment 2 with USDA. (Id. at 16.) Plaintiff unsuccessfully appealed USDA’s termination decision to 3 MSPB and filed her initial Complaint against Defendants on June 14, 2022. (Id.; ECF No. 1.) 4 On May 12, 2023, Plaintiff filed her First Amended Complaint (“FAC”), alleging four causes of 5 action: (1) harassment, discrimination, and retaliation in violation of Title VII of the Civil Rights 6 Act of 1964 (42 U.S.C. § 2000e et seq.) (“Title VII”); (2) harassment, discrimination, and 7 retaliation in violation of the Rehabilitation Act of 1973 (29 U.S.C. § 791); (3) employment 8 discrimination in violation of the Uniformed Services Employment and Reemployment Act (38 9 U.S.C. § 4301 et seq.) (“USERRA”); and (4) violation of due process under the Fourteenth 10 Amendment. (ECF No. 8.) 11 Defendants filed the instant motion to dismiss the FAC under Federal Rules of Civil 12 Procedure (“Rule” or “Rules”) 12(b)(1) and 12(b)(6) on May 26, 2023.2 (ECF No. 10.) Plaintiff 13 filed an opposition and Defendants filed a reply. (ECF Nos. 13–14.) 14 II. STANDARD OF LAW 15 A. Federal Rule of Civil Procedure 12(b)(6) 16 A motion to dismiss for failure to state a claim upon which relief can be granted under 17 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 18 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 19 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 20 U.S. 662, 677–78 (2009). Under notice pleading in federal court, the complaint must “give the 21 defendant fair notice of what the … claim is and the grounds upon which it rests.” Bell Atlantic v. 22 Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotations omitted). “This simplified 23 notice pleading standard relies on liberal discovery rules and summary judgment motions to 24 define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema 25 N.A., 534 U.S. 506, 512 (2002). 26 2 Defendants do not specify which claims they seek to dismiss pursuant to Rule 12(b)(6) 27 and which claims they seek to dismiss pursuant to Rule 12(b)(1). Because the Court dismisses Plaintiff’s claims pursuant to Rule 12(b)(6), however, the Court declines to address Defendants’ 28 Rule 12(b)(1) motion. 1 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 2 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 3 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 4 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 5 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 6 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 7 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 8 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 9 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 10 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 11 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 12 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 13 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 14 statements, do not suffice.”). Thus, “[c]onclusory allegations of law and unwarranted inferences 15 are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355 16 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 17 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 18 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 19 Council of Carpenters, 459 U.S. 519, 526 (1983). 20 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 21 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 22 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 23 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 24 680. While the plausibility requirement is not akin to a probability requirement, it demands more 25 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 26 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 27 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 28 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 1 dismissed. Id. at 680 (internal quotations omitted). 2 In ruling on a motion to dismiss, a court may consider only the complaint, any exhibits 3 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 4 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 5 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998); see also Daniels- 6 Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (the court need not accept as true 7 allegations that contradict matters properly subject to judicial notice). 8 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 9 amend even if no request to amend the pleading was made, unless it determines that the pleading 10 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 11 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); 12 see also Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 13 denying leave to amend when amendment would be futile). Although a district court should 14 freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to 15 deny such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint.” 16 Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting 17 Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)). 18 III. ANALYSIS 19 Defendants move to dismiss MSPB from this action and move to dismiss Plaintiff’s 20 USERRA and due process claims for lack of jurisdiction. (ECF No. 10-1 at 4–7.) The Court will 21 first address Defendants’ arguments to dismiss Plaintiff’s USERRA and due process claims 22 before turning to the propriety of MSPB as a party to this action. 23 A. USERRA Claim 24 USERRA prohibits employment discrimination based on military status. 38 U.S.C. § 25 4311. Plaintiff alleges Defendants harassed, discriminated, and retaliated against her because she 26 was an Army veteran in violation of USERRA. (ECF No. 8 at 21–22.) 27 A plaintiff seeking to litigate a USERRA claim in federal court must first exhaust their 28 administrative remedies. See Wilborn v. Johnson, 592 Fed. Appx. 571, 572 (9th Cir. 2015); Dew 1 v. U.S., 192 F.3d 366, 372 (2d Cir. 1999) (“Section 4324 does not authorize a private USERRA 2 action against the Federal Government, as an employer, in federal district court; rather, it confers 3 jurisdiction upon [MSPB].”). Federal employees who raise allegations of discrimination based on 4 military or veteran status against their federal agency employer may exhaust their administrative 5 remedies by presenting their claims to MSPB, the Secretary of Labor, or an agency inspector 6 general, see Pickett v. Brennan, No. 19-5170, 2020 WL 873526, at *1 (D.C. Cir. Feb. 13, 2020), 7 and appealing any adverse decision to the Federal Circuit, Yates v. Merit Sys. Protec. Bd., 145 8 F.3d 1480, 1483–84 (Fed. Cir. 1998). 9 Defendants contend Plaintiff’s USERRA claim must be dismissed because she failed to 10 exhaust her administrative remedies by not presenting her claim to MSPB. (ECF No. 10-1 at 4– 11 5.) Plaintiff disagrees and argues she made clear in her EEOC complaints and MSPB filing that 12 she was discriminated against because of her veteran status and therefore properly “presented her 13 claim of discrimination, harassment and retaliation based on veteran’s status to both the EEO and 14 the MSPB.” (ECF No. 13 at 10–11.) To support her position, Plaintiff quotes from a portion of 15 MSPB’s decision that states the issues to be decided are, among other issues, “Whether the 16 appellant proved by a preponderance of the evidence that the decision to remove her was 17 retaliation for protected Equal Employment Opportunity (EEO) activity.” (Id. at 11; see also 18 ECF No. 10-5) 19 The Court agrees with Defendants and finds Plaintiff has failed to demonstrate she 20 exhausted her administrative remedies. Plaintiff does not allege she presented her USERRA 21 claim directly to MSPB. Instead, Plaintiff contends her USERRA claim was included in her 22 EEOC complaints, and MSPB’s reference to those complaints in determining whether USDA 23 lawfully terminated her is sufficient to exhaust her administrative remedies. (See ECF No. 13 at 24 10–11.) This contention is untenable. Plaintiff’s claim of discrimination based on military status 25 under USERRA is not something she could have raised in an EEOC complaint. Guli v. United 26 States Attorney’s Off. of the N. Dist. of California, No. 3:15-CV-03307-LB, 2015 WL 7759488, 27 at *3 (N.D. Cal. Dec. 2, 2015) (recognizing EEOC complaints cover Title VII, Rehabilitation Act, 28 and Age Discrimination claims but not USERRA claims). Therefore, EEOC could not have 1 considered Plaintiff’s USERRA claim, much less MSPB. But even if EEOC adequately 2 considered Plaintiff’s USERRA claim in her EEOC complaints, it does not follow that she 3 properly presented her claim to MSPB in the first instance. To properly present her claim, 4 Plaintiff must have submitted her USERRA claim directly to MSPB, the Secretary of Labor, or 5 USDA’s inspector general for adjudication, not EEOC. See Yates, 145 F.3d at 1483; Pickett, 6 2020 WL 873526, at *1. Moreover, Plaintiff does not allege she appealed any decision to the 7 Federal Circuit. See Yates, 145 F.3d at 1483–84 (adverse determinations by MSPB are appealed 8 to the Federal Circuit); Wilborn, 592 Fed. Appx. at 572 (USERRA claims against the federal 9 government must be presented to MSPB with right to appeal to Federal Circuit). 10 Accordingly, the Court DISMISSES Plaintiff’s USERRA claim with leave to amend. See 11 Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009) (“Courts are free to grant a party 12 leave to amend whenever justice so requires, and request for leave should be granted with 13 extreme liberality.”). Any amended USERRA claim must allege that Plaintiff exhausted her 14 administrative remedies in accordance with 38 U.S.C. §§ 4322, 4324–25 or other applicable law. 15 B. Due Process Claim 16 Plaintiff’s fourth cause of action is a due process claim under the Fourteenth Amendment, 17 seeking compensatory damages and equitable relief. (ECF No. 8 at 22–24.) Defendants argue 18 this claim should be dismissed because, among other things, the Fourteenth Amendment does not 19 apply to the Federal Government. (ECF No. 10-1 at 5.) Plaintiff concedes this point and admits 20 she erroneously cited the Fourteenth Amendment instead of the Fifth Amendment and requests 21 leave to amend this claim. (ECF No. 13 at 11.) Defendants contend granting leave to amend 22 would be futile here because: (1) the Federal Government is immune from suit where damages 23 are sought for alleged constitutional violations, (2) the Civil Service Reform Act is the exclusive 24 remedy for addressing prohibited personnel actions, and (3) Plaintiff cannot state a claim for 25 relief. (ECF No. 14 at 3.) The Court agrees. 26 It is well established that the Fourteenth Amendment does not apply to the Federal 27 Government. D.C. v. Carter, 409 U.S. 418, 424 (1973) (actions of the Federal Government and 28 its officers are beyond the purview of the Fourteenth Amendment). But even under the Fifth 1 Amendment, a party may not sue the Federal Government seeking damages for alleged 2 constitutional violations unless there has been an affirmative, unequivocal waiver of sovereign 3 immunity. See Thomas-Lazear v. F.B.I., 851 F.2d 1202, 1207 (9th Cir. 1988) (recognizing the 4 long-held principle that unless the United States waives its sovereign immunity, it is immune 5 from suit in actions seeking money damages for constitutional violations); U. S. v. Testan, 424 6 U.S. 392, 399 (1976) (waiver of sovereign immunity must be unequivocally expressed). Plaintiff 7 does not allege or argue the United States waived its immunity nor does the Court find it has. 8 Moreover, even if Plaintiff only seeks equitable relief from the Court, Plaintiff fails to address 9 Defendants’ arguments that her alleged due process violations are insufficient to state a claim as a 10 matter of law. Thus, the Court finds Plaintiff has abandoned the argument, see Walsh v. Nevada 11 Dep’t of Hum. Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (failure to raise an issue in an opposition 12 constitutes abandonment), and any amendment would be futile, Theme Promotions, Inc. v. News 13 Am. Mktg. FSI, 546 F.3d 991, 1010 (9th Cir. 2008) (leave to amend will not be granted where an 14 amendment would be futile). 15 Accordingly, the Court DISMISSES Plaintiff’s due process claim without leave to amend. 16 C. MSPB 17 Plaintiff also alleges discrimination under Title VII and seeks review of MSPB’s decision 18 to uphold her termination. (ECF No. 8 at 17–20, 24; ECF No. 13 at 9–10.) Defendants seek to 19 dismiss MSPB from this action, arguing Vilsack is the only proper defendant. (ECF No. 10-1 at 20 4.) As will be discussed, the Court agrees.3 21 Under 5 U.S.C. § 7703(a)(1), an “employee … adversely affected or aggrieved by a final 22 order or decision of the [MSPB] may obtain judicial review of the order or decision.” In such a 23 case, MSPB “shall be named respondent in any proceeding brought pursuant to this subsection, 24 unless the employee … seeks review of a final order or decision on the merits on the underlying 25 personnel action or on a request for attorney fees, in which case the agency responsible for taking 26 3 Defendants seek to dismiss MSPB from this entire action, but the parties do not discuss 27 the propriety of Plaintiff’s second, third, and fourth causes of action against MSPB. Nevertheless, the Court finds Defendants have made a sufficient showing that MSPB should be 28 dismissed, and Plaintiff does not argue MSPB should remain in this action as to those claims. 1 the personnel action shall be the respondent.” Id. § 7703(a)(2) (emphasis added). Likewise, a 2 plaintiff may bring a case of discrimination under Title VII where the head of the agency must be 3 named as the defendant. Id. § 7703(b)(2) (permitting cases of discrimination to be filed under 4 Title VII); 42 U.S.C. § 2000e-16(c) (“[I]f aggrieved by the final disposition of his complaint, or 5 by the failure to take final action on his complaint, [the employee] may file a civil action as 6 provided in section 2000e–5 of this title, in which civil action the head of the department, agency, 7 or unit, as appropriate, shall be the defendant.”) 8 In the instant case, Plaintiff alleges discrimination under Title VII and challenges MSPB’s 9 decision that upheld her termination from USDA. (ECF No. 8 at 17–20, 24; ECF No. 13 at 9– 10 10.) While Plaintiff may bring such an action in this Court, she must do so against the head of the 11 agency responsible for terminating her, Vilsack, and not MSPB. See 5 U.S.C. § 7703(a)(1)– 12 (a)(2), (b)(2); 42 U.S.C. § 2000e-16(c). 13 Accordingly, the Court DISMISSES MSPB from this action. 14 IV. CONCLUSION 15 For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss (ECF No. 16 10) as follows: 17 • The Court DISMISSES Plaintiff’s USERRA claim with leave to amend; 18 • The Court DISMISSES Plaintiff’s due process claim without leave to amend; and 19 • The Court DISMISSES MSPB from this action without leave to amend. 20 Plaintiff may file an amended complaint not later than thirty (30) days after the electronic 21 filing date of this Order. Defendant(s) shall file any responsive pleading not later than twenty- 22 one (21) days from the electronic filing date of Plaintiff’s amended complaint. 23 If Plaintiff opts not to file an amended complaint, this action will proceed on Plaintiff’s 24 Title VII and Rehabilitation Act claims in the FAC against Vilsack. Vilsack shall file an answer 25 not later than twenty-one (21) days from Plaintiff’s deadline to file an amended complaint. 26 /// 27 /// 28 /// Nf 1 IT IS SO ORDERED. “ Lu 2 | Date: March 29, 2024 □□ 3 United States District Judge 4 5 6 7 8 9 10

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28