Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Massey-Nino v. Donovan

United States District Court, D. Oregon

August 10, 2014

SHAUN DONOVAN, Secretary, U.S. Department of Housing and Urban Development, Defendant.

Barbara Massey-Nino, Reedsport, Oregon, Pro se plaintiff.

S. Amanda Marshall, Ronald K. Silver, United States Attorneys Office, Portland, Oregon, Attorneys for defendant.


ANN AIKEN, Chief District Judge.

Defendant Shaun Donovan, Secretary of the United States Department of Housing and Urban Development ("HUD"), moves to dismiss plaintiff Barbara Massey-Nino's complaint pursuant to Fed.R.Civ.P. 12(b) (6). For the reasons discussed below, defendant's motion is granted and this case is dismissed.


At all relevant times, plaintiff was employed by HUD as a Marketing Specialist. She allegedly underwent extreme job-related stress due to marketing a non-existent product and then subjected to harassment by her supervisors, resulting in permanent mental and physical disabilities. On October 17, 2005, plaintiff was "constructive[ly] discharged." Compl. pg. 3; see also Def.'s Mem. in Supp. of Mot. Dismiss Ex. 2, at 1.[1] On August 5, 2006, plaintiff retired from her position with HUD.

On October 20, 2012, plaintiff submitted a letter to the United States Department of Labor, stating that "[t]here are extenuating circumstances to my delay" in filing a discrimination complaint against defendant, although she stipulated to being "now well-enough... to address this claim." Compl. pgs. 22. On June 12, 2013, plaintiff lodged "an informal complaint of discrimination" with the EEOC. Id. at pgs. 3, 18. On July 17, 2013, plaintiff engaged in unsuccessful settlement efforts with an EEOC Counselor. On September 19, 2013, plaintiff filed a formal EEOC claim. On January 10, 2014, the EEOC issued a final decision, dismissing plaintiff's complaint as untimely, under 29 C.F.R. § 1614.107(a)(2), because she neglected to initiate contact with an EEOC Counselor within 45 days of the date of the alleged discrimination with no extenuating circumstances.

On February 6, 2014, plaintiff commenced a lawsuit in this Court alleging discrimination based on age and disability, as well as retaliation and constructive discharge, under Section 504 of the Rehabilitation Act. As relief, plaintiff requests $3.5 million in damages. On July 1, 2014, defendant moved to dismiss plaintiff's complaint for failure to exhaust administrative remedies.


Where the plaintiff "fails to state a claim upon which relief can be granted, " the court must dismiss the action. Fed.R.Civ.P. 12 (b) (6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). For purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters , 719 F.2d 1422, 1424 (9th Cir. 1983). Bare assertions, however, that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal , 556 U.S. 662, 681 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).


This dispute hinges on whether plaintiff properly exhausted her administrative remedies through timely consultation with the EEOC. "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. Dep't of State , 105 F.3d 548, 550 (9th Cir. 1997) (citation omitted). In the present context, a federal employee must bring a discrimination complaint to the attention of an EEOC Counselor within 45 days of the alleged discriminatory action. Id. at 550-51; see also 29 C.F.R. § 1614.105(a) (1); 29 C.F.R. § 1614.107(a)(2).

Nevertheless, the 45-day time "requirement that a claim of discrimination in violation of the Rehabilitation Act be timely filed with an agency is subject to the doctrine of equitable tolling." Leorna , 105 F.3d at 551; see also 29 C.F.R. § 1614.105(a) (2). "Absent waiver, estoppel, or equitable tolling, failure to comply with [the 45 day] regulation is fatal to a federal employee's discrimination claim." Kraus v. Presidio Trust Facilities Div. , 572 F.3d 1039, 1043 (9th Cir. 2009) (citations and internal quotations omitted); see also Cherosky v. Henderson , 330 F.3d 1243, 1245 (9th Cir. 2003) ("[f]ailure to comply with [29 C.F.R. § 1614.105] is fatal to a federal employee's discrimination claim") (citation and internal quotations omitted).

It is undisputed that plaintiff first contacted the EEOC outside of the requisite time frame. Initially, however, plaintiff contends that "[e]xhaustion of administrative remedies is not required" and, even if it were, such attempts would have been futile as evidenced by "the government's failure to address [her] claims in any substantive way." Pl.'s Resp. to Mot. Dismiss 1.[2] Contrary to plaintiff's assertion, it is well-established that a federal employee seeking redress under the Rehabilitation Act is required to exhaust his or her administrative remedies prior to seeking recourse in federal court. Cherosky , 330 F.3d at 1245; 29 C.F.R. § 1614.105(a) (1); 29 C.F.R. § 1614.107(a) (2). Indeed, "every circuit court to address the issue directly has determined that a federal employee who brings an action under the Rehabilitation Act must exhaust administrative remedies." Bartlett v. Dep't of the Treasury (I.R.S.) , 749 F.3d 1, 8 (1st Cir. 2014) (collecting cases). Furthermore, plaintiff could not have been aware of the United States government's alleged indifference to her rights unless ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.