United States District Court, D. Oregon, Portland Division
Scott P. Monfils, William Greg Lockwood, Hitt Hiller & Monfils LLP, Portland, Oregon, Attorneys for Plaintiff.
S. Amanda Marshall, United States Attorney, District of Oregon, James E. Cox, Jr., Assistant United States Attorney, Portland, Oregon, Attorneys for Defendants.
OPINION AND ORDER
GARR M. KING, District Judge.
The Bonneville Power Administration ("BPA") employed plaintiff Lisa Gang for many years as a GS-12 Contract Specialist. Gang applied for four job openings within her group, all of which would have been promotions, but was selected for none of them. Gang believes she was not selected due to age and sex discrimination, retaliation for filing EEO complaints, and whistleblowing about illegal hiring practices, waste, and inefficiencies. She alleges claims under the Age Discrimination in Employment Act ("ADEA"), Title VII, and the federal Whistleblower Protection Act. Before the court is Defendants' Motion to Dismiss  some of the claims. For the reasons below, I grant the motion in its entirety.
Gang applied for promotions into four positions - #8242-10, #9363-11, #XXXXXX-XX, and #200426-13-but was not selected for any of them. She applied for #8242-10 in September 2010 and was notified she was not selected in December 2010. Gang contacted an EEO Counselor in January 2011 but did not file a complaint at that time.
Gang applied for #9363-11 in September 2011; the opening was cancelled on September 4, 2012.
Gang contacted an EEO Counselor and filed EEO Complaint #12-0170 on November 18, 2012 concerning #8242-10 and #9363-11. She alleged discrimination based on race, color, national origin, sex, age, and in retaliation for prior EEO activity.
On March 12, 2013, Gang filed a second EEO Complaint, #13-0041, alleging discrimination based on race, disability, and in retaliation for prior EEO activity.
Position #XXXXXX-XX was posted in June 2013; Gang applied and was not selected. On an unspecified date in 2013, Gang applied for position #XXXXXX-XX and was not selected.
Together, the two EEO Complaints contained over 100 pages of allegations and 2, 000 pages of exhibits. The Administrative Judge ("AJ") held a status conference to discuss the scope of the consolidated Complaints, the need for an Acceptance Letter from the agency, an investigation, and deadlines. On August 20, 2013, the AJ issued an order commenting on Gang's perilously close abuse of the EEO system due to the voluminous nature of her Complaints. In the Order, the AJ withdrew his previous requirement for Gang to amend the consolidated EEO Complaints to more precisely state the claims because, on further review of the file, the AJ found the agency had sufficiently summarized the claims. Nevertheless, Gang's counsel filed a much shorter consolidated Complaint on August 31, 2013 alleging discrimination in the selection of positions #8242-10, #9363-11, #XXXXXX-XX, and #XXXXXX-XX because Gang is a woman, she is Korean, she took medical leave, and in retaliation for contacting the EEO office.
The plaintiff has the burden of proving subject matter jurisdiction if defendant challenges it in a motion to dismiss under Federal Rule of Procedure 12(b)(1). Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1197 (9th Cir. 2008).
An argument claiming lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) may be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id . In a factual attack, the court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. Furthermore, the court is not required to presume the truthfulness of the allegations. The party opposing the motion must furnish evidence necessary to satisfy its burden of establishing subject matter jurisdiction. Id . Thus, "[w]here the jurisdictional issue is separable from the merits of the case, the judge may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving factual disputes if necessary." Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). But if the resolution of the jurisdictional question depends on factual issues going to the merits, the court must use the standard applicable to a summary judgment motion and determine if there is a genuine factual issue for trial. Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005).
Here, the jurisdictional questions do not depend on factual issues going to the merits. Thus, I may consider evidence and resolve factual disputes. I will, however, consider the doctrines of equitable estoppel and equitable tolling using the summary judgment standard and view the facts in the light most favorable to Gang. See Rodriguez v. Airborne Express, 265 F.3d 890, 902 (9th Cir. 2001) (trier of fact must resolve disputed factual issues to determine if the plaintiff is entitled to equitably excuse his failure to exhaust his discrimination claim).
Summary judgment is appropriate when there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a). The initial burden is on the moving party to point out the absence of any genuine dispute of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains a fact dispute to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the court "must view the evidence on summary judgment in the light most favorable to the non-moving party ...