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Heimrich v. Department of Army

United States District Court, D. Oregon, Portland Division

April 20, 2018

GARRY HEIMRICH, Plaintiff,
v.
DEPARTMENT OF THE ARMY and MARK T. ESPER, Secretary of the Army sued in his official capacity, Defendants. Shelley D. Russell CRISPIN EMPLOYMENT LAWYERS 1834 S.W. 58th Avenue, Suite 200 Portland, Oregon 97221-1455 Shaun Yancey MELVILLE JOHNSON, P.C. 22 Seventh Street NE Atlanta, Georgia 30308-1116 Attorneys for Plaintiff

          OPINION & ORDER

          MARCO A. HERNÁNDEZ United States District Judge.

         Plaintiff Garry Heimrich brings this case against the Department of the Army and Mark T. Esper in his official capacity as Secretary of the Army.[1] Specifically, Plaintiff alleges that Defendants improperly dismissed his formal Equal Employment Opportunity complaint of discrimination. Plaintiff seeks declaratory and injunctive relief, remand of the matter for further administrative proceedings, and reasonable attorney's fees and court costs. Defendants move to dismiss Plaintiff's claims for failure to state a claim and lack of subject matter jurisdiction. The Court grants the motion.

         BACKGROUND

         At the time of the events giving rise to this action, Plaintiff worked as a Power Plant Mechanic for the United States Army Corps of Engineers, Northwest Division, Pacific Region (“Army Corps”). Compl. ¶¶ 1, 14, 16, ECF 1. While employed by the Army Corps, Plaintiff was a union member of the United Power Trades Organization (“UPTO”). Id. at ¶ 24. The collective bargaining agreement (“CBA”) between the UPTO and the Army Corps provided procedures for Plaintiff to raise allegations of discrimination in a grievance. Id. at ¶ 31.

         On July 26, 2016, the Army Corps terminated Plaintiff's employment, citing disruptive conduct, insubordination, unexcused absences, noncompliance with rules, and unsatisfactory work performance. Id. at ¶ 30; Hager Decl. Ex. 8, ECF 16. On August 10, 2016, the UPTO filed a union grievance on Plaintiff's behalf, challenging Plaintiff's termination as discriminatory and retaliatory. Compl. ¶ 31. On September 7, 2016, the Army Corps upheld the termination decision. Hager Decl. Ex. 10. On September 19, 2016, the UPTO submitted the grievance to the next level. Id. at Ex. 11. The UPTO withdrew from the grievance process on November 9, 2016. Id. at Ex. 13.

         After the UPTO had filed the union grievance, Plaintiff filed a formal Equal Employment Opportunity (“EEO”) complaint with the Army Corps, challenging his termination as discriminatory and retaliatory. Compl. ¶ 32. On October 13, 2016, the Army Corps dismissed the EEO complaint because Plaintiff previously elected to proceed under the negotiated grievance process. Id. at ¶ 33. Plaintiff appealed the dismissal to the Equal Employment Opportunity Commission (“EEOC”), which affirmed the decision. Id. at ¶ 34. On October 12, 2017, Plaintiff filed the present action. See Compl.

         STANDARDS

         I. Rule 12(b)(6) - Failure to State a Claim

         A motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6) addresses the sufficiency of a claim. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal for failure to state a claim is appropriate only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); see also Am. Family Ass'n, Inc. v. City & Cnty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002) (“All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.”). However, the court need not accept unsupported conclusory allegations as truthful. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (“[W]e are not required to accept as true conclusory allegations which are contradicted by documents referred to in the complaint, and we do not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations”) (internal quotation marks and alterations omitted).

         A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” for “entitlement to relief” with nothing “more than label and conclusions, and a formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]” Id. (citations and footnote omitted).

         To survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[, ]” meaning “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Additionally, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. A complaint must contain “well-pleaded facts” which “permit the court to infer more than the mere possibility of misconduct[.]” Id.

         II. Rule 12(b)(1) - Lack of Subject Matter Jurisdiction

         A motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(1) addresses the court's subject matter jurisdiction. A Rule 12(b)(1) jurisdictional attack may be “facial” or “factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a “facial” attack, the moving party asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. Id. A district court resolves facial attacks as it would under Rule 12(b)(6), where the court must accept all material facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Leite v. Crane Co., 749 F.3d 1117, 1119 (9th Cir. 2014). In a “factual” attack, the moving party disputes factual allegations and may introduce evidence to support their motion. Id.; see also Dreier v. U.S., 106 F.3d 844, 847 (9th Cir. 1996) (a challenge to the court's subject matter jurisdiction under Rule 12(b)(1) ...


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