United States District Court, D. Oregon
Ann Creighton Michael E. Rose CREIGHTON & ROSE, PC Powers
Building Attorneys for Plaintiff
Schweiner U.S. ATTORNEY'S OFFICE - DISTRICT OF OREGON
Civil Division Attorney for Defendant
OPINION & ORDER
A. HERNÁNDEZ United States District Judge.
Janice Grounds brings this employment discrimination action
against Defendants United States of America, acting by and
through the Department of Energy and the Bonneville Power
Administration (“BPA”); and Rick Perry, Secretary
of the Department of Energy. Plaintiff alleges discrimination
based on gender under Title VII of the Civil Rights Act of
1964 and Oregon's analogous statute, Oregon Revised
Statute § (“O.R.S.”) 659A.030(1)(b).
Plaintiff also alleges a violation of the Equal Pay Act, 29
U.S.C. § 206(d).
move to dismiss Plaintiff's complaint for lack of subject
matter jurisdiction. The Court grants Defendants' motion
and dismisses Plaintiff's case.
February 4, 2012, Plaintiff began working at BPA, a federal
non-profit agency which is part of the United States
Department of Energy. Compl. ¶¶ 4-5, ECF 1. She
alleges that she was discriminated against in the terms and
conditions of her employment and was not promoted because she
is a woman. Id. at ¶ 22. She also alleges that
she was paid less than her male counterparts. Id. at
Complaint alleges that she was hired, employed, and paid by
BPA. Compl. ¶¶ 3-7. However, in a declaration
attached to her Opposition to Defendants' Motion to
Dismiss, Plaintiff declares that her employer is Flux, a
temporary agency that paid her for her work at BPA. Grounds
Decl. Dec. 28, 2018 (“Grounds Decl.”)
¶¶ 6, 11, ECF 28. For the purposes of this Opinion,
the Court assumes that Plaintiff alleges that both BPA and
Flux are her employers.
Subject Matter Jurisdiction
motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(1) addresses the court's subject matter
jurisdiction. The party asserting jurisdiction bears the
burden of proving that the court has subject matter
jurisdiction over her claims. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994). A Rule
12(b)(1) motion may attack the substance of the
complaint's jurisdictional allegations even though the
allegations are formally sufficient. See Corrie v.
Caterpillar, Inc., 503 F.3d 974, 979-80 (9th Cir. 2007)
(court treats motion attacking substance of complaint's
jurisdictional allegations as a Rule 12(b)(1) motion);
Dreier v. United States, 106 F.3d 844, 847 (9th Cir.
1996) (“[U]nlike a Rule 12(b)(6) motion, a Rule
12(b)(1) motion can attack the substance of a complaint's
jurisdictional allegations despite their formal
sufficiency[.]”) (internal quotation omitted).
Additionally, the court may consider evidence outside the
pleadings to resolve factual disputes. Robinson v. United
States, 586 F.3d 683, 685 (9th Cir. 2009); see also
Dreier v. United States, 106 F.3d 844, 847 (9th Cir.
1996) (a challenge to the court's subject matter
jurisdiction under Rule 12(b)(1) may rely on affidavits or
any other evidence properly before the court). “No
presumptive truthfulness attaches to plaintiff's
allegations.” Id. at 685 (internal quotation
omitted). “Once challenged, the party asserting subject
matter jurisdiction has the burden of proving its
existence.” Rattlesnake Coal. v. E.P.A., 509
F.3d 1095, 1102 n. 1 (9th Cir. 2007).
Title VII Claim
argue that Plaintiff failed to exhaust her administrative
remedies and, thus, this Court lacks subject matter
jurisdiction over her Title VII gender discrimination claim.
The Court agrees.
bringing a Title VII claim, a federal employee must first
exhaust all administrative remedies. 42 U.S.C. §
2000e-16(c); Sommatino v. United States, 255 F.3d
704, 707-708 (9th Cir. 2001). Under the Title VII statutory
and regulatory scheme, a federal employee must notify an
Equal Employment Opportunity (“EEO”) Counselor of
discriminatory conduct within 45 days of the alleged conduct.
Id.; 29 C.F.R. § 1614.105(a)(1); see also
Kerr v. Jewell, 836 F.3d 1048, 1054 (9th Cir. 2016). If
the matter is not resolved by the counselor, the employee may
file a formal discrimination complaint with the agency's
EEO office. See Kerr, 836 F.3d at 1054 (citing 29
C.F.R. §§ 1614.105(d), 1614.106(a)). When the EEO
office issues a final decision, the employee has the right to
appeal the decision to the EEOC or file a civil action in
federal district court. Id.
VII's regulatory deadlines for administrative exhaustion
are not a jurisdictional requirement; rather, they are
conditions precedent to filing an action which are subject to
waiver, estoppel, or equitable tolling. Sommatino,
255 F.3d at 708; 29 C.F.R. § 1614.604. However,
“substantial compliance with the presentment of
discrimination complaints to an appropriate administrative
agency is a jurisdictional prerequisite” to a
Title VII claim. Id. The district court does not
have subject matter jurisdiction in “cases where a
plaintiff has never presented a discrimination complaint to
the appropriate administrative authority.” Id.
(citing Blank v. Donovan, 780 F.2d 808, 809 (9th
Cir. 1986); Scott v. Perry, 569 F.2d 1064, 1065-66
(9th Cir. 1978)).
does not contend that waiver, estoppel, or equitable tolling
apply to excuse her from compliance with §1614.05.
Pl.'s Resp. Defs.' Mot. Dismiss 6, ECF 27
(“[W]aiver, estoppel, and equitable tolling . . . are
not at issue in the present motion.”) Therefore,
whether her Title VII claim was administratively exhausted
“depends solely upon whether she ‘initiate[d]
contact with a Counselor within 45 days of the date of [each]
matter alleged to be discriminatory.'” Kraus ...