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Grounds v. United States

United States District Court, D. Oregon

March 18, 2019

JANICE GROUNDS, Plaintiff,
v.
UNITED STATES OF AMERICA, acting by and through the Department of Energy and the Bonneville Power Administration, and RICK PERRY, Secretary of the Department of Energy, Defendants.

          Beth Ann Creighton Michael E. Rose CREIGHTON & ROSE, PC Powers Building Attorneys for Plaintiff

          Dianne Schweiner U.S. ATTORNEY'S OFFICE - DISTRICT OF OREGON Civil Division Attorney for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ United States District Judge.

         Plaintiff 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).

         Defendants move to dismiss Plaintiff's complaint for lack of subject matter jurisdiction. The Court grants Defendants' motion and dismisses Plaintiff's case.

         BACKGROUND

         On 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 ¶¶ 6-20.

         Plaintiff's 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.

         STANDARDS

         I. Subject Matter Jurisdiction

         A 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).

         DISCUSSION

         I. Title VII Claim

         Defendants 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.

         Before 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.

         Title 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)).

         Plaintiff 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 ...


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