Deborah Ulloa v. John Potter , 442 F. App'x 334 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEBORAH ULLOA, No. 10-16091
Plaintiff - Appellant, D.C. No. 2:07-cv-01567-SMM
v.
MEMORANDUM *
JOHN E. POTTER, Postmaster General,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, Senior District Judge, Presiding
Argued and Submitted June 13, 2011
San Francisco, California
Before: SCHROEDER, RIPPLE,** and GRABER, Circuit Judges.
Deborah Ulloa brought this action against her former employer, the United
States Postal Service (“Postal Service”). She alleged retaliation in violation of
Title VII of the Civil Rights Act of 1964, failure to accommodate in violation of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kenneth F. Ripple, Senior Circuit Judge for the United
States Court of Appeals for the Seventh Circuit, sitting by designation.
the Rehabilitation Act of 1973 and violations of the Due Process Clause of the
Fifth Amendment. Before the district court, both parties moved for summary
judgment. The district court granted summary judgment in favor of the Postal
Service on all claims. On appeal, Ms. Ulloa challenges the district court’s decision
on only two of those claims: retaliation and deprivation of a property interest
without due process. For the reasons that follow, we vacate the judgment of the
district court insofar as it dismissed the retaliation claim on the merits, and we
remand with instructions for the district court to modify its judgment to dismiss the
retaliation claim for want of jurisdiction. We affirm the district court’s dismissal
of the due process violation claim.
Because the factual and procedural history of this case is set forth fully in
the district court’s order, we do not recount those facts here. We review a district
court’s decision on cross-motions for summary judgment de novo, construing the
facts in the light most favorable to the nonmoving party. See Bader v. N. Line
Layers, Inc., 503 F.3d 813, 816 (9th Cir. 2007). We address, in turn, each of Ms.
Ulloa’s claims on appeal.
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I
Ms. Ulloa submits that the Postal Service retaliated against her in its
processing of two personnel actions, known as PS Form 50s, in March 2005
(“March Form 50s”). She contends that these March Form 50s retroactively
terminated her employment and also deprived her of more than $150,000 in
compensation. The Postal Service claims that these forms were employed simply
to calculate a back pay award from an earlier administrative proceeding before the
Equal Employment Opportunity Commission (“EEOC”).
Because Ms. Ulloa failed to bring this present retaliation claim before the
EEOC, the district court lacked subject matter jurisdiction to consider this claim.
We have held “that substantial compliance with the presentment of discrimination
complaints to an appropriate administrative agency is a jurisdictional prerequisite.”
Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001) (emphasis in
original).
For the district court to have subject matter jurisdiction over Ms. Ulloa’s
current retaliation claim, that claim must either be “within the scope of an EEOC
investigation that reasonably could be expected to grow out of the allegations” or
be “like or reasonably related to the allegations made before the EEOC.” Leong v.
Potter, 347 F.3d 1117, 1122 (9th Cir. 2003) (internal quotation marks omitted).
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Ms. Ulloa’s current retaliation claim, based on actions occurring in March 2005,
was never within the scope of an EEOC investigation. Her EEOC complaint was
filed in 1992, and the EEOC issued a final decision by June 2000. After 2000, in
her subsequent petitions before the EEOC, Ms. Ulloa did not raise the claim that
the Postal Service had retaliated against her by processing the March Form 50s.
Ms. Ulloa’s current retaliation claim is also not “like or reasonably related to
the allegations made before the EEOC.” Id. (internal quotation marks omitted).
The dates, factual details and alleged perpetrators of the current retaliation claim
are different from those of the prior EEOC allegations. Ms. Ulloa’s current claim
of retaliation is based on actions that occurred more than a decade after the
retaliatory acts alleged in 1992. Moreover, the 1992 retaliation claim focused on
her immediate supervisors when she worked at the Postal Service; the current
claim, by contrast, alleges retaliation by employees who oversee EEOC
compliance. Because Ms. Ulloa failed to present the current retaliation claim
before the EEOC, the district court lacked subject matter jurisdiction to hear it.
Accordingly, we vacate the judgment of the district court on Ms. Ulloa’s retaliation
claim, and we remand with instructions for the district court to modify its judgment
to dismiss the retaliation claim for want of jurisdiction.
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II
The district court dismissed Ms. Ulloa’s due process violation claim on the
basis that Title VII is the exclusive remedy for federal employment discrimination.
Her due process violation claim is, however, independent from her retaliation
claim and therefore is not precluded by Title VII. Nonetheless, the claim fails on
the merits because Ms. Ulloa cannot show deprivation of a property interest.
Title VII is the exclusive remedy for claims of discrimination in federal
employment. Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976). Title VII,
however, “does not preclude separate remedies for unconstitutional action other
than discrimination.” White v. Gen. Servs. Admin., 652 F.2d 913, 917 (9th Cir.
1981). Viewed in the light most favorable to Ms. Ulloa, her assertion of a due
process violation is independent from her retaliation claim. In her complaint, Ms.
Ulloa alleges that the March Form 50s retroactively terminated her job, a property
interest, without affording her any process. Her due process violation claim
therefore is not precluded by Title VII. See Arnold v. United States, 816 F.2d
1306, 1311 (9th Cir. 1987) (“Remedy for unconstitutional actions other than
employment discrimination, even if arising from the same core of facts, is not
barred by Title VII.”).
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Nevertheless, Ms. Ulloa’s allegation fails on the merits because she cannot
show deprivation of a property interest. See Gilbert v. Homar, 520 U.S. 924, 928
(1997); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). The
processing of the March Form 50s did not retroactively terminate her and therefore
did not deprive her of a job. The second March Form 50, labeled “Retirement-
Disability,” did change Ms. Ulloa’s status from active back to disability retirement,
but disability retirement was Ms. Ulloa’s status prior to her reactivation. Although
the March Form 50s did decrease the award of back pay because the back pay
period was shortened, this reduction occurred only because the Postal Service and
EEOC both determined that August 21, 1993 was the correct off-work status date.
Ms. Ulloa had two opportunities to dispute this determination before the EEOC,
which upheld August 21, 1993 as the correct off-work status date.
In sum, we vacate the judgment of the district court insofar as it dismissed
the retaliation claim on the merits, and we remand with instructions for the district
court to modify its judgment to dismiss the retaliation claim for want of
jurisdiction. We affirm the district court’s dismissal of the due process violation
claim.
AFFIRMED IN PART; VACATED AND REMANDED IN PART
WITH INSTRUCTIONS. The costs are to be taxed against the appellant.
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