Estevez v. Power ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 EMILIO ESTEVEZ, Case No. 2:23-cv-00846-RFB-VCF 7 Plaintiff, ORDER 8 v. 9 SAMANTHA POWER, et al., 10 Defendants. 11 12 Before the Court is the Motion to Dismiss (ECF No. 21) of Defendant Samantha Power, 13 Administrator of the U.S. Agency for International Development (“USAID”).1 For the reasons 14 below, the motion is granted in part and denied in part. 15 16 I. FACTUAL ALLEGATIONS 17 The following allegations are taken from the First Amended Complaint. 18 In the 1980s, Plaintiff Emilio Estevez began a career in federal service as a U.S. Marine. 19 Subsequently, he joined USAID. In February 2022, Mr. Estevez had a Reasonable 20 Accommodation (“the Accommodation”) approved Employee Relations for his post-traumatic 21 stress, which manifests as painful, debilitating migraines. The Accommodation involved Mr. 22 Estevez taking time during the workday to engage in physical activity. Mr. Estevez is over 40 23 years of age. On September 16, 2022, Mr. Estevez’s supervisor expressed frustration with Mr. 24 Estevez’s unavailability that day when he was undertaking physical activity per the 25 Accommodation. Mr. Estevez explained his absence was due to the Accommodation. That day, 26 he was told by his supervisor that “If it’s not one thing with your it’s the other.” Mr. Estevez was 27 28 1 While the original Complaint also named Jason Frierson, Merrick Garland, the United States Department of State, and Katherine Kaetzer-Hodson, only Administrator Power remains. 1 forced by his supervisor and Employee Relations to take personal leave and was told to either 2 resign or retire by December 31, 2022. He retired on December 31, 2022, and took a position 3 making less money. 4 5 II. PROCEDURAL HISTORY 6 On May 30, 2023, Mr. Estevez filed the original Complaint. ECF No. 1. He brought 7 claims stemming from alleged age and disability discrimination against Administrator Powers 8 and several other defendants. Id. Summons were returned executed on August 17, 2023. ECF 9 Nos. 14, 15. On November 16, 2023, Administrator Power and the other Defendants filed the 10 first motion to dismiss. ECF No. 18. Rather than respond, on December 14, 2023, Plaintiff filed a 11 First Amended Complaint (“FAC”) by right.2 ECF No. 19. On December 14, 2023, the 12 remaining defendant, Administrator Power, filed the second and instant Motion to Dismiss. ECF 13 No. 21. Following multiple extensions, the motion was fully briefed on June 17, 2024. ECF Nos. 14 34, 42; see also ECF Nos. 24, 28, 35, 36, 40. The Court’s Order follows. 15 16 III. LEGAL STANDARDS3 17 An initial pleading must contain “a short and plain statement of the claim showing that 18 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The court may dismiss a complaint for 19 “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In ruling on 20 a motion to dismiss, “[a]ll well-pleaded allegations of material fact in the complaint are accepted 21 22 2 Federal Rule of Civil Procedure 15 allows a party to amend their pleading once as a matter of course within 21 days of a responsive motion to dismiss. Given the filing of the First 23 Amended Complaint, the Court finds the first Motion to Dismiss (ECF No. 18) is mooted and will deny it in the conclusion of this Order. 24 3 Administrator Power seeks dismissal of the FAC under Federal Rules of Civil 25 Procedure 12(b)(1) and 12(b)(6). Her 12(b)(1) argument is premised on Mr. Estevez’s failure to exhaust his Rehabilitation Act claims. While the Ninth Circuit previously held that a federal 26 employee’s “substantial compliance” with the administrative complaint process is a requirement for exhaustion that precludes district court jurisdiction, Sommatino v. United States, 255 F.3d 27 704, 708 (9th Cir. 2001), the Supreme Court explained recently that “Title VII’s charge-filing requirement” which is incorporated into the Rehabilitation Act, “is a processing rule, albeit a 28 mandatory one, not a jurisdictional prescription delineating the authority of courts,” Fort Bend Cty. v. Davis, 587 U.S. 541, 551 (2019). Therefore, the Court reviews this claim under 12(b)(6). 1 as true and are construed in the light most favorable to the non-moving party.” Faulkner v. ADT 2 Sec. Services, Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted). 3 To survive a motion to dismiss, a complaint need not contain “detailed factual 4 allegations,” but it must do more than assert “labels and conclusions” or “a formulaic recitation 5 of the elements of a cause of action[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 6 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be 7 dismissed if it contains “sufficient factual matter, accepted as true, to state a claim to relief that is 8 plausible on its face,” meaning that the court can reasonably infer “that the defendant is liable for 9 the misconduct alleged.” Id. at 678 (internal quotation and citation omitted). The Ninth Circuit, 10 in elaborating on the pleading standard described in Twombly and Iqbal, has held that for a 11 complaint to survive dismissal, the plaintiff must allege non-conclusory facts that, together with 12 reasonable inferences from those facts, are “plausibly suggestive of a claim entitling the plaintiff 13 to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 14 15 IV. DISCUSSION 16 The Court now turns to the merits of the motion. Plaintiff brings his claims under the 17 Rehabilitation Act (“RA”), 29 U.S.C. § 791, et seq., the Foreign Service Act (“FSA”), 22 U.S.C. 18 § 3901, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 624, et 19 seq. The FAC brings six claims under these statutes: (Count I) Unlawful Retaliation under the 20 FSA; (Count II) Unlawful Age Discrimination under the ADEA; (Count III) Disparate Treatment 21 under RA § 501; (Count IV) Relation under RA § 501; (Count V) Wrongful Termination of a 22 Contract under RA § 504; (Count VI) Refusal to Accommodate and Termination of a Contract 23 under RA § 504. Administrator Powers argues each count should be dismissed. 24 A. Count I: Unlawful Retaliation under the FSA 25 Mr. Estevez brings his first claim under the FSA. The relevant portion of the FSA 26 provides that “members of the Service” must be “free from discrimination on the basis of . . . age 27 [or] disability[.]” 22 U.S.C. § 3905(b). Within the FSA, “Service” refers to “the Foreign Service 28 of the United States.” § 3902(11). There is no dispute that USAID is an independent agency not 1 part of the Foreign Service (i.e., the diplomatic corps of the U.S. government under the State 2 Department). Further, his response to the motion, Mr. Estevez agreed to “voluntarily withdraw 3 the claim.” For the foregoing reasons, the Court finds that Count I must be dismissed for 4 plaintiff’s failure to plead an essential element. 5 B. Count II: Unlawful Age Discrimination under the ADEA 6 Mr. Estevez’s second claim is brought under the ADEA. Mr. Estevez argues he was 7 treated differently from other USAID employees who were not at least 40 years of age because 8 those employees were not forced to retire. Administrator Power argues that Mr. Estevez only 9 provides a recital of the elements without factual support, such as age-related comments. 10 The ADEA prohibits an employer from, among other things, discharging an employee 11 who is over forty years of age because of the employee’s age. 29 U.S.C. 623(a). Under a 12 disparate treatment theory of discrimination, a plaintiff in an ADEA case can establish age 13 discrimination based on either (1) circumstantial evidence of age discrimination or (2) direct 14 evidence of age discrimination. Sheppard v. David Evans and Assoc., 694 F.3d 1045, 1049 (9th 15 Cir. 2012). An employee may clear a challenge under 12(b)(6) by pleading a prima facie case 16 under the burden shifting framework laid out in McDonnell Douglas Corp. v. Green. 411 U.S. 17 792 (1973). To do so, a plaintiff must allege (1) they were at least forty years old; (2) performing 18 their job satisfactorily; (3) were discharged; and (4) either replaced by a substantially younger 19 employee with equal or inferior qualifications or discharged under circumstances otherwise 20 giving rise to an inference of age discrimination. Sheppard, 694 F.3d at 1049. “An inference of 21 discrimination can be established . . . by showing that others not in [one’s] protected class were 22 treated more favorably.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008). 23 However, McDonnell Douglas is an evidentiary standard not a pleading standard, Swierkiewicz 24 v. Sorema N.A., 534 U.S. 506, 510 (2002). While a plaintiff may “survive a motion to dismiss” 25 by pleading to that standard, it is “not required” that they do so. Sheppard, 694 F.3d at 1050 n.2 26 (citing Swierkiewicz, 534 U.S. at 510). At the least, a plaintiff must “‘give the defendant fair 27 notice of what the plaintiff's claim is and the grounds upon which it rests.’” Swierkiewicz, 534 28 U.S. at 512 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Achal v. Gate Gourmet, 1 Inc., 114 F. Supp. 3d 781, 796-97 (N.D. Cal. 2015) (outlining the practice in this circuit). 2 The Court finds that Mr. Estevez has pleaded sufficient facts to show a prima facie case 3 under McDonnell Douglass. There is no dispute that Mr. Estevez has pleaded that he is at least 4 40 years old, that he was a successful employee, and that he was “singled out” for forced 5 retirement where younger individuals were not. The Court finds Sheppard is analogous and 6 controlling. In that case, the Ninth Circuit found that “although brief” a complaint’s allegations 7 that Sheppard had received good performance reviews and “five younger comparators kept their 8 job” was sufficient. 694 F.3d at 1049. “Sheppard’s allegation . . . gives rise to an ‘inference of 9 age discrimination’ because it plausibly suggests that” her employer “‘had a continuing need for 10 [Sheppard’s] skills and services [because her] various duties were still being performed.’” Id. 11 (quoting Diaz, 521 F.3d at 1207) (alterations original). Further, even if Mr. Estevez had fallen 12 below the McDonnell Douglass standard, the Court finds that Mr. Estevez nevertheless has 13 pleaded sufficient facts to give Administrator Power fair notice of his claim. Swierkiewicz, 534 14 U.S. at 512; see also id. at 514 (“The liberal notice pleading of Rule 8(a) is the starting point of a 15 simplified pleading system, which was adopted to focus litigation on the merits of a claim.”). 16 C. Counts III-VI: Violations of the RA 17 Finally, Mr. Estevez brings four claims under §§ 501 and 504 of the RA. Administrator 18 Power argues that Mr. Estevez failed to plead that he has completed the requisite exhaustion of 19 his administrative remedies. Mr. Estevez argues he received a final agency decision in his 20 administrative proceeding granting him leave to file the instant case. 21 The RA “makes it unlawful for an agency of the United States to discriminate against an 22 applicant for employment solely on the basis of that applicant’s disability.” Leorna v. United 23 States Dep’t of State, 105 P.3d 548, 550 (9th Cir. 1997) (citing 29 U.S.C. § 794; 22 C.F.R. § 24 144.140). Whether brought under §§ 501 or 504, to preserve the right to bring such a suit in 25 federal court, a federal employee plaintiff must first exhaust their administrative remedies by 26 filing an administrative claim of discrimination in line with the procedures of the allegedly 27 offending agency. See Brown v. General Servs. Admin., 425 U.S. 820, 832 (1976); Boyd v. 28 United States Postal Service, 752 F.2d 410, 413 (9th Cir. 1985); Vinieratos v. United States Air 1 Force, 939 F.2d 762, 771 (9th Cir. 1991).4 The multi-step administrative process is as follows: 2 “[T]he aggrieved federal employee must first attempt to resolve the matter by 3 filing an informal complaint[.] If an informal resolution is not achieved, the employee must then file a formal complaint[.] The employee may file a civil 4 action in federal district court within 90 days of receiving notice of final agency 5 action on the employee’s formal complaint by the ALJ, or after 180 days from the filing of the complaint if no final action has been taken by that time.” 6 7 Bullock v. Berrien, 688 F.3d 613, 616 (9th Cir. 2012) (internal citations omitted). The Ninth 8 Circuit has been clear: the administrative process must be “pursued” with “diligence and in good 9 faith.” Vinieratos, 939 F.2d at 771. “A plaintiff may not cut short the administrative process prior 10 to its final disposition, for upon abandonment a claimant fails to exhaust administrative relief and 11 may not thereafter seek redress from the courts.” Greenlaw v. Garrett, 59 F.3d 994, 997 (9th Cir. 12 1995). Courts must enforce this requirement. Fort Bend Cty., 587 U.S. at 551. 13 The Court now reviews the relevant factual matter. The FAC states that “Mr. Estevez 14 exhausted all administrative remedies [and] opted to file directly with the Federal District Court 15 given the ADA component of Mr. Estevez’s allegations.” Beyond the complaint itself, a court 16 may consider documents attached to the complaint without converting a motion to dismiss into a 17 motion for summary judgment. Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 18 899-900 (9th Cir. 2007). Attached to the First Amended Complaint is Exhibit 1, the Final 19 Agency Decision (“FAD”). The FAD states the following salient facts: 20 21 4 The FAC also presents Mr. Estevez’s § 504 claims as partially in the alternative. Section 504 protects a qualified individual with a disability from “solely by reason of [their] 22 disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance[.]” 29 U.S.C. 23 § 794. Mr. Estevez’s theory is premised on the Court finding he was not an employee of USAID but, somehow, that he was also denied the benefits of his employment contract. Rule of Civil 24 Procedure 8(d)(2) permits pleading in the alternative if “any one of them is sufficient.” As discussed above, Mr. Estevez’s § 501 claims must be dismissed for want of subject matter 25 jurisdiction. Without support of another viable claim, Mr. Estevez’s § 504 claims must independently survive dismissal, Fed. R. Civ. P. 8(d)(2), but the Court finds that the same fatal 26 flaw applies. The Ninth Circuit has explained that federal employees should not be permitted to avoid the exhaustion requirement of § 501 by bringing their claims as private individuals under § 27 504. Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir. 1985). Further, there are no pleadings to support any theory that Mr. Estevez was simultaneously not an employee but 28 benefiting from an employment contract. For these reasons, the Court will maintain its analysis of the § 501 and § 504 claims together. 1 1. On March 11, 2023, Mr. Estevez informed the USAID investigator that he would not participate in the agency investigation and that he intended on filing 2 claims in the federal district court. 3 2. Because (a) the claims the agency was investigating were “duplicated in a complaint currently pending before a United States District Court Judge in the 4 District court for the District of Nevada (Case No. 2:2023cv00846)” and (b) the complaint that initiated their investigation had been pending for 180 days, 5 USAID determined it was obliged under 29 C.F.R. § 1614.107(a)(3) to 6 dismiss the complaint and cease its investigation of the matter. 3. The FAD was issued on August 29, 2023. 7 8 Attached as Exhibit 2 is a letter from Mr. Estevez’s counsel to the U.S. Equal Employment 9 Opportunity Commission (“EEOC”). That letter states that he had filed the original Complaint in 10 this action and “since [that] complaint involves age discrimination, we are informing the EEOC . 11 . . that Mr. Estevez will bypass the formal EEOC complaint and file a law suit [sic.] in federal 12 court[.]” The Court also finds from the record that the original Complaint in this action was filed 13 several months before the FAD was issued. 14 From the above, the Court finds it clear from the pleadings and attachments that Mr. 15 Estevez has neither completed the EEOC process before filing the original Complaint nor did he 16 participate with diligence and good faith while in that process. Mr. Estevez conclusory pleads 17 that exhaustion was waived because his ADEA claim was cleared to file in federal court before 18 his ADEA claim. Mr. Estevez has provided no points or authorities to support such a contention. 19 Indeed, he cannot. While an employee who may file an ADEA suit without pursuing 20 administrative remedies, it is a “requirement” for federal employees to exhaust. Bankston v. 21 White, 345 F.3d 768, 770 (9th Cir. 2003); Boyd, 752 F.2d at 412. The Court is bound to enforce 22 the “mandatory” exhaustion rule and dismiss these claims. Fort Bend Cty., 587 U.S. at 552. 23 D. Leave to Amend 24 Mr. Estevez’s request to amend is denied as amendment would be futile, in light of the 25 intractable issues identified above. Carrico v. City & Cnty. of San Francisco, 656 F.3d 1002, 26 1008 (9th Cir. 2011). 27 /// 28 /// 1 Vv. CONCLUSION 2 For the foregoing reasons, IT IS ORDERED that the Motion to Dismiss (ECF No. 21) of □ Defendant Samantha Power is GRANTED in part. Counts I, II], IV, V, and VI are 4| DISMISSED. The motion is DENIED in part, as regards Count II. 5 IT IS FURTHER ORDERED that the Motion to Dismiss (ECF No. 18) filed by Defendants Jason M. Frierson, Merrick Garland, Katherine Kaetzer-Hodson, Samantha Power, 7 | United States Department of State is DENIED as mooted. 8 9 10 | DATED: September 30, 2024. AS” 12 3 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-