Free Motion to Dismiss - District Court of Colorado - Colorado

Case 1:03-cv-02435-PSF-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-02435-PSF-PAC (formerly consolidated with 04-cv-00639-PSF-PAC) LILLIAN F. SANDLE, Plaintiff, v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Defendant. ________________________________________________________________________ DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S FAILURE TO ACCOMMODATE CLAIM FOR LACK OF JURISDICTION ________________________________________________________________________ Pursuant to Fed. R. Civ. P. 12(h)(3) the defendant moves to dismiss Count I of plaintiff's Second Amended Complaint for failure to accommodate her alleged disability because plaintiff failed to exhaust her administrative remedies, which is a prerequisite for this Court to exercise subject matter jurisdiction. INTRODUCTION This case is set for trial to the Court beginning November 6, 2006. In her Second Amended Complaint (SAC) (Doc. 164), plaintiff (Sandle herein) claims in Count I that the defendant (VA herein) violated her rights under the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., when it failed to provide a reasonable accommodation to

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her alleged physical disability (injured back).1 SAC, p. 14. While her judicial complaint asserts jurisdiction in a conclusory fashion, it fails to contain sufficient facts to establish that she raised a claim of failure to accommodate before the VA's administrative Equal Employment Opportunity process or the Equal Employment Opportunity Commission (EEOC). A review of the six EEO complaints that Sandle filed with the VA from 1987 1999 (attached hereto as Exhibits A1 - A6) reveals that she never claimed that the VA failed to accommodate her. In short, nowhere in the claims that Sandle filed with the VA does she mention the words "failure to accommodate" or "accommodate." Moreover, Sandle does not allege that in any of the VA's notifications to her of what claims it would accept for processing that a failure to accommodate claim was ever allowed. Likewise, she does not allege that she made any amendments to these EEO complaints or that the charge of failure to accommodate was ever raised or addressed during the administrative processing of her complaints by the EEOC. Finally, in her judicial complaint, Sandle does not allege that she ever raised a claim of failure to accommodate with the VA or that she ever requested a reasonable accommodation, which was denied.2

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Sandle alleges she first injured her back in January 1987. SAC, ¶ 11.

Prior to the filing of this motion, plaintiff's counsel was queried as to which EEO complaint her failure to accommodate claim(s) related. No response was received prior to the filing of this motion. 2

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As discussed below, failing to raise a discrimination claim with the agency prior to filing suit in federal court deprives this Court of subject matter jurisdiction. Because Sandle did not raise a claim of failure to accommodate in her EEO complaints or amendments thereto, she may not now raise these new acts of discrimination in her judicial complaint, and her failure to accommodate claims must be dismissed prior to trial. STANDARD OF REVIEW The first duty of a federal court is to determine that it has jurisdiction to entertain and decide a case. Thompson v. United States, 291 F.2d 67, 68 (10 th Cir. 1961). Fed. R. Civ. P. 12(h)(3) provides that whenever it appears that the court lacks jurisdiction, the court shall dismiss a matter.3 See Bradbury v. Dennis, 310 F.2d 73, 74 (10 th Cir. 1962). Federal courts are of limited jurisdiction. United States v. Bustillos, 31 F.3d 931, 933 (10 th Cir. 1994). Jurisdiction is presumed to be lacking until a plaintiff pleads sufficient facts to establish it. Id. Conclusory allegations of jurisdiction are insufficient. Penteco Corp. Ltd. Partnership-1985A v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10 th Cir. 1991). A party must plead sufficient facts to show jurisdiction exists. Id. When jurisdiction is challenged, the party claiming jurisdiction bears the burden to show that it exists. Bustillos, 31 F.3d at 933. "Where a party attacks the factual basis for subject

A challenge to the Court's jurisdiction may be raised at any time. Fed. R. Civ. P. 13(h); Farmers Ins. Co. v. Hubbard, 869 F.2d 565, 570 (10 th Cir. 1989). 3

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matter jurisdiction, the court does not presume the truthfulness of factual allegations in the complaint, but may consider evidence to resolve disputed jurisdictional facts." Radil v. Sanborn W. Camps, Inc., 384 F.3d 1220, 1224 (10th Cir.2004). When a party challenges the allegations supporting subject matter jurisdiction, the court's reference to evidence outside the pleadings does not convert the motion to dismiss into a motion for summary judgment. Davis ex rel. Davis v. United States, 343 F.3d 1282, 1296 (10 th Cir. 2003). DISCUSSION BECAUSE SANDLE DID NOT RAISE A CLAIM OF FAILURE TO ACCOMMODATE WITH THE AGENCY PRIOR TO FILING HER FEDERAL COURT ACTION, THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER THAT CLAIM. Exhaustion of administrative remedies is a jurisdictional prerequisite to the exercise of subject matter jurisdiction over an employment discrimination claim. Jones v. Runyon, 91 F.3d 1398, 1399-1400 (10 th Cir. 1997); Woodman v. Runyon, 132 F.3d 1330, 1341-42 (10 th Cir. 1997) ("The Rehabilitation Act encompasses this exhaustion requirement"). A plaintiff may not bring a civil action based upon claims that were not part of timely filed charge of discrimination for which the plaintiff has received a rightto-sue-letter. Simms v. Okahoma, ex rel. Dep't of Mental Health, 165 F.3d 1321, 1326 (10 th Cir. 1999). The purpose behind the requirement exhaustion of administrative remedies is to provide the employer notice of the nature of the charges and an opportunity to investigate 4

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and timely resolve the matter without judicial intervention. Woodman, 132 F.3d at 1342. . A complainant is required to exhaust each discrete act of discrimination. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 111-113 (2002); Martinez v. Potter, 347 F.3d 1208, 1210 (10 th Cir. 2003) (each discrete employment action must be exhausted; continuing violation doctrine abrogated). A complainant is not allowed to avoid raising a clam by claiming a continuing violation or claiming the claims are "like or reasonably related." Id.; Annett v. University of Kan., 371 F.3d 1233, 1338 (10 th Cir. 2004) (plaintiff may not maintain like or reasonably related claims in judicial complaint); Dunlap v. Kansas Dep't of Health & Environment, 127 Fed. Appx. 433 *5 (10 th Cir. April 1, 2005) (a complainant is required to exhaust each claim of discrimination including those "like or reasonably related"). Additionally, a complainant must specify the facts and nature of claim being asserted in order to exhaust administrative remedies. Annett, 371 F.3d at 1238. The allegations must be sufficient to put the employer on notice of the claim. Martinez, 347 F.3d at 1211; Cooper v. Xerox Corp., 994 F. Supp. 429, 432 (W.D.N.Y. 1998) ("[T]he loose pleading allowance is not satisfied by vague, generalized statements. Specific factual allegation must be made in order for the EEOC to be able to investigate them reasonably."); see also Alenski v. Potter, No. CV-03-2179(SJF)(MLO), 2005 WL 1309043 (E.D.N.Y. May 18, 2005) (only claims for which the agency was apprised may be maintained in judicial action); Findlay v. Reynolds Metals Co., 82 F. Supp. 2d 27, 34

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(N.D.N.Y. 2000) ("Were we to permit such vague, general allegations, quite incapable of inviting a meaningful EEOC response, to define the scope of the EEOC investigation and thereby predicate subsequent claims in the federal lawsuit, such allegations would become routine boilerplate and Title VII's investigatory and mediation goals would be defeated." (internal quotation marks and citation omitted)). Where a complainant asserts a new legal theory of recovery, an amendment must be made to the charge pursuant to federal regulations. 29 C.F.R. § 1601.12(b) (1991). See Simms v. Oklahoma ex rel. Dep't of Mental Health, 165 F.3d 1321, 1326-27 (10 th Cir. 1999) (new legal theory of recovery precluded by amendment to EEO charge where employer lacked notice of it). In this case, Sandle did not allege in any EEO complaint that the VA failed to accommodate her alleged disability. Where an employee fails to provide an agency sufficient information for it to evaluate her claims, she cannot be deemed to have exhausted administrative remedies. Khader v. Aspin, 1 F.3d 968, 971 (10 th Cir. 1993). In this case, her EEO complaints (as well as her judicial complaint) are lacking in any detail as to when a request for accommodation was made, what accommodation was requested, and the outcome of the request. For example, with respect to her 1987 complaint (Exhibit A1), Sandle did not check the box for handicap discrimination. As such, there is a presumption against the complainant that such a claim was being made. Gunnell v. Utah Valley State College, 152 F.3d 1253, 1260 (10 th Cir. 1998). The EEO complaint contains no other information that would suggest Sandle was making a claim for failure to

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accommodate. Accordingly, Sandle may not bring any Rehabilitation Act claim founded upon her September 18, 1997 EEO complaint (Exhibit A1). With respect to her other five EEO complaints, she failed to raise any accommodation claim. Since Sandle failed to exhaust her administrative remedies regarding this issue. Count I of her amended complaint should be dismissed. CONCLUSION Because an allegation of failure to accommodate is a discrete claim of discrimination, Sandle was required to raise it in an EEO complaint. Having failed to do so, she has failed to exhaust her administrative remedies as to that claim, which precludes this Court from entertaining her suit at trial. Unless she can establish that this Court has subject matter jurisdiction, Sandle should not be allowed to raise new acts of discrimination ­ some 15 years after leaving the VA ­ of which it was not given notice and opportunity to investigate and resolve. Accordingly, Count I of plaintiff's Second Amended Complaint for failure to accommodate under the Rehabilitation Act must be dismissed with prejudice.

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DATED this 27th day of September, 2006. Respectfully submitted, TROY A. EID UNITED STATES ATTORNEY

s/Mark S. Pestal Michael C. Johnson Mark S. Pestal Assistant United States Attorneys 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 (303) 454-0100 [email protected] [email protected]

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Case 1:03-cv-02435-PSF-PAC

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 28, 2006, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participant(s) in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: None

s/Mark S. Pestal Mark S. Pestal Assistant United States Attorney United States Attorney's Office 1225 Seventeenth, Suite 700 Denver, Colorado 80202

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