Free Reply to Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona PETER M. LANTKA Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 E-Mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Donald Chapman, Plaintiff, CIV-03-2537-PHX-DGC v. John E. Potter, Postmaster General, United States Postal Service; and Yvonne Pearson, separately and in her individual capacity Defendants. Defendants John E. Potter and Yvonne Pearson, by and through undersigned counsel, respectfully submit their Reply in Support of Motion to Dismiss for the reason that this Court lacks subject matter jurisdiction to award any relief with respect to Counts I and IX of Plaintiff's First Amended Complaint and as to Defendant Pearson. Defendants' Reply is supported by the attached Memorandum of Points and Authorities, Defendants' initial Motion to Dismiss, and matters of record. MEMORANDUM OF POINTS AND AUTHORITIES Defendants' motion to dismiss concerns the proper interpretation of federal law in light of the facts pled in Plaintiff's First Amended Complaint. Plaintiff concedes to the majority of Defendants' claims, failing to address jurisdictional issues underlying the ADA and his inability to seek a jury trial or damages in excess of lost wages under the ADEA. Plaintiff further concedes that Defendant Pearson cannot be held liable under Title VII. Ms. Pearson's only link to Plaintiff's claim stems from her communications to the Department of Labor and her forwarding Plaintiff's injury claim forms to the Office of Workers DEFENDANTS' REPLY IN SUPPORT OF MOTION TO DISMISS

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1 Compensation Programs. Those acts, as alleged in Plaintiff's complaint, were "motivated by 2 illegal retaliation." As such, they are part and parcel of Plaintiff's underlying discrimination 3 claim against the Post Office and must be governed by Title VII, dismissing Ms. Pearson from 4 this matter as an individual defendant. 5 I 6 7 Supreme Court and Ninth Circuit precedent dictate that Title VII (42 U.S.C. § 2000e8 16(c)) provides the exclusive, preemptive remedy for federal employees seeking to redress 9 employment discrimination. Brown v. General Services Administration, 425 U.S. 820, 835-36 10 (1976) (holding that Title VII is "the exclusive judicial remedy for claims of discrimination in 11 federal employment"); Williams v. United States General Services Administration, 905 F.2d 308, 12 311 (9th Cir. 1990) ("where a federal employee pursues a Title VII claim against the 13 government, he is precluded from asserting discrimination claims against individual federal 14 employees who may have participated in the case"). Title VII's preemption is expansive 15 concerning federal employees. 42 U.S.C. § 2000e-16 precludes federal employees' independent 16 claims of constitutional redress so long as those claims "are predicated upon [an] underlying 17 complaint of discrimination." Smith v. Lujan, 780 F. Supp. 1275, 1280 (D. Ariz. 1991). The 18 breadth of claims which Title VII precludes is quite varied. See e.g. Brazil v. U.S. Dept. of Navy, 19 66 F.3d.193,198 (9th Cir. 1995) (preemption of Navy's decision to revoke employee's nuclear 20 weapons personnel responsibility program privileges); Clemente v. United States, 766 F.2d 21 1358, 1364 n.7 (9th Cir. 1985) (Bivens claims founded on actions proscribed by Title VII cannot 22 be maintained because "Title VII provid[ed] the exclusive remedy"); Smith, 780 F.Supp. at 23 1278-80 (breach of contract and due process claims preempted by Title VII); see also Bush v. 24 Lucas, 462 U.S. 367, 374-90 (1983) (employee's First Amendment action preempted under Civil 25 Service regulations). 26 27 28 2 PLAINTIFF'S CLAIMS AGAINST YVONNE PEARSON ARE PREDICATED UPON PLAINTIFF'S UNDERLYING DISCRIMINATION COMPLAINT AND ARE PREEMPTED BY TITLE VII

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Likewise, discrimination claims premised on retaliation are also preempted by Title VII.

2 Jordan v. Clark, 847 F.2d 1368, 1375-76 (9th Cir.1988) (finding a plaintiff's retaliation claim 3 part of Title VII action); see also Ray v. Henderson, 217 F.3d 1234, 1237 (9th Cir. 2000) 4 (defining an adverse employment action under Title VII as "any adverse treatment that is based 5 on a retaliatory motive and is reasonably likely to deter the charging party or others from 6 engaging in protected activity")(emphasis added). 7 8 9 10 Plaintiff's Amended Complaint alleges: [T]he failure of the Postal Service or the Defendant Yvonne Pearson acting under color of law in her individual capacity to forward [Plaintiff's claims for injury compensation payments] to the United States Department of Labor was deliberate, intentional and motivated by illegal retaliation for reasons of his exercise of participation in the Equal Opportunity complaint process.

11 (Pla. Comp. at ¶ 64)(emphasis added); see also (Pla. Resp. at 3)(same).1 Plaintiff further 12 contends that Defendant Pearson gave false statements to an OWCP hearing officer concerning 13 Plaintiff's injury. (Pla. Comp. at ¶ 54). Plaintiff seeks restitution against Ms. Pearson

14 individually through a Section 1983, or Bivens, action. (Pla. Comp. at Count IX). 15 Plaintiff's allegation is a textbook retaliatory complaint, alleging that Ms. Pearson's

16 actions came in retaliation for his participation in the EEO complaint process. See e.g. Porter 17 v. California Dept. of Corrections, 419 F.3d 885, 894 (9th Cir. 2005) (addressing retaliation in 18 response to plaintiff's filing an EEOC complaint under Title VII ). Such a claim is precisely the 19 type of action which Congress sought to remedy through Title VII, not a Bivens action. Kotarski 20 v. Cooper, 866 F.2d 311, 312 (9th Cir. 1989) (citing Schweiker v. Chilicky, 487 U.S. 412, 427-30 21 (1988)("Where Congress has designed a program that provides what it considers adequate 22 remedial mechanisms for constitutional violations, Bivens actions should not be implied.). 23 Plaintiff attempts to sidestep his pleading in response to Defendants' motion. First,

24 Plaintiff contends that "[t]he core feature of the relevant facts are that Pearson. . .attempted to 25 deny Chapman benefits to which he was found to be entitled," and that Pearson's actions 26 For purposes of this motion, both this Court and the Defendants must accept Plaintiff's 27 allegation concerning Ms. Pearson's motivation as true. Fed. R. Civ. Proc. 12. 28 3
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1 "implicate [the] constitutional rights of Chapman." (Pla. Resp. at 4-5, 7). Regardless of how 2 Plaintiff coins the "core feature" of Count IX, Ms. Pearson's actions were still "motivated by 3 illegal retaliation."(Pla. Comp. at ¶ 64; Pla. Resp. at 3). The factual underpinnings of Count IX 4 are part and parcel of Plaintiff's Title VII claim; and, under Ninth Circuit precedent, must be 5 dealt with under Title VII's remedial scheme, not a separate cause of action. Clemente, 766 F.2d 6 at 1364 n.7; see also White v. General Services Administration 652 F.2d 913, 917 (9th Cir. 7 1981)("Any claims of retaliation are within the scope of Title VII."). Even Plaintiff's 8 unspecified "constitutional claims" are subsumed by Title VII because they stem from Plaintiff's 9 underlying discrimination complaint. See e.g. Brazil, 66 F.3d.at 198 (equal protection claim 10 precluded by Title VII); Smith, 780 F. Supp. at 1279 (due process claim precluded by Title VII). 11 Plaintiff further argues that this Court should not dismiss Ms. Pearson in her individual

12 capacity because "there are no remedies available to Chapman for the wrongful conduct of 13 Pearson under Title VII." (Pla. Resp. at 5). Plaintiff misrepresents the law in this regard. Title 14 VII provides a remedy for retaliatory actions. See White, 652 F.2d at 917 (citing Carlson v. 15 Green, 446 U.S. 14, 18-19 (1980) ("Title VII. . .provides a statutory remedy for retaliation 16 against filing an EEO charge. . ."). Simply because Plaintiff's constitutional claims against Ms. 17 Pearson are dismissed, he can still pursue a remedy against the Postal Service. Williams v. U.S. 18 General Services Admin., 905 F.2d 308, 311 ((9th Cir. 1990)("where a federal employee pursues 19 a Title VII claim against the government, he is precluded from asserting discrimination claims 20 against individual federal employees who may have participated in the case.").2 21 22 23 24 25 26 27 28 Plaintiff's citation to 18 U.S.C. § 1922 further deflects the pertinent issue. Simply because an individual may be liable for damages under an alternate theory of liability does not mean that those remedies can preclude Title VII's application. The afore-cited case law demonstrates that Title VII must be used to the exclusion of other remedies in the employment discrimination context. Plaintiff's citations to Rottman v. U.S. Coast Guard Academy 630 F.Supp. 1123, 1125 (D.Conn. 1986) and Ethnic Employees of Library of Congress v. Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985) are equally distracting. Neither case holds that a Bivens or any other action may be used in lieu of Title VII when applicable. They merely hold that alternate causes of action may be used where Title VII provides no remedy. Rottman, 630 F.Supp. at 1125; Ethnic Employees, 751 F.2d at 1415. Again, because Plaintiff's allegations (continued...) 4
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Lastly, Plaintiff contends that a Bivens action should be allowed because "the federal

2 courts have the power to award any appropriate relief in a cognizable cause of action brought 3 pursuant to a federal statute." (Pla. Resp. at 6). Such is not the case. As previously addressed, 4 Title VII provides an exclusive schema for courts to follow in addressing discrimination claims 5 brought by federal employees. Moreover, courts must respond "cautiously to suggestions that 6 Bivens remedies be extended into new contexts." Schweiker, 487 U.S. at 421. No new context 7 is presented in this matter. Plaintiff's Bivens claims against Ms. Pearson "are precisely the 8 injuries cognizable and remediable under Title VII. " Otto v. Heckler, 781 F.2d 754, 757 (9th 9 Cir. 1986). They are predicated upon his discrimination complaint against the Postal Service, 10 and accordingly, must be dismissed. 11 II 12 In addition to Ms. Pearson's dismissal, Defendants moved to dismiss the following: (a) 13 Count I of Plaintiff's Amended Complaint due to this Court's lack of jurisdiction over Plaintiff's 14 ADA claims; (b) dismissal of all counts against Ms. Pearson; and (c) Plaintiff's claims for a jury 15 trial and damages other than lost wages under Count IV due to those remedies' unavailability 16 under the ADEA. Plaintiff concedes that his claims against Ms. Pearson cannot be pursued 17 under Title VII. (Pla. Resp. at 4). As such, those claims should be dismissed. Likewise, 18 Plaintiff's failure to address Defendants' arguments concerning Counts I and IV of his Amended 19 Complaint indicate his acquiescence to their dismissal as well. See LRCiv 7.2(I) (permitting 20 summary disposition where a party fails to file an answering memoranda). 21 22 23 24 25 26 (...continued) against Ms. Pearson are predicated on her retaliation against Plaintiff for a protected employment 27 activity, they are subject to Title VII. 28 5
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ALL REMAINING PORTIONS OF DEFENDANTS' MOTION TO DISMISS SHOULD BE SUMMARILY GRANTED

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PLAINTIFF SHOULD NOT BE PERMITTED LEAVE TO AMEND Plaintiff requests that this Court permit him to amend his complaint upon granting

3 Defendants' motion. Plaintiff's request must be denied on several grounds. From a procedural 4 standpoint, amendment at this late stage ­ after close of discovery and filing dispositive motions 5 ­ would result in a great deal of wasted attorney and Court efforts. As to Plaintiff's ADA and 6 ADEA claims, Plaintiff's failure to respond to Defendants' argument and the well-settled law 7 on these issues make additional pleadings futile. Concerning Plaintiff's Bivens claim against 8 Ms. Pearson, no matter how artfully pled a future complaint may be, Plaintiff cannot escape the 9 fact that Ms. Pearson's alleged actions are predicated upon his Title VII claim. Further, claims 10 premised upon other forms of discrimination such as age or disability are preempted by the 11 remaining federal statutes addressed in Plaintiff's Amended Complaint. See Tapia-Tapia v. 12 Potter 322 F.3d 742, 745 (1st Cir. 2003)("The ADEA provides the exclusive federal remedy for 13 age discrimination in employment"); Littlejohn v. Henderson, 2003 WL 21738608 *1-2 (E.D. 14 N.Y. 2003) (citing Brown v. General Servs. Admin., 425 U.S. 820, 829 (1976); Rivera v. 15 Heyman, 157 F.3d 101, 105 (2d Cir.1998)) (Title VII and the Rehabilitation Act provided the 16 sole basis for plaintiff's job discrimination claims); Brown v. County of Genesee, 1985 WL 17 56617 (W.D. Mich. 1985) (Rehabilitation Act preempts § 1983 claim). 18 Moreover, allowing Plaintiff to rework his complaint against Ms. Pearson under an

19 entirely new theory would be equally futile because this Court lacks jurisdiction over any 20 complaint concerning the processing of an OWCP claim. See Johnston v. Henderson, 144 21 F.Supp.2d 1341, 1354 (S.D. Fla. 2001)(retaliation action cannot be premised upon pursuing 22 FECA claim); Almaguer v. White, 2002 WL 31396123, *2 (W.D. Tex. 2002)(dismissing 23 retaliation claim concerning discontinuation of FECA benefits for engagement in protected 24 activity); Brown v. Potter 2002 WL 1263995, *2 (N.D. Ill. 2002)(dismissing postal employee's 25 discrimination suit concerning discrimination over processing workers compensation claim for 26 lack of jurisdiction; "Since complainant's complaint is a collateral attack on another forum's 27 28 6

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1 proceeding, complainant fails to state a claim."); see also Easton v. United States Postal 2 Service, EEOC Request No. 01A54151 (November 7, 2005); Pirozzi v. Department of the Navy, 3 EEOC Request No. 05970146 (October 23, 1998); Reloj v. Department of Veterans Affairs, 4 EEOC Request No. 05960545 (June 15, 1998) (dismissing allegations concerning tender of false 5 information during OWCP process for failure to state a claim). Ms. Pearson's entire relationship 6 with Plaintiff stems from her processing Plaintiff's OWCP claim and her interaction with the 7 Department of Labor. Regardless of the underlying cause of action, this Court lacks subject 8 matter jurisdiction over disputes concerning these actions, and Plaintiff's suit against Ms. 9 Pearson should be dismissed. 10 IV 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 s/Peter M. Lantka PETER M. LANTKA Assistant U.S. Attorney Respectfully submitted this 17th day of January, 2006 PAUL K. CHARLTON United States Attorney District of Arizona CONCLUSION For the foregoing reasons, the Defendants John E. Potter and Yvonne Pearson

respectfully request that this Court GRANT their motion to dismiss Counts I and IX of Plaintiff's First Amended Complaint for lack of jurisdiction, Defendant Pearson as an individual defendant, and Plaintiff's requests for a jury trial and damages outside of his lost wage claim under Count IV.

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CERTIFICATE OF SERVICE I hereby certify that on January 17, 2006, I electronically transmitted the attached

3 document, including exhibits, to the Clerk's Office using the CM/ECF System for filing and 4 transmittal of a Notice of Electronic Filing, to the following CM/ECF registrants: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
William R. Hobson Law Offices of William R. Hobson 7303 W. Boston Street Chandler, Arizona 85226 s/Nancy Stotler ________________________

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