Free Motion to Dismiss Party - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

PAUL K. CHARLTON United States Attorney District of Arizona HARRIET BERNICK AZ Bar No. 13462 Assistant U.S. Attorney 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7500 FAX: (602) 514-7760 [email protected] Attorneys for Defendant, John E. Potter, Postmaster General

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Donald Chapman, Plaintiff, v. John E. Potter, Postmaster General, United States Postal Service; Yvonne Pearson, separately and in her individual capacity, Defendants. The Federal Defendants1 hereby move to dismiss Yvonne Pearson as an individual defendant because only the agency head in his official capacity can be sued not an individual federal employees in a Title VII action. Further, the Americans with Disability Act Claim (Count 1 of the First Amended Complaint) must be dismissed for lack of jurisdiction. Additionally, the Bivens claim pursuant to 42 USC 1983 (Count 9 of the First Amended Complaint) should also be dismissed because the exclusive judicial remedy is Title VII. This motion is more fully supported by the attached Memorandum of Points and Authorities. I. Facts: This motion is filed pursuant to Fed. R. Civ. P. 12 (b) (1), (2), and (6). Movant admits all of the facts in Plaintiff's First Amended Complaint for this purpose only. CIV-03-2537-PHX-DGC FEDERAL DEFENDANT'S MOTION TO DISMISS

The Federal Defendants include John E. Potter, Postmaster General, United States, Postal Service; and Yvonne Pearson separately and in her individual capacity.

1

Case 2:03-cv-02537-DGC

Document 151

Filed 12/09/2005

Page 1 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Argument: A. YVONNE PEARSON MUST BE DISMISSED BECAUSE ONLY AN AGENCY HEAD IN HIS OFFICIAL CAPACITY , NOT AN INDIVIDUAL EMPLOYEE, IS A PROPER DEFENDANT IN A TITLE VII CLAIM.

Defendant Yvonne Pearson, in both her individual and official capacity, moves for dismissal of the Title VII and Rehabilitation Act claims against her, as only an agency head in his official capacity, and not individual federal employees, may be named as defendants in a claim brought under Title VII or the Rehabilitation Act. In Plaintiff's First Amended Complaint, he appears to assert a claim against individual federal employee Yvonne Pearson for violation of Title VII and the Rehabilitation Act. The only proper defendant in a Title VII case involving a federal employee is the head of the department or agency. Vinieratos v. Department of the Air Force, 939 F.2d 762, 772 (9th Cir. 1991) (Title VII requires that in a civil action alleging employment discrimination by the government "the head of the department, agency, unit, as appropriate shall be the defendant"). In pertinent part, 42 U.S.C. § 2000e-16(c) provides that: an employee or applicant for employment, if aggrieved by the final disposition of his complaint, or by failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of the this title, in which civil action the head of the department, agency, or unit, as appropriate shall be defendant. (Emphasis added). In the case of the United States Postal Service, the Postmaster General, in his official capacity as the head of the USPS, serves as the defendant in all Title VII actions. Accordingly, defendant Yvonne Pearson is not an appropriate defendant in a Title VII and Rehabilitation Act Therefore, she must be dismissed as a party to the Title VII and Rehabilitation Act claims listed in the First Amended Complaint. Only John E. Potter, in his capacity as Postmaster General, may remain as a defendant in the Title VII claim asserted by plaintiff in the complaint. 42 U.S.C. § 2000e-16(c).

Case 2:03-cv-02537-DGC

Document 151 2 Filed 12/09/2005

Page 2 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

B.

TITLE VII IS THE EXCLUSIVE REMEDY FOR ALLEGED EMPLOYMENT DISCRIMINATION BASED UPON SEX, AGE, AND RETALIATION

Congress has enacted an intricate scheme of specific remedial mechanisms for federal employees aggrieved by adverse personnel actions. When a claim "arises out of" the federal "employment relationship," the plaintiff is barred from pursuing relief outside these statutory schemes. Bush v. Lucas, 462 U.S. 367, 388-390 (1983). Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq. is the exclusive remedy available to federal employees for allegations of employment discrimination. Brown v. General Services Administration, 425 U.S. 820, 835 (1976); White v. General Services Administration, 652 F.2d 913, 916-17 (9th Cir. 1981); Saul v. United States, 928 F.2d 829, 835-840 (9th Cir. 1991); Pereira v. United States Postal Service, 964 F.2d 873 (9th Cir. 1992). In Brown, the Supreme Court held that an aggrieved federal employee may not seek relief for a claim covered by Title VII by resorting to an alternative legal claim. In the context of claims stemming from alleged employment discrimination by the federal government, Title VII expressly limits plaintiff's remedies to those enumerated in the statute. Brown, supra. Where a federal employee asserts a claim under Title VII, that statute is exclusive of any other remedy against not only against the federal government, but also against individual federal employees alleged to have participated in the discrimination. White v. General Services Administration, 652 F.2d 913, 916-17 (9th Cir. 1981). Because the purpose of Title VII was to create "an exclusive, pre-emptive administrative and judicial scheme for the redress of federal employment discrimination," plaintiff may not "bootstrap" additional causes of action onto his Title VII complaint. Brown, supra. As Plaintiff's Complaint is based upon alleged employment actions taken against him by employees of the United States Postal Service, Title VII is the exclusive remedy available to him. Further, the rights and remedies available under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, are applicable to actions by federal employees under the Rehabilitation Act of 1973. Johnson v. Horne, 875 F.2d 1415, 1418 (9th Cir. 1989); Boyd v. United States Postal Service, 752 F.2d 410, 413 (9th Cir. 1985) (each citing 29 U.S.C. § 794(a)(1), which
3 Case 2:03-cv-02537-DGC Document 151 Filed 12/09/2005 Page 3 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

makes Title VII remedies applicable to the Rehabilitation Act). C. COUNT 9 OF PLAINTIFF'S COMPLAINT MUST ALSO BE DISMISSED BECAUSE EMPLOYMENT DISCRIMINATION CANNOT BE BROUGHT AS BIVENS ACTIONS OR UNDER 42 USC 1981

A Plaintiff in the federal sector may pursue claims not cast as Title VII violations only if such allegations are based on actions other than those "against which Title VII provides protection." Rottman v. United States Coast Guard Academy, 630 F.Supp. 1123, 1125 (D.Conn. 1986). Otherwise, "a plaintiff would be able to pyramid his possible recovery," by

characterizing the same facts in various ways "to sustain allegedly different claims...." Bouchet v. National Urban League, Inc., 730 F.2d 799, 804 (D.C. Cir. 1984) (quoting Clark v. World Airways, 24 Fair Empl. Prac. Cases (BNA) 305, 307 n. 6 (D.D.C. 1980)). Thus, Plaintiff cannot maintain his action in Count 9 of the First Amended Complaint, which alleges discrimination in federal employment, under 42 U.S.C. § 1981, 1983, or 1985. See Brown, supra, 425 U.S. at 822, 833-35; (dismissing a claim under 42 U.S.C. § 1981; Eastland v. Tennessee Valley Authority, 553 F.2d 364, 371 (5th Cir. 1977) (42 U.S.C. §1981 claim properly dismissed); Richardson v. Wiley, 569 F.2d 140, 141(D.C. Cir 1977) . Additionally, Plaintiff inappropriately attempts to circumvent the well established case law in this area. See Brown, supra; Otto v. Heckler, 781 F.2d 754, 757 (9th Cir.1987) (a federal employee may only bring a Bivens-type action to remedy an injury which is not attributable to a personnel action otherwise remedied by a federal statute). Plaintiff's claims in this case revolve around his firing; his failure to be paid timely while he was off work even though he failed to pursue FECA benefits until after he was off work for two years; his failure to obtain light duty and limited duty work, and his failure to obtain OWCP benefits on a timely basis. 2 These types of claims are considered personnel actions under Title VII. For this reason, Plaintiff claims pursuant to 42 U.S.C. § 1983 against Yvonne Pearson and the Postal Service should be

Under Title VII, a personnel action is described as conduct which must have resulted in objectively tangible harm to the Plaintiff.
4 Case 2:03-cv-02537-DGC Document 151 Filed 12/09/2005 Page 4 of 8

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

dismissed. 3 Even if §42 U.S.C. §§2000e-16 were not the exclusive remedy available to plaintiff, neither §1983 nor §1985 would provide a basis for plaintiff's claims. The language of §42 U.S.C. § 1983 makes clear that statute has no application to this case. A §1983 action cannot be maintained against federal officials or agencies acting pursuant to federal law. See District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973) Plaintiff's complaint here relates solely to actions of the Postal Service and its employees under federal law and so he cannot proceed under §42 U.S.C. § 1983. Claims under §1983 require proof that defendants, acting under color of state law, deprived him of a right secured by the Constitution or laws of the United States. See West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds in Daniels v. Williams, 474 U.S. 327 (1986). To have acted under color of state law, each §1983 defendant must "have exercised power `possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'" West, 487 U.S. at 49 (quoting United States v. Classic, 313 U.S. 299 (1941)). Each defendant's infringement must be "fairly attributable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). In this case, it is clear that neither Yvonne Pearson nor the other Postal Service employees involved in this case acted under state law. Furthermore, Count 9 of the First Amended Complaint does not assert a proper a Bivens claim because it doesn't allege a direct constitutional challenge against Pearson or the United States Postal Service. Construing the First Amended Complaint broadly, it may be interpreted to assert claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Nevertheless, the rule followed is "where Congress has designed a program that provides what it considers adequate remedial mechanisms for constitutional violations, Bivens actions should not be implied. Kotarski v. Cooper, 866 F.2d 311, 312 (9th Cir. 1989). For these reasons, Count 9 of Plaintiff's Amended Complaint should be dismissed..

3

Bivens claims against agencies aren't cognizable. FDIC v. Meyer 510 U.S. 471 (1994) 5 Document 151 Filed 12/09/2005 Page 5 of 8

Case 2:03-cv-02537-DGC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

D.

PLAINTIFF CLAIM FOR VIOLATION OF THE ADA MUST BE DISMISSED FOR LACK OF JURISDICTION.

The exclusive remedy for a claim of disability discrimination in the federal employment context arises under the Rehabilitation Act, although the jurisdictional grant does not occur under 29 U.S.C. § 794 of the Rehabilitation Act, but under Title VII. Johnson v. Horne, 875 F.2d 1415, 1421 (9th Cir. 1989). The United States and its agencies are excluded from the class of employers subjected to the prescriptions of the American With Disabilities Act (ADA). See §42 U.S.C. § 12111(5)(B). The United States Postal Service is an independent establishment of the executive branch of the Government of the United States. 39 U.S.C. § 201. As such the Postal Service and its head, the Postmaster General, are within the described exclusion from Americans With Disabilities Act. Accordingly, insofar Plaintiff attempts to raise a claim under the ADA, his claim must fail. Accordingly, Count I of Plaintiff's First Amended Complaint should be dismissed for lack of jurisdiction. E. Plaintiff's Request For a ADEA Jury Trial Should Be Denied And His Claim For ADEA Damages Other Than Lost Wages Should Be Dismissed.

Plaintiff's request for a jury trial under the ADEA should be dismissed. Federal employees may not demand a jury trial for claims arising under the ADEA. Lehman v. Nakshian, 453 U.S. 156 (1981). Additionally, it should be noted that attorney's fees are not available under the ADEA. 28 U.S.C. Section 2412(b). Nowd v. Rubin 76 F. 3d. 25 (1st Cir. 1996). This court should dismiss all damage claims from Plaintiff's ADEA claim other than lost wages. Federal defendants are not liable for compensatory damages for pain and suffering, liquidated damages, or punitive damages. See e.g. Smith v. OPM, 778 F. 2d. 258 (5th Cir. 1985); Evans v. Potter, 215 F.R.D. 571, 573 (2003) (compensatory damages other than back pay, are not available under the ADEA.no pain and suffering award); see also, Lyons v. Allendale Mutual Insurance Company, 484 F. Supp. 1343 - 1344 (N. D. Ga. 1980)(Plaintiff could not recover for selling his home, moving expenses, increased commuting expenses, increased payments on his new house due to the higher interest rate on the new house, and securing employment in another state after the

6 Case 2:03-cv-02537-DGC Document 151 Filed 12/09/2005 Page 6 of 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

defendant fired him.) F. Conclusion

Movant respectfully requests that this Court dismiss Counts 1 and 9 from the First Amended Complaint for lack of jurisdiction and because the exclusive judicial remedy is Title VII. Yvonne Pearson must be dismissed as an individual defendant because only an agency head in his official capacity can be sued. The Plaintiff's request for an ADEA jury trial and ADEA compensatory damages other than his wage loss claim should be dismissed. Submitted this 9th day of December, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ Harriet M. Bernick HARRIET M. BERNICK Assistant U.S. Attorney

7 Case 2:03-cv-02537-DGC Document 151 Filed 12/09/2005 Page 7 of 8

1 2 3 4 5

CERTIFICATE OF SERVICE I hereby certify that on December 9, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:

William R. Hobson Law Offices of William R. Hobson 6 7303 W. Boston Street Chandler, Arizona 85226
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Case 2:03-cv-02537-DGC Document 151 Filed 12/09/2005 Page 8 of 8

S/ LaRee Zickefoose U.S. Attorney Office's