The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
ORDER GRANTING DEFENDANT PATRICK R. DONAHOE'S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT
Plaintiff Kurt Daniels alleges that his employer, the United States
Postal Service, discriminated against him in violation of Title VII,
42 U.S.C. §§ 2000e--2000e-17, and 42 U.S.C. §§ 1981, 1981a.*fn1
Daniels is an African-American male who complains that he was
denied a promotion but nonetheless required to perform the job duties
of the position he had sought without receiving extra pay. Defendant
Patrick R. Donahoe, in his official capacity as the Postmaster General of the United States,
moves for dismissal of and summary judgment with respect to Daniels's
claims. Although, as explained below, the court is unpersuaded by the
challenge to this court's subject matter jurisdiction, the court
grants Donahoe's motion on other grounds. The court dismisses
Daniels's claims under 42 U.S.C. §§ 1981 and 1981a, and grants summary
judgment in Donahoe's favor on the remaining claims.
Daniels is an African-American male employed by the United States Postal Service as a Maintenance Engineering Specialist. Concise Statement of Material Facts in Support of Defendant's Motion for Summary Judgment*fn2 ("Defendant's Facts")
¶ 2, ECF No. 22. Allegedly first hired in 1985, see Compl. ¶ 1, ECF No. 1, he has held that position since 2004, and his duties include analyzing the performance of mail processing machines and providing expertise to lower-level maintenance employees. Id.
¶ 3. Daniels is not a supervisor. Id.
Around 2004, Daniels's supervisor, Herbert Yokoyama, approved Daniels, among others, to serve as a detailee for the Manager, Maintenance Operations position ("MMO"), which was vacant at that time. Defendant's Facts ¶ 3. A detail is a temporary position that comes with a pay raise. Id. Daniels alleges that he performed the MMO duties as a detailee for a year and a half, and that he received a pay differential of $8,000 per year. Compl. ¶¶ 8, 13.
In 2006, Yokoyama selected Bonnie Tomooka to fill the vacant MMO position. Defendant's Facts ¶ 6. Tomooka had applied for the position as a downgrade from her then-current position as the Manager of Distribution Operations. Id. Postal Service regulations gave Yokoyama discretion to hire on a noncompetitive basis an applicant who sought a downgrade or a lateral move. Id.
¶ 5. Yokoyama ended up not considering applicants who, like Daniels, were seeking a promotion. Id. ¶ 6. To promote someone into the MMO position, Yokoyama would have had to hire that person through the competitive process, which could have involved interviews and an applicant review panel. Id. Yokoyama routinely filled positions noncompetitively with applicants seeking downgrades or lateral moves. Id. ¶ 7. Indeed, Yokoyama had selected Daniels for his Maintenance Engineering Specialist position that way in 2004 when Daniels sought a lateral move.
Daniels alleges that, although he was no longer a detailee for the MMO position once Tomooka was hired, he was still required to perform many of the MMO's supervisory duties, such as hiring and training mechanical technicians and handling union grievances, in addition to his own Maintenance Engineering Specialist duties. Compl. ¶ 13, 46, 59. Daniels says he was also asked to work the night shift to perform Tomooka's management duties. Id. ¶ 36. He says that, in his position, he was not supposed to be supervising employees. Id. ¶ 47. Daniels contends that Yokoyama required him to perform the additional duties because he is African American, see id. ¶ 20-21, and says he complained at least once to Yokoyama in 2006 about his additional work duties. See Declaration of Andre S. Wooten at Ex. 5, ECF No. 39-6.
On July 14, 2008, Daniels asked to meet with an employment discrimination counselor. Sometime later, in 2008, he filed an administrative complaint. See Defendant's Facts at Ex. 4 (EEO complaint). Daniels contends that Yokoyama retaliated against him for having filed the administrative complaint. In particular, Daniels asserts that Yokoyama required him to go to meetings every day, Compl. ¶ 39, gave him a lower performance evaluation, ¶ 69, and moved him out of his office, ¶ 49. After July 2008, Yokoyama stopped assigning Daniels additional duties.
Defendant's Facts ¶ 10. On April 28, 2011, Daniels filed the present action.
III. SUBJECT MATTER JURISDICTION OVER RETALIATION CLAIM.
A. Rule 12(b)(1) Standard.
A motion to dismiss under Rule 12(b)(1) tests the subject matter jurisdiction of the court. See, e.g., Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039--40 (9th Cir. 2003); White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A plaintiff bears the burden of establishing the propriety of the court's jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). "A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
On the present motion, it does not matter whether Donahoe is making a facial or factual attack on subject matter jurisdiction. If Donahoe's challenge is a factual attack, he is disputing "the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." See id. at 1929. "In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment." Id. (internal quotation marks omitted). Finally, "[f]ew procedural limitations exist in a factual challenge to a complaint's jurisdictional allegations." HRPT Properties Trust v. Lingle 676 F. Supp. 2d 1036, 1041 (D. Haw. 2009).
B. This Court Has Subject Matter Jurisdiction With Respect to Daniels's Retaliation Claim.
To the extent Daniels is asserting a retaliation claim, Donahoe argues that this court lacks subject matter jurisdiction given Daniels's failure to exhaust his administrative remedies with respect to such a claim. Donahoe argues that Daniels failed to assert retaliation or the factual allegations supporting his retaliation claim in his administrative complaint.
However, the failure to file a timely administrative administrative complaint is not a jurisdictional prerequisite to a Title VII claim. Rather, this shortcoming "relates to the substantive adequacy" of Daniels's complaint. Arbaugh v. Y & H Corp., 546 U.S. 500, 503 (2006). Title VII's broad grant of jurisdiction "has served simply to underscore Congress' intention to provide a federal forum for the adjudication of Title VII claims." Id. at 506. See also 42 U.S.C. § 2000e-5(f)(3)(providing that "[e]ach United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under [Title VII]"). As an employee of the United States Postal Service, Daniels had to comply with 29 C.F.R. § 164.105 in asserting employment discrimination. See 29 C.F.R. § 1614.103 (noting that postal employees are covered by the cited regulations). Section 1614. 105(a)(1) required Daniels to "initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action."
Daniels did not meet this administrative requirement. In other words, he failed to properly and timely exhaust his administrative remedies before coming to court. This, however, is not an issue of subject matter jurisdiction. The exhaustion requirement is a condition of bringing a Title VII claim in court, but Title VII is not a statute in which "the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional." Arbaugh, 546 U.S. at 515. "[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as non-jurisdictional in character." Id. In Arbaugh, the Supreme Court held that the requirement that an employer subject to Title VII have 15 employees did not go to subject matter jurisdiction. Id. The exhaustion requirement is akin to the employee threshold. See Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, ...