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Sandowski v. Nielsen

United States District Court, D. Hawaii

September 6, 2018





         Before the court is Defendant Kirstjen Nielsen's Motion to Partially Dismiss Plaintiff's Complaint. See ECF No. 37. Plaintiff Richard Sandowski, proceeding pro se, was formerly employed by the Transportation Security Administration (“TSA”), an agency of the United States Department of Homeland Security (“DHS”). He filed a complaint (“Complaint”) against Nielsen, [1] who is the Secretary of DHS, and against five current or former TSA employees. See ECF No. 1, PageID # 5. The Complaint asserts that Defendants discriminated against him in violation of Title VII of the Civil Rights Act of 1964. See id.

         Nielsen's motion seeks to dismiss Sandowski's claims of perjury, obstruction of justice, physical assault, and abuse of authority for failure to exhaust administrative remedies or, in the alternative, for failure to state a claim upon which relief can be granted. See ECF No. 37-1, PageID # 225. Additionally, Nielsen argues that the Complaint should be dismissed as to the TSA employee defendants because she, as head of DHS, is the only proper defendant. See Id. at 225-26.

         This court grants Nielsen's motion for partial dismissal. The court further grants Sandowski leave to file an amended complaint should he wish to do so.

         II. BACKGROUND.

         Sandowski was employed by TSA on the island of Lanai until his termination on August 30, 2006. See ECF No. 1, PageID #s 2-7. On January 18, 2007, Sandowski filed an employment discrimination complaint against TSA and DHS with the Equal Employment Opportunity Commission (“EEOC”).[2] See Id. at 20. After a hearing, an EEOC Administrative Judge (“AJ”) issued a decision finding no discrimination, which was adopted by the DHS Office of Civil Rights and Civil Liberties (“CRCL”) in a final order issued on January 28, 2016. See id. at 10, 20-21; ECF No. 37-4. On February 29, 2016, Sandowski appealed to the EEOC's Office of Federal Operations (“OFO”), and on July 7, 2017, the OFO affirmed the CRCL's final order adopting the AJ's decision. See ECF No. 1, PageID # 21. The OFO's decision stated that Sandowski had a right to file a civil action in federal district court. See Id. at 22.

         On September 19, 2017, Sandowski filed his Complaint in this court, asserting employment discrimination claims against Defendants under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. See Id. at 2-5. He alleges that, between October 2004 and August 2006, Defendants discriminated against him on the basis of his race and religion and that he was wrongfully terminated. See Id. at 2-7, 20. The Complaint attaches Sandowski's appeal letter to the EEOC dated February 29, 2016, and the OFO's decision dated July 7, 2017. See Id. at 7, 10-23.

         The Complaint lists the following seven claims: unequal treatment, retaliation, wrongful termination, perjury, obstruction of justice, physical assault, and abuse of authority. Id. at 6-7. As relief, Sandowski seeks reinstatement, back pay for wages and benefits, and to be “made whole.” Id. at 8.

         On June 29, 2018, Nielsen filed the present motion. See ECF No. 37-1. The motion attaches two documents: (1) a TSA letter dated April 24, 2007, informing Sandowski that TSA accepted and would investigate certain claims from his EEOC complaint, and (2) the CRCL's final order of January 28, 2016, adopting the AJ's decision. See ECF Nos. 37-3, 37-4. The court held a hearing on the motion on August 13, 2018.


         Nielsen's motion was brought under both Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See ECF No. 37-1, PageID # 229. The citation to Rule 12(b)(1) was likely due to the prior treatment of a failure to exhaust administrative remedies under Title VII as a jurisdictional defect. See Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002) (“To establish federal subject matter jurisdiction, a plaintiff is required to exhaust his or her administrative remedies before seeking adjudication of a Title VII claim.”).

         However, in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), the Supreme Court clarified that administrative exhaustion requirements were not prerequisites to subject matter jurisdiction unless “the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional.” Id. at 515 (“[W]hen Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.”).

         Consistent with this holding, the Ninth Circuit has stated that a Title VII exhaustion requirement “is not a jurisdictional prerequisite for suit in federal court, ” but that failure to comply with the requirement may be fatal to the claim. Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043 (9th Cir. 2009); see also Daniels v. Donahoe, 901 F.Supp.2d 1238, 1245 (D. Haw. 2012) (stating that “[t]he exhaustion requirement is a condition of bringing a Title VII claim in court, ” but is not a jurisdictional limitation).[3]The Ninth Circuit in Kraus did not cite Arbaugh, but the Ninth Circuit has applied Arbaugh in several non-Title VII cases to hold that prerequisites to a statute's applicability are not jurisdictional. See, e.g., Trader Joe's Co. v. Hallatt, 835 F.3d 960, 968-69 (9th Cir. 2016) (“We hold that the extraterritorial reach of the Lanham Act is a merits question that does not implicate federal courts' subject-matter jurisdiction.”); Leeson v. Transamerica Disability Income Plan, 671 F.3d 969, 971 (9th Cir. 2012) (holding that whether plaintiff was a plan participant under ERISA is “a substantive element of his claim, not a prerequisite for subject matter jurisdiction”); Forester v. Chertoff, 500 F.3d 920, 928-29 (9th Cir. 2007) (holding that the 30-day waiting period in 29 U.S.C. § 633a(d) is “not jurisdictional in the sense that a district court lacks any authority to grant relief when a complaint is filed prematurely”). And at the hearing on the motion, Nielsen's counsel recognized that recent Ninth Circuit case law stated that failure to exhaust is not an issue of subject matter jurisdiction. Thus, this court reviews Nielsen's motion under Rule 12(b)(6).

         Under Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief can be granted. The court's review is generally limited to the contents of a complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). If matters outside the pleadings are considered, the Rule 12(b)(6) motion is treated as one for summary judgment. Keams v. Tempe Tech. Inst., Inc., 110 F.3d 44, 46 (9th Cir. 1997); Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). However, the court may take judicial notice of and consider matters of public record without converting a Rule 12(b)(6) motion to dismiss into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988).

         On a Rule 12(b)(6) motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. Sprewell, 266 F.3d at 988; Syntex Corp. Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996). Dismissal under Rule 12(b)(6) may be based on either “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal ...

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