1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL CHEUNG, No. 2:23-cv-1731 DJC AC PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 DEPARTMENT OF VETERAN

AFFAIRS,

15 Defendant. 16 17 Plaintiff is proceeding in this matter pro se, and pre-trial proceedings are accordingly 18 referred to the undersigned pursuant to Local Rule 302(c)(21). Before the court is defendant’s 19 motion to dismiss plaintiff’s claims of disability discrimination, age discrimination, and 20 whistleblower retaliation. ECF No. 19. Plaintiff opposed the motion. ECF Nos. 23, 25. For the 21 reasons that follow, the undersigned recommends plaintiff’s claims based on disability 22 discrimination, whistleblower retaliation, and age discrimination be dismissed for failure to state 23 a claim upon which relief may be granted. Plaintiff also brought a race discrimination cause of 24 action, which is not addressed in the motion to dismiss. 25 I. Background 26 A. Procedural Background 27 Plaintiff was employed by defendant, the Department of Veterans Affairs, as a 28 Supervisory Staff Pharmacist until his termination on June 17, 2022. ECF No. 1 at 16, 18. 1 Defendant removed plaintiff from his employment under the authority of 38 U.S.C. § 714. Id. at 2 14. Plaintiff timely appealed this decision to the Merit Systems Protection Board (“MSPB”). Id. 3 at 18. The MSPB heard the case November 1-3, 2022. Id. Before the MSPB, plaintiff presented 4 two affirmative defenses to his removal: (1) discrimination based on race, and/or (2) 5 discrimination based on age, which he was required to prove by a preponderance of the evidence. 6 Id. at 14-15. The MSPB ruled that plaintiff failed to meet his burden of proof with respect to 7 these defenses and that the Department proved its charges by substantial evidence. Id. at 19, 39, 8 45, 51, 57, 61 (relevant portions of MSPB’s order). 9 Plaintiff filed an appeal to the United States Court of Appeals for the Federal Circuit. Id. 10 at 4-73. The Federal Circuit court directed the parties to show cause and explain whether the case 11 should be dismissed or transferred to a United States district court, where the case could have 12 been brought. Id. at 155. Pursuant to 28 U.S.C. § 1631, the Federal Circuit court ordered this 13 “mixed case” transferred to this court, the United States District Court for the Eastern District of 14 California. Id. at 228. 15 B. The Complaint 16 The initial complaint for this case is plaintiff’s appeal from the MSPB’s decision in case 17 number SF-0714-22-0470-I-1, issued December 12, 2022. ECF No. 1 at 12-73. As part of the 18 appeal initially filed with the Federal Circuit, plaintiff submitted a “Fed. Cir. R. 15(c) Statement 19 Concerning Discrimination,” which indicated that the MSPB decision dealt with employment 20 discrimination claims and that he did not wish to abandon these claims. Id. at 142-44. After the 21 case was transferred to this court, plaintiff filed a First Amended Complaint (“FAC”) against 22 Defendants alleging claims for: (1) disability discrimination under the ADA, (2) race 23 discrimination under Title VII, (3) age discrimination Under Title VII, and (4) whistleblower 24 retaliation. ECF No. 12 at 2-6. 25 About a month later, plaintiff filed a document entitled “Addition to Include Additional 26 Request for Relief” in which he wrote a single sentence: “6. Punitive Damages amount of one 27 point five million dollars.” ECF No. 13 at 1. Included in this filing were four civil “check the 28 box” cover sheets, on which boxes were checked for the following causes of action: “Due Process 1 (5th Amendment)/ Bill of Rights,” “42 U.S.C. § 12117/ disability discrimination under American 2 with Disabilities Act,” “Age Discrimination Employment Act,” “Title VII,” “Performance Rating 3 Act of 1950,” and “Negligence and Intentional Misconduct/Tort Claims Act.” Plaintiff also 4 included an addendum to his statement of facts. ECF No. 13 at 6-14. 5 These documents were incorrectly docketed as a “Second Amended Complaint.” It does 6 not appear to the undersigned that the filing at ECF No. 13 was intended to replace the First 7 Amended Complaint. See ECF No. 13. Instead, it appears plaintiff intended to supplement his 8 First Amended Complaint with a prayer for punitive damages and additional factual allegations in 9 support of plaintiff’s claims. Accordingly, the First Amended Complaint, ECF No. 12, remains 10 the operative pleading in this case. The undersigned has fully reviewed the contents of ECF No. 11 13 and has considered it in evaluating the propriety of leave to amend. 12 C. Motion to Dismiss 13 Defendant moves to dismiss all of plaintiff’s claims except for the Title VII race 14 discrimination claim. ECF No. 19. Defendant seeks dismissal of plaintiff’s disability 15 discrimination and whistleblower retaliation claims arguing that the court lacks jurisdiction 16 because plaintiff failed to raise these claims before the MSPB, and therefore did not exhaust his 17 administrative remedies as required by law. ECF No. 19-1 at 2. Defendant seeks dismissal of 18 plaintiff’s age discrimination claim arguing plaintiff failed to state a claim upon which relief may 19 be granted. Id. Defendant also addresses claims identified in the cover sheets included in the 20 filing at ECF No. 13, and argues that plaintiff’s constitutional and tort claims should be dismissed 21 because “Title VII provides the sole remedy for federal employees challenging workplace 22 discrimination.” Id. at 7. Finally, defendant argues that to the extent the court considers the 23 claims identified in the various civil coversheets attached at ECF No. 13, those claims should be 24 dismissed because plaintiff has not pled exhaustion of this claim, as required under the Federal 25 Torts Claims Act. Id. at 7-8. 26 In opposition, plaintiff does not dispute his failure to raise a whistleblower retaliation 27 claim before the MSPB but argues that he did present a disability claim, referring to discovery 28 responses. ECF No. 23 at 2. He argues he just did what his lawyer told him to do during the 1 MSPB case. Id. Plaintiff then addresses his race discrimination claims, id. at 2-3, which are not 2 at issue in defendant’s motion to dismiss. He does not address any of the other claims at issue in 3 the motion to dismiss. Plaintiff also references and attaches 18 exhibits. Id. at 2-181. 4 II. Legal Standards 5 A. Rule 12(b)(1) – Lack of Subject Matter Jurisdiction 21-1920 6 Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by 7 motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific 8 claims alleged in the action. When a party brings a facial attack to subject matter jurisdiction, 9 that party contends that the allegations of jurisdiction contained in the complaint are insufficient 10 on their face to demonstrate the existence of jurisdiction. Safe Air for Everyone v. Meyer, 373 11 F.3d 1035, 1039 (9th Cir. 2004). In a Rule 12(b)(1) motion of this type, the factual allegations of 12 the complaint are presumed to be true, and the motion is granted only if the plaintiff fails to allege 13 an element necessary for subject matter jurisdiction. Savage v. Glendale Union High Sch. Dist. 14 No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir. 2003); Miranda v. Reno, 238 F.3d 1156, 1157 n.1 (9th 15 Cir. 2001). 16 B. Rule 12(b)(6) – Failure to State a Claim 17 “The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 18 sufficiency of the complaint.” N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 19 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 20 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t., 901 21 F.2d 696, 699 (9th Cir. 1990). In order to survive dismissal for failure to state a claim, a 22 complaint must contain more than a “formulaic recitation of the elements of a cause of action;” it 23 must contain factual allegations sufficient to “raise a right to relief above the speculative level.” 24 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 25 It is insufficient for the pleading to contain a statement of facts that “merely creates a 26 suspicion” that the pleader might have a legally cognizable right of action. Id. (quoting 5 C. 27 Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-35 (3d ed. 2004)). Rather, 28 the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 1 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 2 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that 3 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 4 alleged.” Id. 5 In reviewing a complaint under this standard, the court “must accept as true all of the 6 factual allegations contained in the complaint,” construe those allegations in the light most 7 favorable to the plaintiff and resolve all doubts in the plaintiff’s favor. See Erickson v. Pardus, 8 551 U.S. 89, 94 (2007); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 9 960 (9th Cir. 2010), cert. denied, 564 U.S. 1037 (2011); Hebbe v. Pliler, 627 F.3d 338, 340 (9th 10 Cir. 2010). However, the court need not accept as true legal conclusions cast in the form of 11 factual allegations, or allegations that contradict matters properly subject to judicial notice. See 12 Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); Sprewell v. Golden State 13 Warriors, 266 F.3d 979, 988 (9th Cir.), as amended, 275 F.3d 1187 (2001). 14 Pro se pleadings are held to a less stringent standard than those drafted by lawyers. 15 Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se complaints are construed liberally and may 16 only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in support 17 of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 18 2014). The court’s liberal interpretation of a pro se complaint, however, may not supply essential 19 elements of the claim that were not pled. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 20 266, 268 (9th Cir. 1982); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). A pro se 21 litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, 22 unless the complaint’s deficiencies could not be cured by amendment. See Noll v. Carlson, 809 23 F.2d 1446, Reform 1448 (9th Cir. 1987). 24 C. Civil Service Act 25 The Civil Service Reform Act (“CSRA”) limits federal employees challenging their 26 supervisors’ “prohibited personnel practices” to an administrative remedial system. If the 27 conduct an employee challenges falls within the scope of the CSRA’s “prohibited personnel 28 practices,” the CSRA’s administrative procedures are the employee’s only remedy. Orsay v. 1 United States Dep’t of Justice, 289 F.3d 1125, 1128 (9th Cir. 2002) (abrogated on other grounds 2 by Millbrook v. United States, 569 U.S. 50 (2013)); see also Collins v. Bender, 195 F.3d 1076, 3 1079 (9th Cir. 1999) (“[E]ven if no remedy were available to [the employee] under the CSRA, he 4 still could not bring [his] action if the acts complained of fell within the CSRA’s confines.”); Saul 5 v. United States, 928 F.2d 829, 835–43 (9th Cir. 1991) (holding the CSRA precludes both 6 constitutional and common-law tort claims). “When an employee complains of a personnel 7 action serious enough to appeal to the MSPB and alleges that the action was based on 8 discrimination [in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination 9 in Employment Act, or the Fair Labor Standards Act of 1938], she is said (by pertinent 10 regulation) to have brought a ‘mixed case.’” Kloeckner v. Solis, 568 U.S. 41, 44 (2012); see also 11 Perry v. Merit Sys. Prot. Bd., 582 U.S. 420, 426 (2017). The MSPB “may provide a final 12 decision on both parts of the employee’s mixed case.” Crowe v. Wormuth, 74 F.4th 1011, 1024 13 (9th Cir. 2023)(citing 5 U.S.C. § 7702(a)(1)). 14 After the MSPB provides a final decision on a mixed case, the employee may bring his 15 case in the appropriate federal district court. Id. “[A]n employee who pursues a mixed case in 16 the MSPB and who seeks judicial review in district court must first exhaust any theories of 17 discrimination as to adverse employment actions over which the MSPB would have had 18 jurisdiction.” Id. at 1034. “To hold otherwise would compromise the statutory scheme.” Id. “If 19 an employee could bolster his mixed case with new theories never presented to the MSPB, the 20 CSRA’s extensive framework of administrative review would be rendered irrelevant as soon as 21 the employee moved on to federal court.” Id. 22 III. Analysis 23 A. Plaintiff Failed to Exhaust Administrative Remedies 24 Plaintiff does not dispute that he did not present his whistleblower retaliation claim to the 25 MSPB. ECF No. 23 at 1-10. He does assert that he “did state claims and made aware of 26 disability discrimination to the USA Merit System Protection Board,” and references his Exhibit 27 1, responses to the defendant’s discovery in the MSPB case. ECF No. 23 at 1, 15-37. The 28 documents plaintiff references in his opposition are inapposite. Plaintiff does not identify the 1 actual location of the notice regarding disability, and even if he did, it would not suffice that 2 plaintiff mentioned disability in discovery. During an August 10, 2022 telephonic status 3 conference with the MSPB Administrative Judge, Cheung made clear that he was pursuing only 4 the race (Chinese) and age (over 40) discrimination as affirmative defenses and he expressly 5 withdrew affirmative defenses of sex discrimination, national origin discrimination, and EEO 6 retaliation. ECF No. 19-2 at 67-70. Finally, it is clear from the MSPB’s decision (ECF No. 19-2 7 at 4-57) that disability discrimination was not at issue in the case presented to the MSPB. 8 Because plaintiff did not present the disability or whistleblower retaliation claims to the 9 MSPB, he did not exhaust his administrative remedies as to those issues and the federal court 10 cannot hear the claims. These claims must be dismissed. “Having chosen to challenge his 11 termination in a mixed case appeal before the MSPB, [plaintiff] was required to raise before that 12 body all theories of discrimination that he believed applied to that appealable personnel decision.” 13 Crowe, 74 F.4th at 1034. The motion to dismiss must be granted as to these two claims. 14 B. Plaintiff Fails to State an Age Discrimination Claim 15 Defendant contends that plaintiff fails to state an age discrimination claim for two reasons. 16 First, the Age Discrimination in Employment Act (“ADEA”), not Title VII (the statute relied on 17 by plaintiff), prohibits age discrimination. Second, defendant asserts the age discrimination claim 18 fails because Cheung fails to state a prima facie case; in particular, he fails to allege that he was 19 replaced by a substantially younger employee with equal or inferior qualifications. 20 Defendant is correct that the ADEA, not Title VII, provides the cause of action plaintiff is 21 trying to assert. In light of plaintiff’s pro se status and in the interest of justice, the undersigned 22 will review the claim as though it was labeled an ADEA claim. The ADEA makes it unlawful “to 23 discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1). The Ninth 24 Circuit has explained that ADEA claims based on circumstantial evidence of discrimination are 25 evaluated by using the three-stage burden-shifting framework laid out in McDonnell Douglas 26 Corp. v. Green, 411 U.S. 792 (1973). Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 27 (9th Cir. 2008). Pursuant to this framework, the employee must first establish a prima facie case 28 of age discrimination. Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). “To 1 establish a prima facie case using circumstantial evidence, the employees must demonstrate that 2 they were (1) members of the protected class (at least age 40); (2) performing their jobs 3 satisfactorily; (3) discharged; and (4) replaced by substantially younger employees with equal or 4 inferior qualifications.” Coleman v. Quaker Oats Co., 232 F.3d 1271, 1281 (9th Cir. 2000). 5 Plaintiff’s complaint and other filings fail to establish a prima facie case of age 6 discrimination. In the operative amended complaint, plaintiff writes under the heading “Age 7 Discrimination Under Title VII” the following: “Mark Lee over 50 leaving[;] Daniel Sandy over 8 50 leaving[;] Sian Carr Lopez over 50 leaving[.]” ECF No. 12 at 6. The complaint does not 9 present any facts related to age discrimination against plaintiff. ECF No. 12. In his opposition to 10 defendant’s motion to dismiss, plaintiff writes “I was discriminated due to race, age, national 11 origin and disability.” ECF No. 23 at 3. Though plaintiff makes the conclusory assertion that he 12 was discriminated against based on age, and though plaintiff provides many allegations regarding 13 his employment experience, he does not allege any facts showing that his age was related to his 14 discharge. Id. at 3-10. Defendant is correct that plaintiff alleges no facts showing that he was 15 replaced by a substantially younger employee with equal or inferior qualifications. See Coleman, 16 232 F.3d 1271. For these reasons, plaintiff has not presented a prima facie claim under the 17 ADEA. Plaintiff’s age discrimination claim should therefore be dismissed. 18 C. Remaining Claims and Leave to Amend 19 Defendants did not move to dismiss plaintiff’s claim of race discrimination under Title 20 VII, and that the case proceeds on that claim. 21 With respect to the defective claims, the undersigned recommends that plaintiff not be 22 granted leave to amend. A pro se litigant “must be given leave to amend his or her complaint 23 unless it is ‘absolutely clear that the deficiencies of the complaint could not be cured by 24 amendment.’” Colbert v. Borg, 967 F.2d 585, 585 (9th Cir. 1992) (quoting Noll v. Carlson, 802 25 F.2d 1446, 1448 (9th Cir. 1987). Due to a lack of familiarity with the law, the rule “‘favoring 26 liberality in amendments to pleadings is particularly important for the pro se litigant.’ ” Lopez v. 27 Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting Noll, 802 F.2d at1448). 28 //// 1 Here, leave to amend would be futile. Amendment cannot cure the failure to exhaust 2 administrative remedies that prevents this court from hearing plaintiff’s whistleblower retaliation 3 and disability claims. As to the age discrimination claim, it is apparent from a review of the 4 amended complaint, plaintiff’s supplemental facts, opposition to the motion to dismiss, and other 5 filings that he cannot state a prima facie claim. Plaintiff has presented the court with several 6 detailed narratives of the discrimination he allegedly experienced, and the only fact in any of 7 them that is relevant to age discrimination is the fact that plaintiff is over 40. See ECF Nos. 12, 8 19-2, 23. Meeting the ADEA’s age threshold is not enough to state a claim. Accordingly, 9 amendment would be futile. 10 V. Pro Se Plaintiff’s Summary 11 The magistrate judge is recommending that your disability discrimination and 12 whistleblower retaliation claims be dismissed because you failed to present those claims to the 13 MSPB. The magistrate judge is also recommending that your age discrimination claim be 14 dismissed for failure to state a claim upon which relief may be granted. It is not recommended 15 that you be given leave to amend any of these claims. However, your Title VII race 16 discrimination claim will go forward. You have 21 days to object to these recommendations if 17 you choose to do so. After the 21 days, these recommendations will be given to the district judge 18 for a final decision. 19 VI. Conclusion 20 The undersigned recommends that defendant’s motion to dismiss (ECF No. 19) be 21 GRANTED and that plaintiff’s claims of age discrimination, disability discrimination, and 22 whistleblower retaliation be dismissed without leave to amend. If this recommendation is 23 adopted, the case will proceed on plaintiff’s claim of race discrimination under Title VII. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 26 after being served with these findings and recommendations, any party may file written 27 objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a 28 document should be captioned “Objections to Magistrate Judge’s Findings and 1 | Recommendations.” Failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 3 || v. Yist, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 4 | DATED: December 23, 2024 5 Lhar—e_

ALLISON CLAIRE

6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10