1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CLEAFERSE MCCOWEN, Case No.: 20cv2498-CAB-BLM

12 Plaintiff,

ORDER GRANTING MOTION TO

13 v. DISMISS PLAINTIFF’S COMPLAINT [Doc. No. 18] 14 DEPARTMENT OF VETERANS AFFAIRS, a government agency, and ELI 15 SISNEROS, in his employment and 16 individual capacities, 17 Defendants. 18 19 On January 14, 2021, Robert Wilkie, Secretary of the Department of Veterans 20 Affairs, filed a motion to dismiss Plaintiff’s complaint. [Doc. No. 18.] On January 29, 21 2021, Plaintiff Cleaferse McCowen filed an opposition. [Doc. No. 19.] On February 9, 22 2021, Secretary Wilkie filed a reply. [Doc. No. 20.] The Court deems the motion 23 suitable for determination on the papers submitted and without oral argument. See S.D. 24 Cal. CivLR 7.1(d)(1). For the reasons set forth below, the motion is GRANTED. 25 ALLEGATIONS OF COMPLAINT 26 On October 11, 2019, Plaintiff was a Maintenance Mechanic Leader employed by 27 the Department of Veterans Affairs. [Complaint, Doc. No. 1, Ex. 1 at p. 2.] Plaintiff 28 alleges he was subjected to a hostile work environment based on race, age and physical 1 disability. Id. at 4. Due to alleged harassment by his supervisor, Plaintiff claims his 2 working conditions became so intolerable that he had no choice but to retire. Id. at 6. 3 Plaintiff filed an EEO complaint, which was dismissed on January 29, 2020. Id. at 2. 4 Plaintiff then filed an appeal with the Merit System Protection Board (“MSPB”). Id. In a 5 decision that became final on July 20, 2020, the MSPB rejected Plaintiff’s claims, ruling 6 that his allegations “do not, either individually or collectively, meet the ‘demanding legal 7 standard’ required for a constructive discharge claim.” Id. at 7. The MSPB decision 8 informed Plaintiff of his appeal rights, including his right to file suit in federal court 9 within thirty (30) days. Id. at 14. 10 On July 30, 2020, Plaintiff filed a Complaint in the Central District of California 11 against the Department of Veterans Affairs and his former supervisor. [Doc. No. 1.] The 12 Complaint contains various federal and state law claims of discrimination, as well as a 13 claim for negligent infliction of emotional distress under California law. Id. Plaintiff 14 served his Complaint on November 9, 2020. [Doc. No. 10.] Thereafter, the case was 15 transferred to the Southern District of California. [Doc. Nos. 15, 16.] 16 LEGAL STANDARD 17 Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a defendant may seek 18 to dismiss a complaint for lack of jurisdiction over the subject matter. The federal court is 19 one of limited jurisdiction. See Gould v. Mutual Life Ins. Co. v. New York, 790 F.2d 769, 20 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its 21 own subject matter jurisdiction. See Steel Co. v. Citizens for a Better Environ., 523 U.S. 22 83, 95 (1998). When considering a Rule 12(b)(1) motion to dismiss, the district court is 23 free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, 24 resolving factual disputes where necessary. See Augustine v. United States, 704 F.2d 25 1074, 1077 (9th Cir. 1983). In such circumstances, “[n]o presumptive truthfulness 26 attaches to plaintiff's allegations, and the existence of disputed facts will not preclude the 27 trial court from evaluating for itself the merits of jurisdictional claims.” Id. (quoting 28 Thornhill Publishing Co. v. General Telephone & Electronic Corp., 594 F.2d 730, 733 1 (9th Cir. 1979) ). Plaintiff, as the party seeking to invoke jurisdiction, has the burden of 2 establishing that jurisdiction exists. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 3 U.S. 375, 377 (1994). 4 A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. 5 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 6 12(b)(6) where the complaint lacks a cognizable legal theory or fails to allege sufficient 7 facts to support a cognizable legal theory. Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013). 8 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 9 accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 10 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 11 (2007). A claim is facially plausible when the factual allegations permit “the court to 12 draw the reasonable inference that the defendant is liable for the misconduct alleged.” 13 Iqbal, 556 U.S. at 678. In other words, “the non-conclusory ‘factual content,’ and 14 reasonable inferences from that content, must be plausibly suggestive of a claim entitling 15 the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing 16 Iqbal, 556 U.S. at 678). “Determining whether a complaint states a plausible claim for 17 relief will ... be a context-specific task that requires the reviewing court to draw on its 18 judicial experience and common sense.” Iqbal, 556 U.S. at 679. 19 DISCUSSION 20 A. Plaintiff Failed to Sue the Proper Party. 21 The proper defendant in an employment discrimination case under either Title VII 22 or the ADEA is the head of the employee's agency. Romain v. Shear, 799 F.2d 1416, 23 1418 (9th Cir. 1986). In this case, that individual is the Secretary of the Department of 24 Veterans Affairs, who has not been named as a defendant. Instead, Plaintiff has named 25 the Department of Veterans Affairs and Eli Sisneros, his former supervisor. In his 26 opposition to the motion to dismiss, Plaintiff appears to concede that he cannot sue his 27 former supervisor under Title VII [Doc. No. 19 at 7:17-21] and acknowledges that his 28 attempt to sue the agency is a “misnaming error” [Doc. No. 19 at 7:22-25]. Instead, 1 Plaintiff asserts that he “is entitled to receive a grant to amend the Complaint.” [Doc. No. 2 19 at 10:12-13.] However, as set forth below, leave to amend would be futile. 3 B. Leave to Amend Would be Futile. 4 A claimant challenging an MSPB decision has 30 days to bring a civil action in 5 district court. 5 U.S.C. §7703(b)(2). Here, Plaintiff did file the Complaint within 30 6 days of the MSPB decision, but he did not sue the proper party. Under current Ninth 7 Circuit law, if the wrong defendant is sued in the original complaint, the statute of 8 limitations cannot be tolled unless the complaint is amended to name the proper 9 defendant and it satisfies the relation back requirements of Rule 15(c). Romain v. Shear, 10 799 F.2d 1416, 1418-19 (9th Cir. 1986) (holding Title VII claims were barred because 11 plaintiff failed to sue the Secretary within 30 days and noting the defect “could not be 12 remedied by a Rule 15 amendment” because no “government official or entity was served 13 within the thirty-day period”). Here, the relation-back requirements cannot be met 14 because the thirty-day period expired on August 19, 2020 and Plaintiff did not serve any 15 “government official or entity” until November 9, 2020. [Doc. No. 10.] Therefore, leave 16 to amend would be futile.1 17 C. Title VII Preempts Plaintiff’s State Law Claims. 18 Finally, all of Plaintiff's state law and common law claims are preempted because 19 Title VII is the exclusive remedy for claims of discrimination arising out of federal 20 employment. See Brown v. GSA, 425 U.S. 820, 829, 96 S.Ct. 1961, 48 L.Ed.2d 402 21 (1976) (stating that Title VII is “an exclusive, preemptive administrative and judicial 22 scheme for the redress of federal employment discrimination”); Scott v. Perry, 569 F.2d 23 1064, 1065 (9th Cir.1978) (same). The same holds true for Plaintiff’s claim of negligent 24 infliction of emotional distress. Sommatino v. United States, 255 F.3d 704, 711 (9th Cir. 25 26 27 1 Plaintiff’s request for equitable tolling because his counsel was “unaware of any 30-day requirement to serve or add the Secretary” [Doc. No. 19 at 10:3-4], is not a basis for relief. See Spitsyn v. Moore, 345 28 1 2001) (holding Title VI preempts Federal Tort Claims Act (“FTCA”) claims and 2 || “provides the exclusive remedy for federal employees seeking to redress employment 3 || discrimination”). While Title VII does not preclude separate remedies for 4 || unconstitutional acts or for “highly personal violation[s] beyond the meaning of 5 || ‘discrimination.’ ” Otto v. Heckler, 781 F.2d 754, 757 (9th Cir. 1986) (citing Stewart v. 6 || Thomas, 538 F.Supp. 891, 896 (D.D.C.1982)), Plaintiff’s allegations that his supervisor 7 || treated him in a rude, derogatory and unprofessional manner do not rise to the level of a 8 “highly personal violation.” Id. See Wilson v. United States Dep’t of Veterans Affairs, 9 CV 10-2648 PA (AJWx), 2001 WL 13213944, 3 (C.D. Cal. Mar. 21, 2011)(finding 10 || plaintiff’s intentional infliction of emotional distress claim resulting from an alleged 11 |{hostile work environment preempted by Title VII). Therefore, Plaintiff does not state an 12 || FTCA claim.” 13 CONCLUSION 14 For the reasons set forth above, the motion to dismiss the Complaint is 15 || GRANTED WITH PREJUDICE. The Clerk shall enter judgment accordingly and 16 || CLOSE the case. 17 Dated: February 26, 2021 € 18 Hon. Cathy Ann Bencivengo 19 United States District Judge 20 21 22 23 24 25 26 > Even if Plaintiff did allege an FTCA claim, it is barred because Plaintiff has not complied with the 27 || FTCA’s administrative claim requirement. See 28 U.S.C. §2675(a); Burns v. United States, 764 F.2d 9g || 722, 724 (9th Cir. 1985)(“The [administrative] claim requirement of section 2675 is jurisdictional in nature and may not be waived.”).