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Christensen v. Spencer

United States District Court, W.D. Washington, Tacoma

October 10, 2017

RICHARD V. SPENCER, Secretary of the Department of Navy, Defendant.


          ROBERT J. BRYAN, United States District Judge

         This case comes before the Court on the Defendant's Motion to Dismiss. Dkt. 15. The Court has considered the pleadings filed regarding the motion and the remaining record.

         In this case, Plaintiff asserts in his Amended Complaint that his former employer, the United States Navy, discriminated against him based on his disability, created a hostile work place, and retaliated against him contrary to the Rehabilitation Act, 29 U.S.C. § 791, et. seq. (“RA”). Dkt. 22. Defendant now moves for dismissal of the case based on Plaintiff's failure to exhaust his administrative remedies. Dkt. 15. For the reasons provided below, the motion (Dkt. 15) should be granted.

         The following facts are taken from the Amended Complaint (Dkt. 22) and the administrative records of the Merit Systems Protection Board and the Equal Employment Opportunity Commission. The Court has taken judicial notice of several documents that were in the records of these administrative bodies. Pursuant to Federal Rule of Evidence 201, a court may “take judicial notice of matters of public record but not of facts that may be subject to reasonable dispute.” Id. (internal citations and quotations omitted). “Judicial notice is appropriate for records and reports of administrative bodies.” United States v. 14.02 Acres of Land More or Less in Fresno Cty., 547 F.3d 943, 955 (9th Cir. 2008). A court can also consider “unattached evidence on which the complaint necessarily relies” if: “(1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the document.” United States v. Corinthian Colleges, 655 F.3d 984, 998-99 (9th Cir. 2011)(internal citations and quotations omitted). As it relates to Plaintiff's EEO complaints and requests for accommodation, those documents are referred to in the complaint, they are central to whether Plaintiff exhausted his administrative remedies, and Plaintiff does not question the authenticity of the documents. Further, Plaintiff submitted several documents related to his EEO complaints in response to the motion, so they were considered. Dkt. 21-1. In understanding whether Plaintiff exhausted his administrative remedies, some background facts are necessary.


         Starting in May of 2008, Plaintiff worked as an Explosives Operator Helper and, during the time relevant here, an Ordinance Equipment Mechanic Helper, at the Naval Undersea Warfare Center in Keyport, Washington. Dkts. 22, at 2 and 16-1, at 2-4. In his Amended Complaint, Plaintiff asserts that in 2011 he was diagnosed with Cerebral Palsy and Scoliosis. Dkt. 22, at 2. Plaintiff states that these medical conditions caused him to have limitations using his back and spine. Id. Plaintiff claims that he “requested the use of approved leave and a modified work schedule” in order to get treatment. Id., at 3. Plaintiff asserts in his Amended Complaint that Defendant adjusted and modified his time records to show he was absent without leave; disciplined him based on leave issues, which he maintains “Defendant intentionally created;” and disciplined him after he made reports of discrimination. Id. at 4. Plaintiff also asserts that a supervisor disparaged Plaintiff's doctor's diagnoses and a co-worker disparaged Plaintiff's use of leave for medical treatment. Id.


         On March 6, 2012, Plaintiff formally requested accommodations in the form of “job restructuring to coincide with [his] light duty when applicable, physical therapy and medical appointments, maybe even a part time or modified schedule.” Dkt. 16-1, at 43. He also requested use of “leave without resulting in disciplinary action, ” reassignment, and that his “leave record be corrected.” Id. He asserts in his Amended Complaint that his “first level supervisor, second level supervisor, and third level supervisor found that Plaintiff was able to perform the essential functions of his job with accommodation.” Dkt. 22, at 3. Plaintiff's March 6, 2012 request for accommodations was denied on June 4, 2012 for lack of substantiation. Dkt. 16-2, at 2-6.


         On April 9, 2012, Plaintiff filed an informal Equal Employment Opportunity Commission (“EEOC” or “EEO”) complaint, based on the Navy's alleged violations of EEOC regulations. Dkt. 21-1, at 4-13. On May 2, 2012, the Plaintiff and the Navy consented to mediate Plaintiff's informal complaint. Dkt. 21-1, at 15. The record does not indicate what happened to this informal complaint or in the mediation.


         On June 4, 2012, Plaintiff filed a formal EEO complaint based on the Navy's denial of Plaintiff's request for reasonable accommodations, alleged harassment of Plaintiff, issuance of two separate suspensions: one for 14 days and another for five days, and alleged manipulation of Plaintiff's time cards from August 2011 to April 2012. Dkts. 16-2, at 21-23.


         On August 6, 2012, Plaintiff was notified that the Navy was considering terminating his employment for “unauthorized absence and failure to follow instructions” regarding call-in procedures. Dkt. 16-1, at 34-36.

         On September 6, 2012, Plaintiff filed another request for accommodation (Dkt. 16-2, at 18-19) which was substantially similar to his March 2012 request. The Navy denied it for lack of ...

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