United States District Court, W.D. Washington, Tacoma
ERIC C. CHRISTENSEN, Plaintiff,
RICHARD V. SPENCER, Secretary of the Department of Navy, Defendant.
ORDER ON DEFENDANT'S MOTION TO DISMISS
J. BRYAN, United States District Judge
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.
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.
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.
BACKGROUND FACTS AND PROCEDURAL HISTORY
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
PLAINTIFF REQUESTS ACCOMMODATIONS
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,
PLAINTIFF FILES AN INFORMAL EQUAL EMPLOYMENT OPPORTUNITY
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.
PLAINTIFF FILES A FORMAL EEO COMPLAINT
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.
PLAINTIFF'S RE-REQUESTS ACCOMODATION AND HIS EMPLOYMENT
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,
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 ...