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Cale v. United States

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

April 23, 2018

EDWARD CALE, Plaintiff,
v.
UNITED STATES, Defendant.

          ORDER GRANTING MOTION TO DISMISS

          MARSHA J. PECHMAN UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendant's Motion to Dismiss. (Dkt. No. 35.) Having reviewed the Motion, the Response (Dkt. No. 38), the Reply (Dkt. No. 47) and all related papers, the Court GRANTS the Motion.

         Background

         Plaintiff Edward Cale filed this action claiming that, during the course of his employment with the United States Postal Service (“USPS”), he was subjected to harassment, bullying, physical assault, and employment discrimination by various managers and employees.[1] (See Dkt. No. 14.) In particular, Plaintiff claims he was injured when (1) his supervisor once told him to stand in “poison”; (2) his supervisor once “grabbed [his] hand and violently ripped it towards her”; (3) he was once overcome by a strong odor while working; and (4) he was once attacked or menaced by dogs while working. (Id.) Plaintiff further claims that he was subjected to discrimination because he is a Caucasian male. (Id.) Plaintiff appears to assert claims for hostile work environment; physical assault; retaliation; violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e; and violation of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9610. (Id.)

         The United States now moves to dismiss for lack of subject matter jurisdiction and failure to state a claim.

         Discussion

         I. Legal Standard

         Under Federal Rule of Civil Procedure 12(b)(1), the Court must dismiss a complaint if it lacks subject matter jurisdiction over the claim. Fed.R.Civ.P. 12(b)(1). Under Rule 12(b)(6), the Court may dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court construes the complaint in the light most favorable to the non-movant. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005); see also Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). The Court must accept as true all well-pleaded allegations of material fact and draw all reasonable inferences in favor of the plaintiff. Wyler Summit P'Ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). Where, as here, a plaintiff appears pro se, the Court must construe his pleadings liberally and afford the plaintiff the benefit of the doubt. See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988).

         II. Rule 12(b)(1)

         A. Tort Claims

         Because each of Plaintiff's tort claims arise from the action of a federal employee “acting within the scope of [her] office or employment, ”[2] his exclusive remedy is the FTCA, 28 U.S.C. § 2679(b)(1). Before filing a claim under the FTCA, a plaintiff must exhaust all administrative remedies. See McNeil v. United States, 508 U.S. 106, 113 (1993) (“The FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies.”); Brady v. United States, 211 F.3d 499, 502 (9th Cir. 2000) (“The requirement of an administrative claim is jurisdictional, ” and as such “must be strictly adhered to. This is particularly so since the FTCA waives sovereign immunity.”) (internal quotation marks ad citation omitted). Plaintiff has never presented an administrative claim to USPS. (Dkt. No. 35 at 6; Dkt. No. 37 at ¶¶ 4, 6.) Because Plaintiff has failed to exhaust his administrative remedies, the Court finds that it is without jurisdiction to hear his tort claims.

         B. Title VII Claims

         Before filing a claim for employment discrimination on the basis of race, ethnicity, religion, or gender, a federal employee must exhaust administrative remedies. Bullock v. Berrien, 688 F.3d 613, 616 (9th Cir. 2012). The Ninth Circuit has explained this requirement as follows:

To exhaust administrative remedies, the aggrieved federal employee must first attempt to resolve the matter by filing an informal complaint that triggers counseling by an EEOC Counselor. 29 C.F.R. § 1614.105(a). If an informal resolution is not achieved, the employee must then file a formal complaint for decision by an ALJ. See id. ยงยง 1614.105(d), 1614.106. The employee may file a civil action in federal district court within 90 days of receiving notice of final agency action on the employee's formal complaint by the ALJ, or after 180 days from ...

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