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Sanchez v. McAllenan

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

August 13, 2019

KEVIN K. McALLENAN, Acting Secretary, United States Department of Homeland Security, Immigration and Customs Enforcement, Defendant.


          Thomas S. Zilly United States District Judge.

         By Minute Order entered August 7, 2019, docket no. 70, the Court granted in part and denied in part defendant's motion to dismiss for lack of subject matter jurisdiction and failure to state a claim and for summary judgment, docket no. 55, and granted in part and denied in part plaintiff's cross-motion for partial summary judgment, docket no. 60. The following order sets forth the Court's reasoning.


         A. Termination

         Plaintiff Jennifer Sanchez was previously employed by Immigration and Customs Enforcement (“ICE”). She was terminated on October 17, 2016. See Ex. D to Asher Decl. (docket no. 56-4). The stated grounds for removal were (i) conduct unbecoming a law enforcement officer, (ii) misuse of position, (iii) failure to cooperate with an investigation, and (iv) lack of candor in connection with plaintiff's arrest in March 2014 for driving under the influence of intoxicating liquor (“DUI”). Id. On November 2, 2016, plaintiff appealed ICE's adverse employment action to the Merit Systems Protection Board (“MSPB”) pursuant to 5 U.S.C. §§ 7512, 7513(d), & 7701. See Ex. 38 to Davis Decl. (docket no. 65-5). On August 10, 2017, the MSPB affirmed ICE's discharge of plaintiff. Ex. G to Chan Decl. (docket no. 58-7). Plaintiff filed this action on September 8, 2017. See Compl. (docket no. 1). With respect to her request for judicial review of the MSPB's affirmance of ICE's removal decision, plaintiff has timely appealed, and the Court has jurisdiction. See 5 U.S.C. § 7703(b)(2); 5 C.F.R. § 1201.175; see also Sloan v. West, 140 F.3d 1255, 1261 & n.19 (9th Cir. 1998).

         Plaintiff's appeal to the MSPB, which challenged an adverse employment action within the MSPB's purview, see 5 U.S.C. § 7512, and asserted a related violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, constituted a “mixed case.” In a “mixed case, ” the Court accords deference to the MSPB's determination of claims not involving discrimination, but reviews de novo the MSPB's resolution of discrimination claims. Sloan, 140 F.3d at 1260; see Washington v. Garrett, 10 F.3d 1421, 1428 (9th Cir. 1993) (“Upon reaching district court, the complainant is entitled to trial de novo on her discrimination claim.”).

         With regard to whether plaintiff establishes a prima facie case of discrimination and/or retaliation as to ICE's decision to terminate her, and whether ICE's articulated reasons for discharging plaintiff are pretextual, see Washington, 10 F.3d at 1432-33 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)), the Court concludes that genuine disputes of material fact preclude summary judgment. See Fed.R.Civ.P. 56(a). Even if ICE had legitimate, non-discriminatory grounds for disciplining plaintiff, [1]the crux of plaintiff's claims is not whether some sanction was warranted, but rather whether the punishment that ICE imposed was comparable to the treatment male colleagues received for similar misconduct or was more severe because it was motivated by plaintiff's gender or prior complaints about discrimination. Drawing all “justifiable inferences” from the evidence in plaintiff's favor, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), the Court is persuaded that the dispositive issues are factual in nature, and thus, with respect to plaintiff's discrimination and retaliation claims relating to her removal, the parties' cross-motions for summary judgment are DENIED.

         B. Other Discrete Adverse Employment Actions

         1. Failure to Timely Exhaust

         Plaintiff alleges that ICE discriminated or retaliated against her in myriad other ways besides terminating her. Defendant contends that, with a few exceptions, plaintiff's claims are time barred and seeks dismissal under Rule 12(b)(1). To establish federal subject matter jurisdiction, a plaintiff must exhaust administrative remedies before filing suit on a Title VII claim. Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002). None of the actions, other than discharge, that plaintiff contends were discriminatory or retaliatory could be challenged before the MSPB, and thus, plaintiff's sole avenue of administrative relief was to consult with an equal employment opportunity (“EEO”) counselor. See Shelley v. Geren, 666 F.3d 599, 605 (9th Cir. 2012). The time limit for consulting with an EEO counselor is 45 days after the action alleged to be discriminatory or retaliatory. See 29 C.F.R. § 1614.105(a). The Ninth Circuit has repeatedly held that, although this regulation “‘does not carry the full weight of statutory authority,' . . . absent waiver, estoppel, or equitable tolling, ‘failure to comply with this regulation [is] . . . fatal to a federal employee's discrimination claim' in federal court.” Shelley, 666 F.3d at 605 (quoting Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043 (9th Cir. 2009) (alterations in original, quoting Lyons, 307 F.3d at 1105)).

         Plaintiff first contacted an EEO counselor on November 28, 2016. Ex. D to Chan Decl. (docket no. 58-4). Although defendant initially asserted that the 45-day exhaustion period should be calculated from this date, defendant subsequently assumed for the sake of argument that the cutoff date for plaintiff's discrimination and/or retaliation claims is September 18, 2016, which is 45 days before November 2, 2016, when plaintiff appealed her removal to the MSPB. See Def.'s Reply at 2 (docket no. 66). The following ICE actions predate September 18, 2016:

• Assistant Field Office Director Michael Melendez's May 29, 2012, and May 30, 2012, instructions to plaintiff (via her supervisor) that she write and re-write a memorandum concerning the breakdown of a government vehicle assigned to her; see Ex. T to Hicks Decl. (docket no. 60-4);
• Field Office Director (“FOD”) Nathalie R. Asher's December 19, 2012, denial of plaintiff's request for a transfer[2] to the Tukwila Field Office; see Ex. G to Asher Decl. (docket no. 56-7);
• FOD Asher's November 21, 2013, imposition of a one-day suspension (which plaintiff served on December 31, 2013) relating to plaintiff's loss of government ...

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