ORDER DENYING DEFENDANT'S MOTION TO DISMISS

Re: Dkt. No. 18

MAXINE M. CHESNEY, District Judge.

Before the Court is defendant Rex W. Tillerson's "Motion to Dismiss Plaintiff's Complaint for Damages Pursuant to Federal Rule of Civil Procedure 12(b)(1)," filed April 21, 2017. Plaintiff Elizabeth Tekleabib has filed opposition, to which defendant has replied.1 Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.2

BACKGROUND

In her complaint, plaintiff, who was formerly employed by the United States Department of State as a Passport Specialist (see Compl. ¶ 7), asserts two claims, each alleging a violation of Title VII of the Civil Rights Act.

In Claim One, titled "Race Discrimination," plaintiff alleges that, "[d]uring her employment," she "suffered discrimination based on her race, color, and national origin," identified as, respectively, "Black, African/African-American, Ethiopian," and gives the following "examples" of discriminatory acts: (1) "[b]eing disciplined, including being put on a performance improvement plan and given a letter of admonishment"; (2) "[b]eing given low performance ratings"; (3) "[h]aving her work performance subject to extreme scrutiny, and working under different terms and conditions of employment than non-Black co-workers"; and (4) "[h]aving her performance criticized for not `articulating' well enough (because she had an accent)." (See Compl. ¶ 9.) According to plaintiff, "[n]on-Black co-workers who made more errors than plaintiff were not subject[ed] to discipline." (See Compl. ¶ 10.)

In Claim Two, also titled "Race Discrimination," plaintiff alleges that, "[d]uring her employment," she "was subjected to a hostile work environment based on her race/color/ national origin, including but not limited to being placed under extra scrutiny and excessive monitoring, being subjected to inappropriate racially based comments, receiving less support than non-African American coworkers, having false allegations made against her, and being subjected to intimidation and bullying." (See Compl. ¶ 17.)

DISCUSSION

Defendant seeks dismissal of plaintiff's complaint, on the asserted ground that plaintiff did not exhaust her administrative remedies.

At the outset, the Court addresses the procedure by which defendant has raised the issue of exhaustion. Defendant contends that a failure to exhaust deprives a district court of jurisdiction and, consequently, that the instant motion is properly brought under Rule 12(b)(1). Relying on cases holding that a party seeking dismissal under Rule 12(b)(1) may offer evidence in support thereof, see, e.g., Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (holding district court did not err in considering "evidence outside the complaint" to resolve motion to dismiss for lack of subject matter jurisdiction), defendant has submitted thirteen exhibits as support for the instant motion. As the Ninth Circuit has explained, however, "[courts] do not recognize administrative exhaustion under Title VII as a jurisdiction requirement per se," but, rather, as a "condition precedent to suit which a defendant may waive or be estopped from asserting." See Vinieratos v. United States, 939 F.2d 762, 768 n.5 (9th Cir. 1991) (internal quotation and citation omitted). Nonetheless, the Court will consider defendant's evidence as, even if the motion had been brought under Rule 12(b)(6), each of the exhibits on which defendant relies is one as to which the Court ordinarily may take judicial notice3 and plaintiff has not challenged the authenticity of any of those exhibits; indeed, plaintiff herself has relied on several of them in her opposition.

The Court next considers the steps a federal employee must take to exhaust administrative remedies.

"Title VII specifically requires a federal employee to exhaust his administrative remedies as a precondition to filing suit." Vinieratos, 939 F.2d at 767-68. The Federal Labor-Management Relations Act, specifically, 5 U.S.C. § 7121(d), "governs the methods and manner by which a federal employee with exclusive union representation may challenge an adverse personnel decision by the government agency that employs him." See id. at 768. Under § 7121(d), "a federal employee who alleges employment discrimination must elect to pursue his claim under either a statutory procedure or a union-assisted negotiated grievance procedure; he cannot pursue both avenues, and his election is irrevocable." See id. "An employee shall be deemed to have exercised his option under [§ 7121(d)] to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first." 5 U.S.C. § 7121(d).

Where a plaintiff alleges discrimination on the basis of race, color, or national origin, the applicable statutory procedure is that set forth in Title VIII, see 29 U.S.C. § 2000e-16, and in regulations promulgated by the Equal Employment Opportunity Commission ("EEOC"), see 29 C.F.R. §§ 1614.101-1614.707. Specifically, a federal employee who elects to pursue a discrimination claim under such statutory procedure must first consult with an equal employment opportunity ("EEO") counselor, see 29 C.F.R. §§ 1614.102(b)(6), 1614.105(a), and, if dissatisfied with the outcome of the counseling, must then file an EEO complaint, see 29 C.F.R. § 1614.106. "[T]he filing of a written [EEO] complaint" constitutes a federal employee's election to proceed using the EEO process. See 29 C.F.R. § 1614.301(a).

Here, plaintiff alleges she filed with the EEOC a "formal complaint of discrimination on her claims." (See Compl. ¶ 3.) Defendant has not disputed said allegation, and, indeed, has submitted evidence, specifically, correspondence from the EEOC to plaintiff (see Falis Decl. Exs. B-D), that establishes a formal EEO complaint was filed. (See id. Ex. B (acknowledging receipt of "Formal Complaint of Discrimination dated April 10, 2013"); Ex. C (acknowledging receipt of EEO complaint alleging discrimination on basis of race, color, and national origin;4 identifying allegedly discriminatory acts as placement on "Performance Improvement Plan," receiving "letter of reprimand," and being "subjected to a hostile work environment characterized by, but not limited to, inappropriate comments, false allegations, intimidating behavior, and excessive monitoring").)5 In sum, plaintiff's filing of an EEO complaint constituted her irrevocable election to exhaust her administrative remedies through the EEO process with respect to the matters raised therein, specifically, (1) her placement in a performance improvement plan and her receipt of a letter of reprimand, which actions are challenged in Claim One of the instant action,6 and (2) her subjection to a hostile work environment, which actions are challenged in Claim Two.

Where, as here, a plaintiff elects to exhaust discrimination claims through the EEO process, the plaintiff is then "committed" to complete that process. See Vinieratos, 939 F.2d at 769. To complete the EEO process, the plaintiff must "receive a notice of right to sue." See Waters v. Heublein, 547 F.2d 466, 468 (9th Cir. 1976). Here, plaintiff alleges she received a "right to sue notice from the EEOC" (see Compl. ¶ 3), which allegation defendant has not disputed; indeed, defendant has submitted the right to sue notice (see Falis Decl. Ex. M at 3.)7 Nevertheless, defendant argues, plaintiff failed to exhaust her administrative remedies because, according to defendant, she "abandoned the EEO process." (See Def.'s Mot. at 5:23-25.)

"Abandonment of [the EEO process] in order to pursue another avenue of relief constitute[s] a failure to exhaust the one appropriate remedy [the employee] had selected." See Vinieratos, 939 F.2d at 769. The Court thus turns to the question of whether the evidence submitted by defendant establishes that plaintiff, having irrevocably elected to exhaust her discrimination claims through the EEO process, thereafter abandoned it.

As noted, plaintiff filed her EEO complaint on April 10, 2013. Thereafter, on December 27, 2013, plaintiff was terminated by the Department of State (see Falis Decl. Ex. I at 9) and then filed a grievance (see id. Ex. F, Tab G at 1.) The grievance, according to the arbitrator who heard it,8 presented the following issue: "Was the removal of [plaintiff] proper under the law and the Collective Bargaining Agreement; if not, what is the appropriate remedy?" (See id. Ex. I at 2).9 A hearing on the grievance was conducted on October 22 and 23, 2014 (see id. Ex. I at 1), and, on March 20, 2015, the arbitrator issued an "Opinion and Award" denying the grievance. (See id. Ex. I.) Plaintiff then sought review of the arbitrator's decision from the Merit Systems Protection Board ("MSPB"), which "denied the request, concluding that [it] did not have jurisdiction over the matter because [plaintiff] did not raise a discrimination claim in the arbitration proceeding." (See id. Ex. L at 2.)10 Thereafter, the EEOC determined it would not consider the merits of plaintiff's EEO complaint and, as noted, issued a right to sue notice. (See Falis Decl. Ex. M.)

Defendant argues that plaintiff, by pursuing the above-referenced grievance, abandoned the EEO process. Specifically, defendant argues, plaintiff abandoned the EEO process by (1) "voluntarily dismiss[ing]" her EEO complaint "in favor of the pending grievance proceeding" (see Def.'s Mot. at 6:24-25), and (2) "challeng[ing] the same adverse employment actions in [the] negotiated grievance proceeding" (see id. at 9:5-5-6). The record, however, does not support either such assertion.

Contrary to defendant's first assertion, there is no evidence showing plaintiff dismissed her EEO complaint; rather, the record establishes that an administrative law judge ("ALJ") sua sponte dismissed the EEO complaint and then reinstated it shortly thereafter. Specifically, the ALJ to whom plaintiff's EEO complaint had been assigned conducted a status conference on November 18, 2014, and, on the same date, issued an order titled "Order: Dismissal Without Prejudice." (See Falis Decl. Ex. F, Tab D.) In said order, the ALJ stated that, at the status conference, "it was agreed by the parties that [plaintiff] will seek to pursue her claim of termination before the Merit Systems Protection Board (MSPB), should the pending arbitration proceeding result in an adverse decision." (See id.)11 The ALJ further stated that "[i]t is also understood that [plaintiff's] discrimination-based claims are related to her termination and may be brought before the Board." (See id.)12 Lastly, the ALJ stated as follows: "In light of this development and of the overlapping jurisdictional issues involved, this case is dismissed, without prejudice, sua sponte, . . . and will be re-instated under a new case docket number following the disposition of the matter by the MSPB." (See Falis Decl. Ex. F, Tab D.) Less than three months later, on February 12, 2015, the ALJ issued an order stating, without elaboration, that plaintiff's EEO case had been "reinstated," even though, as of that date, there had been no decision by the arbitrator, much less the MSPB. (See id. Ex. F, Tab E.) In sum, it is not clear why the ALJ issued either of the above two orders,13 but what is clear is that plaintiff's EEO complaint was dismissed on the ALJ's own motion, not by plaintiff, and there is nothing in the record to suggest plaintiff had agreed to such dismissal.

Next, contrary to defendant's second assertion, there is no evidence showing plaintiff presented to the arbitrator for determination any of the claims set forth in her EEO complaint. The only claim determined by the arbitrator, and the only claim the arbitrator stated had been presented in the grievance, was plaintiff's claim of improper termination.14 Specifically, the arbitrator, noting that the performance improvement plan required plaintiff to make no more than six "significant knowledge errors" during the 45-day period in which the plan was in effect, determined whether plaintiff made the requisite number of errors during the applicable time period. (See id. Ex. I at 10, 14, 16, 51.) The arbitrator did not consider whether it was appropriate for plaintiff's employer to place plaintiff on a performance improvement plan in the first instance or to issue plaintiff a letter of reprimand, which claims were set forth in her EEO complaint and are asserted in the instance action. Although the arbitrator did note plaintiff's testimony that her supervisor "would sometimes laugh at [plaintiff's] Ethiopian accent" (see Ex. I at 16), nothing in the arbitrator's decision suggests that he found such testimony relevant to the matter pending before him, nor does the record reflect anything to suggest plaintiff had asserted, as an explanation for her allegedly poor performance or otherwise, that she had been subjected to a discriminatory hostile work environment. Indeed, as noted, the MSPB, in determining whether to review the arbitrator's decision, found plaintiff had made no claim of discrimination in the grievance process.

Accordingly, there being no basis to conclude plaintiff abandoned the EEO process, the motion to dismiss will be denied.

CONCLUSION

For the reasons stated above, defendant's motion to dismiss is hereby DENIED.

IT IS SO ORDERED.