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Hashem v. Army & Air Force Exchange, Service

United States District Court, District of Nevada

December 18, 2014

STEPHANIE HASHEM, Plaintiff,
v.
ARMY AND AIR FORCE EXCHANGE SERVICE, Defendant.

ORDER DKT. #13

ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

Plaintiff Stephanie Hashem was fired from her job at Defendant Army and Air Force Exchange Service (“AAFES”) in July 2013. Hashem contends her termination was discriminatory and that she was subjected to a hostile work environment and disability discrimination while employed at AAFES. AAFES previously moved to dismiss, contending Hashem failed to exhaust her administrative remedies. I granted that motion, with leave to amend for Hashem to allege exhaustion. AAFES now moves to dismiss Hashem’s Amended Complaint, again arguing Hashem failed to exhaust administrative remedies.

I. Background

AAFES hired Hashem as a food service worker in January 1989. (Dkt. #9 at 2-3.) Hashem alleges AAFES’s supervisors were harassing her, [1] so she filed an equal employment opportunity (“EEO”) complaint on July 29, 2011. (Id.) According to Hashem, AAFES did not inform her whether it conducted an investigation of her complaint. (Id.)

In December 2012, a doctor recommended Hashem’s work activities be limited due to an injury to her elbow. (Id. at 3.) Hashem alleges she informed her supervisors of her limitations but her supervisors advised her “there was no such thing as light duty.” (Id.) According to Hashem, they also told her she would be terminated if she missed work for an extended period of time due to injury. (Id.) Hashem missed work from January 2, 2013 through February 14, 2013 because of her elbow injury. (Id.) According to Hashem, when she returned to work, she was given physically demanding tasks against her doctor’s orders. (Id. at 3-4.) Hashem alleges she filed an EEO complaint on April 24, 2013. (Id.) According to Hashem, AAFES again did not inform her about any investigation. (Id. at 4.)

On July 23, 2013, Hashem was accused of stealing food and drinks totaling $68.60. (Id.) She was told to pay for the items or be fired, so Hashem paid AAFES $68.60. (Id.) According to Hashem, it was common practice for employees to take these types of items, management was aware employees did so, and no other employees were reprimanded or terminated for this conduct. (Id.) AAFES terminated Hashem’s employment later that month. (Id. at 4.)

Hashem filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on September 21, 2013. (Id.) The EEOC issued a final determination letter to Hashem in January 2014. (Id.)

Hashem filed suit in this Court against AAFES on April 10, 2014, asserting various federal and state law claims related to her employment and termination. (Dkt. #1.) AAFES moved to dismiss, arguing Hashem’s employment is governed solely by federal law and, thus, her state law claims must be dismissed. AAFES also argued Hashem failed to exhaust her administrative remedies so her federal claims also must be dismissed. I granted that motion, with leave for Hashem to amend to adequately allege exhaustion for her federal claims. Hashem filed an Amended Complaint asserting claims under Title VII, the Americans with Disabilities Act (“ADA), and the Rehabilitation Act for wrongful termination, hostile work environment, and disability discrimination. (Dkt. #9.)

AAFES now moves to dismiss the Amended Complaint. AAFES argues Hashem has not exhausted her administrative remedies because (1) her 2011 complaint pre-dated the activities about which she complains in her Amended Complaint, (2) AAFES has no record of receiving a complaint in April 2013, and (3) the September 2013 complaint with the EEOC does not exhaust her remedies because any complaint must be filed first with AAFES’s EEO office. Hashem responds that she is alleging ongoing harassing conduct and therefore her earlier complaint exhausts her administrative remedies. Hashem further argues that whether she filed a complaint in April 2013 is an issue of fact. Finally, Hashem argues that AAFES failed to respond to her earlier complaints and she therefore was justified in filing the September 2013 complaint with the EEOC.

II. Discussion

“AAFES is a nonappropriated fund instrumentality of the United States, that is, one that does not receive funds by congressional appropriation.” Army & Air Force Exch. Serv. v. Sheehan, 456 U.S. 728, 730 n.1 (1982) (citing 10 U.S.C. §§ 4779(c), 9779(c)). AAFES employees are considered federal employees, even though not paid out of congressionally appropriated funds. Calder v. Crall, 726 F.2d 598, 600 (9th Cir. 1984).

As federal employees, AAFES employees must exhaust administrative remedies before bringing a discrimination lawsuit in federal court. Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043 (9th Cir. 2009); 42 U.S.C. §§ 2000e-16(a), (c); 29 C.F.R. § 1614.103. The failure to exhaust the required administrative remedies is an affirmative defense that the defendant bears the burden of pleading and proving. Kraus, 572 F.3d at 1046 n.7.

A federal employee alleging employment discrimination first must consult an EEO counselor within 45 days of the discriminatory incident. 29 C.F.R. § 1614.105(a)(1). If the matter is not resolved through counseling within 30 days, the EEO counselor issues a notice informing the employee of her right to file a discrimination complaint with the entity that employs her. Id.§ 1614.105(d). The employee then has 15 days to file a formal complaint with her employer. Id. §§ 1614.105(d), 1614.106(a). Once she files the complaint, the employer has 180 days to investigate. Id. §§ 1614.108(a), (e). The employer may dismiss the complaint, settle it, or issue a final decision on the merits. Id. §§ 1614.107, 1614.109(b)-(c), 1614.110.

If the employer dismisses the complaint or issues a final decision, the aggrieved individual may file a civil suit in federal district court or appeal to the EEOC. Id. §§ 1614.401(a), 1614.407(a). If the employee elects to sue, she must do so within 90 days of receiving the employer’s final decision. Id. § 1614.407(a). If the employer does not issue a final decision within 180 days of the complaint, the employee may sue any time after the 180-day period expires. Id. § 1614.407(b). If she appeals to the EEOC, she must do so within 30 days of receiving the employer’s dismissal or final action. Id. § 1614.402(a). The employee may file suit in federal district court within 90 days of the EEOC’s decision on appeal or 180 days after filing her appeal if the EEOC has not yet issued a decision. Id. § 1614.407(c)-(d). Additionally, “[i]f the employee ...


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