Nestor Domingo v. Megan J. Brennan
690 F. App'x 928
| 9th Cir. | 2017Background
- Nestor C. Domingo, pro se, appealed district court judgments dismissing various federal employment claims arising from fitness-for-duty exams and workplace treatment by the Postal Service.
- The appeal raises claims under the Rehabilitation Act (challenging a third fitness-for-duty exam), discrimination, retaliation, harassment, hostile work environment, tort, contract, and due process theories.
- The district court granted summary judgment on the Rehabilitation Act claim and dismissed the other claims on grounds including res judicata, failure to meet FTCA "sum certain" requirement, failure to exhaust union remedies for contract claim, and improper official-capacity due process suit.
- The district court allowed certain medical records to be filed under seal; Domingo contested that ruling on appeal.
- The Ninth Circuit reviewed the matters de novo where appropriate, affirmed the district court in all respects, and declined to consider issues not raised in the opening brief or newly raised on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of third fitness-for-duty exam under Rehabilitation Act | Exam was not job-related and not consistent with business necessity | Exam was job-related and satisfied business necessity | Affirmed summary judgment for defendant; Domingo failed to raise genuine dispute on job-relatedness/business necessity |
| Res judicata for discrimination/retaliation/harassment/hostile work environment claims | Claims are new and not precluded | Claims were raised or could have been raised in prior action with final judgment | Affirmed dismissal under res judicata |
| Tort claims under FTCA (sum certain) | FTCA claims are viable despite EEO complaints | EEO complaints did not state the required sum certain | Affirmed dismissal for failure to meet FTCA sum certain requirement |
| Breach of contract (failure to pursue union remedies) | May sue employer directly for contract breach | Must exhaust union grievance process first | Affirmed dismissal for failure to use union grievance procedure |
| Due process claim against Postmaster in official capacity | Due process claim is permissible against Postmaster | Official-capacity Bivens claims are not allowed; must be individual-capacity | Affirmed dismissal; official-capacity Bivens claim improper |
| Sealing of medical documents | Sealing was unnecessary | Documents contained sensitive medical information warranting seal | Affirmed district court’s sealing order |
| Jurisdiction to review bill of costs | Appellant sought review of costs | No separate/amended notice of appeal was filed for costs | Court lacked jurisdiction to review costs |
Key Cases Cited
- Doe v. Abbott Labs., 571 F.3d 930 (de novo review standard for Rule 12(b)(6) and summary judgment dismissals)
- Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985 (res judicata standard)
- Hell’s Angels Motorcycle Corp. v. McKinley, 360 F.3d 930 (appellate affirmance on any record-supported basis)
- Brownfield v. City of Yakima, 612 F.3d 1140 (business necessity standard under Rehabilitation Act)
- Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708 (elements and preclusive effect of res judicata)
- Blair v. IRS, 304 F.3d 861 (FTCA "sum certain" requirement)
- Stupy v. U.S. Postal Serv., 951 F.2d 1079 (requirement to use union grievance procedure before suing USPS for contract breach)
- Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157 (Bivens actions only against defendants in individual capacity)
- Pintos v. Pac. Creditors Ass’n, 605 F.3d 665 (standard of review for sealing orders)
- Stone v. INS, 514 U.S. 386 (separate appeal requirement for post-judgment non-tolling motions)
- Padgett v. Wright, 587 F.3d 983 (appellate rule: issues not raised in opening brief need not be considered)