Opinion
ORDER GRANTING IN PART PLAINTIFF'S MOTION TO DISMISS
SAUNDRA ARMSTRONG, District Judge.
This matter comes before the Court on the motion of Berkeley United School District ("the District") to dismiss with prejudice Plaintiff Reverend Earl Bill's ("Plaintiff") First Amended Complaint ("FAC") [Docket No. 42]. Having read and considered the papers submitted by the parties and being fully informed, the Court finds this matter appropriate for resolution without a hearing. The Court hereby GRANTS in PART Defendant's Motion to Dismiss. Plaintiff is granted leave to file a second amended complaint in accordance with this Order.
The District has made various objections [Docket No. 59] to portions of the Declaration of Reverend Earl Bill, which was submitted by Plaintiff in opposition to the District's motion. The Court did not consider the portions of the Bill Declaration that the District objects to and so the District's objections are OVERRULED as moot.
BACKGROUND
Facts are taken from the FAC and are presumed true for purposes of this motion. Cf. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995) (taking all allegations of material facts in complaint as true for purposes of resolving motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)).
Plaintiff, an African American male, is a minister and Pastor of Ebenezer Baptist Church in Berkeley, California. FAC ¶ 7. In 1991 the District hired Plaintiff as the On-Campus Suspension Coordinator for Berkeley High School. Id at ¶ 9. As the On-Campus Suspension Coordinator, Plaintiff was assigned to developing and coordinating an on-campus suspension program for at-risk youth, who were identified as African American and Hispanic students who were being ejected from classrooms, suspended from school, cutting classes, and truant from school. Id. Plaintiff's position as On-Campus Suspension Coordinator was funded by federal and state grants, contracts and cooperative agreements reserved for the special education of African-American and Hispanic students. Id at ¶ 10.
While employed as the On-Campus Suspension Coordinator, Plaintiff discovered that the School Board, Superintendent Michele Lawrence ("Lawrence"), and principals at Berkeley High School were diverting federal funds set aside for at-risk and minority youth and spending them on services for non-minority and non at-risk youth. Id at ¶ 12. Reverend Bill objected to the School Board's misappropriation of funds. Id at ¶ 13.
The FAC does not indicate whom Plaintiff voiced his opposition to or how the District discovered his disapproval of the School Board's spending.
On or about July 26, 2001, the District retaliated against Plaintiff for airing his opposition to the School Board's use of funds by eliminating his position of On-Campus Suspension Coordinator, claiming a lack of funds. Id at ¶ 14. However, the District then filled the position with a white male. Id. The District did not eliminate the positions of similarly situated non-African Americans who occupied positions funded by state and/or federal funds. Id.
On or about September 7, 2001, Plaintiff was hired by Berkeley High School's Berkeley Schools Excellence Project committee as Berkeley High School's Truancy Coordinator. Id at ¶ 17. Funded by federal grants, the Truancy Coordinator position was supposed to be a full time position with a yearly salary of $24, 785. Id. However, in retaliation against Plaintiff for his prior opposition to the School Board's misuse of federal funds, and in an effort to force him to resign, the District only funded the Truancy Coordinator position as a part time position. Id. The grant that funded the Truancy Coordinator position also included funds for equipment and supplies for the Truancy Program. Id at ¶ 18. However, the District, without any explanation, refused to provide Plaintiff with office space, a telephone, a computer, supplies and staff support. Id. The District did not deny equipment, supplies, office space, or staff support to similarly situated non-African American employees. Id.
In or about October 2001, Plaintiff learned that the District was diverting federal funds reserved for the Truancy program to the Berkeley YMCA for a program not focused on minority or at-risk youth. Id at ¶ 19. Upon learning of the diversion of funds Plaintiff complained to the principals at Berkeley High School that they were discriminating against the African American students by redirecting funds specifically set aside for African American students. Id. Plaintiff also complained to the District that it was discriminating against him on the basis of race because, unlike non-African American employees, the funds for his program were being diverted to other uses. Id. Moreover, Plaintiff gave an interview to the Berkeley Daily Planet, in which he spoke about the misappropriation of funds. Id at ¶ 20.
In or about May 2002, Plaintiff filed a charge based on race discrimination and retaliation with the DFEH. Id at ¶ 23. On or about June 3, 2002, in retaliation, the District told Plaintiff that his position as Truancy Coordinator was being eliminated due to a lack of funds. Id at ¶ 24. However, the District continued to receive federal funds for the Truancy program which it used to employ a non-African American and fund a YMCA program not aimed at minority or at-risk youth. Id.
On or about June 3, 2002, the District notified Plaintiff that he would be placed on a 39 month reemployment list, that required the District to hire him for vacant positions for which he was qualified "based on seniority." Id at ¶ 25. In May 2004, which was the 23rd month he was entitled to recall and reemployment rights, the Instructional Assistant position which Plaintiff previously occupied became vacant. The District has refused to rehire him for this or any other open and vacant position.
The FAC does not expound on this requirement.
It is not clear from the FAC when Reverend Bill was employed as an Instructional Assistant.
B. Procedural History
As noted supra, on May 8, 2002, Plaintiff filed a charge against the District with the DFEH. See Bill Decl., Exh. A. Plaintiff claimed discrimination and retaliation with respect to demotion, denial of employment and transfer, and denial of equipment, materials and supplies on September 7, 2001 "and continuing thereafter." Id. The charge states that the "date most recent or continuing discrimination took place" was May 1, 2002. Id. The DFEH issued a Right to Sue Notice on May 16, 2002. See Brier Decl., Exh. B. The EEOC issued a Notice of Right to Sue on Plaintiff's May 8, 2002 charge on October 1, 2002. Id., Exh. A.
The Court may properly examine this extra-pleading material because as discussed, infra, Plaintiff asserts discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) ("Title VII") and the District has challenged the Court's subject matter jurisdiction over this claim. Moreover, under Rule 12(b)(1), at any time in the litigation, the court may do so sua sponte. Fed.R.Civ.P. 12(h)(3); In re Miller's Cove Energy Co., Inc., 128 F.3d 449, 450 (6th Cir. 1997). "For motions to dismiss under Rule 12(b)(1), unlike a motion under Rule 12(b)(6), the moving party may submit affidavits or any other evidence properly before the court.... It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction. The district court obviously does not abuse its discretion by looking to this extra-pleading material in deciding the issue, even if it becomes necessaryto resolve factual disputes." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (citations omitted).
Plaintiff filed another charge against the District with the DFEH, received June 13, 2002. See Bill Decl., Exh. A. The charge states that Plaintiff was wrongfully terminated on June 7, 2002. Id. The charge, however, also states that the "date most recent or continuing discrimination took place" was July 10, 2002 but does not identify what this discriminatory act was. Id. The charge contains no factual detail with respect to these allegations of discrimination except to state that he was retaliated against. The EEOC issued a Notice of Right to Sue on Plaintiff's June 13, 2002 charge on April 19, 2004. Id., Exh. B. There is no evidence in the record of a Right to Sue Notice from the DFEH with respect to Plaintiff's June 13, 2002 charge.
Plaintiff has submitted a Right to Sue Notice from the DFEH dated September 20, 2002, however, the case number listed on the Right to Sue Notice does not correspond with the case number listed on the June 13, 2002 DFEH charge. See Bill Decl., Exh. C. Accordingly, the Court cannot determine whether this Right to Sue Notice was issued in response to the June 13, 2002 DFEH charge.
Plaintiff filed another charge against the District with the DFEH, dated June 13, 2003. See Bill Decl., Exh. A. The charge's assertions appear to be contradictory. The charge states that on June 13, 2002 and "continuing thereafter, " Plaintiff was wrongfully terminated, denied employment and subjected to retaliation. Id. But the charge further states that the "date most recent or continuing discrimination took place" was May 1, 2002. Id. The EEOC issued a Notice of Right to Sue on Plaintiff's June 13, 2003 charge on April 19, 2004. Id., Exh. B. There is no evidence in the record of a Right to Sue Notice from the DFEH with respect to Plaintiff's June 13, 2003 charge.
Plaintiff has submitted a Right to Sue Notice from the DFEH dated June 20, 2003, however, the case number listed on the Right to Sue Notice does not correspond with the case number listed on the June 13, 2003 DFEH charge. See Bill Decl., Exh. C. In fact the June 13, 2003 DFEH charge does not have a case number. Accordingly, the Court cannot determine whether this Right to Sue Notice was issued in response to the June 13, 2003 DFEH charge.
Plaintiff filed a complaint in this Court against the District on September 8, 2003, alleging five (5) causes of action: Race Discrimination in Violation of Title VI; Retaliation in Violation of Title VI; Race Discrimination in Violation of the Fair Employment and Housing Act ("FEHA"); Retaliation in Violation of the FEHA; and Retaliation for Free Speech Expression.
The District filed a motion to dismiss the complaint on February 12, 2004. Plaintiff also sought to amend his complaint to add a violation of the Employee Retirement Income Security Act ("ERISA") and discrimination and retaliation under Title VII.
On June 4, 2004 the Court granted in part the District's motion to dismiss. The Court dismissed with prejudice Plaintiff's Title VI claims and his First Amendment claim because they were time barred by the statute of limitations. The Court dismissed without prejudice Plaintiff's FEHA claim because he had failed to demonstrate that he had exhausted his administrative remedies. The Court granted Plaintiff leave to file a FAC that cured this deficiency and to add ERISA and Title VII claims.
Plaintiff then filed another charge with the DFEH, dated June 13, 2004. See Bill Decl., Exh. A. The charge states that in "May 2004 and from July 7, 2003 to the present" Plaintiff was wrongfully denied employment, and "recall and rehire rights." Id. The charge further states that the "date most recent or continuing discrimination took place" was June 2004. Id. The DFEH issued a Right to Sue Notice on July 8, 2004. See Bill Decl., Exh. C. The EEOC issued a Notice of Right to Sue on Plaintiff's June 13, 2004 charge on August 19, 2004. See Supp. Bill Decl., Exh. D.
On June 15, 2004 Plaintiff filed his FAC. The FAC alleges six (6) causes of action: Race Discrimination in Violation of Title VII; Retaliation in Violation of Title VII; Race Discrimination in Violation of 42 U.S.C. § 1981; Breach of Fiduciary Duty in Violation of ERISA; Race Discrimination in Violation of FEHA; and Retaliation in Violation of FEHA. On June 24, 2004, the District filed the instant motion to dismiss the FAC. The FAC also adds allegations that "[f]rom June 13, 2002, until the present, the District has failed and refused to either recall or reemploy [Plaintiff] to positions for which he was qualified." Id. ¶ 25.
The relation back doctrine of FRCP 15(c) applies to the FAC. When determining whether FRCP 15(c) applies, "the court compares the original complaint with the amended complaint and decides whether the claim to be added will likely be proved by the same kind of evidence' offered in support of the original pleading." Percy v. San Francisco General Hospital, 841 F.2d 975, 978 (9thCir. 1988), citing, Rural Fire Protection Co. v. Hepp, 366 F.2d 355, 362 (9th Cir. 1966). In making this decision, the court considers whether the allegations of a new theory in an amended complaint... involve the same transaction, occurrence, or core of operative facts involved in the original claim.'" Id., citing, Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1259 n.29 (9th Cir. 1982), cert. denied, 459 U.S. 1227 , 75 L.Ed.2d 468, 103 S.Ct. 1234 (1983).
LEGAL STANDARDS
Under Federal Rule Civil Procedure ("FRCP") 12(b)(6), a motion to dismiss should be granted only if it appears beyond a doubt that the plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). For purposes of such a motion, the complaint is construed in a light most favorable to the plaintiff and all properly pleaded factual allegations are taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Everest and Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir. 1994). All reasonable inferences are to be drawn in favor of the plaintiff. Jacobson v. Hughes Aircraft, 105 F.3d 1288, 1296 (9th Cir. 1997).
The court does not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981); see Miranda v. Clark County, Nev., 279 F.3d 1102, 1106 (9th Cir. 2002) ("[C]onclusory allegations of law and unwarranted inferences will not defeat a motion to dismiss for failure to state a claim."); Sprewell v. Golden State Warriors, 266 F.3d 979, 987 (9th Cir. 2001) ("Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences."), as amended, 275 F.3d 1187 (9th Cir. 2001); McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) ("[C]onclusory allegations without more are insufficient to defeat a motion to dismiss for failure to state a claim.").
When a complaint is dismissed for failure to state a claim, "leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). The court should consider factors such as "the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party and futility of the proposed amendment." Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989). Of these factors, prejudice to the opposing party is the most important. See Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971)). Leave to amend is properly denied "where the amendment would be futile." DeSoto Yellow Freight Sys., 957 F.2d 655, 658 (9th Cir. 1992).
FRCP 12(b)(1) authorizes a party to seek dismissal of an action for lack of subject matter jurisdiction. "When subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Communities for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001). "'A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment.'" Id. (quoting Smith v. McCullough, 270 U.S. 456, 459 (1926)).
A litigant may raise a challenge to a federal court's subject matter jurisdiction under Rule 12(b)(1) at any time in the litigation, as can the court sua sponte. Fed.R.Civ.P. 12(h)(3); In re Miller's Cove Energy Co., Inc., 128 F.3d 449, 450 (6th Cir. 1997).
In adjudicating such a motion, the court is not limited to the pleadings, and may properly consider extrinsic evidence. See Ass'n of Am. Med. Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000) (citations and quotations omitted). The court presumes lack of jurisdiction until the plaintiff proves otherwise. See Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989).
ANALYSIS
A. Title VII
Plaintiff asserts discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) ("Title VII"). As discussed, infra, Plaintiff's Title VII claim is based in part on allegations of discrimination that have not been administratively exhausted and/or are barred by the statute of limitations.
1. Exhaustion of Administrative Remedies
To establish subject matter jurisdiction over a Title VII claim, the plaintiff must have exhausted his administrative remedies by filing a timely charge with the EEOC. Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2004).
A plaintiff has 180 days from the date of the alleged discrimination to file a complaint with the EEOC. See 42 U.S.C. S 2000e-5(e)(1) (1998); Turley v. C.U.R.A., Inc., 2002 U.S. Dist. LEXIS 15465, at *4-5 (N.D. Cal. 2002). If a plaintiff initiates state administrative proceedings, the plaintiff then has 300 days from the date of the alleged discrimination or 30 days from the date of termination of the state proceedings, whichever is earlier, to file a charge with the EEOC. Id. Here, Plaintiff initiated state proceedings so he had 300 days from the date of the alleged discrimination, or 30 days from the termination of state proceedings, to file a charge with the EEOC.
The 300-day period begins to run from the date the employee knew or should have known of the alleged discriminatory act. Delaware State College v. Ricks, 449 U.S. 250, 257 (1980). Each discrete discriminatory or retaliatory act "occurs" when it happens and starts a new clock for filing an EEOC charge. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The EEOC charge, therefore, must be filed within the 300-day time period after each discrete discriminatory act occurred. Ibid. Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Ibid. In short, the Supreme Court in Morgan, expressly rejected the application of the continuing violations doctrine in Title VII actions involving discrete acts of discrimination or retaliation. Id. at 114.
In contrast to claims involving discrete acts of discrimination, "incidents comprising a hostile work environment are part of one unlawful employment practice, [and] the employer may be liable for all acts that are part of this single claim." Morgan, 536 U.S. at 118. "In order for the charge to be timely, the employee need only file a charge within... 300 days of any act that is part of the hostile work environment." Id.
Subject matter jurisdiction extends to all claims of discrimination that fall within the scope of the EEOC's actual investigation or an EEOC investigation that could reasonably be expected to grow out of the charge. Vasquez, 349 F.3d at 644; see also B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002). Allegations of discrimination not included in the plaintiff's administrative charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge. B.K.B., 276 F.3d at 1100.
In deciding whether a Title VII claim is reasonably related to the EEOC charge filed by the plaintiff, so as to be administratively exhausted, the court should consider such factors as the alleged basis of discrimination, dates of discriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which the discrimination is alleged to have occurred. Vasquez, 349 F.3d at 644-45.
a. May 8, 2002 charge
Plaintiff's May 8, 2002 charge alleges that "on [September 7, 2001] and continuing thereafter" Plaintiff was wrongfully demoted, denied employment, denied transfer, denied equipment, materials and supplies and had his hours reduced. Bill Decl., Exh. A. He states that the "most recent or continuing discrimination took place" on May 1, 2002.
"A charge initially filed with a state agency will be treated as constructively filed with the EEOC upon either the expiration of 60 days or the termination of agency proceedings, whichever occurs first." EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir. 2000); see 42 U.S.C. 2000e-5(c); see also 29 C.F.R. § 1601.13(b)(1). Constructive filing is made possible by "worksharing agreements, " which designate the EEOC and the state agency each other's agents for the purpose of receiving charges. Dinuba Med. Clinic, 222 F.3d at 585; see Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1175-76 (9th Cir. 1999). "In practical terms, therefore, a charge filed with a state agency within 240 days of the unlawful employment practice will be guaranteed timely filing with the EEOC. If the charge is filed with the state agency after the 240th day, however, it will be deemed timely filed with the EEOC only if state proceedings are terminated prior to the lapse of the 300th day." Dinuba Med. Clinic, 222 F.3d at 585.
Assuming that the discriminatory acts alleged in the May 8, 2002 charge are each discrete acts, the earliest act occurred on September 7, 2001. The DFEH closed the case effective May 8, 2002. See Brier Decl., Exh. B. This was prior to the lapse of the 300th day and therefore the charge was timely filed with the EEOC.
Despite this, a Title VII action must be commenced within ninety days of receipt of a right to sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1); Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 383 (9th Cir. 1997). Plaintiff concedes that the EEOC issued the Notice of Right to Sue with respect to the May 8, 2002 charge on October 1, 2002. Plaintiff did not file his complaint in this Court until September 8, 2003. Accordingly, Plaintiff is barred by the statute of limitations from bringing a Title VII action based on the events alleged in the May 8, 2002 charge.
b. June 13, 2002 charge
The June 13, 2002 charge alleged that "on June 7, 2002" Plaintiff was wrongfully terminated and denied employment. See Bill Decl., Exh. A. Accordingly, this charge was timely filed. The EEOC issued the Notice of Right to Sue with respect to the June 13, 2002 charge on April 19, 2004, which is after Plaintiff filed his complaint in this Court.
"Issuance of a right to sue letter subsequent to filing of a Title VII lawsuit and before trial cures any such procedural defects, unless defendants show that premature filing of the case precluded the administrative agency from performing its functions or prejudiced defendants." Diem v. San Francisco, 686 F.Supp. 806, 810 (N.D. Cal. 1988), citing, Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1351 (9th Cir. 1984); see Pinkard v. Pullman-Standard, 678 F.2d 1211, 1219 n.6 (5th Cir. 1982), cert. denied, 459 U.S. 1105 , 74 L.Ed.2d 954, 103 S.Ct. 729 (1983) ("Receipt of a right-to-sue letter subsequent to the commencement of a Title VII action, but while the action remains pending, satisfies the precondition that a plaintiff obtain statutory notice of the right to sue before filing a civil action under Title VII."); see also Edwards v. Occidental Chem. Corp., 892 F.2d 1442, 1445 n.1 (9th Cir. 1990) ("A Title VII complainant may file an action prior to receiving her right to sue letter, provided there is no evidence showing that the premature filing precluded the state from performing its administrative duties or that the defendant was prejudiced by such filing."). Given that Plaintiff filed a timely charge with the EEOC/DFEH, and the lack of evidence that Plaintiff's early filing of the Title VII claim precluded the state from performing its administrative duties, or of any prejudice, the Court finds that the early filing of the Title VII claim does not bar Plaintiff's claim.
Pursuant to Title VII, the EEOC is required to issue a right-to-sue letter 180 days after it assumes jurisdiction over a timely charge. 42 U.S.C. § 2000e-5(f)(1). Given that a charge initially filed with a state agency will be treated as constructively filed with the EEOC upon, at the latest, the expiration of 60 days, there does not appear to be any prejudice to the District because the EEOC should have issued a Notice of Right to Sue in February 2003.
Despite this, the District argues that Plaintiff's subsequent DFEH/EEOC filings "were meant to circumvent the statute of limitations." Rep. at 2. It is true that "[a] potential plaintiff may not evade the 90 day time limitation by filing successive EEOC charges." Lyles v. Principal Health Care, Inc., 1997 U.S. Dist. LEXIS 24168, at *4-5 (E.D. Mo. 1997); see Lo v. Pan Am, 787 F.2d 827, 828 (2d Cir. 1986), Cleveland v. Douglas Aircraft Co., 509 F.2d 1027, 1029 (3rd Cir. 1978); Babcock v. Frank, 729 F.Supp. 279, 285 (S.D.N.Y. 1990); Dowdell v. Sunshine Biscuits, Inc., 90 F.R.D. 107, 115-16 (M.D.Ga. 1981), aff'd, 673 F.2d 1343 (11th Cir. 1982). "[O]therwise, the time limitations... would be meaningless because potential plaintiffs could evade those requirements simply by seeking additional right to sue letters whenever they please." Lo, 787 F.2d at 828.
"However, where the allegations are different, even though related, courts have held that the plaintiff is entitled to rely on the later right-to-sue letter." Jones v. GKN Auto., Inc., 2000 U.S. Dist. LEXIS 9537, at *4 (M.D. N.C. 2000); see Goodluck v. Kelly Tractor Co., 733 F.Supp. 1479, 1481 (S.D. Fla. 1990). For example, in Dowdell v. Sunshine Biscuits, Inc., 90 F.R.D. 107 (M.D. Ga. 1981), the plaintiff filed two EEOC charges. The first alleged discrimination in job assignment. The second repeated the allegation of discrimination in job assignment, and also alleged discrimination in promotions, discipline, and the posting of job openings. See id. at 115. Both charges resulted in the issuance of right-to-sue letters. The plaintiff filed suit within ninety days of receiving the second letter, but not within ninety days of receiving the first.
The Dowdell court began by noting that "a Title VII plaintiff cannot be permitted to extend [the ninety-day] period by repeatedly filing broad, duplicative charges with the EEOC and obtaining multiple right to sue letters." Id. at 116. It then dismissed, as untimely, the plaintiff's suit as it related to discrimination in job assignment, because that claim had been raised in the first EEOC complaint. However, it did not "find the other allegations of [the] second charge, i.e., discrimination with respect to promotions and discipline, to be duplicitous (sic) of [the] first charge, " and it allowed the suit to proceed with respect to those allegations. Id.
Similarly, in GKN Auto, the plaintiff filed two EEOC charges. The first charge claimed that he was being discriminated against in pay. GKN Auto, 2000 U.S. Dist. LEXIS 9537 at *6. But in the second complaint he charged that he was being discriminated against in classification. Id. The court held that these two complaints were not duplicative. Id. at *7.
The May 8, 2002 charge alleged wrongful demotion, transfer, denial of equipment, materials and supplies, and reduction of hours since September 7, 2001. Alternatively, the June 13, 2002 charge asserts one claim: wrongful termination, which allegedly occurred on June 7, 2002. This incident could not have been alleged in the prior charge as it occurred after the prior charge's filing date. Thus, the Court finds that the allegations are sufficiently different such that Plaintiff's Title VII claim, to the extent it is based on the allegations in the June 13, 2002 charge, is timely.
c. June 13, 2003 charge
The June 13, 2003 charge alleges that "on June 13, 2002" and "continuing thereafter" Plaintiff was wrongfully terminated, denied employment, denied transfer and "subjected to retaliation." See Bill Decl., Exh. A. However, the June 13, 2003 charge also states in a contradictory fashion that the "most recent or continuing discrimination took place" on May 1, 2002. Id. Plaintiff further alleges that the retaliation occurred "because of prior complaint of discrimination/retaliation."
Plaintiff's June 13, 2003 charge is untimely. Plaintiff's EEOC charge must have been filed within the 300-day time period after each discrete discriminatory act occurred. While the charge states that the discriminatory acts occurred on "June 13, 2002" and "continuing thereafter, " there is nothing in the charge that suggests that any such acts occurred any later than June 13, 2002. In fact, while the charge claims that Plaintiff was wrongfully terminated, denied employment and subjected to retaliation, the charge fails to connect any specific acts with the dates listed. The charge contains no factual detail except for the allegation that the retaliation occurred "because of prior complaint of discrimination/retaliation." There are also no descriptions of conduct in the charge that would indicate the existence of a hostile work environment claim. See Morgan v. Pondersoa, Inc., 1998 U.S. Dist. LEXIS 9112, at *34-35 (N.D. Ill. 1998) (finding plaintiff's hostile work environment claim beyond the scope of his EEOC charge when the charge failed to provide "descriptions of conduct that would cause the EEOC to investigate" such claims). Thus, even liberally construing the charge, the charge only references discrete acts of retaliation and termination and references two dates: June 13, 2002 and May 1, 2002. Accordingly, the discriminatory acts alleged in the June 13, 2003 charge are not actionable because they are time barred. See Morgan, 536 U.S. at 113-14.
d. June 13, 2004 charge
In Plaintiff's June 13, 2004 charge, Plaintiff alleges that in "May 2004 and from July 7, 2003 to the present" he was wrongfully denied recall and rehire rights. See Bill Decl. Exh. A. Plaintiff asserts that the most recent or continuing discrimination took place in June 2004. The charge names Tina Brier, "Director of Classified Personnel." Id. The charge contains no other factual detail. The EEOC issued a Notice of Right to Sue on this charge on August 19, 2004. See Supp. Bill Decl., Exh. D.
In the FAC, filed June 15, 2004, Plaintiff alleges that "[o]n or about June 3, 2002, Tina Brier notified [Plaintiff] in writing that after termination, he would be placed on a 39-month reemployment list... which required that he be recalled to open and vacant positions for which he was qualified based on seniority." FAC ¶ 25. The FAC further alleges that "from June 13, 2002, until the present, the District has failed and refused to either recall or reemploy [Plaintiff] to positions for which he was qualified." Id. The FAC claims that in May 2004, a position "which [Plaintiff] previously occupied" became vacant but the District failed to recall him to this position. Id. The FAC contains no reference to an incident on July 7, 2003 or June 2004 or any other discriminatory acts besides the May 2004 failure to recall.
Plaintiff filed this EEOC charge after he filed his original complaint in this Court on September 8, 2003 and after the Court granted in part the District's motion to dismiss the complaint on June 4, 2004. However, the exhaustion requirement is "not a jurisdictional prerequisite to filing a Title VII suit. Rather, it is a requirement subject to waiver, estoppel, and equitable tolling when equity so requires.'" Morgan, 536 U.S. at 121 (citation omitted); see Leong v. Potter, 347 F.3d 1117, 1122-1123 (9th Cir. 2003) ("The exhaustion requirement is akin to a statute of limitations and is subject to waiver, equitable estoppel, and equitable tolling.").
Here, construing the allegations of the June 13, 2004 charge "with utmost liberality, " no discriminatory act occurred until the May 2004 failure to recall. Kaplan v. International Alliance of Theatrical & Stage Employees & Motion Picture Machine Operators, 525 F.2d 1354, 1359 (9th Cir. 1975). Since the failure to recall did not occur until May 2004, Plaintiff could not have filed his charge with respect to this discriminatory act until after this point in time. Given that Plaintiff filed his charge just a few months after the act occurred, and has since received a Notice of Right to Sue on this charge, the Court finds that Plaintiff's failure to exhaust his administrative remedies before he filed his complaint in this action does not prevent the Court from considering his Title VII claim to the extent it is based on failure to recall. In addition, as Plaintiff did not allege failure to recall in his prior charges, the allegations in the June 13, 2004 are not duplicative. See GKN Auto, 2000 U.S. Dist. LEXIS 9537 at *7. Thus, to the extent that Plaintiff's Title VII claim is based on failure to recall, the claim is timely.
It is unclear from the charge and the FAC whether Plaintiff is alleging a continuing violation. While the FAC uses the words "until the present, " even liberally construing Plaintiff's allegations, the only discriminatory act referenced in the FAC and the charge is a May 2004 refusal to rehire. Furthermore, neither the FAC or the charge suggest that the District's failure to recall him is part of a hostile work environment claim. See Morgan, 536 U.S. at 115.
B. § 1981
Plaintiff also brings a claim against the District under 42 U.S.C. § 1981. Plaintiff alleges that "[o]n or about June 3, 2002, [the District] notified [Plaintiff] in writing that after termination, he would be placed on a 39-month reemployment list... which required that he be recalled to open and vacant positions for which he was qualified based on seniority." FAC ¶ 25. Plaintiff claims that "[f]rom June 16, 2003 to the present, the District has denied and continues to deny [Plaintiff] his recall and reemployment rights... in violation of 42 U.S.C. section 1981." Id. ¶¶ 52-53.
Section 1981 protects two rights: "the same right... to make... contracts" and "the same right... to... enforce contracts." Patterson v. McLean Credit Union, 491 U.S. 164, 176 (1989); see 42 U.S.C. § 1981. In Patterson, the Supreme Court stated that § 1981 "prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions." Id. at 176-77. With respect to the right to enforce contracts, the Court stated that the right does not "extend beyond conduct by an employer which impairs an employee's ability to enforce through legal process his or her established contract rights." Id. at 177-78. In 1991, however, Congress "overturned Patterson by defining the key make and enforce contracts' language in § 1981 to include the termination of contracts and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship'" (hereinafter, "the 1991 Act"). Jones v. R. R. Donnelley & Sons Co., 124 S.Ct. 1836, 1846, 158 L.Ed.2d 645, 657 (2004), citing, 42 USC § 1981(b).
The FAC does not explicitly allege that the District entered into a contract with Plaintiff whereby the District was obligated to recall and rehire him. However, construing the FAC in the light most favorable to him, and assuming that such a contract existed, Plaintiff's allegations are directed towards "the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship" and therefore do not state claims under the original version of § 1981. Jones, 124 S.Ct. at 1840, 158 L.Ed.2d at 651. Accordingly, because Plaintiff's cause of action was only made possible by the 1991 Act, they "arise under" the 1991 Act and are subject to the four year statute of limitations provided for by 28 U.S.C. § 1658. See id., 124 S.Ct. at 1845-46 , 158 L.Ed.2d at 657; Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1060-61 (9th Cir. 2004). Accordingly, Plaintiff's § 1981 claim is timely.
However, in order to state a § 1981 claim against the District, Plaintiff must allege that his § 1981 rights were violated as a result of an official policy or custom. Federation of African Am. Contrs. v. City of Oakland, 96 F.3d 1204, 1215 (9th Cir. 1996) (holding that the 1991 amendment to 42 U.S.C. § 1981 preserves the "policy or custom" requirement in suits against state actors). Plaintiff may not maintain a § 1981 claim against the District based on respondeat superior. Id. at 1215-16.
While the FAC states that "[t]he District has treated similarly situated non-Black persons eligible for recall or reemployment differently, " Plaintiff has failed to allege that this treatment was pursuant to an official policy or custom. FAC ¶¶ 25, 52. In fact, the FAC suggests that the District's actions "violated its own Rules and Regulations." FAC ¶ 24; see also FAC ¶ 25. Accordingly, Plaintiff's § 1981 claim is DISMISSED WITHOUT PREJUDICE. Plaintiff is granted leave to file a second amended complaint that presents a set of facts sufficient to support an allegation that the District wrongfully denied Plaintiff his "recall and rehire" rights as part of an official policy or custom.
C. ERISA
Plaintiff has conceded that his ERISA claim fails. Accordingly, Plaintiff's ERISA claim is DISMISSED WITH PREJUDICE.
D. FEHA
"Under California law an employee must exhaust the... administrative remedy' provided by the Fair Employment and Housing Act, by filing an administrative complaint with the [DFEH] (Gov. Code, § 12960; cf. id., § 12901, 12925, subd. (b)) and obtaining the DFEH's notice of right to sue ( id., § 12965, subd. (b)), before bringing suit on a cause of action under the act or seeking the relief provided therein.'" Martin v. Lockheed Missiles & Space Co., 29 Cal.App.4th 1718, 1724 (Cal. Ct. App., 1994) (citations omitted). Under Cal. Govt. Code § 12965(b), a claimant "may bring a civil action under [the FEHA]... within one year" from the date the DFEH issued its right to sue letter. EEOC v. Farmer Bros. Co., 31 F.3d 891, 902 (9th Cir. 1994).
"The administrative time limits prescribed by FEHA are treated as equivalent to statutes of limitations and are subject to equitable doctrines such as waiver, estoppel, and tolling." Rodriguez v. Airborne Express, 265 F.3d 890, 900 (9th Cir. 2001); Grywczynski v. Shasta Beverages, Inc., 606 F.Supp. 61, 65-66 (N.D. Cal. 1984); Keiffer v. Bechtel Corp., 65 Cal.App.4th 893, 899-901 (1998); Denney v. Universal City Studios, Inc., 10 Cal.App.4th 1226, 1233-34 (1992) (abrogated on other grounds); but see Grant v. Comp USA, Inc., 109 Cal.App.4th 637, 651 (2003) (noting that some courts have questioned whether the exhaustion requirement is jurisdictional but concluding that "it was at least a precondition to bringing civil suit' on employee's FEHA claims that [plaintiff] first exhaust her FEHA remedies" and that "failure by the DFEH to issue a right-to-sue notice after one year does not preclude a determination that employee has exhausted her administrative remedies.").
"Because California law under the FEHA mirrors federal law under Title VII, federal cases are instructive." Couveau v. American Airlines, Inc., 218 F.3d 1078, 1082 (9th Cir. 2000), citing, Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1219 (9th Cir. 1998) (citations omitted); see also Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996); Brundage v. Hahn, 57 Cal.App.4th 228, 235, 66 Cal.Rptr.2d 830, 835 (1997).
Plaintiff received a right to sue letter on May 16, 2002 for his May 8, 2002 charge. Because Plaintiff failed to bring a civil action under the FEHA within one year from the date of this letter, to the extent Plaintiff's FEHA claim is based on the allegations in the May 8, 2002 charge, that claim is barred by the statute of limitations.
Plaintiff argues that he received a right to sue letter for his June 13, 2002 charge on September 20, 2002 and a right to sue letter for his June 13, 2003 charge on June 20, 2003. But the case numbers listed on these letters do not correspond with the case numbers on the charges that Plaintiff claims they are associated with. In fact, the June 13, 2003 charge does not have a case number at all. Given this discrepancy, the Court does not have enough information to determine whether Plaintiff has exhausted his administrative remedies with respect to the allegations set forth in the June 13, 2002 charge and the June 13, 2003 charge. Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff's FEHA claims to the extent they are based on the allegations set forth in the June 13, 2002 charge and the June 13, 2003 charge. Plaintiff is granted leave to file a second amended complaint that alleges facts sufficient to allow the Court to determine whether or not Plaintiff has met the applicable claim presentation requirements. Plaintiff may have to return to the appropriate agencies to have them ensure that the correct case numbers are reflected on the charges and the right to sue letters.
Plaintiff filed his last charge on June 13, 2004. Again, this is after Plaintiff filed the instant complaint and after the Court dismissed Plaintiff's original complaint and granted him leave to amend his FEHA claim if he could demonstrate that he had exhausted his administrative remedies. However, as explained in connection with Plaintiff's Title VII claim, the June 13, 2004 charge alleges wrongful denial of recall and rehire rights based on the District's May 2004 failure to recall him. Accordingly, this charge could not have been brought before May 2004. Given this, and given that Plaintiff filed the charge just a few months after the act occurred, the Court finds that his failure to exhaust his administrative remedies before filing a complaint in this Court does not prevent the Court from considering his FEHA claim.
CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED THAT Defendant's motion to dismiss [Docket No. 42] is GRANTED IN PART AND DENIED IN PART as follows:
1. Plaintiff's Title VII claim is DISMISSED WITH PREJUDICE to the extent it is based on the events alleged in the May 8, 2002 Charge, as time barred;
2. Defendant's motion to dismiss is DENIED with respect Plaintiff's Title VII claim to the extent it is based on the events alleged in the June 13, 2002 Charge;
3. Plaintiff's Title VII claim is DISMISSED WITH PREJUDICE to the extent it is based on the events alleged in the June 13, 2003 Charge, as time barred;
4. Defendant's motion to dismiss is DENIED with respect Plaintiff's Title VII claim to the extent it is based on failure to recall;
5. Plaintiff's § 1981 claim is DISMISSED WITHOUT PREJUDICE. Plaintiff is granted leave to file a second amended complaint ("SAC") that presents a set of facts sufficient to support an allegation that the District wrongfully denied Plaintiff his "recall and rehire" rights as part of an official policy or custom;
6. Plaintiff's FEHA claim is DISMISSED WITH PREJUDICE to the extent it is based on the events alleged in the May 8, 2002 Charge, as time barred;
7. Plaintiff's FEHA claim is DISMISSED WITHOUT PREJUDICE to the extent it is based on the events alleged in the June 13, 2002 Charge and the June 13, 2003 Charge. Plaintiff is granted leave to file a SAC that alleges a set of facts and presents evidence sufficient to demonstrate that he has exhausted his administrative remedies with respect to these charges.
8. Defendant's motion to dismiss is DENIED with respect Plaintiff's FEHA claim to the extent it is based on failure to recall;
9. Plaintiff's ERISA claim is DISMISSED WITH PREJUDICE.
If Plaintiff chooses to file a SAC, the SAC must address the deficiencies identified in this Order and be filed no later than October 15, 2004. If Plaintiff fails to file a SAC by this date, the Court may dismiss Plaintiff's case with prejudice, either sua sponte or on motion of the District.
IT IS FURTHER ORDERED THAT the Case Management Conference scheduled for September 14, 2004 is VACATED. The parties shall appear for a telephonic Case Management Conference on Thursday, December 2, 2004 at 2:30 p.m. The parties shall meet and confer prior to the conference and shall prepare a joint Case Management Conference Statement which shall be filed no later than ten (10) days prior to the Case Management Conference. Plaintiff shall be responsible for filing the statement as well as for arranging the conference call. All parties shall be on the line and shall call (510) 637-3559 at the above indicated date and time.
IT IS SO ORDERED.
Plaintiff has also made various objections to portions of the Declaration of Tina Brier and the Supplemental Declaration of Tina Brier and the exhibits attached thereto. The Court did not consider the portions of the Brier Declaration and the Supplemental Brier Declaration that Plaintiff objects to and so Plaintiff's objections are OVERRULED as moot.
With respect to the exhibits, they consist of a Notice of Right to Sue dated October 1, 2002 from the Equal Employment Opportunity Commission("EEOC") (Brier Decl., Exh. A), a Notice of Case Closure dated May 16, 2002 from the California Department of Fair Employment and Housing ("DFEH") (Brier Decl., Exh. B), and a charge filed May 8, 2002 with the DFEH (Supp. Brier Decl., Exh. C). Curiously, Plaintiff cites to these exhibits in his opposition( see Opp. at 3:19-20) and has submitted the same May 8, 2002 DFEH charge that he objects to as Exhibit A to the Declaration of Reverend Earl Bill. Accordingly it is not clear why he objects to any of these exhibits. Regardless, pursuant to Fed.R.Evid. 201(b), a court may take judicial notice of records and reports of administrative bodies. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). It is also proper for the court to "take judicial notice of matters of public record outside the pleadings" and consider them for the purposes of this motion. M.G.I.C. Indemnity Corporation v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); Wilton v. San Francisco, 1992 U.S. Dist. LEXIS 19439, at *2 n.2 (N.D. Cal. 1992). Accordingly, the Court takes judicial notice of these documents and overrules Plaintiff's objections with respect to these exhibits.
To establish subject matter jurisdiction over a Title VII claim, the plaintiff must have exhausted his administrative remedies by filing a timely charge with the EEOC. Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2004). The DFEH and the EEOC have a work-sharing agreement whereby a complaint filed with the EEOC will automatically be filed with the DFEH if appropriate. Rodriguez v. Airborne Express, 265 F.3d 890, 901 n.9 (9th Cir., 2001). Accordingly, inorder to determine if Plaintiff has exhausted his administrative remedies, the Court may examine the charges filed with the EEOC/DFEH.
While Plaintiff's original complaint did not allege a Title VII claim, the Court granted him leave to allege such a claim and that claim arises out of the same conduct set forth in the original complaint and therefore relates back to the date of the original complaint. See Percy, 841 F.2d at 979 ("[A]mendment of a complaint is proper if the original pleading put the defendant on notice of the particular transaction or set of facts' that the plaintiff believes to have caused the complained of injury."). Similarly, Plaintiff's new allegations of wrongful denial of recall and rehire rights are proper because they involve the same core of operative facts involved in the original termination claim. Cf. Burnam v. Amoco Container Co., 755 F.2d 893, 894 (11th Cir. 1985) (per curiam) ("[A] failure to rehire subsequent to an allegedly discriminatory firing, absent a new and discrete act of discrimination in the refusal to rehire itself, cannot resurrect the old discriminatory act."). Since the original complaint alleged wrongful termination, the District was on notice of the "particular transaction or set of facts" that form the basis of Plaintiff's wrongful recall and rehire claim. Given the foregoing, the Court finds that the FAC relates back to the date of the original complaint, which is September 8, 2003.