Warkes Amirian v. Costco Wholesale Corporation et alNOTICE OF MOTION AND MOTION to Dismiss CaseC.D. Cal.April 17, 2017 Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations TARA WILCOX, Cal. Bar No. 157015 501 West Broadway, 19th Floor San Diego, California 92101-3598 Telephone: 619-338-6500 Facsimile: 619-234-3815 twilcox@sheppardmullin.com SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations MATTHEW S. MCCONNELL, Cal. Bar No. 209672 12275 El Camino Real, Suite 200 San Diego, California 92130-2006 Telephone: 858-720-8900 Facsimile: 858-509-3691 mmcconnell@sheppardmullin.com Attorneys for Defendant COSTCO WHOLESALE CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WARKES AMIRIAN, an individual Plaintiff, v. COSTCO WHOLESALE CORPORATION, a Washington Corporation; and DOES 1 through 10, inclusive, Defendants. Case No. 2:17-cv-1740 JFW (PJWx) [Complaint Filed: January 30, 2017] NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM (F.R.C.P. 12(b)(6)) OR, ALTERNATIVELY, STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT (F.R.C.P. 12(f); AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: May 15, 2017 Time: 1:30 p.m. Place: Crtrm 7A Judge: Hon. John F. Walter Pretrial Conf: Jan. 19, 2018 Trial Date: Feb. 6, 2018 Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 1 of 29 Page ID #:235 -1- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 15, 2017, at 1:30 p.m., or as soon thereafter as this matter can be heard, in Courtroom 7A of the United States District Court for the Central District of California, located at 350 W. 1st Street, Los Angeles, California, defendant Costco Wholesale Corporation ("Costco") will and hereby does move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff Warkes Amirian’s (“Plaintiff”) First Amended Complaint (“FAC”) in its entirety. Alternatively, Costco will and hereby does move pursuant to Federal Rule of Civil Procedure 12(f) to strike portions of the FAC. This motion is made on the following grounds: 1. Plaintiff's claim for federal age discrimination under the Age Discrimination in Employment Act (“ADEA”) should be dismissed because: (1) Plaintiff never filed an administrative charge with the Equal Employment Opportunity Commission (“EEOC”); (2) even if the administrative complaint Plaintiff filed with the California Department of Fair Employment and Housing (“DFEH”) could be considered sufficient to exhaust as to a federal discrimination claim, it was filed well after the 300 day deadline to exhaust federal ADEA claims; (3) even if Plaintiff’s DFEH administrative complaint was sufficient to exhaust as to a federal discrimination claim, Plaintiff failed to file his civil lawsuit within 90 days of receiving his right-to-sue notice from the DFEH; and (4) even if Plaintiff’s DFEH administrative complaint was sufficient to exhaust as to a federal age discrimination claim, Plaintiff did not even allege age discrimination. Each of these defects provides an independent basis to dismiss Plaintiff’s ADEA age discrimination claim without leave to amend. Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 2 of 29 Page ID #:236 -2- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. The FAC includes the following stray allegations relating to claims previously contained in Plaintiff’s original Complaint for wrongful termination based on tort and contract and FEHA-based disability and age discrimination: p. 2, line 27: “and disability” p. 2, line 27: “and state laws” p. 3, line 2: “and corresponding California law” p. 3, lines 6-7: “who was also receiving workers compensation benefits” p. 4, line 23: “and/or disability” p. 11, lines 7-8: “(1) in violation of the written agreement, i.e., Article 4 of Union Agreement (“UA”)” p. 11, line 9: “and disability” p. 11, line 24: “and disability” p. 11, lines 25-27: “and/or disability (Plaintiff had been receiving worker’s compensation benefits for the injuries he got while working for Defendant).” p. 12, lines 11-12: “PLAINTIFF was medically treated during the past few years and had some physical disabilities. This disability is closely related to his age.” p. 12, lines 19-20: “and has medical problems that do not allow him to perform his duties as better as previously.” p. 13, line 4: “and disability” To the extent Plaintiff seeks to pursue wrongful termination and/or FEHA-based claims, the Court should dismiss them with prejudice because: (1) any such claims are barred because Plaintiff signed a valid and enforceable general release of all known and unknown claims, attached as Exhibit 1 to the Complaint; (2) Plaintiff failed to exhaust his administrative remedies as to the FEHA claims; and (3) any wrongful termination claims are preempted by Section 301 of the Labor Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 3 of 29 Page ID #:237 -3- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Relations Act and time-barred by the six month statute of limitations provided by section 10(b) of the National Labor Relations Act, 29 U.S.C. 160(b). Alternatively, the Court should strike these allegations because they are immaterial to Plaintiff’s ADEA claim. This Motion is made following the conference of counsel pursuant to Local Rule 7-3 which took place on March 29, 2017. This Motion is based upon this Notice of Motion and Motion, the Memorandum of Points and Authorities in support thereof and filed concurrently herewith, the Declaration of Matthew S. McConnell, the records and files in this action, any argument that may be requested at the hearing, and any and all other matters this Court deems necessary. Dated: April 17, 2017 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Matthew S. McConnell TARA WILCOX MATTHEW S. MCCONNELL Attorneys for Defendant COSTCO WHOLESALE CORPORATION Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 4 of 29 Page ID #:238 -i- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................. 1 II. STATEMENT OF FACTS AND PROCEDURAL HISTORY ........................ 2 III. LEGAL ARGUMENT ...................................................................................... 6 A. Legal Standard ........................................................................................ 6 B. Plaintiff’s Claim For ADEA Age Discrimination Fails As A Matter Of Law ......................................................................................... 7 1. Plaintiff Failed To File An Administrative Charge With The EEOC Within 300 Days Of His Termination........................ 7 2. Plaintiff Cannot Use His DFEH Complaint As A Substitute For An EEOC Charge .................................................. 8 3. Plaintiff Failed to File His Lawsuit Within 90 Days Of Receiving His State Right-To-Sue Notice .................................. 11 4. Plaintiff’s DFEH Complaint Did Not Mention Age Discrimination ............................................................................ 11 5. Plaintiff’s Recent Attempt To “Amend” His DFEH Complaint Does Not Allow Him To Sue For Federal Age Discrimination ............................................................................ 12 C. Plaintiff’s Stray Allegations Relating To Other Claims Should Be Dismissed And/Or Stricken ............................................................. 13 1. The Parties’ Release Agreement Bars All Claims Other Than Federal ADEA Claims ....................................................... 14 2. Plaintiff Failed To Administratively Exhaust Claims For FEHA Age Or Disability Discrimination ................................... 16 3. Any Wrongful Termination Claims Are Preempted By Section 301 Of The Labor Management Relations Act ............. 17 IV. CONCLUSION ............................................................................................... 19 Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 5 of 29 Page ID #:239 -ii- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Albano v. Schering–Plough Corp. 912 F.2d 384 (9th Cir.1990) ................................................................................. 10 Bean v. Crocker Nat. Bank 600 F.2d 754 (9th Cir.1979) ................................................................................... 7 Cahill v. Liberty Mut. Ins. Co. 80 F.3d 336 (9th Cir. 1996) .................................................................................... 6 Cook v. Lindsay Olive Growers 911 F.2d 233 (9th Cir. 1990) ................................................................................ 19 Davenport v. Bd. of Trs. of State Ctr. Cmty. Coll. Dist. No. 1:07-cv-00494 OWW SMS, 2009 WL 891057 (E.D. Cal. Mar. 31, 2009) ................................................................................................................. 7 Del Costello v. International Brotherhood of Teamsters 462 U.S. 151 (1983) ............................................................................................. 19 Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California 463 U.S. 1 (1983) ................................................................................................. 17 Ghartey v. St. John’s Queens Hospital 869 F.2d 160 (2nd Cir. 1989) ............................................................................... 19 Gonzales v. Harrah’s Operating Co., Inc. 2013 WL 6284172 (D. Nevada December 4, 2013)............................................. 10 Griffin v. Kraft General Foods 62 F.3d 368 (11th Cir. 1995) ................................................................................ 15 Heath v. AT&T Corp. 2005 WL 2206398 (N.D. Cal. Sept. 12, 2005) ............................................... 18, 19 Hill v. Ralphs Grocery Store Co. 896 F. Supp. 1492 (C.D. Cal. 1995) ..................................................................... 18 Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 6 of 29 Page ID #:240 -iii- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Imbach v. Schultz 58 Cal.2d 858 (1962) ............................................................................................ 16 Kruchowski v. The Weyerhauser Co. 423 F.3d 1139 (10th Cir. 2005) ............................................................................ 15 Lillis v. Apria Healthcare, Inc. 2013 WL 1561491 (S.D. Cal. April 11, 2013) ................................................. 9, 10 Mack v. South Bay Beer Distribs. 798 F.2d 1279 (9th Cir. 1986), abrogated on other grounds by Astoria Fed. Sav. & Loan Assoc. v. Solimino, 501 U.S. 104 (1991) .................... 7 Marder v. Lopez 450 F.3d 445 (9th Cir. 2006) ................................................................................ 16 Martin v. Lockheed Missiles & Space Co. 29 Cal. App. 4th 1718 (1994) ............................................................................... 16 Middlekauff v. KCRA-TV 2012 WL 5388139 (E.D. Cal. 2012) .................................................................... 12 Nakamoto v. Lockheed Martin Corp. 2010 WL 2348634 (N.D. Cal. June 8, 2010) ....................................................... 15 Paperworks Int’l Union, AFL-CIO v. Misco, Inc. 484 U.S. 29 (1987) ............................................................................................... 18 Parker-Reed v. Sprint Corp. 2005 WL 2648028 (E.D. Cal. October 14, 2005) ............................................ 8, 10 Pejic v. Hughes Helicopters, Inc. 840 F.2d 667 (9th Cir. 1988) .............................................................................. 7, 8 Pejic v. Hughes Helicopters, Inc. 840 F2d 667 (9th Cir. 1988) ........................................................................... 12, 13 Ritza v. Int’l Longshoremen’s and Warehousemen’s Union 837 F.2d 365 (9th Cir. 1988) .................................................................................. 7 Rodriguez v. Airborne Express 265 F.3d 890 (9th Cir. 2001) ................................................................................ 12 Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 7 of 29 Page ID #:241 -iv- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sanchez v. Pacific Powder Co. 147 F.3d 1097 (9th Cir.1998) ............................................................................... 10 Shek v. Stanford Univ. Med. Ctr. 2007 WL 2318904 (N.D. Cal. August 13, 2007) ................................................. 10 Shroyer v. New Cingular Wireless Servs., Inc. 622 F.3d 1035 (9th Cir. 2010) ................................................................................ 6 Skrbina v. Fleming Companies, Inc. 45 Cal. App. 4th 1353 (1996) ............................................................................... 15 Solis v. Target Corp. 2016 WL 2595195 (E.D. Cal. 2016) .................................................................... 12 W. Mining Council v. Watt 643 F.2d 618 (9th Cir. 1981) .................................................................................. 6 Welch v. S. Cal. Edison 378 Fed. Appx. 621 (9th Cir. 2010) ..................................................................... 11 Young v. Anthony’s Fish Grottos Inc. 830 F.2d 993 (9th Cir. 1987) ................................................................................ 18 Statutes 29 U.S.C. section 160(b) ............................................................................................ 19 29 U.S.C. section 626(d)(1) ..................................................................................... 7, 8 29 U.S.C. section 626(e) ............................................................................................ 11 29 U.S.C. section 626(f)(1)........................................................................................ 15 29 U.S.C. section 626(f)(1)(F)(i) ............................................................................... 15 California Civil Code section 1542 ....................................................................... 3, 14 California Government Code section 12926(i)(1) ..................................................... 11 California Government Code section 12926(i)(2)(A)-(B) ........................................ 11 Fair Employment and Housing Act ........................................................................... 16 Labor Management Relations Act § 301 ............................................... 2, 5, 17, 18, 19 Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 8 of 29 Page ID #:242 -v- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Older Workers Benefit Protection Act .................................................................. 1, 15 Other Authorities Federal Rule of Civil Procedure 12(b)(6) ................................................................ 6, 7 Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 9 of 29 Page ID #:243 -1- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff filed a general release of all known and unknown claims following his separation from Costco (the “Release,” attached as Exh. 1 to the Complaint). Nonetheless, Plaintiff filed an original Complaint alleging state law claims for disability and age discrimination and wrongful termination based upon tort and contract. After Costco explained that Plaintiff’s claims were all barred, Plaintiff indicated an intent to amend the Complaint to replace all of the claims with a single claim under the ADEA based on the theory that the Release did not comply with the 21 day notice requirement of the Older Workers Benefit Protection Act (“OWBPA”). In response, Costco provided detailed authority demonstrating that because Plaintiff never exhausted his administrative remedies to bring an ADEA claim, he was barred from trying to pursue and ADEA claim now. Plaintiff nevertheless filed the FAC, alleging a single claim under the ADEA. As a result, Costco has been forced to file this motion to dismiss. Plaintiff’s age discrimination claim under the ADEA should be dismissed without leave to amend for the following reasons: (1) Plaintiff never filed an administrative charge with the EEOC; (2) even if filing an administrative complaint with the California DFEH was sufficient to exhaust a federal ADEA claim, Plaintiff filed his DFEH complaint well after the 300 day deadline for exhaustion of federal ADEA claims; (3) even if filing an administrative complaint with the DFEH was sufficient to exhaust a federal ADEA claim, Plaintiff failed to file his lawsuit within 90 days of receiving his right-to-sue notice from the DFEH; and (4) even if filing with the DFEH was sufficient to exhaust a federal ADEA claim, Plaintiff’s DFEH complaint did not even allege age discrimination. Each of Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 10 of 29 Page ID #:244 -2- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 these defects independently bar Plaintiff’s attempt to pursue an ADEA age discrimination claim. Although the FAC is captioned as a single claim for age discrimination under the ADEA, it contains a number of stray allegations relating to the prior claims in the original Complaint. Plaintiff refused to remove these stray allegations during meet and confer discussions on the basis that they provide “context” to Plaintiff’s ADEA claim. To the extent that Plaintiff seeks to pursue claims other than federal age discrimination, any such claims are barred by the Release. In addition, any FEHA-based claims were not administratively exhausted, and any wrongful termination claims are preempted by Section 301 of the Labor Management Relations Act. Because all possible claims by Plaintiff fail as a matter of law and cannot be cured, Costco respectfully requests that Plaintiff’s FAC be dismissed with prejudice. II. STATEMENT OF FACTS AND PROCEDURAL HISTORY Plaintiff is a former employee of Costco who worked at the Santa Clarita Costco warehouse. (FAC, ¶ 13.) Plaintiff worked at this location from approximately November 29, 1996 until he was terminated on May 4, 2015. (FAC, ¶¶ 36-37) As an hourly employee, Plaintiff’s employment was governed by the terms and conditions stated in a collective bargaining agreement between Costco and the Teamsters Union (the “CBA”). (FAC, ¶¶ 38-39; Complaint, ¶¶ 14, 15, 18, 37-41, 45.) On May 4, 2015, Costco terminated Plaintiff’s employment due to acts of dishonesty and non-cooperation during an investigation. (FAC, ¶¶ 41-42; Ex. 3 Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 11 of 29 Page ID #:245 -3- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to Complaint, p. 4.) The grounds for termination were that Plaintiff “willingly allowed his son to use his membership card to make purchases thus inflating his 2% benefit. He admitted to providing his son with both his membership and AMEX in an effort to deceive the cashiers.” (Id.) On October 6, 2015, Plaintiff signed the Release. (Complaint, ¶¶ 10- 11; FAC, ¶ 10; Ex. 1 to Complaint.) The Release is entitled “Confidential Agreement and General Release of Claims.” (Ex. 1 to Complaint, p. 1.) The Release states its intention “[t]o settle any dispute regarding our employment relationship or its termination.” (Id.) The Release, which is less than three pages in length, includes a lengthy section entitled “Full General Release,” which makes clear that Plaintiff agreed to “unconditionally release Costco….from all claims, demands, lawsuits, causes of action, obligations, and liabilities of whatever kind…including but not limited to anything arising out of or related to your employment with Costco,” including claims for “breach of implied or express contract or covenant, defamation, wrongful termination, public policy violation, emotional distress, and discrimination or harassment (on the basis of race, color, religion, gender, national origin, age, disability, sexual orientation, veteran status, or any other status protected by law.” (Id. at § 9.) The Release includes a waiver of all known and unknown claims pursuant to California Civil Code section 1542. (Id. at § 12.) Finally, the Release expressly states that Plaintiff may not rely on any promise not expressly stated within the Release, and that the Release constitutes “the entire agreement on the subject matters it covers, superseding any contrary understanding.” (Id. at § 14.) Despite signing the Release and waiving any right to bring an employment claim against Costco, Plaintiff filed an administrative complaint with the California DFEH on May 2, 2016, alleging only that he had been terminated by Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 12 of 29 Page ID #:246 -4- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Costco due to his “Medical Condition – including cancer or cancer related medical condition or genetic characteristics.” (Ex. 1 to Request for Judicial Notice (“RJN”), pp. 1-2.) Prior to signing and formally filing the complaint with the DFEH, Plaintiff was provided a draft complaint by the DFEH with a cover letter which directed Plaintiff to “read the complaint carefully” and “[i]f you do not approve the language on the complaint, please do not sign the complaint; instead, contact me to discuss your concerns.” (Ex. 2 to RJN.) Within 30 minutes of receiving the draft complaint and the DFEH cover letter, Plaintiff viewed it and electronically signed it. (Ex. 1 to RJN, p. 4.) On May 18, 2016, the DFEH notified Plaintiff that it had closed Plaintiff’s case for the following reason: “Investigated and Dismissed – No Basis to Proceed.” (Exhibit 3 to Complaint, pp. 6-7; Exhibit 3 to RJN.) The letter further stated: “Based upon its investigation, DFEH is unable to conclude that the information obtained establishes a violation of the statute.” (Id.) The DFEH also provided Plaintiff with a right-to-sue notice. (Id.) As to any potential federal claim, the notice cautioned Plaintiff: Your complaint is not dual filed with the United States Equal Employment Opportunity Commission (EEOC). To obtain a federal Right to Sue notice, you must visit the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint within 30 days of receipt of this letter or within 300 days of the alleged discriminatory act, whichever is earlier. (Id.; bolding in original, underlining added.) On January 30, 2017, more than eight months after receiving his DFEH right-to-sue notice, Plaintiff filed his original Complaint in the Los Angeles Superior Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 13 of 29 Page ID #:247 -5- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court, asserting various state law employment claims against Costco which he had already expressly released. On March 6, 2017, Costco sent a meet and confer letter detailing why all of Plaintiff’s claims in the Complaint were barred by the Release, barred by his failure to timely exhaust administrative remedies, and preempted under LMRA Section 301. (Ex. 1 to McConnell Decl.) On March 9, 2017, counsel met and conferred by telephone. Counsel for Plaintiff acknowledged that the Release barred the claims in the Complaint, but indicated his belief Plaintiff could pursue a federal ADEA age discrimination claim because the Release did not comply with OWBPA’s 21 day notice requirement. Counsel for Plaintiff indicated that he would file an amended complaint with only a claim under the ADEA. (McConnell Decl., ¶ 3.) On March 10, 2017, counsel for Costco provided detailed authority explaining why any attempt to add an ADEA claim now would be futile due to Plaintiff’s failure to exhaust his federal administrative remedies. The parties thereafter met and conferred through numerous email exchanges. (Exs. 2 and 3 to McConnell Decl.) Plaintiff filed the FAC on March 27, 2017 asserting one claim, for age discrimination under the federal ADEA. On March 27 and 28, 2017, Costco sent further meet and confer emails. In addition to reminding Plaintiff that he never exhausted his administrative remedies for an ADEA claim, Costco also identified a number of stray allegations in Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 14 of 29 Page ID #:248 -6- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the FAC pertaining to the previously alleged, but now dismissed, claims in the original Complaint. (Ex. 4 to McConnell Decl.) On March 29, 2017, counsel for both parties held another call to meet and confer regarding the FAC. Counsel for Plaintiff refused to dismiss the FAC. He also refused to remove any of the stray allegations on the basis that such allegations provided context to the ADEA age discrimination claim. (McConnell Decl., ¶ 6.) Also on March 29, 2017, Plaintiff purported to file an “amendment” to his May 2, 2016 DFEH complaint. (Ex. 5 to McConnell Decl.) III. LEGAL ARGUMENT A. Legal Standard A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is proper when the complaint does not allege a claim supported by a cognizable legal theory or does not allege sufficient facts in support of a cognizable legal theory. See Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a facially plausible claim to relief. Id. The court assumes the truth of all factual allegations and construes them in the light most favorable to the nonmoving party when ruling on a motion to dismiss under Rule 12(b)(6). See Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. See W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 15 of 29 Page ID #:249 -7- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A motion to dismiss under Rule 12(b)(6) is the appropriate vehicle to assert that a plaintiff has failed to exhaust his or her administrative remedies. See Ritza v. Int’l Longshoremen’s and Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir. 1988). In ruling on such a motion to dismiss, the court is permitted to consider extrinsic facts, including those subject to judicial notice. See, e.g., id. at 369 (affidavits submitted by the parties); Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986) (administrative records and reports), abrogated on other grounds by Astoria Fed. Sav. & Loan Assoc. v. Solimino, 501 U.S. 104 (1991); Davenport v. Bd. of Trs. of State Ctr. Cmty. Coll. Dist., No. 1:07-cv-00494 OWW SMS, 2009 WL 891057, *12 (E.D. Cal. Mar. 31, 2009) (judicial notice of DFEH complaint for retaliation). B. Plaintiff’s Claim For ADEA Age Discrimination Fails As A Matter Of Law 1. Plaintiff Failed To File An Administrative Charge With The EEOC Within 300 Days Of His Termination In order to pursue a federal age discrimination claim, the ADEA requires a claimant to file a charge with the EEOC within 180 days of the alleged unlawful practice. 29 U.S.C. § 626(d)(1). In the alternative, where the charge was originally filed with a state agency, a plaintiff may file his or her charge with the EEOC within 300 days from the unlawful practice, or 30 days after receiving a right-to-sue letter from the state agency, whichever is earlier. Id. (emphasis added); Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 674-75 (9th Cir. 1988); Bean v. Crocker Nat. Bank, 600 F.2d 754, 758 (9th Cir.1979) (in California, an employee seeking to pursue an ADEA claim must file a charge with the EEOC within 300 days of the alleged unlawful practice). Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 16 of 29 Page ID #:250 -8- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Here, Plaintiff was terminated on May 4, 2015. (FAC, ¶¶ 10, 11.) The latest possible date for Plaintiff to file a charge with the EEOC was 300 days after his termination, or February 29, 2016.1 See 29 U.S.C. § 626(d)(1). Yet it is undisputed that Plaintiff did not even file his DFEH complaint until May 2, 2016. (FAC, ¶¶ 10, 11.) And there are no allegations that Plaintiff has ever filed a charge with the EEOC. As a result, Plaintiff failed to exhaust his administrative remedies as to any ADEA age discrimination claim, and the FAC should be dismissed without leave to amend. See Pejic, 840 F.2d at 674-75 (ADEA claim time barred because EEOC charge filed more than 300 days after alleged unlawful practice). 2. Plaintiff Cannot Use His DFEH Complaint As A Substitute For An EEOC Charge Plaintiff appears to believe that filing a complaint with the California DFEH somehow satisfies the exhaustion requirement necessary to pursue a federal ADEA claim. This is not the case. With respect to an ADEA claim, “[n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission.” 29 U.S.C. § 626(d)(1). The DFEH’s May 18, 2016 right-to-sue letter reinforced this, expressly warning Plaintiff that if he wanted to pursue any federal claims, he had to separately exhaust his administrative remedies with the EEOC in a timely fashion (Ex. 3 to Complaint, pp. 6-7; Ex. 3 to RJN). In Parker-Reed v. Sprint Corp., 2005 WL 2648028 (E.D. Cal. October 14, 2005) (emphasis added), the court addressed this exact scenario: 1 The actual 300th day fell on February 28, 2017, a Sunday. Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 17 of 29 Page ID #:251 -9- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff is correct that the DFEH is an approved state agency and has entered into a workshare agreement with the EEOC. Plaintiff’s contention, however, that the foregoing provision acts to transform her DFEH filing into an EEOC filing such that it satisfies her EEOC administrative exhaustion requirement is unavailing. While this provision does provide that a claim received by a state agency is “deemed received” by the EEOC, it is only deemed received “for purposes of Section 1626.7. Section 1626.7 refers solely to the timeliness, as opposed to the existence of an EEOC charge. Specifically, that section provides that in the event an aggrieved party initially files a charge with a state agency, that party has 300 days from the date of the alleged violation to file a charge with the EEOC as opposed to the statutorily proscribed 180 days. This provision extended Plaintiff’s time to file her EEOC charge from 180 days to 300 days. Nonetheless, Plaintiff has never filed a claim with the EEOC and this provision does nothing to cure that procedural defect. Likewise, in Lillis v. Apria Healthcare, Inc., 2013 WL 1561491 (S.D. Cal. April 11, 2013), the plaintiff timely filed a DFEH administrative complaint and received a right-to-sue letter from the DFEH. Id. at *11. However, the court held that despite the DFEH filing, plaintiff failed to show that he had exhausted his administrative remedies as to his federal claims for disability discrimination. The court noted that a plaintiff must file an administrative complaint with the EEOC within 300 days of the alleged discriminatory act. This “is a prerequisite to initiating a lawsuit for federal claims of discrimination and wrongful termination….” Id. at *8. The court further held: Plaintiff has failed to provide any information in his FAC to indicate that he filed a complaint with the EEOC within the first thirty days of receiving the DFEH Notice or by May 27, 2012 (300 days from the date of termination). As such, Plaintiff has not shown that he has exhausted his Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 18 of 29 Page ID #:252 -10- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 administrative remedies to bring a claim under ADA and Title VII.” Id. at *13; see also Shek v. Stanford Univ. Med. Ctr., 2007 WL 2318904 (N.D. Cal. August 13, 2007) (“As noted, the DFEH right-to-sue letter is not sufficient to present federal discrimination claims as to the Title VII and ADA claims. Therefore, Shek has failed to exhaust his administrative remedies. With regard to the ADEA claim, Shek failed to exhaust his administrative remedies because he did not file with the EEOC….Thus he did not satisfy the jurisdictional prerequisite for his ADEA claim.”); Albano v. Schering–Plough Corp., 912 F.2d 384, 386 (9th Cir.1990) (“[t]he filing of an EEOC charge is a prerequisite to bringing a civil action under the [ADEA]”); Sanchez v. Pacific Powder Co., 147 F.3d 1097, 1099 (9th Cir.1998) (“[t]he ADEA requires a person to file a charge with the EEOC before initiating a civil action for age discrimination”); Gonzales v. Harrah's Operating Co., Inc., 2013 WL 6284172, *5 (D. Nevada December 4, 2013) (dismissing ADEA claim with prejudice where no charge was filed with EEOC, and the 300 day time limit had run). As previously explained, because Plaintiff filed no administrative complaint with the EEOC (or any other agency) within 300 days of his termination, he is barred from pursuing any federal claims including under the ADEA. Even if his DFEH complaint had been filed within 300 days, Plaintiff would still be barred because he has to date never filed a charge with the EEOC. The statute is clear on its face. As the courts held in both Parker-Reed and Lillis, Plaintiff cannot excuse his failure to file an administrative complaint with the EEOC simply by claiming that he filed a complaint with the DFEH. Plaintiff’s failure to timely file an administrative complaint with the EEOC bars Plaintiff from pursuing his federal age discrimination claim. Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 19 of 29 Page ID #:253 -11- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. Plaintiff Failed to File His Lawsuit Within 90 Days Of Receiving His State Right-To-Sue Notice Even assuming arguendo that Plaintiff’s May 2, 2016 administrative complaint with the DFEH met his statutory filing requirement with the EEOC, and that Plaintiff could rely on his DFEH right-to-sue notice to pursue an ADEA claim, his ADEA claim would still be barred. Under the ADEA, a plaintiff must file suit within 90 days after receipt of the right-to-sue notice. 29 U.S.C. § 626(e); Welch v. S. Cal. Edison, 378 Fed. Appx. 621, 622 (9th Cir. 2010). The DFEH issued its right-to-sue notice to Plaintiff on May 16, 2016. Plaintiff, however, did not file his Complaint until January 30, 2017, more than eight months after the DFEH right-to- sue was issued, and more than five months after the 90 day window to file suit ended. 4. Plaintiff’s DFEH Complaint Did Not Mention Age Discrimination Again, even if filing a DFEH complaint was sufficient to exhaust one’s administrative remedies necessary to bring a federal ADEA claim, Plaintiff’s May 2, 2016 DFEH complaint still fails because it mentions nothing of age discrimination. Plaintiff’s allegations in that DFEH complaint were expressly limited to being terminated due to a “medical condition,” specifically defined as related to cancer or a genetic condition.2 (Ex. 2 to RJN.) There is no mention of age discrimination 2 Under FEHA, disability discrimination and medical condition discrimination are unique and independent. “Medical condition” is defined as any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer. Cal. Gov. Code § 12926(i)(1). “Medical Condition” also encompasses genetic characteristics such as medically identifiable genes that are known to cause diseases or disorders, or inherited characteristics statistically known to increase the risk of development of a disease or disorder. Cal. Gov. Code § 12926(i)(2)(A)-(B). Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 20 of 29 Page ID #:254 -12- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 anywhere. As a result, even if Plaintiff could ignore the 300 day administrative filing deadline, the requirement that a charge must actually be filed with the EEOC, and the requirement that the lawsuit must be filed within 90 days of the right-to-sue notice, Plaintiff still has failed to exhaust as to age discrimination because he never alleged age discrimination in his May 2016 administrative complaint. See Rodriguez v. Airborne Express, 265 F.3d 890, 898 (9th Cir. 2001) (court dismissed disability claim, where DFEH complaint only mentioned race discrimination); Pejic v. Hughes Helicopters, Inc., 840 F2d 667, 67 (9th Cir. 1988) (“Title VII and ADEA claims arise from entirely distinct statutory schemes”). 5. Plaintiff’s Recent Attempt To “Amend” His DFEH Complaint Does Not Allow Him To Sue For Federal Age Discrimination On March 29, 2017, nearly two years after his termination, and nearly one year after his original DFEH complaint, Plaintiff filed a purported “amended” DFEH complaint. (FAC, ¶ 15; Ex. 5 to McConnell Decl.) This “amendment” was filed only after Costco pointed out that Plaintiff had failed to exhaust his administrative remedies by never mentioning age discrimination in his DFEH complaint. (Exs. 1-3 to McConnell Decl.) Plaintiff’s “amendment” is legally meaningless. First, a subsequent administrative complaint that seeks to add brand new theories of discrimination will not relate back to the original complaint. See Rodriguez, 265 F.3d at 899 (holding that later amended complaint to add claim for disability discrimination did not relate back to the original race discrimination complaint); Middlekauff v. KCRA-TV, 2012 WL 5388139 (E.D. Cal. 2012) (holding that a later amended complaint to add a claim for disability discrimination did not relate back to the original age discrimination complaint); Solis v. Target Corp., 2016 WL 2595195, at 9-10 (E.D. Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 21 of 29 Page ID #:255 -13- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal. 2016) (holding that a later amended complaint for age discrimination did not relate back to the original disability discrimination complaint); Pejic v. Hughes Helicopters, Inc., 840 F2d 667, 67 (9th Cir. 1988) (“Title VII and ADEA claims arise from entirely distinct statutory schemes”). Second, whether Plaintiff’s belated “amendment” relates back to the May 2, 2016 does not alter the reality that Plaintiff did not file an administrative complaint within 300 days of his termination, or a lawsuit within 90 days of the right-to-sue notice, or a charge with the EEOC at any time. Each of these fatal defects defeats Plaintiff’s right to now pursue an ADEA claim as a matter of law, and no amendment can change that reality. C. Plaintiff’s Stray Allegations Relating To Other Claims Should Be Dismissed And/Or Stricken Plaintiff’s original Complaint alleged claims for declaratory relief, FEHA age and disability discrimination, and wrongful termination based on both contract and tort theories. The FAC appears to have eliminated all such claims, replacing them with a single claim for age discrimination under the ADEA. However, the FAC contains a number of stray allegations relating to the prior claims in the Complaint. Specifically, the FAC contains the following stray allegations: p. 2, line 27: “and disability” p. 2, line 27: “and state laws” p. 3, line 2: “and corresponding California law” p. 3, lines 6-7: “who was also receiving workers compensation benefits” p. 4, line 23: “and/or disability” Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 22 of 29 Page ID #:256 -14- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 p. 11, lines 7-8: “(1) in violation of the written agreement, i.e., Article 4 of Union Agreement (“UA”)” p. 11, line 9: “and disability” p. 11, line 24: “and disability” p. 11, lines 25-27: “and/or disability (Plaintiff had been receiving worker’s compensation benefits for the injuries he got while working for Defendant).” p. 12, lines 11-12: “PLAINTIFF was medically treated during the past few years and had some physical disabilities. This disability is closely related to his age.” p. 12, lines 19-20: “and has medical problems that do not allow him to perform his duties as better as previously.” p. 13, line 4: “and disability” During the meet and confer process, counsel for Plaintiff indicated that these stray allegations were only included to provide “context” for the ADEA claim. Nevertheless, in order to avoid any future confusion, Costco hereby moves to dismiss any purported claims for wrongful termination or FEHA age or disability discrimination. Alternatively, Costco moves to strike the allegations set forth above on the basis that they are entirely immaterial to Plaintiff’s federal age discrimination claim. 1. The Parties’ Release Agreement Bars All Claims Other Than Federal ADEA Claims Plaintiff acknowledges that he signed the Release. (Complaint, ¶¶ 10- 11; FAC, ¶¶ 10, 66, 68.) The Release, which includes a Civil Code section 1542 waiver, unequivocally states that it waived any and all claims that Plaintiff may have had against Costco. (Ex. 1 to Complaint.) Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 23 of 29 Page ID #:257 -15- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Under the OWBPA, for a waiver of an ADEA age discrimination claim to be valid, it must meet specific statutory requirements. One of those requirements is that the employee must be afforded the opportunity to take at least 21 days to consider the agreement. See 29 U.S.C. § 626(f)(1)(F)(i). Here, the Release does not expressly provide at least 21 days for Plaintiff to consider its terms. As a result, the Release likely does not bar Plaintiff from pursuing an ADEA age discrimination claim. However, as to any and all other claims, the Release remains valid and effective because the OWBPA release requirements apply solely to ADEA claims and do not extend to any other claims. In Skrbina v. Fleming Companies, Inc., 45 Cal. App. 4th 1353, 1367 (1996), the plaintiff alleged that the parties’ release agreement was invalid because the release failed to adhere to the 21 day consideration time procedures indicated in 29 U.S.C. section 626(f)(1). Id. The court held that this section of the ADEA “applies only to rights or claims under the ADEA. It does not apply to a waiver of claims based on state law, which are the only claims at issue in the complaint….” Id. at 1367-68. As a result, the defendant’s motion for summary judgment was granted. Id. at 1368; see also Nakamoto v. Lockheed Martin Corp., 2010 WL 2348634 (N.D. Cal. June 8, 2010) (“However, even if the Court were to accept Plaintiff’s argument that the Agreement does not comply with the requirements established by the OWBPA, it remains enforceable as to all of Plaintiff’s non- ADEA claims for relief based on events occurring prior to the execution of the Agreement.”); Kruchowski v. The Weyerhauser Co., 423 F.3d 1139, 1144 (10th Cir. 2005) (finding that a release that did not comply with the OWBPA was “invalid and unenforceable with respect to any age discrimination claim”); Griffin v. Kraft General Foods, 62 F.3d 368, 374 (11th Cir. 1995) (remanding a case to district court with instructions to enter partial summary judgment in favor of the defendants on all claims except the ADEA because the ADEA waiver was invalid). Consequently, Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 24 of 29 Page ID #:258 -16- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Release is fully enforceable as to the state law claims pled in the Complaint and the stray allegations referring to such claims in the FAC.3 See Marder v. Lopez, 450 F.3d 445, 453-54 (9th Cir. 2006) (affirming motion to dismiss because of the broad language of a release agreement barring each of the plaintiff’s claims). 2. Plaintiff Failed To Administratively Exhaust Claims For FEHA Age Or Disability Discrimination In addition to having waived any FEHA-based claims by signing the Release, Plaintiff’s failure to exhaust his administrative remedies as to any claims for age or disability discrimination means he cannot pursue such claims now. Plaintiff’s May 2, 2016 DFEH complaint only referenced discrimination due to “medical condition,” which is entirely distinct from disability or age discrimination. As a result, Plaintiff failed to timely exhaust his administrative remedies and he is now barred from pursuing such claims. See Martin v. Lockheed Missiles & Space Co., 29 Cal. App. 4th 1718, 1734 (1994) (In order to successfully exhaust administrative remedies “as to a particular act made unlawful by the Fair Employment and Housing Act, [one] must specify that act in the administrative complaint, even if the complaint does specify other wrongful acts”) (emphasis added). Any attempt by Plaintiff to argue that his recent “amendment” cures this 3 Although no longer relevant to his single ADEA claim, Plaintiff continues to include immaterial allegations that he was “misled” into believing the Release related to his workers’ compensation claims. First, the Release is clear and unambiguous as to the scope of the claims released, meaning Plaintiff is barred by the parol evidence rule from using purported extrinsic evidence to challenge its meaning. See 2 Witkin, Cal. Evid. 4th Docu Evid, § 59, p. 179 (2000); Imbach v. Schultz, 58 Cal.2d 858, 860 (1962) (parol evidence "is not admissible when it is offered, as here, to give the terms of the agreement a meaning to which they are not reasonably susceptible"). Second, Plaintiff’s purported misunderstanding is highly disingenuous given the fact that he was represented by counsel, the negotiations regarding the Release were between counsel, and Plaintiff signed a separate Compromise and Release as to his workers’ compensation case. Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 25 of 29 Page ID #:259 -17- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defect will fail, as the newly pled legal theories of discrimination do not relate back to “medical condition” discrimination. See Section III.B.5, above. 3. Any Wrongful Termination Claims Are Preempted By Section 301 Of The Labor Management Relations Act a. Section 301 Preemption Section 301 of the Labor Management Relations Act (29 U.S.C. § 185(a)) provides federal jurisdiction over claims involving collective bargaining agreements between employers and the unions representing their employees. Accordingly, an action which involves a collective bargaining agreement is governed exclusively by federal law under Section 301, and preempts any state law claim based on the collective bargaining agreement. See Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 23 (1983). (1) Plaintiff’s Allegations Regarding Contract-Based Wrongful Termination Plaintiff alleges that Costco terminated Plaintiff “in violation of the written agreement, i.e. Article 4 of Union Agreement.” (FAC, ¶ 39.) Article 4(a) of the Union Agreement provides that “it is mutually agreed that the Employer reserves the right to discharge any employee for sufficient and proper cause.” (Ex. 2 to Complaint, p. 3.) By definition, any claim that Costco breached the Union Agreement by wrongfully terminating his employment is preempted by Section 301. See Young v. Anthony’s Fish Grottos Inc., 830 F.2d 993, 1002 (9th Cir. 1987); Heath v. AT&T Corp., 2005 WL 2206398 at *5-6 (N.D. Cal. Sept. 12, 2005). Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 26 of 29 Page ID #:260 -18- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2) Plaintiff’s allegations Regarding Tort-Based Wrongful Termination Plaintiff also makes stray allegations that he was wrongfully terminated due to age and disability discrimination. (FAC, ¶¶ 7, 40, 45-6, 54, 69.) Ninth Circuit courts, however, have consistently held that “[e]ven suits based on torts, rather than on breach of a CBA, are governed by federal law if their evaluation is inextricably intertwined with consideration of the terms of a labor contract.” (internal quotations omitted.) Heath, 2005 WL 2206498 at *4 (N.D. Cal. Sept. 12, 2005). See also Hill v. Ralphs Grocery Store Co., 896 F. Supp. 1492, 1502 (C.D. Cal. 1995) (“All of the State law claims asserted against [the defendant] are preempted because they arise out of the same conduct that constitutes the breach of the duty of fair representation claim and because they require an interpretation of the Agreement.”) Because Plaintiff’s termination is governed by the CBA, any purported wrongful termination claim cannot be decided without interpretation of the CBA, thereby rendering it preempted by Section 301. b. Any Wrongful Termination Claims Are Time-Barred Where a claim is preempted by Section 301, an employee’s remedies lay exclusively within the collective bargaining agreement. As such, for Section 301 claims to survive dismissal, the plaintiff must adequately plead exhaustion of the grievance procedure set forth in the collective bargaining agreement. Paperworks Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37 (1987); see also Young v. Anthony’s Fish Grottos Inc., 830 F.2d 993, 1002 (9th Cir. 1987) (affirming dismissal of preempted claims where the plaintiff failed to exhaust the grievance procedure); Heath, 2005 WL 2206498 at *6 (dismissing Section 301 Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 27 of 29 Page ID #:261 -19- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 claims because plaintiff failed to exhaust contractual grievance procedures). Here, there are no allegations that Plaintiff exhausted the grievance procedures. Even if Plaintiff had exhausted his grievance procedures as Section 301 requires, any wrongful termination claim would necessarily be time-barred, as an action under Section 301 must be filed within six months of the date of the alleged breach of the collective bargaining agreement. 29 U.S.C. § 160(b). See Del Costello v. International Brotherhood of Teamsters, 462 U.S. 151, 155 (1983); Ghartey v. St. John's Queens Hospital, 869 F.2d 160, 166 (2nd Cir. 1989); Cook v. Lindsay Olive Growers, 911 F.2d 233, 237 (9th Cir. 1990). Here, Plaintiff did not file the Complaint until nearly two years after his termination of employment. As a result, Plaintiff is barred from pursuing any claim for wrongful termination. IV. CONCLUSION For the reasons set forth above, Costco requests that Plaintiff’s First Amended Complaint be dismissed in its entirety without leave to amend. Alternatively, Costco requests that any wrongful termination or FEHA age or disability claims be dismissed with prejudice and/or the associated stray allegations stricken. Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 28 of 29 Page ID #:262 -20- Case No. [2:17-cv-1740] SMRH:482291839.3 MOTION TO DISMISS FIRST AMENDED COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: April 17, 2017 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Matthew S. McConnell TARA WILCOX MATTHEW S. MCCONNELL Attorneys for Defendant COSTCO WHOLESALE CORPORATION Case 2:17-cv-01740-JFW-PJW Document 17 Filed 04/17/17 Page 29 of 29 Page ID #:263 1 SHEPP ARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations 2 TARA WILCOX, Cal. Bar No. 157015 3 501 West Broadway, 19th Floor San Diego, California 92101-3598 4 Telephone: 619-338-6500 Facsnnile: 619-234-3815 5 twilcox@sheppardmullin.com 6 SI-IEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership 7 Including Professional Corporations MATTHEWS. MCCONNELL, Cal. Bar No. 209672 8 12275 El Camino Real, Suite 200 San Diego, California 92130-2006 9 Telephone: 858-720-8900 Facsimile: 858-509-3691 1 O mmcconnell@sheppardmullin.com 11 Attorn~ys for Defendant COSTCO WHOLESALE CORPORATION 12 13 14 15 16 17 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA W ARKES AMIRIAN, an individual Plaintiff, v. COSTCO WHOLESALE 18 CORPORATION, a Washington Corporation; and 19 DOES 1 through fO, inclusive, 20 21 22 23 24 25 26 27 28 SMRH:48166728Ll Defendants. Case No. 2:17-cv-1740 JFW (PJWx) [Complaint Filed: January 30, 2017] REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM (F.R.C.P. 12(b )(6)) OR, ALTERNATIVELY, STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT (F.R.C.P. 12(f) Date: Time: Place: Judge: May 15, 2017 1:30 p.m. Crtrm 7A Hon. John F. Walter Pretrial Conf.: Jan. 19, 2018 Trial Date: Feb. 6, 2018 REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS FAC Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 1 of 16 Page ID #:264 1 TO THIS HONORABLE COURT, ALL PARTIES AND THEIR 2 ATTORNEYS OF RECORD: 4 Pursuant to Federal Rule of Evidence 201, Defendant Costco 5 Wholesale Corporation ("Costco") hereby submits this Request for Judicial Notice 6 in supp01i of its Motion to Dismiss Plaintiffs First Amended Complaint. 7 Defendant respectfully requests that this Court take judicial notice of the following 8 administrative records referenced in Costco's Motion to Dismiss: 9 10 1. Plaintiff Warkes Amirian's administrative "Complaint of 11 Employment Discrimination" filed with the California Department of Fair 12 Employment and Housing (DFEH") on May 2, 2016, attached hereto as Exhibit 1. 13 14 2. A notice titled "Request to Approve Complaint," from the DFEH 15 to Plaintiff, confirming that Plaintiff has been interviewed by a DFEH 16 representative, dated May 2, 2016, attached hereto as Exhibit 2. 17 18 3. A notice, titled "Notice of Case Closure and Right to Sue," from 19 the DFEH to Plaintiff, dated May 18, 2016, attached hereto as Exhibit 3. 20 21 Federal Rule of Evidence 20l(b) provides that a court may take judicial 22 notice of a fact "not subject to reasonable dispute in that it is either ( 1) generally 23 known within the territorial jurisdiction of the trial court or (2) capable of accurate 24 and ready determination by resort to sources whose accuracy cannot be reasonably 25 questioned." Federal courts may take judicial notice of records and reports from 26 administrative bodies. See Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994) 27 (taking judicial notice of public records from the Department of Labor); Kottle v. 28 SMR!-1:481667281. l REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS FAC Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 2 of 16 Page ID #:265 1 Northwest Kidney Centers, 146 F.3d 1056, 1064 (9th Cir. 1998) (taking judicial 2 notice of public records from the Department of Health). 3 4 Plaintiff Warkes Amirian's administrative "Complaint ofEmployment 5 Discrimination" filed with the DFEH, as well as the letters and notices sent by the 6 DFEH in connection to Plaintiffs complaint, are part of the public administrative 7 record maintained by the California Department of Fair Employment and Housing. 8 The contents of these documents are readily capable of verification and are not 9 reasonably subject to dispute. Accordingly, this Court can and should consider them 10 in deciding Defendant's Motion. Based upon the foregoing, this Court should take 11 judicial notice of Plaintiff W arkes Amirian' s administrative "Complaint of 12 Employment Discrimination," the DFEH's notice titled "Request to Approve 13 Complaint," and the DFEH's "Notice of Case Closure and Right to Sue." 14 15 Dated: April 17, 2017 16 17 18 19 20 21 22 23 24 25 26 27 28 SMRH:481667281.1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By /s/ Matthew S. McConnell TARA WILCOX MATTHEWS. MCCONNELL Attorneys for Defendant COSTCO WHOLESALE CORPORATION REQUEST FOR JUDICIAL NOTICE ISO MOTION TO DISMISS F AC Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 3 of 16 Page ID #:266 HI I 1 Page 3 Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 4 of 16 Page ID #:267 COMPLAINT OF I~MPLOYiVlENT DISCRIMINATION BEFORE THE STATI~ OF CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING Under the California Fair Employment and Housing Act (Gov. Code,§ 12900 ct seq.) Complaint of Warkcs Amirian, Complainant. P.o. Box 2961 Canyon Country, California 91386 vs. Costco Whole Sale Respondent. 18649 Via Pricessa Santa Clarita, California 91387 THE PARTICULARS ARE: DFEH No. 763377-224153 EEOC No. 1. I, Warkes Amirian, allege that I was subjected to Discrimination by respondent, Costco Whole Sale due to one or more Fair Employment and Housing Act protected bases: Medical Condition - Including cancer or cancer related medical condition or genetic characteristics. 2. I was Terminated. The most recent harm occurred on or around May 05, 2015. 3. My belief is based on the following: -2- Page 4 Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 5 of 16 Page ID #:268 VER !Ff CATION I, Warkes Amirian, am the Complainant in the above complaint. I have read the above complaint and know its contents. I declare under penalty of pcijury under the laws of lhe State of California that the above is true and correct of my own knowledge, except as to those matters alleged on information and belief, which I also believe to be true. Signature of Complainant or Complainant's Legal Representative: Date: Warkes Amirian May 2, 20i6 -3- Page 5 Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 6 of 16 Page ID #:269 Email: warkesamir@yahoo.com Page 6 Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 7 of 16 Page ID #:270 I IT 2 Page 7 Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 8 of 16 Page ID #:271 ST/\TE OF CAUFO~N!AJ Bllsincs.s~ Co;tt.unx;r Ser-lie£!~ c:rr.J ri::J'JSin;; r\~tn:y DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 2218 Kausen Drive, Suite 100 I Elk Grove I CA l 95758 800·884-1684 l TOD 800-700-2320 v:1nw.dfeh.ca.gov I email: contact.cMter@dfch.ca.gov May 02, 2016 GOVERNOR EDMUND G. BRO'NN JR. DIRECTOR KEVIN KISH Warkes Amirian P.o. Box 2961 Via emaH: warkesamir@yahoo.com Canyon Country, California 91386 RE: Request to Approve Complaint DFEH Matter Number: 763377-224153 EEOC Number: Amirian I Costco Whole Sale Dear Warkes Amirian: This notice confirms that you have been interviewed by a Department of Fair Employment and Housing (DFEH) representative and you wish to file a complaint Please read the complaint carefully and immediately approve it and return it within ten (10) business days to the above captioned address or by electronic signature (E-sign). If you do not approve the language on the complaint, please do not sign the complaint; lnstead, contact me to discuss your concerns. If your signed complaint is not received within ten business (10) days, your Pre-Complaint Inquiry will be closed. After this time, should you wish to pursue this complaint, you must re-submit a new Pre- Complaint Inquiry. Thank you for your cooperation. Sincerely, ?rrcUtt:l4aJ "Dela0t«7 Francisco Delacruz Consultant II · · (213) 337-4463 francisco.delacruz@dfeh.ca.gov Page 8 Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 9 of 16 Page ID #:272 COMPLAINT OF EMPLOYi\!lENT DISCRIMINATION BEFORE THI:~ STATE OF CALIFORNIA DEPARTiWENT OP FAIR EMPLOYMENT AND HOUSING Under the California Fair Employment and Housing Act (Gov. Code,§ 12900 et seq.) Complaint of Warkcs Amirian, Complainant. P.o. Box 2961 Canyon Country, California 91386 vs. Costco Whole Sale Respondent. I 8649 Via Priccssa Santa Clarita, California 91387 THE PARTICULAR.S ARE: DFEH No. 763377-224153 EEOC No. 1. I, Warkes Amirian, allege that I was subjected to Discrimination by respondent, Costco Whole Sale due to one or more Fair Employrncnt and Housing Act protected bases: Medical Condition - Including cancer or cancer related medical condition or genetic characteristics. 2. r was Tem1inated. The most recent harm occurred on or around May 05, 2015. 3. My belief is based on the following: -2- Page 9 Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 10 of 16 Page ID #:273 VERfFICATlON I, \Varkcs Amirian, am the Complainant in the above complaint I have read the above complaint and know its contents. I declare under penalty of perjury under the laws of the State of California that the above is true and correct of my own knowledge, except as to those matters alleged on information and belief. which I also believe to be true. Signature of Complainant or Complainant's Legal Representative: Date: Warkes Amirian May 2, 2016 -3- Page 10 Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 11 of 16 Page ID #:274 Email: warkesamlr@yahoo.com Page 11 Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 12 of 16 Page ID #:275 Adobe Document Cloud Document History Created: 0510212016 05/02/2016 By: Francisco Delacruz (francisco.delacruz@dfeh.ca.gov) Status; SIGNED Transoction ID: CBJCHBCAABAAGXbH!Jj4X_rpa9iPpStgP4EhVOAKxZ9VV "Warkes Arnirian 5-2--16)! History Document created by Francisco Delacruz (francisco.delacruz@dfeh.ca.gov) 0510212016 • 8:26:14 PDT - IP address: 165.235.41.142 Document emailed to Warkes Amirian (warkesamir@yahoo.com) for signature 0510212016 • 8:28:11 PDT Document viewed by Warkes Amirian (warkesamir@yahoo.com) 05/02/2016 • 8:42:08 PDT· IP address: 206.227.4.131 Document e-signed by Warkes Amirian (warkesamir@yahoo.com) Signature Date: 05102/2016 - 8:43:11 PDT· Time Source: server· IP address: 206.227.4.131 Signed document emailed to Warkes Amirian (warkesamir@yahoo.com) and Francisco Delacruz (francisco.de!acruz@dfeh.ca.gov} 05/0212016 • 8:43:11 PDT Page 12 Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 13 of 16 Page ID #:276 HI IT 3 Page 13 Case 2:17-cv-01740-JFW-PJW Document 17-1 Filed 04/17/17 Page 14 of 16 Page ID #:277 ~T.t\TE OF CAUFOR~Lt\ I Business( Consumer Scrv:c~s p.n Friday, March 10, 2017 9:59 AM Matt McConnell Re:RE: Re:Amirian v. Costco We are not going to proceed with any maritless claim, or with claims that are barred with the waiver agreement, so I dont think you have a basis to threathen me or my client with any sanctions. The purpose of my agreeing to amend the complaint is to reflect our federal age discrimination claim and get rid of irrelevant and barred claims. Obviously, the waiver agreement has nothing to do in this case when we proceed only for age discrimination. As to you point that age discrimination claim should have been administratively exhausted, I would argue that because my client did intent to include it in his original complaint to the state agency, but for unknow reasons it was not, I assume it must have been negligently missed by the agency employees. There is acase law on point with exactly same factual background. There is a case law, even US Supreme court decision, that in such a case the term of charge should include whatever was intended by the applicant to lunch an investigation. Clearly, my client wanted to start investigation of his wrongful termination based on alleged discrimination based on age and disability. As a result of negligence or misunderstanding, only disability claim was included. As the court puts it, the purpose of administrative exhausting process is to put the employer on notice, which was done, and there is no detriment or surprise now to your client. Additionally, there is a case law allowing amending the original complaint adding new and related claim, thus relating them back in time. In sum, I do believe that under circumstances of our case, there is a chance that formal compliance with EEOC could be met by filing state complaint even with no specific mention about federal age discrimination. Alternatively, it could be amended if necessary. I will email you specific authorities supporting my contention im few hours. In any event, it cannot be said that our position lacks merits to litigate. Hayk Thank you, Hayk M. Grigoryan, Esq. GRIGORYAN LAW FIRM (323) 350-0942 www.goglaw.com Confidentiality Notice: This e- mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged in formation. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the inten ded recipient, please contact the sender by reply e-mail and destroy all copies of the original message. 1 Page 9 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 10 of 34 Page ID #:289 ---- On Fri, 10 Mar 2017 08:42: 10 -0800 MMcConnell@sheppardmullin.com wrote ---- Mr. Grigoryan, The complaint is currently limited to state law claims for wrongful termination and for discrimination under FEHA. Those claims are barred by the settlement agreement and should be dismissed. We agree that the release does not bar a federal age discrimination claim under the ADEA. However, your client is barred from adding such a claim for at least the following reasons: 1. Under the ADEA, a plaintiff must file with the EEOC within 180 days of the alleged discriminatory act. 29 U.S.C. § 626(d); Bauer v. Bd. of Supervisors, 44 Fed. Appx. 194, 199 (9th Cir. 2002); S.h~[L'l,_ Stanford Univ. Med. Ctr., 2007 U.S. Dist. LEXIS 61370, at *8 (N.D. Cal. August 13, 2007). The ADEA also has an exception where the charge was originally filed with a state agency, allowing a claimant to file within 300 days from the alleged discrimination, or 30 days after receiving a right-to-sue letter from the state agency, whichever is earlier. kl Your client had until February 22, 2016 to file a charge with the EEOC (300 days after his termination). Your client has never filed a charge with the EEOC, and he is now barred from doing so. 2. Under the ADEA, a plaintiff must file suit within 90 days after receipt of the right- to-sue letter. 29 U.S.C. § 626(e); Welch v. S. Cal. Edison, 378 Fed. Appx. 621, 622 (9th Cir. 2010). Again, your client failed to timely request a right to sue letter from the EEOC. As to the only right to sue letter that he did receive, it was issued on May 18, 2016, yet your client did not file a lawsuit until January 30, 2017. Moreover, his DFEH complaint does not mention anything about age discrimination, meaning he never exhausted even as to a FEHA age discrimination claim. The bottom line is that your client never exhausted his administrative remedies regarding a federal age discrimination claim, and it is now far too late to cure this defect. If you believe that your client can pursue a federal age discrimination claim, or any of the other pied claims, please explain and provide me with supporting authority. Otherwise, I must insist that your client dismiss his lawsuit in its entirety. As detailed in my prior letter, our call, and this email, your client has no viable claims against Costco, and continued pursuit of these claims will not only expose your client to costs of defense under the settlement agreement, but it may also expose you and your client to sanctions for continuing with clearly frivolous claims. 2 Page 10 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 11 of 34 Page ID #:290 Matt From: Hayk Grigoryan [mailto:h.grigoryan@goglaw.com] Sent: Thursday, March 09, 2017 4:02 PM To: Matt McConnell Subject: Re:Amirian v. Costco Mr. McConnell, In your letter you refer to FEHA and Rodriguez, they both do not relate to federal age discrimination. Radriguez is action based on disability, not age discrimination, and it was filed under FEHA and not ADEA. In fact you have not pointed out to any authority that will bar federal age discrimination claim. Thank you, Hayk M. Grigoryan, Esq. GRIGORYAN LAW FIRM (323) 350-0942 www.goglaw.com Confidentiality Notice: This e- mail message is for the sole use of the intended recipient(s) and may contain confidential an d privileged information. Any unauthorized review, use, disclosure or distribution is prohibit ed. If you are not the intended recipient, please contact the sender by reply e- mail and destroy all copies of the original message. ----On Thu, 09 Mar 2017 13:35:40 -0800 MMcConnell@sheppardmullin.com wrote ---- Mr. Grigoryan, 3 Page 11 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 12 of 34 Page ID #:291 Please find attached a stipulation to extend Costco's time to respond by 14 days. Please also find a joint statement regarding our call this morning which our judge requires to be filed in his Standing Order. Please confirm that I have your permission to file both documents. If you have any questions or comments, please let me know. Matt Matthew S. McConneil 858.720.8928 ! direct 858.847.4846 I direct fax MMcConnell@sheppardmullin.com I Sio Sheppard Mullin Richter & Hampton LLP 12275 El Camino !~eal, Suite 200 San Diego, CA 92130-2006 858.720.8900 i main www.sheppardmullin.com Attention: This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. 4 Page 12 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 13 of 34 Page ID #:292 XHI IT 3 Page 13 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 14 of 34 Page ID #:293 Matt McConnell From: Sent: To: Subject: Mr. Grigoryan, Matt McConnell Tuesday, March 14, 2017 11 :30 AM 'Hayk Grigoryan' RE: Re:RE: Re:RE: Amirian v. Costco_Age Discrimination Claim As I have explained several times now, whether your client "intended" his DFEH complaint to include age discrimination is irrelevant to whether he can now pursue an ADEA claim for at least the following reasons: (1) the DFEH complaint was filed more than 300 days after his termination; and (2) the lawsuit was filed more than 90 days after the DFEH right to sue. Both of these independent grounds bar any attempt to add an ADEA claim. Please confirm what you are going to do and when (i.e., dismiss all claims, file an amended complaint with only an ADEA claim, or something else). Matt From: Hayk Grigoryan [mailto:h.grigoryan@goglaw.com] Sent: Monday, March 13, 2017 1:30 PM To: Matt McConnell Subject: Re:RE: Re:RE: Amirian v. Costco_Age Discrimination Claim The cases I cited indicate that courts excuse yhr exhaustion under some circumstances and I beleive we have similar circumstances now. I cited cases to show this, and i am not claiming that we did file or will file EEOC complaint, rather I am suggesting that filing with state agency was timely and covers federal claim, and thus ee are not timely barred. You have not addressed this part of my email. I would like to address any of your concerns in more details. Thank you. Thank you, Hayk M. Grigoryan, Esq. GRIGORYAN LAW FIRM (323) 350-0942 www.goglaw.com Confidentiality Notice: This e- mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged in formation. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the inten 1 Page 14 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 15 of 34 Page ID #:294 ded recipient, please contact the sender by reply e-mail and destroy all copies of the original message. ----On Mon, 13 Mar 2017 11:58:20 -0700 MMcConnell@sheppardmullin.com wrote ---- Mr. Grigoryan, In point 2, the year should be 2016. Whether or not your client "intended" to include FEHA age discrimination claim in his DFEH complaint is irrelevant to whether he timely exhausted a federal ADEA claim and whether he timely filed a federal ADEA claim. I have provided you with statutory and case law authorities which demonstrate that your client is barred from pursuing a federal ADEA claim. You have not responded to my authorities, nor have you provided me with any authorities that would excuse your client's failure to ever file a charge with the EEOC as well as your client's failure to file a lawsuit within 90 days of the only right to sue that he has received. If you have such authorities, please provide them to me. Otherwise, I must again request that your client dismiss his lawsuit in its entirety. If your client refuses to dismiss his lawsuit, then please let me know whether and when he will be filing an amended complaint alleging just an ADEA age discrimination claim. Matt From: Hayk Grigoryan [mailto:h.grigoryan@goglaw.com] Sent: Friday, March 10, 2017 10:39 PM To: Matt McConnell Subject: Re:RE: Amirian v. Costco_Age Discrimination Claim To answer your questions: 1. My client was termniated on 05.04.2015. 2. He filed his complaint with DFEH on 05.02.2015. 3. The deadline to file a claim with DFEH is one year. 4. In this case we are not going by traditional avenues that you are diacussing im your emails. 5. The main issue here is to determine if my client timely filed a complaint with DFEH, and 2 Page 15 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 16 of 34 Page ID #:295 intended it to include all his claims, including age discrimination. Under the case law that i cited it may appear to include that claim, and since it was timely filed with a state agency then it will qualify under EEOC standard, considering equitable mature of these deadlines. This is not a clear cut, i understand that, but you cannot deny that we have a valid claim, at least we have good faith believe that we may win. This will be enough for me to prosecute this case without violating the waiver agreement or any applicable law regulating legal profession. Thank you. Hayk Thank you, Hayk M. Grigoryan, Esq. GRIGORYAN LAW FIRM (323) 350-0942 www.goglaw.com Confidentiality Notice: This e- mail message is for the sole use of the intended recipient(s) and may contain confidential an d privileged information. Any unauthorized review, use, disclosure or distribution is prohibit ed. If you are not the intended recipient, please contact the sender by reply e- mail and destroy all copies of the original message. ---- On Fri, 10 Mar 2017 17: 01: 25 -0800 MMcConnell@sheppardmullin.com wrote ---- Mr. Grigoryan, Thank you for your response. However, you have not addressed the two points that I raised in my prior email. First, in order to pursue an ADEA claim, your client was required to file a charge with the EEOC within the earlier of 300 days of the adverse act or 30 days after the DFEH right to sue notice. That means your client had until February 22, 2016 to file an EEOC charge. It is undisputed that he did not file any charge until May 2, 2016, and that charge was with the DFEH. To date, your client has never filed an EEOC 3 Page 16 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 17 of 34 Page ID #:296 charge. Because it is too late to cure this defect, your client cannot now add a claim under the ADEA. Second, even if the May 2, 2016 DFEH charge couid suffice for an EEOC charge (it cannot), your client is still time barred because he was required to file his lawsuit and ADEA claim within 90 of receipt of the right to sue. The DFEH issued its right to sue on May 18, 2016, yet the complaint was not filed until January 30, 2017. In Parker-Reed v. Sprint Corp., 2005 U.S. Dist. LEXIS 23781, at *9-10 (E.D. Cal. October 14, 2005), the court summarized the law at issue: 11Plaintiff is correct that the DFEH is an approved state agency and has entered into a workshare agreement with the EEOC. Plaintiff's contention, however, that the foregoing provision acts to transform her DFEH filing into an EEOC filing such that it satisfies her EEOC administrative exhaustion requirement is unavailing. While this provision does provide that a claim received by a state agency is "deemed received" by the EEOC, it is only deemed received "for purposes of Section 1626.7. Section 1626.7 refers solely to the timeliness, as opposed to the existence of an EEOC charge. Specifically, that section provides that in the event an aggrieved party initially files a charge with a state agency, that party has 300 days from the date of the alleged violation to file a charge with the EEOC as opposed to the statutorily proscribed 180 days. This provision extended Plaintiff's time to file her EEOC charge from 180 days to 300 days. Nonetheless, Plaintiff has never filed a claim with the EEOC and this provision does nothing to cure that procedural defect." In Lillis v. Apria Healthcare, Inc., 2013 U.S. Dist. LEXIS 53244, at *9-14 (S.D. Cal. April 11, 2013), the plaintiff timely filed a DFEH administrative complaint, and received a right-to- sue letter from the DFEH. & at *11. However, the court held that plaintiff failed to show exhaustion of his administrative remedies for his federal claims of disability discrimination. The court noted that plaintiffs must file an administrative complaint with the EEOC within 300 days of the alleged discriminatory act. This "is a prerequisite to initiating a lawsuit for federal claims of discrimination and wrongful termination .... " & at *8. "Plaintiff has failed to provide any information in his FAC to indicate that he filed a complaint with the EEOC within the first thirty days of receiving the DFEH Notice or by May 27, 2012 (300 days from the date of termination}. As such, Plaintiff has not shown that he has exhausted his administrative remedies to bring a claim under ADA and Title VIL" See also Shek v. Stanford Univ. Med. Ctr., 2007 U.S. Dist. LEXIS 61370, at *9-10 (N.D. Cal. August 13, 2007} ("As noted, the DFEH right-to-sue letter is not sufficient to present federal discrimination claims as to the Title VII and ADA claims. Therefore, Shek has failed to exhaust his administrative remedies. With regard to the ADEA claim, Shek failed to exhaust his administrative remedies because he did 4 Page 17 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 18 of 34 Page ID #:297 not file with the EEOC. ... Thus he did not satisfy the jurisdictional prerequisite for his ADEA claim."). Your assertion that the DFEH made a mistake by failing to include any mention of age discrimination is entirely irrelevant given your client's failure to ever file a charge with the EEOC and his failure to file a lawsuit within 90 days of the DFEH right to sue. Please explain how plaintiff can pursue a non-exhausted ADEA claim? As for your contention that the DFEH made a mistake, I would urge you to carefully review your client's communications with DFEH. He was told in writing to review the draft complaint and to only sign it and submit it if it was accurate. By signing and submitting the complaint, he necessarily affirmed its accuracy. Again, if plaintiff will not dismiss his lawsuit in its entirely, we will pursue a!! available remedies including sanctions for pursuing frivolous claims. Matt From: Hayk Grigoryan [mailto:h.grigoryan@goglaw.com] Sent: Friday, March 10, 2017 12:51 PM To: Matt McConnell Subject: Amirian v. Costco_Age Discrimination Claim Mr. McConnell, It appeared that Mr. Amirian may have failed to formally include his federal age discrimination claim in his original complaint field with DFEH, with that agency' agents or emoyees fault. After retaining me, Mr. Amirian provided more details about his termination back in 2015, which revealed that he was wrongfully 5 Page 18 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 19 of 34 Page ID #:298 terminated based on his disability and his age. Thus, he had and has valid state and federal age discrimination claim as well. I agree that state disability claim could have been waived under the settlement agreement that he signed. The only issue I am trying to raise is thay his original complaint included age discrimination and thus he may proceed with amending his complaint and alleging only federal age discrimination claim. Currently, in order to proceed with his complaint based on federal age discrimination claim, we need to clarify if the original administrative complaint which contained disability discrimination claim and was filed with DFEH, would also cover his federal age discrimination claim. If it will be interpreted to cover it, then he may proceed with his lawsuit by amending it, because he exhausted the administrative process. If it is not covered, then I agree that he cannot proceed and the case will be dismissed. This will not be a violation of waiver agreement because it does not cover it. Note that Mr. Amirian intended to include both age and disability discrimination claims in his original complaint with DFEH. He will provide an affidavit to this effect to supprot this fact. Mr. Amirian did alleged similar claims in his complaint because they are all based on the wrongful termination and investigation of one claim (disability) would necessitate investigation of the other (age). We need the court ruling to confirm that they are "like or reasonably related to" the claim of age discrimination. Sandhu v. Lockheed Missiles & Space Co., 26 Cal.App.4th 846, 31 Cal.Rptr.2d 617 (1994). This standard is met where the allegations in the civil suit are within the scope of the administrative investigation "which can reasonably be expected to grow out of the charge of discrimination." Id. Our current complaint alleges both disability and age discrimination clearly indicating my clients goal to pursue both related claims. Additionally, the Fair Employment and Housing Commission held in a precedential decision that an untimely amendment adding a sex discrimination charge related back to a timely-filed race discrimination charge, because all of the allegations were "based on the same operative facts." FEHC v. County of Alameda, Sheriffs Dep't, FEHC Dec. No. 81-13, 1981 WL 30856, at *8 (Cal.F.E.H.C. July2, 1981). 6 Page 19 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 20 of 34 Page ID #:299 We are not foreclosed to do the same and exhaust the adminstrative process. Some circuits, including the Fifth Circuit, permit relation back of new theories on the principle that the proper scope of the charge is determined by facts alleged in the original complaint, not the legal theory originally attached to those facts. See Sanchez, 431 F.2d at 463-64; Washington v. Kroger Co., 671 F.2d 1072, 1075-76 (8th Cir.1982) Although California courts describe exhaustion as a jurisdictional prerequisite to suit under FEHA, this label does not implicate the trial court's fundamental subject matter jurisdiction. Keiffer v. Bechtel Corp., 65 Cal.App.4th 893, 896-99, 76 Cal.Rptr.2d 827 (1998). 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. Grywczynski v. Shasta Beverages, Inc., 606 F.Supp. 61, 65-66 (N.D.Cal.1984); Keiffer, 65 Cal.App.4th at 899-901, 76 Cal.Rptr.2d 827; Denney v. Universal City Studios, Inc., 10 Cal.App.4th 1226, 1233-34, 13 Cal.Rptr.2d 170 (1992) (abrogated on other grounds). Rodriguez contends that he failed to file a timely mental disability discrimination charge only because he was misled by the DFEH into believing that he could not pursue such a charge under FEHA, and that this fact should excuse his failure. His argument is directly supported by Denney v. Universal City Studios, Inc., 10 Cal.App.4th at 1232-34, 13 Cal.Rptr.2d 170. In Denney, the California court of appeal adopted the rule that equity may excuse noncompliance with exhaustion requirements under the FEHA, when the plaintiffs failure to comply can be attributed to the administrative agency (generally the DFEH) charged with processing his complaint. Id. The plaintiff in Denney brought a civil suit under FEHA for age and disability discrimination and retaliation. The defendant contended that Denney failed to exhaust his administrative remedies, because his timely administrative complaint, filed with the DFEH through the EEOC, contained only a charge of age discrimination.9 Denney countered that he had notified the EEOC of all three of his charges-age discrimination, 7 Page 20 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 21 of 34 Page ID #:300 disability discrimination, and retaliation-when he completed an intake questionnaire, but that the EEOC had prepared a fomrnl complaint raising only the age charge. Id. at 1234, 13 Cal.Rptr.2d 170. When Denney complained, the EEOC told him that the age charge was sufficient to commence the administrative process (including referral to DFEH). Id. Denney relied on this representation of the EEOC until he obtained an attorney. Id. His attorney advised him, several days after FEHA's one-year filing deadline expired, to amend his charges with the EEOC and the DFEH to add the retaliation and disability discrimination claims, which he promptly did. Id. On these facts, the court held that equity precluded barring Denney's retaliation and disability claims for failure to exhaust. Id. The comi deemed Denney to have complied with FEHA's one-year filing deadline with respect to all three of his claims. Id. In so holding, Denney relied upon this court's decision in Albano v. Schering-Plough Corp., 912 F.2d 384 (9th Cir.I990), where we excused a plaintiff from failing to charge constructive discharge along with his charge of failure to promote on the ground of age, because the EEOC had refused to make the amendment and had told the plaintiff incorrectly that constructive discharge would be encompassed by his original charge. See Albano, 9I2 F.2d at 387- 88. Although the employer was not properly put on notice of Albano's constructive discharge claim, we observed that the primary function of an EEOC charge is to set in motion an EEOC investigation and conciliation, rather than to give notice to the employer of the claims against it.IO Id. at 388. If the facts prove to be as set forth in Rodriquez's affidavit, his case is governed by Denney and, by analogy, Albano. I I As with virtually any equitable doctrine, application of the Denney exception requires balancing the equities in the particular case. See Naton v. Bank of California, 649 F.2d 691, 696 & n. 5 (9th Cir.198I); Addison v. California, 21Cal.3d313, 32I, I46 Cal.Rptr. 224, 578 P.2d 94I (1978). Although there is no formula for doing so, prior cases have set forth some factors meriting consideration. The equities favor a discrimination plaintiff who (1) diligently pursued his claim; (2) was misinformed or misled by the administrative agency responsible for processing his charge; (3) relied in fact on the misinformation or misrepresentations of that agency, causing him to fail to exhaust his administrative remedies; and (4) was acting pro se at the time.12 See Denney, 10 Cal.App.4th at 1234, 13 Cal.Rptr.2d 170; Albano, 912 F.2d at 388; 8 Page 21 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 22 of 34 Page ID #:301 cf. Frederickson v. UPS, 1999 U.S. Dist. LEXIS 2650, at *7-9 (N.D.Cal. Mar. 8, 1999) (rejecting equitable excuse on the facts and because plaintiff was represented by counsel at time of making original charge). Rodriguez's declaration asserts facts that qualify him under these factors, which Denney held to outweigh any concern that the employer was prejudiced by the plaintiffs failure to exhaust. See Denney, 10 Cal.App.4th at 1234, 13 Cal.Rptr.2d 170; see also Albano, 912 F.2d at 387-88. All these facts are present here in our case. Because Rodriguez has presented evidence which, if credited by the trier of fact, would pe1mit equitably excusing his noncompliance with FEHA's administrative exhaustion requirements, summary judgment is not appropriate. The trier of fact must resolve disputed factual issues in order to determine whether Rodriguez is entitled to equitable excuse for his failure to exhaust his disability discrimination claim. See Richardson v. Frank, 975 F.2d 1433, 1435-36 (10th Cir.1991) (holding that whether Title VII plaintiff was misled by EEO office as to the time limits for filing his EEO complaint was a fact question not appropriate for summary judgment); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1199 (9th Cir.1988) (remanding for resolution of disputed factual matters prior to ruling on application of California's equitable tolling doctrine). Because Rodriguez failed to file a timely administrative charge with DFEH alleging disability discrimination, he failed to exhaust his administrative remedies. His untimely amendment of the charge does not relate back to the original charge. Equitable considerations may prevent Rodriguez's claim from being time- barred, however, ifhe was in fact misled by DFEH into believing he could not pursue a claim of disability discrimination under FEHA. A triable issue of fact exists with regard to this issue. The district court's summary judgment in favor of Airborne is therefore reversed, and the case is remanded to the district court for further proceedings consistent with this opinion. Section 1626.8(a) identifies five pieces of information a "charge should contain": (1 )-(2) the names, addresses, and telephone numbers of the person making the charge and the charged entity; (3) a statement of facts describing the alleged discriminatory act; ( 4) the number of employees of the charged employer; and (5) a statement indicating whether the charging party has initiated state 9 Page 22 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 23 of 34 Page ID #:302 proceedings. The next subsection, § l 626.8(b ), however, seems to qualify these requirements by stating that a charge is "sufficient" if it meets the requirements of§ 1626.6-i.e., if it is "in writing and . . . name[s] the prospective respondent and ... generally allege[s] the discriminatory act(s)." The agency's position was validated by the Supreme Court in Federal Express Corp. v. Holowecki, 74 which held that a claimant's submission of an improper form was not fatal to her claim.See 128 S.Ct 1147 (2008) FEDERAL EXPRESS CORPORATION v. Paul HOLOWECKI et al. According to the Court, "In addition to the information required by the regulations ... if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee."75 Although this permissive standard may lead to a higher number of filings being deemed to be charges, the Comi reasoned that giving inexperienced litigants the benefit of the doubt is more consistent with the remedial purpose of the ADEA. 75 Id. at 402. I would appeciate your prompt response to this meet and confer effort. Hayk Attention: This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. 10 Page 23 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 24 of 34 Page ID #:303 I IT 4 Page 24 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 25 of 34 Page ID #:304 Matt McConnell From: Sent: To: Cc: Subject: Mr. Grigoryan, Matt McConnell Tuesday, March 28, 2017 9:39 AM 'Hayk Grigoryan' Tara Wilcox Esq. (twilcox@sheppardmullin.com) RE: Re:Amirian v. Costco I cannot agree with your characterization that the allegations identified below are relevant to plaintiff's claimed intention to include age discrimination in his DFEH charge. Moreover, whether your client intended to allege disability discrimination in the DFEH charge is entirely irrelevant to his claim that he intended to allege age discrimination. The complaint should be limited to allegations regarding plaintiffs purported desire to include an age claim. There is no valid basis for referencing anything about disability discrimination. For example, paragraph 7 states: "This is an action for damages against Defendant for its discriminatory treatment and wrongful termination of Plaintiff's employment based on age and disability discrimination in violation of federal and state laws, particularly the Age Discrimination in Employment Act ... and corresponding California law." Upon re- reading this paragraph, not only is the reference to "and disability" improper, but so too are the references to state/CA law. These allegations have nothing to do with what plaintiff intended to put in his DFEH charge. The offending allegations need to be removed. Paragraph 9 states: "Plaintiff was an employee of Defendant for almost 20 years, and was terminated when he was a pensioner, who was also receiving workers' compensation benefits." The reference to workers' compensation is entirely irrelevant to plaintiff's age discrimination claim, and it has nothing to do with the purported DFEH filing process. In paragraph 11, the first sentence states: "Plaintiff was wrongfully terminated on May 4, 2015 based on his age and/or disability." Again, your client released any disability claims, and you agreed to file an amended complaint removing all such claims. This sentence improperly injects a claim for disability discrimination. It must be removed. Paragraph 39 states: "Plaintiff's termination was wrongful because it was (1) in violation of the written agreement, i.e., Article 4 of Union Agreement ("UA''); and (2) based on age and disability discrimination." Your client released any claims for breach of contract or for disability discrimination. You agreed to remove the breach of contract claim and the disability-based claim. Yet paragraph 39 includes both claims. This paragraph has nothing to do with the DFEH filing process. Paragraph 43 reads: "Additionally, Plaintiff knew that Costco intended to terminate him for his age and disability. Thus, by terminating Plaintiff, Defendant discriminated against him based on his age and/or disability (Plaintiff had been receiving worker's compensation benefits for the injuries he got while working for Defendant)." Once again, this paragraph injects disability discrimination into the amended complaint. It has nothing to do with the DFEH filing process. Paragraph 47 states: "Plaintiff was medically treated during the past few years and had some physical disabilities. This disability is closely related to his age." This appears to be an attempt to meld disability discrimination with age discrimination. However, disability and age are two separate protected characteristics. Allegations of purported disabilities are entirely irrelevant to plaintiff's federal age discrimination claim and must be removed. 1 Page 25 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 26 of 34 Page ID #:305 Paragraph 49 states: "After Plaintiff came back to work following his suspension, he heard that Defendant wanted to fire him because he is old and has medical problems that do not allow him to perform his duties as better as previously." Once again, the bolded portion clearly attempts to allege disability discrimination. Finally, paragraph 54 reads: "Plaintiff intended and wanted DFEH to investigate his wrongful termination based on age and disability discrimination against him." This is the only allegation of the group that actually involves the DFEH charge. However, whether plaintiff wanted DFEH to also investigate disability discrimination is totally irrelevant to his claim for age discrimination. Please explain what possible bearing this purported fact has on whether plaintiff intended to include age discrimination and whether plaintiff exhausted his administrative remedies as to age discrimination? The reality is that none of these references to disability discrimination, breach of contract, and/or workers' compensation benefits have anything at all to do with your client's claim that he intended to allege age discrimination in his DFEH complaint. Instead, each of these allegations improperly injects claims which are barred by plaintiff's release agreement and which you represented you would remove in the amended complaint. As long as the allegations remain in the FAC, my client has no choice but to file a motion to have each of them stricken. Matt From: Hayk Grigoryan [mailto:h.grigoryan@goglaw.com] Sent: Monday, March 27, 2017 7:49 PM To: Matt McConnell Subject: Re:Amirian v. Costco Mr. McConnell, Please correct me if my understanding is wrong, but if you plan to file a motion to dismiss, why do you want to file a motion yo strike portions of the complaint? I believe that the portions that you refer to are relevant to show the overall history of discrimination and explain the reasons why we believe thay the court should excuse plaintiff's failure to timely file a complaint. Age and disability discrimination were claimed together from the very beginning, so they are relevant to show my clients intent to pursue both claims in timely fashion. Hayk Thank you, Hayk M. Grigoryan, Esq. GRIGORYAN LAW FIRM (323) 350-0942 www.goglaw.com Confidentiality Notice: This e- mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged in formation. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the inten ded recipient, please contact the sender by reply e-mail and destroy all copies of the original message. 2 Page 26 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 27 of 34 Page ID #:306 Mr. Grigoryan, We have reviewed the first amended complaint. Although it is phrased as a single cause of action for federal age discrimination, there are references throughout as to the now dismissed claims from the original complaint. These references are improper and need to be removed. If plaintiff does not file a second amended complaint removing the following allegations, we will have no choice but to file a motion: p. 2, line 27: "and disability" p. 3, lines 6-7: "who was also receiving workers compensation benefits" p. 4, line 23: "and/or disability" p. 11, lines 7-8: "(1) in violation of the written agreement, i.e., Article 4 of Union Agreement ("UA")" p. 11, line 9: "and disability" p. 11, line 24: "and disability" p. 11, lines 25-27: "and/or disability (Plaintiff had been receiving worker's compensation benefits for the injuries he got while working for Defendant)." p. 12, lines 11-12: "PLAINTIFF was medically treated during the past few years and had some physical disabilities. This disability is closely related to his age." p. 12, lines 19-20: "and has medical problems that do not allow him to perform his duties as better as previously." p. 13, line 4: "and disability" We previously met and conferred extensively about the ability of plaintiff to assert any claims against Costco. As to adding an ADEA claim, we repeatedly explained why such a claim is time barred. You have decided to nonetheless pursue an ADEA claim. We intend to file a motion to dismiss for the reasons previously discussed. If you have anything to add to our prior meet and confer efforts, please let me know. 3 Page 27 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 28 of 34 Page ID #:307 Matt Attention: This message is sent by a law firm and may contain information that is privileged or confidential. If you received this transmission in error, please notify the sender by reply e-mail and delete the message and any attachments. 4 Page 28 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 29 of 34 Page ID #:308 HI I 5 Page 29 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 30 of 34 Page ID #:309 SL'\IE._GF_CAUEOBNIMB_usiness_ConsumeLSenlkes_aodJ:!o.usin~g§!Jgc~~===~========='""O""YERUOREDMUND_G _ _B80WN J8 DEPARTMENT OF FAIR EMPLOYMENT & HOUSING 2218 Kausen Drive, Suite 100 I Elk Grove I CA 195758 800-884-1684 I TDD 800-700-2320 www.dfeh.ca.gov I email: contact.center@dfeh.ca.gov March 29, 2017 Warkes Amirian P.O. Box 2961 Canyon Country, California 91386 RE: Request to Approve Amended Complaint DFEH Matter Number: 763377-224153 EEOC Number: Amirian I Costco Whole Sale Dear Warkes Amirian: DIRECTOR KEVIN KISH This notice confirms that you have filed a complaint and have been interviewed by a Department of Fair Employment and Housing representative. Please read the complaint carefully and immediately approve it. You must approve the changes made to your complaint before it can be investigated. If you do not approve the language on the complaint, please do not sign the complaint; instead, contact me to discuss your concerns. Please read the complaint carefully and follow the instructions provided. Please return the signed amended complaint within 10 days. Please note that the information you provide is subject to the Department's privacy policy and the California Public Records Act, Government Code section 6250 et seq. Thank you for your cooperation. Elizabeth Reyes Consultant 111-Supv. 213.337-4478 elizabeth.ramirez@dfeh.ca.gov Page 30 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 31 of 34 Page ID #:310 COMPLAINT OF EMPLOYMENT DISCRIMINATION BEFORE THE STATE OF CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING Under the California Fair Employment and Housing Act (Gov. Code,§ 12900 et seq.) Complaint of Warkes Amirian, Complainant. P.o. Box 2961 Canyon Country, California 91386 vs. Costco Whole Sale Respondent. 18649 Via Pricessa Santa Clarita, California 91387 THE PARTICULARS ARE: DFEH No. 763377-224153 1. I, Warkes Amirian, allege that I was subjected to Discrimination by respondent, Costco Whole Sale due to one or more Fair Employment and Housing Act protected bases: Age - 40 and over, Disability [physical or mental], Medical Condition - Including cancer or cancer related medical condition or genetic characteristics. 2. I was terminated. The most recent harm occurred on or around May 05, 2015. 3. My belief is based on the following: I believe I was terminated and discriminated against because of my age, disability and medical condition. Date Filed: May 02, 2016 Amended -2- Page 31 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 32 of 34 Page ID #:311 VERIFICATION I, Warkes Amirian, am the complainant in the above complaint. I have read the above complaint and know its contents. I declare under penalty of perjury under the laws of the State of California that the above is true and correct of my own knowledge, except as to those matters alleged on information and belief, which I also believe to be true. Signature of Complainant or Complainant's Legal Representative: Date: Ha·~'''7f"' Mr. Am,ricin \Mor :09, 20·;7) Mar 29' 2017 Date Filed: May 02, 2016 Amended -3- Page 32 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 33 of 34 Page ID #:312 Adobe Sign Document History 03/29/2017 Created: 03/29/2017 By: Elizabeth Reyes (elizabeth.reyes@dfeh.ca.gov) Status: Signed Transaction ID: CBJCHBCAABAAygHanPjNwV1ctD5DNZMWF68dGk6GRjnD "amended complaint" History Document created by Elizabeth Reyes (elizabeth.reyes@dfeh.ca.gov) 03/29/2017- 8:46:37 AM PDT- IP address: 165.235.41.158 Document emailed to Hayk Grigoryan, attorney for Mr. Amirian (grigoryanlaw@gmail.com) for signature 03/29/2017 - 8:46:58 AM PDT Document viewed by Hayk Grigoryan, attorney for Mr. Amirian (grigoryanlaw@gmail.com) 03/29/2017 - 8:49:20 AM PDT- IP address: 66.249.84.196 Document e-signed by Hayk Grigoryan, attorney for Mr. Amirian (grigoryanlaw@gmail.com) Signature Date: 03/29/2017 - 8:53:21 AM PDT - Time Source: server- IP address: 76.170.80.185 Signed document emailed to Elizabeth Reyes (elizabeth.reyes@dfeh.ca.gov) and Hayk Grigoryan, attorney for Mr. Amirian (grigoryanlaw@gmail.com) 03/29/2017 - 8:53:21 AM PDT I AdobeSign Page 33 Case 2:17-cv-01740-JFW-PJW Document 17-2 Filed 04/17/17 Page 34 of 34 Page ID #:313 1 SHEPP ARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Includi,Qg Professional Corporations 2 TARA WILCOX, Cal. Bar No. 157015 3 501 West Broadway, 19th Floor San Diego, California 92101-3598 4 Telephone: 619-338-6500 Facsimile: 619-234-3815 5 twilcox@sheppardmullin.com 6 SHEPP ARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership 7 Including Professional Corporations MATTHEWS. MCCONNELL, Cal. Bar No. 209672 8 12275 El Camino Real, Suite 200 San Diego, California 92130-2006 9 Telephone: 858-720-8900 Facsimile: 858-509-3691 1 O mmcconnell@sheppardmullin.com 11 Attom~ys for Defendant COSTCO WHOLESALE CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 12 13 14 15 16 17 WARK.ES AMIRIAN, an individual Plaintiff, v. Case No. 2:17-cv-1740 JFW (PJWx) [Complaint Filed: January 30, 2017] PROOF OF SERVICE COSTCO WHOLESALE 18 CORPORATION, a Washington Corporation; and 19 DOES 1 through fO, inclusive, 20 21 22 23 24 25 26 27 28 Defendants. Date: Time: Place: Judge: May 15, 2017 1:30 p.m. Crtrm 7A Hon. John F. Walter Pretrial Conf: Jan. 19, 2018 Trial Date: Feb. 6, 20 18 Case No. [2:17-cv-1740] PROOF OF SERVICE Case 2:17-cv-01740-JFW-PJW Document 17-3 Filed 04/17/17 Page 1 of 3 Page ID #:314 1 2 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO 3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of San Diego, State of California. My business address is 4 12275 El Camino Real, Suite 200, San Diego, CA 92130-2006. 5 On April 17, 2017, I served true copies of the following document(s) described as 6 NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM (F.R.C.P. 12(b )(6)) OR, 7 ALTERNATIVELY, STRIKE PORTIONS OF THE FIRST AMENDED COMPLAINT (F.R.C.P. 12(f); AND MEMORANDUM OF POINTS AND 8 AUTHORITIES IN SUPPORT THEREOF 9 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT 10 FOR FAILURE TO STATE A CLAIM (F.R.C.P. 12(b)(6)) OR, ALTERNATIVELY, STRIKE PORTIONS OF THE FIRST AMENDED 11 COMPLAINT (F.R.C.P. 12(f) 12 DECLARATION OF MATTHEWS. MCCONNELL IN SUPPORT OF NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED 13 COMPLAINT FOR FAILURE TO STATE A CLAIM (F.R.C.P.12(b)(6)) OR, ALTERNATIVELY, STRIKE PORTIONS OF THE FIRST AMENDED 14 COMPLAINT (F.R.C.P. 12(f); 15 on the interested parties in this action as follows: 16 SERVICE LIST 17 Jihad M. Smaili, Esq. 18 Smaili & Assocaites, PC Civic Center Plaza Towers 19 600 W. Santa Ana Blvd., Suite 202 Santa Ana, CA 92701 20 Tel: 714-547-4700 Fax: 714-547-4710 21 jihad(a),smaililaw.com 22 23 00 24 25 26 27 28 BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. SMRH:480601163.l -1- Case 2:17-cv-01740-JFW-PJW Document 17-3 Filed 04/17/17 Page 2 of 3 Page ID #:315 1 I declare under penalty of perjury under the laws of the United States of America that the foreg;oing is true and correct and that I am employed in the office of a member of 2 the bar of this Court at whose direction the service was made. 3 Executed on April 17, 2017, at San Diego, California. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SMR H:48060 11 63.l -2- Case 2:17-cv-01740-JFW-PJW Document 17-3 Filed 04/17/17 Page 3 of 3 Page ID #:316
