The opinion of the court was delivered by: Susan Illston, District Judge
ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS PLAINTIFF'S
ADA CLAIM AND REMANDING
ACTION TO SAN FRANCISCO
On August 15, 2003 the Court heard argument on defendants' motion to dismiss. Having carefully considered the arguments of the parties and the papers submitted, the Court GRANTS defendant's motion to dismiss the federal ADA claim, and remands the balance of the case to state court.
On February 8, 2000, plaintiff Glenn E. Scales was released from his permanent promotive probationary appointment as a Central Control Dispatcher and Classification 9139 Transit Supervisor with the San Francisco Municipal Railway and was returned to his former position of 9163 Transit Operator. Amended Complaint 4:4-6; Exhibit A to Amended Complaint. Plaintiff alleges that this action violated California's civil service rules and violated the Americans with Disabilities Act, a federal statute.
Plaintiff originally filed this action in California Superior Court on August 19, 2002. Defendants then filed a demurrer, which the court sustained with leave to amend on October 31, 2002. Plaintif [ Page 2]
filed his amended complaint on January 17, 2003. Defendants again filed demurrers to the amended complaint, which the court sustained with leave to amend on March 12, 2003. Plaintiff filed his second amended complaint on April 15, 2003; this was the first complaint to assert a federal cause of action under the Americans with Disabilities Act. Defendants removed the case to federal court on May 14, 2003. Now before the Court is plaintiff's opposition to the removal, and defendants' motion to dismiss.
Defendant asserts that all of plaintiff's claims fail and should be dismissed. With respect to the sole federal claim at issue, the Americans with Disabilities Act ("ADA") claim, defendants assert that this claim must be dismissed because plaintiff failed to exhaust his administrative remedies. Under 42 U.S.C. § 12117(a), a plaintiff must file a timely charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") before bringing an ADA action in court. The charge must be filed with the EEOC within 300 days of the last act of alleged discrimination when the plaintiff initially institutes proceedings with a state or local agency. Defendants assert that since plaintiff did not file a charge of discrimination with the EEOC within the 300 day period, plaintiff has failed to exhaust his administrative remedies, and that therefore plaintiff's ADA claim must be dismissed.
This Court agrees. Plaintiff failed to file a charge of discrimination with the EEOC within the 300 day period, and accordingly this Court DISMISSES plaintiff's ADA claim.
Because the ADA claim was plaintiff's only federal claim, the action is left without any federal claims. Since the action is in its early stages in this court, the Court finds in its discretion that the balance of the matter should be litigated in state court. Accordingly, the action is REMANDED to the San Francisco Superior Court. (Docket entries ##6, 7 & 8.)
IT IS SO ORDERED. [ Page 1]
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