United States District Court, N.D. California
May 4, 2004.
CAROL THOMAS, Plaintiff
CITY AND COUNTY OF SAN FRANCISCO; DEPARTMENT OF PUBLIC HEALTH, Deffendant
The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER GRANTING IN PART
DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT; DENYING
PLAINTIFF'S MOTION TO AMEND
REMANDING STATE LAW CLAIMS;
Before the Court is defendant's motion for summary judgment, pursuant
to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff, proceeding
pro se, has filed opposition, to which defendant has replied. Also before
the Court is plaintiff's motion for leave to file an amended complaint to
add additional claims, and defendant's opposition thereto. Having
considered the papers filed in support of and in opposition to the
motions, the Court deems the matters appropriate for decision on the
papers, VACATES the May 7, 2004 hearing, and rules as follows.
The parties agree that plaintiff's current complaint, her Second
Amended Complaint ("SAC") filed March 5, 2003, contains four claims: "one
claim of retaliation and one claim of discrimination under both Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) ("Title VII")
and the Fair Employment and Housing Act, California Government Code § 12960 et seq. ("FEHA")." (See Pl.'s Opp. at 3:4-6;
Def.'s Mot. at 3:12-15.) Specifically, plaintiff alleges that defendant's
failure to hire plaintiff in July 2001 constituted discrimination on the
basis of race and was in retaliation for a prior complaint of
Defendant argues, inter alia, that plaintiff's Title VII
claims are barred by the statute of limitations.
"When the Equal Employment Opportunity Commission (EEOC) dismisses a
claim, it is required to notify claimant and to inform claimant that she
has 90 days to bring a civil action." Scholar v. Pacific Bell,
963 F.2d 264, 266 (9th Cir. 1992). "The requirement for filing a Title
VII civil action within 90 days from the date the EEOC dismisses a claim
constitutes a statute of limitations." id. at 266-67. "If [a]
claimant fails to file within [the] 90-day period, the action is
barred." Id. at 267.
The Court finds that the following facts, relevant to defendant's
statute of limitations defense, are undisputed:
(1) On August 14, 2001, plaintiff dual-filed a Complaint of
Discrimination with the California Department of Fair Employment and
Housing ("DFEH") and the EEOC, alleging that defendant's failure to hire
plaintiff in July 2001 constituted discrimination on the basis of race
and was in retaliation for prior complaints of discrimination.
(See Def.s' Ex. 11, Pl.'s Ex. T.)
(2) On December 24, 2001, the DFEH issued to plaintiff a Notice of Case
Closure, stating therein that her case had been "closed" and that the
"case may be referred to the [EEOC] for further investigation."
(See Def.'s Ex. 13.) The DFEH further informed plaintiff
therein that the Notice of Case Closure was also a "Right-to-Sue Notice,"
and stated that she "may bring a civil action under the provisions of
[FEHA]. . . . within one year of the date of this letter." (See
(3) On January 11, 2002, the EEOC issued to plaintiff a Dismissal and
Notice of Rights, stating therein that it was "closing its file on this
charge." (See Def.'s Ex. 12; Pl.'s Ex. P.) The EEOC also
informed plaintiff therein that the Dismissal and Notice of Rights constituted "the only notice of . . . [her] right to sue" and stated:
You may file a lawsuit against the respondent(s)
under federal law based on this charge in federal
or state court. Your lawsuit must be
filed WITHIN 90 DAYS of your
receipt of this Notice; otherwise your right
to sue based on this charge will be lost. (The
time limit for filing suit based on a state claim
may be different.)
(See id. (emphasis in original).)
(4) Plaintiff received the EEOC's Dismissal and Notice of Rights on or
about January 11, 2002, and read it when she received it. (See
Def.'s Ex. 16 at 23:17-24:16.)
(5) On June 10, 2002, 150 days after January 11, 2002, plaintiff filed
her initial complaint in state court. (See Def.'s Ex. 14.)
Based on the above, it is undisputed that plaintiff did not file her
Title VII claims within the applicable 90-day statute of limitations.
Consequently, in the absence of grounds upon which to invoke the doctrine
of equitable tolling, plaintiff's Title VII claims are time-barred.
See Scholar, 963 F.2d at 266-67 (holding Title VII's 90-day
statute of limitations is subject to doctrine of equitable tolling).
A Title VII plaintiff has the burden of demonstrating entitlement to
equitable tolling. See id. at 268 (holding, where plaintiff did
not file Title VII claims within requisite 90-day period and "made no
showing to justify invocation of the doctrine of equitable tolling,"
defendant was entitled to summary judgment on Title VII claims). Here,
plaintiff argues that because she filed her FEHA claims within the
one-year statute of limitations applicable to FEHA claims, her Title VII
claims likewise should be considered timely. This argument is not
Equitable tolling of the Title VII's 90-day statute of limitations is
appropriate where, "for example, . . . the statute of limitations was not
complied with because of defective pleadings, when a claimant was tricked
by an adversary into letting a deadline expire, and when the EEOC's
notice of the statutory period was clearly inadequate." See id.
at 267-68. Equitable tolling is not available, however, "when a late
filing is due to [the] claimant's failure `to exercise due diligence in
preserving his legal rights." See id. at 268 (quoting
Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 458
(1990)). Plaintiffs argument does not implicate any recognized basis for equitable tolling, and
the EEOC's notice clearly set forth the applicable 90-day deadline and
specifically cautioned plaintiff that deadlines for any state claim may
be different. Plaintiff offers no explanation for her failure to file her
initial complaint within the 90-day period and thus preserve her Title
VII claims. In short, plaintiff offers no evidence to support a finding
that she is entitled to invoke the doctrine of equitable tolling.
Because defendant has established that plaintiff's Title VII claims
were filed after the applicable period of limitations had expired and
plaintiff has failed to raise a triable issue as to equitable tolling,
defendant is entitled to summary judgment on plaintiffs Title VII claims.
In making this finding, the Court has considered plaintiff's motion to
amend, by which motion plaintiff seeks leave to allege additional Title
VII claims based on failures to hire that allegedly occurred after the
incidents set forth in her SAC.*fn1 Nothing in plaintiff's motion to
amend explains how the additional Title VII claims, based on later
incidents, would be timely, and, for the reasons set forth above, they
would not be timely.*fn2 Accordingly, to the extent plaintiff seeks
leave to amend to add additional Title VII claims, plaintiff's motion to
amend will be denied on the ground any such amendment would be fufile.
See Sackett v. Beaman, 399 F.2d 884, 892 (1968) (holding
denial of leave to amend proper where proposed amendment would be fufile
on account of statute of limitations).
Lastly, the Court turns to the FEHA claims alleged in plaintiff's SAC.
The Court's jurisdiction over the instant action is based on the
existence of a federal question. (See Not. of Removal, filed
March 25, 2003, ¶ 7.) Consequently, the Court's jurisdiction over
plaintiff's FEHA claims is supplemental in nature. See
28 U.S.C. § 1367(a). Where, as here, a district court has granted the
defendant summary judgment on the plaintiffs federal claims, the district court, pursuant to § 1367(c)(3), may
properly decline to exercise supplemental jurisdiction over the remaining
state law claims. See Scholar, 963 F.2d at 268. Accordingly,
pursuant to § 1367(c)(3), the Court will exercise its discretion to
decline to exercise supplemental jurisdiction over plaintiff's FEHA
claims and, to the extent plaintiff seeks leave to file an amended
complaint to allege new FEHA claims, plaintiff's motion to amend will be
denied, without prejudice to plaintiff's refiling the motion in state
For the reasons stated above:
1. Defendant's motion for summary judgment is hereby GRANTED in part,
and summary judgment is GRANTED in favor of defendant on plaintiffs Title
2. Plaintiff's motion to amend is hereby DENIED.
3. Plaintiff's FEHA claims are hereby REMANDED to the Superior Court of
the State of California, in and for the County of San Francisco.
The Clerk shall close the file and terminate all pending motions.
IT IS SO ORDERED.