The opinion of the court was delivered by: RONALD WHYTE, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS TO
Myra C. Crenshaw ("Crenshaw") has filed two suits against Sun
Microsystems ("Sun"). Crenshaw sued Sun in Santa Clara Superior
Court in March 2005 for (1) wrongful termination of employment,
(2) employment discrimination, (3) age discrimination, (4) race
and gender discrimination, (5) disability discrimination, and (6)
retaliatory discharge. Sun removed the case to this court on June
13, 2005 ("first action").*fn1
Crenshaw also sued Sun in the
San Francisco Division of the Northern District of California in
March 2005 ("second action").*fn2
Sun filed a motion to
dismiss the first action. On August 17, 2005 this court granted
Sun's motion with prejudice on all Crenshaw's claims except her
race, sex, and disability discrimination claims. The court
granted Sun's motion on Crenshaw's employment discrimination
claims without prejudice, giving her twenty days leave to amend.
Crenshaw filed a First Amended Complaint ("FAC"). Sun then became
aware of the second action and moved to relate it and the first
action. Magistrate Judge Chen granted Sun's motion on November 2,
2005. Sun now moves to dismiss both actions. Crenshaw opposes the
motions. For the reasons set for below the court grants in part
and denies in part Sun's motions.
In the first action, Crenshaw alleges that she accepted a
Technical Support Engineering position at Sun in 1992. FAC at 2.
She claims that "[a]lthough [the] title, grade, and salary" of
this job were commensurate with a "Technical Support Engineer 2 . . .
the position was quite different and was really a technician
position using humans as forklifts." Id. She contends that Sun
"underdeveloped" her "advanced engineering career" because of
"race, gender, and reverse age (or young age 25) discrimination."
Id. at 3. According to Crenshaw, she became disabled around
1993, and Sun failed to accommodate her. Id. at 4. She also
claims that Sun denied her the "actual, title, grade, and salary
of a much more advanced position [and] den[ied] her a promotion
to Staff Engineer 3, grade 7, even though [she] was moved to the
position and had actual `engineering' duties in 1994." Id. at
4. She alleges that Sun "wrongfully denied instructor or open
positions and placed [her] in [a] return to work program that
violates the Americans with Disabilit[ies] Act." Id. In
addition, she claims that Sun retaliated against her for
requesting interest on her disability benefits. Id. at
6.*fn3 Finally, Crenshaw alleges that Sun wrongfully
terminated her employment. Id. at 2. She alleges that she filed
charges with the Equal Employment Opportunity Commission ("EEOC")
and the California Department of Fair Housing and Employment
("DFEH") on February 28, 1997. Id. at 7. She contends that she
did not receive a right to sue letter from the EEOC until
December 18, 2004.
In the second action, Crenshaw alleges that Sun placed her in
its return to work program. Compl. ¶ 6.*fn4 According to
Crenshaw, the program gives employees who are returning from
medical leave four weeks to find a new position. Id. at ¶ 7. Crenshaw also
contends that Sun's "Long Term Disability program cuts off
benefits for mental injur[ies] after 24 months unless [the]
employee is confined to a mental hospital." Id. She asserts
that Sun (1) "tried to redefine [her] severe physical injury into
a mental injury," (2) hired less-qualified candidates for open
positions, and (3) fired her. Id.
Dismissal under Federal Rule of Civil Procedure Rule 12(b)(6)
is proper only when a complaint exhibits either a "lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory." Balistreri v. Pacifica
Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). The court must
accept the facts alleged in the complaint as true. Id. "A
complaint should not be dismissed `unless it appears beyond doubt
that the Crenshaw can prove no set of facts in support of his
claim which would entitle him to relief.'" Gilligan v. Jamco
Dev.Corp., 108 F.3d 246, 248 (9th Cir. 1997) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). Moreover, "[c]ourts have a
duty to construe pro se pleadings liberally, including pro se
motions as well as complaints." Bernhardt v. Los Angeles
County, 339 F.3d 920, 925 (9th Cir. 2003).
B. Crenshaw's Discrimination Claims
Sun moves to dismiss Crenshaw's age, race, gender, and
disability discrimination claims on the narrow grounds that she
failed to exhaust her administrative remedies. As noted in the
August 17 Order, a plaintiff must file an administrative charge
with the EEOC within 180 days of the allegedly unlawful
employment practice. However, the plaintiff has 300 days to file
a complaint with the EEOC if she initially files charges with a
state agency that enforces its own anti-discrimination laws.
See 42 U.S.C. § 2000e-5(e)(1). This 300-day deadline is subject
to an important caveat: the EEOC cannot deem a complaint "filed"
until either (1) 60 days have passed or (2) the state agency
"terminate[s]" its proceedings. See 42 U.S.C. § 2000e-5(c).
This 60-day window of exclusive state jurisdiction "give[s]
States and localities an opportunity to combat discrimination
free from premature federal intervention." EEOC v. Commercial
Office Prods. Co., 486 U.S. 107, 110 (1988). Crenshaw filed an EEOC complaint on February 28, 1997. In it,
she asserted that Sun's last act of discrimination occurred on
May 10, 1996. May 10 is 294 days after February 28. This court's
August 17 Order dismissed Crenshaw's discrimination claims
because she neither (1) alleged that she initially filed a
complaint with a state agency nor (2) checked a box on her EEOC
complaint that would have filed charges simultaneously with the
DFEH. However, Crenshaw now alleges that she received a DFEH
right to sue letter dated March 5, 1997. FAC at 7. She attaches
this letter to the FAC. See FAC Ex. A.*fn5 The letter
explains that the EEOC forwarded Crenshaw's allegations to the
DFEH. See id. It also states that the EEOC is "responsible for
the processing of this complaint" because "[t]he DFEH is closing
its case on the basis of `processing waived to another agency.'"
Crenshaw argues that her EEOC claim is timely because the EEOC
and the DFEH entered into a Work Share Agreement whereby "the
[DFEH] agreed to waive its exclusive jurisdiction . . . [and]
allow[ed] the EEOC to proceed immediately" with her charge. Opp.
Mot. Dism. at 7:10-17. Work Share Agreements are arrangements
between the EEOC and state or local agencies that facilitate the
investigation of discrimination claims. Other cases have
acknowledged the existence of such an agreement between the EEOC
and the DFEH. See, e.g., Downs v. Dept. of Water and Power,
58 Cal. App. 4th 1093, 1097 (1997) ("The EEOC and the DFEH each
designated the other as its agent for receiving charges and
agreed to forward to the other agency copies of all charges
potentially covered by the other agency's statute. The EEOC and
the DFEH also agreed each agency would have the initial
responsibility for processing certain claims."). Crenshaw's
allegation is also consistent with the DFEH right-to-sue letter's
statement that "[t]he DFEH is closing its case on the basis of
`processing waived to another agency.'" FAC Ex. A.
Work Share Agreements are "self-executing," which means that
filing a complaint with the EEOC automatically and simultaneously
files the same complaint with the DFEH, regardless of when the
EEOC actually forwards its paperwork to the DFEH. See Green v.
L.A. County Superintendent of Schools, 883 F.2d 1472, 1480 (9th
Cir. 1989). In addition, if the DFEH has waived its 60 days of
exclusive jurisdiction, the EEOC can deem complaints filed when
received. See 29 C.F.R. § 1601.13(a)(4)(ii)(A) ("Where the
[charge] on its face constitutes a charge within a category of
charges over which the . . . [state] agency has waived its rights to the period of exclusive
processing . . . [it] is deemed to be filed with the [EEOC] upon
receipt. Such filing is timely if the charge is received within
300 days of the alleged violation."). Accordingly, if the DFEH
waived its exclusive jurisdiction, the EEOC considered Crenshaw's
complaint filed when received on February 28, 1997. Because
February 28, 1997 is less than 300 days after May 10, 1996, there
is a factual issue as to whether Crenshaw's EEOC complaint was
The fact that Crenshaw initially filed claims with the EEOC and
not the DFEH does not change this result. For example, Tewksbury
v. Ottaway Newspapers, 192 F.3d 322
(2d Cir. 1999), the
plaintiff claimed that his employer wrongfully fired him on
January 5, 1996. On August 28, 1996, 216 days later, the
plaintiff filed an EEOC complaint. He did not file charges with
the New York State Division of Human Rights ("NYSDHR"), the state
agency empowered to remedy unlawful discrimination. Under the
Work-Sharing Agreement, the EEOC transmitted the plaintiff's
charges to the NYSDHR. The Second Circuit noted that the
plaintiff's federal claims were "based upon incidents charged
more than 180 days after their alleged occurrence" and thus were
"barred unless he `initially' filed his corresponding charge with
the NYSDHR. Id. at 325. Nevertheless, the court held that the
plaintiff had filed the charges "initially" with the NYSDHR even
though (1) he had only filed an EEOC complaint and (2) it was the
EEOC, and not the plaintiff himself, who had filed the charges
with the NYSDHR:
[H]owever paradoxical it may seem, Tewksbury's charge
must be deemed to have been filed `initially' with
the NYSDHR. . . . The NYSDHR proceedings formally
began upon the EEOC's receipt of Tewksbury's charges
because, pursuant to the Work-Sharing Agreement, it
was designated as the NYSDHR's agent for purposes of
receiving claimants' charges. Thus, the NYSDHR
proceeding on Tewksbury's ADA charge formally began
and ended upon the EEOC's receipt of the charge but
before Tewksbury's charge could be deemed as filed
with the EEOC. The charge was, accordingly,
`initially' filed with the NYSDHR, not the EEOC.
Id. at 327 (internal citations omitted). Thus, as in
Tewksbury, Crenshaw filed her complaint "initially" with the
DFEH even though she sent it only to the EEOC. The court thus
denies Sun's motion to dismiss Crenshaw's discrimination claims
on exhaustion of administrative remedies grounds.
At the same time, however, the court dismisses Crenshaw's race,
sex, age, and retaliation claims. "The jurisdictional scope of
the plaintiff's court action depends on the scope of the EEOC
charge and investigation." Leong v. Potter, 347 F.3d 1117, 1122
(9th Cir. 2003). However, the court has jurisdiction over charges
of discrimination that either (1) are "like or reasonably related
to" or (2) could reasonably be expected to grow out of the EEOC charge. See Sosa
v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990). Similarly, a
plaintiff can amend an EEOC complaint to add charges that "relate
back to the date the charge was first received" where the new
claims "related to or gr[ew] out of the subject matter of the
original charge." 29 C.F.R. 1628.8(c). However, a plaintiff
cannot belatedly claim that the same discriminatory conduct
stemmed from additional impermissible motives. Compare Leong,
347 F.3d at 1122 ("[a] decision that an EEOC complaint with no
mention whatsoever of disability is `like or reasonably related
to' Leong's disability claim would reduce the exhaustion
requirement to a formality").
That is precisely what Crenshaw attempts to do here with
respect to her race, sex, age, and retaliation claims. Her EEOC
charge asserts only that Sun discriminated against her on the
basis of her disability:
Respondent is aware of my disability.
In January 1996, I applied for a Customer Training
Instructor position at Sun Education Services.
In April, 1996, [Sun] informed me that I had not
received the position. . . .
During April and May, 1996, I again applied for
various positions. . . .
On May 10, 1996, [Sun] informed me that I had not
been hired for any of the above positions and that I
was being terminated.
I believe I have been discriminated against because
of my disability.
FAC. Ex. C. She did not check boxes indicating that she was
alleging race, sex, age, or retaliation claims. See id. She
then amended her EEOC charge on March 20, 2000 to include "race
and sex discrimination and denial of Long Term Disability
Benefits and denial of positions applied for from January of 1996
to May 10, 1996." Solomon Decl. Ex E. In addition, as one of the
causes of discrimination, she checked the box ...