ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Jennifer Zamora ("Plaintiff") brought this action against Janet Napolitano, Secretary of the Department of Homeland Security ("DHS"), Gale Rossides, Assistant Secretary of the DHS, and the Acting Administrator of the Transportation Security Administration (collectively "Defendants") for violations of 42 U.S.C. § 2000e et seq. ("Title VII") and several state law claims. Defendants filed a Motion for Summary Judgment on June 24, 2009 (Docket #17). Defendants argue that they are entitled to relief because Plaintiff's Title VII claim is time barred or, alternatively, because the claim is barred by the doctrine of laches. Plaintiff opposed the Motion (Docket #18). A hearing on the Motion was held in this court on July 29, 2009.
For the following reasons, Defendants' Motion is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
In 2003, Plaintiff filed an administrative complaint with the Equal Employment Opportunity Commission ("EEOC") alleging sexual harassment and a hostile work environment by her supervisor at the Transportation Security Administration ("TSA"). Plaintiff withdrew the EEOC administrative complaint in May of 2006 and filed suit in federal court asserting Title VII claims in early 2007. See Zamora v. Dept. of Homeland Security, Case No. 2:07-cv-00023 ("Zamora I"). Zamora I was initially dismissed as untimely. However, the Court later reinstated the complaint because Plaintiff never received a right to sue letter from the EEOC informing her of the 90-day time bar on filing Title VII claims. In March 2009 the Court dismissed Zamora I without prejudice, holding that Plaintiff failed to assert a claim against the proper defendants.
Plaintiff filed the present action ("Zamora II") in Sacramento County Superior Court in April 2009. The complaint asserts the same claims as Zamora I, adds two new claims under California state law, and names a proper defendant, Janet Napolitano as Secretary of the DHS. Zamora II was removed to this Court on May 8, 2009.
Defendants now move for summary judgment, alleging that Plaintiff's Title VII claim under the Civil Rights Act of 1964 is time barred and, in the alternative, that the Title VII claim is barred under the doctrine of laches. Plaintiff opposes the motion.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The purpose of summary judgment "is to isolate and dispose of factually unsupported claims and defenses." Celotex v. Catrett, 477 U.S. 317, 323-324 (1986).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 248-49 (1986). If the moving party meets its burden, the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, 'specific facts showing that there is a genuine issue for trial.'" T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting Fed. R. Civ. P. 56(e) and citing Celotex, 477 U.S. at 323). The Court must view the facts and draw inferences in the manner most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
A. The Statute of Limitations
A government employee filing a Title VII action pursuant to 42 U.S.C. § 2000e-5 must file that action "[w]ithin 90 days of receipt of notice of final action" taken by the relevant agency or the EEOC, or after 180 days "from the filing of the initial charge" if the agency or the EEOC fails to take any action on the matter. 42 U.S.C. § 2000e-16(c).
Defendants argue that Plaintiff received sufficient notice of final action during the litigation of Zamora I, thus triggering the 90 day limitations period of section 2000e-16(c), and that Plaintiff failed to file a complaint in Zamora II until almost one year after receiving that notice. Docket # 17, 6:3-14; Docket # 23, 4:15-16. Defendants cite a footnote in the Ninth Circuit's opinion in Missirilian v. Huntington Memorial Hospital, 662 F.2d 546 (9th Cir. 1981), to argue that the Court's April 15, 2008 Order dismissing Zamora I constituted a "clear indication" of the commencement of the 90 day period. Footnote 6 of the Ninth Circuit's decision in Missirilian notes that a right to sue letter is not the only possible form of notice sufficient to commence the 90 day period. Missirilian, 662 F.2d at 550 n.6. Notice is sufficient where a Title VII plaintiff receives "a clear indication of when the ninety-day period commences." Id. at 550 (emphasis added).
Not only has Plaintiff still not received a right to sue letter from the EEOC, but this Court's April 15, 2008 Order was not a "clear indication" of the commencement of the 90 day period. Defendants do not point to any specific text within the April 15, 2008 Order that would provide such "clear indication." See Docket # 17, 5:2-6:18. The April 15, 2008 Order merely reinstated Zamora I, after it had been dismissed as untimely, because the Court discovered that the EEOC had failed to deliver a notice to sue letter to Plaintiff. Nowhere did the Order specifically or clearly advise Plaintiff that the 90 day period would commence immediately or that the Order would serve to replace a notice to sue letter. Contrary to Defendants' assertion that ...