The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Presently before this court is a motion by defendant County of Sacramento, sued herein as Sacramento County Child Protective Services and Sacramento County Health and Human Services ("County" or "defendant"), to dismiss this action for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff is proceeding without counsel. The court held proceedings on this motion before Magistrate Judge Gregory G. Hollows on his law and motion calendar of December 17, 2009.*fn1 The court considered the merits of defendant's motion and whether an evidentiary hearing was necessary on the issue of equitable tolling of the statute of limitations. (Dkt. No. 13.) Following that hearing, Judge Hollows ordered the plaintiff to submit "any additional correspondence he has between himself and either the California Department of Fair Employment and Housing or the Equal Employment Opportunity Commission." (Id.) In response, plaintiff submitted a lengthy declaration and points and authorities on December 24, 2009. (Dkt. No. 14.) The undersigned has considered the parties' briefs, arguments, and the record in this case and, for the reasons stated below, recommends that the County's motion to dismiss be granted.
Plaintiff seeks relief for alleged employment discrimination against his former employer, the defendant County of Sacramento's Child Protective Services division ("CPS"). This action is proceeding on a complaint filed June 17, 2009. Plaintiff generally alleges disability discrimination, violations of the Americans with Disabilities Act ("ADA"), and tortious discharge in violation of state law.
Plaintiff alleges that he suffers from organic brain syndrome. He was a probationary employee with CPS from June 7, 2005, until June 15, 2006. The complaint alleges that plaintiff previously had arrangements for informal accommodations due to his disability, but that a new supervisor, Mary Ingram, refused to accommodate him beginning in January 2006. The accommodations to which he refers include a laptop computer, a part-time schedule, or reassignment to a different position. (Dkt. No. 1 at 3-4.) Furthermore, he claims that Ingram's behavior toward plaintiff was unfair, exacerbated his condition, causing stress, depression and physical symptoms. As a result, plaintiff claims he took a medical leave of absence around April 7, 2006, and he was terminated around June 16, 2006. (Id. at 2.)
Plaintiff filed a California Department of Fair Employment and Housing ("DFEH") and Equal Employment Opportunity Commission ("EEOC") complaint of discrimination on April 27, 2006. (Dkt. No. 14, Ex. 2.) The April 27, 2006 complaint described plaintiff's employment with defendant and alleged that plaintiff was denied an accommodation for his disability and refused a transfer. Plaintiff next filed a second complaint of discrimination with DFEH on July 19, 2006, which he styled as an amended complaint. (Dkt. No. 9, Ex. 1). On this amended complaint, the box at the bottom of the form which states "I also want this charge filed with the Federal Equal Opportunity Commission (EEOC)" was not checked, in contrast to the first version of his discrimination complaint. (Compare Dkt. No. 14, Ex. 2 with Dkt. No. 9, Ex. 1.) In this July 19, 2006 amended complaint, plaintiff alleged denial of a reasonable accommodation, failure to reassign and termination of employment. (Id.)
On March 2, 2007, DFEH sent plaintiff its decision which stated: "As discussed in detail with you numerous times, the investigation did not reveal sufficient evidence or information to establish that a violation of the FEHA occurred." (Dkt. No. 14, Ex. 1.) DFEH's letter stated that plaintiff would have fourteen days from the date of that letter to provide any new relevant information that plaintiff wanted DFEH to consider. (Id.) It also notified plaintiff that he could request, within fifteen days, that the EEOC perform a substantial weight review of DFEH's findings. (Id.)
On March 12, 2007, plaintiff sent a 24-page document to the EEOC explaining his position and alleged failings of DFEH's decision. (Dkt. No. 14 at 2.) On March 29, 2007, plaintiff sent a letter to DFEH explaining that he left out additional allegations from his initial complaint, namely wrongful termination, retaliation and disparate treatment. (Dkt. No. 14 at 34.) In that document, plaintiff failed to mention his amended or second filed complaint of July 19, 2006, wherein he raises these additional issues, most notably his termination.*fn2
Significantly, on May 25, 2007, the EEOC sent plaintiff a right-to-sue letter, informing plaintiff that it adopted the findings of DFEH, which denied his claim, and that plaintiff may file a lawsuit in federal or state court. (Dkt. No. 9, Ex. 3.) It further explicitly instructed plaintiff that his lawsuit "must be filed WITHIN 90 DAYS of your receipt of this Notice or your right to sue will be lost" (Id. emphasis in original) The EEOC also notified plaintiff that this notice would be the only notice of dismissal and of plaintiff's right-to-sue that it would send. (Id.)
On May 28, 2008, a full year after receiving the EEOC's right-to-sue letter, plaintiff filed a third complaint with the DFEH regarding his former employment with defendant. (Dkt. No. 9, Ex. 2). Again, the box was unchecked at the bottom of the complaint which, if checked, would have led to the dual filing of his complaint with the EEOC. (Id.) Plaintiff, however, alleges in opposition to the motion to dismiss, that the "DFEH assured plaintiff they would forward his May 28, 2008 amended complaint to the other agency (EEOC), pursuant to the work sharing agreement between the two governmental agencies." (Dkt. No. 8 at 8.) The factual allegations contained in this May 2008 complaint are limited to a failure to accommodate plaintiff's disability and do not reference any termination or failure to reassign. (Dkt. No. 9, Ex. 2.)
On June 18, 2008, DFEH sent plaintiff a right-to-sue notice. (Id., Ex. 5.) That notice stated that plaintiff had the right to sue under the California Government Code and that he had one year from the date of that letter to bring a civil action. (Id.) It is unclear from the record whether this notice related to the first, second or third discrimination complaint filed with DFEH.*fn3 Plaintiff also filed a complaint with the County of Sacramento Civil Service Commission which was set for argument on December 19, 2008. (Dkt. No. 14 at 49.)
Plaintiff filed a civil complaint requesting monetary damages in this federal court on June 17, 2009. (Dkt. No. 1.) The court held oral argument on the instant motion to dismiss on December 17, 2009. Following oral argument, the court issued an order which provided plaintiff with additional time in which to file any additional correspondence between himself and either DFEH or the EEOC. (Dkt. No. 13.) In response, plaintiff filed a declaration, points and authorities and supporting exhibits. (Dkt. No. 14.) This action was reassigned to the undersigned by Order of Reassignment dated February 9, 2010. (Dkt. No. 16.) ...