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Michael Driskell v. Macy's Department Store Downtown Sacramento

April 29, 2011

MICHAEL DRISKELL, PLAINTIFF,
v.
MACY'S DEPARTMENT STORE DOWNTOWN SACRAMENTO,
DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge

ORDER;

FINDINGS & RECOMMENDATIONS

I. Introduction

Plaintiff is proceeding pro se in this action, which was referred to the undersigned pursuant to Local Rule 302(c)(21). Presently pending is defendant's motion to dismiss this action for failure to exhaust administrative remedies, as barred by the statute of limitations, barred by res judicata and collateral estoppel and as plaintiff previously agreed to arbitrate any claims. Plaintiff filed a brief opposition and defendant filed a reply.

II. Judicial Notice

Defendant requests judicial notice (see Docket #16) of, inter alia, the Superior

Court complaint against this same defendant pertinent to the events of which plaintiff complains in federal court, the Superior Court order regarding arbitration of the state claims, the arbitrator's decision and the FEHA administrative complaint pertinent to plaintiff's claims herein. These documents are referenced in the factual discussion and in the analysis below. All of these judicial and quasi-judicial documents are susceptible of judicial notice and the undersigned grants defendant's request in this regard. See Smith v. Duncan, 297 F.3d 809, 815 (9th Cir. 2002) abrogated on other grounds, see Moreno v. Harris, 245 Fed. Appx.. 606 (9th Cir. 2007).

III. Background

The instant complaint, filed on July 30, 2010, alleges that plaintiff's termination from his sales position at Macy's Department Store was discriminatory based on his race, age and gender. Plaintiff was initially hired by Macy's on October 24, 2004, as a temporary employee and was later offered a full time position. In September 2005, plaintiff was working in the furniture department. It appears that plaintiff's employment was terminated in October 2005, though in plaintiff's complaint he states he was working for Macy's in May 2006 and was terminated at some point after that following a series of events. Unfortunately, plaintiff does not provide a clear time line in his pleadings. As the events described by plaintiff and defendant are similar, defendant's records and motion indicate plaintiff was terminated in October 2005. As plaintiff has not stated otherwise in his opposition, the court will assume that plaintiff is simply mistaken in his dates. The other filings discussed below also demonstrate that plaintiff is mistaken about his dates.*fn1 As will be discussed below, even assuming plaintiff was rehired and then fired sometime in 2006, the case must still be dismissed.

Plaintiff filed a complaint with the California Department of Fair Employment and Housing (DFEH) on January 19, 2006. Doc. 16, Exh. 6. Plaintiff alleged that he was denied equal pay, retaliated against and terminated due to frivolous complaints filed against him and because of his age, ancestry and color. Id. On January 23, 2006, plaintiff received a right to sue notice from DFEH. Doc. 16, Exh. 7. The notice informed plaintiff that if a federal notice of right to sue is wanted he must file a complaint with the EEOC within 30 days of receiving the DFEH notice or within 300 days of the alleged discriminatory act. There is no indication plaintiff ever formally filed a complaint with the EEOC.

On September 15, 2006, plaintiff filed a complaint in Sacramento County Superior Court. Doc. 16, Exh. 3. The suit was against Macy's Department Store and while it is difficult to discern distinct causes of action, it includes allegations that plaintiff's rights were violated due to falsification of facts and false complaints of sexual harassment that led to his termination. Id. In March 27, 2007, defendant's motion to compel arbitration was granted and the parties were ordered to arbitration pursuant to the employment agreement. Doc. 16, Exh. 4.

An arbitration decision was issued on July 7, 2008, finding for defendant and also that plaintiff owed defendant $840 for failing to comply with discovery, which plaintiff agreed to pay. Doc. 16, Exh. 5. The decision specifically found that there was no merit to plaintiff's claims including claims of age and race discrimination and the decision cited to federal law. Doc. 16, Exh. 5 at 4-5.

Plaintiff filed the instant action in federal court on July 30, 2010.

IV. Standards on a Motion to Dismiss

In order to survive dismissal for failure to state a claim ...


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