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Miguel Ilaw v. Daughters of Charity Health Systems


September 18, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Plaintiff Miguel Ilaw, proceeding pro se, a former employee of Defendants Daughters of Charity Health Systems ("Daughters of Charity"), Caritas Business Services ("Caritas"), and 19 O'Connor Hospital, brings suit under Title VII of the U.S. Civil Rights Act of 1964, as amended 20 ("Title VII"), 42 U.S.C. § 2000e et seq. Although difficult to decipher the vague allegations in his 21 First Amended Complaint ("FAC"), Plaintiff does allege gender discrimination and retaliation. 22

Plaintiff has not yet served Caritas or O'Connor Hospital. Defendant Daughters of Charity has 23 moved to dismiss on the basis of failure to timely exhaust administrative remedies. Plaintiff failed 24 to oppose the motion. Pursuant to Civil Local Rule 7-1(b), the Court finds this motion appropriate 25 for determination without oral argument and vacates the September 22, 2011 motion hearing. For 26 the reasons discussed below, Defendant's motion to dismiss is GRANTED WITH LEAVE TO AMEND.

F.3d 916, 930 (9th Cir. 2008). Plaintiff was employed as an "insurance verifier" by Daughters of 5 Charity and Caritas from March 2007 to April 2010. FAC ¶ 6. In May 2010, Plaintiff was 6 transferred to work at O'Connor Hospital. Id. at ¶ 7. Plaintiff alleges that, throughout his 7 employment with Defendants, he was only the male in his department and that his hourly rate was 8 less than similarly situated female employees. Id. at ¶ 9. Plaintiff alleges that, in May 2010, his 9


For purposes of ruling on Defendant's motion to dismiss, the Court accepts as true Plaintiff's well-pled allegations in the complaint. Marceau v. Blackfeet Housing Authority, 540

Department Director, Ms. Mary Ellen Swigert, "discriminated against [him] by giving him 10 instructions that were different from [his] female co-workers." Id. at ¶ 10. Plaintiff further alleges that "the most unbearable incident happened on July 27, 2010, when Swigert and Sandra Corpus, supervisor, provided [him] instructions that required [him] to be in two places at one time and 13 criticized [him] for not following instructions. They berated [him] with open door." Id. at ¶ 11. In 14 addition, Plaintiff found "love in unexpected place: Facebook," as Plaintiff was "devastated" to 15 learn that Swigert and Corpus were apparently having a romantic relationship, but "never showed 16 compassion to [him] as a male co-worker." Id. at ¶¶ 19-20. Plaintiff shared this information with O'Connor Hospital's Director of Employment, Julie Hatcher, telling Ms. Hatcher about the "rumor 18 spreading around that they 'like girls,' so please investigate." Id. at ¶ 21. Plaintiff alleges that this 19 treatment caused him workplace stress and severe anxiety. Id. at ¶ 25.

October 20, 2010, Plaintiff requested a Notice of Right to Sue authorization with respect to his 23 2010. See Compl. at 18. 25

26 discrimination in violation of California Government Code § 12940. See Def.'s RJN, Exh. B.

Plaintiff did not raise his federal claims in the state court action. On May 31, 2011, at Plaintiff's 28 request, the state court complaint was dismissed without prejudice. See Def.'s RJN, Exh. C. On

On September 16, 2010, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). See Charge, attached to Compl. at 17. On 22 EEOC charge. See Def.'s RJN, Exh. A. Plaintiff's Right to Sue Notice was issued on October 22, 24 On November 5, 2010, Plaintiff filed suit in Santa Clara County Superior Court for gender June 7, 2011, Plaintiff filed his initial Complaint in this Court. See Dkt. #1. Following Defendant 2 Daughter of Charity's motion to dismiss, Plaintiff filed the FAC on July 12, 2011.*fn1 Pending before 3 the Court is Daughter of Charity's motion to dismiss the FAC. Plaintiff has not filed an opposition. 4

6 sufficiency of a complaint. To withstand a motion to dismiss, a plaintiff must "plead enough facts 7 to state a claim that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). 8


A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

All allegations of material fact shall be taken as true and interpreted in a manner most favorable to 9 the non-moving party. Simon v. Hartford Life and Accident Ins. Co., 546 F.3d 661, 664 (9th Cir. 10 be cured by amendment. Lucas v. Dep't of Corrections, 66 F.3d 245, 248 (9th Cir. 1995). If amendment would be futile, a dismissal may be ordered with prejudice. Dumas v. Kipp, 90 F.3d 13 On a motion to dismiss, the Court's review is limited to the face of the complaint and 15 matters judicially noticeable. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th 16 Cir. 1983). However, under the "incorporation by reference" doctrine, the Court may also consider 17 documents that are referenced extensively in the Complaint or that form the basis of Plaintiff's 18 claim and whose authenticity no party questions, without converting a motion to dismiss under (9th Cir. 2003). 21

2008). Leave to amend should be granted unless it is clear that the complaint's deficiencies cannot 386, 393 (9th Cir. 1996). 14

Rule 12(b)(6) into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 909 20


Defendant Daughters of Charity argues for dismissal of Plaintiff's FAC on the ground that Plaintiff did not timely exhaust his administrative remedies as required by Title VII. Because the 24 time to exhaust has passed, Defendant seeks dismissal with prejudice.

3 deemed to include "documents whose contents are alleged in a complaint and whose authenticity 4 no party questions, but which are not physically attached to the pleading." See Parrino v. FHP, 5 Inc., 146 F.3d 699, 706 (9th Cir. 1998). The Court may also take judicial notice of matters of 6 public record, including federal, state, and administrative proceedings. See Lee v. City of Los 7 Cir. 2006) (allowing for judicial notice in federal court of state court orders and proceedings). In 9 the instant action, the Court takes judicial notice of Plaintiff's Request for Notice of Right to Sue 10 authorization, state court complaint, and voluntary dismissal of state court complaint.

Title VII. See Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001). Timely exhaustion 14 occurs when the plaintiff files a charge with the EEOC within 180 days from the date upon which 15 the alleged unlawful practice occurred. See 42 U.S.C. § 2000e-5(e). If, however, a plaintiff has 16 initially instituted proceedings with a state or local agency with authority to grant relief from the 17 allegedly unlawful practice, a plaintiff has 300 days after the allegedly unlawful employment 18 practice, or 30 days after receiving notice that the state or local agency has terminated proceedings 19 under state or local law, whichever is earlier, to file a charge with the EEOC. Id. A plaintiff filing 20 a complaint under Title VII has ninety days to file the complaint in federal court after receipt of the 21 EEOC's right to sue letter. See 42 U.S.C. § 2000e-16(c) ("Within 90 days of receipt of notice of 22 final action taken by . . . the [EEOC] . . . if aggrieved by the final disposition of his complaint, or 23 by the failure to take final action on his complaint, [an employee] may file a civil action . . . ."). 24

Failure to timely exhaust is treated as a violation of a statute of limitations with whatever defenses 25 are available such as equitable tolling and estoppel. Santa Maria v. Pacific Bell, 202 F.3d 1170 26

("Because the limitations period under Title VII operates as a statute of limitations, a claim of 28 discrimination under the Act will not be sustained if it is based on an event or events that occurred

A.Judicial Notice of Request for EEOC Right to Sue and State Court Documents

For purposes of ruling on a motion to dismiss under Rule 12(b)(6), the pleadings are Angeles, 250 F.3d 668, 688 (9th Cir. 2001); see also Dawson v. Mahoney, 451 F.3d 550, 551 (9th 8

B.Failure to Exhaust

Timely exhaustion of administrative remedies is a statutory requirement to filing suit under (9th Cir. 2000); see also Draper v. Coeur Rochester, 147 F.3d 1104, 1107 (9th Cir. 1998)

However, there was no timely charge filed against Defendants Daughters of Charity and Caritas -- 5 at least, Plaintiff alleged no timely charge in his FAC. Moreover, even assuming Plaintiff's September 16, 2010 EEOC Charge against O'Connor Hospital is sufficient to pursue Plaintiff's 7 claims against Daughters of Charity and Caritas, Plaintiff's FAC is still clearly deficient for yet 8 another reason. Plaintiff did not file suit in federal court within 90 days of receipt of the EEOC's 9 more than 300 days before the filing of a charge.").

Here, there is no dispute that Plaintiff's September 16, 2010 EEOC Charge against Defendant O'Connor Hospital was within 300 days of the alleged incident of discrimination.

October 22, 2010 Right to Sue letter. In fact, Plaintiff did not file suit until June 7, 2011, some 230 10 days after the Right to Sue letter was issued. Accordingly, absent equitable tolling, Plaintiff's 11 federal claims are time-barred. See Draper, 147 F.3d at 1107 ("Like a statute of limitations, however, the limitations period contained in Title VII is 'subject to waiver, estoppel, and equitable 13 tolling.'") (internal citation omitted); see also Rucker v. Sacramento County Child Protective 14 2010) ("Unless equitable tolling applies, plaintiff's EEOC right-to-sue letter establishes that the 16 plaintiff's federal claims are time barred.").

Request, signed and dated by Plaintiff, includes a specific provision stating that the undersigned is "aware that [he] must file a private suit in Federal Court within ninety (90) days from the receipt 21 of [his] receipt of Notice of Right to Sue." (emphasis added). Thus, equitable tolling is highly 22 unlikely. See Scholar v. Pac. Bell, 963 F.2d 264, 267-68 (9th Cir. 1992) (claimant who fails to 23 exercise due diligence in preserving legal rights is not entitled to equitable tolling). Although it 24 appears unlikely that equitable tolling is appropriate in these circumstances, it is this Court's 25 practice to grant leave to amend to allow a plaintiff, especially a pro se plaintiff, at least one 26 opportunity to remedy deficiencies in the complaint. Accordingly, Plaintiff's FAC is dismissed 27 with leave to amend to identify a specific basis for equitable tolling.

Servs., No. 2:09-CV-01673-JAM-KJN, 2010 U.S. Dist. LEXIS 54079, at *16-17 (E.D. Cal. June 1, 15

Defendant argues that any argument for equitable tolling is undercut by Plaintiff's October 20, 2010 Request for Notice of Right to Sue authorization. As Defendant correctly notes, that


Accordingly, the Court GRANTS Defendant's motion to dismiss with leave to amend as 3 specified above. Plaintiff shall file an amended complaint, if any, within twenty-one (21) days of September 19, 2011. Plaintiff should note that failure to file and serve a timely amended complaint 5 risks dismissal of this action with prejudice. The motion hearing currently scheduled for September 22, 2011 is vacated. 7


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