The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS [DOC. 10]
Pending before the Court is Defendant Ray Mabus' ("Navy") motion to dismiss the first and second causes of action from the First Amended Complaint For Employment Discrimination ("FAC"). Plaintiff Michele Sterrett opposes.
The Court decides the matter on the papers submitted and without oral argument. See Civ. L. R. 7.1(d.1). For the reasons discussed below, the Court GRANTS IN PART and DENIES IN PART the Navy's motion to dismiss [Doc. 10].
The following facts are taken from the FAC.
From May 2002 to June 2008, Sterrett was employed by the Department of the Navy as a Management Analyst, with the title of Division Head, at the Southwest Regional Maintenance Center ("SWRMC"). (FAC [Doc. 9], ¶¶ 1, 3.) Under the General Schedule ("GS"), Sterrett's position was designated as a GS-12 non-supervisor. (Id. at ¶ 3.) However, Sterrett asserts that between 2002 and 2008 she was assigned and performed supervisory responsibilities and duties. (Id.)
Sterrett alleges that in May 2002, she updated her Position Description to reflect her actual, and admitted, assigned duties and responsibilities. (FAC, ¶ 4.) At some point thereafter, a Classifier opined that based on Sterrett's updated Position Description, her position should be a supervisor position at the GS-13 level. (Id.) However, SWRMC "failed and refused to upgrade [Sterrett's'] position, and non-competitively promote her." (Id., ¶ 6.) Sterrett further alleges that during this period, similarly situated male Division Heads were designated as supervisory positions at the GS-13 level. (Id. at ¶ 5.)
In 2008, SWRMC converted its civilian employment system from the GS to National Security Personnel System ("NSPS"). (FAC, ¶ 18.) Under the NSPS, Sterrett alleges that an employee with her status as a Division Head and supervisor responsibilities should be designated as a supervisor. (Id., ¶ 19.) At least one similarly situated male Division Head was designated as a supervisor when the SWRMC switched to the NSPS, but Sterrett was not. (Id., ¶ 22.) Approximately five months later on June 22, 2008, Sterrett's position was upgraded to the YC supervisory status. (Id., ¶ 20.)
On October 22, 2008, Sterrett filed an employment discrimination complaint ("EEO Complaint") alleging James Achenbach, the Executive Director at the SWRMC and Sterrett's supervisor, discriminated against her because she is a woman. (FAC, ¶¶ 9, 28.) On November 25, 2008, EEO Counselors interviewed Achenbach. (Id., ¶ 28.)
On January 15, 2009, Achenbach sent an email to the Command Inspector General requesting an investigation of Sterrett and stating that Sterrett "has a formal EEO complaint against the Command." (FAC, ¶ 29.) On March 5, 2009, Sterrett was placed on involuntary administrative leave. (Id., ¶ 30.) On or about May 28, 2009, Sterrett's permanent promotion to Supervisory Management Analyst was changed to a probationary promotion; five days later, Achenbach demoted Sterrett. (Id., ¶ 31.) Sterrett appealed the demotion to the Merit Systems Protection Board. (Id., ¶ 32.) However, on August 11, 2009, Achenbach reinstated Sterrett as a Supervisory Management Analyst. (Id.)
On August 22, 2011, Sterrett filed this Title VII action alleging the Navy violated 42 U.S.C. § 2000e-16(c) by (1) refusing to promote her during the May 2002 to June 2008 period; (2) refusing to designate her as a supervisor under the NSPS on March 2, 2008; and (3) causing her to be removed from the workplace in retaliation to her EEO Complaint. In response, the Navy filed a motion to dismiss or, in the alternative, for partial summary judgment as to the first and second causes of action. The motion argued that the claims were untimely because Sterrett failed to satisfy the procedural requirement of initiating contact with an EEO Counselor within forty-five days of the alleged discriminatory conduct. Sterrett's opposition did not deny that the claims were not filed within the forty-five day period; instead Sterrett argued that the Navy waived the untimeliness defense as to the first cause of action, and that equitable tolling applied to the second.
On April 27, 2012, this Court found that under the facts pled in the complaint, waiver and equitable tolling did not apply and,therefore, dismissed the first and second causes of action with leave to amend. (See Order [Doc. 8], 9:3--6, 10:1--7.) Thereafter, Sterrett filed the FAC. The Navy again seeks to dismiss the first and second causes of action as untimely.
II. MOTION TO DISMISS STANDARD
The Court must dismiss a cause of action for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either for lack of a cognizable legal theory or for insufficient facts under a cognizable theory. Balisteri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the motion, a court must "accept all material allegations of ...