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Anthony A. Amerson v. Kindredcare


February 20, 2013


The opinion of the court was delivered by: Joseph C. Spero United States Magistrate Judge


United States District Court Northern District of California


Plaintiff filed a civil rights complaint in this action on November 7, 2012. He asserts 15 claims for race discrimination under Title VII and sex discrimination and illegal retaliation under 16 Title IX. Defendants bring a Motion to Dismiss ("the Motion") seeking dismissal under Rule 17 12(b)(6) of all three claims on the grounds that the Title VII claim was not timely filed and the 18 Title IX claims do not apply to Defendant Kindredcare, Inc. ("Kindredcare") because it is not an 19 educational institution or program. The Court finds that the Motion is suitable for determination 20 without oral argument pursuant to Civil Local Rule 7-1(b) and therefore vacates the motion 21 hearing set for Friday, February 22, 2013. For the reasons stated below, the Motion is 22 GRANTED.*fn1



Plaintiff alleges that "Defendant is a contract provider of health rehabilitation services to 26 hospitals and health care organizations in California and elsewhere." Complaint ¶ 4. Plaintiff 27 further alleges that as a social worker employed by Defendant, Plaintiff‟s "duties included 2 providing case coordination and a full range of social work services to patients and their families, 3 including assessment, treatment planning and therapeutic interventions." Id. ¶¶ 9. 4

According to the Complaint, in March 2011, Plaintiff noticed an "abrupt change" in the way his 5 supervisor behaved toward him. Id. ¶ 10. He alleges that between March 2011 and February 27, 6 2012, when he was terminated, he was subjected to a hostile work environment based on his race 7 and sex. Id. ¶ 11. He further alleges that he was terminated based on his race and gender and in 8 retaliation for complaining about the discriminatory treatment to which he was subjected. Id., 9 ¶¶13-14. 10

Plaintiff alleges that after the termination of his employment by Defendant, he timely filed 11 a complaint of race discrimination, sex discrimination, and retaliation with the California 12 Department of Fair Employment and Housing ("DFEH"). Id. ¶ 6. On July 9, 2012, the DFEH issued Plaintiff a letter containing a finding of no discrimination and the complaint was forwarded 14 to the U.S. Equal Employment Opportunity Commission ("EEOC") for further review. Id. ¶ 7. 15

Plaintiff alleges that the EEOC issued a letter adopting the findings of the DFEH, which Plaintiff 16 received on August 7, 2012. Id. ¶ 8.


In its Motion, Kindredcare seeks dismissal of Plaintiff‟s claims on two grounds. First, it 19 asserts that the Title VII claim (Claim I) is untimely because it was filed 92 days after Plaintiff 20 received a right-to-sue letter from the EEOC whereas Title VII requires that a complaint be 21 initiated within 90 days. Motion at 3 (citing 42 U.S.C. § 2000e-5(f)(1); Nelmida v. Shelly 22 Eurocars, Inc., 112 F.3d 380, 383 (9th Cir. 1997)). According to Kindredcare, the 90-day rule is 23 strictly enforced, and failure to bring suit within that time is grounds for dismissal. Id. at 3-4 24 (citing Papillon v. San Francisco Unified Sch. Dist., 2012 U.S. Dist. LEXIS 147470 (N.D. Cal. 25 Oct. 12, 2012); Irwin v. Dep't of Veteran's Affairs, 498 U.S. 89, 96 (1982); O'Donnell v. Vencor 26 Inc., 466 F.3d 1104, 1110 (9th Cir. 2006); Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 27 143, 146 (2d Cir. 1984); Prophet v. Armco Steel, Inc., 575 F.2d 579 (5th Cir. 1978); Lucas v. Brown & Root, Inc., 736 F.2d 1202, 1203 (8th Cir. 1984)). Therefore, Kindredcare asserts that Claim I should be dismissed. 2

Kindredcare further contends that Claims II and III, which are asserted under Title IX of

3 the Education Amendment of 1972, should be dismissed for failure to state a claim. Id. at 5-6. 4

According to Kindredcare, Title IX prohibits discrimination on the basis of sex, as well as 5 retaliation, by "any education program or activity receiving Federal financial assistance . . . ." Id. 6 (citing 20 U.S.C. § 1681(a); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005)). 7 Because Plaintiff has not alleged that Kindredcare is an "education program or activity receiving 8 Federal financial assistance" but rather, that it is "a contract provider of health rehabilitation 9 services to hospitals and health care organizations in California and elsewhere," Kindredcare 10 contends that it is not a proper defendant as to Claims II and III, which should be dismissed. Id. at 11 6.

Finally, Kindredcare asserts that all of Plaintiff‟s claims should be dismissed without leave to amend because there is no way that the deficiencies identified in its Motion can be cured. Id. at 14 6. 15


In his opposition, Plaintiff does not dispute that the 90-day deadline for filing his 17 complaint expired on November 5, 2012, two days before the complaint was filed. Rather, he 18 contends that the doctrine of equitable tolling should be applied because his counsel was unaware 19 that he could not file the complaint using the Court‟s electronic filing system. Opposition at 3. In 20 his Opposition brief, Plaintiff offers the following explanation for the late filing: 21

Plaintiff‟s counsel attempted to electronically file the Complaint, and an application to appear before the Court pro hac vice on November 5, 2012. It was Plaintiff‟s counsel‟s first experience with electronic filing in this Court. Upon discovery of the apparent failure in the transmission, Plaintiff‟s counsel contacted the Office of the Clerk of the Court. Counsel was informed by the Office of the Clerk of the Court on November 6, 2012, that initial complaints must be filed with the Court by hand. Accordingly, counsel filed the Complaint by hand on November 7, 2012.

Opposition at 3-4.*fn2 Plaintiff asserts that he should not be denied his day in court because 27 Kindredcare was aware of his claims based on the administrative proceeding and was not 2 prejudiced by the two-day delay, and Plaintiff‟s conduct was reasonable and in good faith. Id. at 3

5-6. The cases cited by Defendant are distinguishable, Plaintiff asserts, because the delay in filing 4 was longer than two days in those cases. Id. at 6. 5

As to Claims II and II, Plaintiff does not dispute that he has failed to state a claim because Title IX does not apply to Kindredcare. Id. at 7. Rather, Plaintiff requests leave to amend his 7 complaint to assert his claims for sex discrimination and retaliation under Title VII. 8


In its Reply brief, Kindredcare rejects Plaintiffs assertion that the doctrine of equitable 10 tolling should be applied, pointing to cases holding that tolling is disfavored where a late filing is 11 due to a claimant‟s failure to exercise due diligence in protecting his legal rights. Reply at 4 12 (citing Scholar v. Pacific Bell, 963 F.3d 264, 268 (9th Cir. 1992)). Kindredcare further asserts that once "a claimant retains counsel, tolling ceases because she has gained the means of knowledge of 14 her rights and can be charged with constructive knowledge of the law‟s requirements." Id. 15

(quoting Leong v. Potter, 347 F.3d 1117, 1123 (9th Cir. 2003) (citing Leorna v. United States 16 Department of State, 105 F.3d 548, 551 (9th Cir. 1997)). Here, Kindredcare asserts, the 17 explanation offered by counsel -- that he did not realize that he could not use the electronic filing 18 system to file the complaint in this action -- is unavailing because Civil Local Rule 5-1(d)(1) 19 explicitly states that "Complaints.and other case initiating documents shall be filed and served 20 manually rather than electronically." Id. Further, Plaintiff‟s counsel filed a request to appear pro 21 hac vice not only in this action, on December 7, 2012, but also in a previous action before this 22

Court, Case No. C-08-5419 PJH. Id. at 5; see also Docket No. 19 (Defendant‟s request for 23 judicial notice of 1) the Application for Admission of Attorney Pro Hac Vice for Michael Martin 24 25 Fed. R. Civ. Proc. 43(c) ("When a motion relies on facts outside the record, the court may hear the matter on affidavits or may hear it wholly or partly on oral testimony or on depositions"); Civ. L. 27 R. 7-5(a) ("contentions made in support of or in opposition to any motion must be supported by an affidavit or declaration and by appropriate references to the record"). For the purposes of the 28 instant motion, the Court assumes that this deficiency could be cured and treats the statements in Plaintiff‟s Opposition brief as if they were sworn under penalty of perjury.

in Case No. C-08-5419 PJH; and 2) the order granting that application).*fn3 Kindredcare points out 2 that in support of both of these requests, Mr. Martin signed an affidavit agreeing to familiarize 3 himself with the Court‟s local rules. Id. Kindred also points out that John L. Burris is listed as co-4 counsel on Plaintiff‟s complaint and that Mr. Burris‟s firm is staffed with attorneys admitted to 5 this Court and familiar with its rules. Id. at 4-5. 6

Kindredcare also rejects Plaintiff‟s request that he be permitted to amend Claims II and III 7 to assert Title VII claims because those claims would be time-barred and therefore amendment is 8 futile. Id. at 5-6. 9


A.Whether The Doctrine of Equitable Tolling Applies to Claim I

Title VII allows a claimant to bring a civil action for discrimination within 90 days of receiving a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1). The Supreme Court has held that the 90-day limitation period is not jurisdictional and therefore may be subject to 14 equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). The doctrine of 15 equitable tolling "has been consistently applied to excuse a claimant‟s failure to comply with the 16 time limitations where she had neither actual nor constructive notice of the filing period." Leorna 17 v. U.S. Dept. of State, 105 F.3d 548, 551 (9th Cir. 1997). "However, once a claimant retains 18 counsel, tolling ceases because she has "gained the "means of knowledge" of her rights and can be 19 charged with constructive knowledge of the law's requirements.‟" Id. (quoting Stallcop v. Kaiser 20

Found. Hosps., 820 F.2d 1044, 1050 (9th Cir.)). Here, this rule clearly applies. 21

Plaintiff‟s counsel is charged with knowledge of the relevant law, including the Local Rules of this Court, which clearly state that complaints must be manually filed. Mr. Martin was 23 evidently aware that November 5, 2012, a Wednesday, was the last day to file Plaintiff‟s 24 complaint. Yet he offers no explanation for failing to consult with co-counsel, John Burris, when 25 his attempt to e-file the complaint failed; nor does he explain why he did not come to the Court 26 that day, after his e-filing attempt failed, to manually file the complaint. Indeed, the only action he 27 apparently took was to leave a telephone message for the Clerk of the Court. The next day, rather 2 than reviewing the local rules or consulting with his co-counsel, Mr. Martin apparently did 3 nothing, waiting for a return call from the Clerk. Even after the Clerk called Mr. Martin, on 4 November 6, 2012, and informed him of the local rule prohibiting the e-filing of complaints, it 5 was not until the next day that Mr. Martin finally filed the complaint. Counsel‟s delay shows a 6 lack of due diligence; under such circumstances the doctrine of equitable tolling is not applicable. 7

Accordingly, the Court dismisses Plaintiff‟s Title VII claim on the basis that it is untimely. 8

B.Whether Plaintiff Should Be Permitted to Amend Claims II and III

""Leave to amend need not be given‟ under Rule 15 if it would be futile to do so, such as "if a complaint, as amended, is subject to dismissal.‟" Department of Fair Employment and Housing v. Law School Admission Council, Inc., 2013 WL 485830, at *7 (N.D. Cal., Feb. 6, 12 2013) (quoting Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir.1989)). Because the deadline for asserting a Title VII claim has expired and there is no basis for finding that Plaintiff‟s claims are equitably tolled, the Court finds that amendment would be futile and 15 therefore denies Plaintiff‟s request to amend Claims II and III of his complaint. 16


For the reasons stated above, the Motion is GRANTED. Plaintiff‟s complaint is dismissed, 18 in its entirety, with prejudice. 19 20

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