The opinion of the court was delivered by: Joseph C. Spero United States Magistrate Judge
ORDER GRANTING MOTION TO DISMISS AND DISMISSING COMPLAINT WITH PREJUDICE [DOCKET NO. 5]
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 ...