The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
) ORDER DISMISSING ) DISCRIMINATORY IMPACT CLAIM ) AND DENYING MOTION FOR ) PARTIAL JUDGMENT ON THE ) PLEADINGS
Defendant moves under Federal Rule of Civil Procedure ("Rule") 12(c) for partial judgment on Plaintiff's discriminatory impact claim, which is alleged under Title VII of the Civil Rights Act of 1974, 42 U.S.C. § 2000e et seq., and Plaintiff's state contract claims. Defendant argues its motion should be granted because Plaintiff has not administratively exhausted her disparate impact claim and state courts have exclusive jurisdiction over her contract claims under California law.
I. LEGAL STANDARD AND REQUEST FOR JUDICIAL NOTICE
"[A] motion for a judgment on the pleadings is a motion for a judgment on the merits. Since [D]efendant alleges only jurisdictional grounds for dismissal, the proper course is to consider the motion as one to dismiss for lack of subject matter jurisdiction." Collins v. Bolton, 287 F. Supp. 393, 396 (N.D. Ill. 1968) (citation omitted). Thus, Defendant's "motion [is to be treated] as if it had been brought under Rule 12(b)(1)." San Luis Unit Food Producers v. United States, 772 F. Supp. 2d 1210, 1218 (E.D. Cal. 2011) (alteration in original) (internal quotation marks omitted) (quoting 5C Charles Allen Wright & Arthur R. Miller, Federal Practice and Procedure § 1367 (3d ed. 2004)). Rule 12(b)(1) challenges to a court's subject matter jurisdiction "can be either facial or factual." White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Facial challenges attack the pleadings as insufficient to invoke federal jurisdiction; factual challenges contest the truth of the jurisdictional pleadings. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack on jurisdiction, a court "may look beyond the complaint" to evaluate jurisdictional facts that are not intertwined with the merits of the action without converting the motion into a motion for summary judgment. White, 227 F.3d at 1242; Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987) (collecting cases).
Defendant's motion includes its request that the Court take judicial notice of the following two documents, which Defendant argues support its argument that Plaintiff's discriminatory impact claim should be dismissed: Plaintiff's EEOC "Charge of Discrimination" ("EEOC Charge"), and Plaintiff's supplement to her EEOC Charge ("Supplement"). Plaintiff opposes this request arguing: "The documents are hearsay for which no foundation for any exception to the hearsay rule has been shown." (Opp'n Req. Judicial Notice 1:21--25, ECF No. 20.)
Defendant counters the statements contained in the EEOC Charge and Supplement are not hearsay since they are not being offered for their truth, but for the limited purpose of showing that Plaintiff failed to exhaust her administrative remedies. (Reply 6:10--13, ECF No. 22.)
Plaintiff's hearsay objection is overruled in light of the response to the objection, and therefore, Defendant's request for judicial notice for the limited purpose for which the documents are offered is granted. Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012) ("[A court] may take judicial notice of records and reports of administrative bodies." (internal quotation marks omitted)); Gallo v. Bd. of Regents of Univ. of Cal., 916 F. Supp. 1005, 1007 (S.D. Cal. 1995) ("[T]he Court may consider both the EEOC right to sue letter and the EEOC charge, either as referenced in the complaint or as public records subject to judicial notice.").
The following factual background is drawn from allegations in Plaintiff's complaint and the judicially noticed documents. Defendant, "a California Corporation that owns and operates a university," employed Plaintiff as a tenure-track Assistant Professor in its Department of Chemistry until she was discharged. (Compl. ¶¶ 6--7, ECF No. 1.) Plaintiff's "gender is female." (Id. at ¶ 11.) During the 2006--2007 academic year, Plaintiff "sought promotion and appointment with tenure in the Department of Chemistry." (Id. at ¶ 12.)
"In a letter dated April 15, 2007, Donald De Rosa, President of [Defendant], denied tenure and promotion to [Plaintiff]." (Id. at ¶ 16.) "On August 31, 2008, [Defendant] terminated [Plaintiff]'s employment." (Id. at ¶¶ 16--17.)
Following her termination, Plaintiff "filed a charge of sex discrimination against [Defendant] with the United States Equal Employment Opportunity Commission (EEOC)," and she received a right to sue letter. (Id. ¶ 21--22.) Plaintiff's EEOC Charge of Discrimination shows she checked the boxes for "discrimination based on" "sex" and "age." (Req. Judicial Notice, Ex. A, ECF No. 15-1.) Plaintiff's EEOC Charge states:
In mid-April 2007, I received a letter from Provost Phillip Gilbertson stating that my tenure and promotion had been denied, despite . . . my positive evaluations and a unanimous recommendation for tenure and promotion from the Evaluation Committee. . . . I believe I have been discriminated against because of my sex, Female, in violation of Title VII . . . .
(Id. (emphasis added).) Further, Plaintiff later sent the EEOC a letter updating the EEOC on "two new developments," which includes the following:
1. In my original complaint I stated that I had never received any reasons why I was denied tenure (which is the same as termination of my position in the summer of 2008) or promotion to associate professor. The reasons were finally delivered on December 21, 2007 together with a letter citing an improbable cause for their 4-months delay. Several of the reasons are not admissible under university rules because they were not backed by the evidence collected in the official document binder. I believe they come from secret conversations of certain university officials with one or two individuals with personal or professional animosity toward me. The last paragraph of the letter dated August 23, 2007, and delivered on December 21, 2007, cites "my response to proffered guidance in research and scholarly activities" as a major reason for denial of tenure and promotion. I believe this stems from secret complaints of a male professor loosely associated with our department who insisted that (female) assistant professors pay regular visits to his office for "mentoring" even if he had no experience in their research area (as in my case). I was also reluctant to comply because this individual had previously shown lack of integrity and made me uncomfortable. I am attaching the letter dated August 23, 2007, and a letter I sent to the committees when I forwarded the provost's correspondence. I believe that ...