United States District Court, S.D. California
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT (ECF NO. 46)
HON.
JANIS L. SAMMARTINO, UNITED STATES DISTRICT JUDGE
Presently
before the Court is Defendant Gino Morena Enterprises,
LLC’s Motion for Summary Judgment. (MSJ, ECF No. 46.)
Also before the Court are Plaintiff Taylor Scott’s
Opposition to (ECF No. 48) and Defendant’s Reply in
Support of (ECF No. 49) the MSJ, as well as Defendant’s
(ECF No. 46-1 at 8 n.1[1]) and Plaintiff’s (ECF No. 48-1 at 2
n.1) Requests for Judicial Notice (RJNs)[2] and
Defendant’s Notice of Recent Authority (ECF No. 51). A
hearing was held on June 23, 2016 at 1:30 p.m. Having
considered the parties’ arguments and the law, the
Court GRANTS Defendant’s MSJ. (ECF No. 46.)
BACKGROUND
Plaintiff
began working for Defendant in April 2011. (Pl.’s
Statement of Genuine Disputes in Opp’n to Def.’s
MSJ (Pl.’s Stmt.) No. 1, ECF No. 48-1.) During her
employment, Plaintiff was subjected to harassment on account
of her gender and retaliation in connection with her refusal
to comply with her employer’s advances. (Id.
at No. 2.)
On
November 13, 2013, Plaintiff spoke with Karen Rice at the
California Department of Fair Employment and Housing (DFEH)
and filed a Fair Employment and Housing Act (FEHA) complaint
against Defendant. (Decl. of Leah S. Strickland (Strickland
Decl.) Ex. AA, ECF No. 46-7 at 15; see also
Pl.’s Stmt. No. 3, ECF No. 48-1.) Plaintiff’s
complaint claimed that she was sexually harassed by her
manager, Judy Lifesy, “by yelling . . ., changing the
temperature of the thermostat and throwing things.”
(FAC Ex. 1 at 5, ECF No. 31-1.) Plaintiff’s notes from
her telephone conversation with Ms. Rice indicate “365
days” in relation to “Dept of Fair Employment
& Housing” and “w/in 30 days an investigator
will call to determine if [Plaintiff’s DFEH complaint
is] actionable.” (Strickland Decl. Ex. AA, ECF No. 46-7
at 136.) Regarding “EEOC - federal coverage, ” by
contrast, Plaintiff records that “DFEH will send their
filing to the EEOC” and “statute of lim 300
days.” (Id.)
The
DFEH transferred Plaintiff’s claim to the Equal
Employment Opportunity Commission (EEOC) on November 19, 2013
(Pl.’s Stmt. No. 10, ECF No. 48-1), and the DFEH sent
Plaintiff a right-to-sue letter on November 25, 2013
(id. at No. 4). The right-to-sue letter indicated
that the DFEH “ha[d] closed [Plaintiff’s] case
for the following reason: Administrative Dismissal - Waived
to Another Agency.” (FAC Ex. 1 at 7, ECF No. 31-1;
see also Pl.’s Stmt. No. 10, ECF No. 48-1.)
The letter explained that “[t]his is
[Plaintiff’s] Right to Sue notice. . . . The [FEHA]
civil action must be filed within one year from the date of
this letter.” (FAC Ex. 1 at 7, ECF No. 31-1 (emphasis
in original).) The letter further provided that
Plaintiff’s “complaint is dual filed with the
[EEOC]. [Plaintiff] ha[s] a right to request EEOC to perform
a substantial weight review of [DFEH’s] findings . . .
within fifteen (15) days of . . . receipt of this
notice.” (Id. (emphasis in original).)
(Id.) Finally, the letter explained:
Although DFEH has concluded that the evidence and information
did not support a finding that a violation occurred, the
allegations and conduct at issue may be in violation of other
laws. [Plaintiff] should consult an attorney as soon as
possible regarding any other options and/or recourse [she]
may have regarding the underlying acts or conduct.
(Id. at 8.) The letter then provided contact
information for the State Bar of California Lawyer Referral
Services Program. (Id.) Soon thereafter, on December
22, 2013, Plaintiff left Defendant’s employ. (FAC
¶ 23, ECF No. 31; see also Pl.’s Stmt.
No. 1, ECF No. 48-1.)
Meanwhile,
Plaintiff was confused about whether the DFEH or EEOC was
investigating her claims. (Pl.’s Stmt. No. 14, ECF No.
48-1.) Plaintiff followed up with Ms. Rice at the DFEH on
October 15, 2014. (Strickland Decl. Ex. AA, ECF No. 46-7 at
18.) Plaintiff does not remember speaking with Ms. Rice
between November 13, 2013 and October 15, 2014. (Id.
at 16.) Ms. Rice provided Plaintiff with the EEOC’s
contact information. (Id. at 18.) Plaintiff does not
know whether she contacted the EEOC prior to October 15,
2014. (Id. at 21.) When Plaintiff contacted the EEOC
on October 15, 2014, she learned that the EEOC was still
investigating her claims. (Pl.’s Stmt. No. 14, ECF No.
48-1; see also Id . at No. 16.)
Plaintiff
hired counsel on November 12, 2014. (Strickland Decl. Ex. AA,
ECF No. 46-7 at 25.) Plaintiff then filed a second complaint
with the DFEH on November 17, 2014. (Pl.’s Stmt. No. 9,
ECF No. 48-1.) Specifically, Plaintiff recounted the
allegations leading to her first DFEH complaint, then noted:
After [she] filed [her] complaint and received [her] right to
sue letter, Lifesy and [Katie] Shepler[, Plaintiff’s
General Manager, ] gave [Plaintiff] a final warning (although
this was the very first warning [Plaintiff] received while
[she] was employed by [Defendant]). After the unfair
treatment, harassment and retaliation and the immediate
warning after [Plaintiff] filed [her] DFEH complaint, [she]
was unable to withstand any further retaliatory harassing and
unfair treatment and left [Defendant’]s employ knowing
that they were setting [Plaintiff] up for termination.
(Compl. Ex. 2, ECF No. 1-1 at 34.) Plaintiff’s second
DFEH right-to-sue letter, which was issued that same day,
explained that, “[t]o obtain a federal Right to Sue
notice, [Plaintiff] must visit the [EEOC] to file a complaint
within 30 days of receipt of this DFEH Notice . . . or within
300 days of the alleged discriminatory act, whichever is
earlier.” (Id. at 30.)
Plaintiff
filed her original Complaint on November 20, 2014 in the
Superior Court of California, County of Orange, alleging
various violations of FEHA. (Pl.’s Stmt. No. 17, ECF
No. 48-1; see also ECF No. 1-1.) Defendant removed
to the Central District of California. (Pl.’s Stmt. No.
18, ECF No. 48-1; see also ECF No. 1.) The parties
then stipulated to transfer Plaintiff’s case to this
Court. (Pl.’s Stmt. No. 19; ECF No. 48-1; see
also ECF Nos. 17, 18.) On May 22, 2015, Defendant filed
a motion for judgment on the pleadings, asking the Court to
dismiss Plaintiff’s FEHA causes of action as preempted
by the federal enclave doctrine. (Pl.’s Stmt. No. 20;
ECF No. 48-1; see also ECF No. 26-1 at 25.)
On June
3, 2015, the EEOC issued a Notice of Right to Sue under Title
VII. (Pl.’s Stmt. No. 21, ECF No. 48-1; see
also FAC Ex. 2, ECF No. 31-2.) The letter was
“issued on request” and indicated that
“[m]ore than 180 days have passed since the filing of
this charge” and “[t]he EEOC is terminating its
processing of this charge.” (FAC Ex. 2 at 2, ECF No.
31-2.) The EEOC right to sue notice indicated that
Plaintiff’s “lawsuit under Title VII . . . must
be filed . . . WITHIN 90 DAYS of . . . receipt of
this notice; or [the] right to sue based on this charge will
be lost.” (Id. (emphasis in original); see
also Pl.’s Stmt. No. 22, ECF No. 48-1.) Plaintiff
had not received notice from either the DFEH or the EEOC
prior to this time indicating a deadline by which she was
required to file her Title VII claims. (Pl.’s Stmt. No.
15, ECF No. 48-1.)
On June
11, 2015, the parties filed a joint motion, stipulating to
the dismissal with prejudice of Plaintiff’s state law
claims. (Pl.’s Stmt. No. 24, ECF No. 48-1; see
also ECF No. 28 at 2.) Plaintiff filed her FAC on June
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