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Scott v. Gino Morena Enterprises L.L.C.

United States District Court, S.D. California

July 21, 2016

TAYLOR SCOTT, Plaintiff,
v.
GINO MORENA ENTERPRISES, L.L.C., a California limited liability company; and DOES 1 to 50, inclusive, Defendants.

          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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