Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Silvia v. Verizon Communications, Inc.

United States District Court, N.D. California

June 1, 2017

DEBBIE SILVIA, et al., Plaintiffs,
v.
EA TECHINICAL SERVICES, INC., et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS RE: DKT. NO. 111

          JACQUELINE SCOTT CORLEY, United States Magistrate Judge

         This case concerns alleged unpaid wages and discrimination that Plaintiffs Debbie Silva and John Vieira (“Plaintiffs”) experienced while in the employ of Defendants MCI Communications Services, Inc. (“MCI”), Verizon Business Network Services Inc. (“Verizon”), Engineering Associates LLC f/k/a Engineering Associates Inc. (“EA”), and EA Technical Services (“EA Technical”) (collectively, “Defendants”).

         In their initial complaint, First Amended Complaint (“FAC”), and Second Amended Complaint (“SAC”) Plaintiffs pled nine causes of action, including two Fair Housing and Employment Act (“FEHA”) claims brought by Plaintiff Silva - gender discrimination in violation of California Government Code Section 12940(a) and failure to take all reasonable steps to prevent sexual harassment in violation of California Government Code Section 12940(k). (Dkt. Nos. 1-1, 37, 103.)

         Currently pending before the Court is Defendants MCI and Verizon's (the “Verizon Defendants”) motion to dismiss Plaintiff Silva's FEHA claims in causes of action eight and nine of the SAC. Having carefully reviewed the briefs and having had the benefit of oral argument on June 1, 2017, the Court finds that Plaintiff Silva failed to file a timely FEHA complaint with the Department of Fair Employment and Housing (“DFEH”) and GRANTS Verizon Defendants' motion to dismiss with prejudice.

         BACKGROUND

         On August 21, 2015, Plaintiffs filed their original complaint in state court for breach of various sections of the California labor code, breach of contract, failure to pay prevailing wages, recovery under public works payment bond, and unjust enrichment. (Dkt. No. 1-1.) Plaintiff Silva brought two additional FEHA claims - discrimination, and failure to take reasonable steps to prevent sexual harassment. (Id. at 27, 28.) Defendants removed the action to this Court based on diversity and the parties subsequently stipulated to mediation and Robert T. Fries was selected as a mediator. (Dkt. Nos. 28, 31.)

         On March 18, 2016, the Court granted Defendant EA's motion to dismiss with leave to amend. (Dkt. No. 36.) Plaintiffs filed the FAC on April 8, 2016 with most of the original causes of action, including Plaintiff Silva's two FEHA claims. (Dkt. No. 37.) On October 14, 2016, the parties attended an all-day mediation with Mr. Fries, however the matter was not resolved. (Dkt. No. 77.) Three weeks later, on November 4, 2016, Plaintiff Silva filed, for the first time, a discrimination complaint with DFEH complaining of inappropriate conduct that occurred on approximately October 14, 2016. (Dkt. No. 113-1 at 8.) However, the original complaint and the FAC alleged that Defendants' adverse actions occurred on approximately June 28, 2015 and that Plaintiff Silva was forced to resign shortly thereafter. (Dkt. No. 1-1 at ¶¶ 14, 15; Dkt. No. 37 at ¶¶ 22, 23.)

         By stipulation of the parties, the Court granted Plaintiffs leave to file a second amended complaint to name MCI and Verizon as new defendants, and dismissed Frontier California Inc. f/k/a Verizon California, Inc. from the action. (Dkt. No. 102 at 2.) Plaintiffs' SAC alleges nine causes of action, including the same FEHA claims Plaintiff Silva brought in the original complaint and the FAC. (Dkt. No. 103.) Plaintiff Silva also alleges, again in the SAC, that Defendants' adverse actions occurred on approximately June 28, 2015 and that she was forced to resign shortly thereafter. (Id. ¶¶ 22, 23.)

         The new defendants MCI and Verizon now move to dismiss Plaintiff Silva's eighth and ninth claims for relief on the grounds Plaintiff Silva failed to file a timely complaint with DFEH. (Dkt. No. 111.)

         DISCUSSION

         I. Judicial Notice

         When considering a motion to dismiss, a court does not normally look beyond the complaint in order to avoid converting a motion to dismiss into a motion for summary judgment. Ngoc Nguyen v. Wells Fargo Bank, N.A., 749. F.Supp.2d 1022, 1024 (N.D. Cal. 2010). However, a court may take judicial notice of material that is submitted as part of the complaint or is necessarily relied upon by the complaint, as well as matters of public record. Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001). Under Federal Rule of Evidence 201(b), a “judicially noticed fact must be one not subject to reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Courts routinely take judicial notice of proceedings in other courts and records of state agencies, including DFEH complaints. See Minor v. FedEx Office & Print Servs., Inc., 78 F.Supp.3d 1021, 1027 (N.D. Cal. 2015) (taking judicial notice of DFEH complaint).

         Verizon Defendants request judicial notice of the Plaintiff Silva's employment discrimination complaint filed with DFEH and the accompanying right to sue notice. These documents are records of a state agency, and therefore the appropriate subjects of judicial notice. See U.S. v. 14.02 Acres of Land More or Less in Fresno Cnty., 547 F.3d 943, 955 (9th Cir. 2008) (“Judicial notice is appropriate for records and reports of administrative bodies.”) (internal quotation marks and citation omitted).

         II. Plaintiff Failed to File a Timely FEHA ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.