Rubalcaba v. Gucci America Incorporated

Filing 13

ORDER that the Motion to Dismiss of Gucci America, Inc. (Doc. 7 ) is DENIED. Signed by Judge G Murray Snow on 10/22/2012.(KMG)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Rubalcaba,

No. CV-12-01503-PHX-GMS
Plaintiff,

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v.

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Gucci America, Inc., a
corporation dba in Arizona,

ORDER

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New

Jersey

Defendant.

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Pending before the Court is the Motion to Dismiss of Defendant Gucci America,
Inc. (“Gucci”) (Doc. 7). For the reasons discussed below, Gucci’s Motion is denied.

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Plaintiff John Rubalcaba (“Rubalcaba”) filed suit in Maricopa County Superior

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Court on February 29, 2012, alleging gender discrimination, sexual harassment, and

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retaliation in the workplace. (Doc. 1 at 2.) Rubalcaba later amended his complaint to state

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that he was bringing claims under Title VII of the Civil Rights Act of 1964. (Id.) Gucci

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subsequently removed the case to this Court.

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Rubalcaba alleges in his Complaint that he received a Right-to-Sue Letter from the

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EEOC on December 2, 2011. (Doc. 1-2 at 16.) However, the letter itself states that it was

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issued on May 18, 2011. (Doc. 8-3 at 21.)

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Gucci brings this Motion to Dismiss on the ground that Rubalcaba has failed to
bring this action within the applicable statute of limitations.
A court may not grant a 12(b)(6) motion to dismiss for failure to state a claim

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“unless it appears beyond doubt that the plaintiff can prove no set of facts in support of

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his claims which would entitle him to relief.” Barnett v. Centoni, 31 F.3d 813, 816 (9th

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Cir. 1994) (citing Buckey v. Cnty. of Los Angeles, 957 F.2d 652, 654 (9th Cir. 1992)).

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When analyzing a complaint under this standard, “[a]ll allegations of material fact are

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taken as true and construed in the light most favorable to the nonmoving party.” Smith v.

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Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, a complaint must contain more

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than “labels and conclusions” or a “formulaic recitation of the elements of a cause of

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action”; it must contain factual allegations sufficient to “raise a right to relief above the

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speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has

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facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

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A district court generally will not consider evidence or documents beyond the

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complaint in the context of a 12(b)(6) motion to dismiss. See Hal Roach Studios, Inc. v.

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Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990) (amended decision).

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However, courts may “consider certain materials—documents attached to the complaint,

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documents incorporated by reference in the complaint, or matters of judicial notice—

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without converting the motion to dismiss into a motion for summary judgment.” United

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States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Documents specifically referred to in

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a complaint and whose authenticity is not questioned by any party may also be

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considered. Branch v. Tunnell, 14 F.3d 4499, 453–54 (9th Cir. 1994), overruled on other

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grounds by Galbraith v. Cnty. Of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).

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Under Title VII, if the EEOC dismisses a discrimination charge, it must notify the

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claimant and inform her that she has ninety days to bring a civil action. 42 U.S.C. §

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2000e-5(f)(1); Payan v. Aramark Mgmt. Services Ltd. P’ship, 495 F.3d 1119, 1121 (9th

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Cir. 2007). The ninety days operates as a limitations period and if the claimant fails to

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bring suit in that time, her action is time-barred. Id. The period runs from the date that the

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right-to-sue notice letter arrives at the claimant’s address of record. Id. at 1122.
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Here, Rubalcaba filed suit on February 29, 2012. He alleges that the right-to-sue

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notice letter did not arrive until December 2, 2011, (Doc. 1-2 at 16), and attaches a copy

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of the envelope that the letter arrived in, postmarked on December 1, 2011, (Doc. 11 at

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6). He asserts that no letter ever arrived at his address of record prior to this date. (Doc.

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11 at 2.) If this is the case, then Rubalcaba’s action was timely filed within ninety days of

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his receipt of the letter on December 2.

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However, Gucci points to the date on the letter itself, which indicates that it was

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issued on May 18, 2011. (Doc. 8-3 at 21.) Neither party disputes the authenticity of this

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document or argues that it should not be considered on this Motion to Dismiss. Gucci

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claims that, under Payan, a court should presume that a right-to-sue notice letter is mailed

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on the date that it is issued and that a letter is received within three days of mailing. (Doc.

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7 at 4.) Therefore, Gucci asserts, the EEOC’s letter in this case should be presumed to

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have been mailed on May 18, 2011, and received by Rubalcaba three days later. As such,

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Rubalcaba’s suit on February 29, 2012 would be well outside the ninety-day statute of

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limitations.

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In Payan, the Ninth Circuit applied a presumption that an EEOC right-to-sue

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notice letter arrives three days after it is issued. Payan, 495 F.3d at 1123–25. However,

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this presumption operates only when receipt is not in dispute. Id. at 1122. Here, the

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parties dispute whether a May 18, 2011 letter was ever received. (Doc. 12 at 2.) As such,

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the Payan presumption does not reply. Rather, when receipt is disputed, the mailbox rule

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applies. Payan, 495 F.3d at 1123 n.4; Schikore v. BankAmerica Supplemental Ret. Plan,

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269 F. Supp. 956, 962 (9th Cir. 2001). Under the mailbox rule, a presumption of receipt

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arises only if the proponent of receipt demonstrates sufficient evidence that the letter was

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mailed. Id. at 963. If the proponent meets this burden, it is up to the other party to present

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sufficient evidence of non-receipt to rebut the presumption. Id.

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Here, the only evidence that Gucci has presented of a May 18 letter being mailed

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is the date of issuance on the right-to-sue notice letter. (Doc. 7 at 4.) This is insufficient to

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give rise to a presumption of receipt. See Mahon v. Credit Bureau of Placer Cnty., Inc.,
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171 F.3d 1197, 1201–02 (9th Cir. 1999) (applying a presumption of receipt where

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proponent produced records that software generated a notice, that a machine

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mechanically addressed and stuffed the notice into an envelope, and that the notice was

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then mailed); Turner v. Dep’t of Educ., CIV. 10-00707 ACK, 2011 WL 1637333 at *6

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(D. Haw. Apr. 28, 2011) (declining to apply the presumption where proponent produced

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only the issuance date on the right-to-sue letter).

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Because Gucci has not presented sufficient evidence to give rise to a presumption

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of receipt of the May 18, 2011 letter, the Court takes as true Rubalcaba’s allegation in his

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Complaint that he did not receive the EEOC’s right-to-sue notice letter until December 2,

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2011. Rubalcaba filed suit within ninety days of that date, so the statute of limitations

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does not operate to bar this action. Gucci has presented no other ground on which

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Rubalcaba’s suit should be dismissed. Therefore, its Motion to Dismiss is denied.

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IT IS THEREFORE ORDERED that the Motion to Dismiss of Gucci America,
Inc. (Doc. 7) is DENIED.
Dated this 22nd day of October, 2012.

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