Garnes v. Vitalant
Filing
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ORDER - (1) Defendant's motion for summary judgment (Doc. 35 ) is granted. (2) The Clerk of Court shall enter judgment accordingly and terminate this action. (See document for further details). Signed by Judge Dominic W Lanza on 11/20/2020. (LAD)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Alphatine Garnes,
Plaintiff,
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ORDER
v.
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No. CV-19-04857-PHX-DWL
Vitalant,
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Defendant.
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In this action, Plaintiff Alphatine Garnes (“Plaintiff”) has asserted claims against
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her former employer, Defendant Vitalant f/k/a Blood Systems, Inc. (“Defendant”), for
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violating Title VII of the Civil Rights Act of 1984 (Counts I-II) and the Americans with
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Disabilities Act (Count III). (Doc. 1.) Among other things, the complaint alleges that the
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Equal Employment Opportunity Commission (“EEOC”) issued a right-to-sue letter to
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Plaintiff on April 18, 2019 but Plaintiff didn’t receive the letter until May 3, 2019. (Id.
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¶¶ 32-33.) If this chronology were accurate, it would mean that the date on which Plaintiff
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initiated this action, July 31, 2019, was 89 days after she received the right-to-sue letter.
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Several months ago, Plaintiff’s counsel moved to withdraw “because irreconcilable
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differences have arisen between lawyer and client regarding case strategy and because of
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concerns under ER 1.16(a)(1).” (Doc. 34.) The withdrawal motion was properly served
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on Plaintiff and, after Plaintiff failed to respond in the time permitted by this Court’s rules,
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it was granted. (Doc. 36.)
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Separately, Defendant has now filed a motion for summary judgment. (Doc. 35.)
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Due to the withdrawal of Plaintiff’s counsel, the Court afforded extra time for Plaintiff to
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respond to Defendant’s motion (Doc. 36), but the extra time has expired and Plaintiff still
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has not responded.
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Although Defendant’s summary judgment motion is unopposed, this doesn’t mean
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it may automatically be granted. As the advisory committee notes to Rule 56 explain,
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“summary judgment cannot be granted by default even if there is a complete failure to
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respond to the motion.” This is because, “under the summary judgment standard, if the
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moving party fails to meet its initial burden of production, the opposing party need not
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produce anything.” Finkle v. Ryan, 174 F. Supp. 3d 1174, 1181 (D. Ariz. 2016). Thus, an
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“opposing party’s failure to respond to a fact asserted in” a summary judgment motion
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simply “permits a court to consider the fact undisputed for purposes of the motion.”
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Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir.2013) (internal quotation marks
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omitted).
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Here, Defendant argues it is entitled to summary judgment for several reasons,
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including that Plaintiff’s action is time-barred. (Doc. 35 at 8-9.) Specifically, Defendant
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argues that Plaintiff received the EEOC’s right-to-sue letter within three days of when it
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was issued on April 18, 2019 (and not on May 3, 2019, as alleged in the complaint), which
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means that by the time Plaintiff filed this action on July 31, 2019, the 90-day limitations
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period had expired. (Id.)
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The Court agrees that Defendant is entitled to summary judgment on this basis.
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Because Plaintiff did not respond to Defendant’s motion, the Court may accept as
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“undisputed” Defendant’s factual assertion that Plaintiff received the right-to-sue letter by
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no later than April 21, 2019. Heinemann, 731 F.3d at 917.1 This was more than 90 days
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before Plaintiff initiated this action. Accordingly, this action is time-barred. Payan v.
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Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121-22 (9th Cir. 2007) (“Title VII
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The materials attached to Defendant’s motion also support this conclusion. Those
materials reveal that, during her deposition in this case, Plaintiff acknowledged that the
right-to-sue letter bore a mailing date of April 18, 2019 and then answered “Yes” when
asked: “Did you receive this shortly after that?” (Doc. 35-1 at 77.)
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provides that upon dismissing a charge of discrimination, the EEOC must notify the
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claimant and inform her that she has ninety days to bring a civil action. . . . [T]his ninety-
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day period operates as a limitations period. . . . We measure the start of the limitations
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period from the date on which a right-to-sue notice letter arrived at the claimant’s address
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of record.”). Given this conclusion, there is no need to address Defendant’s other summary
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judgment arguments.
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Accordingly,
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IT IS ORDERED that:
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(1)
Defendant’s motion for summary judgment (Doc. 35) is granted.
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(2)
The Clerk of Court shall enter judgment accordingly and terminate this
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action.
Dated this 20th day of November, 2020.
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