Griggs v. Sacramento City Unified School District

Filing 24

ORDER signed by Chief District Judge Kimberly J. Mueller on 4/23/2021 DENYING IN PART AND GRANTING IN PART the 6 motion to dismiss and to strike as follows: DISMISSING WITH LEAVE TO AMEND Claim two for sex discrimination with respect to the allegations based on Charge #1 and Position #2; OTHERWISE DENYING the motion to dismiss the sex discrimination claim; DISMISSING WITH LEAVE TO AMEND Claim three for retaliation; and DENYING the motion to strike. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Jonathan Griggs,

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Plaintiff,

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No. 2:20-CV-0724-KJM-JDP
ORDER

v.
Sacramento City Unified School District,

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Defendant.

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Plaintiff Jonathan Griggs alleges employment discrimination based on race and gender, as

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well as retaliation under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. See

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generally Compl., ECF No. 1. Defendant Sacramento City Unified School District moves to

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dismiss the gender and retaliation claims and strike paragraphs eight, seventeen, and twenty-one

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of the complaint. Mot. at 1–2, ECF No. 6. Griggs opposes the motion. Opp’n, ECF No. 9. The

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court grants in part the motion to dismiss1 with leave to amend and denies the motion to strike.

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I.

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JUDICIAL NOTICE
Each party has filed a request for judicial notice. The District requests the court take

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judicial notice of the “Notice of Charge of Discrimination” it received from the United States

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Equal Employment Opportunity Commission (EEOC) after Griggs filed his first charge of
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The motion is untimely by three days. Griggs asserts no prejudice by the delay;
therefore, the court considers the merits of the motion.
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discrimination. Notice of Charge of Discrimination, Def. Req. for Judicial Notice Ex. A, ECF

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No. 6-2. Griggs opposes this request, arguing the document is “not helpful or necessary.” Opp’n

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at 13. Griggs requests judicial notice of the “EEOC Commission Charges” he filed in 2018.

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EEOC Commission Charges, Pl. Request for Judicial Notice Ex A–B, ECF No. 10. The District

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does not oppose this request.

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When ruling on a motion to dismiss, a court may consider facts subject to judicial notice

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

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Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480,

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1484 (9th Cir. 1995). “[A court] may take judicial notice of records and reports of administrative

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bodies.” Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012) (internal quotation marks

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omitted). This includes EEOC charges and right-to-sue letters. See Hellmann-Blumberg v. Univ.

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of Pac., No. 12-286, 2013 WL 1326469, at *1 (E.D. Cal. Mar. 29, 2013); Gallo v. Bd. of Regents

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of Univ. of Cal., 916 F. Supp. 1005, 1007 (S.D. Cal. 1995). Therefore, the court grants both

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requests for judicial notice and will consider the Notice of Charge of Discrimination and the

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EEOC Commission Charges in deciding the motion to dismiss.

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II.

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BACKGROUND
Griggs is an African American man. Compl. ¶ 2. He is currently employed by the

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District as a Personnel Technician II. Id. By 2015, Griggs had earned his MBA and had

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accumulated over six years of experience in human resources and employee compensation

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matters. Id. ¶ 10; Opp’n at 1. Griggs claims this training and experience qualified him for a

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promotion to a Human Resources Services Analyst (HRSA) or Personnel Specialist (PS) position,

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each of which have higher pay and better benefits. Compl. ¶¶ 10, 14. Between 2015 and 2016,

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Griggs applied for five such promotions (Positions #1–5); each time he was passed over for a less

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qualified applicant who was a different race or gender. Id. ¶ 9. During the same period, he also

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filed EEOC charges as follows:

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He was denied Position #1 on October 12, 2015. Compl. ¶ 9(a).

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He filed his first EEOC charge (Charge #1) on April 5, 2016. Compl. ¶ 16. He

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argues this charge was based on race and sex. Opp’n at 3. However, in the notice
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the EEOC sent to the District, only the “Race” box is checked under the heading

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“Circumstances of Alleged Discrimination.” Notice of Charge of Discrimination

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at 6.
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Griggs applied for Position #2 on May 9, 2016. Compl. ¶ 9(b). His application
was denied on May 23, 2016. Id. ¶ 37.

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He applied for Positions ## 3 through 5 between August and November of 2016.
Id. ¶ 9(c)–(e). He does not allege the dates these applications were denied.

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He filed a second EEOC charge (Charge #2) on September 19, 2017. Id. ¶ 17.

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He filed two amended charges on February 8, 2018 and February 21, 2018. See

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generally EEOC Commission Charges. These charges allege the same violations

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included in Charge #1 and Charge #2. See id.
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He received right-to-sue letters from the EEOC with respect to both charges in
January 2020. Compl. ¶ 18.

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Griggs then filed this action, alleging employment discrimination based on race, gender,

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and retaliation. Compl., ECF No. 1. His complaint includes four claims: (1) race discrimination

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in violation of Title VII of the Civil Rights Act of 1964, (2) gender discrimination under the same

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statute, (3) retaliation under the same statute, and (4) race discrimination in violation of 42 U.S.C.

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§ 1981. The District now moves to dismiss the second and third claims and to strike three

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paragraphs from the complaint. Mot., ECF No. 6. The motion is fully briefed and submitted on

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the papers. Opp’n, ECF No. 9; Reply, ECF No. 13; Minute Order, ECF No. 18.

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III.

MOTION TO DISMISS

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A.

Legal Standard

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Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss

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a complaint for “failure to state a claim upon which relief can be granted.” A court may dismiss

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“based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a

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cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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Although a complaint need contain only “a short and plain statement of the claim showing
that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to survive a motion to
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dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a claim

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more

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than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and

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conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting

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Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss

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for failure to state a claim is a “context-specific task that requires the reviewing court to draw on

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its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the

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interplay between the factual allegations of the complaint and the dispositive issues of law in the

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action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

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In making this context-specific evaluation, this court must construe the complaint in the

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light most favorable to the plaintiff and accept as true the factual allegations of the complaint.

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Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). This rule does not apply to “‘a legal conclusion

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couched as a factual allegation,’” Papasan v. Allain, 478 U.S. 265, 286 (1986) quoted in

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Twombly, 550 U.S. at 555, nor to “allegations that contradict matters properly subject to judicial

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notice” or to material attached to or incorporated by reference into the complaint. Sprewell v.

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Golden State Warriors, 266 F.3d 979, 988–89 (9th Cir. 2001).

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B.

Timeliness of Exhaustion—Sex Discrimination (Claim 2)

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Title VII requires a plaintiff file a timely charge with the EEOC or an equivalent state

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agency before filing a lawsuit. B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002).

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Only unlawful employment actions that occurred within the statutory time period are actionable.

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Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113–14 (2002). For that reason, a

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complaint that initiates a lawsuit must contain enough detail to assure the court the plaintiff has

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filed a timely charge with the EEOC or an equivalent state agency. See Lyons v. England,

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307 F.3d 1092, 1104 (9th Cir. 2002). Courts can rely on equitable doctrines such as tolling or

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estoppel to make exceptions for untimely claims, but such doctrines are applied sparingly.

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Morgan, 536 U.S. at 113–14.

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The length of the statutory time period depends on where a charge is filed and what events

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occurred. A charged filed with the EEOC “shall be filed within one hundred and eighty days

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after the alleged unlawful employment practice occurred.” 42 U.S.C. § 2000e-5(e)(1). But a

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charge initially filed with an appropriate State or local agency “shall be filed . . . within three

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hundred days.” Id. Discrete acts, including failure to promote or refusal to hire, “occurred” on

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the day they happened. Morgan, 536 U.S. at 110, 114. Each “‘incident of discrimination and

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each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful

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employment practice.’” Id. at 114.

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“Whether a plaintiff in a Title VII action has timely exhausted her administrative remedies

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‘is an affirmative defense, [so] the defendant bears the burden of pleading and proving it.” Kraus

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v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1046 n.7 (9th Cir. 2009)

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(alteration in original) (quoting Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997)).

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As a result, if the failure to exhaust is not “clear on the face of the complaint,” a defendant must

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pursue a motion for summary judgment, not to dismiss. Diunugala v. Dep’t of Conservation,

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No. 16-3530, 2016 WL 11520821, at *1 (C.D. Cal. Sept. 14, 2016) (citing Albino v. Baca,

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747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (interpreting analogous exhaustion requirements of

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the Prison Litigation Reform Act)). Here, as summarized above, Griggs filed two charges with

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the EEOC. Both charges can be considered as concurrently filed with the California Department

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of Fair Employment and Housing (DFEH). See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097,

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1104 (9th Cir.2008) (“[A] charge filed with the State Employment Department is deemed filed

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with the EEOC pursuant to a worksharing [sic] agreement between the two entities”); Downs v.

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Dep't of Water & Power, 58 Cal. App. 4th 1093, 1097, 68 Cal. Rptr. 2d 590 (2d Dist.1997) (“The

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EEOC and the DFEH [have] each designated the other as its agent for receiving charges and

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agreed to forward to the other agency copies of all charges potentially covered by the other

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agency’s statute.”). Charge #1 describes the District’s failure to promote him to Position #1. See

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Compl. ¶¶ 9(a), 16. He filed this charge within 180 days after he was denied the promotion, so

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the filing satisfied the statutory exhaustion requirements for his claim based on Position #1. See

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id. ¶¶ 16–18; 42 U.S.C. § 2000e-5(e)(1). Charge #1 was filed before the adverse employment
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actions related to Positions #2–5, however, so it cannot have satisfied the statutory exhaustion

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requirements for those positions.

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Charge #2 makes for a closer question. It was filed September 19, 2017. Compl. ¶ 17.

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Three hundred days prior to September 19, 2017 fell on November 23, 2016. See id. Griggs does

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not allege the dates of the adverse actions related to Positions ## 3 through 5, but he does allege

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when he applied for each of those positions. See id. ¶¶ 9(c)–(e). He applied for Position #5, the

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most recent, on November 14, 2016, only nine days before the November 23 limitations date. See

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id. ¶¶ 9(e), 17. At this early stage, these allegations suffice to show Griggs exhausted his claims

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related to Position #5 by filing Charge #2. It is reasonable to infer Griggs was not denied the

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promotion immediately after applying and thus that Charge #2 exhausted allegations regarding

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his denial of Position #5.

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The court reaches the same conclusion with respect to Griggs’s allegations about Positions

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## 3 and 4. He alleges he applied for Position #4 on October 12, 2016, a little more than a month

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before the November 23 exhaustion deadline identified in his complaint. See Compl. ¶ 9(d). He

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applied for Position #3 in August. See id. ¶ 9(c). Although he alleges the District rejected his

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application for Position #3 early in the hiring process, before the “second tier” of interviews, see

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id., he also alleges he “has exhausted his administrative remedies prior to filing suit,” id. ¶ 18.

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These allegations suffice at this early stage. See, e.g., Freeman v. Cty. of Sacramento Dep’t of

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Hum. Assistance, No. 19-2418, 2020 WL 2539268, at *2 (E.D. Cal. May 19, 2020) (denying

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motion to dismiss based on failure to exhaust Title VII claims in face of similar allegations;

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collecting authority).

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Griggs further contends he exhausted his claims related to Position #2. Opp’n at 7–9. He

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was denied the promotion to Position #2 in May 2016, many months before the applicable

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deadline. Compl. ¶ 37. It is therefore clear on the face of the complaint that Griggs did not

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exhaust claims regarding Position #2. Griggs’s legal arguments to the contrary are unpersuasive

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and unsupported by law. First, Griggs argues all of the positions for which he applied, including

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Position #2, are “well within the actual investigatory scope of Charge #2 and the reasonable

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investigatory scope of Charge #1 because he was denied the same or similar positions [] based on
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the same bases of discrimination (race and sex) against the same respondent [the District].”

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Opp’n at 9 (emphases in original) (citing B.K.B., 276 F.3d at 1100). He argues similarly that both

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of his formal charges should be construed with the “utmost liberality” because he was

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unrepresented when he filed them and, together, the two charges allowed EEOC to perform its

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duty to investigate the claims alleged before this court. See id. at 9–10. Although it is true Ninth

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Circuit precedent prescribes leniency in construing the content of pro se complainants, this rule of

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lenity focuses on the subject matter of complaints, not their timeliness. See B.K.B., 276 F.3d

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at 1100.

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Second, Griggs argues the alleged failures to promote for all of the positions, including

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Position #2, were “certainly ‘new acts occurring during the pendency of’ Charge #1,” for which

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he claims he was not required to file new charges of discrimination with the EEOC. Opp’n at 9

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(citing Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973)). However, the

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Supreme Court explicitly rejected this type of “continuing violation” approach in Morgan.

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536 U.S. at 113–14. Each discrete adverse employment action must have a timely filing. Id. at

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114. Hostile work environment claims are subject to different timeliness requirements if they

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involve a series of separate acts that collectively constitute one unlawful employment practice.

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Id. at 117. If one contributing act occurs within the filing period, a court may consider the entire

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time period of alleged adverse actions to determine liability. Id. But here, Griggs pleads a series

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of discrete employment actions, not a hostile work environment claim. See Compl. ¶¶ 9–18.

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In sum, the court concludes Charge #1 was timely to exhaust claims related to Position #1

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and Charge #2 was timely to exhaust claims related to Positions ##3 to 5. The District’s motion

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is granted, however, with respect to Griggs’s sex discrimination claim to the extent that claim is

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based on Position #2. At the same time, the court cannot rule out the possibility Griggs could

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plead facts showing he also timely exhausted his claims based on Position #2 or is entitled to

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equitable relief. Dismissal is therefore granted with leave to amend if possible within the

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confines of Federal Rule of Civil Procedure 11. See Sonoma Cty. Ass’n of Ret. Emps. v. Sonoma

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Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (“Courts may decline to grant leave to amend only if

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there is strong evidence of ‘undue delay, bad faith or dilatory motive on the part of the movant,
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repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the

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opposing party by virtue of allowance of the amendment, [or] futility of amendment, etc.’”

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(quoting Foman v. Davis, 371 U.S. 178, 182 (1962))).

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C.

Scope of Exhaustion—Sex Discrimination (Claim 2)

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Timing requirements form only one aspect of the exhaustion rules that govern claims

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under Title VII. Federal courts may only adjudicate claims that fall “within the scope of the

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EEOC’s actual investigation or an EEOC investigation which can reasonably be expected to

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grow out of the charge of discrimination.” E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 899 (9th

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Cir. 1994) (emphasis in original) (internal quotations omitted). Here as well, the language of

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EEOC claims is construed “with utmost liberality since they are made by those unschooled in the

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technicalities of formal pleading.” Kaplan v. Int’l Alliance of Theatrical & Stage Employees,

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525 F.2d 1354, 1359 (9th Cir. 1975), abrogated in part on other grounds by B.K.B., 276 F.3d

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1091. When considering whether plaintiffs have exhausted their administrative remedies, “the

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crucial element of a charge of discrimination is the factual statement contained therein.” B.K.B.,

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276 F.3d at 1100 (quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 462 (5th Cir. 1970)).

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Here, the District challenges the alleged scope of Charge #1 as sufficient to support

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exhaustion as required for Griggs’s second claim here. See Mot. at 4. Griggs alleges race and sex

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discrimination were included in Charge #1, Compl. ¶ 13, but he does not attach his original

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EEOC charges or any documents that reflect the original language of Charge #1 or the scope of

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the EEOC investigation that grew out of it. He has attached only the amended claim he filed in

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2018, which includes both race and sex allegations. Meanwhile, the “Notice of Charge of

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Discrimination” the District received for Charge #1, of which the court has taken judicial notice,

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suggests Griggs alleged only race discrimination in his original claim. Specifically, he did not

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check the box for sex discrimination in that copy. Notice of Charge of Discrimination at 6.

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Griggs’s other factual allegations do not permit the court to infer that his sex discrimination claim

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was properly “within the scope of” or “reasonably [grew] out of” the investigation related to

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Charge #1. See Farmer Bros, 31 F.3d at 899. His sex discrimination claim is therefore dismissed

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to the extent that claim is based on Charge #1. But because additional factual allegations could
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permit a viable sex discrimination claim with respect to Charge #1, the court grants Griggs leave

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to amend if he is able.

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D.

Retaliation (Claim 3)

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Griggs alleges the District retaliated against him for filing Charge #1 by denying his

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application for Position #2 in May 23, 2016. But as noted above, he did not file Charge #2 until

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September 18, 2017, so that charge could only encompass retaliation after November 23, 2016.

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See Compl. ¶ 17. The district’s motion to dismiss the retaliation claim is granted, with leave to

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amend if possible within the confines of Rule 11.

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IV.

MOTION TO STRIKE

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A.

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Federal Rule of Civil Procedure 12(f) provides “[t]he court may strike from a pleading . . .

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any redundant, immaterial, impertinent, or scandalous matter.” “‘Immaterial matter is that which

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has no essential or important relationship to the claim for relief or the defenses being pleaded[,

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and] [i]mpertinent matter consists of statements that do not pertain, and are not necessary, to the

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issues in question.’” Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quoting 5

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Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706–07, 711

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(1990)), rev’d on other grounds by 510 U.S. 517 (2004).

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Legal Standard

A Rule 12(f) motion to strike serves “to avoid the expenditure of time and money that

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must arise from litigating spurious issues by dispensing with those issues prior to trial . . . .”

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Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). The granting of a motion

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to strike “may be proper if it will make trial less complicated or eliminate serious risks of

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prejudice to the moving party, delay, or confusion of the issues.” Taheny v. Wells Fargo Bank,

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N.A., No. 10-2123, 2011 WL 1466944, at *2 (E.D. Cal. Apr. 18, 2011) (citing Fantasy, 984 F.2d

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at 1527–28). However, “[m]otions to strike are disfavored and infrequently granted.” Neveu v.

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City of Fresno, 392 F. Supp. 2d 1159, 1170 (E.D. Cal. 2005) (citations omitted). Indeed, a

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motion to strike “‘should not be granted unless it is clear that the matter to be stricken could have

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no possible bearing on the subject matter of the litigation.’” Id. (quoting Colaprico v. Sun

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Microsystems, Inc., 758 F. Supp. 1335, 1339 (N.D. Cal. 1991)); see also Wynes v. Kaiser
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Permanente Hospitals, No. 10-00702, 2011 WL 1302916, at *12 (E.D. Cal. Mar. 31, 2011)

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(noting “courts often require a showing of prejudice by the moving party”).

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In ruling on a motion to strike, a “court[] may not resolve disputed and substantial factual

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or legal issues . . . .” Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010)

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(internal quotation omitted). Finally, “leave to amend should be freely given” unless there is a

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showing of prejudice to the moving party. See Wyshak v. City Nat’l Bank, 607 F.2d 824, 826–27

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(9th Cir. 1979) (citing Fed. R. Civ. P. 15(a)) (other citations omitted).

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B.

Analysis

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The District moves to strike paragraphs eight, seventeen, and twenty-one of the complaint,

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Mot. at 2, arguing Griggs “attempts to bring in alleged events that occurred outside of any EEOC

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complaint [or] statutory period for any cause of action alleged pled here,” id. at 6.

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Paragraph eight describes how two Caucasian men “with significantly less education and

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relevant work experience than [Griggs]” were promoted to HRSA positions without a competitive

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hiring process. Compl. ¶ 8. One promotion took place in July 2012 and the other in September

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2013. Id. The District argues any adverse employment action related to these events occurred

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several years beyond the 300-day window opened by virtue of Griggs’s EEOC charges. Mot.

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at 2. Griggs argues these incidents are “relevant background evidence in a proceeding in which

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the status of a current practice is at issue.” Opp’n at 11 (quoting United Air Lines, Inc. v. Evans,

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431 U.S. 553, 558 (1977)). Although discrete discriminatory acts are not actionable if untimely,

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Title VII’s exhaustion requirements do not “bar an employee from using the prior acts as

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background evidence to support a timely claim.” Morgan, 536 U.S. at 102. Following Morgan,

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the Ninth Circuit confirmed plaintiffs may offer evidence of past acts of discrimination as

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background evidence. Lyons, 307 F.3d at 1111–12 (allowing, as background, statistical

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information and other evidence of discriminatory practices). Griggs’s allegations about

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Caucasian male comparators provide relevant background and may have a “possible bearing on

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the subject matter of the litigation.” Neveu, 392 F. Supp. 2d at 1170. The motion to strike

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paragraph eight is denied.

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Next, the District moves to strike references to Charge #2 and Positions #2 to #5 in

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paragraphs seventeen and twenty-one, respectively. Mot. at 6–7. It argues the allegations

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supporting Charge #2 serve no purpose but to complicate the issues, id. at 6, because Charge #2

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“was not timely as to any of the Job Positions at issue in [Griggs’] Complaint,” id. at 2.

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Similarly, it argues the references to Positions ## 2 to 5 are irrelevant because Griggs did not file

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a timely EEOC charge that covered these positions, id. at 2. As the court has concluded above,

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the claims based on Charge #2 and Position ## 2 to 5 may be viable, so they may have a “possible

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bearing on the subject matter of the litigation.” Neveu, 392 F. Supp. 2d at 1170. The motion to

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strike these paragraphs is denied as well.

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V.

CONCLUSION
The motion to dismiss and to strike is denied in part and granted in part with leave to

amend as follows:


Claim two for sex discrimination is dismissed with leave to amend with respect

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to the allegations based on Charge #1 and Position #2. The motion to dismiss the

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sex discrimination claim is otherwise denied.

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Claim three for retaliation is dismissed with leave to amend.

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The motion to strike is denied.

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This order resolves ECF No. 6.

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IT IS SO ORDERED.

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DATED: April 23, 2021.

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