Moore v. Donahoe et al
Filing
38
ORDER GRANTING 32 Defendant's Motion for Judgment on the Pleadings and DISMISSING WITHOUT PREJUDICE Plaintiff's complaint. Plaintiff may file a First Amended Complaint within 21 days from the date of this order. Signed by Magistrate Judge Laurel Beeler on 7/19/2012.(lblc2, COURT STAFF) (Filed on 7/19/2012) (Additional attachment(s) added on 7/19/2012: # 1 Certificate/Proof of Service) (ls, COURT STAFF).
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
Northern District of California
10
San Francisco Division
LONNIE MOORE III,
12
For the Northern District of California
UNITED STATES DISTRICT COURT
11
No. C 11-05517 LB
Plaintiff,
ORDER GRANTING DEFENDANT’S
MOTION FOR JUDGMENT ON THE
PLEADINGS
v.
13
PATRICK R DONAHOE,
14
15
[Re: ECF No. 32]
Defendant.
_____________________________________/
16
17
I. INTRODUCTION
Plaintiff Lonnie Moore III (“Mr. Moore”) brings this employment discrimination action against
18
Defendant Patrick Donahoe (“Defendant”) in his official capacity as Postmaster General of the
19
United States Postal Service (“USPS”). Defendant now moves under Federal Rule of Civil
20
Procedure 12(c) for judgment on the pleadings. Upon consideration of the papers submitted and the
21
parties’ arguments at the July 19, 2012 hearing, the court GRANTS Defendant’s motion and
22
DISMISSES Mr. Moore’s complaint WITHOUT PREJUDICE.
II. BACKGROUND1
23
24
Mr. Moore was employed by the USPS as a Letter Carrier at its Bayview Station in San
25
26
27
28
1
Because Mr. Moore’s complaint contains very few factual allegations, the “Background”
section of this order is based not only on the allegations in the complaint but on the complete version
of the EEOC’s Dismissal of Formal EEO Complaint (of which Mr. Moore attached two of six pages
to his complaint). See Complaint, ECF No. 1; Sladden Declaration, Ex. A, ECF No. 32-1.
C 11-05517 LB
ORDER
1
Francisco, California. Sladden Declaration, Ex. A, ECF No. 32-1 at 5. On April 12, 2011, Mr.
2
Moore, along with a union representative, participated in an investigative interview regarding his
3
irregular attendance. Id. at 4-5. On April 22, 2011, the USPS issued a formal Letter of Removal to
4
Mr. Moore. Id. at 4.2 Mr. Moore signed the Letter of Removal that same day. Id.
5
On July 1, 2011—70 days after he signed the Letter of Removal—Mr. Moore contacted the EEO
6
and requested pre-complaint processing. Id. at 5. He was issued a Notice of Right to File an
7
Individual Complaint of Discrimination on August 31, 2011. Id.
American), color (black), sex (male), retaliation (unspecified) and disability (“I was sick.”). Id. at 4.
10
On September 26, 2011, the EEOC issued a Dismissal of Formal EEO Complaint that dismissed Mr.
11
Moore’s complaint because he did not make initial contact with the EEO within 45 days of the
12
For the Northern District of California
Mr. Moore did so on September 12, 2011. Id. He alleged discrimination based on race (African-
9
UNITED STATES DISTRICT COURT
8
allegedly discriminatory act—here, his removal on April 22, 2011. Id. at 5 (citing 29 C.F.R. §
13
1614.10(a)(1)). The Dismissal stated that Mr. Moore either could file an appeal with the EEOC
14
within 30 days of his receipt of the Dismissal, or he could file a civil action with the appropriate
15
United States District Court within 90 days of his receipt of the Dismissal. Id. at 8-9.
16
It appears that Mr. Moore chose the latter option.3 He instituted this employment discrimination
17
action against Defendant in this court on November 14, 2011. Complaint, ECF No. 1. His form
18
complaint appears to allege violations of: (1) Title VII of the Civil Rights Act of 1964, as amended
19
(“Title VII”), 42 U.S.C. § 2000e et seq.; (2) the Americans with Disabilities Act of 1990 (“ADA”),
20
12 U.S.C. § 12101, et seq., as amended by the Americans with Disability Act Amendments Act of
21
2008, P.L. 110-325; (3) and the Rehabilitation Act, 29 U.S.C. § 701, et seq. Id. at 1-2. He alleges
22
23
24
25
26
27
28
2
Although the Letter of Removal was issued to Mr. Moore on April 22, 2011, it is dated
April 20, 2011. Sladden Declaration, Ex. A, ECF No. 32-1 at 4.
3
Along with the first and sixth pages of the Dismissal, Mr. Moore also attached a three-page
document dated October 11, 2011 that is titled “Appeal to the Equal Employment Opportunity
Commission.” Complaint, ECF No. 1 at 6-8. In it, Mr. Moore states that his case is for disability
discrimination and is “not race[-]related.” Id. at 6; see also id. (“Stop saying my case is race[]related. It is clearly not! The EEOC meeting was not about race, but irregular attendance due to
my disability.”).
C 11-05517 LB
ORDER
2
1
Defendant failed to employ him, terminated his employment, and failed to promote him. Id. He also
2
alleges that the discrimination occurred on June 8, 2011, that he filed charges with the Federal Equal
3
Employment Opportunity Commission (“EEOC”) or the California Department of Fair Employment
4
and Housing (“DFEH”) on that same day, and that the EEOC issued a Notice-of-Right-to-Sue letter,
5
which he received on September 26, 2011. Id. at 2-3. He attached to his complaint the first and last
6
pages of the EEOC’s dismissal of his formal charges. Id. at 4-5. He did not attach the second, third,
7
fourth, and fifth pages of the dismissal.
8
On June 5, 2012, Defendant filed a motion under Federal Rule of Civil Procedure 12(c) for
even if he did, failed to timely exhaust his administrative remedies. Motion, ECF No. 32.4 On June
11
28, 2012, Mr. Moore timely filed an opposition to Defendant’s motion. Opposition, ECF No. 33;
12
For the Northern District of California
judgment on the pleadings, asserting that Mr. Moore failed to allege facts to support his claims, and,
10
UNITED STATES DISTRICT COURT
9
see Fed. R. Civ. P. 6(d); N.D. Cal. Civ. L.R. 7-3(a). He then filed a supplemental opposition.
13
Supplemental Opposition, ECF No. 34. Defendant’s reply addressed both of Mr. Moore’s
14
oppositions. Reply, ECF No. 36. On July 19, 2012, the court held a hearing on Defendant’s motion.
15
7/19/2012 Minute Order, ECF No. 37.
16
III. LEGAL STANDARD
17
“After the pleadings are closed—but early enough not to delay trial—a party may move for
18
judgment on the pleadings.” Fed. R. Civ. P. 12(c). “[T]he same standard of review applicable to a
19
Rule 12(b) motion applies to its Rule 12(c) analog,” because the motions are “functionally
20
identical.” Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). A Rule 12(c)
21
motion may thus be predicated on either: (1) the lack of a cognizable legal theory; or (2) insufficient
22
facts to support a cognizable legal claim. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699
23
(9th Cir. 1990). When considering a motion to dismiss under Rule 12(c), the court “must accept all
24
factual allegations in the complaint as true and construe them in the light most favorable to the
25
4
26
27
28
Defendant brings his motion pursuant to Federal Rule of Civil Procedure 12(b)(1) (lack of
subject-matter jurisdiction), (12(b)(6) (failure to state a claim upon which relief can be granted),
12(c) (judgment on the pleadings), and 12(h)(3) (lack of subject-matter jurisdiction). Because
Defendant has already answered Mr. Moore’s complaint, all of these bases are properly examined as
a motion pursuant to Rule 12(c).
C 11-05517 LB
ORDER
3
1
non-moving party.” Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “A judgment on the
2
pleadings is proper if, taking all of [plaintiff]’s allegations in its pleadings as true, [defendant] is
3
entitled to judgment as a matter of law.” Compton Unified School Dist. v. Addison, 598 F.3d 1181,
4
1185 (9th Cir. 2010).
5
Although a court generally is confined to the pleadings on a Rule 12(c) motion, “[a] court may,
by reference in the complaint, or matters of judicial notice—without converting the motion to
8
dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.
9
2003); In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir. 1999). The Ninth Circuit
10
has “extended the ‘incorporation by reference’ doctrine to situations in which the plaintiff’s claim
11
depends on the contents of a document, the defendant attaches the document to its motion to dismiss,
12
For the Northern District of California
however, consider certain materials—documents attached to the complaint, documents incorporated
7
UNITED STATES DISTRICT COURT
6
and the parties do not dispute the authenticity of the document, even though the plaintiff does not
13
explicitly allege the contents of that document in the complaint.” Knievel v. ESPN, 393 F.3d 1068,
14
1076 (9th Cir.2005) (citing Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (holding that the
15
district court properly considered documents attached to a motion to dismiss that described the terms
16
of plaintiff's group health insurance plan, where plaintiff alleged membership in the plan, his claims
17
depended on the conditions described in the documents, and plaintiff never disputed their
18
authenticity); Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002) (taking into account newspaper
19
article containing allegedly defamatory statement under the “incorporation by reference” doctrine
20
where it was “central” to plaintiff's claim, defendant attached it to the motion for judgment on the
21
pleadings, and plaintiff did not contest its authenticity)).
22
23
24
IV. DISCUSSION
A. Scope of the Instant Action
As an initial matter, Defendant challenges the scope of the action before the court. Motion, ECF
25
No. 32 at 9. He argues that Mr. Moore’s race, color, and sex discrimination claims should be
26
disregarding and dismissed because Mr. Moore stated in his October 11, 2011 “Appeal to the Equal
27
Employment Opportunity Commission” that his claim is for disability discrimination only. Id.
28
(citing Complaint, ECF No. 1 at 6). It is true that Mr. Moore’s October 11, 2001 appeal letter says
C 11-05517 LB
ORDER
4
1
this, but the EEOC’s Dismissal mentions race, color, and sex discrimination claims, and Mr.
2
Moore’s federal complaint alleges Title VII violations.5 In light of this ambiguity, the court will
3
address all of Mr. Moore’s potential claims here.
4
B. The Sufficiency of Mr. Moore’s Claims
5
1. Mr. Moore’s Claims for Race, Color, and Sex Discrimination
6
Title VII provides that:
7
It shall be an unlawful employment practice for an employer—
8
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex, or
national origin; or
9
10
12
For the Northern District of California
UNITED STATES DISTRICT COURT
11
(2) to limit, segregate, or classify his employees or applicants for employment in any
way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of such
individual’s race, color, religion, sex, or national origin.
13
14
42 U.S.C. § 2000e-2(a). “The emphasis of both the language and the legislative history of the
15
statute is on eliminating discrimination in employment; similarly situated employees are not to be
16
treated differently solely because they differ with respect to race, color, religion, sex, or national
17
origin.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 71 (1977).
18
To establish a prima facie case of employment discrimination under Title VII, Mr. Moore must
19
prove that (1) he belongs to a protected class, (2) he was qualified for the job (or promotion or other
20
benefit at issue), (3) he was subject to an adverse employment action, and (4) similarly-situated
21
individuals outside his protected class were treated more favorably. See Leong v. Potter, 347 F.3d
22
1117, 1124 (9th Cir. 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
23
Though heightened pleading standards are not mandated in Title VII cases, Mr. Moore must plead
24
sufficient facts to state the elements of a prima facie case of discrimination. Johnson v. Riverside
25
26
27
28
5
“The jurisdictional scope of a Title VII claimant’s court action depends upon the scope of
both the EEOC charge and the EEOC investigation.” Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th
Cir. 1990) (citing Green v. Los Angeles County Superintendent of Sch., 883 F.2d 1472, 1476 (9th
Cir. 1989)); see EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994).
C 11-05517 LB
ORDER
5
1
Healthcare System, LP, 534 F.3d 1116, 1122 (9th Cir. 2008) (citing Williams v. Boeing Co., 517
2
F.3d 1120, 1130 (9th Cir. 2008)).
3
He has not. Although the EEOC’s dismissal states that he brought before it claims for race,
4
color, and sex discrimination, Sladden Declaration, Ex. A, ECF No. 32-1 at 4, his federal complaint
5
does not mention them at all, see generally Complaint, ECF No. 1. In fact, when given the
6
opportunity, on the form complaint he used, to indicate what type of discrimination he alleges, he
7
did not mark “My race or color,” “My religion,” “My sex,” or “My national origin,” and instead
8
only marked “Other as specified below.” Id. at 2. And aside from stating that Defendant violated
9
Title VII, Mr. Moore’s complaint contains no factual allegations relating to race, color, or sex
2011 “Appeal to the Equal Employment Opportunity Commission” states that his claim is for
12
For the Northern District of California
discrimination whatsoever. See generally id. In addition, as noted above, Mr. Moore’s October 11,
11
UNITED STATES DISTRICT COURT
10
disability discrimination only. Id. at 6. Therefore, because Mr. Moore alleges no facts to support his
13
race, color, and sex discrimination claims—and because he even appears to disavow them—they
14
must be dismissed.
15
2. Mr. Moore’s Claim for Retaliation
16
Title VII also provides that:
17
18
19
It shall be an unlawful employment practice for an employer to discriminate against
any of his employees . . . to discriminate against any individual, or for a labor
organization to discriminate against any member thereof or applicant for membership,
because he has opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter.
20
21
22
42 U.S.C. § 2000e-3(a).
To establish a prima facie case of retaliation under Title VII, Mr. Moore must prove that (1) he
23
engaged in a protected activity, (2) he suffered an adverse employment decision, and (3) there was a
24
causal link between the protected activity and the adverse employment decision. See Villiarimo v.
25
Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002).
26
Mr. Moore fails to sufficiently allege a retaliation claims. While the EEOC’s Dismissal states
27
that Mr. Moore brought before it an unspecified retaliation claim, Sladden Declaration, Ex. A, ECF
28
No. 32-1 at 4, he alleges no facts—such as that he engaged in a protected activity and that it was
C 11-05517 LB
ORDER
6
1
causally linked to his removal—in his federal complaint in support of it. Therefore, because Mr.
2
Moore alleges no facts to support his retaliation claim, it must be dismissed.
3
3. Mr. Moore’s Claim for Disability Discrimination
4
It appears from his federal complaint that Mr. Moore brings a disability discrimination claim
5
under both the ADA and the Rehabilitation Act. See Complaint, ECF No. 1 at 2. The Ninth Circuit
6
has held that Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, provides the exclusive remedy
7
for federal employees claiming discrimination based on disability. Johnston v. Horne, 875 F.2d
8
1415, 1420 (9th Cir. 1989), overruled on other grounds, Irwin v. Dep’t of Veterans Affairs, 498 U.S.
9
89 (1990). Thus, to the extent that Mr. Moore’s disability discrimination claim is based on the
10
To state a prima facie case of disability discrimination under the Rehabilitation Act, Mr. Moore
12
For the Northern District of California
UNITED STATES DISTRICT COURT
11
ADA, it must be dismissed with prejudice.6
must demonstrate that (1) he is a person with a disability (2) who is otherwise qualified for
13
employment and (3) suffered discrimination because of his disability. Walton v. United States
14
Marshals Service, 492 F.3d 998, 1005 (9th Cir. 2007) (citing Wong v. Regents of the Univ. of Cal.,
15
410 F.3d 1052, 1058 (9th Cir. 2005)).
16
Mr. Moore does not sufficiently allege a claim under the Rehabilitation Act. For one, nowhere
17
in his federal complaint does he identify or allege facts to demonstrate a “disability,” which, with
18
respect to an individual, is defined in the ADA as: “(A) a physical or mental impairment that
19
substantially limits one or more major life activities of such individual; (B) a record of such an
20
impairment; or (C) being regarded as having such an impairment . . . .” 42 U.S.C. § 12102(2); see
21
generally Complaint, ECF No. 1. The court does note that Mr. Morrow apparently suggested, in his
22
EEOC complaint, that his disability is that he simply was “sick,” but this condition, as pled (there is
23
no suggestion that his being sick was anything other than normal, temporary illness), whether actual
24
or perceived, cannot be considered a disability because it was not permanent or long-term in nature.
25
The ADA definition of “disability” does not cover “transient, nonpermanent condition[s].”
26
27
28
6
Just to be clear, the dismissal of Mr. Moore’s ADA claim does not affect the court’s inquiry
regarding liability because the Rehabilitation Act is governed by the same liability standards as the
ADA. See Coons v. Sec’y of the U.S. Dep’t of the Treasury, 383 F.3d 879, 884 (9th Cir. 2004).
C 11-05517 LB
ORDER
7
1
McDonald v. Com. of Pa., Dep’t of Public Welfare, 62 F.3d 92, 97 (3d Cir. 1995). “Temporary
2
medical conditions do not constitute disabilities under the ADA.” Barnes v. Homes, 2000 WL
3
558641, at *6 (N.D. Cal. May 4, 2000) (citing McDonald, in which the Third Circuit rejected a
4
claim of plaintiff who suffered “severe abdominal pain” for two month period) (additional citations
5
omitted); see also McGuire v. Dobbs Intern. Services, Inc., 232 F.3d 895, 2000 WL 1036043, at *1-
6
2 (9th Cir. 2000) (plaintiff’s headaches and back pain, which kept him out of full-time employment
7
for, at most, a two-month period, was not a “disability,” because “‘[t]emporary, non-chronic
8
impairments of short duration, with little or no long term or permanent impact, are usually not
9
disabilities.’”) (quoting 29 C.F.R. App. 1630, at 13).
10
Nor does Mr. Moore allege facts to demonstrate that he is a “qualified individual” who, with or
without reasonable accommodation for his “disability,” is capable of performing the essential
12
For the Northern District of California
UNITED STATES DISTRICT COURT
11
functions of his job. “The term ‘qualified,’ with respect to an individual with a disability, means that
13
the individual satisfies the requisite skill, experience, education and other job-related requirements
14
of the employment position such individual holds or desires and, with or without reasonable
15
accommodation, can perform the essential functions of such position.” 29 C.F.R. § 1630.2(m).
16
“The term essential functions means the fundamental job duties of the employment position the
17
individual with a disability holds or desires. The term ‘essential functions' does not include the
18
marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1).
19
For these reasons, Mr. Moore fails to sufficiently allege a claim for disability discrimination
20
under the Rehabilitation Act, and it must be dismissed.
21
C. Statute of Limitations
22
23
24
Defendant argues that Mr. Moore’s claims should be dismissed with prejudice because they are
time-barred. Motion, ECF No. 32 at 12-14.
In order to bring a claim under Title VII or the Rehabilitation Act7, a federal employee must
25
26
27
28
7
Because Mr. Moore’s ADA is dismissed with prejudice (because, as explained above,
Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, provides the exclusive remedy for federal
employees claiming discrimination based on disability, Johnston, 875 F.2d at 1420), only his Title
VII and Rehabilitation Act claims are addressed here.
C 11-05517 LB
ORDER
8
1
timely exhaust his or her available administrative remedies. See Cherosky v. Henderson, 330 F.3d
2
1243, 1245 (9th Cir. 2003) (Rehabilitation Act context); Lyons v. England, 307 F.3d 1092, 1105 (9th
3
Cir. 2002) (Title VII context). Under federal regulations promulgated by the EEOC, a federal
4
employee complaining of discrimination by a governmental agency “must consult a[n EEO]
5
Counselor prior to filing a complaint in order to try to informally resolve the matter,’ 29 C.F.R. §
6
1614.105(a), and he or she “must initiate contact with a Counselor within 45 days of the date of the
7
matter alleged to be discriminatory,” 29 C.F.R. § 1614.105(a)(1).8 “Although it does not carry the
8
full weight of statutory authority, failure to comply with this regulation has been held to be fatal to a
9
federal employee’s discrimination claim.” Lyons, 307 F.3d at 1105 (citing Johnson v. United States
10
The court does not believe that dismissal with prejudice is warranted, at least at this time. On
12
For the Northern District of California
UNITED STATES DISTRICT COURT
11
Treasury Dept., 27 F.3d 415, 416 (9th Cir.1994) (per curiam)).9
one hand, Mr. Moore signed the Letter of Removal on April 22, 2012, which would appear to have
13
triggered the start of the 45-day period within which Mr. Moore had to initiate the EEOC process.
14
8
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29 C.F.R. § 1614.105(a) provides in full:
(a) Aggrieved persons who believe they have been discriminated against on the basis of race, color,
religion, sex, national origin, age or handicap must consult a Counselor prior to filing a complaint in
order to try to informally resolve the matter.
(1) An aggrieved person must initiate contact with a Counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective
date of the action.
(2) The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of this
section when the individual shows that he or she was not notified of the time limits and was not
otherwise aware of them, that he or she did not know and reasonably should not have been known
that the discriminatory matter or personnel action occurred, that despite due diligence he or she was
prevented by circumstances beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the Commission.
9
Whether Mr. Moore timely initiated the EEO process is not a jurisdictional prerequisite.
See Irwin, 498 U.S. at 93-96. Nonetheless, if he failed to timely initiate the administrative process,
dismissal may be appropriate, though not for lack of subject-matter jurisdiction. Lyons, 307 F.3d at
1108 (holding that the plaintiff’s claims of discriminatory conduct that occurred more than 45 days
before initiating EEOC contact were time-barred). The time limit to initiate the EEO process, then,
“is treated like a statute of limitations for filing suit.” Johnson, 27 F.3d at 416.
C 11-05517 LB
ORDER
9
1
See 29 C.F.R. § 1614.105(a)(1). And Defendant submits a declaration of Mr. Moore’s purported
2
acting supervisor who states that Mr. Moore was specifically informed on April 22, 2012 that if he
3
wanted to file a formal complaint with the EEOC, he had to do so within 45 days. Chen Declaration,
4
ECF No. 32-2 at 2, ¶ 2. On the other hand, in his federal complaint, Mr. Moore alleges that the
5
discriminatory conduct he complains of occurred on June 8, 2011. Complaint, ECF No. 1 at 2. (Mr.
6
Moore did not offer to explanation for why that date—and not April 22, 2011—is the one on which
7
he was removed from his position.)
8
9
To rule in Defendant’s favor and find Mr. Moore’s claims time-barred, the court would need to
rely upon Mr. Chen’s declaration, and that would require converting Defendant’s motion for
here where Mr. Moore is proceeding pro se and the court has not yet provided him with explicit
12
For the Northern District of California
judgment on the pleadings to a motion for summary judgment.10 The court is unwilling to do this
11
UNITED STATES DISTRICT COURT
10
notice of the standards for summary judgment. (The court will do so now, as the court will
13
simultaneously issue, along with this order, its Notice regarding Legal Help Desk, Handbook for
14
Litigants without a Lawyer, and Legal Standards for Summary Judgment Motions.) Moreover,
15
given the confusion regarding the date the alleged discrimination occurred—April 22, 2011, as
16
Defendant argues, versus June 8, 2011, as Mr. Moore alleges—the court believes the best course of
17
action is to allow Mr. Moore to file a First Amended Complaint.11 The court then may take up
18
Defendant’s statute of limitations argument upon a more full record and with clear notice to Mr.
19
Moore.
20
21
22
23
24
25
26
27
28
10
The court would need to do so because the 45-day period can be extended “when the
individual shows that he or she was not notified of the time limits and was not otherwise aware of
them, that he or she did not know and reasonably should not have been known that the
discriminatory matter or personnel action occurred, that despite due diligence he or she was
prevented by circumstances beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the Commission.” 29 C.F.R. §
1614.105(a)(2). Defendant submits the declaration of Mr. Chen to show that Mr. Moore was aware
of the deadline, and so no extension would be appropriate.
11
The court does note that if Mr. Moore’s termination was effective on April 22, 2011, then
it would appear that his claims are time-barred. See 29 C.F.R. § 1614.105(a)(1). Indeed, the EEOC
dismissed Mr. Moore’s EEOC charges for exactly this reason. Sladden Declaration, ECF No. 32-1
at 5-7.
C 11-05517 LB
ORDER
10
1
2
V. CONCLUSION
Based on the foregoing, the court GRANTS Defendant’s motion and DISMISSES WITHOUT
3
PREJUDICE Mr. Moore’s complaint. He may file a First Amended Complaint within 21 days
4
from the date of this order.
5
IT IS SO ORDERED.
6
Dated: July 19, 2012
_______________________________
LAUREL BEELER
United States Magistrate Judge
7
8
9
10
12
For the Northern District of California
UNITED STATES DISTRICT COURT
11
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
C 11-05517 LB
ORDER
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?