Gray v. Shineseki
Filing
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ORDER by Judge Joseph C. Spero granting 23 Motion to Dismiss, vacating June 14, 2013 hearing and dismissing Complaint with prejudice (jcslc1, COURT STAFF) (Filed on 5/6/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ROCHELLE Y. GRAY,
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Plaintiff,
v.
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ERIC K. SHINSEKI,
ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS AND
DISMISSING COMPLAINT WITHOUT
LEAVE TO AMEND [Docket No. 23]
Defendant.
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United States District Court
Northern District of California
Case No.: C-12-03109 JCS
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I.
INTRODUCTION
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Plaintiff Rochelle Y. Gray brings this civil rights action against Eric K. Shinseki,
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Secretary of Department of Veterans Affairs, contending Defendant discriminated against her in
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the workplace based on race, sex, color, national origin, and age in violation of Title VII of the
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Civil Rights Act, 42 U.S.C. §§ 2000 et seq. Defendant filed a Motion to Dismiss (“Motion”)
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seeking dismissal of the Complaint, in its entirety, on the ground that Gray failed to timely file
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the Complaint in this action within the ninety days allowed by federal statute. The Court finds
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that the Motion is suitable for determination without oral argument pursuant to Civil Local Rule
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7-1(b) and therefore vacates the motion hearing set for Friday, June 14, 2013. For the reasons
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stated below, the Court GRANTS Defendant’s Motion to Dismiss and DISMISSES the Complaint
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with prejudice.1
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The parties have consented to the jurisdiction of the undersigned magistrate judge
pursuant to 28 U.S.C. § 636(c).
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II.
BACKGROUND
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A.
Factual Allegations
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On June 15, 2012, Gray filed a Complaint (“Compl.”) as a pro se plaintiff. She alleges
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she was discriminated against on the basis of race, sex, color, national origin, age, and reprisal in
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her employment as a pharmacist with the U.S. Department of Veterans Affairs (“Agency”) when
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she was reassigned from the Livermore Division to the Menlo Park Division on or about August
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6, 2009. Compl. at 1-2; Plaintiff’s Response to Motion (“Opp.”) ¶ 7. Plaintiff asserts that a
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younger, non-African American pharmacist was assigned to her previous job in Livermore when
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she, a senior pharmacist and the only African-American pharmacist in Livermore, was reassigned.
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United States District Court
Northern District of California
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Compl. at 2.
Plaintiff’s claim was considered first by an Administrative Judge (“AJ”) of the Equal
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Employment Opportunity Commission (“EEOC”), who issued a decision in favor of the Agency.
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Id. at 4. Plaintiff appealed the AJ’s decision, which the EEOC affirmed in Rochelle Y. Gray v.
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Department of Veterans Affairs, EEOC Appeal No. 0120112673 (Sept. 16, 2011). Id. Plaintiff
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then requested the EEOC reconsider its appellate decision. Id. The EEOC denied Plaintiff’s
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request for reconsideration, which exhausted her right to administrative appeal of the decision.
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Id. at 5. The EEOC issued a Notice of Right to Sue letter on March 9, 2012. Id. The letter, a
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copy of which Plaintiff filed with the Complaint, advised Plaintiff of her right to file a civil action
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within ninety calendar days from the date she received the letter. Id. Plaintiff attests that she
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received the EEOC’s letter on March 15, 2012. Id. at 3.
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B.
Defendant’s Motion to Dismiss
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On April 5, 2013, Defendant filed the instant Motion seeking dismissel of the Gray’s
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Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim
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upon which relief may be granted. Motion at 1-2. Defendant contends Gray did not file the
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Complaint within ninety calendar days of receiving the Right to Sue letter from the EEOC, as
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required by 42 U.S.C. § 2000e-5(f)(1). Id. at 2. Defendant argues Gray would have had to file a
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complaint by June 13, 2012, in order for the Court to consider it timely filed. Id. at 3. Defendant
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asserts that the Complaint is time-barred from the Court’s consideration because Plaintiff filed it
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on June 15, 2012. Id.
Defendant contends that the Ninth Circuit strictly enforces the ninety-day time
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requirement, as does the Northern District of California. Id. at 4-5. Defendant asserts that pro se
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plaintiffs are treated no differently than represented plaintiffs in such matters and urges the Court
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to strictly enforce the time limit in spite of Plaintiff’s pro se status. Id. Defendant further argues
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that Gray cannot cure the alleged deficiency by amending the Complaint and asks the Court to
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dismiss Plaintiff’s Complaint without leave to amend. Id. at 5.
On April 22, 2013, Gray filed a Response to the Motion. Gray discussed the facts of the
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alleged discrimination at length. However, she offered no explanation for failing to timely file
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United States District Court
Northern District of California
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her Complaint in this action. Defendant filed a Reply on April 25, 2013.
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III.
LEGAL STANDARD
A complaint may be dismissed for failure to state a claim for which relief can be granted
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under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “The purpose of a motion to dismiss
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under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star. Int’l v. Ariz. Corp.
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Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). In ruling on a motion to dismiss under Rule
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12(b)(6), the Court takes “all allegations of material fact as true and construe(s) them in the light
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most favorable to the non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484
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(9th Cir. 1990).
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8(a) of the Federal Rules of Civil Procedure, to survive a motion to dismiss under Rule 12(b)(6) a
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plaintiff must allege facts sufficient to “state a claim to relief that is plausible on its face.”
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Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547
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(2007)).
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IV.
While a plaintiff’s burden at the pleading stage is relatively light under Rule
DISCUSSION
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A. Statutory and Legal Authority
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The limitation period for filing a Title VII civil rights claim is ninety days from the date of
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receipt of a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Nelmida v. Shelly
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Eurocars, Inc., 112 F.3d 380, 383-84 (9th Cir. 1997). Where there is no equitable tolling of the
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limitation period, courts strictly enforce the ninety-day period. See, e.g., Scholar v. Pacific Bell,
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963 F.2d 264 (9th Cir. 1992) (holding that Title VII claim was time barred where complaint was
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filed ninety-three days after plaintiff received right-to-sue letter); Payan v. Aramark
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Management Services L.P., 495 F.3d 1119, 1121 (9th Cir. 2007) (same); Hemenway v. Shinseki,
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2012 WL 2792440, at *10 (N.D. Cal. July 9, 2012) (same); Samiere v. San Francisco Unified
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School District, 2007 WL 2214039, at *3 (N.D. Cal. Oct. 9, 2007) (holding that Title VII claim
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was time barred where complaint was filed one day late).
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Although the ninety-day period is subject to equitable tolling, that doctrine is “applied
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sparingly.” Scholar, 963 F.2d at 268. Circumstances that have been found to give rise to
equitable tolling include inadequate notice, a pending motion for appointment of counsel and the
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United States District Court
Northern District of California
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court leading a plaintiff to believe she has done everything required of her. Baldwin County
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Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984). On the other hand, the Court in Baldwin
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made clear that “[o]ne who fails to act diligently cannot invoke equitable principles to excuse that
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lack of diligence.” Id. The Court further cautioned that “[p]rocedural requirements established
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by Congress for gaining access to the federal courts are not to be disregarded by courts out of a
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vague sympathy for particular litigants.” Id. at 152.
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A plaintiff’s pro se status does not mean she should be treated differently than a plaintiff
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represented by counsel. Payan, 495 F.3d at 1127 (“Payan’s pro se status does not afford her
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different treatment under these standards.”). Both the Payan and Baldwin plaintiffs were pro se,
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and both were subject to strict enforcement of the statute of limitations. Moreover, “[a] pro se
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plaintiff's failure to act diligently is not a reason to invoke equitable tolling.” Guevara v. Marriott
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Hotel Servs., 2013 WL 1164961, at *6 (N.D. Cal. Mar. 20, 2013); see also Reyes-Vanegas v.
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EEOC, 2007 WL 2019561, at *2 (N.D. Cal. July 6, 2007).
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B.
Application
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In the Complaint, Plaintiff alleges that she received the right-to-sue letter from the EEOC
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on March 15, 2012. Compl. at 2. Thus, it is undisputed that March 15, 2012 is the appropriate
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starting date for calculating the limitations period. Using that date, the ninety-day period ended
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Jun 13, 2012, which was not a holiday or weekend Plaintiff f
ne
n
y
d.
filed the Com
mplaint on J
June 15,
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201 two days later. Id. at 1. Therefore, the Cour finds that t Complain was not ti
12,
s
t
rt
the
nt
imely filed.
Further, Plaintiff do not allege in the com
,
oes
mplaint or sug
ggest in her Opposition b
brief that
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ther are groun for findin equitable tolling. Ind
re
nds
ng
deed, she offe no expla
fers
anation of her failure to
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tim file the complaint in this action. Nor does h April 11, 2013 letter to the Court suggest
mely
c
n
her
t
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that there is any basis for fi
t
y
inding equita tolling. Rather, the Court finds that Plaintif
able
e
s
ff’s
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unt
timely filing of her Title VII claim re
eflects a lack of diligenc and that th doctrine o equitable
k
ce
he
of
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esto
oppel does not apply. Accordingly, Plaintiff’s C
n
A
Complaint is subject to d
dismissal on the basis
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that it is time-b
t
barred. Furth because the Court fi
her,
inds that ame
endment of P
Plaintiff’s C
Complaint is
futi the Cour dismisses Plaintiff’s co
ile,
rt
P
omplaint wit prejudice. See Dept. of Fair Emp &
th
.
p’t.
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United States District Court
Northern District of California
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Hous. v. Law Sch. Admiss. Council, Inc 2013 WL 485830, at *7 (N.D. Ca Feb. 6, 20
S
c.,
L
al.
013) (leave
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to amend need not be given if amendm would be futile); La v. Henders
a
n
ment
al
son, 2004 W 724920,
WL
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at *2 (N.D. Cal March 24, 2004) (dism
*
l.
missing comp
plaint with p
prejudice bec
cause failure to file
e
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wit
thin ninety days cannot be cured by amendment)
d
b
a
).
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V.
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CONCL
LUSION
For the reasons state above, th Motion is GRANTED Plaintiff’s Complaint is
ed
he
D.
s
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DIS
SMISSED with prejudic
w
ce.
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IT IS SO ORDERE
O
ED.
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Dat May 6, 2013
ted:
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___
__________
___________
___
Jos
seph C. Sper
ro
Un
nited States M
Magistrate Ju
udge
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