Gray v. Shineseki

Filing 29

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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 ROCHELLE Y. GRAY, 8 Plaintiff, v. 9 10 ERIC K. SHINSEKI, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND [Docket No. 23] Defendant. 11 United States District Court Northern District of California Case No.: C-12-03109 JCS 12 13 I. INTRODUCTION 14 Plaintiff Rochelle Y. Gray brings this civil rights action against Eric K. Shinseki, 15 Secretary of Department of Veterans Affairs, contending Defendant discriminated against her in 16 the workplace based on race, sex, color, national origin, and age in violation of Title VII of the 17 Civil Rights Act, 42 U.S.C. §§ 2000 et seq. Defendant filed a Motion to Dismiss (“Motion”) 18 seeking dismissal of the Complaint, in its entirety, on the ground that Gray failed to timely file 19 the Complaint in this action within the ninety days allowed by federal statute. The Court finds 20 that the Motion is suitable for determination without oral argument pursuant to Civil Local Rule 21 7-1(b) and therefore vacates the motion hearing set for Friday, June 14, 2013. For the reasons 22 stated below, the Court GRANTS Defendant’s Motion to Dismiss and DISMISSES the Complaint 23 with prejudice.1 24 25 26 27 28 1 The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c). 1 II. BACKGROUND 2 A. Factual Allegations 3 On June 15, 2012, Gray filed a Complaint (“Compl.”) as a pro se plaintiff. She alleges 4 she was discriminated against on the basis of race, sex, color, national origin, age, and reprisal in 5 her employment as a pharmacist with the U.S. Department of Veterans Affairs (“Agency”) when 6 she was reassigned from the Livermore Division to the Menlo Park Division on or about August 7 6, 2009. Compl. at 1-2; Plaintiff’s Response to Motion (“Opp.”) ¶ 7. Plaintiff asserts that a 8 younger, non-African American pharmacist was assigned to her previous job in Livermore when 9 she, a senior pharmacist and the only African-American pharmacist in Livermore, was reassigned. 10 United States District Court Northern District of California 11 Compl. at 2. Plaintiff’s claim was considered first by an Administrative Judge (“AJ”) of the Equal 12 Employment Opportunity Commission (“EEOC”), who issued a decision in favor of the Agency. 13 Id. at 4. Plaintiff appealed the AJ’s decision, which the EEOC affirmed in Rochelle Y. Gray v. 14 Department of Veterans Affairs, EEOC Appeal No. 0120112673 (Sept. 16, 2011). Id. Plaintiff 15 then requested the EEOC reconsider its appellate decision. Id. The EEOC denied Plaintiff’s 16 request for reconsideration, which exhausted her right to administrative appeal of the decision. 17 Id. at 5. The EEOC issued a Notice of Right to Sue letter on March 9, 2012. Id. The letter, a 18 copy of which Plaintiff filed with the Complaint, advised Plaintiff of her right to file a civil action 19 within ninety calendar days from the date she received the letter. Id. Plaintiff attests that she 20 received the EEOC’s letter on March 15, 2012. Id. at 3. 21 B. Defendant’s Motion to Dismiss 22 On April 5, 2013, Defendant filed the instant Motion seeking dismissel of the Gray’s 23 Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim 24 upon which relief may be granted. Motion at 1-2. Defendant contends Gray did not file the 25 Complaint within ninety calendar days of receiving the Right to Sue letter from the EEOC, as 26 required by 42 U.S.C. § 2000e-5(f)(1). Id. at 2. Defendant argues Gray would have had to file a 27 complaint by June 13, 2012, in order for the Court to consider it timely filed. Id. at 3. Defendant 28 2 1 asserts that the Complaint is time-barred from the Court’s consideration because Plaintiff filed it 2 on June 15, 2012. Id. Defendant contends that the Ninth Circuit strictly enforces the ninety-day time 3 4 requirement, as does the Northern District of California. Id. at 4-5. Defendant asserts that pro se 5 plaintiffs are treated no differently than represented plaintiffs in such matters and urges the Court 6 to strictly enforce the time limit in spite of Plaintiff’s pro se status. Id. Defendant further argues 7 that Gray cannot cure the alleged deficiency by amending the Complaint and asks the Court to 8 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 9 alleged discrimination at length. However, she offered no explanation for failing to timely file 11 United States District Court Northern District of California 10 her Complaint in this action. Defendant filed a Reply on April 25, 2013. 12 III. LEGAL STANDARD A complaint may be dismissed for failure to state a claim for which relief can be granted 13 14 under Rule 12(b)(6) of the Federal Rules of Civil Procedure. “The purpose of a motion to dismiss 15 under Rule 12(b)(6) is to test the legal sufficiency of the complaint.” N. Star. Int’l v. Ariz. Corp. 16 Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). In ruling on a motion to dismiss under Rule 17 12(b)(6), the Court takes “all allegations of material fact as true and construe(s) them in the light 18 most favorable to the non-moving party.” Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 19 (9th Cir. 1990). 20 8(a) of the Federal Rules of Civil Procedure, to survive a motion to dismiss under Rule 12(b)(6) a 21 plaintiff must allege facts sufficient to “state a claim to relief that is plausible on its face.” 22 Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 23 (2007)). 24 IV. While a plaintiff’s burden at the pleading stage is relatively light under Rule DISCUSSION 25 A. Statutory and Legal Authority 26 The limitation period for filing a Title VII civil rights claim is ninety days from the date of 27 receipt of a right-to-sue letter from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Nelmida v. Shelly 28 Eurocars, Inc., 112 F.3d 380, 383-84 (9th Cir. 1997). Where there is no equitable tolling of the 3 1 limitation period, courts strictly enforce the ninety-day period. See, e.g., Scholar v. Pacific Bell, 2 963 F.2d 264 (9th Cir. 1992) (holding that Title VII claim was time barred where complaint was 3 filed ninety-three days after plaintiff received right-to-sue letter); Payan v. Aramark 4 Management Services L.P., 495 F.3d 1119, 1121 (9th Cir. 2007) (same); Hemenway v. Shinseki, 5 2012 WL 2792440, at *10 (N.D. Cal. July 9, 2012) (same); Samiere v. San Francisco Unified 6 School District, 2007 WL 2214039, at *3 (N.D. Cal. Oct. 9, 2007) (holding that Title VII claim 7 was time barred where complaint was filed one day late). 8 Although the ninety-day period is subject to equitable tolling, that doctrine is “applied 9 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 11 United States District Court Northern District of California 10 court leading a plaintiff to believe she has done everything required of her. Baldwin County 12 Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984). On the other hand, the Court in Baldwin 13 made clear that “[o]ne who fails to act diligently cannot invoke equitable principles to excuse that 14 lack of diligence.” Id. The Court further cautioned that “[p]rocedural requirements established 15 by Congress for gaining access to the federal courts are not to be disregarded by courts out of a 16 vague sympathy for particular litigants.” Id. at 152. 17 A plaintiff’s pro se status does not mean she should be treated differently than a plaintiff 18 represented by counsel. Payan, 495 F.3d at 1127 (“Payan’s pro se status does not afford her 19 different treatment under these standards.”). Both the Payan and Baldwin plaintiffs were pro se, 20 and both were subject to strict enforcement of the statute of limitations. Moreover, “[a] pro se 21 plaintiff's failure to act diligently is not a reason to invoke equitable tolling.” Guevara v. Marriott 22 Hotel Servs., 2013 WL 1164961, at *6 (N.D. Cal. Mar. 20, 2013); see also Reyes-Vanegas v. 23 EEOC, 2007 WL 2019561, at *2 (N.D. Cal. July 6, 2007). 24 B. Application 25 In the Complaint, Plaintiff alleges that she received the right-to-sue letter from the EEOC 26 on March 15, 2012. Compl. at 2. Thus, it is undisputed that March 15, 2012 is the appropriate 27 starting date for calculating the limitations period. Using that date, the ninety-day period ended 28 4 1 Jun 13, 2012, which was not a holiday or weekend Plaintiff f ne n y d. filed the Com mplaint on J June 15, 2 201 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 3 4 ther are groun for findin equitable tolling. Ind re nds ng deed, she offe no expla fers anation of her failure to 5 tim file the complaint in this action. Nor does h April 11, 2013 letter to the Court suggest mely c n her t 6 that there is any basis for fi t y inding equita tolling. Rather, the Court finds that Plaintif able e s ff’s 7 unt timely filing of her Title VII claim re eflects a lack of diligenc and that th doctrine o equitable k ce he of 8 esto oppel does not apply. Accordingly, Plaintiff’s C n A Complaint is subject to d dismissal on the basis 9 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. 11 United States District Court Northern District of California 10 Hous. v. Law Sch. Admiss. Council, Inc 2013 WL 485830, at *7 (N.D. Ca Feb. 6, 20 S c., L al. 013) (leave 12 to amend need not be given if amendm would be futile); La v. Henders a n ment al son, 2004 W 724920, WL 13 at *2 (N.D. Cal March 24, 2004) (dism * l. missing comp plaint with p prejudice bec cause failure to file e 14 wit thin ninety days cannot be cured by amendment) d b a ). 15 V. 16 CONCL LUSION For the reasons state above, th Motion is GRANTED Plaintiff’s Complaint is ed he D. s 17 DIS SMISSED with prejudic w ce. 18 IT IS SO ORDERE O ED. 19 Dat May 6, 2013 ted: 20 ___ __________ ___________ ___ Jos seph C. Sper ro Un nited States M Magistrate Ju udge 21 22 23 24 25 26 27 28 5

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