Silvia et al v. Verizon Communications, Inc. et al

Filing 135

ORDER by Magistrate Judge Jacqueline Scott Corley granting 111 Motion to Dismiss. (ahm, COURT STAFF) (Filed on 6/1/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DEBBIE SILVIA, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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v.
EA TECHINICAL SERVICES, INC., et al.,

Case No.15-cv-04677-JSC
ORDER GRANING DEFENDANTS’
MOTION TO DISMISS
Re: Dkt. No. 111

Defendants.

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This case concerns alleged unpaid wages and discrimination that Plaintiffs Debbie Silva

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and John Vieira (“Plaintiffs”) experienced while in the employ of Defendants MCI

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Communications Services, Inc. (“MCI”), Verizon Business Network Services Inc. (“Verizon”),

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Engineering Associates LLC f/k/a Engineering Associates Inc. (“EA”), and EA Technical Services

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(“EA Technical”) (collectively, “Defendants”).

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In their initial complaint, First Amended Complaint (“FAC”), and Second Amended

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Complaint (“SAC”) Plaintiffs pled nine causes of action, including two Fair Housing and

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Employment Act (“FEHA”) claims brought by Plaintiff Silva – gender discrimination in violation

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of California Government Code Section 12940(a) and failure to take all reasonable steps to

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prevent sexual harassment in violation of California Government Code Section 12940(k). (Dkt.

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Nos. 1-1, 37, 103.)

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Currently pending before the Court is Defendants MCI and Verizon’s (the “Verizon

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Defendants”) motion to dismiss Plaintiff Silva’s FEHA claims in causes of action eight and nine

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of the SAC. Having carefully reviewed the briefs and having had the benefit of oral argument on

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June 1, 2017, the Court finds that Plaintiff Silva failed to file a timely FEHA complaint with the

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Department of Fair Employment and Housing (“DFEH”) and GRANTS Verizon Defendants’

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motion to dismiss with prejudice.
BACKGROUND

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On August 21, 2015, Plaintiffs filed their original complaint in state court for breach of

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various sections of the California labor code, breach of contract, failure to pay prevailing wages,

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recovery under public works payment bond, and unjust enrichment. (Dkt. No. 1-1.) Plaintiff

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Silva brought two additional FEHA claims – discrimination, and failure to take reasonable steps to

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prevent sexual harassment. (Id. at 27, 28.) Defendants removed the action to this Court based on

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diversity and the parties subsequently stipulated to mediation and Robert T. Fries was selected as a

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mediator. (Dkt. Nos. 28, 31.)

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On March 18, 2016, the Court granted Defendant EA’s motion to dismiss with leave to

United States District Court
Northern District of California

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amend. (Dkt. No. 36.) Plaintiffs filed the FAC on April 8, 2016 with most of the original causes

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of action, including Plaintiff Silva’s two FEHA claims. (Dkt. No. 37.) On October 14, 2016, the

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parties attended an all-day mediation with Mr. Fries, however the matter was not resolved. (Dkt.

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No. 77.) Three weeks later, on November 4, 2016, Plaintiff Silva filed, for the first time, a

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discrimination complaint with DFEH complaining of inappropriate conduct that occurred on

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approximately October 14, 2016. (Dkt. No. 113-1 at 8.) However, the original complaint and the

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FAC alleged that Defendants’ adverse actions occurred on approximately June 28, 2015 and that

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Plaintiff Silva was forced to resign shortly thereafter. (Dkt. No. 1-1 at ¶¶ 14, 15; Dkt. No. 37 at ¶¶

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22, 23.)

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By stipulation of the parties, the Court granted Plaintiffs leave to file a second amended

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complaint to name MCI and Verizon as new defendants, and dismissed Frontier California Inc.

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f/k/a Verizon California, Inc. from the action. (Dkt. No. 102 at 2.) Plaintiffs’ SAC alleges nine

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causes of action, including the same FEHA claims Plaintiff Silva brought in the original complaint

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and the FAC. (Dkt. No. 103.) Plaintiff Silva also alleges, again in the SAC, that Defendants’

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adverse actions occurred on approximately June 28, 2015 and that she was forced to resign shortly

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thereafter. (Id. ¶¶ 22, 23.)

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The new defendants MCI and Verizon now move to dismiss Plaintiff Silva’s eighth and
ninth claims for relief on the grounds Plaintiff Silva failed to file a timely complaint with DFEH.
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(Dkt. No. 111.)
DISCUSSION

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I.

Judicial Notice
When considering a motion to dismiss, a court does not normally look beyond the

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complaint in order to avoid converting a motion to dismiss into a motion for summary

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judgment. Ngoc Nguyen v. Wells Fargo Bank, N.A., 749. F.Supp.2d 1022, 1024 (N.D. Cal. 2010).

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However, a court may take judicial notice of material that is submitted as part of the complaint or

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is necessarily relied upon by the complaint, as well as matters of public record. Lee v. City of

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L.A., 250 F.3d 668, 688–89 (9th Cir. 2001). Under Federal Rule of Evidence 201(b), a
“judicially noticed fact must be one not subject to reasonable dispute in that it is either: (1)

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United States District Court
Northern District of California

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generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and

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ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

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Courts routinely take judicial notice of proceedings in other courts and records of state agencies,

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including DFEH complaints. See Minor v. FedEx Office & Print Servs., Inc., 78 F. Supp. 3d 1021,

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1027 (N.D. Cal. 2015) (taking judicial notice of DFEH complaint).
Verizon Defendants request judicial notice of the Plaintiff Silva’s employment

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discrimination complaint filed with DFEH and the accompanying right to sue notice. These

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documents are records of a state agency, and therefore the appropriate subjects of judicial

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notice. See U.S. v. 14.02 Acres of Land More or Less in Fresno Cnty., 547 F.3d 943, 955 (9th Cir.

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2008) (“Judicial notice is appropriate for records and reports of administrative bodies.”) (internal

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quotation marks and citation omitted).

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II.

Plaintiff Failed to File a Timely FEHA Complaint With DFEH

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“In order to bring a civil action under FEHA, the aggrieved person must exhaust the

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administrative remedies provided by law.” Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th

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Cir. 2001.). Exhaustion in this context requires filing a written charge with DFEH within one year

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of the alleged unlawful employment discrimination, and obtaining notice from DFEH of the right

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to sue. Id. at 897. The scope of the written administrative charge defines the permissible scope of

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the subsequent civil action. Id. Allegations in the civil complaint that fall outside of the scope of
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the administrative charge are barred for failure to exhaust. Id. These procedural requirements, as

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with all provisions of FEHA, are to “be construed liberally for the accomplishment of the purposes

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[of FEHA].” Cal. Gov. Code § 12993(a). Those purposes include the elimination of employment

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discrimination. Rodriguez, 265 F.3d at 897.
Plaintiff Silvia states in her original complaint, the FAC, and the SAC that she experienced

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gender discrimination during the course of her employment and that Defendants failed to prevent

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this discrimination and took the adverse employment action of reducing her salary on

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approximately June 28, 2015, forcing her to resign shortly thereafter. (See Dkt. Nos. 1-1, 37,

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103.) Plaintiff Silva, however, did not file a FEHA complaint with DFEH until November 4,
2016. (Dkt. No. 113-1.) And within her FEHA complaint to DFEH, Plaintiff Silva states that the

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United States District Court
Northern District of California

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alleged discrimination occurred on approximately October 14, 2016. (Id. at 8.) However, Plaintiff

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Silva was not employed by Defendants on October 14, 2016. Therefore, the discrimination

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Plaintiffs alleged in the SAC falls outside the scope of the administrative charge and is barred for

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failure to exhaust. See Rodriguez, 265 F.3d at 897. Further, even if the Court construes the charge

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as identifying the date of discrimination as June 2015, the DFEH complaint is untimely as it was

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filed more than a year after the alleged discrimination. Indeed, Plaintiff Silva does not dispute that

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her DFEH complaint is untimely; instead, her opposition contends that the one-year deadline

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should be equitably tolled.

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III.

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Equitable Tolling Does not Apply
Equitable tolling allows a plaintiff who has a choice of legal remedies to pursue one

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remedy without simultaneously pursuing another remedy. McDonald v. Antelope Valley

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Community College District, 45 Cal.4th 88, 99–100 (2008); California Restaurant Management

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Systems v. City of San Diego, 195 Cal.App.4th 1581, 1593–1594 (2011). The doctrine relieves the

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plaintiff claiming employment discrimination from the hardship of pursuing duplicate and

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possibly unnecessary procedures to enforce the same rights or obtain the same relief. Downs v.

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Department of Water & Power, 58 Cal.App.4th 1093, 1100 (1997). The equitable tolling doctrine

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generally requires a showing that the plaintiff is seeking an alternate remedy in an established

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procedural context. McDonald, 45 Cal.4th at 102–104. Informal discussions and negotiations in
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the employment context do not equitably toll the Government Code Section 12960(d)

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FEHA statute of limitations to file an administrative complaint with the Department of Fair

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Housing and Employment. Acuna v. San Diego Gas & Electric Co., 217 Cal.App.4th 1402, 1416

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(2013).

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Plaintiff Silvia does not allege any facts showing she was pursuing an alternate remedy
that excused her from timely filing her administrative claim. The equitable tolling doctrine is

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inapplicable because the allegations do not support that Plaintiff’s discrimination claims were

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being considered or resolved in a separate procedural context. See Acuna, 217 Cal.App. 4th at

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1417. While the parties did attend an all-day mediation with Mr. Fries on October 14, 2016, this

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mediation alone does not justify equitable tolling. Plaintiff Silva submits the parties were engaged

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United States District Court
Northern District of California

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in a mediation process “with the intention of informally resolving the issues,” and that there were

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two mediation periods that totaled a period of 220 days; she contends that the FEHA

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administrative statute of limitations should be tolled for this period of time. Plaintiff herself

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identifies this process as “informal” - such informal discussions and negotiations do not equitably

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toll the FEHA statute of limitations to file an administrative complaint with DFEH. See Acuna,

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217 Cal.App.4th at 1416.
CONCLUSION

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As Plaintiff Silva failed to timely file a FEHA complaint with DFEH, and Plaintiff has not

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and cannot allege any facts to support equitable tolling, the Court GRANTS MCI and Verizon’s

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motion to dismiss the two FEHA claims without leave to amend.

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This Order disposes of Docket. No. 111.

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IT IS SO ORDERED.

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Dated: June 1, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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