Hughes v. County of Mendocino

Filing 24

ORDER by Judge ARMSTRONG granting 5 Motion to Dismiss; granting 11 Motion to Dismiss (lrc, COURT STAFF) (Filed on 10/12/2011)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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5 PAMELA HUGHES,

Plaintiff,

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vs.

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Case No: C 11-1319 SBA
ORDER
Docket 5, 11

8 COUNTY OF MENDOCINO, et al.,

Defendants.

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Plaintiff Pamela Hughes (“Plaintiff”) brings the instant disability discrimination and

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retaliation action under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101,

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and the California Fair Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12900.

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The parties are presently before the Court on Defendant County of Mendocino’s

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(“Defendant”) motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure

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to state a claim. Dkt. 5, 11. Having read and considered the papers filed in connection with

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this matter and being fully informed, the Court hereby GRANTS WITH LEAVE TO

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AMEND Defendant’s motion for the reasons set forth below. The Court, in its discretion,

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finds this matter suitable for resolution without oral argument. See Fed. R. Civ. P. 78(b).

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I.

BACKGROUND

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A.

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On October 13, 2002, the Public Health Department for the County of Mendocino

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hired Plaintiff as a Health Program Technician. Dkt. 1 ¶¶ 1, 11. On November 26, 2002,

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Plaintiff was injured when exiting a coworker’s office and walking “full force into the edge

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of an open door.” Id. ¶12. Plaintiff was taken to the hospital and she was diagnosed with a

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broken nose and closed head trauma. Id. Plaintiff filed a workers’ compensation claim. Id.

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¶14. After Plaintiff had noticeable changes in her work performance and had taken an

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extended leave of absence to heal from her injury, Plaintiff was eventually diagnosed on

FACTUAL BACKGROUND

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July 25, 2006 with organic brain damage secondary to the head trauma occurring in

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November 2002. Id. ¶19. Following several medical examinations, including those

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performed by psychiatrist Richard Lieberman, M.D., Plaintiff filed an application with

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Defendant for a service-connected disability retirement. Id. ¶22. On June 20, 2008, Dr.

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Lieberman recommended that Plaintiff be offered modified work at a library or museum.

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Id. ¶¶23, 26. On September 2, 2008, Plaintiff’s request for disability retirement was

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denied. Id. ¶28.

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On September 10, 2008, Defendant informed Plaintiff that a return-to-work meeting
had been scheduled. Id. ¶29. At the September 23, 2008 return-to-work meeting,

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Defendant took the position that Plaintiff was cleared to return to her job as a program

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technician and Plaintiff requested a modification of returning to work in a library or

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museum. Id. ¶31. Upon Plaintiff’s request, the return-to-work coordinator allegedly

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became “very hostile . . ., abruptly ending the meeting.” Id.

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On October 20, 2008, Defendant sent Plaintiff ADA/FEHA accommodations forms,

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which Plaintiff allegedly returned to Defendant. Id. ¶¶ 33-36. On December 29, 2008,

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Defendant terminated Plaintiff for job abandonment, asserting that Plaintiff had failed to

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return the required ADA/FEHA accommodation documents. Id. ¶38. On January 22,

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2009, Plaintiff filed a charge of disability discrimination and retaliation with the United

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States Equal Employment Opportunity Commission (“EEOC”). Id. ¶5. Plaintiff filed a

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separate charge with the California Department of Fair Employment and Housing

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(“DFEH”). Id. On October 26, 2009, Plaintiff received a right-to-sue notice from the

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DFEH. Id. On December 20, 2010, Plaintiff received her right-to-sue notice from the

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EEOC. Id.

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B.

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On March 18, 2011, within ninety days of receiving her EEOC right-to-sue notice,

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Plaintiff filed her complaint against Defendant. Id. Plaintiff asserts federal claims under

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the ADA, 42 U.S.C. § 12101, and state claims under the FEHA, Cal. Gov. Code § 12900,

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for disability discrimination and retaliation. Id.

PROCEDURAL BACKGROUND

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On April 20, 2011, Defendant filed a motion to dismiss under Federal Rule Civil

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Procedure 12(b)(6) for failure to state a claim. Dkt. 5, 11. In its opening papers, Defendant

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argues that Plaintiff’s federal and state claims are time barred because Plaintiff did not file

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the federal claims within ninety days of receiving the right-to-sue letter from the EEOC and

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did not file the state claims within one year of receiving the right-to-sue letter from the

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DFEH. Dkt. 5, 11. In connection with her opposition, Plaintiff produces a copy of the

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EEOC right-to-sue letter, showing that the letter was sent on December 20, 2010, and

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therefore Plaintiff has timely filed her federal claims. Dkt. 16. Ex. A. Thus, in its reply,

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Defendant withdraws its argument that the federal claims are time barred, but maintains

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that the state claims nevertheless are barred. Dkt. 21. Plaintiff argues that her claims are

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not time barred because they were equitably tolled. Dkt. 16.

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II.

LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6) a district court must dismiss a

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complaint if it fails to state a claim upon which relief may be granted. To survive a motion

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to dismiss for failure to state a claim, the plaintiff must allege “enough facts to state a claim

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to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

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(2007). When considering a motion to dismiss under Rule 12(b)(6), a court must take the

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allegations as true and construe them in the light most favorable to plaintiff. Outdoor

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Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 2007). The court

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“may generally consider only allegations contained in the pleadings, exhibits attached to

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the complaint, and matters properly subject to judicial notice[.]” Williston Basin Interstate

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Pipeline Co. v. An Exclusive Gas Storage Leasehold and Easement in the Cloverly

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Subterranean, Geological Formation, 524 F.3d 1090, 1096 (9th Cir. 2008); United States v.

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Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

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III.

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DISCUSSION
A party may move under Rule 12(b)(6) to dismiss claims for being time barred if the

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running of the statute of limitations is apparent from the face of the complaint. Von Saher

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v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010). The one-3-

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year time limit by which a plaintiff must file suit upon receipt of a right-to-sue letter from

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the DFEH acts as a statute of limitations. See Cal.Gov’t Code §§ 12965(b)&(d); Downs v.

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Dep’t of Water & Power, 58 Cal.App.4th 1093, 1099 (1997) (discussing equitable tolling

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principles that apply to the one-year time limit in Cal. Gov’t Code § 12965(b)). Thus, a

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defendant may raise the argument that a plaintiff’s FEHA claims are barred by failure to

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timely file suit after receipt of a right-to-sue letter from the DFEH through a Rule 12(b)(6)

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motion, if the running of that time period is apparent from the face of the complaint.

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However, the time to file a lawsuit after receipt of a right-to-sue letter from the

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DFEH may be equitably tolled if (1) the plaintiff timely files a charge of discrimination

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concurrently with the EEOC and the DFEH, (2) the DFEH defers the investigation of the

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charge to the EEOC, and (3) the DFEH issues a right-to-sue letter upon deferral to the

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EEOC’s investigation. Cal. Gov’t Code §§ 12965(d)(1)(A-C)&(d)(2); see also Downs v.

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Department of Water & Power of City of Los Angeles, 58 Cal.App.4th 1098 (1997). The

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time period is equitably tolled until the federal time period to commence suit or one year

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from the time the DFEH right-to-sue letter is issued, whichever is later. Id. §12965(d)(2).

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Defendant argues that Plaintiff’s FEHA claims are time barred because she filed her

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claims more than one year after receipt of the DFEH right-to-sue letter and that the

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equitable tolling principles in § 12965(d) do not apply because the DFEH did not defer its

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investigation to the EEOC. As support for its argument, Defendant relies on the charges of

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discrimination filed with the EEOC and DFEH, as well as the right-to-sue letters from both

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agencies. Dkt. 7, Exs. A-D.1 These documents do not specifically address the issue of

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whether the DFEH deferred its investigation to the EEOC. However, Plaintiff’s complaint

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also does not address any of the requirements of equitable tolling, and, in particular,

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whether the DFEH deferred its investigation to the EEOC. Because it is clear from the face

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Authority exists for taking judicial notice of the charges and right-to-sue letters, as
the contents of which are alleged in the complaint. Branch v. Tunnell, 14 F.3d 449, 454
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(9th Cir. 1994) (taking judicial notice of documents whose contents are alleged in the
27 complaint, but not physically attached to the complaint); Barber v. City of Crescent City, C
08-4883 CW, 2009 WL 733890 (N.D.Cal. March 17, 2009) (taking judicial notice of
28 discrimination charge and right-to-sue letters).
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of the complaint that Plaintiff’s FEHA claims were filed more than one year from receiving

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the right-to-sue letter from the DFEH and because it is not clear whether the principles of

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equitable tolling apply, the Court GRANTS Defendant’s motion to dismiss with leave to

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amend to give Plaintiff the opportunity to cure deficiencies pertaining to equitable tolling.

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IV.

CONCLUSION

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For all the foregoing reasons,

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IT IS HEREBY ORDERED THAT:

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1.

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Defendant’s motion to dismiss is GRANTED WITH LEAVE TO AMEND.

Plaintiff shall have twenty (20) days from the date this order is filed to file an amended

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complaint consistent with this order and her obligations under Federal Rule of Civil

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Procedure 11. Defendant shall have twenty (20) days from the date Plaintiff files an

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amended complaint to respond to the amended complaint.

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This Order terminates Docket 5 and 11.
IT IS SO ORDERED.

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Dated: October 6, 2011

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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