Cato v. Community Job Program et al

Filing 27

ORDER DISMISSING CASE. Signed by Magistrate Judge Donna M. Ryu on 6/15/2012. (dmrlc2, COURT STAFF) (Filed on 6/15/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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MARK CATO,

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Plaintiff(s),

No. C-11-05156 DMR
ORDER DISMISSING CASE WITH
PREJUDICE

v.

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COMMUNITY JOB PROGRAM,

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Defendant(s).
___________________________________/

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Plaintiff Mark Cato brings this employment discrimination case against Defendants

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Community Job Program (“CJP”) and San Francisco Private Industry Council. [Docket No. 1.]

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According to the complaint, on or about July 20, 2005, a manager sexually harassed him during the

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course of his employment at the YMCA Café. After he reported the incident to CJP Employment

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Specialist Anna Kelleher, she reassigned him to work at Goodwill Industries. A month later, she

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tried to convince Plaintiff to return to his job at the café. According to Plaintiff, she threatened to

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terminate his relationship with CJP if he did not comply. When Plaintiff returned to the YMCA

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Café, the manager again sexually harassed him. After Plaintiff again complained to Kelleher about

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the sexual harassment, she expelled him from CJP.

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Plaintiff filed a complaint with the Federal Equal Employment Opportunity Commission
(“EEOC”) on March 29, 2011. On October 6, 2011, Plaintiff also filed a discrimination complaint

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with the California Department of Fair Employment and Housing (“DFEH”). Plaintiff claims to

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have received a Notice of Right to Sue letter from the EEOC on October 19, 2011.

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Plaintiff, proceeding pro se, brought suit in this Court on October 20, 2011, claiming, inter

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alia, job discrimination and retaliation on the basis of sex and race under Title VII, wrongful

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termination, unpaid wages, and the intentional infliction of emotional distress. The case originally

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was assigned to the Honorable Laurel Beeler. Plaintiff simultaneously filed a motion for leave to

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proceed in forma pauperis, which the court granted. [Docket Nos. 2, 6.] The U.S. Marshal

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attempted to serve Defendants on December 30, 2011, but failed because Plaintiff had not provided

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the correct address. [See Docket Nos. 8, 12.] On February 27, 2012, the court ordered Plaintiff to
provide the Court with correct addresses for Defendants. [Docket No. 13.] He provided new

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For the Northern District of California

United States District Court

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addresses on March 6, 2012. [Docket No. 16.] However, the U.S. Marshal again failed to serve

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Defendants because the addresses were incorrect. [Docket Nos. 19-20.] On June 5, 2012, Judge

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Beeler referred the matter to the undersigned to determine whether this case is related to Cato v.

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Goodwill Industries of San Francisco, C-11-2553 DMR. Because this case is identical to the

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earlier-filed case, the court related the two matters. For the reasons below, the court dismisses this

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case with prejudice.

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II. The Legal Standard for Dismissal for Failure to State a Claim
When evaluating whether to dismiss a case for failing to state a claim pursuant to Federal

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Rule of Civil Procedure 12(b)(6), the court must “accept as true all of the factual allegations

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contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation

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omitted), and may dismiss the case “only where there is no cognizable legal theory” or there is an

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absence of “sufficient factual matter to state a facially plausible claim to relief.” Shroyer v. New

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Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. Block, 250

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F.3d 729, 732 (9th Cir. 2001)) (quotation marks omitted) (citing Ashcroft v. Iqbal, 556 U.S. 662,

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678-79 (2009)). A claim has facial plausibility when a plaintiff “pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 556 U.S. at 678 (citation omitted). In other words, the facts alleged to demonstrate an

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“entitle[ment] to relief require[] more than labels and conclusions, and a formulaic recitation of the

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elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2005)

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(brackets in original) (quotation marks omitted) (citing Papasan v. Allain, 478 U.S. 265, 286

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(1986)); see Lee v. City of L.A., 250 F.3d 668, 679 (9th Cir. 2001) (“Conclusory allegations of law

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. . . are insufficient to defeat a motion to dismiss.” (citation omitted)).

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As a general rule, a court may not consider “any material beyond the pleadings” when ruling

in certain circumstances, the court may consider extrinsic evidence without converting the motion

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into a motion for summary judgment. Id. (citation omitted); see Fed. R. Civ. P. 12(d) (“If, on a

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motion under Rule 12(b)(6) . . . , matters outside the pleadings are presented to and not excluded by

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the court, the motion must be treated as one for summary judgment under Rule 56.”). For example,

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For the Northern District of California

on a Rule 12(b)(6) motion. Lee, 250 F.3d at 688 (citation and quotation marks omitted). However,

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United States District Court

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the court may examine “material which is properly submitted as part of the complaint.” Lee, 250

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F.3d at 688 (citation and quotation marks omitted). If a document’s authenticity is not contested and

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the complaint “necessarily relies” on it, the court may take that document into account even if it is

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not physically attached to the complaint. Id. (citation and quotation marks omitted).

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III. Analysis

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“[D]istrict courts may dismiss an action sua sponte on [statute of] limitations grounds in

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certain circumstances where the facts supporting the statute of limitations defense are set forth in the

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papers plaintiff himself submitted.” Donell v. Keppers, No. 10-CV-2613, 2011 WL 6098025, at *4

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(S.D. Cal. Dec. 6, 2011). Plaintiff has failed to state facially plausible claims in his complaint,

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because each claim is time barred by its respective statute of limitations.

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An individual seeking redress under Title VII in California must file an administrative charge

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with the EEOC within 300 days of the alleged unlawful employment practice before commencing a

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civil employment discrimination suit in Federal court. 42 U.S.C. § 2000e-5(f); E.E.O.C. v. Cal.

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Psychiatric Transitions, Inc., 644 F. Supp. 2d 1249, 1264 (E.D. Cal. 2009). In this case, Plaintiff

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filed his charge with the EEOC approximately five-and-a-half years after the alleged incidents at

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issue. Because he did not present his allegations to the EEOC within the allotted time, he did not

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properly exhaust his administrative remedies and may not bring his Title VII claims before the

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Court.

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Plaintiff’s claims of employment discrimination that could fall under the California Fair

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Employment and Housing Act fail for the same reason. Statute requires a complainant to file a

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complaint with the California Department of Fair Employment and Housing within a year of the

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alleged discriminatory acts. Cal. Gov’t Code § 12960(d); see also § 12940. Plaintiff filed his

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complaint with the DFEH over five years after the date of the alleged acts, making his claims time

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barred under California law.

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Plaintiff does not specify the nature of his claim for unpaid wages, but the statute of

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limitations on the claim has passed under Federal and California law. Under the Fair Labor

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Standards Act, 29 U.S.C. § 201 et seq., a party must commence an action for unpaid wages within
two or three years after the cause of action has accrued, depending on the nature of the alleged

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violation. Id. § 255(a). Under California law, a similar action must begin within two, three, or four

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years of the date of accrual, depending on the alleged violation. Cuadra v. Millan, 17 Cal. 4th 855,

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859 (1998). Again, in this case Plaintiff waited nearly six years to file suit.

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Under California law, claims for wrongful employment termination, the intentional infliction

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of emotional distress, and other actions sounding in negligence have a two-year statute of

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limitations. Cal. Civ. Proc. § 335.1. Plaintiff cannot proceed with these claims, because he filed

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them nearly four years too late.

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upon which relief can be granted. The court ORDERS this case DISMISSED with prejudice.

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Dated: June 15, 2012

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NO

DONNA M. RYU
. Ryu
United States Magistrate Judge
onna M
ge D

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DERED

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IT IS SO ORDERED.

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Because Plaintiff’s claims are time barred, the court finds that he has failed to state a claim

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IV. Conclusion

UNIT
ED

For the Northern District of California

United States District Court

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