Greer v. Lockheed Martin et al

Filing 62

ORDER GRANTING 52 MOTION TO DISMISS THE FIRST THROUGH SIXTH CLAIMS IN PLAINTIFF'S FIRST AMENDED COMPLAINT. Signed by Judge Jeremy Fogel on August 5, 2011. (jflc3, COURT STAFF) (Filed on 8/5/2011)

1
2

**E-Filed 8/5/2011**

3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10
11

JEAN ELISE GREER,

Plaintiff,

12
v.

13
14
15

SAN JOSE DIVISION
Case Number CV 10-1704 JF (HRL)

LOCKHEED MARTIN, ESIS INC., and DOES 1
through 20 inclusive,

ORDER1 GRANTING MOTION TO
DISMISS THE FIRST THROUGH
SIXTH CLAIMS OF PLAINTIFF’S
FIRST AMENDED COMPLAINT
[re doc. no. 52]

Defendants.

16
17
18
19
20
21

Defendant Lockheed Martin Corp. (Lockheed) moves to dismiss the first through sixth
claims of Plaintiff’s First Amended Complaint (FAC) on the ground that Plaintiff has failed to
exhaust her administrative remedies under state and federal law. The Court has considered the
moving and responding papers2 and the oral argument presented at the hearing. For the reasons

22
23
1

24

This disposition is not designated for publication in the official reports.

2

25
26
27
28

Civil Local Rule 7-3(a), which went into effect on June 2, 2011, requires that
opposition to noticed motions must be filed not more than fourteen days after a party serves its
motion. Accordingly, Plaintiff’s opposition was due by June 29, 2011. Acting under a previous
version of the rules Plaintiff’s counsel believed that her opposition was due no later than July 15,
2011. On July 6, 2011, Lockheed filed a statement of non-opposition. Plaintiff filed her
opposition on July 13, 2011, along with a motion to extend time. Seeing no prejudice to
Case Number 10-01704 JF (HRL)
ORDER GRANTING MOTION TO DISMISS THE FIRST THROUGH SIXTH CLAIMS OF PLAINTIFF’S
FIRST AMENDED COMPLAINT
(JFLC3)

1

discussed below, the motion will be granted, and Greer’s claims will be dismissed without

2

prejudice.

3

I. BACKGROUND

4

Plaintiff Jean Elise Greer was terminated from her employment with Lockheed

5

subcontractor EISI on April 7, 2009. On January 27, 2010, Greer, representing herself, filed a

6

charge against Lockheed with the United States Equal Employment Opportunity Commission

7

(EEOC). Greer checked boxes on the pre-printed charge form for “Retaliation,” and

8

discrimination based on “Age” and “Disability.” Winters Decl. ex. A. Greer provided no

9

“particulars” in the space provided for that purpose on the form, but instead she attached a partial

10

copy of a civil complaint against Lockheed for negligence and premises liability. That document

11

contained allegations that on January 11, 2007, Greer tripped on a damaged floor tile at her

12

workplace and was injured. Id. The document makes no mention of Greer’s termination or of

13

any claim of discrimination based on age or disability.

14

In March 2010, Greer filed this action in the Santa Clara Superior Court. After Lockheed

15

removed the case to this Court, Greer amended her complaint to add claims under the Age

16

Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., the Americans with

17

Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., and the California Fair Employment and

18

Housing Act (FEHA), Cal. Gov’t Code § 12900, et seq. The FAC alleges that Lockheed “has in

19

place a pattern and practice of selecting older employees for termination,” FAC ¶ 41; that it

20

failed “to provide reasonable accommodation for” her disability, and failed to “timely and in

21

good faith, engage in the interactive process,” FAC ¶¶ 44, 46; and that it failed to investigate

22

harassment and retaliated against her in violation of the FEHA, FAC ¶¶ 66-67.

23

II. DISCUSSION

24

The ADA, ADEA and FEHA each require that prior to bringing a civil action a claimant

25

must file a charge with the appropriate government agency and receive a right to sue letter from

26
27

Lockheed, the Court has considered Plaintiff’s papers.

28

2
Case Number 10-01704 JF (HRL)
ORDER GRANTING MOTION TO DISMISS THE FIRST THROUGH SIXTH CLAIMS OF PLAINTIFF’S
FIRST AMENDED COMPLAINT
(JFLC3)

1

the agency. 29 U.S.C. § 626(d) (ADEA)l 42 U.S.C. §12117(a) & 2000e-5(f)(1) (ADA); Cal.

2

Gov’t Code § 12965(b) (FEHA). A plaintiff may not raise discrimination claims that are not

3

“like or reasonably related to the allegations contained in” the administrative charge. B.K.B. v.

4

Maui Police Dep’t., 276 F.3d 1091, 1100 (9th Cir. 2002) (quoting Green v. L.A. County Supt. Of

5

Sch., 883 F.2d 1472, 1475 (9th Cir. 1990)). Courts construe the language of the administrative

6

charge “with utmost liberality since they are made by those unschooled in the technicalities of

7

formal pleading.” Id. (quoting Kaplan v. Int’l Alliance of Theatrical & Stage Employees, 525

8

F.2d 1354, 1359 (9th Cir. 1975)). “In determining whether a plaintiff has exhausted allegations

9

that she did not specify in her administrative charge, it is appropriate to consider such factors as

10

[1] the alleged basis of the discrimination, [2] dates of discriminatory acts specified in the

11

charge, [3] perpetrators of discrimination named in the charge, and [4] any locations at which

12

discrimination is alleged to have occurred.” Id.

13

The charge is “intended to satisfy the dual purpose of establishing notice of the

14

complainant’s claims both to the agency and to the respondent.” K.B.K. 276 F.3d at 1102. The

15

exhaustion requirement is not merely a procedural hoop, it is designed to provide the

16

administrative agencies an opportunity to investigate and obtain voluntary compliance. See

17

Okoli v. Lockheed Tech. Ops. Co., 36 Cal. App. 4th 1607, 1617 (1995). The question is whether

18

the administrative agency has had the opportunity to investigate the allegations reasonably

19

related to those in the complaint.

20

In this case, while it is undisputed that Greer checked the boxes for retaliation and

21

discrimination based on age and disability, the only factual allegations presented to the

22

administrative agency relate to her workplace injury, which occurred two years prior to her

23

discharge. Even though the charge was filed nine months after Greer was terminated, it makes

24

no mention at all of her termination, nor does it contain any factual allegations relating to a

25

pattern or practice of discrimination or a failure to accommodate her disability. Apart from

26

Greer’s characterization of her claims, the only common fact between the allegations made in the

27

charge and those raised in Greer’s FAC is her employment with EISI.

28

3
Case Number 10-01704 JF (HRL)
ORDER GRANTING MOTION TO DISMISS THE FIRST THROUGH SIXTH CLAIMS OF PLAINTIFF’S
FIRST AMENDED COMPLAINT
(JFLC3)

1

Under even the most liberal reading of the charge, the Court can find no indication that

2

the agency had an opportunity to investigate factual allegations related to those in the complaint.

3

While Greer may have intended to assert claims relating to her termination, there is no indication

4

in the record that the administrative agency was able to investigate any such discrimination.

5

Greer contends that the fact that she obtained a right to sue letter from Department of Fair

6

Employment and Housing (DFEH) demonstrates that she has exhausted her administrative

7

remedies. However, the right to sue letter itself states that any suit “may include any matter

8

alleged in the charge or, to the extent permitted by court decisions, matters like or related to

9

matters alleged in the charge.” Winters Decl. ex. B.

10

At the hearing on August 5, 2011, Greer’s counsel indicated that Greer may be able to

11

amend her administrative charge to include factual allegations with respect to her termination.

12

Accordingly, the claims will be dismissed without prejudice.

13

III. DISPOSITION

14
15

Good cause therfore appearing, the motion to dismiss the first through sixth claims of the
FAC is granted without prejudice.

16

IT IS SO ORDERED.

17

__________________________________
JEREMY FOGEL
United States District Judge

DATED: 8/5/2011
18
19
20
21
22
23
24
25
26
27
28

4
Case Number 10-01704 JF (HRL)
ORDER GRANTING MOTION TO DISMISS THE FIRST THROUGH SIXTH CLAIMS OF PLAINTIFF’S
FIRST AMENDED COMPLAINT
(JFLC3)