Cordray v. Cohn Restaurant Group, Inc.

Filing 9

ORDER denying 5 Motion for Summary Judgment. The hearing date set on March 23, 2018 shall be vacated. Signed by Judge Gonzalo P. Curiel on 3/19/2018. (anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PEARCE C. CORDRAY

Case No.: 3:17-cv-02375-GPC-NLS
Plaintiff,

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v.

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ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT

COHN RESTAURANT GROUP, INC.,
Defendant.

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[Dkt. No. 5]

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Before the Court is Defendant Cohn Restaurant Group’s (“Defendant”) motion to

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dismiss the complaint for Plaintiff Pearce C. Cordray (“Cordray”)’s failure to timely

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exhaust administrative remedies. (Dkt. No. 5.) On February 1, 2018, Plaintiff filed an

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opposition and on February 16, 2018, Defendant filed a reply. (Dkt. Nos. 7, 8.) As

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discussed below, because the Court considered documents outside the complaint, the

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Court converts the motion to dismiss to a motion for summary judgment. For the

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following reasons, the Court DENIES Defendant’s motion for summary judgment.

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I.

BACKGROUND

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A.

Factual Background

Defendant owns and operates restaurants in Southern California, including Draft
Republic, Inc., (“Draft Republic”) and BoBeau Kitchen and Roof Tap Restaurant
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(“BoBeau”). (Dkt. No. 1, Compl. ¶ 7.) Plaintiff was hired as a food and beverage server

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by Defendant around July 23, 2014 at BoBeau located in Long Beach, California. (Id. ¶

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13.) On or about August 6, 2015, while working at BoBeau, Plaintiff was physically

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assaulted by a co-worker. (Id.) Plaintiff states “he was punched in the head by [a] co-

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worker and fell backwards onto a concrete floor and lost consciousness.” (Id.) Plaintiff

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was transported to the emergency room at St. Mary’s Medical Center in Long Beach,

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California via an ambulance. (Id.) At the emergency room, Plaintiff was “evaluated and

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subsequently admitted with a length of stay totaling in excess of 13 days.” (Id.)

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As a result of the incident, Plaintiff suffers retrograde and anterograde amnesia.

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(Id. ¶ 14.) Plaintiff states he “experienced confusion, slurred speech, left-right

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disorientation, loss of smell, problems with memory and changes in personality (e.g.

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emotional liability, irritability and a tendency to easily anger)” after he regained

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consciousness at the hospital. (Id.) Plaintiff was diagnosed with a skull fracture,

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subdural hemorrhaging, and subarachnoid hemorrhage, and developed blood clots in his

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arms.” (Id.) Plaintiff’s states he continues to experience neurocognitive sequelae from

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the “event that negatively [ ] impacted his life.” (Id. ¶ 15.) The co-worker who assaulted

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Plaintiff was found guilty of the assault. (Id. ¶ 16.)

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From August 2015 to November 2015, Plaintiff was placed on full-time disability.

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(Id. ¶ 17.) When Plaintiff returned to work, he was transferred to San Diego to work at

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Draft Republic. (Id.) Plaintiff asserts that “Defendant, its employees, agents and

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servants knew of [his] assault by his co-worker, his subsequent injuries, hospitalization

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and time off work because of a disability.” (Id.) On or about November 24, 2015,

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Plaintiff was “wrongfully terminated from his employment without excuse.” (Id.)

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B.

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On August 2, 2017, Plaintiff made contact with the Equal Employment

Procedural Background

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Opportunity Commission (“EEOC”) regarding a charge of discrimination. (Dkt. No. 7-1,

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Cordray Decl. ¶ 13.) In a letter dated August 16, 2017, the EEOC directed Plaintiff to

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review, sign and return the Charge of Discrimination (“Charge”) within thirty days from

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the date of the letter. (Dkt. No. 1, Compl., Exs. 1, 2.1) However, the Charge was filed

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with the EEOC on October 2, 2017. (Id.)
On October 13, 2017, the EEOC issued a Notice of Right to Sue (“Notice”). (Id.,

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Ex. 3.) The Notice informed Plaintiff that he must file a lawsuit in federal court within

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ninety (90) days of his receipt of the Notice. (Id.) Plaintiff states he received the Notice

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on or about October 18, 2017. (Id. ¶ 4.)

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More than a month later, on November 22, 2017, Plaintiff filed the instant

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complaint alleging disability discrimination under the American with Disabilities Act

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(“ADA”) pursuant to 42 U.S.C. § 12101 and the Fair Housing and Employment Act

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(“FEHA”) pursuant to California Government Code section 12940; failure to engage in

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the interactive process under the ADA and FEHA; refusal to accommodate under § 501

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of the Rehabilitation Act; and intentional infliction of emotional distress. (Dkt. No. 1.)

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He also seeks declaratory relief and punitive damages. (Id.)

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On December 29, 2017, Defendant filed a motion to dismiss the entire complaint

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for Plaintiff’s failure to timely exhaust administrative remedies. (Dkt. No. 5.) In

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response, Plaintiff submitted his declaration and a neuropsychological evaluation to

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support equitable tolling.

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II.

LEGAL STANDARD

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Federal Rule of Civil Procedure (“Rule”) 12(b)(6) permits dismissal for “failure to

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state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal under

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Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or

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sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police

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A court “may consider ‘material which is properly submitted as part of the complaint’ on a motion to
dismiss without converting the motion to dismiss into a motion for summary judgment.” Lee v. City of
Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). Here, attached to the Complaint is a Letter from the
EEOC and the Charge that was filed with the EEOC. Accordingly, the Court may consider the
documents.
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Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). A complaint may survive a motion to dismiss

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only if, taking all well-pleaded factual allegations as true, it contains enough facts to “state

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a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Twombly, 550 U.S. at 570). In reviewing a Rule 12(b)(6) motion, the Court

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accepts as true all facts alleged in the complaint, and draws all reasonable inferences in

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favor of the plaintiff. al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009).

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“If matters outside the pleadings are submitted, the motion to dismiss under Federal

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Rule of Civil Procedure 12(b)(6) is treated as one for summary judgment.” Jacobson v.

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AEG Capital Corp., 50 F.3d 1493, 1496 (9th Cir.1995); see also Del Monte Dunes v. City

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of Monterey, 920 F.2d 1496, 1507–08 (9th Cir. 1990) (where district court considered

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affidavits and exhibits in support of and opposition to motion to dismiss, court of appeals

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treated dismissal as order granting summary judgment under Fed. R. Civ. P. 56(c)).

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Here, Plaintiff has produced a declaration and a neuropsychological evaluation to

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support his equitable tolling argument.

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Defendant does not dispute or object to Plaintiff’s reliance on the facts in the declaration

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on its Rule 12(b)(6) motion and instead argues that the facts in the declaration do not

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support equitable tolling. (See Dkt. No. 8 at 4.)

(Dkt. No. 7-1, Cordray Decl.; id., Ex. A.)

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When a court decides to consider facts outside the complaint it must provide the

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parties with notice that it intends to convert the motion to dismiss into a motion for

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summary judgment, and allow the parties an opportunity to further brief the issue. Grove

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v. Mead School Dist. No. 354, 753 F.2d 1528, 1532–33 (9th Cir. 1985). “Notice occurs

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when a party has reason to know that the court will consider matters outside the pleadings.”

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Id. at 1533. In Graves, the parties agreed the judge should read “The Learning Tree” and

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the plaintiff submitted affidavits of her witnesses. Id. At the hearing, the judge considered

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both matters outside the pleadings and the Ninth Circuit held that the plaintiff had adequate

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notice that the judge would consider them. Id.

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Here, Plaintiff submitted a declaration and neuropsychological report to support his
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opposition, and in its reply, Defendant relies on the declaration to support its argument that

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Plaintiff does not suffer a severe mental impairment that prevented him from timely filing.

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Both parties have notice that the Court will consider Plaintiff’s declaration and report.

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Therefore, the Court converts Defendant’s motion to dismiss to a motion for summary

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judgment under Rule 56.

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Summary judgment is appropriate if the “pleadings, depositions, answers to

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interrogatories, and admissions on file, together with the affidavits, if any, show that there

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is no genuine issue as to any material fact and that the moving party is entitled to judgment

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as a matter of law.” Fed. R. Civ. P. 56(c). A fact is material when it affects the outcome

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of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In making this

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determination, the court must “view[] the evidence in the light most favorable to the

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nonmoving party.” Fontana v. Haskin, 262 F.3d 871, 876 (9th Cir. 2001).

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III.

DISCUSSION

A.

Exhaustion of Administrative Remedies

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Defendant moves to dismiss Plaintiff’s claims on the ground that Plaintiff has

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failed to exhaust his administrative remedies since Plaintiff has not made a timely Charge

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of Discrimination with the appropriate administrative agencies. Plaintiff agrees that he

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did not submit a timely Charge with any administrative agency but opposes dismissal of

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his claims.

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To bring claims under the ADA and the Rehabilitation Act, a plaintiff must file a

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claim with the EEOC within 180 days of the alleged act(s) of discrimination, or within

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300 days if he has filed state charges with the California Department of Fair Employment

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and Housing (“DFEH”). 42 U.S.C. § 2000e–5(e); 42 U.S.C. § 12117 (ADA incorporates

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the enforcement procedures sets forth at 42 U.S.C. § 2000e-5); Leong v. Potter, 347 F.3d

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1117, 1121 (9th Cir. 2003) (“The district court properly held that Leong was required to

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exhaust his administrative remedies with the EEOC before pursuing his Rehabilitation

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Act claim in district court.”). Applying the longer 300 day limitations period to

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Plaintiff’s alleged discrimination date of November 24, 2015, Plaintiff was required to

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file an administrative charge with the EEOC by September 19, 2016.
Under California’s FEHA, an administrative complaint must be filed within one

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year of the “alleged unlawful practice or refusal to practice occurred”, or within 90 days

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thereafter if the employee discovered the facts of the unlawful practice after expiration of

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the one year period. Cal. Gov. Code § 12960(d). Here, Plaintiff does not allege he

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discovered the unlawful practice after the expiration of the one year period. Applying the

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limitations period, Plaintiff was required to file an administrative charge with the DFEH

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by November 24, 2016.

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Plaintiff concedes that he did not timely exhaust his administrative remedies. (Dkt.

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No. 1, Compl. ¶ 55.) Since he filed a dual charge2 with the EEOC on October 2, 2017, he

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failed to timely exhaust his administrative remedies. Defendant asserts, that

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consequently, Plaintiff's claims under the ADA, FEHA, and the Rehabilitation Act are

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barred for failing to timely exhaust administrative remedies.

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B.

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Equitable Tolling
In response, Plaintiff argues he is entitled to equitable tolling because (1) his

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traumatic head injury and subsequent mental symptoms stood in the way and (2) he did

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not have actual or constructive knowledge of the filing period. (Dkt. No. 7 at 103.)
The Supreme Court “has held that the failure to file a timely EEOC administrative

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complaint is not a jurisdictional prerequisite to a Title VII claim, but is merely a statutory

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requirement subject to waiver, estoppel and equitable tolling.” Sommatino v. United

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States, 255 F.3d 704, 708 (9th Cir. 2001) (citing Zipes v. Trans World Airlines, Inc., 455

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A dual charge allows a claimant to file with one agency and that agency will send the complaint to the
other agency. See, e.g., Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1175-76 (9th Cir. 1999);
(Dkt. No., 1, Ex. 1 at 16 (EEOC notifying that it will send a copy of the Charge to DFEH).
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Page numbers are based on the CM/ECF pagination.
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U.S. 385, 393 (1982)). “Equitable tolling applies when the plaintiff is prevented from

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asserting a claim by wrongful conduct on the part of the defendant, or when extraordinary

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circumstances beyond the plaintiff’s control made it impossible to file a claim on time.”

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Stoll v. Runyon, 165 F.3d 1238, 1242 (9th Cir. 1999) (citation omitted). The doctrine of

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equitable tolling focuses on whether there was excusable delay by the plaintiff. Johnson

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v. Henderson, 314 F.3d 409, 414 (9th Cir. 2002). The principles of equitable tolling do

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not extend to garden variety claims of excusable neglect, and courts generally have

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applied equitable relief only sparingly. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,

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96 (1990); Scholar v. Pac. Bell, 963 F.2d 264, 267-68 (9th Cir. 1992). Plaintiff argues

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that extraordinary circumstances prevented him from timely filing a claim.

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The Ninth Circuit has equitably tolled administrative deadlines for mental

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incompetence. Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010 (9th Cir. 2011). A

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plaintiff “must show his mental impairment was an extraordinary circumstance beyond

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his control by demonstrating the impairment was so severe that either (a) plaintiff was

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unable rationally or factually to personally understand the need to timely file, or (b)

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plaintiff’s mental state rendered him unable personally to prepare [a complaint] and

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effectuate its filing.” Id. (citation omitted). A plaintiff must also demonstrate “diligence

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in pursuing the claims to the extent he could understand them, but that the mental

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impairment made it impossible to meet the filing deadline under the totality of the

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circumstances.” Id. (citation omitted). There must be showing that the plaintiff’s mental

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illness was “so severe that [he was] unable . . . to understand the need to timely file.”

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Forbess v. Franks, 749 F.3d 837, 840 (9th Cir. 2014).

Mental Impairment

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A case where a showing of mental incompetence was severe enough to warrant

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equitable tolling involved a plaintiff who was repeatedly sexually abused and raped at

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work which left her “severely impaired and unable to function in many respects.” Stoll,

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165 F.3d at 1242 (9th Cir. 1999). She presented overwhelming evidence that she was

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“completely psychiatrically disabled.” Id. In another case, equitable tolling was applied

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where a habeas petitioner’s mental illness was so severe that he suffered from delusions

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that he worked undercover for the FBI that he was incapable of understanding the need to

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timely file his petition. Forbess, 749 F.3d at 840. His mental delusions were supported

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by psychological evaluation of three physicians and by the mental health records. Id.

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However, equitable tolling was not applied where a plaintiff was homeless, had

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post-traumatic stress disorder and had side effects from medication because the plaintiff

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did not show he could not understand the meaning of the deadline. Friend v. Hegarty,

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Case No. 15cv4506-HRL, 2017 WL 1164291, at *7 (N.D. Cal. Mar. 29, 2017). In

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another case, evidence to support Plaintiff’s diagnosis of hyperparathyroidism, and

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reports that he was being treated for chronic fatigue, depression, headaches, back pain

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and anxiety disorder did not explain his failure to timely pursue his claim. Sowell v.

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Freescale Semiconductor, Inc., No. CV 07-1738-PHX-JAT, 2008 WL 2941269, at *4 (D.

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Az. July 25, 2008).

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The Court looks at the period from the incident, November 24, 2015 until October

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2, 2017 when he filed his Charge with the EEOC. Plaintiff states that when he was

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terminated, he made it known that he wanted to continue working. (Dkt. No. 7-1,

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Cordray Decl. ¶ 8.) After his termination, he states that he was “allowed to return to

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work on part time basis-20 hours per week” but that his amnesia, depression prevented

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him from continuing to work. (Id. ¶ 11.) Around June 17, 2017, during a dinner with his

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girlfriend and friends, someone recommended that he contact the San Diego County Bar

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Association’s Lawyer Referral Program. (Id. 12.) He also states that before the dinner in

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June 2017, he had attempted to contact other attorneys but never got a return call. (Id.)

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On July 19, 2017, Plaintiff called the Bar Association’s Lawyer Referral Service and

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made contact with an attorney on August 2, 2017. (Id. ¶ 13.) These facts fail to show

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that Plaintiff’s mental state was so severe that he was unable to understand about the

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filing deadline or personally prepare a Charge.

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Plaintiff also attaches a neuropsychological evaluation dated August 9, 2016 with

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an evaluation date of July 27, 2016. (Dkt. No. 7-1, Cordray Decl., Ex. A.) During the

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evaluation, numerous neuropsychological and psychological tests were performed. (Id.,

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Ex. A at 9-13.) However, Plaintiff merely attaches the evaluation to his declaration and

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fails to address the significance of the results of these tests and how the results affected

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his ability understand the need to timely file or to personally prepare a Charge. The

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evaluation reveals that he “displayed adequate cognitive development”, his IQ was in the

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“average range with average verbal . . . and perceptual reasoning abilities”, and

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“demonstrated intact performance on aspects of executive functioning.” (Id. at 13.) He

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showed weakness in “processing speed executive function, language, and motor

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dexterity” and “below expectation in aspects of inhibitory control, attention, memory, and

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psychomotor processing speed.” (Id.) “In summary, Mr. Cordray’s neurocognitive

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profile is characterized by intact functioning in several of the domains assessed, with

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deficits in memory, attention, inhibitory, control, and psychomotor speed.” (Id. at 14.)

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While Plaintiff has suffered impairments due to the incident at his prior work, they are

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not so severe that he was unable to understand that he needed to timely file an

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administrative appeal or he was unable to personally prepare a Charge.
Moreover, Plaintiff has not demonstrated diligence. Plaintiff asserts that he “acted

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with extreme diligence” despite his limited knowledge and limited mental capacity. (Dkt.

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No. 7-1, Cordray Decl. ¶ 16.) However, he has failed to show that he was diligent during

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the limitations period from November 24, 2015 until September 19, 2016, or November

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24, 2016. Instead, his diligence is demonstrated after the limitations period had expired,

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when he was referred to the Bar Association on June 17, 2017. The Court concludes that

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Plaintiff has not demonstrated that his mental impairments were an “extraordinary

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circumstance” that prevented the timely filing of his administrative Charge. See Stoll,

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165 F.3d at 1242.

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2.

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The doctrine of equitable tolling “has been consistently applied to excuse a

Lack of Actual or Constructive Knowledge

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claimant’s failure to comply with the time limitations where she had neither actual nor

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constructive notice of the filing period.” Johnson v. Henderson, 314 F.3d 409, 414 (9th

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Cir. 2002) (quoting Leorna v. United States Dep’t of State, 105 F.3d 548, 551 (9th Cir.

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1997)); see Leong v. Potter, 347 F.3d 1117, 1123 (9th Cir. 2003). “If a reasonable

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plaintiff would not have known of the existence of a possible claim within the limitations

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period, then equitable tolling will serve to extend the statute of limitations for filing suit

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until the plaintiff can gather what information he needs.” Johnson, 314 F.3d at 414

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(citing Santa Maria, 202 F.3d at 1178 (citations omitted)). “[O]nce a claimant retains

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counsel, tolling ceases because she has gained the means of knowledge of her rights and

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can be charged with constructive knowledge of the law’s requirements.” Leorna, 105

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F.3d at 551. In Leorna, the last act of alleged discrimination occurred in April 1993,

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when the State Department terminated Leorna’s candidacy for employment. Id. At that

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time, Leorna had neither actual nor constructive notice of the filing period at that time.

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Id. Therefore, the court tolled the forty-five-day period within which to contact a State

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Department EEO counselor until September 1993, when Leorna retained counsel. Id. at

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551.

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In Summar, the district court held that plaintiff was not entitled to equitable tolling

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because she had actual notice of the time limitations in filing an EEO complaint based on

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her previous experience filing a timely EEO complaint. Summar v. Potter, 355 F. Supp.

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2d 1046, 1057 (D. Alaska 2005). In Gessele v. Jack in the Box, Inc., 6 F. Supp. 3d 1141,

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1163 (D. Or. 2014), the Court concluded that Plaintiffs’ personal lack of legal knowledge

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cannot support equitable tolling because Plaintiffs were represented by counsel well

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before the statute of limitations passed, and, therefore, Plaintiffs were charged with

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constructive knowledge of the FLSA’s written-consent requirements and statute of

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limitations. Id. In another case, the district court held that the plaintiff was deemed to

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have constructive knowledge when the defendant conspicuously posted the required EEO

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notice at the place of employment. Taylor v. W. Oregon Elec. Co-op., Inc., No. CV 03-

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1311-ST, 2005 WL 2709540, at *6 (D. Or. Oct. 21, 2005).

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Here, Plaintiff asserts he did not have actual or constructive knowledge of the

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EEOC requirements until he made contact with an attorney on August 2, 2017, (Dkt. No.

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7-1, Cordray Decl. ¶¶ 10, 12, 13), and Defendant has not argued or demonstrated

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otherwise. Therefore, equitable tolling applies from the alleged date of wrongful

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termination, November 24, 2015, until he talked to an attorney on August 2, 2017 and

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was informed about filing a Charge with the EEOC. Because he filed his Charge with the

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EEOC on October 2, 2017 and the instant complaint was filed over a month later on

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November 22, 2017, the complaint is timely under either federal or state law.
Because the Court denies Defendant’s motion for summary judgment on the first,

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second, fourth and seventh causes of action for failing to exhaust, Defendant’s motion as

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to the remaining claims also fail as they are derivative of the ADA and FEHA disability

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claims.4

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CONCLUSION

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Based on the reasoning above, the Court DENIES Defendant’s motion for
summary judgment. The hearing date set on March 23, 2018 shall be vacated.

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IT IS SO ORDERED.
Dated: March 19, 2018

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The Court notes that the Complaint does not include a third cause of action. (Dkt. No. 1, Compl.)
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