Shareef v. McHugh
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS re 10 - Signed by JUDGE ALAN C. KAY on 2/27/2017. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JAMEELAH T. SHAREEF,
) Civ. No. 16-00509 ACK-KJM
JOHN McHUGH, Secretary,
Department of the Army,
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
For the reasons set forth below, the Court GRANTS
Defendant’s Motion to Dismiss, ECF No. 13, WITH PREJUDICE.
Plaintiff Jameelah T. Shareef (“Plaintiff”) is an
African American female who has worked as a federal employee in
the field of safety and safety planning for over 25 years.
Compl., ECF No. 1, ¶ 5 (“Compl.”).
In or around January 2008, Plaintiff accepted a post
as the Safety Analyst, 8th Theater Sustainment Command (“TSC”),
Fort Shafter Hawaii.
Id. ¶ 8.
Plaintiff started this job
around March 2008 and at this time was discriminated against
based on her race and sex by her supervisor.
Id. ¶ 9.
Plaintiff filed an EEO complaint, which was handled
satisfactorily, and she considered the matter closed.
Id. ¶ 10.
Plaintiff was allowed to search for another position
and was hired by 94th Army Air and Missile Defense Command
(“AAMDC”) in May 2008.
Id. ¶ 11.
From May 2008 to June 2013,
Plaintiff served as the Safety and Occupational Health Manager
for the AAMDC.
Id. ¶ 12.
In this role, Plaintiff was the
principal advisor to the Commanding General, General’s Staff and
four subordinate units located in Korea, Japan, and Hawaii on
all matters related to safety and occupational health.
In July 2013, Plaintiff became the Safety Manager for
the U.S. Army Pacific, and Tommy Penrose became her first-line
Id. ¶ 14.
In or after August 2013, Mr. Penrose was
contacted via email by the 8th TSC and was informed about
Plaintiff’s 2008 EEO complaint.
Id. ¶ 16.
Mr. Penrose stopped
supporting Plaintiff “and spoke to her in an abrupt, demeaning
and bullying manner.”
Id. ¶ 17.
Mr. Penrose removed Plaintiff
from serving as inspector of the 8th TSC on November 3, 2013.
In December 2013, Plaintiff filed an EEO complaint
alleging “retaliation based on prior activity based on the
Id. ¶ 18.
Mr. Penrose continued to engage
in retaliatory behavior, for example, by detailing Plaintiff to
Mission Support Element (“MSE”) in March 2014, which is the
lowest level of safety program responsibility.
Id. ¶ 19.
Penrose then used the MSE detail to “justify a less than
‘Excellence’ rating on Plaintiff’s 9 September 2014 performance
appraisal, claiming Plaintiff failed to do GS-13 level work.”
Id. ¶ 21.
Plaintiff informed Mr. George Chun on August 14, 2014
that she wanted to file a formal complaint and was informed that
there was no intake specialist available and that she “should
Id. ¶ 23.
Plaintiff filed her Complaint on September 15, 2016.
The Complaint raises three counts against John McHugh,
Secretary, Department of the Army (“Defendant”), each under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et
seq: Count I-Retaliation; Count II-Sexual Harassment; and Count
Compl. ¶¶ 24-41.
With respect to
Count II Plaintiff alleges that she was “subjected to hostility
and criticism by Mr. Penrose when she requested permission to
attend a sanctioned event for women in leadership entitled
‘Sisters in Arms.’”
Id. ¶ 34.
With respect to Count III,
Plaintiff alleges the hostile and intimidating statements that
related to her race included “criticisms of pictures of an
African American Officer located in her work area.”
The Complaint also requests punitive damages.
Id. ¶ 40.
Id. ¶¶ 42-45.
On December 22, 2016, Defendant filed the instant
Motion to Dismiss.
ECF No. 10 (“Motion”).
On January 27, 2017,
Plaintiff filed her Opposition.
ECF No. 13 (“Opp.”).
February 7, 2017, Defendant filed its Reply.
ECF No. 14
The Court held a hearing on Defendant’s Motion on
February 23, 2017.
Motion to Dismiss for Lack of Subject Matter Jurisdiction
Pursuant to Federal Rule of Civil Procedure (“Rule”)
12(b)(1), a party may move to dismiss based on a lack of subject
“[T]he party asserting subject matter
jurisdiction has the burden of proving its existence.”
v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (citation
“Failure to exhaust administrative remedies is
properly considered under a 12(b)(1) motion to dismiss where
exhaustion is required by statute.”
Dettling v. United States,
948 F. Supp. 2d 1116, 1128 (D. Haw. 2013).
A jurisdictional attack may be either facial or
Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039
(9th Cir. 2004).
“In a facial attack, the challenger asserts
that the allegations contained in a complaint are insufficient
on their face to invoke federal jurisdiction.
By contrast, in a
factual attack, the challenger disputes the truth of the
allegations that, by themselves, would otherwise invoke federal
“In resolving a factual attack on
jurisdiction, the district court may review evidence beyond the
complaint without converting the motion to dismiss into a motion
for summary judgment.”
Motion to Dismiss for Failure to State a Claim
Rule 12(b)(6) authorizes the Court to dismiss a
complaint that fails “to state a claim upon which relief can be
Fed. R. Civ. P. 12(b)(6).
Rule 12(b)(6) is read in
conjunction with Rule 8(a), which requires only “a short and
plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
The Court may
dismiss a complaint either because it lacks a cognizable legal
theory or because it lacks sufficient factual allegations to
support a cognizable legal theory.
Balistreri v. Pacifica
Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
In resolving a Rule 12(b)(6) motion, the Court must
construe the complaint in the light most favorable to the
plaintiff and accept all well-pleaded factual allegations as
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783
(9th Cir. 2012).
The complaint “must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
“The plausibility standard . . . asks for more than a
sheer possibility that a defendant has acted unlawfully.”
“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
“In considering a
motion to dismiss, the court is not deciding whether a claimant
will ultimately prevail but rather whether the claimant is
entitled to offer evidence to support the claims asserted.”
Tedder v. Deutsche Bank Nat. Trust Co., 863 F. Supp. 2d 1020,
1030 (D. Haw. 2012) (citing Twombly, 550 U.S. at 563 n.8).
Under Rule 12(b)(6), review is generally limited to
the contents of the complaint.
Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Campanelli v.
Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996).
may “consider certain materials — documents attached to the
complaint, documents incorporated by reference in the complaint,
or matters of judicial notice — without converting the motion to
dismiss into a motion for summary judgment.”
United States v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
If the Court dismisses the complaint, it should grant
leave to amend regardless of whether a request has been made,
unless it determines that the pleading cannot be cured by new
OSU Student All. v. Ray, 699 F.3d 1053,
1079 (9th Cir. 2012).
As Defendant argues, Title VII precludes an award of
punitive damages against Defendant.
Motion at 16; Reply at 17.
Plaintiff did not address the issue of punitive damages in her
Opposition and conceded at the hearing that punitive damages are
not appropriate here.
Pursuant to 42 U.S.C. § 1981a(b)(1), which applies to Title
[a] complaining party may recover punitive
damages under this section against a respondent
(other than a government, government agency or
political subdivision) if the complaining party
demonstrates that the respondent engaged in a
discriminatory practice or discriminatory
practices with malice or with reckless
indifference to the federally protected rights of
an aggrieved individual.
Here, because Defendant is a “government,
government agency, or political subdivision,” punitive damages
are not available.
See Walker v. U.S. Dep’t of Commerce,
No. 1:11-CV-01195, 2012 WL 1424495, at *6 (E.D. Cal. 2012)
(dismissing punitive damage claim pursuant to Title VII);
Cleveland v. Runyon, 972 F. Supp. 1326, 1330 (D. Nev. 1997)
(because Postal Service was a government agency, it was immune
from liability for punitive damages in Title VII case); Erickson
v. West, 876 F. Supp. 239, 244 (D. Haw. 1995) (“[P]unitive
damages against the federal government are not allowed
Accordingly, the Court DISMISSES
Plaintiff’s claim for punitive damages WITH PREJUDICE.
Timeliness of Plaintiff’s Federal Court Complaint
Title VII requires that a civil action be brought
“[w]ithin 90 days of receipt of notice of final action.”
U.S.C. § 2000e-16(c).
Defendant maintains that Plaintiff’s
complaint is time-barred as she filed beyond this 90-day period.
Motion at 10.
Plaintiff argues that as “Defendant did not serve
counsel with its Final Agency Decision, it is not entitled to
dismissal” for her failure to file within 90 days.
Opp. at 12.
A. Whether Rule 12(b)(1) or Rule 12(b)(6) Applies to
Defendant’s Timeliness Argument
In support of its Motion to Dismiss, Defendant
attached various documents.
If, as Plaintiff argues,
Defendant’s Motion is governed by Rule 12(b)(6) because the 90day filing requirement is not jurisdictional, the Court may only
consider these documents if they fit within specified
exceptions, which Plaintiff asserts they do not.
See Opp. at 5-
If the timeliness argument is jurisdictional, then the
Motion will be considered under Rule 12(b)(1), and the Court may
consider documents outside the pleadings.
Defendant has not
explicitly contested that the 90-day period is not
See generally Reply.
1. Whether the 90-Day Filing Requirement Is
As the Ninth Circuit has recognized, the 90-day filing
requirement constitutes a statute of limitations, and as such is
See Scholar v. Pac. Bell, 963 F.2d 264,
266-67 (9th Cir. 1992) (“The requirement for filing a Title VII
civil action within 90 days from the date EEOC dismisses a claim
constitutes a statute of limitations.”); Valenzuela v. Kraft,
Inc., 801 F.2d 1170, 1174 (9th Cir. 1986) (recognizing that the
90-day filing period is a statute of limitations and not a
jurisdictional requirement); see also Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 95-96 (1990) (holding that the filing
period limits in 42 U.S.C. § 2000e-16(c) are subject to
equitable tolling as they are not jurisdictional).
Because the 90-day filing period is not
jurisdictional, Defendant’s arguments about the timeliness of
Plaintiff’s Complaint are properly considered under Rule
See Von Saher v. Norton Simon Museum of Art at
Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (“A claim may be
dismissed under Rule 12(b)(6) on the ground that it is barred by
the applicable statute of limitations only when the running of
the statute is apparent on the face of the complaint.”)
(internal quotation and citation omitted); United States v.
Marsh, 89 F. Supp. 2d 1171, 1173 (D. Haw. 2000) (motion to
dismiss based on statute of limitations treated as one under
Rule 12(b)(6), not 12(b)(1)).
2. Whether the Court May Consider Documents Outside the
“If a court considers matters outside the pleadings
when faced with a Rule 12(b)(6) or 12(c) motion, the motion
‘must be treated as one for summary judgment under Rule 56.’”
Weaver v. A-Am. Storage Mgmt. Co., No. CIV 10-00600 JMS-KSC,
2011 WL 97651, at *4 (D. Haw. Jan. 12, 2011) (quoting Fed. R.
Civ. P. 12(d)).
If the court does not exclude matters outside
the pleadings, “[a]ll parties must be given a reasonable
opportunity to present all the material that is pertinent to the
Fed. R. Civ. P. 12(d).
“However, a court may
‘consider certain materials – documents incorporated by
reference in the complaint, or matters of judicial notice —
without converting the motion to dismiss into a motion for
Weaver, 2011 WL 97651 at *4 (citing
Ritchie, 342 F.3d at 908).
A court may consider a document referenced in the
complaint if it is central to the plaintiff’s claim and no party
questions the authenticity of the copy attached to the motion.
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).
A court may
also take judicial notice of facts that are not subject to
reasonable dispute either because they are “generally known
within the trial court’s territorial jurisdiction” or “can be
accurately and readily determined from sources whose accuracy
cannot be questioned.”
Fed. R. Evid. 201(b); Harris v. Cnty. Of
Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012).
the court may “take judicial notice of undisputed matters of
Harris, 682 F.3d at 1132.
Here, Defendant attached in support of its Motion two
declarations, various EEOC and Department of Army EEO documents,
and postal records.
See ECF Nos. 10-2 to 10-19.
conceded that the Court may disregard the declarations, Reply at
5 n.1, and this Court agrees that considering the substance of
the declarations would convert Defendant’s Motion into a Rule 56
motion and accordingly has not considered them.
However, courts routinely take judicial notice of the
records of administrative bodies, including EEOC right-to-sue
letters, as public records.
See, e.g., Klingman v. Cnty. Of
Maui, No. 16-0399 ACK-RLP, 2016 WL 6996986, at *3 n.2 (D. Haw.
Nov. 29, 2016) (judicial notice of charge of discrimination);
Onodera v. Kuhio Motors, Inc., Civ. No. 13-00044 DKW, 2013 WL
4511273, at *2 (D. Haw. Aug. 23, 2013) (same); Hicks v. Makaha
Valley Plantation Homeowners Ass’n, No. 14-00254 HG, 2015 WL
328311, at *3 n.4 (D. Haw. Jan. 26, 2015).
The Court finds it
appropriate to take judicial notice here of all of the
attachments to the Chun Declaration (Attachments 1-9), and
Attachments A and B to the Herbert Declaration, as
ECF Nos. 10-3 to 10-11, 10-13, 10-14.
Attachments C, D, E, and F of the Herbert Declaration
purport to be postal records showing that the Final Agency
Decision was delivered to Plaintiff and to her former attorney
ECF Nos. 10-15 to 10-18.
Courts differ on whether
postal records are appropriate for judicial notice.
e.g., Chapman v. San Francisco Newspaper Agency, No. C-01-02305
CRB, 2002 WL 31119944, at *2 (N.D. Cal. Sept. 20, 2002)
(refusing to take judicial notice since accuracy of USPS
printout confirming delivery of right-to-sue letter could be
disputed) with Whiting v. United States, No. CV1501472ABDTBD,
2016 WL 3946920, at *2-3 (C.D. Cal. June 21, 2016) (taking
judicial notice of, inter alia, a USPS tracking webpage for a
certain certified mail number) and El-Aheidab v. Citibank (S.
Dak.), N.A., No. C-11-5359 EMC, 2012 WL 506473, at *4 (N.D. Cal.
Feb. 15, 2012) (taking judicial notice of USPS website
indicating mailings were in fact delivered).
Plaintiff’s Complaint may be considered untimely regardless of
whether the postal records are considered, as discussed below,
this Court does not need to decide whether to take judicial
notice of these records.
B. Whether Defendant May Not Raise a Timeliness Argument
Because It Failed to Send the Right-To-Sue Letter to
The Department of the Army rendered its final decision
on Plaintiff’s administrative EEO complaint on April 18, 2016.
Compl. ¶ 4; Attachment B, ECF No. 10-14.
Plaintiff filed her
Complaint in federal court on September 15, 2016.
Plaintiff has alleged that the Army never served a copy
of the Final Agency Decision and right-to-sue notice on her
attorney of record, Compl. ¶ 4, and as such Defendant failed to
provide the required notice and cannot now bar Plaintiff’s
Complaint as untimely, Opp. at 12-15.
Plaintiff does not appear
to contest that the agency mailed a copy of the decision to her
former representative, Ben Toyama, and Defendant appears to
admit that it did not send a copy to Plaintiff’s current
attorney Janice Kim. 1
42 U.S.C. § 2000e-16 does not define what constitutes
“notice” for purposes of triggering the 90-day rule or specify
whether notice must be served on a party’s representative.
Plaintiff designated Mr. Toyama as her representative during
the Army EEO proceedings. See Attachment 7, ECF No. 10-9.
Plaintiff then designated Ms. Kim as her attorney of record
after filing her formal complaint with the EEOC, and Ms. Kim
represented Plaintiff before the EEOC and following the transfer
of the case from the EEOC to the local Army EEO Office. See
Opp. at 4-5. Defendant acknowledged at the hearing that the
agency is largely at fault for serving Mr. Toyama rather than
42 U.S.C. § 2000e-16(c).
The regulations state that “[w]hen the
complainant designates an attorney as representative, service of
all official correspondence shall be made on the attorney and
the complainant, but time frames for receipt of materials shall
be computed from the time of receipt by the attorney.”
C.F.R. § 1614.605(d).
However, the parties dispute whether this
regulation applies only to the agency or also applies to federal
Motion at 12 n.4; Opp. at 12-15; Reply at 9-11.
The Ninth Circuit has not directly spoken as to
whether the regulation applies to judicial actions or not.
However, it has stated that “[w]e measure the start of the
limitations period from the date on which a right-to-sue notice
letter arrived at the claimant’s address of record.”
Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1122 (9th Cir.
Although this would appear, at first blush, to resolve
the issue, it is not clear from the opinion whether the
plaintiff in Payan was represented or not when the right-to-sue
notice was sent, and thus it is not clear whether or how
representation would have affected the court’s opinion.
A recent unpublished opinion from the Ninth Circuit
also suggests, however, that notice to the party’s attorney is
not necessary to start the 90-day period, as long as the
claimant actually receives notice.
See Rhodes v. Raytheon Co.,
555 F. App’x 665, 666 (9th Cir. 2014) (emphasis added) (citing
to Irwin as holding that “[t]he statute of limitations begins to
run from the date on which a right-to-sue letter is delivered to
either the claimant or his attorney, whichever comes first.”
(498 U.S. at 92-93)).
Rhodes thus further supports that the
period runs from the date the plaintiff receives the right-tosue letter, even if her attorney does not receive notice.
id.; see also Jones v. Madison Serv. Corp., 744 F.2d 1309, 1312
(7th Cir. 1984) (holding that the 90-day period runs from either
the date of actual receipt by the claimant or by the attorney
Plaintiff’s arguments that the regulations control
this issue, rather than the Ninth Circuit’s statements in Payan
and Rhodes, are not persuasive.
Plaintiff attempts to rebut
Defendant’s argument that the circuit courts considering the
applicability of this regulation have held it only applies to
the administrative process, not the judicial process by arguing
that the cases did not deal with the particular clause at issue.
Opp. at 15 n.3.
However, these courts plainly held that the
entire regulation – not any particular clause – only applied to
the administrative process. 2
See Rembisz v. Lew, 830 F.3d 681,
Moreover, the reading of these cases that Plaintiff’s assertion
implies is nonsensical. Plaintiff’s argument implicitly
requires the courts in these cases to have left open the
possibility that certain clauses in a single regulation apply to
the judicial process while other clauses only apply to the
(continued . . . )
683 (6th Cir. 2016) (“[T]hat regulation is concerned with time
frames for receipt of materials solely in the [EEOC]
administrative process, making it inapplicable to civil
proceedings before courts rather than administrative proceedings
before agencies.”) (internal citation and quotation omitted);
Carter v. Potter, 258 F. App’x 475, 479 (3d Cir. 2007) (“[O]n
its face, § 1614.605(d) does not apply to the 90-day period
within which Appellant had to file a civil action in the
District Court upon receiving the right-to-sue letter.”).
District courts appear to be split on whether or not
the regulation applies to the 90-day filing period for filing a
Some have explicitly found that the regulation
does not apply to judicial actions.
See, e.g., Taylor v. Colo.
State Univ., No. 5:11-cv-00034, 2012 WL 5077671, at *5 (W.D. Ky.
Oct. 18, 2012); Harris v. Bodman, 538 F. Supp. 2d 78, 80-81
(D.D.C. 2008); Carter v. Potter, No. 06-786, 2006 WL 2583569, at
*2 (E.D. Pa. Sept. 5, 2006).
Others, however, appear to have
concluded that the 90-day period runs from the date counsel
See, e.g., Hamilton v. Commonwealth Edison
Co., No. 11-CV-1752, 2011 WL 2633895, at *2 (N.D. Ill. July 5,
2011) (“[I]f a claimant informs the EEOC that he or she is
administrative process, despite the absence of any explicit
basis in the regulation itself on which to distinguish the two.
represented by counsel, notice to counsel begins running the 90day period.”); Barbagallo v. Potter, No. 1:04CV00839, 2005 WL
2460725, at *2 (M.D.N.C. Oct. 4, 2005) (90-day period begins
when attorney receives notice, if employee has designated an
attorney as his representative); Carter v. Dep’t of Veterans
Affairs, No. Civ. A H-04-1379, 2005 WL 1155099, at *2 (S.D. Tex.
May 11, 2005) (same).
In the absence of clear guidance on the applicability
of the regulation, the Court will follow the Ninth Circuit’s
opinions in Payan and Rhodes indicating that the 90-day period
commences on notice to the claimant, with Rhodes holding that
the 90-day period commences on notice to the claimant or her
attorney, whichever occurs first. 3
See Rhodes, 555 F. App’x at
The right-to-sue letter at issue here also supports this
conclusion as it explicitly provides that the 30-day time period
for an appeal to the EEOC will be calculated from the date of
receipt by the attorney, and no such similar language appears
Plaintiff also argues that the Federal Rules of Civil Procedure
generally require that, where a party is represented, service be
made on the party’s attorney. See Opp. at 15 (citing Irwin’s
discussion of Rule 5(b)). However, Irwin relied on the policy
underlying this rule of deeming parties to be bound by acts of
their attorneys to support its conclusion that the 30-day period
for filing an administrative complaint may begin when an
attorney has notice, even where the claimant does not. 498 U.S.
at 92. Rule 5(b) on its own does not speak to the particular
issue here of whether the 90-day period only begins to run when
a represented party’s attorney receives notice and thus cannot
overcome the Ninth Circuit’s opinions in Payan and Rhodes.
with respect to the right to file a civil action in federal
See Attachment B, ECF No. 10-12, at 20-22.
Furthermore, even if the regulation were to apply to
this action, the failure to notify Ms. Kim does not fully
resolve this issue because the regulations also caution that
“[t]he Complainant shall at all times be responsible for
proceeding with the complaint whether or not he or she has
designated a representative.”
29 C.F.R. § 1614.605(e).
other courts have recognized, “[t]his language thus undermines
any intimation that § 1614.605(d) applies to relieve a claimant
represented by counsel of his responsibility for timely
commencing a civil suit.”
Taylor, 2012 WL 5077671, at *5
(finding plaintiff’s complaint time-barred where the EEOC mailed
the right-to-sue letter to counsel five months after the letter
was sent to plaintiff).
Such provision is particularly
applicable here, where Plaintiff has not disputed Defendant’s
assertion that she actually received the right-to-sue letter and
could have proceeded with filing her Complaint.
therefore finds that Defendant is not barred from raising a
timeliness challenge to Plaintiff’s Complaint.
C. Whether Plaintiff’s Complaint Was Timely Filed
This Court next turns to whether Plaintiff’s Complaint
was timely filed within 90 days of receipt of the right-to-sue
Courts have recognized that the Supreme Court has
cautioned that “strict adherence to the procedural requirements
specified by the legislature [in Title VII] is the best
guarantee of evenhanded administration of the law.”
Thomas v. McHugh, Civil No. 12-00535 LEK-KSC, 2014 WL 2968689,
at *2 (D. Haw. June 30, 2014) (citing Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 108 (2002)).
If the Court were to take judicial notice of the
postal records, they would show that delivery of the right-tosue letter was attempted on April 28, 2016 and actually
delivered on April 30, 2016.
Attachments C & D, ECF Nos. 10-15,
Regardless of which date is used, 4 Plaintiff’s
Complaint was not filed until September 15, 2016 - well after
the prescribed 90-day filing period elapsed, and thus it is
Even if the postal records are not considered,
however, the Court’s conclusion remains the same.
Circuit law, there is a “presumption that the letter issuance
date is also the date on which the letter was mailed.”
495 F.3d at 1123; see also Ching v. Chugach Mgmt. Servs., Inc.,
In Payan, the Ninth Circuit stated that the 90-day period runs
from the date of actual receipt. Payan, 495 F.3d at 1122
(emphasis added). However, the Ninth Circuit has also stated
that “the ninety-day period within which to file suit beg[ins]
running when delivery of the right-to-sue notice [is] attempted
at the address of record with the EEOC....” Nelmida v. Shelly
Eurocars, Inc., 112 F.3d 380, 384 (9th Cir. 1997) (emphasis
CIV. 13-00023 SOM-KS, 2014 WL 282225, at *4 (D. Haw. Jan. 27,
2017) (noting that the court should apply this presumption
unless there is evidence to the contrary).
Thus, this Court may
presume that the letter was mailed on April 18, 2016.
The Ninth Circuit has also adopted a rebuttable
presumption that the plaintiff received the right-to-sue letter
three days after it was mailed.
Ching, 2014 WL 282225, at *4.
Payan, 495 F.3d at 1124-26;
Plaintiff here does not dispute
that she received the letter; she only states that “[t]he
complaint does not identify the date on which Plaintiff received
her right to sue notification.”
ECF No. 13 at 12.
is insufficient to rebut the presumption of receipt; Plaintiff
must actually dispute that she received the letter.
v. Dep’t of Educ., No. CIV 10-00707 ACK, 2011 WL 1637333, at *6
(D. Haw. Apr. 28, 2011) (finding that the date of the right-tosue letter alone was insufficient to give rise to the
presumption it was mailed or arrived where the plaintiff
Applying the three-day presumption, this
Court may presume that Plaintiff’s right-to-sue letter arrived
on April 21, 2016, which is also well outside of the 90-day
Thus regardless of whether the postal records
are considered or not, Plaintiff’s Complaint was not timely
D. Whether Plaintiff Has Sufficiently Alleged Equitable
Despite the untimeliness of Plaintiff’s Complaint, the
Supreme Court has recognized that equitable tolling may provide
a defense against the filing periods set forth in 42 U.S.C. §
See Irwin, 498 U.S. at 95-96.
At the motion to
dismiss stage, the Court should assess “whether the complaint
plausibly alleges facts indicating equitable tolling.”
2011 WL 97651, at *4.
Thus, “‘when a motion to dismiss is based
on the running of the statute of limitations, it can be granted
only if the assertions of the complaint, read with the required
liberality, would not permit the plaintiff to prove that the
statute was tolled.’”
Cervantes v. City of San Diego, 5 F.3d
1273, 1275 (9th Cir. 1993) (quoting from Jablon v. Dean Witter &
Co., 614 F.2d 677, 682 (9th Cir. 1980), which affirmed dismissal
where the allegations in plaintiff’s complaint showed she had
early notice of facts constituting alleged fraud by her broker).
“[A] complaint cannot be dismissed unless it appears
beyond doubt that the plaintiff can prove no set of facts that
would establish the timeliness of the claim.”
Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995)
(finding plaintiff was entitled to prove equitable tolling).
“[D]etermining the applicability of equitable
tolling...ordinarily requires reference to matters outside the
pleadings and is generally not amenable to resolution on a Rule
12(b)(6) motion, where review is limited to the complaint
Cervantes, 5 F.3d at 1276 (based on “California’s fact-
intensive test for equitable tolling [which] is more
appropriately applied at the summary judgment or trial stage of
“[O]nly in the rare case [can the equitable
tolling] inquiry proceed at the pleading stage.”
Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1140 (9th Cir.
2001) (applying California’s equitable tolling doctrine).
However, courts have dismissed claims with prejudice where the
plaintiff fails to allege a plausible basis for equitable
See, e.g., Welch v. So. Cal. Edison, 378 F. App’x 621,
622 (9th Cir. 2010) (affirming dismissal of complaint and
finding equitable tolling unavailable where plaintiff failed to
actively pursue judicial remedies); Aris v. Hawaii, No. 13-00035
LEK-KSC, 2013 WL 5675529, at *2-3 (D. Haw. Oct. 17, 2013)
(granting motion to dismiss with prejudice where equitable
tolling was found inapplicable).
Under federal law, “[w]here the danger of prejudice to
the defendant is absent, and the interests of justice so
require, equitable tolling of the limitations period may be
Forester v. Chertoff, 500 F.3d 920, 929 (9th Cir.
2007) (citation and quotation omitted).
When the law of the
forum state regarding equitable tolling is consistent with
federal law, the Court should apply state law.
See Johnson v.
California, 207 F.3d 650, 653 (9th Cir. 2000).
law, to toll a statute of limitations for a complaint filed
after its expiration, a plaintiff must demonstrate ‘(1) that
he...has been pursuing his right diligently, and (2) that some
extraordinary circumstance stood in his way.’”
Astrue, No. CIV.07-00560 ACK-BMK, 2008 WL 2588711, at *3 (D.
Haw. June 27, 2008) (quoting Office of Hawaiian Affairs v.
State, 110 Haw. 338, 360, 110 P.3d 767, 789 (2006)) (alteration
in original); see also Naton v. Bank of California, 649 F.2d
691, 696 (9th Cir. 1981) (critical factors for a finding of
equitable modification include the plaintiff’s actual and
reasonable reliance on the defendant’s conduct or
representations and evidence of improper purpose on the part of
Here, Plaintiff has asserted that there may be
equitable grounds sufficient to toll the 90-day filing
limitation based on the EEOC’s failure to comply with its own
regulations and to serve Ms. Kim with the right-to-file letter.
Opp. at 5, 16.
However, allowing the possibility of equitable
tolling on this basis would effectively mandate that the 90-day
period begins to run from the date of receipt by the claimant’s
attorney, even if the plaintiff had actually received the rightto-file letter at an earlier date.
Such a holding would run
directly contrary to the Ninth Circuit’s opinions in Payan and
Rhodes indicating that the 90-day period begins to run upon
receipt by either the claimant or her attorney, whichever comes
The Court thus finds that equitable tolling based on the
lack of notice to Ms. Kim is not available. 5
Plaintiff has offered no other reason, either in her
opposition or at the hearing, suggesting another basis for
Allowing amendment of the complaint
therefore appears to be futile.
See Deutsch v. Turner Corp.,
324 F.3d 692, 718 (9th Cir. 2003) (affirming dismissal of
prejudice where plaintiffs “offer[ed] neither a satisfactory
answer to the district court’s finding regarding equitable
tolling nor any hint of any additional facts they might allege
in an amended complaint” and thus amendment would be futile);
see also Daniels v. Donahoe, 901 F. Supp. 2d 1238, 1246 (D. Haw.
2012) (dismissing case with prejudice where plaintiff did not
argue waiver, estoppel, or equitable tolling applied, as
amendment would be futile). 6
This also accords with cases such as Carney v. City of Shawnee,
24 F. Supp. 2d 1185, 1189 (D. Kan. 1998), which granted summary
judgment on the basis that failure to provide an attorney a copy
of the decision where the plaintiff received actual notice did
not constitute an extraordinary circumstance warranting
In addition, Plaintiff’s diligence is in doubt. The Final
Agency Decision indicates that it was sent to Mr. Toyama and
Plaintiff but not Ms. Kim. As Plaintiff does not dispute that
(continued . . . )
The Court therefore GRANTS Defendant’s Motion to
Dismiss WITH PREJUDICE.
Accordingly, the Court does not need to
address Defendant’s arguments regarding timely exhaustion of
For the foregoing reasons, the Court GRANTS
Defendant’s Motion to Dismiss, ECF No. 13, WITH PREJUDICE, and
Plaintiff’s Complaint is hereby DISMISSED.
IT IS SO ORDERED.
Honolulu, Hawaii, February 27, 2017.
Alan C. Kay
Sr. United States District Judge
Shareef v. McHugh, Civ. No. 16-00509 ACK-KJM, Order Granting Defendant’s
Motion to Dismiss.
she received the decision and right-to-sue notice, she likely
should have known that Ms. Kim had not received the letter.
Instead, Plaintiff appears to have sat on her rights, and has
not provided any explanation that might justify equitable
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