Minamoto v. Spencer

Filing 50

ORDER DENYING DEFENDANT THOMAS W. HARKER, ACTING SECRETARY OF THE NAVY'S MOTION TO DISMISS THE THIRD CAUSE OF ACTION (DISABILITY DISCRIMINATION) OF PLAINTIFF'S SECOND AMENDED COMPLAINT (ECF No. 43 ) - Signed by SENIOR JUDGE HELEN GILLMOR on 4/26/2021. Defendant Thomas W. Harker, Acting Secretary of the Navy's Motion to Dismiss The Third Cause of Action (Disability Discrimination) of Plaintiff's Second Amended Complaint (ECF No. [43 ]) is DENIED. Plaintiff is GRANTED LEAVE TO AMEND Count III to assert a claim for disability discrimination pursuant to Section 501 of the Rehabilitation Act. Plaintif f may file the Third Amended Complaint on or before Friday, May 28, 2021. The Third Amended Complaint must conform to the rulings contained in this Order. Plaintiff's Third Amended Complaint may only be amended as to Count III as set forth in th is Order. Plaintiff may not allege any new causes of action. Failure to file the Third Amended Complaint on or before Friday, May 28, 2021, will result in automatic dismissal with prejudice of the third cause of action (disability discrimination). Follows oral order of 4/21/2021 Hearing at ECF 49 (jo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHISATO JENNIFER MINAMOTO,

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Plaintiff,
vs.
THOMAS W. HARKER, Acting
Secretary of the Navy,
Defendant.

CIV. NO. 20-00043 HG-KJM

ORDER DENYING DEFENDANT THOMAS W. HARKER, ACTING SECRETARY OF THE
NAVY’S MOTION TO DISMISS THE THIRD CAUSE OF ACTION (DISABILITY
DISCRIMINATION) OF PLAINTIFF’S SECOND AMENDED COMPLAINT (ECF No.
43)
Plaintiff Chisato Jennifer Minamoto (“Plaintiff”) has filed
suit for discrimination and harassment she alleges she faced when
employed as a Shipfitter at the Pearl Harbor Naval Shipyard.
Plaintiff claims that in July 2017 she was assigned to Shop
11 at the Shipyard where she was allegedly subjected to sexual
harassment, a hostile work environment, and inappropriate sexual
contact by her male co-workers.

The Second Amended Complaint

asserts that Plaintiff complained of the harassment and unsafe
working conditions to her supervisors and the Equal Employment
Opportunity Office until she was reassigned to a different work
environment.
The Second Amended Complaint states that in December 2018,
Plaintiff’s supervisors informed her that she was required to
return to work at Shop 11.

Plaintiff alleges that she provided

1

her employer with a doctor’s note explaining that she was
undergoing psychological counseling due to workplace harassment
which caused her to develop a disability preventing her from
returning to Shop 11.
Plaintiff claims that in May 2019, she was terminated for
work absences regarding her mental health treatment.

The Second

Amended Complaint asserts that the termination was a pretext for
discrimination and was in retaliation for her complaints of
discrimination and unsafe conditions.

Plaintiff alleges that her

employer was aware that she was under a doctor’s care for her
mental disability that prevented her from returning to work at
Shop 11.
The Second Amended Complaint asserts that a few days after
her termination, Plaintiff again contacted the Equal Employment
Opportunity Office at Pearl Harbor.

Plaintiff claims that she

filed a Formal Complaint against the Navy, complied with all of
the administrative prerequisites prior to filing suit, and was
issued a Right To Sue letter.
Plaintiff filed a Second Amended Complaint in this Court
alleging five counts:
Count I: Hostile Work Environment based on Sexual
Harassment in violation of Title VII of the Civil
Rights Act of 1964;
Count II: Discrimination based on Sex/Gender in violation of
Title VII of the Civil Rights Act of 1964;
Count III: Discrimination Based on Mental Disability, Failure
to Accommodate, and Failure to Engage in the
Interactive Process in violation of the Americans
2

With Disabilities Act of 1990 and Hawaii state
law;
Count IV: Retaliation for complaining about unsafe
conditions and unlawful discrimination in
violation of Title VII of the Civil Rights Act of
1964;
Count V: Unlawful Termination in Violation of the Family
Medical Leave Act.
Defendant Thomas W. Harker, Acting Secretary of the Navy
(“Defendant Navy”) filed a Motion to Dismiss Count III in the
Second Amended Complaint.

Defendant Navy argues that the Court

lacks subject-matter jurisdiction over Plaintiff’s disability
discrimination claim.

Defendant asserts Plaintiff failed to

exhaust her administrative remedies for her disability
discrimination claim before filing suit.

Defendant seeks

dismissal of that claim pursuant to Fed. R. Civ. P. 12(b)(1).
The Court has subject-matter jurisdiction over the case
pursuant to federal question jurisdiction.

Plaintiff’s claims

arise pursuant to federal law, specifically Title VII of the
Civil Rights Act of 1964 and the Family Medical Leave Act.
Exhaustion of administrative remedies for purposes of
bringing employment discrimination claims is mandatory, but not
jurisdictional, even when brought against the federal government
by federal employees.

Exhaustion of administrative remedies for

such claims is not subject to Federal Rule of Civil Procedure
12(b)(1).
Plaintiff pled that she exhausted her administrative
remedies.

To the extent Defendant seeks to challenge Plaintiff’s
3

pleading by relying on extrinsic evidence, there are questions of
fact as to the exhaustion of Plaintiff’s disability
discrimination claim.
Defendant Thomas W. Harker, Acting Secretary of the Navy’s
Motion to Dismiss The Third Cause of Action (Disability
Discrimination) Of Plaintiff’s Second Amended Complaint (ECF No.
43) is DENIED.
Plaintiff is granted leave to amend Count III, her
disability discrimination claim, because Section 501 of the
Rehabilitation Act is the exclusive remedy for disability
discrimination claims against federal government employers.
Title I of the Americans With Disabilities Act of 1990 does not
apply to federal government employers.
PROCEDURAL HISTORY
On January 31, 2020, Plaintiff filed a Complaint.

(ECF No.

1).
On October 19, 2020, Plaintiff filed a FIRST AMENDED
COMPLAINT.

(ECF No. 17).

On November 13, 2020, the Government filed a Motion to
Dismiss or in the alternative for Summary Judgment.

(ECF No.

18).
On November 26, 2020, Plaintiff filed a Second Amended
Complaint.

(ECF No. 26).

On December 1, 2020, Plaintiff filed an Opposition.

4

(ECF

No. 27).
On December 2, 2020, Plaintiff filed a Motion to Continue.
(ECF No. 29).
On the same date, the Court issued a Minute Order striking
the Government’s Motion to Dismiss, the Second Amended Complaint,
the Opposition to the Government’s Motion, and the Motion to
Continue.

(ECF No. 30).

The Court ordered the Parties to meet

and confer and instructed that if the Parties agree to dismiss
the causes of action the Government seeks to dismiss then
Plaintiff could file a Second Amended Complaint, but if the
Parties could not agree then the Government should file a Motion
to Dismiss only as to the claims they do not agree upon.

(Id.)

On January 28, 2021, the Parties filed a Joint Stipulation
to allow Plaintiff to file her Second Amended Complaint.

(ECF

No. 35).
On February 1, 2021, the Government filed a Motion to
Dismiss the Second Amended Complaint or in the alternative a
Motion for Summary Judgment.

(ECF No. 36).

On February 2, 2021, the Court issued a Minute Order
striking the Government’s Motion to Dismiss or in the alternative
for Summary Judgment as it failed to comply with the Court’s
December 2, 2020 Minute Order.

(ECF No. 41).

The Court granted

Plaintiff leave to file a Second Amended Complaint.

(Id.)

On February 11, 2021, Plaintiff filed her SECOND AMENDED
COMPLAINT.

(ECF No. 42).

5

On March 8, 2021, the Government filed DEFENDANT THOMAS W.
HARKER, ACTING SECRETARY OF THE NAVY’S MOTION TO DISMISS THE
THIRD CAUSE OF ACTION (DISABILITY DISCRIMINATION) OF PLAINTIFF’S
SECOND AMENDED COMPLAINT.

(ECF No. 43).

On March 26, 2021, Plaintiff filed her Opposition.

(ECF No.

On April 13, 2021, the Government filed its Reply.

(ECF No.

45).

47).
On April 21, 2021, the Court held a hearing on Defendant’s
Motion to Dismiss the Third Cause of Action.
BACKGROUND
According to the Second Amended Complaint:
Plaintiff Chisato Jennifer Minamoto is female.
Amended Complaint (“SAC”) at ¶ 1, ECF No. 42).

(Second

On July 10, 2017,

Plaintiff began her employment with the United States Department
of Navy as a Shipfitter “Apprentice WT 00 03,” at the Pearl
Harbor Naval Shipyard & Intermediate Maintenance Facility.
at ¶ 4).

(Id.

The Navy assigned Plaintiff to work at “Shop 11” where

she worked in and around submarines with power tools and
protective gear that was “physically demanding” and “in a very
dangerous work environment.”

(Id.)

Plaintiff claims that Shop 11 is a “male dominated
environment.”

(Id. at ¶ 5).

She asserts that managers and work

leaders use homophobic slurs with male apprentices and neglect

6

their duty to ensure a safe working environment.

(Id.)

Plaintiff asserts that she was subjected to several
incidents of sexual harassment and unsafe working conditions.
(Id. at ¶ 7).

She claims that she reported each incident through

her chain of command, but her complaints were “dismissed,
minimized and ignored by her supervisors and managers.” (Id.)
Plaintiff alleges that she reported the incidents to “at least
eight different managers over an eight-month period, and nothing
was done to resolve the harassment and [she] became more and more
concerned that her work environment was not safe.”

(Id.)

Plaintiff asserts several incidents of sexual harassment,
including:
(1)

On December 22, 2017, a male co-worker touched her
buttocks at a work party. (Id. at ¶ 8). She claims
that he also forcefully hugged her from behind and
pressed his groin against her buttocks. (Id.)

(2)

In early February 2018, a male co-worker massaged
Plaintiff’s bare back under her shirt but over her bra.
(Id. at ¶ 9). She claims she was shocked, froze, and
then got up and moved away from him, but he followed
her and started massaging her again and stated that she
“should have her boyfriend massage her.” (Id.)

(3)

In early June 2018, a male co-worker told Plaintiff
“she needed to keep her tank suit zipped up because
another male co-worker had described to him, in graphic
detail, what [Plaintiff] might look like naked.” (Id.
at ¶ 11).

Plaintiff also alleges that many other women experienced
incidents of sexual harassment in Shop 11.

(Id. at ¶¶ 6, 10).

Plaintiff alleges that she reported the incidents to three
additional supervisors, stating “she did not feel safe at work as

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every one of the sexual assaults happened unannounced from
behind, and therefore, she did not know how she was supposed to
prevent it or dodge it.” (Id. at ¶ 12).

Plaintiff requested to

be removed from Shop 11 and assigned to another location.

(Id.)

On August 13, 2018, Plaintiff reported unsafe working
conditions and sexual harassment at a meeting with Pearl Harbor
Shipyard managers.

(Id. at ¶ 17).

The following day she was

removed from Shop 11 and placed in a clerical position for one
month.

(Id. at ¶ 18).

Plaintiff was then placed in the

Calibrations department on September 17, 2018, where she felt
safer.

(Id. at ¶ 20).

On October 29, 2018, she was told by three managers that she
could not stay working in Calibrations.

(Id. at ¶ 21).

She was

told she must choose between five new job choices, one of which
was a lower pay grade position, or return to Shop 11.

(Id.)

Plaintiff reiterated her sexual harassment claims to management
and requested an investigation into her complaints about
conditions in Shop 11.

(Id. at ¶¶ 21-22).

Plaintiff claims that a work leader called her on November
14, 2018, and said, "I am going to use that information to
blackmail you so you will have to sleep with me." (Id. at ¶ 23).
A meeting was held concerning her employment options on
December 4, 2018.

(Id. at ¶ 24).

On December 6, 2018, Plaintiff

received written notice that she was required to return to work
at Shop 11 by her employer.

(Id.)

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Plaintiff states that she

“became distraught, anxious, depressed and worried....to the
point where she was disabled.”

(Id. at ¶ 25).

On December 11, 2018, Plaintiff provided a written letter to
the Navy from J. Gregory Turnbull, Psy.D., advising her employer
that Plaintiff was under his care and undergoing psychological
counseling due to a number of related workplace incidents at Shop
11.

(Id. at ¶ 26).

Plaintiff claims that Dr. Turnbull’s letter

stated that Plaintiff was disabled and could not return to Shop
11 and that he would provide updates on her ability to return.
(Id.)
Plaintiff states that Dr. Turnbull continued to update
Defendant on her disability status, and on December 21, 2018,
informed Defendant that Plaintiff was suffering from acute
anxiety disorder relating to the harassment she suffered in Shop
11.

(Id. at ¶¶ 27-28).
On January 10, 2019, Plaintiff’s supervisor Kanoa Andrade

sent her an e-mail stating that her doctor’s note was
insufficient.

(Id. at ¶ 29).

Defendant terminated Plaintiff’s employment on May 19, 2019.
(Id. at ¶ 30; Notice of Termination, dated May 15, 2019, attached
as Exhibit A to Gov’t Motion, ECF No. 43-4).
Plaintiff claims that she was terminated for absence from
work but the “reason for the termination was a pretext” because
“Defendant knew very well that [Plaintiff] was under a doctor’s
care, had suffered a mental disability and was prevented from

9

returning to work because she had been transferred back to Shop
11, against her doctor’s restrictions.”

(SAC at ¶ 30, ECF No.

42).
PLAINTIFF’S ADMINISTRATIVE CHARGE OF DISCRIMINATION
According to the Second Amended Complaint:
On August 17, 2018, Plaintiff first contacted the Pearl
Harbor Equal Employment Opportunity (“EEO”) Office to complain of
discrimination.

(Id. at ¶ 35).

On November 1, 2018, Plaintiff filed a Formal Complaint of
Discrimination with the EEO Office. (Formal Complaint of
Discrimination, signed on November 1, 2018, attached as Ex. B to
Gov’t Motion, ECF No. 43-5).
Following her termination on May 19, 2019, Plaintiff states
she updated the EEO investigator about her termination and the
EEO investigator issued a Notice of Amendment of Complaint.
at ¶ 32, ECF No. 42).

(SAC

Plaintiff states that the investigator was

required to review her claims of discrimination and the purported
basis that Defendant terminated her, despite Plaintiff providing
doctor’s notes to her employer documenting her disability.

(Id.)

According to Plaintiff, on November 10, 2019, the Pearl
Harbor EEO Office completed its investigation and issued
Plaintiff a Right to Sue Letter.

(Id. at ¶ 35).

Plaintiff

asserts that she “timely complied with all of the administrative
prerequisites to filing this suit.”

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(Id.)

STANDARDS OF REVIEW
The requirements for exhaustion of administrative remedies
in employment discrimination cases are “mandatory” and
nonjurisdictional.

Fort Bend Cty., Texas v. Davis, 139 S.Ct.

1843, 1852 (2019).

Exhaustion of administrative remedies is

subject to dismissal for failure to state a claim pursuant to
Fed. R. Civ. P. 12(b)(6), not for lack of subject-matter
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1).

Id.; Daniels

v. Donahoe, 901 F.Supp.2d 1238, 1245 (D. Haw. 2012).
A court must dismiss a claim as a matter of law pursuant to
Federal Rule of Civil Procedure 12(b)(6) where it fails “to state
a claim upon which relief can be granted.”

When considering a

Rule 12(b)(6) motion to dismiss, the Court must presume all
allegations of material fact to be true and draw all reasonable
inferences in favor of the non-moving party.
139 F.3d 696, 699 (9th Cir. 1998).

Pareto v. F.D.I.C.,

Conclusory allegations of law

and unwarranted inferences are insufficient to defeat a motion to
dismiss.

Id.

The Court need not accept as true allegations that

contradict matters properly subject to judicial notice or
allegations contradicting the exhibits attached to the complaint.
Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
Cir. 2001).

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ANALYSIS
I.

Disability Discrimination Claims Against A Federal
Government Employer

As an initial matter, Plaintiff’s Second Amended Complaint
alleges disability discrimination pursuant to the “ADA” and
Hawaii state law.
The federal government is not an employer subject to
liability pursuant to Title I of the Americans With Disabilities
Act of 1990.

42 U.S.C. § 12111(5)(B)(i) specifically provides

that the term “employer” does not include the “United States”.
Zimmerman v. Oregon Dep’t of Justice, 170 F.3d 1169, 1172 (9th
Cir. 1999) (recognizing that Congress exempted federal government
employers from liability pursuant to Title I of the ADA); Soto v.
Nielsen, 2019 WL 360773, *2 (D. Mont. Jan. 29, 2019).
Defendant Thomas W. Harker, Acting Secretary of the Navy, is
the named Defendant in this case.

The Navy is not subject to

Title I of the ADA as it is excluded from the definition of
employer.

Davis v. Johnson, 2007 WL 1430089, *9 (E.D. Cal. May

14, 2007) (finding that the Government correctly notes that the
Navy employer is not subject to ADA disability discrimination
causes of action).
The Ninth Circuit Court of Appeals has ruled that Section
501 of the Rehabilitation Act, 29 U.S.C. § 791, provides the
exclusive remedy for federal employees claiming discrimination
based on disability.

Boyd v. U.S. Postal Serv., 752 F.2d 410,

12

413 (9th Cir. 1985).
Plaintiff is granted leave to amend Count III to assert her
claim pursuant to Section 501 of the Rehabilitation Act.
II.

Exhaustion Of Administrative Remedies Is Mandatory But Not
Jurisdictional
Defendant filed a Motion to Dismiss Count III for disability

discrimination.

Defendant seeks dismissal of Plaintiff’s

disability discrimination claim for failure to exhaust her
administrative remedies before filing suit on that claim.1
A.

Federal Employees Are Required To Exhaust Employment
Discrimination Claims Before Filing Suit

To bring an employment discrimination claim under Title VII
or the Rehabilitation Act, a federal employee must timely exhaust
her administrative remedies.

Leong v. Potter, 347 F.3d 1117,

1121 (9th Cir. 2003); Boyd, 752 F.2d at 414.
The Rehabilitation Act incorporates the rights, remedies,
and procedures of Title VII claims, set forth in 42 U.S.C. §
2000e-16, in regards to claims of discrimination on the basis of
a disability, and generally provides the exclusive remedy for

1

Defendant’s Motion further states, “Defendant also
requests that this Court dismiss the remaining Causes of Action
because Plaintiff has failed to state the legal bases for these
Causes of Action and has failed to state a claim upon which
relief can be granted.” (Def.’s Motion to Dismiss at p. 2, ECF
No. 43). Defendant appears to seek to dismiss the entire suit
but there is nothing in the Motion or accompanying Memorandum to
support such a request. The Court does not consider the
unsupported argument.
13

disability-based discrimination in federal employment.

29 U.S.C.

§ 794a(a)(1); see Graves v. Clinton, 2011 WL 5024500, *8 (E.D.
Cal. Oct. 20, 2011).
To exhaust a discrimination claim, the employee must engage
in “pre-complaint processing” by contacting the relevant Equal
Employment Opportunity (“EEO”) Office within 45 days of the
alleged discrimination.

29 C.F.R. § 1614.105(a)(1).

The agency

then investigates, and the claimant may later file a Formal EEO
Complaint.

Id. at §§ 1614.105(c),(d).

If the matter is not

resolved after the agency issues its final decision, the employee
may either (1) file directly in federal court within 90 days, id.
§ 1614.407(a), or (2) appeal to the Equal Employment Opportunity
Commission (“EEOC”) within 30 days, id. §§ 1614.401(a), 402(a).
B.

Exhaustion Of Employment Discrimination Claims Against
A Federal Employer Is Mandatory But Not Jurisdictional

In 2001, the Ninth Circuit Court of Appeals ruled that the
administrative exhaustion requirement for federal employees was
“jurisdictional” and determined that a federal district court
only has subject matter jurisdiction where there was “substantial
compliance” with the administrative complaint process by the
employee.

Sommatino v. United States, 255 F.3d 704, 708 (9th

Cir. 2001).
In 2019, in Fort Bend Cty., Texas v. Davis, 139 S.Ct. 1843,
1846 (2019), the United States Supreme Court abrogated the Ninth
Circuit Court of Appeals’ precedent.
14

In Fort Bend Cty., the

United States Supreme Court considered the question of whether
administrative exhaustion requirements for employment
discrimination claims are jurisdictional prerequisites or whether
they are instead mandatory procedural requirements.

The United

States Supreme Court held that such administrative exhaustion
requirements are not jurisdictional.

Id. at 1850.

The Court

explained that the exhaustion requirements are mandatory
procedural obligations that are claim-processing rules.

Id. at

1851.
The Government argues that Fort Bend should not be extended
to claims involving federal employees because of the United
States’ sovereign immunity.

This argument has been directly

rejected by numerous district courts who have been confronted
with this issue.

Stanley v. Saul, 2020 WL 6140552, *2 n.3 (W.D.

Mo. Oct. 19, 2020); Young v. Dep’t of Treasury, 2020 WL 3980796,
*6 (W.D. Tenn. Apr. 9, 2020).
In Williams v. Wolf, 2019 WL 6311381, *6 (N.D. Cal. Nov. 25,
2019), a Northern District of California Court held that the
administrative complaint requirement for discrimination claims by
federal employees is not jurisdictional.

The Court ruled that

the Ninth Circuit Court of Appeals holding in Sommatino “is no
longer good law in light of Fort Bend.”

Id.

This Court agrees with the reasoning in Williams v. Wolf.
The federal courts have subject-matter jurisdiction over
employment discrimination claims brought pursuant to Title VII of

15

the Civil Rights Act of 1964 or the Rehabilitation Act.

Fed. R.

Civ. P. 12(b)(1) is irrelevant to administrative exhaustion of
employment discrimination claims in light of the ruling in Fort
Bend.

Id.; Jass v. CherryRoad Techs., Inc., 449 F.Supp.3d 923,

932 n.4 (D. Haw. 2020).
The United States Supreme Court’s decision in Fort Bend
Cty., Texas, 139 S.Ct. at 1846, abrogates the Ninth Circuit Court
of Appeals’ decisions which have ruled that administrative
exhaustion is jurisdictional.
III. The District Court Is Limited In A Review Pursuant To Fed.
R. Civ. P. 12(b)(6)

The standard by which a defendant may seek dismissal for
failure to exhaust administrative remedies for employment
discrimination claims is limited to Fed. R. Civ. P. 12(b)(6).
Fort Bend Cty., Texas, 139 F.3d at 1850-51; Jass, 449 F.Supp.3d
at 932 n.4; Vasquez v. Kiewit Infrastructure West, Co., 2020 WL
2842671, *4 (D. Haw. June 1, 2020) (construing a 12(b)(1) motion
for failure to exhaust made pursuant to 12(b)(6) following the
decision in Fort Bend).
When the Court does a review pursuant to Fed. R. Civ. P.
12(b)(6), the Court accepts as true the allegations in the
complaint and construes the allegations in the light most
favorable to the plaintiff.

Navarro v. Block, 250 F.3d 729, 732

(9th Cir. 2001); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007).
16

Here, Plaintiff has sufficiently pled that she has complied
with the mandatory filing prerequisites for filing suit.
Plaintiff alleges that all of the administrative prerequisites
have been fulfilled.

(Second Amended Complaint at ¶ 35, ECF No.

42).
Defendant requests that the Court look beyond the
allegations in the Second Amended Complaint to dismiss Count III.
In ruling on a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6), the Court is generally limited to the four-corners of
the complaint and may not consider facts presented in extrinsic
evidence.

Butler v. Los Angeles Cty., 617 F.Supp.2d 994, 999

(C.D. Cal. 2008).
The Court may, however, consider material which is properly
submitted as part of the complaint, documents which are
uncontested and are incorporated by reference in the complaint,
and documents subject to judicial notice as matters of public
record.

Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.

2001).
In support of its Motion, Defendant attached:
Exhibit A:

Plaintiff’s Notice of Termination, dated May
15, 2019 (ECF No. 43-4);

Exhibit B:

Plaintiff’s Formal Complaint of
Discrimination, dated November 1, 2018 (ECF
No. 43-5);

Exhibit C:

Correspondence from the Department of Navy to
Benjamin Toyama, dated November 29, 2018 (ECF
No. 43-6);

Exhibit D:

Correspondence from the Department of Navy to
17

Mr. Toyama dated December 19, 2018 (ECF No.
43-7);
Exhibit E:

Correspondence from the Department of Navy to
Mr. Toyama dated January 17, 2019 (ECF No.
43-8); and,

Exhibit F:

Correspondence from the Department of Navy to
Dennis Vanderpool dated May 23, 2019 (ECF No.
43-9).

In support of her Opposition, Plaintiff attached:
Exhibit 1:

Portion of the EEO Report of Investigation
dated November 8, 2019 (ECF No. 45-1 at pp.
4-16).

Exhibits A and B are incorporated by reference in the Second
Amended Complaint.

(SAC at ¶¶ 30-31, 35, ECF No. 42).

The

remaining documents, however, constitute extrinsic evidence.

The

extrinsic evidence raises questions of fact that are beyond the
scope of the Court’s limited inquiry pursuant to Fed. R. Civ. P.
12(b)(6).
IV.

Questions Of Fact Remain As To Exhaustion
The Ninth Circuit Court of Appeals has explained that a

detailed factual inquiry may be required when evaluating whether
a plaintiff has exhausted her administrative remedies for her
employment discrimination claims.

The Ninth Circuit Court of

Appeals has adopted an expansive policy that allows for a finding
of exhaustion as to “all allegations of discrimination that
either fell within the scope of the EEOC’s actual investigation
or an EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.”
18

B.K.B. v. Maui Police

Dep’t, 276 F.3d 1091, 1100-01 (9th Cir. 2002), abrogated, in
part, by Fort Bend Cty., Texas, 139 S.Ct. at 1852 (internal
quotations and original emphasis omitted).
The Ninth Circuit Court of Appeals explained in B.K.B. that
even if the charge of discrimination itself is deficient, the
court may look to outside evidence to determine if the agency
itself was negligent for failing to include information as part
of the charge.

Id. at 1101-03.

The inquiry is broad in scope

and requires a determination of: (1) whether the agency actually
did investigate the type of claim that is deficient on the face
of the charge of discrimination; or (2) whether the agency should
have investigated the type of claim that is deficient in the
charge of discrimination.

Id.; see Maybin v. Hilton Grand

Vacations Co., LLC, Civ. No. 17-00489 DKW-KSC, 2018 WL 2944149,
*6 (D. Haw. June 12, 2018).
Plaintiff has submitted a document related to the EEO
investigation of her discrimination claim.

The document raises

questions surrounding the EEOC’s investigation, the notice
provided to the EEO as to Plaintiff’s disability and treatment by
a doctor regarding her mental health as it relates to her
termination, and the scope of the EEO inquiry.

The Court is

unable to conduct a factual inquiry pursuant to Fed. R. Civ. P.
12(b)(6).

Plaintiff pled that she complied with the

administrative exhaustion requirements before filing suit.
The inquiry about administrative exhaustion requires a

19

detailed examination of fact and such an inquiry is not suitable
for review in a 12(b)(6) motion.

Here, there appear to be

disputes and questions of fact as to the scope of the EEO’s
investigation.

See Vergara v. Skyline ULTD Inc., Civ. No. 19-

00564 SOM-RT, 2019 WL 6702544, *5 (D. Haw. Dec. 9, 2019).
CONCLUSION
Defendant Thomas W. Harker, Acting Secretary of the Navy’s
Motion to Dismiss The Third Cause of Action (Disability
Discrimination) of Plaintiff’s Second Amended Complaint (ECF No.
43) is DENIED.
Plaintiff is GRANTED LEAVE TO AMEND Count III to assert a
claim for disability discrimination pursuant to Section 501 of
the Rehabilitation Act.
Plaintiff may file the Third Amended Complaint on or before
Friday, May 28, 2021.

The Third Amended Complaint must conform

to the rulings contained in this Order.

Plaintiff’s Third

Amended Complaint may only be amended as to Count III as set
forth in this Order.
action.

Plaintiff may not allege any new causes of

Failure to file the Third Amended Complaint on or before

Friday, May 28, 2021, will result in automatic dismissal with
prejudice of the third cause of action (disability
discrimination).
//
//

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IT IS SO ORDERED.
DATED: April 26, 2021, Honolulu, Hawaii.

Chisato Jennifer Minamoto v. Thomas W. Harker, Acting Secretary
of the Navy, Civ. No. 20-00043 HG-KJM; ORDER DENYING DEFENDANT
THOMAS W. HARKER, ACTING SECRETARY OF THE NAVY’S MOTION TO
DISMISS THE THIRD CAUSE OF ACTION (DISABILITY DISCRIMINATION) OF
PLAINTIFF’S SECOND AMENDED COMPLAINT (ECF No. 43)
21