Kayky v. The Boeing Company

Filing 18

ORDER denying dft's 9 Motion to Dismiss by Judge Robert S. Lasnik.(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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_______________________________________
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VERA KAYKY,
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Plaintiff,
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v.
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THE BOEING COMPANY,
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Defendant.
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_______________________________________)

No. C15-0488RSL

ORDER DENYING MOTION
TO DISMISS

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This matter comes before the Court on “Defendant The Boeing Company’s 12(b)(6)
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Motion to Dismiss.” Dkt. # 9. Plaintiff’s complaint and the Equal Employment Opportunity
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Commission (“EEOC”) documents provided by defendant,1 taken in the light most favorable to

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plaintiff, support the following inferences: Plaintiff was harassed and discriminated against
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while employed at Boeing based on her national origin. Her internal complaints went unheeded,
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and she filed a charge with the EEOC on February 27, 2014. Boeing terminated plaintiff’s
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employment while the EEOC investigation was proceeding. When the EEOC issued a “right to
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sue letter,” plaintiff timely filed this action asserting claims of national origin discrimination and
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retaliatory discharge. In its motion, Boeing seeks dismissal of all claims arising out of events that
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occurred after February 27, 2014, including the termination, on the ground that plaintiff has not
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The Court has not considered plaintiff’s untimely opposition or the arguments defendant first
raised in reply.
ORDER DENYING MOTION TO DISMISS

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adequately pled that she exhausted her administrative remedies.
The Court disagrees. Plaintiff expressly alleges, “February 27, 2014 Ms. Kayky filed a

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charge with the EEOC alleging violations of Title VII by Defendant, the Boeing Company. All

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conditions precedent to the institution of this law suit have been fulfilled.” Dkt. # 1 at 3. While a

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conclusory assertion of exhaustion will not carry the day, plaintiff also describes a series of

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discriminatory acts, both before and after she filed her EEOC charge, and provides facts from

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which one could reasonably infer that her termination was another example of discriminatory

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conduct, retaliation for her protected activity, or both. The termination occurred while plaintiff’s

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charge was being considered by the agency and, according to plaintiff, was causally connected to

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both the charge and the employer’s discriminatory intent. Under Ninth Circuit law, claims of

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discrimination and retaliation are considered exhausted if they are specifically identified in the

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EEOC charge, if they “are like or reasonably related to the allegations contained in the EEOC

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charge,” or if they “are within the scope of an EEOC investigation that reasonably could be

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expected to grow out of the allegations.” B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099-

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1100 (9th Cir. 2002); Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003). This inquiry applies

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to “allegations occurring not only before, but also after the filing of [plaintiff’s] EEOC charge.”

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Sosa v. Hiraoka, 920 F.2d 1451, 1456-57 (9th Cir. 1990). “To force an employee to return to the

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. . . agency every time he claims a new instance of discrimination in order to have the EEOC and

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the courts consider the subsequent incidents along with the original ones would erect a needless

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procedural barrier.” Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973). In

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its motion, Boeing fails to acknowledge, much less address, the facts alleged in the complaint or

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the governing law, instead simply pointing out that a Title VII plaintiff must exhaust her

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administrative remedies.

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The question for the Court on a motion to dismiss is whether the facts alleged in the

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complaint sufficiently state a “plausible” ground for relief. Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 570 (2007). “A claim is facially plausible when the plaintiff pleads factual content that
ORDER DENYING MOTION TO DISMISS

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). Taking the allegations of

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the complaint as true and drawing all reasonable inferences in favor of plaintiff (In re Fitness

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Holdings Int’l, Inc., 714 F.3d 1141, 1144-45 (9th Cir. 2013)), the Court finds that plaintiff has

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adequately pled that she has exhausted her administrative remedies as to both the discrimination

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and retaliation claims.

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For all of the foregoing reasons, defendant’s motion to dismiss (Dkt. # 9) is DENIED.

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Dated this 20th day of November, 2015.

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A
Robert S. Lasnik

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United States District Judge
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ORDER DENYING MOTION TO DISMISS

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