Nguyen v. The Boeing Company

Filing 24

ORDER granting dft's 12 Motion to Dismiss; denying as moot pltf's 14 Motion for Summary Judgment; court grants pltf 30 days to file an amended complaint by Judge Richard A Jones.(RS) cc pltf

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MINHNGA NGUYEN,

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Plaintiff,
CASE NO. C15-793RAJ

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v.
ORDER
THE BOEING COMPANY,

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Defendant.

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I. INTRODUCTION

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This matter comes before the Court on Defendant Boeing Company’s

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(“Defendant”) Motion to Dismiss (Dkt. # 12) and Plaintiff Minhnga Nguyen’s

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(“Plaintiff”) Motion for Summary Judgment (Dkt. # 14). For the reasons set forth below,

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the Court hereby GRANTS Defendant’s Motion and DENIES as MOOT Plaintiff’s

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Motion.
II. BACKGROUND

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The facts set forth herein are derived from Plaintiff’s Complaint. Dkt. # 1.

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Plaintiff repeats the vast majority of these allegations – though with a few wrinkles –

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throughout her various filings, including her Motion for Summary Judgment (Dkt. # 14),

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her opposition to Defendant’s Motion to Dismiss (Dkt. # 15), the “supplement” to her

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motion for summary judgment (Dkt. # 18), 1 and her “Request to Admit Witness

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Testimony” (Dkt. # 21). 2

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Defendant has filed a surreply moving to strike this document. See Dkt. # 20. As Defendant
rightly argues, Plaintiff’s “supplement” was not timely filed. See Local Rules W.D. Wash. LCR

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Plaintiff alleges that she began working for Defendant in June 1991, working as an

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electrical engineer. See Dkt. # 1 (“Compl.”) at 2. Defendant subsequently terminated

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Plaintiff’s employment in November 2014. See id. Plaintiff claims that she was harassed

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and discriminated against based on her race, national origin, sex, and terminated in

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retaliation for complaining about such. See id. (“I was discharged as a result of their

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discrimination and retaliation acts against me. Their actions were based on my race,

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Asian, my limited English, and retaliation of my protests of discrimination.”).
Plaintiff alleges several instances of discrimination in her Complaint. These

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allegations include directions to use leave without pay for a sick day after she felt sick

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due to the theft of her eyeglasses (see id. at 2-3), to return her laptop (id. at 3), suspension

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from work for improper use of sick leave (id.), towing her car and issuing a parking ticket

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(id.), “triple disciplin[ing]” her “with a written warning on 10/15/14, for a first time

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mistake” (id.), a human resource manager’s admission that she declined to forward

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Plaintiff’s discrimination complaint to Defendant’s Equal Employment Opportunity

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office (id.), and an apparent refusal to recognize her flex schedule (id.).
In her other pleadings, Plaintiff adds allegations that although she was denied her

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request to flex her schedule (see Dkt. # 14 at 2) but that the request was subsequently

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approved (see id. at 1). Plaintiff alleges that Defendant approved male employees to

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7(d)(3) (“Any reply papers shall be filed and served no later than the noting date.”). The noting
date for Plaintiff’s Motion was August 28, 2015 (see Dkt. # 14) while Plaintiff’s “supplement”
was filed on September 9, 2015 (see Dkt. # 18). While the Court is inclined to strike Plaintiff’s
untimely filing, it declines to do so in light of Plaintiff’s pro se status. See Waters v. Young, 100
F.3d 1437, 1441 (9th Cir. 1996) (“this court has long sought to ensure that pro se litigants do not
unwittingly fall victim to procedural requirements that they may, with some assistance from the
court, be able to satisfy.”).
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Defendant filed a surreply seeking to strike this document as untimely. See Dkt. # 21. The
Court agrees as this document as filed well past the deadline for filing reply briefs (see Local
Rules W.D. Wash. LCR 7(d)(3)), constitutes an improper surreply (see Local Rules W.D. Wash.
LCR 7(g)) is of limited relevance to the issues at hand (see Fed. R. Evid. 401). The Court
declines to strike the untimely filing in light of Plaintiff’s pro se status (see Waters, 100 F.3d at
1441), but will decline to consider the attached “Declaration of Ted Yan” as it is irrelevant. Mr.
Yan himself admits that he left the systems engineering team prior to Plaintiff’s termination and
does not know why Plaintiff was discharged from her position. See Dkt. # 21 at 6 ¶¶ 3-4.

ORDER – 2

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work an alternative flex schedule but denied her request to do so. See id. at 2.

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Additionally, Plaintiff alleges that not a single one of Defendant’s male employees was

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refused a day of sick leave or suspended for taking sick leave. See id. Plaintiff also

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clarifies that on the day she was discharged, she fell unconscious and injured her neck

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and shoulder. Id. According to Plaintiff, a human resources manager called security to

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escort Plaintiff out and threatened to throw her in jail, but did no such thing with any

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male employee. Id. Plaintiff also seeks to add age discrimination claims. See id. at 3.

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Finally, Plaintiff newly alleges that Defendant violated the Age Discrimination in

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Employment Act (“ADEA”) when it fired her. See id.

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Plaintiff filed a charge with the Equal Employment Opportunity Commission

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(“EEOC”), which was dismissed on March 9, 2015. See Compl. at 26. That charge

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claimed only that Plaintiff was discriminated based on race, sex, and in retaliation. Id. at

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24. The EEOC issued a right to sue notice (id. at 26) but it appears that the EEOC

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revoked that determination in a subsequent letter dated May 15, 2015 (see Dkt. # 13-1

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Ex. A). 3 Subsequent to the May 15, 2015 letter, the EEOC issued a letter indicating that

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it would be unable to investigate claims of race discrimination and retaliation because of

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the inclusion of those claims in the instant suit. See Dkt. # 15 at 9. The EEOC did,

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however, indicate that it would continue to investigate Plaintiff’s sex discrimination

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claim. Id.
III. LEGAL STANDARD

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Fed. R. Civ. P. 12(b)(6) permits a court to dismiss a complaint for failure to state a

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claim. The rule requires the court to assume the truth of the complaint’s factual

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allegations and credit all reasonable inferences arising from those allegations. Sanders v.

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Brown, 504 F.3d 903, 910 (9th Cir. 2007). A court “need not accept as true conclusory

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The Court GRANTS Defendant’s Request for Judicial Notice of the EEOC letter. Courts are
permitted to take judicial notice under Federal Rule of Evidence 201 of EEOC proceedings. See
Adetuyi v. City & Cty. of San Francisco, 63 F. Supp. 3d 1073, 1080-81 (N.D. Cal. 2014) (taking
judicial notice of EEOC charges and right to sue letters); see also Cunningham v. Litton Indus.,
413 F.2d 887, 889 n.2 (9th Cir. 1969) (proper to take judicial notice of EEOC proceedings).

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allegations that are contradicted by documents referred to in the complaint.” Manzarek v.

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St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The plaintiff must

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point to factual allegations that “state a claim to relief that is plausible on its face.” Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint

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avoids dismissal if there is “any set of facts consistent with the allegations in the

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complaint” that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S.

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662, 679 (2009).

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A court typically cannot consider evidence beyond the four corners of the
complaint, although it may rely on a document to which the complaint refers if the

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document is central to the party’s claims and its authenticity is not in question. Marder v.

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Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A court may also consider evidence subject to

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judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

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Where a plaintiff proceeds pro se, the court must construe his “complaints

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liberally even when evaluating it under the Iqbal standard.” Johnson v. Lucent Techs.

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Inc., 653 F.3d 1000, 1011 (9th Cir. 2011) (citing Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010)). “Furthermore, ‘[l]eave to amend should be granted unless the pleading could

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not possibly be cured by the allegation of other facts, and should be granted more

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liberally to pro se plaintiffs.’” Id. (quoting McQuillion v. Schwarzenegger, 369 F.3d

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1091, 1099 (9th Cir. 2004)).
IV. ANALYSIS

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Before this Court can determine the substance of either Defendant or Plaintiff’s

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merits-based challenges, it must ascertain whether it has subject matter jurisdiction over

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the suit. “In order for a court to have subject matter jurisdiction over a Title VII claim, an

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individual is required to exhaust his administrative remedies by either ‘filing a timely

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charge with the EEOC, or the appropriate state agency, thereby affording the agency an

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opportunity to investigate the charge.’” Arthur v. Whitman Cty., 24 F. Supp. 3d 1024,

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1031 (E.D. Wash. 2014) (quoting B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th

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ORDER – 4

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Cir. 2002)). Once the EEOC has issued a notice of right to sue, the plaintiff must file her

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lawsuit within 90 days. See 42 U.S.C. § 2000e-5(f).
If the EEOC decides to reconsider its initial determination, it must notify the

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parties of its intent to reconsider. See 29 C.F.R. § 1601.19(b). Crucially, if the EEOC

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issues such a notice of intent to reconsider, then the regulation further provides:
If such notice of intent to reconsider is issued within 90 days of receipt of
the final no cause determination, and the person claiming to be aggrieved or
the person on whose behalf a charge was filed has not filed suit and did not
request and receive a notice of right to sue pursuant to § 1601.28(a) (1) or
(2), the notice of intent to reconsider shall vacate the letter of determination
and shall revoke the charging party's right to bring suit within 90 days.

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Id.

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The original no cause determination was issued on March 9, 2015. See Compl. at

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26. The EEOC’s notice of intent to reconsider was issued on May 15, 2015, well within

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the 90 day period, meaning that Plaintiff’s right to bring suit was revoked as of that date.

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See Martin v. Alamo Cmty. Coll. Dist., 353 F.3d 409, 413 (5th Cir. 2003) (holding that

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notice of intent to reconsider valid as of date of postmark). See Dkt. # 13-1 Ex. A. The

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instant suit was not commenced until May 20, 2015 (see Compl.), meaning that under the

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EEOC’s regulations,.

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Plaintiff does submit another letter from the EEOC (albeit one that Defendant

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claims is unauthenticated) which suggests that after having received notice of the instant

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lawsuit, the EEOC separated Plaintiff’s claims based on race and retaliation from her

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claims based on gender discrimination, the former as part of the instant suit and the latter

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as part of the EEOC investigation. See Dkt. # 15 at 9. Nevertheless, to date, Plaintiff has

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not provided another right to sue notice, and none of the information contained in that

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letter suggests that the EEOC had given Plaintiff another notice of her right to sue.

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Without that, the Court cannot consider Plaintiff’s claims. 4

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There is some question as to whether Plaintiff’s right to sue on her proposed ADEA claim may
be revoked under this regulation. See McCray v. Corry Mfg. Co., 61 F.3d 224, 228 (3d Cir.
1995). Of course, Plaintiff did not charge discrimination on the basis of age in her original
EEOC charge (see Compl. at 24) nor did she allege it in the body of her original complaint,
though it may be “reasonably related” to the allegations in that charge (see Albano v. Schering-

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What this means is that the Court must DISMISS Plaintiff’s Complaint for lack of

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subject matter jurisdiction. However, the Court will provide Plaintiff with 30 days leave

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to amend her Complaint. In order for Plaintiff’s suit to continue, she must provide a

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valid right to sue letter from the EEOC covering her claims, issued after the EEOC issued

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its notice of intent to reconsider. Until she produces such a notice, the Court cannot

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exercise jurisdiction over her claims. In other words, if Plaintiff has been issued a second

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notice of right to sue, she should file an amended complaint attaching at least (1) her

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original EEOC charge (attached at page 24 of the current Complaint) and (2) the second

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notice of right to sue.
If Plaintiff has not yet received a second notice of right to sue, then her claims

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likely are not yet ripe. Plaintiff may advise the EEOC that she wishes that they complete

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their investigation first. Alternatively, Plaintiff may request, in writing, a notice of right

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to sue covering all of her claims pursuant to 29 C.F.R. §1601.28(a) so that she may

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pursue them in the instant lawsuit. Either way, Plaintiff is advised to produce a copy of

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this Order to the EEOC and to inform them and the Court of her decision.
However Plaintiff chooses, must produce a valid notice of right to sue within 30

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days of this Order, advise this Court why she needs additional time to do so, or inform

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the Court that she has decided to allow the EEOC to continue its investigation. Barring

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such action, the Court will dismiss Defendant and close this case.

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Plough Corp., 912 F.2d 384, 386 (9th Cir. 1990)). The Court declines to address that question at
this time, given Plaintiff’s failure to present a valid right to sue notice and because that issue has
not been properly raised with the Court.

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ORDER – 6

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V. CONCLUSION

For the reasons stated above, the Court GRANTS Defendant’s Motion to Dismiss
(Dkt. # 12) and DENIES as MOOT Plaintiff’s Motion for Summary Judgment (Dkt. #
14). The Court grants Plaintiff 30 days leave to file an amended complaint attaching a
valid notice of right to sue or advising this Court why Plaintiff has not yet done so, either
because she requires additional time or because she has decided to permit the EEOC to
complete its investigation.

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DATED this 7th day of December, 2015.

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A

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The Honorable Richard A. Jones
United States District Court

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ORDER – 7