Opinion
Argued and Submitted Oct. 16, 2001.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Staff psychologist brought conditions of employment action against State and supervisor under Title VII, § 1983, and state statutes. The United States District Court for the District of Nevada, David Warner Hagen, J., dismissed claims. Psychologist appealed. The Court of Appeals held that (1) psychologist was entitled to amend her Title VII complaint, and (2) res judicata on basis of state administrative appeal process did not bar § 1983 action.
Reversed and remanded.
Appeal from the United States District Court for the District of Nevada David Warner Hagen, District Judge, Presiding.
Before GOODWIN, HUG, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Plaintiff Patricia Douglass-Woodruff appeals the judgment dismissing her claims under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) and 42 U.S.C. § 1983, and as well as her state law claims. The case arose out of conditions of her employment as a staff psychologist with the State of Nevada under the supervision of Defendant Marilyn J. Newell. We reverse and remand.
Page 759.
Plaintiff's amended complaint alleged claims against the State of Nevada which the district court dismissed pursuant to the Eleventh Amendment; the dismissal of these claims is not being appealed. Her claims against Defendant Newell were dismissed sua sponte because the complaint failed to allege that she had complied with the pre-litigation requirements of 42 U.S.C. § 2000e-5(b). Plaintiff had in fact complied and had obtained a "right to sue" letter, but had simply failed to so allege in her complaint. Plaintiff was entitled to amend her complaint. When she filed a motion to reconsider instead of a motion for leave to amend, her motion was denied.
On remand, the district court should grant a timely motion to amend. "[D]ismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment." Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir.2001) (citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir.1996)). "[I]n a line of cases stretching back nearly 50 years, we have held that in dismissing for failure to state a claim under Rule 12(b)(6), 'a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.' " Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000) (emphasis added) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)). Douglass-Woodruff's pleading could be saved by an amendment that alleges that she exhausted her administrative remedies with the EEOC.
The district court dismissed Plaintiff's § 1983 claim on the basis of res judicata. We reverse the dismissal of the § 1983 claim because the facts pertinent to Plaintiff's § 1983 claim differ from those that the Nevada statute permits to be adjudicated in Plaintiff's administrative appeal. Nevada Statute § 284.390, the section under which Plaintiff brought her administrative appeal, permits the adjudication of the reasonableness only of a dismissal, demotion or suspension, and provides only reinstatement and back pay as remedies. Nevada Administrative Code § 281.305 grants a hearing to state employees who claim that reprisal or retaliatory action was taken against them for disclosing information concerning improper governmental action, but provides only injunctive relief. Therefore, the Nevada administrative appeal process does not provide Plaintiff with the same remedies that § 1983 does.
No party is to recover costs on this appeal. If the case is not disposed of on remand, any costs incurred thereafter can abide the final disposition of the case.
Reversed and remanded.