Opinion
ORDER RE: MOTION TO DISMISS
ANTHONY W. ISHII, Senior District Judge.
The background is used for context only in this motion to dismiss. The narrative is largely derived from Plaintiff's allegations and are not facts determined to be true by the court.
Plaintiff Larcenia Taylor started working for the Bakersfield office of the Census Bureau in July 2009. Plaintiff was a temporary Partnership Assistant whose job was to participate in community outreach to increase participation in the 2010 census. Plaintiff worked with four other Partnership Assistants; all of them were supervised by Daniel Romero, a Partnership Specialist. Plaintiff is African American; Daniel Romero and the four other Partnership Assistants are Hispanic Americans. Plaintiff believes she was discriminated against because of her race as the Hispanic American Partnership Assistants were given information on leads, promotional materials, and permission to go to schools, things which were denied to Plaintiff. Plaintiff brought these issues up with Daniel Romero who was not responsive to her concerns and told her that if she continued to bring up discrimination, he would fire her.
In February 2010, Plaintiff was contacted by Ray Johnson, a Partnership Specialist in the Fresno office of the Census Bureau, who was seeking information on African-American churches. Plaintiff sought the information from Daniel Romero who told Plaintiff that the information did not exist. When Plaintiff responded to Ray Johnson, he told her that Daniel Romero had sent him the requested information. Plaintiff then discussed her problems with Daniel Romero and the Bakersfield office in general. In March 2010, Plaintiff was transferred to the Fresno office. Plaintiff resigned from her position in April 2010.
Through her time with the Census Bureau, Plaintiff had contacted various persons within the Census Bureau hierarchy, complaining about Daniel Romero and other individuals who discriminated against her. She had also contacted officers of the Census Bureau's Equal Employment Opportunity ("EEO") Office who handle allegations of employment discrimination. In August 2010, Plaintiff attended a Census Bureau job fair; she encountered the individuals who she complained about still employed by the Census Bureau. Plaintiff then contacted the EEO and filed a formal administrative complaint in September 2010. The administrative complaint was denied by Defendant Department of Commerce (within which the Census Bureau is situated) in December 2010 on the basis that Plaintiff was untimely in contacting the EEO with her complaints. Plaintiff then sought review by the U.S. Equal Employment Opportunity Commission ("EEOC"). On October 11, 2012 the EEOC issued a final decision affirming the earlier decision.
Plaintiff filed suit against Defendant in federal district court on November 28, 2012. Doc. 1. Plaintiff is pro se, proceeding in forma pauperis. Her complaint was screened and dismissed with leave to amend. Doc. 3. The operative complaint is the first amended complaint ("FAC"). Doc. 4. The FAC was also screened. Plaintiff's claims for violation of the First Amendment and 42 U.S.C. § 1981 were dismissed; Plaintiff was permitted to proceed on her Title VII employment discrimination claim. Docs. 7 and 11. Defendant filed a motion to dismiss for lack of subject matter jurisdiction, arguing that Plaintiff's untimely contact with the EEO means her claim has not been administratively exhausted. Doc. 17. Plaintiff opposes the motion. Doc. 18. The matter was taken under submission without oral argument.
II. Legal Standards
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar , 646 F.3d 1240, 1242 (9th Cir. 2011); Johnson v. Riverside Healthcare Sys. , 534 F.3d 1116, 1121 (9th Cir. 2008). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Faulkner v. ADT Sec. Servs. , 706 F.3d 1017, 1019 (9th Cir. 2013); Johnson , 534 F.3d at 1121. However, complaints that offer no more than "labels and conclusions" or "a formulaic recitation of the elements of action will not do." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009); Dichter-Mad Family Partners. LLP v. United States , 709 F.3d 749, 761 (9th Cir. 2013). The Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Wilson v. Hewlett-Packard Co. , 668 F.3d 1136, 1145 n. 4 (9th Cir. 2012); Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001). To avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal , 556 U.S. at 678; see Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678; Dichter-Mad, 709 F.3d at 761. "Plausibility" means "more than a sheer possibility, " but less than a probability, and facts that are "merely consistent" with liability fall short of "plausibility." Iqbal , 556 U.S. at 678; Li v. Kerry , 710 F.3d 995, 999 (9th Cir. 2013). Complaints that offer no more than "labels and conclusions" or "a formulaic recitation of the elements of action will not do." Iqbal , 556 U.S. at 678; Dichter-Mad, 709 F.3d at 761. The Ninth Circuit has distilled the following principles from Iqbal and Twombly: (1) to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively; (2) the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011). In assessing a motion to dismiss, courts may consider documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice. Dichter-Mad, 709 F.3d at 761. If a motion to dismiss is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made." Henry A. v. Willden , 678 F.3d 991, 1005 (9th Cir. 2012). However, leave to amend need not be granted if amendment would be futile or if the plaintiff has failed to cure deficiencies despite repeated opportunities. See Mueller v. Aulker , 700 F.3d 1180, 1191 (9th Cir. 2012); Telesaurus VPC. LLC v. Power , 623 F.3d 998, 1003 (9th Cir. 2010).
III. Discussion
Defendant's sole argument is that "Plaintiff knew she had an obligation to contact an EEO counselor within 45 days of the alleged discriminatory conduct but waited until more than 100 days after she left her federal employment, and approximately eight months after she was aware of the claimed discriminatory conduct before complaining to the EEO counselor." Doc. 17-1, Defendant Brief, 1:20-24. "(1) An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action. (2) The agency or the Commission shall extend the 45-day time limit in paragraph (a)(1) of this section when the individual shows that he or she was not notified of the time limits and was not otherwise aware of them, that he or she did not know and reasonably should not have been known that the discriminatory matter or personnel action occurred, that despite due diligence he or she was prevented by circumstances beyond his or her control from contacting the counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission." 29 C.F.R. § 1614.105(a).
Defendant asserts the requirement to contact an EEO Counselor within 45 days is an issue of subject matter jurisdiction; failure of a plaintiff to establish timely contact deprives the courts of subject matter jurisdiction to hear a plaintiff's claim. Doc. 17-1, Defendant Brief, 5:12-7:28. Older Ninth Circuit case law does state that "To establish federal subject matter jurisdiction, [plaintiff] was required to exhaust her EEOC administrative remedies before seeking federal adjudication of her claims." EEOC v. Farmer Bros. Co. , 31 F.3d 891, 899 (9th Cir. 1994); see Sommatino v. United States , 255 F.3d 704, 708 (9th Cir. 2001) ("In cases where a plaintiff has never presented a discrimination complaint to the appropriate administrative authority, we have held that the district court does not have subject matter jurisdiction"). Other Ninth Circuit decisions have noted the imprecise use of the term "subject matter jurisdiction" and conflicting case law on this issue: "There is a subtle distinction here worthy of note. We do not recognize administrative exhaustion under Title VII as a jurisdictional requirement per se; we treat it as a legal question under the de novo standard because the issue is whether the plaintiff has satisfied a statutory precondition to suit. Some courts, however, have treated exhaustion as a jurisdictional requirement." Vinieratos v. United States , 939 F.2d 762, 768 (9th Cir. 1991), emphasis in original and citations omitted. The U.S. Supreme Court shares Vinieratos's concern in trying to disentangle "the distinction between two sometimes confused or conflated concepts: federal-court subject-matter' jurisdiction over a controversy; and the essential ingredients of a federal claim for relief, " establishing a new rule that "If the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character." Arbaugh v. Y & H Corp. , 546 U.S. 500, 503 and 515-16 (2006), citations omitted.
Regarding the specific administrative exhaustion requirement (contact with EEO Counselor within 45 days), the Ninth Circuit has recently stated, "although the regulatory pre-filing exhaustion requirement at § 1614.105 does not carry the full weight of statutory authority' and is not a jurisdictional prerequisite for suit in federal court , we have consistently held that, absent waiver, estoppel, or equitable tolling, failure to comply with this regulation [is]... fatal to a federal employee's discrimination claim' in federal court." Kraus v. Presidio Trust Facilities Division/Residential Mgmt. Branch , 572 F.3d 1039, 1043 (9th Cir. 2009), emphasis added and quoting Lyons v. England , 307 F.3d 1092, 1105 (9th Cir. 2002). "[T]he failure to timely exhaust administrative remedies is not a jurisdictional prerequisite to a Title VII claim. Rather, this shortcoming relates to the substantive adequacy' of Norris's complaint.... The exhaustion requirement is a condition of bringing a Title VII claim in court, but Title VII is not a statute in which the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional.'" Norris v. Foxx, 2014 U.S. Dist. LEXIS 31431, *10 (W.D. Wash. 2014), quoting Arbaugh v. Y & H Corp. , 546 U.S. 500, 515 (2006).
Thus, Defendant's motion must be analyzed under Fed. Rule Civ. Proc. 12(b)(6), failure to state a claim, and not Fed. Rule Civ. Proc. 12(b)(1), lack of subject matter jurisdiction. In critical part, the court will not consider the various declarations Defendant provides (Docs. 17-2, 17-3, 17-4, and 17-5) as they are not properly subject to judicial notice. Defendant does ask for judicial notice of two decisions issued by the EEOC. Doc. 17-6. The court takes judicial notice of the fact that the EEOC denied Plaintiff's claims; the factual background and legal reasoning contained within the two orders are not subject to judicial notice. "Whether a plaintiff in a Title VII action has timely exhausted her administrative remedies is an affirmative defense, [so] the defendant bears the burden of pleading and proving it.'" Kraus v. Presidio Trust Facilities Division/Residential Mgmt. Branch , 572 F.3d 1039, 1046 n.7 (9th Cir. 2009), quoting Bowden v. United States , 106 F.3d 433, 437 (D.C. Cir. 1997). Additionally, there is the possible argument of equitable tolling. "[T]here are three principal, though not exclusive, situations in which equitable tolling may be appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1387 (3rd Cir. 1994), citations omitted.
Plaintiff alleges that "61. The discrimination the Plaintiff endured on a daily basis working for the Defendant, Department of Commerce or its supervisor personnel. The Plaintiff resigned on April 2010. Plaintiff could not continue to work for the Defendants in a different position because of the alleged discrimination, differential treatment she received fropm the Defendants supervisor personnel, Daniel Romero, Reyna Olaguez in the Partnership Program." Doc. 4, FAC, 10:27-11:2. Plaintiff describes generally actions she found to be discriminatory through her period of employment with the Census Bureau (July 2009 to April 2010). Plaintiff makes a number of factual assertions in her complaint regarding contacting an EEO Counselor. In discussing events that took place from July through December 2009, Plaintiff stated generally, "All during this time plaintiff had contacted and complained to Claudia Catota, EEO Specialist/Counselor with the Census Department." Doc. 4, FAC, 3:8-10. In reference to an incident in December 2009, Plaintiff specifically said "she called Claudia Catota telling her all that was happening to her." Doc. 4, FAC, 4:16-17. After Plaintiff left Defendant's employ, Plaintiff attended a Census Office job fair in August 2010 and soon thereafter, "called Claudia Catota, Census EEOC specialist/counselor." Doc. 4, FAC, 6:9-10. Additionally, Plaintiff claims that she had been "writing letters to central director (John Flores) James Christy (Regional Director) Claudia Catota (Census EEOC specialist/counselor).... 56. Plaintiff sent John Flores a letter on April 30, 2010. Plaintiff told Flores about the discrimination and the fact that Daniel Romero said, Flores told him to handle the problem. 57. Plaintiff sent James Christy a letter on May 15, 2010 regarding the discrimination and institutional racism being practiced in the census." Doc. 4, FAC, 6:23-25 and 10:11-14.
Plaintiff alleges Claudia Catota is the EEO Counselor. The positions of John Flores and James Christy are unclear but contact with them might also satisfy the 45 day contact requirement: "The EEOC has long and consistently adhered to an interpretation of 29 C.F.R. § 1614.105 that a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process.' EEOC Management Directive 110, at ch. 2, § I.A n.1.... In fact, even contact with certain agency officials who are not EEO personnel has been held sufficient to satisfy the regulation's contact with a Counselor' requirement, provided they are found to be logically connected to the EEO process' within the agency. See, e.g., Duke v. Slater, EEOC Dec. 01A02129, 2000 EEOPUB LEXIS 3424, 2000 WL 732027, at *1 (EEOC May 22, 2000) (holding that a letter sent to the Regional Director of the Department of Transportation's Office of Civil Rights qualified as initiating contact)." Kraus v. Presidio Trust Facilities Division/Residential Mgmt. Branch , 572 F.3d 1039, 1044-45 (9th Cir. 2009); see Culpepper v. Schafer , 548 F.3d 1119, 1123 (8th Cir. 2008) ("the director of an agency's office of civil rights is logically connected with the EEO process"). Whether John Flores and James Christy are sufficiently connected with the EEO process to satisfy exhaustion under 29 C.F.R. § 1614.105 requires further development. At this point, Plaintiff has alleged contact in 2009 (which may be fairly read at this stage to cover the events of July to December 2009) and contact in April and May 2010 (which covers her resignation in April 2010). Plaintiff has sufficiently pled facts to satisfy this step of administrative exhaustion at this early stage of the litigation.
Insofar as Defendant wishes to raise a different administrative exhaustion requirement (e.g. Plaintiff did not file a formal EEO complaint within 15 days of a notice of right to file letter), the issue is not fully argued in this motion. Further, these matters might be better resolved through an early motion for summary judgment rather than a motion to dismiss.
IV. Order
Defendant's motion to dismiss is DENIED. Defendant is ordered to file an answer within thirty (30) days of the filing of this order.
IT IS SO ORDERED.