Opinion
2:08-cv-806-GEB-GGH.
June 25, 2008
ORDER
This motion was determined to be suitable for decision without oral argument. L.R. 78-230(h).
Defendants move for dismissal of Plaintiff Della Seay's First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). Plaintiff alleges Defendants violated her state and federal rights by discriminating against her, harassing her, retaliating against her and failing to accommodate her disability after she returned to work following a medical leave. Defendants also move for an order striking Plaintiff's emotional distress claim, which appears only in the caption of the complaint.
Plaintiff was an employee of Defendant Sierra Community College District ("Sierra") during the time relevant to her complaint. (First Am. Compl. ("FAC") ¶¶ 3.1, 5.18.) Plaintiff had back surgery in July 2005 following which her doctor placed her on "temporary disability and medical leave." (Id. ¶ 5.3.)
Plaintiff alleges that when she returned to work at Sierra following her back surgery, Sierra "refused to provide [her] with a reasonable accommodation," her supervisors harassed her, and she was constructively discharged. (Id. ¶¶ 5.7, 5.18-19, 5.21, 5.23, 5.26, 5.28.) Plaintiff alleges the following "state" and "federal" claims against all Defendants without specifying the statutory basis for her claims: (1) race discrimination, (2) age discrimination, (3) disability discrimination, (4) medical condition discrimination, (5) harassment, (6) retaliation, and (7) failure to accommodate her disability.
Defendants argue Plaintiff's federal claims under Title VII, the ADA, the Rehabilitation Act and the ADEA should be dismissed because these claims are untimely. (Mot. at 10:11-11:10.) Under these statutes, a civil action must be filed within ninety days of the receipt of a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e); 42 U.S.C. § 12117(a)-(b); O'Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006) (affirming dismissal of Title VII and ADEA claims as untimely where claims were filed more than ninety days after plaintiff received right-to-sue letter); Beutler v. Potter, 2007 WL 2990360, at *4 (N.D. Cal. Oct. 11, 2007) (dismissing Rehabilitation Act claim for failure to file within ninety days of receiving right-to-sue letter); Dugay v. JPMorgan Chase, 2006 WL 3792043, at *4 (D. Ariz. Dec. 20, 2006) (dismissing ADA claim for failure to file within ninety days of receiving right-to-sue letter).
Plaintiff received her right-to-sue letter from the EEOC on July 27, 2007. (FAC, Attach. 1.) Plaintiff's initial complaint was filed on November 9, 2007, more than ninety days after Plaintiff received the right-to-sue letter. (See Defs.' Req. for Jud. Not., Ex. 1.) Accordingly, Plaintiff's federal claims are untimely.
Defendants seek dismissal of Plaintiff's federal claims without leave to amend, arguing any amendment would be futile since Plaintiff already amended her complaint once and still failed to state viable federal claims. (Mot. at 11:7-10, 23:18-21.) Plaintiff counters in a three page opposition in which she references the right-to-sue letters she received from the EEOC and asserts these letters are "sufficient to put defendant on notice [of] claims . . . made [and] to prevent dismissal of a . . . stated federal claim . . ." (Opp'n at 2:17-19.) Plaintiff's opposition says nothing about Defendants' untimeliness position and provides no information indicating Plaintiff could cure the deficiencies in her First Amended Complaint if she were given another chance to amend her federal claims. Accordingly, Plaintiff's federal claims are dismissed without leave to amend.
Since Defendants' dismissal motion is granted on all of Plaintiff's federal claims, the discretionary decision will be made whether supplemental jurisdiction should continue being exercised over his lawsuit. This decision is made under 28 U.S.C. § 1367(c)(3), and "is informed by the [United Mine Workers v. Gibbs, 383 U.S. 715 (1966)] values of economy, convenience, fairness, and comity." Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc) (quotation marks omitted). "In the usual case in which all federal-law claims are eliminated . . ., the balance of factors to be considered . . . will point toward declining to exercise jurisdiction over the remaining state-law claims."Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (1988);see also Wade v. Regional Credit Assoc., 87 F.3d 1098, 1101 (9th Cir. 1996). The Gibbs values of comity and fairness do not weigh in favor of the federal court deciding Plaintiff's state law claims, because as stated in Gibbs: "Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law." 383 U.S. at 726.
Therefore, Plaintiff's remaining state law claims are dismissed under § 1367(c)(3) as of the date on which this Order is filed.
IT IS SO ORDERED.