Opinion
No. CV-07-1261-PHX-DGC.
June 3, 2008
ORDER
Plaintiff Raymond S. Camacho has been employed by Defendant City of Tolleson Fire Department since approximately 1984. Dkt. #32 ¶ 1. In 2001, Plaintiff filed suit in state court against the Fire Department and others raising claims of discrimination. Id., Ex. C. The action was subsequently removed and, in 2004, this Court entered an order granting summary judgment for the defendants. Id., Ex. B.
Thereafter, Plaintiff filed four separate charges of discrimination with the Equal Employment Opportunity Commission ("EEOC"): a February 15, 2005, charge for which he received a notice of right to sue dated March 30, 2005; a November 21, 2005, charge for which he received a notice of right to sue dated March, 27, 2007; a July 12, 2006, charge for which he received a notice of right to sue dated July 12, 2007; and a July 9, 2007, charge for which a notice of right to sue has not been issued. Dkt. #30-2 at 72-78; see Dkt. #29 at 7 (chart summarizing these dates and information).
On June 27, 2007, Plaintiff filed a new action in this Court. Dkt. #1. On July 25, 2007, Plaintiff filed an amended complaint against the Fire Department and others (collectively, "Defendants"), alleging discrimination. Dkt. #5. In particular, Plaintiff asserts that he was demoted and removed from front-line duties in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the Age Discrimination in Employment Act of 1967 ("ADEA"), and 42 U.S.C. § 1981(a), and that he was harassed, subjected to a hostile work environment, and retaliated against in violation of Title VII and the ADEA. Id. Plaintiff claims that he suffered loss of pay and pay increases. Id. Plaintiff's claims of discrimination are premised on his national origin (Hispanic) and age (55). Id.
Defendants have moved for partial summary judgment. Dkt. #29. We begin with areas where the parties appear to be in agreement.
I. Matters Not Disputed.
The parties agree that Plaintiff is not asserting claims based on his 2000 removal from front-line duties or his 2001 demotion. See Dkt. ##36, 40. The parties also agree that Plaintiff's harassment claim under 42 U.S.C. § 1981(a) is subject to a four-year statute of limitations and therefore is timely. Id.
Defendants assert that the Title VII claims based on the February 15, 2005, charge of discrimination are untimely. See Dkt. #29. A party claiming discrimination has ninety days to file suit after receiving a notice of right to sue from the EEOC. 42 U.S.C. § 2000e-5(f)(1). Plaintiff received a right to sue notice on March 30, 2005. Dkt. #30-2 at 73. Plaintiff filed his complaint on June 27, 2007, long after the ninety days had expired. Plaintiff does not address whether his suit based on the February 2005 charge is timely. See Dkt. #36; see also Sosa v. Hiraoka, 920 F.2d 1451, 1455 (9th Cir. 1990) (plaintiff bears the responsibility of showing that a "continuing violation" theory rendered allegations in a charge timely). Therefore, to the extent that Plaintiff asserts Title VII claims based on the February 15, 2005, charge of discrimination, those claims are time-barred. See O'Donnell v. Vencor Inc., 466 F.3d 1104, 1111 (9th Cir. 2006) (dismissing complaint as untimely).
Defendants assert that Plaintiff has not received a notice of right to sue from the EEOC regarding his July 9, 2007, charge of discrimination. Dkt. #29. Plaintiff does not disagree. Dkt. #36. Prior to bringing suit under Title VII, a plaintiff must exhaust his or her administrative remedies. See EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994). A plaintiff may satisfy this requirement by filing a charge of discrimination with the EEOC and, if the charge is dismissed, receiving a right to sue notice. See 42 U.S.C. § 2000e-5(f)(1). "Failure to observe these requirements renders a suit subject to dismissal in the absence of any equitable consideration to the contrary." Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988) (citations omitted). Plaintiff has identified no equitable considerations that would excuse the exhaustion requirement. Therefore, to the extent that Plaintiff alleges discrimination based on claims in the July 9, 2007 charge under Title VII, those allegations are barred for lack of exhaustion. See id.
The Court's conclusions regarding timeliness and exhaustion also apply to Plaintiff's ADEA claims. See O'Donnell, 466 F.3d at 1111 (ADEA claims dismissed for untimeliness) ; Bankston v. White, 345 F.3d 768, 776 n. 5 (9th Cir. 2003) (noting that, with respect to the ADEA, "a plaintiff who chooses to begin the administrative review process is obliged to exhaust that review before filing a civil action.") (quotes and citation omitted).
They do not apply to claims brought pursuant to § 1981. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008) (Title VII requires exhaustion of administrative remedies, "whereas § 1981 has no such requirement.") (internal quotes and citation omitted).
II. Section 1981 Statute of Limitations.
The parties disagree on whether Plaintiff's non-harassment § 1981 claims are subject to a two-year or four-year statute of limitations. See Dkt. #40 at 3-6. Section 1981 does not specify a statute of limitations. Jones v. R.R. Donnelley Sons Co., 541 U.S. 369, 371 (2004). Congress subsequently enacted 28 U.S.C. § 1658, "a catchall 4-year statute of limitations for actions arising under federal statutes enacted after December 1, 1990." Id. In determining which claims are subject to the four-year statute of limitations, the Supreme Court announced the following rule: "a cause of action arises under an Act of Congress enacted after December 1, 1990 — and therefore is governed by § 1658's 4-year statute of limitations — if the plaintiff's claim against the defendant was made possible by a post-1990 enactment." Id. at 382 (alterations and internal quotes omitted).
As noted above, the parties agree that the harassment claims are subject to a four-year limitations period. See Dkt. ##36, 40.
In 1989, the Supreme Court limited the scope of § 1981 actions generally to claims relating to contract formation. See Patterson v. McLean Credit Union, 491 U.S. 164 (1989). In 1991, Congress enacted the Civil Rights Act of 1991 ("1991 Act"), which amended § 1981 to expand the definition of "mak[ing] and enforc[ing] contracts" to include the "termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). Thus, claims generally involving contract formation were covered by the pre-amendment version of § 1981 (two-year limitations period), while post-contract formation conduct is within the ambit of the 1991 Act (four-year limitations period).
Here, the relevant events include Plaintiff's request for front-line engineering duties, comments made by Defendant Tovar regarding Plaintiff's return to front-line duties, and pay disparities as a result of retaliation. Dkt. #36 at 6-8; Dkt. #40 at 4-5. We will address them separately.
A. Front-Line Duties.
Defendants argue that Plaintiff's claim about his on-line engineering position is "akin to a request for a promotion or for a certain job assignment, which was a viable claim prior to the 1991 amendment to Section 1981." Dkt. #40 at 3. All promotions or job assignments, however, do not trigger the pre-amendment version of § 1981. See Strother v. S. Cal. Permanente Med. Group, 79 F.3d 859, 876-77 (9th Cir. 1996) (distinguishing between promotions that give rise to a § 1981 claim and those that do not). There are a number of factors that may be considered in determining whether a promotion constitutes a sufficient change to amount to a new contract, such as new job responsibilities, whether supervisory authority is obtained, whether a different supervisor is identified, and whether the amount or form of compensation is modified. See id. Defendants have not directed the Court to evidence that would allow the Court to rule, as a matter of law, that Plaintiff's claim concerning the on-line position is actionable under the pre-1991 version of § 1981 and therefore subject to the two-year statute of limitations.
B. Tovar Comments.
The comments made by Defendant Tovar, while relating to the front-line position, did not alter the contractual relationship between Plaintiff and Defendants. Plaintiff alleges the comments were "false" and "defamatory." Dkt. #5 ¶¶ 14, 15. The comments are akin to harassment and therefore subject to a four-year statute of limitations. See Jones, 541 U.S. at 383 ("racial harassment relating to the conditions of employment is not actionable under § 1981") (quoting Patterson, 491 U.S. at 171) (emphasis removed).
C. Pay Disparities.
The Supreme Court recently observed that Patterson, "for a brief time, seems in practice to have foreclosed retaliation claims" under § 1981 because "victims of an employer's retaliation will often have opposed discriminatory conduct taking place after the formation of the employment contract." CBOCS West, Inc. v. Humphries, No. 06-1431, ___ S.Ct. ____, 2008 WL 2167860, at *6 (U.S. May 27, 2008) (emphasis removed). But after 1991, federal courts "again reached a broad consensus that § 1981, as amended, encompasses retaliation claims." Id. at *7. Accordingly, Plaintiff's claims that he encountered pay disparities as a result of retaliation seem to have been cognizable only after the 1991 Act and thus are governed by the four-year statute of limitations.
III. Summary.
Plaintiff is not seeking relief based on his 2000 removal from front-line duties or his 2001 demotion. Plaintiff's Title VII and ADEA claims based on the February 15, 2005, charge of discrimination are time-barred. Plaintiff's Title VII and ADEA claims based on the July 9, 2007, charge of discrimination are barred for lack of exhaustion. Summary judgment will be granted on these claims.
Defendants have failed to show that Plaintiff's § 1981 front-line duty claim is subject to a two-year statute of limitations. Plaintiff's § 1981 harassment and pay disparity retaliation claims, as well as those based on Defendant Tovar's statements, are subject to a four-year statute of limitations. Summary judgment will be denied on these claims.
IV. Case Schedule.
At the Case Management Conference on November 14, 2007, counsel for Defendants stated that they desired to file an early motion addressing timeliness and other issues without losing their opportunity to file a later motion for summary judgment. Defense counsel said they would file the motion within 45 days of the conference, which would have been before the end of 2007. The Court responded by stating that Defendants could file an early motion without losing their opportunity to assert a later motion and that the Court would rule on the motion within thirty days, but that the Court would not slow down the litigation to accommodate the early motion. Defendants waited until March 12, 2007, to file this motion — more than three months beyond their stated schedule. The Court has ruled on the motion within thirty days as promised, but advises the parties that the filing or resolution of this motion will not be grounds for extending the litigation schedule. The schedule remains as set forth in docket entries 38 and 19.
IT IS ORDERED: Defendants' motion for partial summary judgment (Dkt. #29) is granted in part and denied in part as set forth above.