Opinion
1:23-cv-01264-CL
05-15-2024
PADRA UTGAARD, . Plaintiff, v. LUIS SANCHEZ aka LUIS SANDERS aka LUIS SANDER, BRADEN BOYES, and DYNALECTRIC COMPANY, Defendants.
FINDINGSAND RECOMMENDATION
MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE
Defendants Dynalectric Company and Braden Boyes (“Defendants”) move to dismiss pro se Plaintiff Padra Utgaard's (“Plaintiff”) Second Amended Complaint (“SAC”) as barred by the applicable statute of limitations. ECF No. 31. For the reasons below, Defendants' Motion to . Dismiss should be GRANTED.
LEGAL STANDARD
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations allow the court to infer the defendant's liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the mere possibility of misconduct.” Id. at 678.
When considering a motion to dismiss, the court must accept all allegations of material fact as true and construe them in the light most favorable to the non-movant. Burgert v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). The court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555. If the complaint is dismissed, leave to amend should be granted unless “the pleading could not possibly be cured by the allegation of other facts.” Doe v. U.S., 58 F.3d 494, 497 (9th Cir. 1995).
BACKGROUND
Plaintiff worked as an inside wireman for Defendants from May 11, 2022, until she was laid off on July 1, 2022. SAC, ECF No. 19 at ¶¶ 5-8, 50. While working for Defendants, Plaintiff alleges that she observed multiple safety hazards, sustained a wrist injury, and suffered discriminatory harassment and compensatory retaliation, all of which contributed to triggering her post-traumatic stress disorder. See id. ¶¶ 8-53.
Plaintiff filed an administrative charge of discrimination (“the Charge”) with the Equal Employment Opportunity Commission (“EEOC”) on May 24, 2023. The EEOC dismissed Plaintiff's Charge as untimely and issued her a 90-day notice of her right to sue on June 1, 2023. ECF No. 32 at Ex. 1.
Plaintiff omits any mention of exhaustion of administrative remedies in her SAC. In her original Complaint, however, Plaintiff provides that “[i]t is [her] best recollection that [she] filed a charge with the Equal Employment Opportunity Commission...regarding the defendant's alleged discriminatory conduct on...05/24/2023.” ECF No. 1 at 5.
Generally, courts “ruling oh a motion to dismiss, must disregard facts that are not alleged on the face of the complaint or contained in documents attached to the complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). However, the “incorporation by reference” doctrine permits the Court to take into account the EEOC letter, in that its “contents are alleged in [the] complaint and [its] authenticity no party questions.” Id. (quoting In re Silicon Graphics Inc. Sec. Litig, 183 F.3d 970, 986 (9th Cir.1999)).
Plaintiff filed her Complaint (ECF No. 1) in the instant action on August 29, 2023, her First Amended Complaint (ECF No. 12) on November 30, 2023, and her SAC (ECF No. 19) on December 20, 2023. The SAC alleges that Defendants' workplace conduct violated Plaintiff's rights under Title VII of the Civil Rights Act . (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”). .
On February 27, 2024, Defendants moved to dismiss the SAC as barred by the applicable statute of limitations. ECF No. 31, Plaintiff moved for an extension, claiming she needed more time to obtain “relevant documents” from the EEOC, and Defendants produced a complete copy of the EEOC's file to Plaintiff the following day. Dueno Decl., ECF No. 38 at ¶ 2. The Court granted Plaintiff's extension, allowing her until April 15, 2024, to respond to Defendants' Motion. ECF No. 35. To date, Plaintiff has not responded to or conferred with Defendants. ECF No. 38 at ¶ 3.
DISCUSSION
Defendants' Motion should be granted because Plaintiff's claims are time barred.
Title VII, the ADEA, and the ADA require an administrative charge to be filed with the EEOC within 300 days of the alleged unlawful act. See 42 U.S.C. § 2000e-5(e)(1) (Title VII); 29 U.S.C. § 626(d)(1)(B) (ADEA); 42 U.S.C. §§ 12117(a), 2000e-5(e)(1) (ADA). A claim is considered “filed” at the time it is received by the administrative agency. 29 C.F.R. 1601.13 (“Such filing is timely if effected within 300 days from the date of the alleged violation.”). Filing an EEOC charge beyond the 300-day period is treated as a statute of limitations violation. E.g., Opsahl v. Int'l Longshore & Warehouse Union, Loc. 21, 432 Fed.Appx. 708, 709 (9th Cir. 2011).
Because Plaintiff has failed to respond to Defendants' Motion in any meaningful way, the Court must rule on the existing briefs. Plaintiff pleads that she suffered the last of the alleged unlawful acts on July 1, 2022, when she was terminated. She also pleads that her Charge was received by the EEOC on May 24, 2023-327 days after her employment ended, and 27 days beyond her statutory window. Plaintiff does not allege any tolling.
Based on Plaintiff's pleadings, the Charge was filed almost four weeks too late. Plaintiff's SAC should be dismissed accordingly, with prejudice and without leave to amend, finding that no amendment can cure the untimeliness of Plaintiff's claims.
RECOMMENDATION
For the above reasons, Defendants' Motion to Dismiss, EOF No. 31, should be GRANTED. Plaintiff s Second Amended Complaint, ECF No. 19, should be dismissed with . prejudice and without leave to amend.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days after the date this recommendation is entered. If objections are filed, any response to the objections is due fourteen (14) days after the date the objections are filed. See Fed.R.Civ.P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).