Stewart v. Bering Straits ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Melissa Socorro Stewart, No. CV-21-00816-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Bering Straits, 13 Defendant. 14 15 16 Before the Court is Plaintiff’s application to proceed in forma pauperis (Doc. 2), 17 which the Court will grant. The Court additionally screens Plaintiff’s complaint, noting 18 that it must dismiss a case filed in forma pauperis if “at any time the court determines” that 19 the “action or appeal” is “frivolous or malicious,” “fails to state a claim on which relief 20 may be granted,” or “seeks monetary relief against a defendant who is immune from such 21 relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 22 Plaintiff’s complaint alleges that her employer, Bering Straits d/b/a Eagle Eye 23 Electric, engaged in discriminatory conduct by terminating her employment, failing to 24 promote her, generating unequal employment terms and conditions, retaliating against her, 25 and engaging in harassment. (Doc. 1 at 3.) Particularly, Plaintiff explains, 26 For a year I was sexually harassed and reported it. Nothing was done and the harasser started to retaliate. It made it very 27 hard to work there. I wrote a letter to HR and they talked with me and assured me that it would stop. [T]he re[t]aliation and 28 har[]assment did not stop, it got worse. Management treated me different[ly than everyone] else. My work started to be 1 affected, I was making errors. One day I and another employee left a [piece] of equipment running. The equipment was fine, 2 but management demote me and gave me two weeks unpaid leave. During my leave I wrote an email to corp. HR 3 explaining everything that I had gone through. When I returned to work I was fired. The [harasser] got promoted and 4 [] the other man that left the equipment running with me kept his job and was promoted. 5 6 (Id. at 4.) Plaintiff has exhausted her administrative remedies. (Id. at 6-7.) 7 Having reviewed Plaintiffs’ complaint, the Court concludes that, insofar as it asserts 8 state employment claims, it is subject to dismissal. Namely, Arizona’s Division of Civil 9 Rights Section issued a notice of right to sue to Plaintiff on September 3, 2020. (Id. at 7.) 10 The notice permitted her to bring a civil action in superior court within 90 days of receipt 11 of the notice or within one year of the date she filed the charge. (Id.) Plaintiff filed her 12 complaint in this Court, rather than superior court, on May 7, 2021, long after the deadline. 13 Any state employment claims are therefore untimely and have been filed in the improper 14 venue. 15 However, insofar as Plaintiff’s complaint asserts federal employment or other 16 claims, it may proceed. The EEOC explained in its February 8, 2021 notice that Plaintiff 17 “may file a lawsuit against the respondent(s) under federal law based on this charge in 18 federal or state court [within 90 days of your receipt of this notice.]” Plaintiff’s assertion 19 of federal employment claims in this Court on May 7, 2021—two days prior to the 90-day- 20 deadline—is therefore proper. 21 IT IS ORDERED that Plaintiff’s application to proceed in forma pauperis (Doc. 2) 22 is GRANTED. 23 IT IS FURTHER ORDERED that any state employment claims alleged by 24 Plaintiff in her complaint are dismissed. 25 / / / 26 / / / 27 / / / 28 1 IT IS FURTHER ORDERED that the remainder of Plaintiff's suit may proceed. || Plaintiff shall be responsible for service of the summons and complaint. 3 Dated this 10th day of May, 2021. 4 5 : Les Ue 8 States Dictric Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _3-