Dunievitz v. Work World America, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MONICA DUNIEVITZ, No. 2:21-cv-01489-JAM-JDP 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 14 WORK WORLD AMERICA, INC., et al., 15 Defendants. 16 17 This matter is before the Court on Work World America, 18 Inc.’s (“Defendant”) motion to dismiss. Mot., ECF No. 5. Monica 19 Dunievitz (“Plaintiff”) filed an opposition. Opp’n, ECF No. 12. 20 Defendant replied. Reply, ECF No. 13. After consideration of 21 the parties’ briefing on the motion and relevant legal authority, 22 the Court GRANTS Defendant’s Motion to Dismiss.1 23 I. BACKGROUND 24 Defendant employed Plaintiff as a retail salesperson at its 25 Roseville, California store from December 2014 to August 2018. 26 Compl. ¶¶ 12-13, 21, ECF No. 1. Plaintiff and a co-worker, 27 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was 28 scheduled for January 25, 2022. 1 Yudith Ramos (“Ramos”),2 allege their direct supervisor, Jack 2 Price (“Price”), subjected them to a sexually hostile work 3 environment. Opp’n at 2. Among other things, Price used racist 4 language against people of color, demeaned and sexually 5 objectified women, openly talked about his sex problems and 6 displayed male enhancement pills in the workplace, and viewed 7 pornography from his work computer. Compl. ¶¶ 16-17. 8 On August 20, 2018, Plaintiff placed an anonymous call to 9 Work World headquarters to report that Price had been viewing 10 pornography on a work computer. Id. ¶ 19. Defendant sent a 11 general manager to investigate, who found that porn sites had 12 been visited but implied Ramos had accessed the sites. Id. ¶ 20. 13 Ramos told the investigator it was not her but Price, and that 14 she did not feel safe working with him. Id. Plaintiff also told 15 the general manager she did not feel safe working with Price due 16 to his angry mood swings and demeaning comments and behavior 17 towards women. Id. ¶ 21. The investigator did not assure either 18 Ramos or Plaintiff that Work World would keep them safe. Id. 19 ¶¶ 20-21. Shortly thereafter, Plaintiff quit. Id. ¶ 21. 20 On February 14, 2019, Plaintiff filed a charge of 21 discrimination with the Equal Employment Opportunity Commission 22 (“EEOC”) against Work World and Price, alleging sexual 23 harassment. Id. ¶ 10. The charge was dual-filed with the 24 California Department of Fair Employment and Housing (“DFEH”). 25 Id. In March 2019, the EEOC transferred processing of the charge 26 2 Ramos, represented by the same counsel as Plaintiff, brings a 27 nearly identical action against Defendant. See Ramos v. Work World America, Inc. et al., No. 2:21-cv-01490-JAM-JDP (E.D. Cal. 28 2021). 1 to DFEH. Id. DFEH’s investigation concluded in early August 2 2020. Id. ¶ 11. DFEH issued Plaintiff a right-to-sue notice on 3 August 18, 2020, and the EEOC issued a right-to-sue notice on 4 October 20, 2020. Id. 5 On August 19, 2021, Plaintiff filed the present lawsuit. 6 See generally Compl. Plaintiff brings five claims: (1) sex 7 discrimination under Title VII; (2) retaliation under Title VII; 8 (3) sexual harassment under California’s Fair Employment and 9 Housing Act (“FEHA”); (4) failure to prevent sexual harassment 10 under FEHA; and (5) retaliation under FEHA. Id. Defendant now 11 moves to dismiss. See generally Mot. 12 II. OPINION 13 A. Legal Standard 14 Dismissal is appropriate under Rule 12(b)(6) of the Federal 15 Rules of Civil Procedure when a plaintiff’s allegations fail “to 16 state a claim upon which relief can be granted.” Fed. R. Civ. 17 P. 12(b)(6). “To survive a motion to dismiss a complaint must 18 contain sufficient factual matter, accepted as true, to state a 19 claim for relief that is plausible on its face.” Ashcroft v. 20 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and 21 citation omitted). While “detailed factual allegations” are 22 unnecessary, the complaint must allege more than “[t]hreadbare 23 recitals of the elements of a cause of action, supported by mere 24 conclusory statements.” Id. “In sum, for a complaint to 25 survive a motion to dismiss, the non-conclusory ‘factual 26 content,’ and reasonable inferences from that content, must be 27 plausibly suggestive of a claim entitling the plaintiff to 28 relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 1 2009). 2 B. Analysis 3 1. Title VII Claims 4 Plaintiff brings two federal claims: (1) “Discrimination- 5 Sexual Harassment” under Title VII and (2) “Retaliation” under 6 Title VII. Compl. at 7-8. Defendant argues both claims are 7 time-barred because Plaintiff did not file this action within 90 8 days of receiving her right-to-sue letters. Mot. at 2-5. 9 A plaintiff has 90 days after receipt of a right-to-sue 10 notice from the EEOC within which to commence a civil action 11 based on the charges filed. See 42 U.S.C. § 2000e-5(f)(1). 12 Failure to commence suit within the 90-day period is grounds for 13 dismissal of the action. Missirlian v. Huntington Memorial 14 Hospital, 662 F.2d 546, 549 (9th Cir. 1981); see also Von Saher 15 v. Norton Simon Museum of Art at Pasadena, 592 F. 3d 954, 969 16 (9th Cir. 2010). 17 Here, DFEH issued Plaintiff a right-to-sue notice dated 18 August 18, 2020, and the EEOC issued a right-to-sue notice on 19 October 20, 2020. Compl. ¶ 11. Plaintiff filed the present 20 action on August 19, 2021. Because over 90 days passed before 21 this suit commenced these claims are barred. Plaintiff does not 22 dispute this in opposition. See generally Opp’n. Indeed, 23 Plaintiff clearly concedes in a footnote that she “does not seek 24 to apply equitable tolling to her Title VII claims for which she 25 sought an administrative remedy through EEOC.” Id. at 6, n.3. 26 Defendant’s motion to dismiss as to these claims is therefore 27 granted. Finding amendment would be futile, the Court dismisses 28 these claims with prejudice. See Deveraturda v. Globe Aviation nee enn meee een nn nn nn rE OI IS ED OE 1 Sec. Servs., 454 F.3d 1043, 1049 (9th Cir. 2006). 2 2, Remaining State FEHA Claims 3 Having dismissed Plaintiff’s only federal claims, the Court 4 declines to exercise supplemental jurisdiction over her 5 remaining state FEHA claims. A district court may sua sponte 6 decline to exercise supplemental jurisdiction over pendant state 7 law claims if it “has dismissed all claims over which it has 8 original jurisdiction.” 28 U.S.C. § 1367(c) (3); see also Acri 9 v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) 10 (“in the usual case in which all federal law claims are 11 eliminated before trial, the balance of factors . . . will point 12 toward declining to exercise jurisdiction over the remaining 13 state-law claims.”). The Court agrees with Defendant that here 14 there is no good reason to retain jurisdiction over the FEHA 15 claims. Reply at 4; see also Opp’n at 8, n.4. 16 Til. ORDER 17 For the reasons set forth above, the Court GRANTS 18 Defendant’s motion to dismiss Plaintiff’s first and second claims 19 | under Title VII WITH PREJUDICE. The Court declines to exercise 20 supplemental jurisdiction over the remaining state law claims. 21 IT IS SO ORDERED. 22 Dated: January 28, 2022 23 kA 24 teiren staves odermacr 7008 25 26 27 28