Griggs v. Sacramento City Unified School District ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 | Jonathan Griggs, No. 2:20-CV-0724-KJM-JDP 12 Plaintiff, ORDER 13 v. Sacramento City Unified School District, 1S Defendant. 16 17 Plaintiff Jonathan Griggs alleges the Sacramento City Unified School District repeatedly 18 | passed him over for promotions. Griggs alleges that, in doing so, the District discriminated 19 | against him based on his race and gender and retaliated against him in violation of Title VII of the 20 | Civil Rights Act of 1964 and 42 U.S.C. § 1981. The District moves to dismiss the gender and 21 | retaliation claims. The court grants the motion as to the retaliation claim and otherwise 22 | denies the motion to dismiss. 23 | I. BACKGROUND 24 Griggs is an African American man. First Am. Compl. (FAC) § 2, ECF No. 27. He is 25 | currently employed by the District as a Personnel Technician II. /d. Griggs claims that, between 26 | 2015 and 2016, he was passed over for five promotions. Each time, a less qualified applicant 27 | who was not an African American man, was chosen. /d. 9. During this time, Griggs filed two 28 | ///// 1 EEOC charges. A chronology showing the positions for which he applied and the EEOC charges 2 is as follows: 3  On September 8, 2015, Griggs applied for Position 1. Defendant denied his 4 application on October 12, 2015 in favor of an Hispanic female. Id. ¶ 9(a). 5  On April 5, 2016, Griggs filed his first EEOC charge (Charge 1), alleging race 6 discrimination only. Id. ¶ 16. About a week later, EEOC Intake Coordinator Juanita 7 Rodriguez interviewed Griggs and “asked if he . . . wanted to [add a] claim [for] 8 sex/gender discrimination to his Charge. He agreed.” Id. ¶ 17. Around April 28, 9 2016, Rodriguez informed Griggs the defendant “had been mailed a Notice of Charge 10 of Discrimination.” Id. ¶ 20. Based on his prior conversations with Rodriguez, 11 Griggs “believe[d] that sex/gender discrimination was included in the Notice of 12 Charge of Discrimination,” but it was not. Id. Rodriguez refused to give Griggs a 13 copy of the Notice of Charge of Discrimination, despite his request for one. Id. 14  Position 2: Griggs applied on May 9, 2016. Defendant denied his application on 15 May 20, 2016, in favor of a Caucasian female. Id. ¶ 9(b) 16  Position 3: Griggs applied on August 26, 2016. Defendant denied his application on 17 September 28, 2016, in favor of a Caucasian male. Id. ¶ 9(c) 18  Position 4: Griggs applied on October 12, 2016. Defendant denied his application on 19 October 28, 2016, in favor of a Caucasian female. Id. ¶ 9(d) 20  Position 5: Griggs applied on November 14, 2016. Defendant denied his application 21 on December 19, 2016, in favor of a Caucasian female. Id. ¶ 9(e) 22  On September 19, 2017, Griggs discussed Charge 1 with Rodriguez, who explained 23 Charge 1 was based on race discrimination alone. Id. ¶ 45. Griggs disputed this 24 characterization, pointing to their previous conversations. Id. Rodriguez told Griggs 25 for the first time that he needed to file a new charge for gender discrimination. Id. 26 ¶¶ 45–46. That day, Griggs filed a second EEOC charge (Charge 2) based on both 27 race and gender discrimination as well as retaliation. Id. ¶ 46. 28  He received right-to-sue letters from the EEOC in January 2020. Id. ¶ 56. 1 Generally, from April 2016 to February 2018, Griggs emailed and spoke with Rodriguez 2 about his desire to make both race and sex discrimination allegations. Id. ¶¶ 18–52. This 3 included informing Rodriguez when he applied for and was denied Positions 2 through 5. 4 Throughout this time, Rodriguez did not advise Griggs that he needed to initiate new EEOC 5 filings each time when he was not hired for Positions 2 through 5. Id. ¶¶ 25, 26, 32, 34, 43. 6 In April 2020, Griggs filed this action, asserting employment discrimination based on a 7 range of race, gender and retaliation allegations. Compl., ECF No. 1. Following a motion to 8 dismiss, Mot., ECF No. 6, the court dismissed the claims for gender discrimination as to Charge 1 9 and Position 2 as well as the retaliation claim, with leave to amend. Prev. Order at 11, ECF 10 No. 24. Griggs amended his complaint, again alleging: (1) race discrimination in violation of 11 Title VII of the Civil Rights Act of 1964, (2) gender discrimination under the same statute, 12 (3) retaliation under the same statute, and (4) race discrimination in violation of 42 U.S.C. § 1981. 13 See generally FAC. The District again moves to dismiss the gender and retaliation claims (claims 14 2 and 3). Mot., ECF No. 30-1. The motion is fully briefed and the court submitted it without oral 15 argument. Opp’n, ECF No. 31; Reply, ECF No. 32; Minute Order, ECF No. 33. 16 II. LEGAL STANDARD 17 As the court previously has reviewed, a party may move to dismiss for “failure to state a 18 claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted 19 only if the complaint lacks a “cognizable legal theory” or if its factual allegations do not support a 20 cognizable legal theory. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th 21 Cir. 2013). The court assumes all factual allegations are true and construes “them in the light 22 most favorable to the nonmoving party.” Steinle v. City & Cty. of San Francisco, 919 F.3d 1154, 23 1160 (9th Cir. 2019) (citation omitted). If the complaint’s allegations do not “plausibly give rise 24 to an entitlement to relief,” the motion must be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 25 (2009). The evaluation of plausibility is a context-specific task drawing on “judicial experience 26 and common sense.” Id. 27 ///// 1 III. ANALYSIS 2 The District moves to dismiss all the gender and retaliation claims, arguing Griggs did not 3 file timely EEOC charges covering these protected categories. Title VII requires a plaintiff file a 4 timely charge with the EEOC or an equivalent state agency before filing a lawsuit. Nat’l R.R. 5 Passenger Corp. v. Morgan, 536 U.S. 101, 113–14 (2002); B.K.B. v. Maui Police Dep’t, 276 F.3d 6 1091, 1099 (9th Cir. 2002). “Because California is a ‘deferral’ state,1 the claim must be filed 7 within 300 days of the claimed event of discrimination.” Josephs v. Pac. Bell, 443 F.3d 1050, 8 1053–54 (9th Cir. 2006) (citing 42 U.S.C. § 2000e–5(e) (2003)). 9 The “defendant bears the burden of pleading and proving” a claim was not exhausted. 10 Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1046 n.7 (9th Cir. 11 2009) (citation omitted). If the failure to exhaust is not “clear on the face of the complaint,” a 12 defendant must pursue a motion for summary judgment, not to dismiss. Diunugala v. Dep’t of 13 Conservation, No. 16-3530, 2016 WL 11520821, at *1 (C.D. Cal. Sept. 14, 2016) (citing Albino 14 v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (interpreting analogous exhaustion 15 requirements of Prison Litigation Reform Act)). 16 A. Retaliation 17 Here, Griggs claims retaliation only with respect to Position 2. FAC ¶ 75. In reviewing 18 the original complaint, the court noted this position does not fall within the scope of either EEOC 19 Charge. Prev. Order at 9. The operative complaint does not provide any new allegations to show 20 now that the retaliation Griggs alleges is within the scope of either EEOC Charge. Accordingly, 21 the court dismisses the retaliation claim without leave to amend. See Sonoma Cty. Ass’n of 22 Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (quoting Foman v. Davis, 23 371 U.S. 178, 182 (1962)) (“Courts may decline to grant leave to amend only if there is . . . 24 ///// 1 Deferral states are those “which have their own fair employment practice agencies.” Mohasco Corp. v. Silver, 447 U.S. 807, 812 (1980); Deferral State, Practical Law Glossary Item 6-572-6885 (“A state with a state or local Fair Employment Practices Agency [ ] authorized to enforce its state or local anti-discrimination laws.”). 1 repeated failure to cure deficiencies by amendments previously allowed . . . [or] futility of 2 amendment, etc.’”). 3 B. Gender Discrimination 4 With respect to the gender discrimination claim, based on the face of the complaint 5 Charge 2 was timely as to Position 5, because it was filed within 274 days. But defendant’s 6 decisions not to hire defendant for Positions 2 through 4 all took place outside the statutory 7 period. The District denied Griggs position 4 on October 28, 2016, 326 days before he filed 8 Charge 2. Thus, while the gender discrimination claim is timely with respect to Position 5, the 9 remaining positions and claims are actionable only if the limitations period is equitably tolled. 10 Griggs argues his extensive communication with Rodriguez at the EEOC gives rise to 11 equitable tolling. Opp’n at 8–10. Courts can rely on equitable doctrines such as tolling or 12 estoppel to make exceptions for untimely claims, but such doctrines are applied sparingly. 13 Morgan, 536 U.S. at 113–14. An equitable exception does exist “when an EEOC representative 14 misleads the plaintiff concerning his claim.” Josephs, 443 F.3d at 1054 (citation omitted). In 15 particular, this exception applies if the plaintiff: 16 (1) diligently pursued his claim; (2) was misinformed or misled by the 17 administrative agency responsible for processing his charge; (3) relied in fact on the 18 misinformation or misrepresentations of that agency, causing him to fail to exhaust 19 his administrative remedies; and (4) was acting pro se at the time. 20 Id. (quoting Rodriguez v. Airborne Express, 265 F.3d 890, 901–02 (9th Cir. 2001)). “A litigant 21 seeking equitable tolling bears the burden” of establishing it. Perryman v. Emp. Dev. Dep’t State 22 of California, No. 5:19-1152, 2020 WL 7906692, at *4 (C.D. Cal. Oct. 27, 2020) (citing Kwai 23 Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013), aff’d and remanded sub nom. United 24 States v. Wong, 575 U.S. 402 (2015)) (marks omitted). 25 The complaint here expressly alleges that, while pro se, Griggs meticulously pursued his 26 discrimination claims, informing the EEOC each time he was passed over for another promotion 27 and indicating during interviews the forms of discrimination, beyond race, he thought were at 28 issue. FAC ¶¶ 23–39, 41. As alleged, Griggs’s actions went beyond merely discussing different 29 protected classes that may have been implicated by his complaints. Id. ¶¶ 41–44. Rodriguez’s 1 questions of Griggs, during her interview of him about Charge 1, led Griggs to believe that his 2 gender claim could and would be added to Charge 1. See id. ¶¶ 17, 45; cf. Bradley v. Cty. of 3 Sacramento Dep’t of Hum. Assistance of N. California Welfare Div., No. 2:13-2420, 2015 WL 4 4478171, at *5 (E.D. Cal. July 22, 2015), report and recommendation adopted sub nom. Bradley 5 v. Cty. of Sacramento, No. 13-2420, 2015 WL 5147580 (E.D. Cal. Aug. 26, 2015) (holding a 6 plaintiff is not entitled to equitable tolling by “merely assert[ing] that . . . she discussed ‘the race 7 issue’ with the EEOC” if the “plaintiff was well aware” only age allegations were included in her 8 EEOC charge). Griggs alleges during his communications with Rodriguez through 9 September 19, 2017, he was led to believe Charge 1 included gender discrimination allegations. 10 FAC ¶ 53. In other words, the amended complaint includes plausible factual allegations that 11 Rodriguez’s actions and representations misled Griggs to believe he did not have to amend 12 Charge 1 or file a new EEOC charge to ensure sex discrimination was covered. These allegations 13 permit the court to conclude Griggs could prevail on a request for equitable tolling for the time 14 period of April 16, 2016 September 19, 2017. See Rosseter v. Indus. Light & Magic, 15 No. 08-04545, 2009 WL 764496, at *2 (N.D. Cal. Mar. 20, 2009) (finding tolling adequately 16 pleaded because “plaintiff allege[d] that he contacted the proper agency in a reasonable period of 17 time, was misinformed” about proper deadlines and relied on that misinformation). Only 186 18 days ran from the day Griggs was denied Position 1 and his first conversation with Rodriguez, 19 which led him to believe gender discrimination was added to Charge 1, FAC ¶¶ 9(a), 17, and 20 Griggs filed Charge 2 the day he learned he needed to file a new charge to encompass this claim, 21 id. ¶ 46. Thus, his filing of Charge Two was timely. 22 For its part, the District argues it did not receive timely notice of Griggs’s claims and the 23 delay prevented it from “preserv[ing] evidence or further investigat[ing] such claims while 24 memories were still fresh.” Mot. at 6. Furthermore, the District notes Griggs’s delay in filing 25 was not caused by its own “bad faith or dilatory actions.” Id. These considerations do not alter 26 the court’s conclusion that Griggs’s allegations are sufficient to plead “equitable tolling that 27 prevents [his claims] from being time-barred,” although his claims are “subject to proof at trial or 28 on summary judgment.” Rosseter, 2009 WL 764496, at *2; cf. Theodule v. Blue Mercury, 1 | No. 17-5581, 2018 WL 4110555, at *4 (N.D. Cal. Aug. 29, 2018) (granting motion to dismiss 2 | where plaintiff “failed to demonstrate that this equitable exception applies” because she had “not 3 | submitted any evidence to substantiate what the person at the EEOC told her, despite being 4 | ordered to do so” and also had not demonstrated reliance). 5 | IV. CONCLUSION 6 The motion to dismiss is granted in part. The retaliation claim is dismissed without 7 | leave to amend and the motion is otherwise denied. 8 This matter is now referred to the court’s ADR Coordinator Sujean Park for the prompt 9 | scheduling of a mediation with a member of the court’s Voluntary Dispute Resolution Panel. 10 This order resolves ECF No. 30. 11 IT IS SO ORDERED. 12 | DATED: January 31, 2022. 13 CHIEF ED STATES DISTRICT JUDGE