Griggs v. Sacramento City Unified School District

Opinion

Jonathan Griggs, No. 2:20-CV-0724-KJM-JDP Plaintiff, ORDER v. Sacramento City Unified School District, 1S Defendant. Plaintiff Jonathan Griggs alleges the Sacramento City Unified School District repeatedly passed him over for promotions. Griggs alleges that, in doing so, the District discriminated against him based on his race and gender and retaliated against him in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The District moves to dismiss the gender and retaliation claims. The court grants the motion as to the retaliation claim and otherwise denies the motion to dismiss. I. BACKGROUND Griggs is an African American man. First Am. Compl. (FAC) § 2, ECF No. 27. He is currently employed by the District as a Personnel Technician II. /d. Griggs claims that, between 2015 and 2016, he was passed over for five promotions. Each time, a less qualified applicant who was not an African American man, was chosen. /d. 9. During this time, Griggs filed two /////

EEOC charges. A chronology showing the positions for which he applied and the EEOC charges is as follows:  On September 8, 2015, Griggs applied for Position 1. Defendant denied his application on October 12, 2015 in favor of an Hispanic female. Id. ¶ 9(a).  On April 5, 2016, Griggs filed his first EEOC charge (Charge 1), alleging race discrimination only. Id. ¶ 16. About a week later, EEOC Intake Coordinator Juanita Rodriguez interviewed Griggs and “asked if he . . . wanted to [add a] claim [for] sex/gender discrimination to his Charge. He agreed.” Id. ¶ 17. Around April 28, 2016, Rodriguez informed Griggs the defendant “had been mailed a Notice of Charge of Discrimination.” Id. ¶ 20. Based on his prior conversations with Rodriguez, Griggs “believe[d] that sex/gender discrimination was included in the Notice of Charge of Discrimination,” but it was not. Id. Rodriguez refused to give Griggs a copy of the Notice of Charge of Discrimination, despite his request for one. Id.  Position 2: Griggs applied on May 9, 2016. Defendant denied his application on May 20, 2016, in favor of a Caucasian female. Id. ¶ 9(b)  Position 3: Griggs applied on August 26, 2016. Defendant denied his application on September 28, 2016, in favor of a Caucasian male. Id. ¶ 9(c)  Position 4: Griggs applied on October 12, 2016. Defendant denied his application on October 28, 2016, in favor of a Caucasian female. Id. ¶ 9(d)  Position 5: Griggs applied on November 14, 2016. Defendant denied his application on December 19, 2016, in favor of a Caucasian female. Id. ¶ 9(e)  On September 19, 2017, Griggs discussed Charge 1 with Rodriguez, who explained Charge 1 was based on race discrimination alone. Id. ¶ 45. Griggs disputed this characterization, pointing to their previous conversations. Id. Rodriguez told Griggs for the first time that he needed to file a new charge for gender discrimination. Id. ¶¶ 45–46. That day, Griggs filed a second EEOC charge (Charge 2) based on both race and gender discrimination as well as retaliation. Id. ¶ 46.  He received right-to-sue letters from the EEOC in January 2020. Id. ¶ 56. Generally, from April 2016 to February 2018, Griggs emailed and spoke with Rodriguez about his desire to make both race and sex discrimination allegations. Id. ¶¶ 18–52. This included informing Rodriguez when he applied for and was denied Positions 2 through 5. Throughout this time, Rodriguez did not advise Griggs that he needed to initiate new EEOC filings each time when he was not hired for Positions 2 through 5. Id. ¶¶ 25, 26, 32, 34, 43. In April 2020, Griggs filed this action, asserting employment discrimination based on a range of race, gender and retaliation allegations. Compl., ECF No. 1. Following a motion to dismiss, Mot., ECF No. 6, the court dismissed the claims for gender discrimination as to Charge 1 and Position 2 as well as the retaliation claim, with leave to amend. Prev. Order at 11, ECF No. 24. Griggs amended his complaint, again alleging: (1) race discrimination in violation of Title VII of the Civil Rights Act of 1964, (2) gender discrimination under the same statute, (3) retaliation under the same statute, and (4) race discrimination in violation of 42 U.S.C. § 1981. See generally FAC. The District again moves to dismiss the gender and retaliation claims (claims 2 and 3). Mot., ECF No. 30-1. The motion is fully briefed and the court submitted it without oral argument. Opp’n, ECF No. 31; Reply, ECF No. 32; Minute Order, ECF No. 33. As the court previously has reviewed, a party may move to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint lacks a “cognizable legal theory” or if its factual allegations do not support a cognizable legal theory. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). The court assumes all factual allegations are true and construes “them in the light most favorable to the nonmoving party.” Steinle v. City & Cty. of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019) (citation omitted). If the complaint’s allegations do not “plausibly give rise to an entitlement to relief,” the motion must be granted. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The evaluation of plausibility is a context-specific task drawing on “judicial experience and common sense.” Id. ///// The District moves to dismiss all the gender and retaliation claims, arguing Griggs did not file timely EEOC charges covering these protected categories. Title VII requires a plaintiff file a timely charge with the EEOC or an equivalent state agency before filing a lawsuit. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113–14 (2002); B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002). “Because California is a ‘deferral’ state,1 the claim must be filed within 300 days of the claimed event of discrimination.” Josephs v. Pac. Bell, 443 F.3d 1050, 1053–54 (9th Cir. 2006) (citing 42 U.S.C. § 2000e–5(e) (2003)). The “defendant bears the burden of pleading and proving” a claim was not exhausted. Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1046 n.7 (9th Cir. 2009) (citation omitted). If the failure to exhaust is not “clear on the face of the complaint,” a defendant must pursue a motion for summary judgment, not to dismiss. Diunugala v. Dep’t of Conservation, No. 16-3530, 2016 WL 11520821, at *1 (C.D. Cal. Sept. 14, 2016) (citing Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014) (en banc) (interpreting analogous exhaustion requirements of Prison Litigation Reform Act)). A. Retaliation Here, Griggs claims retaliation only with respect to Position 2. FAC ¶ 75. In reviewing the original complaint, the court noted this position does not fall within the scope of either EEOC Charge. Prev. Order at 9. The operative complaint does not provide any new allegations to show now that the retaliation Griggs alleges is within the scope of either EEOC Charge. Accordingly, the court dismisses the retaliation claim without leave to amend. See Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1117 (9th Cir. 2013) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)) (“Courts may decline to grant leave to amend only if there is . . . /////

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.”). repeated failure to cure deficiencies by amendments previously allowed . . . [or] futility of amendment, etc.’”). B. Gender Discrimination With respect to the gender discrimination claim, based on the face of the complaint Charge 2 was timely as to Position 5, because it was filed within 274 days. But defendant’s decisions not to hire defendant for Positions 2 through 4 all took place outside the statutory period. The District denied Griggs position 4 on October 28, 2016, 326 days before he filed Charge 2. Thus, while the gender discrimination claim is timely with respect to Position 5, the remaining positions and claims are actionable only if the limitations period is equitably tolled. Griggs argues his extensive communication with Rodriguez at the EEOC gives rise to equitable tolling. Opp’n at 8–10. Courts can rely on equitable doctrines such as tolling or estoppel to make exceptions for untimely claims, but such doctrines are applied sparingly. Morgan, 536 U.S. at 113–14. An equitable exception does exist “when an EEOC representative misleads the plaintiff concerning his claim.” Josephs, 443 F.3d at 1054 (citation omitted). In particular, this exception applies if the plaintiff: (1) diligently pursued his claim; (2) was misinformed or misled by the administrative agency responsible for processing his charge; (3) relied in fact on the misinformation or misrepresentations of that agency, causing him to fail to exhaust his administrative remedies; and (4) was acting pro se at the time. Id. (quoting Rodriguez v. Airborne Express, 265 F.3d 890, 901–02 (9th Cir. 2001)). “A litigant seeking equitable tolling bears the burden” of establishing it. Perryman v. Emp. Dev. Dep’t State of California, No. 5:19-1152, 2020 WL 7906692, at *4 (C.D. Cal. Oct. 27, 2020) (citing Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013), aff’d and remanded sub nom. United States v. Wong, 575 U.S. 402 (2015)) (marks omitted). The complaint here expressly alleges that, while pro se, Griggs meticulously pursued his discrimination claims, informing the EEOC each time he was passed over for another promotion and indicating during interviews the forms of discrimination, beyond race, he thought were at issue. FAC ¶¶ 23–39, 41. As alleged, Griggs’s actions went beyond merely discussing different protected classes that may have been implicated by his complaints. Id. ¶¶ 41–44. Rodriguez’s questions of Griggs, during her interview of him about Charge 1, led Griggs to believe that his gender claim could and would be added to Charge 1. See id. ¶¶ 17, 45; cf. Bradley v. Cty. of Sacramento Dep’t of Hum. Assistance of N. California Welfare Div., No. 2:13-2420, 2015 WL 4478171, at *5 (E.D. Cal. July 22, 2015), report and recommendation adopted sub nom. Bradley v. Cty. of Sacramento, No. 13-2420, 2015 WL 5147580 (E.D. Cal. Aug. 26, 2015) (holding a plaintiff is not entitled to equitable tolling by “merely assert[ing] that . . . she discussed ‘the race issue’ with the EEOC” if the “plaintiff was well aware” only age allegations were included in her EEOC charge). Griggs alleges during his communications with Rodriguez through September 19, 2017, he was led to believe Charge 1 included gender discrimination allegations. FAC ¶ 53. In other words, the amended complaint includes plausible factual allegations that Rodriguez’s actions and representations misled Griggs to believe he did not have to amend Charge 1 or file a new EEOC charge to ensure sex discrimination was covered. These allegations permit the court to conclude Griggs could prevail on a request for equitable tolling for the time period of April 16, 2016 September 19, 2017. See Rosseter v. Indus. Light & Magic, No. 08-04545, 2009 WL 764496, at *2 (N.D. Cal. Mar. 20, 2009) (finding tolling adequately pleaded because “plaintiff allege[d] that he contacted the proper agency in a reasonable period of time, was misinformed” about proper deadlines and relied on that misinformation). Only 186 days ran from the day Griggs was denied Position 1 and his first conversation with Rodriguez, which led him to believe gender discrimination was added to Charge 1, FAC ¶¶ 9(a), 17, and Griggs filed Charge 2 the day he learned he needed to file a new charge to encompass this claim, id. ¶ 46. Thus, his filing of Charge Two was timely. For its part, the District argues it did not receive timely notice of Griggs’s claims and the delay prevented it from “preserv[ing] evidence or further investigat[ing] such claims while memories were still fresh.” Mot. at 6. Furthermore, the District notes Griggs’s delay in filing was not caused by its own “bad faith or dilatory actions.” Id. These considerations do not alter the court’s conclusion that Griggs’s allegations are sufficient to plead “equitable tolling that prevents [his claims] from being time-barred,” although his claims are “subject to proof at trial or on summary judgment.” Rosseter, 2009 WL 764496, at *2; cf. Theodule v. Blue Mercury, No. 17-5581, 2018 WL 4110555, at *4 (N.D. Cal. Aug. 29, 2018) (granting motion to dismiss where plaintiff “failed to demonstrate that this equitable exception applies” because she had “not submitted any evidence to substantiate what the person at the EEOC told her, despite being ordered to do so” and also had not demonstrated reliance). IV. CONCLUSION The motion to dismiss is granted in part. The retaliation claim is dismissed without leave to amend and the motion is otherwise denied. This matter is now referred to the court’s ADR Coordinator Sujean Park for the prompt scheduling of a mediation with a member of the court’s Voluntary Dispute Resolution Panel. This order resolves ECF No. 30. DATED: January 31, 2022. CHIEF ED STATES DISTRICT JUDGE