Tsosie v. N.T.U.A. Wireless LLC

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Velena Tsosie, No. CV-23-00105-PHX-DGC

10 Plaintiff, ORDER

11 v.

12 N.T.U.A. Wireless LLC, et al.,

13 Defendants. 14 15 Plaintiff Velena Tsosie brings this action against her employer, Defendant NTUA 16 Wireless, LLC, and against her former supervisor, Defendant Walter Haase, and his wife. 17 Doc. 20. Defendants move to dismiss the complaint under Rule 12(b)(6). Doc. 26. The 18 motion is fully briefed and no party requests oral argument. For reasons set forth below, 19 the Court will grant the motion. 20 I. Background. 21 Defendant NTUA Wireless provides internet, telephone, and data communication 22 services in and around the Navajo Nation. Doc. 20 ¶ 8. NTUA Wireless is a Delaware 23 limited liability company jointly owned by Commnet Newco, LLC and the Navajo Tribal 24 Utility Authority (“NTUA”). Id. ¶ 7. Commnet Newco is a Delaware limited liability 25 company and the managing member of NTUA Wireless. Id. NTUA is a tribal enterprise 26 of the Navajo Nation. Id.; see also Doc. 11-1 at 6, 10. 27 28 1 Defendant Walter Haase is the general manager of NTUA and served on the board 2 of NTUA Wireless until April 2022. Doc. 20 ¶ 9. Plaintiff is the general manager of 3 NTUA Wireless and reports directly to the NTUA Wireless board. Id. ¶ 4. 4 Plaintiff’s claims arise from a working dinner that occurred in March 2022, while 5 Plaintiff reported to Haase. Id. ¶¶ 14, 19. Plaintiff alleges that Haase made unwelcome 6 suggestive comments and initiated unwelcome physical contact with Plaintiff. Id. ¶¶ 15- 7 18, 20-22. Plaintiff further alleges that she contacted Rowena Benally, Human Resources 8 Director for NTUA, to report the incident, and that NTUA Wireless conducted an 9 inadequate investigation, issued a retaliatory press release, and failed to discipline Haase. 10 Id. ¶¶ 23-26; Doc. 26-1. 11 Plaintiff filed a charge with the Equal Employment Opportunity Commission 12 (“EEOC”) on October 5, 2022, alleging discrimination on the basis of sex. Doc. 26-1. The 13 charge did not name Defendant NTUA Wireless as a responsible party or as Plaintiff’s 14 employer. In fact, the charge said nothing about NTUA Wireless. Id. Plaintiff instead 15 listed “Commnet Wireless, LLC d/b/a Choice NTUA Wireless” as the party that committed 16 the alleged discrimination. Id.; Doc. 20 ¶¶ 5-6, 39. The EEOC issued a right-to-sue letter 17 on November 22, 2022, and served it on counsel for “Commnet” and counsel for Plaintiff. 18 Docs. 26-2, 20 ¶ 5. 19 Plaintiff asserts a claim under Title VII of the Civil Rights Act of 1964 and several 20 state law claims, including violation of the Arizona Civil Rights Act, assault, battery, and 21 intentional infliction of emotional distress. Doc. 20 ¶¶ 28-58. Defendants move to dismiss 22 the complaint for failure to exhaust administrative remedies. Doc. 26. 23 Plaintiff asserts the Title VII violations against both NTUA Wireless and Haase. 24 Doc. 20 ¶¶ 32-35. Because individuals cannot be held personally liable under Title VII, 25 the Court will dismiss the Title VII claim against Defendant Haase and his wife. See Miller 26 v. Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993) (“[T]he statutory scheme itself 27 indicates that Congress did not intend to impose individual liability on employees.”); 1 28 1 Larson on Employment Discrimination § 5.03 at n.25 (2023). The remainder of this order 2 will address Defendants’ argument as it applies to NTUA Wireless. 3 II. Legal Standard. 4 Under Rule 12(b)(6), the well-pled factual allegations of the complaint are taken as 5 true and construed in the light most favorable to the plaintiff. See Cousins v. Lockyer, 568 6 F.3d 1063, 1067 (9th Cir. 2009). A court’s review on a motion to dismiss is usually limited 7 to the complaint itself, but the court may consider documents attached to the complaint, 8 documents incorporated by reference in the complaint, or matters of judicial notice. See 9 United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). Documents not attached to the 10 complaint may be considered if their authenticity is not contested and the complaint 11 necessarily relies on them. See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) 12 (internal quotation omitted); Marder v. Lopez, 450 F.3d 445 448 (9th Cir. 2006). The Court 13 will consider Plaintiff’s EEOC charge and the ensuing right-to-sue letter. The complaint 14 refers to these documents (Doc. 20 ¶¶ 5-6) and Plaintiff does not contest their authenticity. 15 III. Is a 12(b)(6) Motion Proper? 16 Plaintiff argues that failure to exhaust administrative remedies is an affirmative 17 defense that cannot be raised in a motion to dismiss. Doc. 28 at 1-3. While it is true that 18 failure to exhaust is an affirmative defense on which the defendant bears the burden of 19 proof, see Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 20 n.7 (9th Cir. 2009), the defense can be raised in a motion to dismiss. The Supreme Court 21 has held that when the basis for an affirmative defense appears on the face of a complaint, 22 the complaint may be subject to dismissal under Rule 12(b)(6). Jones v. Bock, 548 U.S. 23 199, 215 (2007); see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice & 24 Procedure § 1357 (3d ed. 2023). Courts in this Circuit routinely address motions to dismiss 25 based on failure to exhaust. See, e.g., Krupa v. 5 & Diner N 16th St. LLC, No. CV-20- 26 00721-PHX-JJT, 2020 WL 7705986 (D. Ariz. Dec. 28, 2020); Marks v. Able Body Lab., 27 No. CV-09-626-PHX-SRB, 2009 WL 10673629 (D. Ariz. Aug. 12, 2009); Miller v. 28 1 Sacramento City Unified Sch. Dist., No. 2:21-cv-0757-JAM-CKD PS, 2021 WL 5165918 2 (E.D. Cal. Nov. 5, 2021).1 3 IV. Exhaustion of Remedies. 4 Title VII requires a complainant to file a charge with the EEOC before commencing 5 an action in federal court. 42 U.S.C. § 2000e-5(b), (e)(1); see Fort Bend Cty., Tex. v. Davis, 6 139 S. Ct. 1843, 1846 (2019). This administrative exhaustion rule ensures that a charged 7 party has the opportunity to respond to the charges before the EEOC. Ranza v. Nike, Inc., 8 793 F.3d 1059, 1076 (9th Cir. 2015). The claimant may bring suit in district court after 9 receiving a right-to-sue letter from the EEOC. See Karim-Panahi v. L.A. Police Dep’t, 839 10 F.2d 621, 626 (9th Cir. 1988) (citing 42 U.S.C. § 2000e-5(f)(1)). 11 Defendant contends that Plaintiff failed to exhaust her administrative remedies 12 because she failed to name NTUA Wireless – her actual employer – in her EEOC charge. 13 Doc. 26 at 2-4. As noted above, the charge alleges discrimination by “Commnet Wireless, 14 LLC d/b/a Choice NTUA Wireless.” Docs. 26 at 5, 26-1 at 1. 15 Plaintiff maintains that she named NTUA Wireless as a d/b/a of Commnet Wireless, 16 LLC, and that this allegation was sufficient to satisfy the exhaustion requirement. Doc. 28 17 at 3. But Plaintiff did not name NTUA Wireless as a d/b/a of Commnet Wireless, LLC. 18 She named “Commnet Wireless, LLC d/b/a Choice NTUA Wireless.” Doc. 26-1 at 1 19 (emphasis added). “Choice NTUA Wireless” is not the same as “NTUA Wireless.” And 20 as Defendant notes, “[t]he EEOC would have no reason to investigate any entity with even 21 a similar d/b/a name when the actual name of the entity being charged, Commnet Wireless, 22 LLC, is specifically stated in the charge.” Doc. 26 at 5.2 In fact, when the EEOC issued

23 1 In response to Plaintiff’s assertion that Defendant bears the burden of proof on its affirmative defense, Defendant cites Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 24 1997), which held that “[i]f the defendant meets its burden, the plaintiff then bears the burden of pleading and proving facts supporting equitable avoidance of the defense.” Here, 25 Plaintiff asserts that she did exhaust her administrative remedies; she does not assert equitable avoidance based on waiver or similar arguments. Docs. 20 ¶ 6, 28 at 3-7. 26 2 As Defendant also correctly notes: “Listing ‘Commnet Wireless, LLC d/b/a Choice 27 NTUA Wireless’ in a charge tells the EEOC to investigate Commnet Wireless, LLC, and no other entity. Plaintiff offers no reason why anyone should expect the EEOC to go 28 searching for other entities that might match part of a d/b/a name noted by a charging party. If anything, the ‘d/b/a’ here indicates that the name following the designation is a fictitious 1 its right-to-sue letter, it sent a copy to the attorney for “Commnet.” Doc. 26-2 at 1.3 2 Plaintiff does not suggest that NTUA Wireless knew of the charge or that the EEOC 3 involved NTUA Wireless in its investigation. Doc. 26 at 4. See Ross v. Woolf, No. CV- 4 18-0307-TUC-BGM, 2019 WL 4169000 (D. Ariz. Sept. 3, 2019) (dismissing complaint 5 for failure to exhaust after plaintiff offered no facts to suggest why an unnamed employer 6 should have been on notice of a claim). 7 “[T]he general rule [is] that Title VII claimants may sue only those named in the 8 EEOC charge because only they had an opportunity to respond to charges during the 9 administrative proceeding.” Sosa v. Hiraoka, 920 F.2d 1451, 1458 (9th Cir. 1990) (citing 10 2 A. Larson, Employment Discrimination, § 49.11(c)(2) (1990)). While the Court is 11 sympathetic to plaintiffs who face complex corporate structures, Plaintiff was the general 12 manager of NTUA Wireless and certainly knew its correct name. In fact, she acknowledges 13 in her response that she could have ascertained the correct identity of her employer when 14 she filed with the EEOC. Doc. 28 at 7. 15 Plaintiff asks that her charge be construed liberally because Title VII does not 16 require procedural exactness from lay complainants. See Kaplan v. Int’l Alliance of 17 Theatrical & Stage Employees, 525 F.2d 1354, 1359 (9th Cir. 1975) (EEOC charges 18 generally should be construed “with utmost liberality since they are made by those 19 unschooled in the technicalities of formal pleading”); B.K.B. v. Maui Police Dep’t, 276 20 F.3d 1091, 1100, 1103 (9th Cir. 2002) (“[w]e must keep in mind that complainants filing 21 discrimination charges are acting as laypersons and should not be held to the higher 22 standard of legal pleading by which we would review a civil complaint.”). But Plaintiff 23 did not file her EEOC charge without counsel. The first page of her charge identifies her 24 current attorney, David R. Jordan, as her counsel in the EEOC matter. Her lawyer’s name

25 name, which should be disregarded.” Doc. 30 at 7 (footnote omitted).

26 3 The EEOC’s letter mentions only “Commnet,” but uses the address Plaintiff provided in the charge for Commnet Wireless, LLC — 1562 Park Street, Castle Rock, Colorado 80109. 27 Compare Docs. 26-1 at 1 and 26-2 at 1. Plaintiff suggests in her response that Commnet Wireless, LLC is a member of Defendant NTUA Wireless, LLC (Doc. 28 at 6), but her 28 complaint alleges that the member is Commnet Newco, LLC, not Commnet Wireless. LLC. Doc. 20 ¶ 7. 1 appears immediately below Plaintiff’s name and includes Mr. Jordan’s firm name, address, 2 phone number, and email address. Doc. 26-1 at 1. Like Commnet’s counsel, Mr. Jordan 3 was copied on the EEOC’s right-to-sue letter. Doc. 26-2 at 1. Plaintiff mentions none of 4 these facts in her response to the motion to dismiss. Because Plaintiff’s EEOC charge 5 indicated that she was represented by counsel, the charge may not be read with the utmost 6 liberality. See Brown v. Dep’t of Pub. Safety, 446 F. App’x 70, 73 (9th Cir. 2011) (rejecting 7 a liberal reading of an EEOC charge because it was drafted by counsel). 8 Giving the EEOC charge its plain meaning, it says nothing about Defendant NTUA 9 Wireless. And because “Title VII claimants may sue only those named in the EEOC 10 charge,” Sosa v. Hiraoka, 920 F.2d at 1458, the Court finds that Plaintiff’s Title VII claim 11 must be dismissed. 12 This would be the result even if the Court applied the liberal standard applicable to 13 pro se litigants. In Sosa, the Ninth Circuit identified circumstances where the liberal 14 standard might permit a plaintiff to sue a party not named in the EEOC charge: (1) the 15 unnamed party was involved in the acts which gave rise to the claim, (2) the party should 16 have anticipated that it would be named in the complaint, (3) the person or entity named in 17 the charge is substantially identical to the unnamed party, (4) the EEOC could have inferred 18 that the unnamed party violated Title VII, or (5) the unnamed party had notice of and 19 participated in the EEOC conciliation efforts. Id. at 1459. Plaintiff argues that NTUA 20 Wireless was involved in the acts which gave rise to the claim, that NTUA Wireless should 21 have anticipated being named in the complaint, and that the facts alleged in the EEOC 22 charge permit an inference that NTUA Wireless violated Title VII. Doc. 28 at 4-5. The 23 Court does not agree. The EEOC charge in this case is not based on the actions of NTUA 24 Wireless. It is based entirely on the actions of Defendant Haase and Human Resources 25 Representative Benally, both of whom are employed by NTUA, not NTUA Wireless. See 26 Doc. 26-1. A reading of the charge might warn NTUA of a potential suit, but would not 27 warn NTUA Wireless.4

28 4 Plaintiff relies on Wangler v. Hawaiian Electric Co., 742 F. Supp. 1458 (D. Haw. 1990), which concluded that a plaintiff had exhausted her administrative remedies against two 1 Plaintiff’s reliance on Bernstein v. Aetna Life & Casualty, 843 F.2d 359 (9th Cir. 2 1988), is also misplaced. Doc. 28 at 4. The Ninth Circuit allowed a suit against an 3 employee not named in the EEOC charge because the charge stemmed from a failure to 4 meet probationary requirements set by the employee in question. 843 F.3d at 362. The 5 employer had been named in the EEOC charge and the employee was necessarily involved 6 in the alleged discriminatory activity. Id. The EEOC charge in this case, by contrast, 7 alleges discrimination by Haase and Benally, neither of whom works for NTUA Wireless. 8 See also Gergawy v. United States Bakery, Inc., No. 2:19-CV-00417-SAB, 2021 WL 9 883463 (E.D. Wash. Mar. 9, 2021) (passing reference to employee in EEOC complaint not 10 sufficient to put her employer on notice of a claim); Simpson v. Pizza Venture of Tucson, 11 LLC, No. CV-18-0098-TUC-JAS (LCK), 2019 WL 3781546 (D. Ariz. Apr. 19, 2019) 12 (naming regional pizza affiliate in EEOC charge and informing national corporation of 13 plaintiff’s firing not sufficient to constitute notice to the corporation of potential Title VII 14 claim). 15 Lastly, the Plaintiff relies on factors developed by the Third and Seventh Circuits to 16 assert that her EEOC charge exhausted remedies with respect to NTUA Wireless. Doc. 28 17 at 5-7 (citing Glus v. G.C. Murphy Co., 657 F.2d 890 (7th Cir. 1981); Eggleston v. Chicago 18 Journeymen Plumbers’ Local Union No. 130, 562 F.2d 880 (3d Cir. 1977)).5 The factors 19 include: (1) the similarity of interests between the named party and the unnamed party; 20 (2) whether the plaintiff could have ascertained the identity of the unnamed party when the 21 EEOC charge was filed; (3) whether the unnamed party received adequate notice of the 22 charge; (4) whether the unnamed party had an adequate opportunity to participate in the 23 EEOC reconciliation process; and (5) whether the unnamed party actually was prejudiced 24 by its exclusion from the EEOC proceedings. See Eggleston, 657 F.2d at 905-07; Glus, 25 supervisors not named in her EEOC charge because their employer was named and the 26 supervisors’ conduct comprised the core of the Title VII complaint. Id. at 1462-63. Wangler is inapposite because the supervisor and HR employee alleged to have engaged 27 in the wrongful actions in this case were employed by NTUA, not Defendant.

28 5 These factors are not typically used by courts in the Ninth Circuit. See 4 Larson on Employment Discrimination § 76.06 (2023). 1 562 F.2d at 888. These factors do not help Plaintiff. NTUA Wireless and Commnet 2 Wireless, LLC are separate entities, and Plaintiff does not argue that they share a similarity 3 of interests with respect to this case. Doc. 26 at 4. Plaintiff concedes she was the general 4 manager of NTUA Wireless, which she equated to “the Chief Executive Officer of the 5 company,” and should have been able to name her employer accurately on the charge form. 6 Docs. 20 ¶ 4, 28 at 7. Additionally, nothing in Plaintiff’s complaint or her response to the 7 motion to dismiss suggests that NTUA Wireless knew of the EEOC charge or participated 8 in the EEOC investigation – facts she presumably would know as general manager. 9 Doc. 30 at 8-9. Indeed, only six weeks elapsed between the filing of the charge and 10 issuance of the right-to-sue letter, suggesting an expedited investigation. See Docs. 26-1, 11 26-2. Finally, because the charge was resolved without its input, Defendant appears to 12 have been prejudiced by not participating in the EEOC process. See Bowe v. Colgate- 13 Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1968) (“Th[e] provision serves two important 14 purposes. First, it notifies the charged party of the asserted violation. Secondly, it brings 15 the charged party before the EEOC and permits effectuation of the Act’s primary goal, the 16 securing of voluntary compliance with the law.”). Thus, even if the Court looks to factors 17 from other circuits and construes Plaintiff’s charge liberally, her Title VII claim still fails 18 on exhaustion grounds. The Court will grant the motion to dismiss the claim. 19 V. Dismissal of Remaining State Law Claims. 20 Upon dismissal of Plaintiff’s federal claim, the Court has discretion to dismiss the 21 remaining state law claims under 28 U.S.C. § 1367(c)(3). “To decline jurisdiction under 22 section 1367(c)(3), the district court must first identify the dismissal that triggers the 23 exercise of discretion and then explain how declining jurisdiction serves the objectives of 24 economy, convenience and fairness to the parties, and comity.” Trs. Of Constr. Indus. & 25 Laborers Health & Welfare Tr. v. Desert Valley Landscape and Maint., Inc., 333 F.3d 923, 26 925 (9th Cir. 2003). 27 Plaintiff’s state law claims are most properly addressed by the courts of Arizona – 28 courts charged with administering the laws of Arizona and more familiar with state law 1 || claims. When all federal claims are eliminated early in a case and only state law claims 2|| remain, a district court has “a powerful reason to choose not to continue to exercise || jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 348-51 (1988); see Ove v. Gwinn, 264 F.3d 817, 821, 826 (9th Cir. 2001). Because this litigation is at an early stage, 5 || the Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining state law 6 || claims. 7 IT IS ORDERED: 8 1. Defendants’ motion to dismiss (Doc. 26) is granted. 9 2. Plaintiff's remaining state law claims are dismissed without prejudice. 10 3. The Clerk’s Office is directed to term this case. 11 Dated this 15th day of September, 2023. 12 ° pureed 6, Cane plhel 14 5 . David G. Campbell Senior United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28