Ramos v. Work World America, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 YUDITH RAMOS, No. 2:21-cv-01490-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. Yudith 19 Ramos (“Plaintiff”) filed an opposition. Opp’n, ECF No. 14. 20 Defendant replied. Reply, ECF No. 15. 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 January 2016 to August 2018. 26 Compl. ¶¶ 13-14, 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 Monica Dunievitz (“Dunievitz”),2 allege their direct supervisor, 2 Jack Price (“Price”), subjected them to a sexually hostile work 3 environment. Opp’n at 2. Among other things, Price commented on 4 the bodies of young female customers, openly talked about his sex 5 problems and displayed male enhancement pills in the workplace, 6 and viewed pornography from his work computer. Compl. ¶¶ 16-17. 7 On August 20, 2018, Dunievitz placed an anonymous call to 8 Work World headquarters to report that Price had been viewing 9 pornography on a work computer. Id. ¶¶ 19-20. Defendant sent a 10 general manager to investigate, who found that porn sites had 11 been visited but implied Plaintiff had accessed the sites. Id. ¶ 12 20. Plaintiff told the investigator it was not her but Price, 13 and that she did not feel safe working with him. Id. ¶¶ 20-21. 14 The investigator did not assure Plaintiff that Work World would 15 take steps to keep her safe, so Plaintiff quit. Id. ¶ 21. 16 On February 14, 2019, Plaintiff filed a charge of 17 discrimination with the Equal Employment Opportunity Commission 18 (“EEOC”) against Work World and Price, alleging sexual 19 harassment. Id. ¶ 10. The charge was dual-filed with the 20 California Department of Fair Employment and Housing (“DFEH”). 21 Id. In March 2019, the EEOC transferred processing of the charge 22 to DFEH. Id. DFEH’s investigation concluded in early August 23 2020. Id. ¶ 11. DFEH issued Plaintiff a right-to-sue notice on 24 August 18, 2020, and EEOC issued a right-to-sue notice on October 25 20, 2020. Id. [26] 2 Dunievitz, represented by the same counsel as Plaintiff, brings 27 a nearly identical action against Defendant. See Dunievitz v. Work World America, Inc. et al., No. 2:21-cv-01489-JAM-JDP (E.D. 28 Cal. 2021 ). 1 On August 19, 2021, Plaintiff filed the present lawsuit. 2 See generally Compl. Plaintiff asserts five claims: (1) sex 3 discrimination under Title VII; (2) retaliation under Title VII; 4 (3) sexual harassment under California’s Fair Employment and 5 Housing Act (“FEHA”); (4) failure to prevent sexual harassment 6 under FEHA; and (5) retaliation under FEHA. Id. Defendant moves 7 to dismiss. See generally Mot. 8 II. OPINION 9 A. Legal Standard 10 Dismissal is appropriate under Rule 12(b)(6) of the Federal 11 Rules of Civil Procedure when a plaintiff’s allegations fail “to 12 state a claim upon which relief can be granted.” Fed. R. Civ. 13 P. 12 (b)(6). “To survive a motion to dismiss a complaint must 14 contain sufficient factual matter, accepted as true, to state a 15 claim for relief that is plausible on its face.” Ashcroft v. 16 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and 17 citation omitted). While “detailed factual allegations” are 18 unnecessary, the complaint must allege more than “[t]hreadbare 19 recitals of the elements of a cause of action, supported by mere 20 conclusory statements.” Id. “In sum, for a complaint to 21 survive a motion to dismiss, the non-conclusory ‘factual 22 content,’ and reasonable inferences from that content, must be 23 plausibly suggestive of a claim entitling the plaintiff to 24 relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 25 2009). 26 B. Analysis 27 1. Title VII Claims 28 Plaintiff brings two federal claims: (1) “Discrimination1 Sexual Harassment” under Title VII and (2) “Retaliation” under 2 Title VII. Compl. at 6-7. Defendant argues both claims are 3 barred by the statute of limitations because Plaintiff did not 4 file this action within 90 days of receiving her right-to-sue 5 letters. Mot. at 2-5. 6 A plaintiff has 90 days after receipt of a right-to-sue 7 notice from the EEOC within which to commence a civil action 8 based on the charges filed. See 42 U.S.C. § 2000e-5(f)(1). 9 Failure to commence suit within the 90-day period is grounds for 10 dismissal of the action. Missirlian v. Huntington Memorial 11 Hospital, 662 F.2d 546, 549 (9th Cir. 1981); see also Von Saher 12 v. Norton Simon Museum of Art at Pasadena, 592 F. 3d 954 , 969 13 (9th Cir. 2010). 14 Here, DFEH issued Plaintiff a right-to-sue notice on August 15 18, 2020, and the EEOC issued a right-to-sue notice on October 16 20, 2020. Compl. ¶ 11. Plaintiff filed the present action on 17 August 19, 2021. Because over 90 days passed before this suit 18 commenced Plaintiff’s Title VII claims are barred. Plaintiff 19 does not dispute this in opposition. See generally Opp’n. 20 Indeed, Plaintiff clearly states in a footnote that she “does not 21 seek to apply equitable tolling to her Title VII claims for which 22 she sought an administrative remedy through EEOC.” Id. at 6, 23 n.3. The Court therefore grants Defendant’s motion to dismiss as 24 to these claims. Finding amendment would be futile, the Court 25 dismisses these claims with prejudice. See Deveraturda v. Globe 26 Aviation Sec. Servs., 454 F.3d 1043, 1049 (9th Cir. 2006). 27 2. Remaining State FEHA Claims 28 Having dismissed Plaintiff’s only federal claims, the Court eee RII IS 1 declines to exercise supplemental jurisdiction over her 2 remaining state FEHA claims. A district court may sua sponte 3 decline to exercise supplemental jurisdiction over pendant state 4 law claims if it “has dismissed all claims over which it has 5 | original jurisdiction.” 28 U.S.C. § 1367 (c) (3); see also Acri 6 v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997) 7 (“in the usual case in which all federal law claims are 8 eliminated before trial, the balance of factors . . . will point 9 toward declining to exercise jurisdiction over the remaining 10 state-law claims.”). The Court agrees with Defendant that here 11 there is no good reason to retain jurisdiction over the FEHA 12 claims. Reply at 4; see also Opp’n at 8, n.4. 13 Til. ORDER 14 For the reasons set forth above, the Court GRANTS 15 Defendant’s motion to dismiss Plaintiff’s first and second claims 16 | under Title VII WITH PREJUDICE. The Court declines to exercise 17 supplemental jurisdiction over the remaining state law claims. 18 IT IS SO ORDERED. 19 Dated: January 28, 2022 20 kA 2 teiren staves odermacr 7008