Hozey v. Cellco P'ship
| Decision Date | 22 June 2020 |
| Docket Number | Case No. 20-cv-00021-DKW-RT |
| Parties | WILLIAM J. HOZEY, Plaintiff, v. CELLCO PARTNERSHIP, doing business as Verizon Wireless, Defendant. |
| Court | U.S. District Court — District of Hawaii |
Defendant moves for dismissal of Plaintiff's state law claim of age discrimination, arguing that the claim is unexhausted because Plaintiff neither filed the claim with the Hawai'i Civil Rights Commission (HCRC) nor obtained a right-to-sue letter from the HCRC. In response, Plaintiff argues that he did exhaust his state law claim because he filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) and Hawai'i is a "deferral" state with a work share agreement between it and the EEOC. Plaintiff also argues that the instant motion to dismiss should be denied because it was untimely filed. Having evaluated these contentions, the motion to dismiss is GRANTED because Plaintiff has not received a right-to-sue letter from the HCRC. The Court further notes that the motion to dismiss was timely filed, given that Defendant has still not been properly served in this case.
The parties have stipulated to the following facts. In March 2019, Plaintiff William J. Hozey filed with the EEOC a Charge of Discrimination against Defendant, alleging discrimination on the basis of age. 2/24/20 Stip. at ¶ 1, Dkt. No. 15; Charge of Emp't Discrim. at 1, Dkt. No. 22-3. The Charge of Discrimination was not dual-filed with the HCRC. Stip. at ¶ 2. In September 2019, Plaintiff received a Dismissal and Notice of Rights letter ("right-to-sue letter") from the EEOC regarding the Charge of Discrimination. Id. at 3. The right-to-sue letter stated that Plaintiff could bring a lawsuit against Defendant under federal law based upon the Charge of Discrimination. Dismissal and Notice of Rights, Dkt. No. 22-4. The HCRC has not issued a right-to-sue letter to Plaintiff. Stip. at ¶ 5.
On December 26, 2019, Plaintiff initiated this action in state court with the filing of a two-count complaint against Defendant. Compl., Dkt. No. 1-1. As pertinent to this Order, in his first claim, Plaintiff alleged that Defendant violated Hawai'i Revised Statutes Section 378-2 by firing him due to his age. Id. at ¶ 23. In January 2020, Defendant removed Plaintiff's action to this Court. Dkt. No. 1.
On May 20, 2020, Defendant filed the instant motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 22. On June 2, 2020, Plaintiff filed a Return and Acknowledgment of Service printed on a State of Hawai'i form in which Plaintiff asserts that Defendant was served with a copy of the summons and complaint on February 24, 2020. Dkt. No. 24 at 1. One day later, Plaintiff filed his opposition to the motion to dismiss. Dkt. No. 25. On June 11, 2020, Defendant filed a reply in support of the motion to dismiss. Dkt. No. 26.
This Order now follows.
Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a complaint that fails "to state a claim upon which relief can be granted." Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A court may consider certain documents attached to a complaint, as well as documents incorporated by reference in the complaint or matters of judicial notice, without converting a Rule 12(b)(6) motion to dismiss into a motion forsummary judgment. United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003).1
When a complaint fails to state a claim, leave to amend should be given when "justice so requires." Fed.R.Civ.P. 15(a)(2). Justice does not require leave to amend when (1) it would prejudice an opposing party, (2) it is sought in bad faith, (3) it would produce an undue delay in litigation, (4) it would be futile, or (5) there has been repeated failure to cure a deficiency. Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742 (9th Cir. 2008); AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006).
After the filing of a complaint with the HCRC, the HCRC must determine within 180 days of the filing whether there is reasonable cause to believe an unlawful practice has occurred. Haw. Rev. Stat. § 368-13(b). If the HCRC determines that there is no reasonable cause to believe an unlawful practice hasoccurred, the HCRC must promptly notify the parties in writing and indicate to the complainant that he may bring a civil action under pertinent state law. Id. at § 368-13(c). The HCRC may also issue a notice of right to sue upon written request of the complainant. Id. § 368-12. The complainant has 90 days from receipt of the notice of right to sue to bring a civil action. Id. This procedure applies equally to claims of discrimination brought under Section 378-2. Id. §§ 368-11, 378-4. "The logical implication of the legislature's decision to authorize the [HCRC] to issue a right to sue is that it was a precondition to bringing a civil action for violation of [Section] 378-2; if it were not, the power to issue a right to sue would have been meaningless." Ross v. Stouffer Hotel Co. (Haw.) Ltd., Inc., 879 P.2d 1037, 1043 (Haw. 1994); see also Schefke v. Reliable Collection Agency, Ltd., 32 P.3d 52, 60 n.5 (Haw. 2001) ().
The Court addresses the following two issues in turn: (1) whether Defendant timely filed the instant motion to dismiss; and, if so, (2) whether Plaintiff has exhausted his administrative remedies with respect to his claim under Section 378-2.
The answer to this question is straightforward. Defendant has still not been properly served in this case and, therefore, its motion to dismiss cannot be untimely. In support of this argument, Plaintiff contends that Defendant was served on February 24, 2020 with the complaint and summons. Dkt. No. 25-1 at 8. While, arguably, Defendant may have received a copy of a complaint, Plaintiff presents no evidence that Defendant has been served with a summons issued by this Court. Instead, Defendant relies upon a summons issued by the state court from where this case was removed. Dkt. No. 24 at 1; Dkt. No. 24-1 at ¶ 4. The problem with that is Plaintiff used the state-issued summons after this case was removed from state court. As Defendant explains in its reply, this is not something Plaintiff is permitted to do. See Dkt. No. 26 at 2-3; see also Lee v. Winix, Inc., 2006 WL 8434724, at *1 (C.D. Cal. July 24, 2006) (). As a result, the Court rejects Plaintiff's argument that the motion to dismiss was untimely filed, given that the time to file one has not begun to run. See Fed.R.Civ.P. 12(a)(1)(A)(i) (); Fed.R.Civ.P. 12(b) ().
While the answer to this question is more nuanced than the previous one, the Court finds that Plaintiff's claim under Section 378-2 must be dismissed in light of his failure to obtain a notice of right to sue from the HCRC.
The Court starts with what the parties apparently do not dispute. The only charge of discrimination Plaintiff has made was with the EEOC, and the only right-to-sue letter Plaintiff has received is from the EEOC. In other words, Plaintiff does not dispute that he did not file a claim before the HCRC, and he has not received a notice of right to sue from the HCRC.
Nonetheless, the parties disagree on the effect of the proceeding before the EEOC. Defendant argues that, because Plaintiff has failed to file a charge of discrimination with or receive a notice of right to sue from the HCRC, Plaintiff has failed to exhaust his statutorily required administrative remedies. Plaintiff, on the other hand, argues that, because Hawai'i is a "deferral" state with a work share agreement between it and the EEOC, the Charge of Discrimination filed with the EEOC is sufficient to constitute a filing with the HCRC.
Although the Court may agree with Plaintiff that, due to the work share agreement between Hawai'i and the EEOC, the charge filed with the EEOC can be deemed as having been filed with the HCRC, that only gets Plaintiff half way toexhaustion. He was also required to obtain a notice of right to sue from the HCRC, something which he acknowledges he did not do. Moreover, there is no law, statute, regulation, or other authority of which the Court is aware providing that receipt of a right-to-sue letter from the EEOC constitutes receiving a right-to-sue letter from a state agency, even one with a work share agreement. Therefore, as more fully set forth below, the motion to dismiss is granted.
First, federal regulations indicate that, assuming a work share agreement exists between Hawai'i and the EEOC,2 filing a charge of discrimination with the latter constitutes filing a charge with the former. More specifically, "[c]harges received by one agency under the agreement shall be deemed received by the other agency for purposes of [Section] 1626.7." 29 C.F.R. § 1626.10(c).3 Here, it is undisputed that the EEOC received Plaintiff's Charge of Discrimination in March 2019. Stip. at ¶ 1. Therefore, in light of Section 1626.10(c), the HCRC was "deemed" to have received the same charge also in March 2019. The fact that Plaintiff did not affirmatively file a separate charge with the HCRC, or the fact thatthe EEOC appears to have failed to provide the HCRC with a copy of the Charge of Discrimination, is, thus, irrelevant.4 This, however, is only half the battle that Plaintiff...
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