Lee v. Comprehensive Health Mgmt.

• Decision Date: 18 August 2020
• Docket Number: Civ. No. 20-00028 JMS-WRP
• Parties: WILFRED L. LEE JR., Plaintiff, v. COMPREHENSIVE HEALTH MANAGEMENT, dba OHANA HEALTH PLAN, aka WELL CARE HEALTH PLAN; TIMOTHY TRODDEN; SUNDEE FARR; NOAH FONOTI; SHERIE VO'A; ET AL., Defendants.
• Court: U.S. District Court — District of Hawaii

WILFRED L. LEE JR., Plaintiff, v. COMPREHENSIVE HEALTH MANAGEMENT, dba OHANA HEALTH PLAN,aka WELL CARE HEALTH PLAN; TIMOTHY TRODDEN;SUNDEE FARR; NOAH FONOTI; SHERIE VO'A; ET AL., Defendants.

Civ. No. 20-00028 JMS-WRP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

August 18, 2020

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS, ECF NO. 58

I. INTRODUCTION

Plaintiff Wilfred Lee, Jr. ("Plaintiff" or "Lee"), proceeding pro se, filed this action against his former employer, Defendant Comprehensive Health Management, Inc. ("Comprehensive") and Comprehensive employees Timothy Trodden, Sundee Farr, Noah Fonoti, and Sherie Vo'a (collectively, "Defendants"). See ECF No. 51 (Amended Complaint). Construed broadly, the Amended Complaint alleges causes of action (1) under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. ("Title VII") and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), asserting discrimination claims based on race, age, sex/gender, and sexual orientation; and (2) violations of the civil Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964 et seq. Defendants move to dismiss all but the race and age-based discrimination claims. ECF No. 58.

The court proceeds directly to addressing the legal arguments in the Motion to Dismiss, and discusses relevant factual allegations only as necessary to understand the court's reasoning when addressing those arguments. Deciding the Motion to Dismiss without a hearing under Local Rule 7.1(c), the court GRANTS the motion.

II. DISCUSSION

A. Plaintiff's Gender and Sexual Orientation Discrimination Claims are Dismissed for Failure to Exhaust Administrative Remedies.

Before filing a Title VII or ADEA discrimination claim in federal court, Plaintiff must first timely exhaust his administrative remedies with the Equal Employment Opportunity Commission ("EEOC") or the Hawaii Civil Rights Commission. See, e.g., B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002) ("Under Title VII, a plaintiff must exhaust her administrative remedies by filing a timely charge with the EEOC, or the appropriate state agency, thereby affording the agency an opportunity to investigate the charge.") (citing 42 U.S.C. § 2000e-5(b)); You v. Longs Drug Stores Cal., LLC, 937 F. Supp. 2d 1237, 1248(D. Haw. 2013) ("Like Title VII, the ADEA requires exhaustion of claims by nonfederal employees.") (citing 29 U.S.C. § 626(d)(1)) (other citation omitted).

To bring either a Title VII claim or an ADEA claim in Hawaii, a plaintiff must file a charge with the EEOC within 300 days of the last alleged unlawful employment practice, and then the plaintiff must institute his or her action within ninety days from when the EEOC issues a right to sue letter. See, e.g., Pratt v. Haw., Dep't of Pub. Safety, 308 F. Supp. 3d 1131, 1142 (D. Haw. 2018). The purpose of these requirements is to "giv[e] the charged party notice of the claim and 'narrow[] the issues for prompt adjudication and decision.'" B.K.B., 276 F.3d at 1099 (quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)).

B.K.B. explains that subject matter jurisdiction extends to:

(1) allegations that actually fall within the EEOC's investigation; or (2) an EEOC investigation which "can reasonably be expected" to grow out of the charge. Id. at 1100 (quoting E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994) (emphasis omitted)). Further,

[a]llegations of discrimination not included in the plaintiff's administrative charge may not be considered by a federal court unless the new claims are like or reasonably related to the allegations contained in the EEOC charge. In determining whether a plaintiff has exhausted allegations that she did not specify in her administrative charge, it is appropriate to consider such factors as the alleged basis of the discrimination, dates ofdiscriminatory acts specified within the charge, perpetrators of discrimination named in the charge, and any locations at which discrimination is alleged to have occurred. In addition, the court should consider plaintiff's civil claims to be reasonably related to allegations in the charge to the extent that those claims are consistent with the plaintiff's original theory of the case.

Id. at 1100 (citations and internal editorial marks omitted). Thus, the jurisdictional scope of an action "depends upon the scope of both the EEOC charge and the EEOC investigation." Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990). The language of EEOC charges is construed "with utmost liberality since they are made by those unschooled in the technicalities of formal pleading." B.K.B., 276 F.3d at 1100 (citations and quotation marks omitted). "The crucial element of a charge of discrimination is the factual statement contained therein." Id. (citations and quotation marks omitted).

Here, however, it is undisputed that Plaintiff's EEOC charge was based only on claims of race and age discrimination. See ECF No. 58-4 at PageID #464. Plaintiff's EEOC charge checked only the "race" and "age" boxes when asked for the basis of discrimination. Id. The form stated in its "particulars" that "I believe that I have been discriminated against due to my race (Black) and age (42), in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Age Discrimination in Employment Act of 1967, as amended." Id. Nothing in the record indicates that Plaintiff complained of gender or sexual orientationdiscrimination before the EEOC, that those characteristics were in any way related to the race and age claims that were brought before the EEOC, or that the EEOC in fact investigated anything related to gender or sexual orientation.

That is, although Plaintiff's allegations in this suit appear to raise gender and sexual orientation discrimination claims (in addition to race and age)—see, e.g., ECF No. 51 at PageID #356 (alleging sex discrimination) & PageID #359 (asserting that "Defendant supervisor Noah Fonoti is part of the LGBTQ community," and that "[p]erformance management was not administered fairly and consistently . . . because of . . . Sex (Male/Heterosexual)[.]")—there is nothing in the Amended Complaint (or any documents the court could consider at this Rule 12(b)(6) stage) that those allegations were administratively exhausted before the EEOC. See, e.g., Scott v. Mantech Int'l Corp., 2019 WL 383991, at *6 (D. Haw. Jan. 29, 2019) (dismissing disability claim as unexhausted where the complaint form did not check the "disability" box, and no other information suggested that disability was part of the scope of the investigation).

Accordingly, the Title VII discrimination claims based on gender and/or sexual orientation are DISMISSED. The action, however, may proceed based on allegations of violations of Title VII (race) and under the ADEA. Nevertheless, this dismissal is without prejudice. And although it appears unlikely to the court that Plaintiff could establish exhaustion of the gender and sexualorientation claims, the court cannot say that giving leave to amend would be futile. Thus, if Plaintiff can sufficiently establish that his gender/sexual orientation claims were "like or reasonably related to the allegations contained in the EEOC charge," B.K.B., 276 F.3d at 1100, he may file a Second Amended Complaint attempting to do so. Such a Second Amended Complaint must be filed by September 17, 2020. If a Second Amended Complaint is not filed by that date, the action will proceed on the race and age-based discrimination claims as alleged.

B. No Individual Liability under Title VII or the ADEA.

Next, the court dismisses the Title VII and ADEA claims against Defendants Trodden, Farr, Fonoti, and Vo'a (the "individual Defendants"). It is well established under Ninth Circuit precedent that Title VII and the ADEA protects against discrimination by "employers," and thus individuals or agents cannot themselves be liable for violating Title VII and the ADEA. See, e.g., Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587 (9th Cir. 1993) (reasoning that "[t]he statutory scheme itself indicates that Congress did not intend to impose individual liability on employees" for both Title VII and the ADEA); Crabbe v. Nakayama, 2019 WL 138163, at *2 (D. Haw. Jan. 8, 2019) ("[Plaintiff] cannot maintain a cause of action against an individual under Title VII or the ADEA.") (citing Miller).

Accordingly, the Title VII and ADEA claims against the individual Defendants are DISMISSED. And because further amendment as to these claims against the individual Defendants would be futile, the dismissal of the individuals is with prejudice.

C. The Civil RICO Claims are Dismissed with Prejudice.

"To recover for a civil RICO violation, 'a plaintiff must prove that the defendant engaged in (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.'" Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharm. Co., 943 F.3d 1243, 1248 n.5 (9th Cir. 2019) (quoting Chaset v. Fleer/Skybox Int'l, LP, 300 F.3d 1083, 1086 (9th Cir. 2002)). And "[t]o allege civil RICO standing under 18 U.S.C. § 1964(c), a 'plaintiff must show: (1) that his alleged harm qualifies as injury to his business or property; and (2) that his harm was "by reason of" the RICO violation.'" Id. at 1248 (quoting Canyon Cty. v. Syngenta Seeds, Inc., 519 F.3d 969, 972 (9th Cir. 2008)).

A "'pattern' . . . requires at least two acts of racketeering activity." 18 U.S.C. § 1961(5). "Racketeering activity" is defined as "any act indictable under various provisions of 18 U.S.C. § 1961 and includes the predicate acts alleged in this case of mail fraud and wire fraud under 18 U.S.C. §§ 1341 and 1343." Forsyth v. Humana, Inc., 114 F.3d 1467, 1481 (9th Cir. 1997), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896 (9th Cir. 2012) (en banc). Toestablish mail and wire fraud, Plaintiff must allege the following elements: "(1) formation of a scheme or artifice to...