Macdonald v. Grace Church Seattle, 04-35984.

• Citation: 457 F.3d 1079
• Decision Date: 11 August 2006
• Docket Number: No. 04-35984.,04-35984.
• Parties: Suzanne MacDONALD, Plaintiff-Appellant, v. GRACE CHURCH SEATTLE; Pacific Northwest Presbytery of the Presbyterian Church in America; Presbyterian Church (U.S.A.), Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

457 F.3d 1079

Suzanne MacDONALD, Plaintiff-Appellant, v. GRACE CHURCH SEATTLE; Pacific Northwest Presbytery of the Presbyterian Church in America; Presbyterian Church (U.S.A.), Defendants-Appellees.

No. 04-35984.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2006.

Filed August 11, 2006.

Kathleen Phair Barnard, Seattle, WA, for the plaintiff-appellant.

Steven T. O'Ban, Seattle, WA, for defendant-appellee Grace Church Seattle.

Laurie L. Johnston, Seattle, WA, for defendants-appellees Pacific Northwest Presbytery of the Presbyterian Church in America and Presbyterian Church (U.S.A.).

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-03-02955-RSL.

Before DAVID R. THOMPSON, A. WALLACE TASHIMA, and CONSUELO M. CALLAHAN, Circuit Judges.

THOMPSON, Senior Circuit Judge.

Plaintiff-Appellant Suzanne MacDonald (MacDonald) appeals the district court's dismissal of her Title VII claims against the defendant nonprofit religious organizations for sexual harassment and retaliation because she failed to file her charges with the Equal Employment Opportunity Commission (EEOC) within 180 days of the last alleged discriminatory act. She asserts that the longer 300-day filing deadline (with which she complied) applies because the Washington State Human Rights Commission (Washington Commission) had subject matter jurisdiction over her charges. She argues that even though the Washington Law Against Discrimination exempts nonprofit religious organizations from the definition of "employer," the Washington Commission had subject matter jurisdiction because it is designated as a Fair Employment Practice (FEP) agency by the EEOC. She also contends that the Washington Commission had subject matter jurisdiction because the Washington Law Against Discrimination contains provisions that prohibit sex discrimination and retaliation by parties other than "employers."

MacDonald further argues, for the first time on appeal, that the exemption of nonprofit religious organizations from employment discrimination liability under the Washington Law Against Discrimination violates the Establishment and Equal Protection Clauses of the United States Constitution. She contends that because the nonprofit religious organization exemption is unconstitutional, the defendants were not exempt from her charges, the Washington Commission had subject matter jurisdiction to consider her charges, and therefore the 300-day filing deadline applies. Exercising our discretion, we decline to consider this constitutional argument raised for the first time in these appellate proceedings.

We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court's dismissal of MacDonald's Title VII claims. The Washington Commission did not have subject matter jurisdiction over MacDonald's charges and therefore the 180-day deadline applies for the required filing with the EEOC. MacDonald did not file her charges with the EEOC within the 180-day time limit, and as a result her Title VII claims were properly dismissed.

I. BACKGROUND

On February 21, 2003, MacDonald filed a charge with the Washington Commission and the EEOC, alleging gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., by defendants Grace Church Seattle (Grace), The Pacific Northwest Presbytery of the Presbyterian Church in America (PNWP), and The Presbyterian Church in America (PCA).¹ MacDonald, an office administrator for Grace, alleged that she had been sexually harassed by Grace's pastor, who was her supervisor. MacDonald alleged that the last discriminatory act occurred on April 30, 2002, when she was allegedly terminated from her employment by the defendants in retaliation for reporting the pastor's sexual harassment. She filed her charges with the EEOC and with the Washington Commission more than 180 days, but less than 300 days, after the last act of alleged discrimination. On July 2, 2003, the EEOC dismissed MacDonald's charges.

MacDonald then filed this action alleging gender discrimination and retaliation under Title VII, wrongful discharge in violation of the public policy of the State of Washington, and invasion of privacy under the common law of the State of Washington. MacDonald alleged that the defendants Grace, PNWP and PCA were all her "employer" as defined in Title VII. MacDonald did not plead any claims under the Washington Law Against Discrimination.

The district court granted the defendants' motions to dismiss, holding that MacDonald's Title VII claims were untimely because she failed to file her charge with the EEOC within 180 days of the last alleged discriminatory employment practice.² The district court held that the longer 300-day filing period was not available to MacDonald because the Washington Commission, the relevant FEP agency, did not have subject matter jurisdiction over her charges because non-profit religious organizations are exempt from the Washington Law Against Discrimination's employment discrimination provisions.

MacDonald filed a motion for reconsideration, which the district court denied. MacDonald argued that the Washington Commission had jurisdiction over her claims and thus she was entitled to the 300-day filing period because the EEOC regulations designated the Washington Commission as a FEP agency to hear her discrimination claims without any exception for charges against a nonprofit religious organization. She also argued that the Washington Commission had subject matter jurisdiction over her retaliatory discharge claim on the ground that the defendants were "persons," in addition to being her "employers," under the retaliation provision of the Washington Law Against Discrimination. The district court disagreed, denied MacDonald's motion for reconsideration, and this appeal followed.

II. STANDARD OF REVIEW

In dismissing MacDonald's complaint, the district court mistakenly applied Federal Rule of Civil Procedure 12(b)(6). See Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954 (9th Cir.2004). "A Rule 12(b)(6) motion must be made before the responsive pleading." Id. (citing Fed. R.Civ.P. 12(b)(6)). "Here, the [d]efendants filed their motion to dismiss after filing their answer." Id. "Thus, the motion should have been treated as a motion for judgment on the pleadings, pursuant to Rule 12(c) or 12(h)(2)." Id. Accordingly, we treat the district court's dismissal of MacDonald's Title VII claims as a grant of a motion for judgment on the pleadings. See id. at 954-55.

"We review de novo a district court's dismissal of a complaint [by] judgment on the pleadings." See id. at 955. We accept as true all allegations in MacDonald's complaint and treat as false those allegations in the answer that contradict MacDonald's allegations. See id. We review a district court's denial of a motion for reconsideration for an abuse of discretion. See Smith v. Pacific Props. & Dev. Corp., 358 F.3d 1097, 1100 (9th Cir.2004).

III. DISCUSSION

A. Title VII Time Limits for Filing Charges with the EEOC

Title VII establishes two potential time limitations periods within which a plaintiff must file an administrative charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1).³ Generally, a Title VII plaintiff must file an administrative charge with the EEOC within 180 days of the last act of discrimination. See id. However, the limitations period is extended to 300 days if the plaintiff first institutes proceedings with a "State or local agency with authority to grant or seek relief from such practice." Id.

The EEOC's regulations provide that the 180-day time limit applies if the State or local FEP agency⁴ lacks subject matter jurisdiction over a charge:

A jurisdiction having a FEP agency without subject matter jurisdiction over a charge (e.g., an agency which does not cover sex discrimination or does not cover nonprofit organizations) is equivalent to a jurisdiction having no FEP agency. Charges over which a FEP agency has no subject matter jurisdiction are filed with the Commission upon receipt and are timely filed if received by the Commission within 180 days from the date of the alleged violation.

29 C.F.R. § 1601.13(a)(2).

MacDonald filed her administrative charge with the EEOC more than 180 days, but less than 300 days, after the last alleged discriminatory act. She simultaneously filed an administrative charge with the Washington Commission, the relevant FEP agency.

The parties dispute whether the 180-day or the 300-day time limit applies. MacDonald contends that the 300-day time limit applies because the Washington Commission is a FEP agency with subject matter jurisdiction over her charges. The defendants argue, and the district court held, that the 180-day time limit applies because the Washington Commission did not have subject matter jurisdiction over MacDonald's charges because the defendants, as nonprofit religious organizations, are exempt from employment discrimination charges under the Washington Law Against Discrimination. See Wash. Rev. Code § 49.60.040(3).

B. The Washington Commission's Designation as a FEP Agency without Exception

MacDonald contends that the Washington Commission is a FEP agency with subject matter jurisdiction over all discrimination charges because of its designation as such an agency by the EEOC. Pursuant to 29 C.F.R. § 1601.70(a), the EEOC may designate state and local agencies as "FEP agencies." If the EEOC determines that a state or local agency does not come within the definition of a FEP agency for purposes of a particular ground of discrimination, the agency is deemed a "Notice Agency" as opposed to a FEP agency. See 29 C.F.R. § 1601.71(b). The EEOC lists designate FEP agencies at 29 C.F.R. § 1601.74(a).⁵ For some charges, the EEOC has explicitly footnoted exceptions to an agency's designation as a FEP agency and has instead deemed it a Notice...