Ortez v. Washington County, State of Or.
| Decision Date | 06 March 1996 |
| Docket Number | No. 94-36036,94-36036 |
| Citation | 88 F.3d 804 |
| Parties | 71 Fair Empl.Prac.Cas. (BNA) 584, 68 Empl. Prac. Dec. P 44,170, 97 Cal. Daily Op. Serv. 5069, 96 Daily Journal D.A.R. 8191 Robert T. ORTEZ, Sr., Plaintiff-Appellant, v. WASHINGTON COUNTY, STATE OF OREGON; John Junkin, County Attorney; Michelle Barrerr, County Attorney; Charles Cameron, County Administrator; and Susan Wilson, County Supervisor, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert T. Ortez, Cornelius, Oregon, pro se.
Robert A. Bianchi, Office of Washington County Counsel, Hillsboro, Oregon, for defendants-appellees.
Appeal from the United States District Court for the District of Oregon, Robert E. Jones, District Judge, Presiding. D.C. No. CV-93-00959-REJ.
Before: REINHARDT, KOZINSKI, and FERNANDEZ, Circuit Judges.
This appeal arises from appellant Ortez's pro se suit against his former employer, Washington County, and several county officials. On appeal, Ortez challenges the district court's dismissal with prejudice of his Title VII claims, as alleged in his fourth amended complaint, and his 42 U.S.C. § 1983 claims, as alleged in his third amended complaint.
Ortez was terminated by his employer, the Washington County Department of Housing Services. He filed a complaint, naming Washington County and ten county employees--Henry Alvarez, Housing and Tenant Service Manager; Michelle Burrows, County Counsel; Charles Cameron, County Administrator; Bob Dies, Director of Support Services; Donna Fowler, County Personnel Analyst; Darlene Girad-Hanson, Public Housing Management Officer; Bonnie Hays, County Chairperson; John Junkin, County Counsel; Susan Wilson, Housing Services Director; and Sandy Zodrow, County Personnel Manager--as defendants. He subsequently filed two amended complaints naming the same parties. The defendants moved to dismiss the second amended complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The district court granted the defendants' motion, dismissing all claims but giving Ortez leave to amend his complaint as to those claims dismissed without prejudice--his claims under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, which were dismissed without prejudice for failure to state a claim, and his Title Ortez filed a third amended complaint alleging, inter alia, claims under Title VII for disparate treatment and retaliation and a variety of claims under § 1983. The defendants again moved to dismiss under Fed.R.Civ.P. 12(b)(6). The district court again granted the defendants' motion, dismissing the § 1983 claims with prejudice for failure to correct the deficiencies it had found in the second amended complaint and dismissing with prejudice all the Title VII claims except the one against Washington County. The district court gave Ortez leave to amend his Title VII claim against Washington County to allege (1) a causal connection between his national origin and his firing, (2) damages suffered as a result of his discharge, and (3) the relief sought.
VII claims, which were dismissed without prejudice for failure to allege a prima facie case.
Ortez's fourth amended complaint contained an amended Title VII claim against Washington County. Defendants again moved to dismiss. The district court granted the motion and dismissed the remaining Title VII claim because it concluded that Ortez had again failed to establish a causal connection between his national origin and the adverse employment actions he alleged. His appeal is limited to the district court's dismissal of his Title VII and § 1983 claims.
We review de novo dismissals for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Franceschi v. Schwartz, 57 F.3d 828, 830 (9th Cir.1995). We must reverse the dismissals Ortez appeals unless it appears certain that he would not be entitled to relief under any state of facts he could prove. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.1984). Because Ortez is a pro se litigant, we must construe liberally his inartful pleading, Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.1987); thus, we must decide whether it appears beyond doubt that he "can prove no set of facts in support of his claim which would entitle him to relief," Jones, 733 F.2d at 649 (citation omitted), even when his claims are liberally construed.
Defendants argue that Ortez failed to file his claim with the district court within the 90-day period mandated by law. When the Equal Employment Opportunity Commission (EEOC) dismisses a claim, it must notify the claimant and inform him that he has 90 days to bring a civil action. Scholar v. Pacific Bell, 963 F.2d 264, 266-67 (9th Cir.), cert. denied, 506 U.S. 868, 113 S.Ct. 196, 121 L.Ed.2d 139 (1992). If the claimant does not file within this 90-day period, the action is barred. Id. The district court held that Ortez had complied with the 90-day limit.
The 90-day period runs from the date that notice of the right to sue is given to the claimant. We have held that the claimant need not actually receive the notice himself and that the period ordinarily begins to run upon receipt of a right-to-sue letter at the appellant's mailing address. 1 Scholar, 963 F.2d at 267. Ortez filed his complaint on August 2, 1993, 94 days after April 30, 1993, the day on which the letter was apparently mailed. Based on the fact that the right-to-sue letter was apparently mailed on a Friday, the district court concluded that Ortez would not have received it until the following week. Because the 90-day period would then have ended on a weekend, the district court held that Ortez's Monday filing was timely. Defendants have not contested that holding.
However, defendants contend that Ortez failed to set forth his Title VII claims until his second complaint, well after the allotted time for filing a timely claim had expired. The district court found that Ortez's first complaint, which stated that "I am filing under title 7 Civil Rights Act of 1964" sufficiently set forth a Title VII claim despite the defectiveness of the pleading. We affirm this holding as well because, having been adequately referenced in his original complaint, Ortez's Title VII claims were not barred by the statute of limitations.
The district court dismissed Ortez's Title VII claims against the ten individual defendants based on the fact that his EEOC complaint "named only Washington County." 2 Defendants not named in the EEOC complaint can be sued under Title VII where such individuals should have anticipated being named in a Title VII action arising from the complaint. Sosa v. Hiraoka, 920 F.2d 1451, 1458 (9th Cir.1990). We made this clear in Sosa when we observed:
"Title VII charges can be brought against persons not named in an E.E.O.C. complaint as long as they were involved in the acts giving rise to the E.E.O.C. claims." Further, where the EEOC or defendants themselves "should have anticipated" that the claimant would name those defendants in a Title VII suit, the court has jurisdiction over those defendants even though they were not named in the EEOC charge.
Id. at 1458-59 (internal citations omitted).
Thus, the district court erred in dismissing the claims against the individual defendants on the ground that they were not named in the EEOC complaint. Even though the district court dismissed the Title VII claims against the ten individual defendants for the wrong reason, we affirm the dismissal of those claims because employees cannot be held liable in their individual capacities under Title VII. See Miller v. Maxwell's International Inc., 991 F.2d 583 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994). However, we conclude that Ortez did state a Title VII claim against defendants Alvarez, Burrows, Cameron, Dies, Fowler, Hays, Junkin, Wilson, and Zodrow in their official capacities and against Washington County under the theory of respondeat superior.
The district court dismissed Ortez's Title VII disparate treatment claim against Washington County on the ground that the complaint "failed to establish a causal connection between his national origin and his discharge." This dismissal was in error.
In his fourth amended complaint, Ortez contends that, because of his national origin, the individual defendants required him to comply with different terms and conditions of employment than were required of his non-Mexican-American co-workers. He alleges that defendant Alvarez failed to inform him of a new system of recording housing inspections. He also alleges that defendants Alvarez, Fowler, and Junkin developed new policies regarding performance evaluations and new policies regarding job duties and the assignment of responsibilities that were directed at him because of his Mexican-American origin; that these defendants required him to satisfy conditions not required of non-Mexican-American employees in order to return to work following a medical leave; and that they imposed performance standards on him that were not imposed on non-Mexican-American employees. Ortez also states in his fourth amended complaint that these actions were taken with the knowledge and consent of defendants Junkin, Hays, Cameron, Dies, and Zodrow. He also notes that he reported this disparate treatment to defendants Wilson, Junkin, Fowler, Dies, Alvarez, Cameron, Burrows, and Hays. Ortez also alleges that he was replaced by a less qualified and less experienced non-Mexican-American employee after his termination.
Instead of requiring only that Ortez set forth a short and plain statement of his Title VII discrimination claim showing that he was entitled to relief, the district court required him to establish a prima facie case of discrimination. However, a plaintiff need not make a prima facie showing to survive a motion to...
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