United States District Court, D. Arizona
Douglas L. Rayes United States District Judge
Joyce Garrison alleges that, after suffering an on-the-job
injury, her employer, Defendant Nike Incorporated, ignored
her injuries and refused to pay her worker's
compensation. Garrison, who is an African American woman,
claims that Nike was more attentive to the on-the-job
injuries of a female Caucasian coworker and paid that
coworker worker's compensation. Garrison brought this
action in Maricopa County Superior Court on February 22,
2017, asserting claims against Nike under the Age
Discrimination in Employment Act (ADEA) and Title VII of the
Civil Rights Act of 1964. She contends that Nike treated her
differently because of her age, gender, and race. Nike
removed the case soon thereafter.
issue are Garrison's Motion to Remand (Doc. 11) and
Nike's Motion to Dismiss (Doc. 4). The motions are fully
briefed and neither party requested oral argument. For the
following reasons, Garrison's motion to remand is denied
and Nike's motion to dismiss is granted.
Motion to Remand
civil action brought in state court that asserts a claim over
which federal district courts have original jurisdiction may
be removed to federal court by the defendant. 28 U.S.C.
§ 1441(a). A defendant must exercise this removal right
within thirty days after receiving a copy of the complaint.
28 U.S.C. § 1446(b). Here, Garrison alleges claims
arising under federal anti-discrimination laws. Federal
district courts have original jurisdiction over “all
civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331.
Accordingly, Nike had a right to remove this action from
state court to federal court, which it timely exercised
within thirty days of service. Garrison's preference for
state court does not negate Nike's statutory right to a
federal forum for the federal claims asserted against it.
Garrison's motion to remand therefore is denied.
Motion to Dismiss
Rule of Civil Procedure 12(b)(6) allows a defendant to seek
dismissal of a complaint that is not based on a cognizable
legal theory or that lacks sufficient facts to state a
plausible claim under an otherwise cognizable legal theory.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1988). When analyzing a complaint for
failure to state a claim to relief under Rule 12(b)(6), the
well-pled factual allegations are taken as true and construed
in the light most favorable to the nonmoving party.
Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.
2009). Legal conclusions couched as factual allegations are
not entitled to the assumption of truth and therefore are
insufficient to defeat a motion to dismiss for failure to
state a claim. In re Cutera Sec. Litig., 610 F.3d
1103, 1108 (9th Cir. 2010). Nor is the court required to
accept as true “allegations that contradict matters
properly subject to judicial notice, ” or that merely
are “unwarranted deductions of fact, or unreasonable
inferences.” Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
avoid dismissal, the complaint must plead sufficient facts to
state a claim to relief that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). This plausibility standard “is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). “Where a complaint
pleads facts that are ‘merely consistent with' a
defendant's liability, it ‘stops short of the line
between possibility and plausibility of entitlement to
relief.'” Id. (quoting Twombly,
550 U.S. at 557.)
argues that Garrison's complaint lacks a cognizable legal
theory because her federal civil rights claims are untimely.
Specifically, to maintain claims under Title VII and the ADEA
a claimant is required to bring a civil action within ninety
days of receiving a Notice of Right to Sue Letter from the
Equal Employment Opportunity Commission (EEOC). 42 U.S.C.
§ 2000e-5(f)(1). This ninety-day period is treated like
a statute of limitations. Scholar v. Pac. Bell, 963
F.2d 264, 266-67 (9th Cir. 1992). “Courts apply the
ninety-day time limit strictly and will dismiss a suit for
missing the deadline by even one day.” Wiley v.
Johnson, 436 F.Supp.2d 91, 96 (D.D.C. 2006). Nike
contends that Garrison filed her complaint more than ninety
days after receiving her Notice of Right to Sue Letter. The
filing her discrimination charge with the EEOC, Garrison
received a Notice of Right to Sue Letter dated August 31,
2016. (Doc. 4-1 at 2.) The letter contained the following
Title VII, the Americans with Disabilities Act, the Genetic
Information Nondiscrimination Act, or the Age Discrimination
in Employment Act: This will be the only notice of dismissal
and of your right to sue that we will send you. You may file
a lawsuit against the respondent(s) under federal law based
on this charge in federal or state court. Your lawsuit must
be filed WITHIN 90 DAYS of your receipt of this
notice; or your right to sue based on this charge will be
lost (The time limit for filing suit based on a claim under
state law may be different).
Garrison does not disclose when she received the letter, the
United States Postal Service's regulations state that
first class mail sent within the contiguous United States
will arrive within three days and, consequently, the Ninth
Circuit “presum[es] that, for purposes of determining
when notice was actually given, a document is received three
days after the date it was mailed.” Dandino, Inc.
v. U.S. Dep't of Transp., 729 F.3d 917, 921-22 (9th
Cir. 2013); 39 C.F.R. § 121, App. A. Garrison therefore
is presumed to have received the EEOC's Notice of Right
to Sue Letter by September 3, 2016. Garrison was required to
file her lawsuit by no later than December 2, 2016, but she
did not file this action until February 22, 2017.
does not dispute that she received this Notice of Right to
Sue Letter from the EEOC. Instead, she contends that her
lawsuit is timely because she filed it within the time period
specified in a Notice of Right to Sue Letter issued by the
Office of the Arizona Attorney General's Division of
Civil Rights Section. (Doc. 10 at 10.) That letter, which was
sent on December 1, 2016, notified Garrison that she was
required to file her civil action within the earlier of
ninety days of receiving the letter or one year of the date
she filed her charge (August 8, 2016). This time period,
however, applies only to Garrison's state law claims. It
does not apply to her claims arising under federal law.
Indeed, the Notice of Right to Sue Letter issued by the EEOC
clearly informed Garrison that the deadline for filing state
law discrimination claims may be different from the deadline
for filing her federal discrimination claims. Accordingly,
because Garrison filed her federal discrimination claims more
than ninety days after receiving the Notice of Right to Sue
Letter from the EEOC, her complaint must be dismissed as
ORDERED the Garrison's Motion to Remand (Doc. 11) is
DENIED and Nike's Motion to Dismiss (Doc. 4) is ...