United States District Court, D. Arizona
MICHELLE H. BUMS, UNITED STATES MAGISTRATE JUDGE.
before the Court is Defendant State of Arizona's Motion
to Dismiss (Doc. 11). Plaintiff has filed a Response (Doc.
16), and Defendant has filed a Reply (Doc. 17). After
considering the arguments raised by the parties in their
briefing, the Court now issues the following
case arises out of an alleged incident of sexual harassment
that occurred on November 18, 2011, while Plaintiff was
employed with the Arizona Department of Corrections. On
February 18, 2012, Plaintiff filed a Charge of Discrimination
with the Equal Employment Opportunity Commission
(“EEOC”). (Doc. 11, Exh. A at 1.) At the time,
Plaintiff listed her address as 25257 West Lynne Lane,
Buckeye, Arizona (“Address One”). (Id.,
Exh. A at 1.) The EEOC's administrative proceedings
lasted over three years. At some point during this time,
Plaintiff moved to 3012 South 257th Drive, Buckeye, Arizona
(“Address Two”). (Doc. 16, Exh. A at 1.) On
September 5, 2014, the EEOC mailed Plaintiff a letter to
Address Two, thus demonstrating that Plaintiff had informed
the EEOC of her new address sometime prior to that date.
on March 31, 2015, the EEOC mailed closure documentation to
Plaintiff at Address One. (Doc. 11, Exh. B at 1.) The closure
documentation informed both parties that no further efforts
would be made by the EEOC and that Plaintiff's
discrimination charge was being referred to the Department of
Justice (“DOJ”) for litigation review.
(Id..) On October 7, 2015, DOJ issued Plaintiff a
right-to-sue letter and copied Defendant. (Doc. 11, Exh. C at
1.) The right-to-sue letter was sent to plaintiff at Address
One and was returned unclaimed on December 15, 2015. (Doc.
11, Exhs. C-D at 1.) In November 2016, Plaintiff contacted
DOJ to inquire why she never received her right-to-sue
letter; thereafter, in December, 2016, DOJ resent the
right-to-sue letter to Plaintiff at a P.O. box address. (Doc.
17, Exh. C at 1.) Plaintiff filed her Complaint on March 13,
Federal Rules of Civil Procedure require a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2); Gilligan
v. Jamco Dev. Corp., 108 F.3d 246, 248-49 (9th Cir.
1997). Thus, dismissal for insufficiency of a complaint is
proper if the complaint fails to state a claim on its face.
See Lucas v. Bechtel Corp., 633 F.2d 757, 759 (9th
Cir. 1980). A Rule 12(b)(6) dismissal for failure to state a
claim can be based on either: (1) the lack of a cognizable
legal theory; or (2) insufficient facts to support a
cognizable legal claim. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990);
Robertson v. Dean Witter Reynolds, Inc., 749 F.2d
530, 534 (9th Cir. 1984).
context of a Rule 12(b)(6) dismissal, a court generally does
not consider evidence or documents beyond the complaint.
See Hal Roach Studios, Inc. v. Richard Feiner &
Co., 896 F.2d 1542, 1550 (9th Cir. 1990). However,
courts may consider documents without converting the motion
to dismiss into a motion for summary judgement. United
States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
Documents that may be considered include documents attached
to the complaint, documents incorporated by reference in the
complaint, or matters of judicial notice. Id.
ruling on the motion, a court must accept all allegations of
material fact as true and construed in the light most
favorable to the non-moving party. See Clegg v. Cult
Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). As
for the factual allegations, the Supreme Court has explained
that they “must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 545 (2007). In ruling on a motion
to dismiss, the “issue is not whether a plaintiff will
ultimately prevail but whether [she] is entitled to
offer evidence to support the claims.”
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)
(emphasis added). Thus, “[w]hen a motion to dismiss is
based on the running of the statute of limitations, it can be
granted only if the assertions of the complaint, read with
the required liberality, would not permit the plaintiff to
prove that the statute was tolled.” Jablon v. Dean
Witter & Co., 614 F.2d 677, 682 (9th Cir.1980).
Timely Filing and Equitable Tolling.
argues that Plaintiff's Title VII action must be
dismissed for failure to state a claim. Specifically,
Defendant contends that Plaintiff's complaint was
untimely filed because it was filed fourteen months after the
EEOC issued Plaintiff's original right-to-sue letter, and
that therefore the Complaint should be dismissed.
the EEOC dismisses a claim, it is required to notify and
inform the claimant that he or she has 90 days to bring a
civil action. 42 U.S.C. § 2000e-5(f)(1). The 90-day
requirement constitutes a statute of limitations, and if a
claimant fails to file within the 90-day period, the action
is barred. Scholar v. Pacific Bell, 963 F.2d 264,
266-67 (9th Cir. 1992) (citing Edwards v. Occidental
Chem. Corp., 892 F.2d 1442, 1445 (9th Cir. 1990)). The
90-day limitation period begins running when delivery of the
right-to-sue notice was attempted at the address of record
with the EEOC. Nelmida v. Shelly Eurocars, Inc., 112
F.3d 380, 384 (9thCir. 1997). The claimant is deemed to have
received notice on the date of that attempted delivery.
Id. at 384. The address of record is the most recent
address provided. Id.
90-day period is subject to the doctrine of equitable
tolling. Id. at 384 (quoting Scholar, 963
F.2d at 266-67). “Equitable tolling is … to be
applied only sparingly.” Nelmida, 112 F.3d at
384 (citing Irwin v. Dep't of Veterans Affairs,
498 U.S. 89, 96 (1990)). Courts “have been generally
unforgiving … when a late filing is due to
claimant's failure ‘to exercise due diligence in
preserving his legal rights.'” Scholar,
963 F.2d at 268 (quoting Irwin, 498 U.S. at 96).
Typically, equitable tolling applies when a claimant's
failure to meet a legally-mandated deadline arose from
circumstances beyond that claimant's control. See
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 151
(“One who fails to act diligently cannot invoke
equitable principles to excuse that lack of
diligence.”). Equitable tolling has been applied to
cases where the statute of limitations “was not
complied with because of defective pleadings … and
when the EEOC's notice of the statutory period was