The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 YANIRA GONZALEZ, Case No. 21-cv-01844-JCS
8 Plaintiff,
ORDER REGARDING MOTION FOR
9 v. JUDGMENT ON THE PLEADINGS
10 APTTUS CORPORATION, Re: Dkt. No. 49
Defendant.
11
12 I. INTRODUCTION
13 Plaintiff Yanira Gonzalez, pro se, brought this action against her former employer
14 Defendant Apttus Corporation asserting discrimination based on age, sex, and disability. Apttus
15 moves for judgment on the pleadings, arguing that Gonzalez waited too long to file an
16 administrative charge with the EEOC as required for her federal claims, and that she cannot
17 proceed on claims under New York law when she alleges that she was employed in California.
18 The Court finds the matter suitable for resolution without oral argument and VACATES the
19 motion hearing previously set for March 4, 2022 at 9:30 AM Pacific Time, although the case
20 management conference set for the same time remains on calendar and will proceed as
21 scheduled. For the reasons discussed below, Apttus’s motion is GRANTED and Gonzalez’s
22 claims are DISMISSED, without prejudice to Gonzalez filing an amended complaint no later than
23 April 1, 2022.1
24 II. BACKGROUND
25 Gonzalez alleges that she was employed by Apttus in San Mateo, California. Compl. (dkt.
26 1) at 3. She asserts that Apttus discriminated her based on age, sex, and a disability related to
27
1 mental health, that it failed to accommodate her disability, and that it retaliated against her for
2 reporting discrimination. Id. at 4–5. In an attachment, she explains that she was paid less than a
3 similarly qualified man hired in April of 2018 to replace her managing a project.2 See dkt. 1-2
4 (attachment to complaint). When she complained about that incident, and another incident where
5 a male director was unprepared for a client presentation, she “was told to just deal with it” and no
6 investigation was conducted. Id. In May of 2018, Gonzalez took a leave of absence related to a
7 disability for which she did not receive “any support from the leadership or HR team.” Id. In
8 June of 2019, Gonzalez was assigned back to the project to replace the man who had replaced her
9 in 2018 because was unable to “do the job well.” Id. In November of 2019, Gonzalez requested
10 leave to work from England for two or three weeks while handling “a medical and family issue,”
11 but Apttus denied that request even though it granted a similar accommodation for a male director.
12 Id. Apttus fired Gonzalez in December of 2019 for “performance related concerns, and
13 misrepresentation of work location.” Id. In her view, the circumstances that led to her firing were
14 similar to the issues she had previously raised regarding a male colleague’s lack of preparation,
15 which Apttus had ignored. Id. Apttus did not provide her with severance, stock, or bonuses. Id.
16 Gonzalez filed a charge with the Equal Employment Opportunity Commission (“EEOC”),
17 which is also captioned as addressed to the California Department of Fair Employment and
18 Housing (“DFEH”), on December 8, 2020 setting forth the same facts and asserting the same
19 theories of discrimination and retaliation as in her complaint here. Dkt. 1-4. The EEOC issued a
20 right-to-sue letter on December 14, 2020 notifying Gonzalez that she if she wished to pursue Title
21 VII or Age Discrimination in Employment Act (“ADEA”) claims in court, she must do so within
22 ninety days of receipt of that letter. Dkt. 1-3. Gonzalez states in her complaint that she received
23 the letter on January 1, 2021. Compl. at 6.
24 On February 10, 2021, Gonzalez filed her complaint in the Southern District of New York.
25 See generally Compl. She asserts claims under Title VII, the ADEA, the New York State Human
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2 Since a plaintiff’s factual allegations are generally taken as true in assessing the sufficiency of
1 Rights Law, and the New York City Human Rights Law. Id. at 3–4. The Southern District of
2 New York transferred the case to this district sua sponte based on its determination that the
3 conduct at issue occurred while Gonzalez was employed in California and the case lacked a
4 sufficient connection to New York to establish that state as an appropriate venue. See dkt. 4.
5 After Apttus was served, it filed an answer (dkt. 31) on September 13, 2021, and filed its
6 present motion for judgment on the pleadings on January 28, 2022, see generally Mot. (dkt. 49).
7 Apttus contends that Gonzalez’s federal claims should be dismissed for failure to exhaust
8 administrative remedies within 300 days of the conduct at issue because she waited until 361 days
9 after she was fired to file her administrative charge, Mot. at 5–6, and argues that her New York
10 claims must be dismissed because she alleges that she was employed in California and has not
11 alleged any connection to New York, id. at 6–7.
12 III. ANALYSIS
13 A. Legal Standard
14 Rule 12(c) of the Federal Rules of Civil Procedure permits a party to move for judgment
15 on the pleadings “[a]fter the pleadings are closed—but early enough not to delay trial.” Fed. R.
16 Civ. P. 12(c). “Analysis under Rule 12(c) is substantially identical to analysis under Rule 12(b)(6)
17 because, under both rules, a court must determine whether the facts alleged in the complaint, taken
18 as true, entitle the plaintiff to a legal remedy.” Chavez v. United States, 683 F.3d 1102, 1108 (9th
19 Cir. 2012) (citation and internal quotation marks omitted). Generally, a plaintiff’s burden at the
20 pleading stage is relatively light. Rule 8(a) of the Federal Rules of Civil Procedure states that “[a]
21 pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the
22 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). In ruling on a motion
23 under Rule 12(c), the Court must accept all factual allegations in the complaint as true and view
24 them in the light most favorable to the non-moving party. Fleming v. Pickard, 581 F.3d 922, 925
25 (9th Cir. 2009).
26 Dismissal at the pleading stage may be based on a lack of a cognizable legal theory or on
27 the absence of facts that would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901
1 respecting all the material elements necessary to sustain recovery under some viable legal theory.”
2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor
3 Co., 745 F.2d 1101, 1106 (7th Cir. 1984)). “A pleading that offers ‘labels and conclusions’ or ‘a
4 formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S.
5 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders
6 ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at
7 557). Rather, the claim must be “‘plausible on its face,’” meaning that the plaintiff must plead
8 sufficient factual allegations to “allow[] the court to draw the reasonable inference that the
9 defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 570).
10 Pro se pleadings are generally liberally construed and held to a less stringent standard. See
11 Erickson v. Pardus, 551 U.S. 89, 94 (2007). Even post-Iqbal, courts must still liberally construe
12 pro se filings. Hebbe v. Pliler, 627 F.3d 338 (9th Cir. 2010). As the Ninth Circuit explained in
13 Hebbe, “while the standard is higher, our obligation remains, where the petitioner is pro se,
14 particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the
15 benefit of any doubt.” Id. at 342. Nevertheless, the court may not “supply essential elements of
16 the claim that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266,
17 268 (9th Cir. 1982).
18 If the Court dismisses a complaint for failure to state a claim, it should “grant leave to
19 amend even if no request to amend the pleading was made, unless it determines that the pleading
20 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127
21 (9th Cir. 2000) (en banc) (internal quotation marks and citations omitted). In general, courts
22 “should freely give leave when justice so requires.” Id. Further, when it dismisses the complaint
23 of a pro se litigant with leave to amend, “‘the district court must provide the litigant with notice of
24 the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend
25 effectively.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Ferdik v. Bonzelet,
26 963 F.2d 1258, 1261 (9th Cir. 1992)). “‘Without the benefit of a statement of deficiencies, the pro
27 litigant will likely repeat previous errors.’” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624
1 B. Timeliness of Gonzalez’s Federal Claims
2 A plaintiff alleging employment discrimination in violation of Title VII or the ADA must
3 file a charge with the EEOC within 300 days of the conduct at issue (or within 180 days in states
4 that do not have their own enforcement agencies). See Holmes v. Tacoma Pub. Sch. Dist. No. 10,
5 736 F. App’x 190, 191 (9th Cir. 2018) (citing 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117;
6 Nat’l Passenger R.R. Corp. v. Morgan, 536 U.S. 101, 104–05 (2002)). The ADEA has the same
7 requirement. See 29 U.S.C. § 626(d)(1); Forester v. Chertoff, 500 F.3d 920, 924 (9th Cir. 2007).
8 [A plaintiff’s] failure to timely file her charge to the EEOC is not
necessarily fatal. As the Supreme Court has held, the “time period for
9 filing a charge is subject to equitable doctrines such as tolling or
estoppel.” Morgan, 536 U.S. at 113. “Equitable tolling is, however,
10 to be applied only sparingly.” Nelmida v. Shelly Eurocars, Inc., 112
F.3d 380, 384 (9th Cir. 1997). For example, the Supreme Court has
11 permitted equitable tolling when “the statute of limitations was not
complied with because of defective pleadings, when a claimant was
12 tricked by an adversary into letting a deadline expire, and when the
EEOC’s notice of the statutory period was clearly inadequate.”
13 Scholar v. Pac. Bell, 963 F.2d 264, 268 (9th Cir. 1992) (collecting
cases). But “[c]ourts have been generally unforgiving . . . when a late
14 filing is due to claimant’s failure ‘to exercise due diligence in
preserving [her] legal rights.’” Id. (quoting Irwin v. Dep’t of Veterans
15 Affairs, 498 U.S. 89, 96 (1990)).
16 Holmes, 736 F. App’x at 191. Although the charge-filing requirement is not a limitation on the
17 jurisdiction of the federal courts, it remains “‘mandatory’ in the sense that a court must enforce the
18 rule if a party properly raises it.” Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1849, 1852 (2019)
19 (cleaned up).
20 Here, as Apttus correctly notes, Gonzalez’s EEOC charge is dated 361 days after she
21 alleges she was fired. Gonzalez asserts in her opposition that she first attempted to file a charge
22 with the EEOC in New York, which “was successfully filed on November 23, 2020,” but the
23 EEOC told her that she must file in California. Opp’n (dkt. 53) at 4. She also asserts that she
24 experienced serious health issues in 2020 that impaired her ability to pursue her claims. Id. at 9.
25 But if Gonzalez intends to rely on those assertions to support any argument for tolling the EEOC
26 filing deadline, she must include them as allegations in her complaint. Presenting new factual
27 assertions in an opposition brief is not a substitute for allegations missing from a complaint. See
1 denial of leave to amend, where a “plaintiff [had] attempt[ed] to expand the scope of his complaint
2 by making allegations in a collateral document not subject to counter by means of an answer or
3 motion to dismiss”). Since these assertions are not properly before the Court in their current form,
4 and Gonzalez has not meaningfully addressed their legal significance even if they were, the Court
5 declines to resolve at this time whether they would be sufficient to support tolling the deadline if
6 Gonzalez had included them in her complaint.
7 Accordingly, Apttus’s motion is GRANTED as to Gonzalez’s federal claims under Title
8 VII, the ADA, and the ADEA, without prejudice to Gonzalez pursuing those claims in an
9 amended complaint if she can include sufficient factual allegations in such a complaint to support
10 tolling the deadline for filing her charge with the EEOC.
11 C. Applicability of New York Statutes
12 The parties have not addressed in any detail the degree of a connection to New York that is
13 necessary for Gonzalez to pursue her claims under the New York state and city human rights laws
14 asserted in her complaint, see Compl. at 4, but Gonzalez does not dispute that at least some
15 connection is required. Gonzalez asserts in her opposition brief that she was hired in New York
16 and performed at least some work remotely from New York. Opp’n at 5, 10. No such allegations
17 appear in her complaint, however, and mere assertions in a legal brief are not a substitute for
18 allegations in a complaint. Udom, 846 F.2d at 1238. Her complaint indicates only that she was
19 employed by Apttus in San Mateo, California. Compl. at 3. Apttus’s motion is therefore
20 GRANTED as to Gonzalez’s New York claims, without prejudice to Gonzalez included them in
21 an amended complaint if she can allege a sufficient connection to New York. If Gonzalez intends
22 to pursue these claims, her amended complaint must include factual allegations addressing any
23 relevant connection to New York.
24 In the absence of meaningful briefing by either party, the Court declines to resolve at this
25 time the precise contours of how New York antidiscrimination law applies to remote workers.
26 D. Leave to Amend to Assert Other Claims
27 Gonzalez’s opposition brief suggests that she intends to pursue claims under California law
] charge also served to notify the DFEH), and perhaps under the federal Equal Pay Act. No such
2 || claims appear in her current complaint. If Gonzalez wishes to pursue these or any other claims
3 || related to her employment at Apttus, she may include them in an amended complaint, although she
4 || may not add new parties without permission from the Court. At this time, the Court does not
5 || reach any question of whether such claims would be viable.
6 || IV. CONCLUSION
7 For the reasons discussed above, Apttus’s motion for judgment on the pleadings is
8 GRANTED, and Gonzalez’s claims are DISMISSED without prejudice. If Gonzalez believes she
9 can cure the defects identified above, or that she can state other viable claims related to her
10 || employment at Apttus, she may file an amended complaint no later than April 1, 2022. Any such
11 complaint must include the caption and case number for this case and the words “FIRST
12 |} AMENDED COMPLAINT” on the first page. The amended complaint cannot incorporate the
13 original complaint by reference; it must include all relevant factual allegations and legal claims on
14 || which Gonzalez intends to rely. Gonzalez should set forth her factual allegations and legal claims
3 15 in consecutively numbered paragraphs consistent with Rule 10(b) of the Federal Rules of Civil
16 || Procedure.
17 Gonzalez also raises discovery issues in her opposition, including whether Apttus
18 complied with its initial disclosure obligations or produced documents requested by Gonzalez.
19 || See Opp’n at 11. An opposition to a motion for judgment on the pleadings is not the appropriate
20 || mechanism to raise these issues.
21 Gonzalez is encouraged to contact the Federal Pro Bono Project’s Pro Se Help Desk for
22 || assistance as she continues to pursue this case. Lawyers at the Help Desk can provide basic
23 assistance to parties representing themselves but cannot provide legal representation. Gonzalez
24 || may contact the Help Desk at (415) 782-8982 or FedPro@sfbar.org to schedule a
25 || telephonic appointment.
26 IT ISSO ORDERED.
27 || Dated: March 3, 2022
J PH C. SPERO
28 ief Magistrate Judge