# Albayati v. Cascade Windows > District Court, E.D. Washington · September 25, 2025 URL: https://www.frixlaw.com/law-library/cases/11144781 ## Case - **Court:** District Court, E.D. Washington - **Decided:** September 25, 2025 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11144781 ## How later opinions describe it (automated extraction) - stating in forma 15 pauperis status is not only available to prisoners - affirming the lower court’s dismissal of an 14 ADEA action for failure to file a charge with the EEOC at least 60 days before 15 filing suit ## Opinion text 1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON Sep 25, 2025 2 SEAN F. MCAVOY, CLERK 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 ODAI S. ALBAYATI, NO. 2:25-CV-0120-TOR 7 Plaintiff, ORDER GRANTING IN PART 8 v. DEFENDANTS’ MOTION TO DISMISS 9 CASCADE WINDOWS, CORNERSTONE BUILDING 10 BRANDS, SIMONTON INDUSTRIES, AND SIMONTON 11 WINDOWS 12 Defendants. 13 BEFORE THE COURT are Defendants’ Motion to Dismiss (ECF No. 16), 14 Plaintiff’s Motion for Appointment of Pro Bono Counsel (ECF No. 17) and 15 Plaintiff’s Motion to Extend Time to Respond (ECF No. 19) to Defendants’ 16 Motion to Dismiss. These matters were submitted for consideration without oral 17 argument. The Court has reviewed the record and files herein and is fully 18 informed. For the reasons discussed below, Defendants’ Motion to Dismiss (ECF 19 No. 16) is GRANTED in part, Plaintiff’s Motion for Appointment of Pro Bono 20 Counsel (ECF No. 17) is DENIED, and Plaintiff’s Motion to Extend Time to 1 Respond (ECF No. 19) is DENIED as moot. 2 BACKGROUND 3 Plaintiff is proceeding pro se and under in forma pauperis status. ECF No. 4 4. On April 11, 2025, Plaintiff filed this claim alleging employment discrimination 5 violating Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2000e-17, the Age 6 Discrimination in Employment Act, 29 U.S.C. §§ 621-634, Rehabilitation Act, 29 7 U.S.C. §§ 701-718B, and Americans with Disabilities Act, 42 U.S.C., §§ 12101- 8 12213. ECF No. 5 at 3. Plaintiff alleges violations occurring from August 20, 9 2016, to April 11, 2022. ECF No. 5 at 3. Defendants move to dismiss Plaintiff’s 10 claims because Plaintiff failed to exhaust administrative remedies, is time-barred, 11 and fails to state a claim. ECF No. 16 at 4-13. 12 DISCUSSION 13 28 U.S.C. § 1915 governs in forma pauperis proceedings. 28 U.S.C. § 1915, 14 (e)(2)(b); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (stating in forma 15 pauperis status is not only available to prisoners). Under § 1915(e)(2), the Court 16 may dismiss a case at any time if the court finds that either the poverty claim is 17 false “or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails to state a 18 claim on which relief may be granted; or (iii) seeks monetary relief against a 19 defendant who is immune from such relief.” § 1915(e)(2). 20 Under § 1915(e)(2)(B)(i), an action is frivolous if the legal arguments in the 1 complaint are not arguable on the merits. Neitzke v. Williams, 490 U.S. 319, 322– 2 23 (1989), superseded by statute, 29 U.S.C. § 1915(d), as recognized in Lopez v. 3 Smith, 203 F.3d 1122, 1126 (9th Cir. 2000). In other words, there must be an 4 arguable basis in both the facts and the law. Neitzke, 490 U.S. at 322–23 (1989). 5 A plaintiff must allege facts, not simple conclusions, that show that an individual 6 was personally involved in the deprivation of his civil rights. Barren v. 7 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). 8 Under § 1915(e)(2)(B)(ii), “[t]he standard for determining whether a 9 plaintiff has failed to state a claim upon which relief can be granted … is the same 10 as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a 11 claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). For a plaintiff to 12 survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain 13 sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible 14 on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. 15 v. Twombly, 550 U.S. 544, 570 (2007)). This requires more than a simple 16 “formulaic recitation of a cause of action’s elements.” Twombly, 550 U.S. at 545. 17 Pro se pleadings are liberally construed to “‘afford the petitioner the benefit 18 of any doubt.’” Watison, 668 F.3d at 1112 (quoting Hebbe v. Pliler, 627 F.3d 338, 19 342 (9th Cir. 2010)). This is especially important for cases arising out of civil 20 rights violations. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), as 1 amended (May 22, 1992) (citation omitted). 2 I. Title VII 3 Plaintiff claims employment discrimination under Title VII of the Civil 4 Rights Act, 42 U.S.C. §§ 2000e-2000e-17. ECF No. 5 at 3. There are two 5 prerequisites to filing a suit under Title VII. § 2000e-5(e)-(f). One, the employee 6 must file a charge with the EEOC within 180 days after the unlawful employment 7 practice occurred (or 300 days if filling with an appropriate state agency). 42 8 U.S.C. § 2000e-5(e); Scott v. Gino Morena Enters., LLC, 888 F.3d 1101, 1111 (9th 9 Cir. 2018). Two, when the employee is given notice of the right to sue by the 10 EEOC, then the employee must file within 90-days. 42 U.S.C. § 2000e-5(e); Scott, 11 888 F.3d at 1111. 12 Additionally, the Ninth Circuit holds the first prerequisite as a jurisdictional 13 requirement to present a Title VII claim. Sommatino v. United States, 255 F.3d 14 704, 708 (9th Cir. 2001). This requires “substantial compliance with the 15 presentment of discrimination complaints to an appropriate administrative agency” 16 Sommatino, 255 F.3d 704 at 708. Without fulfilling this prerequisite, the district 17 court does not have subject matter jurisdiction over the matter. Sommatino, 255 18 F.3d at 708. As such, Plaintiff must file a charge of discrimination against 19 Defendants with an appropriate agency during the specified time frame for this 20 Court to have jurisdiction over this claim. “If the court determines at any time that 1 it lacks subject-matter jurisdiction, the court must dismiss the action.” FED. R. CIV. 2 P. 12. Plaintiff states in his complaint that he did not file a charge of 3 discrimination with the EEOC or any other federal or state agency. ECF No. 5 at 4 4. Consequently, Plaintiff states he did not receive a notice of right to sue from the 5 EEOC. ECF No. 5 at 4. As a result, the Court does not have subject matter 6 jurisdiction over this claim and it must be dismissed. 7 II. ADEA 8 Plaintiff claims violations under the Age Discrimination in Employment 9 Act. ECF No. 5 at 3. This act requires similar requirements under 29 U.S.C. § 10 626(d)(1). The act states “[n]o civil action may be commenced by an individual 11 under [the ADEA] until 60 days after a charge alleging unlawful discrimination 12 has been filed with the [EEOC].” 29 U.S.C. § 626(d)(1); Fed. Exp. Corp. v. 13 Holowecki, 552 U.S. 389, 395 (2008) (affirming the lower court’s dismissal of an 14 ADEA action for failure to file a charge with the EEOC at least 60 days before 15 filing suit). Again, Plaintiff denied filing a charge with the EEOC or any other 16 federal or state agency. ECF No. 5 at 4. Accordingly, the Court must dismiss this 17 claim. 18 III. ADA 19 Next, Plaintiff argues employment discrimination under the Americans with 20 Disabilities Act, 42 U.S.C. §§ 12101-12213. ECF No. 5 at 3. Under Title I of the 1 Americans with Disabilities Act, the statute of limitations is the same as under 2 Title VII of the Civil Rights Act. Sharkey v. O'Neal, 778 F.3d 767, 770 (9th Cir. 3 2015) (citation omitted). As previously discussed, a charge must be filed within 4 180 days with the EEOC or 300 days with the appropriate state agency. Plaintiff 5 denied filing both in his complaint and the time has run to file because the alleged 6 last violation was in April of 2022. ECF No. 5 at 3. 7 IV. RA 8 Plaintiff argues discrimination under the Rehabilitation Act, 29 U.S.C. §§ 9 701-718B. ECF No. 5 at 3. To determine the statute of limitations under the 10 Rehabilitation Act, the Ninth Circuit uses the analogous forum state law. Sharkey 11 v. O'Neal, 778 F.3d 767, 770 (9th Cir. 2015). Previously, the Ninth Circuit used 12 the statute of limitations of the forum state’s personal injury statute. Daviton v. 13 Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1135 (9th Cir. 2001); Douglas v. 14 California Dep't of Youth Auth., 271 F.3d 812, 823 (9th Cir. 2001). The closest 15 state statute prohibiting employment discrimination are the Washington Laws 16 Against Discrimination (“WLAD”). RCW 49.60.010-60.540. The WLAD does 17 not have its own statute of limitations. Antonius v. King Cnty., 153 Wash. 2d 256, 18 261 (2004). However, WLAD looks to the personal injury statute of limitations, 19 which requires claims to be filed within three years. Antonius, 153 Wash. 2d at 20 261–62; RCW 4.16.080(2). Plaintiff alleges violations most recently on April 11, 1 2022. ECF No. 5 at 3-4. This case was filed April 11, 2025. As a result, the case 2 was filed within the three-year statute of limitations. 3 The Rehabilitation Act provides a plaintiff must show he is considered a 4 “qualified individual” as defined under the statute, that he was “‘either excluded 5 from participation in or denied the benefits of a public entity's services, programs, 6 or activities, or was otherwise discriminated against by the public entity; and (3) 7 such exclusion, denial of benefits, or discrimination was by reason of his 8 disability.’” Payan v. Los Angeles Cmty. Coll. Dist., 11 F.4th 729, 737 (9th Cir. 9 2021) (citation omitted). Additionally, a plaintiff must show the program received 10 federal financial assistance under the Rehabilitation Act. Payan, 11 F.4th at 738. 11 Here, Plaintiff does not state facts supporting the elements required for these 12 claims. In addition to claims of Defendants failure to promote him and 13 compulsory overtime, Plaintiff states that he did not receive English translation 14 support for understanding his benefits. ECF No. 5 at 4. However, these facts do 15 not prove any of the elements under the Rehabilitation Act. Plaintiff does not 16 allege facts that he is a “qualified individual”, was denied or excluded from 17 participation of a public entities’ programs, or that he was denied due to his 18 disability. Furthermore, Plaintiff does not state facts that the program receives 19 federal financial assistance. As a result, Plaintiff fails to state a claim. 20 // 1 OPPORTUNITY TO AMEND 2 A court may not dismiss a pro se complaint before providing the pro se 3 party “with notice of the deficiencies in his complaint in order to ensure that the 4 litigant uses the opportunity to amend effectively” unless amendments to the 5 complaint could not cure the issues. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th 6 Cir. 1992), as amended (May 22, 1992); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 7 Cir. 2012) (citations omitted). 8 Plaintiff cannot cure the time barred issues with leave to amend because 9 filing with any applicable agency would not resolve the time limitations. The 10 remaining claim is a violation of the Rehabilitation Act. The Court grants Plaintiff 11 leave to amend his First Amended Complaint to provide sufficient facts for the 12 elements required under the Rehabilitation Act and to state a claim upon which 13 relief may be granted. 14 Plaintiff’s second amended complaint shall consist of a short and plain 15 statement showing that he is entitled to relief and alleging with specificity: 16 (1) the specific conduct or actions of the Defendants demonstrating how it 17 caused a deprivation of Plaintiff’s rights; and 18 (2) the specific protected rights of which Plaintiff was deprived. 19 Further, Plaintiff shall set forth his factual allegations in separate numbered 20 paragraphs. THIS SECOND AMENDED COMPLAINT WILL OPERATE AS A 1 COMPLETE SUBSTITUTE FOR (RATHER THAN A MERE SUPPLEMENT 2 TO) THE COMPLAINT. The second amended complaint must be legibly rewritten 3 or retyped in its entirety; it should be an original and not a copy; it may not 4 incorporate any part of the complaint by reference; and IT MUST BE CLEARLY 5 LABELED THE “AMENDED COMPLAINT” and case number 2:25- CV-0120- 6 TOR must be written in the caption. PLAINTIFF IS CAUTIONED IF HE FAILS 7 TO FILE WITHIN 30 DAYS AS DIRECTED, THE CASE WILL BE 8 DISMISSED IN ITS ENTIRETY. 9 APPOINTMENT FOR PRO BONO COUNSEL 10 Under “exceptional circumstances”, a district court may designate pro bono 11 counsel for civil claims to indigent litigants. 28 U.S.C. § 1915(e)(1); Palmer v. 12 Valdez, 560 F.3d 965, 970 (9th Cir. 2009). A court considers both “‘the likelihood 13 of success on the merits as well as the ability of the petitioner to articulate his 14 claims pro se in light of the complexity of the legal issues involved.’” Palmer, 560 15 F.3d at 970 (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). 16 Plaintiff moved for Appointment of Pro Bono Counsel. ECF No. 17. Three 17 of Plaintiff’s claims are time barred, and Plaintiff’s Rehabilitation Act claim is not 18 supported with sufficient facts warranting dismissal with leave to amend. 19 Considering the unlikelihood of success on the merits and the ability of Plaintiff to 20 articulate his claims, the Court does not find an exceptional circumstance and denies the motion. 2|| ACCORDINGLY, IT IS HEREBY ORDERED: 3 1. Defendants’ Motion to Dismiss (ECF No. 16) is GRANTED in part. 4 2. The claims asserted in Plaintiff's Amended Complaint (ECF No. 5) are 5 DISMISSED. Plaintiffs Title VI, ADA, and ADEA claims are 6 DISMISSED with prejudice and WITHOUT LEAVE TO AMEND. 7 Plaintiffs RA claim is DISMISSED without prejudice and WITH 8 LEAVE TO AMEND. 9 3. Plaintiff may file a Second Amended Complaint within thirty (30) days 10 of the date of this Order. If Plaintiff fails to file within 30 days as 11 directed, the case will be dismissed and the Clerk will be directed to close 12 the file. 13 4. Plaintiff's Motion to Extend Time to Respond (ECF No. 19) to 14 Defendants’ Motion to Dismiss is DENIED as moot. 15 5. Plaintiff's Motion for Appointment of Pro Bono Counsel (ECF No. 17) is 16 DENIED. 17 The District Court Executive is directed to enter this Order and furnish 18 ||} copies to counsel. DATED September 25, 2025. 9 □ i 5 ZY / □□ Hfnite, Q Kiba 20 Came) 2=—S« THOMASO.RICE Tee United States District Judge --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11144781. Public record. Not legal advice.