United States District Court, D. Nevada
before the court is defendant Board of Regents Nevada System
of Higher Education, d/b/a College of Southern Nevada's
(CSN) motion to dismiss. (ECF No. 6). Plaintiff Milton Lewis
responded. (ECF No. 11). CSN replied. (ECF No. 12). With the
court's leave, CSN supplemented its motion to dismiss
(ECF No. 17), to which Lewis responded (ECF No. 19) and CSN
replied (ECF No. 20).
alleges that his employer racially discriminated and
retaliated against him in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000 et seq.
Lewis is an African American male who has been an employee of
CSN for over eleven years. (ECF No. 1 at 2). He is a
custodial worker. (ECF No. 6 at 2). On January 23, 2017,
Lewis filed a charge of discrimination with the EEOC. (ECF
No. 6 at 2). On January 30, 2017, Lewis received a right to
sue letter. (ECF No. 1 at 4). On April 26, 2017, Lewis filed
the instant complaint against CSN, alleging racial
discrimination and retaliation in violation of Title VII.
(ECF No. 1).
instant motion, CSN moves to dismiss Lewis's complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1), (2),
(3), and (6). (ECF No. 6).
Subject matter jurisdiction
Timing of Lewis's EEOC charges
argues in its supplement to its motion to dismiss that the
court lacks subject matter jurisdiction. It argues that Lewis
did not file his EEOC complaint within 180 days after the
alleged unlawful conduct. (ECF 17 at 3-4). With regard to
Lewis's discrimination claim, the record shows that this
factual allegation may be true; thus, Lewis may not have
fulfilled the statutory requirements necessary to bring his
discrimination claim. See 42 U.S.C. §
plaintiff's EEOC charge, he wrote that the date of the
last act of discrimination was March 15, 2016. (ECF No. 6 at
15). On July 25, 2016, within the 180-day window, Lewis filed
an “EEOC Inquiry Questionnaire” with the EEOC.
(ECF No. 19-1). However, in bold, all-capital letters at the
bottom of every page of that questionnaire is the following:
QUESTIONNAIRE IS NOT A CHARGE OF DISCRIMINATION
No. 19-1). It appears on this record that it was not until
January 23, 2017, that Lewis filed a charge of discrimination
against CSN. (ECF No. 6 at 15). The charge alleged
discrimination based on race and sex. It did not allege
retaliation. (ECF No. 6 at 15). This period-from March 15,
2016, to January 23, 2017-is, of course, greater than 180
this issue has no bearing on the subject matter
jurisdiction-the only argument CSN raises with regard to the
filing deadline. It is well established that “filing a
timely charge of discrimination with the EEOC is not a
jurisdictional prerequisite to suit in federal court, but a
requirement that, like a statute of limitations, is subject
to waiver, estoppel, and equitable tolling.” Zipes
v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982);
see also Valenzuela v. Kraft, Inc., 801 F.2d 1170,
1172 (9th Cir.1986). As this statutory deadline is not a
jurisdictional issue, CSN has therefore failed to raise valid
grounds for dismissal.
Citation to the wrong statute as the “federal
question” for the purposes of federal-question
CSN argues that the court lacks subject matter jurisdiction
because Lewis mistakenly cited to the wrong statute as the
basis for “federal question” jurisdiction here.
(ECF Nos. 6 at 5- 6). Federal courts are courts of limited
jurisdiction. Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978). “A federal court
is presumed to lack jurisdiction in a particular case unless
the contrary affirmatively appears.” Stock West,
Inc. v. Confederated Tribes of the Colville Reservation,
873 F.2d 1221, 1225 (9th Cir. 1989). Federal subject matter
jurisdiction must exist at the time an action is commenced.
Mallard Auto. Grp., Ltd. v. United States, 343
F.Supp.2d 949, 952 (D. Nev. 2004).
Rule of Civil Procedure 12(b)(1) allows defendants to seek
dismissal of a claim or action for a lack of subject matter
jurisdiction. Fed.R.Civ.P. 12(b)(1). Dismissal under Rule
12(b)(1) is appropriate if the complaint, considered in its
entirety, fails to allege facts on its face sufficient to
establish subject matter jurisdiction. In re Dynamic
Random Access Memory (DRAM) Antitrust Litigation, 546
F.3d 981, 984-85 (9th Cir. 2008).
the defendant is the moving party in a Rule 12(b)(1) motion
to dismiss, the plaintiff bears the burden of proving that
the case is properly in federal court. McCauley v. Ford
Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing
McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 189 (1936)). More specifically, the plaintiff's
pleadings must show “the existence of whatever is
essential to federal jurisdiction, and, if [plaintiff] does
not do so, the court, on having the defect called to its
attention or on discovering the same, must dismiss the case,
unless the defect be corrected by amendment.” Smith
v. McCullough, 270 U.S. 456, 459 (1926).
correctly asserts that the court has federal-question
jurisdiction pursuant to 28 U.S.C. § 1331. (ECF No. 1 at
2). Pursuant to 28 U.S.C. § 1331, district courts have
jurisdiction over “all civil actions arising under the
Constitution, laws, or treaties of the United States.”
However, Lewis cites the wrong statute as the basis for
federal question jurisdiction, citing to 42 U.S.C.
§§ 12112 & 12203. Nonetheless, the rest of the
complaint makes clear that the issues in this case arise
under Title VII. See (ECF No. 1 at 1-5). Title VII
states that “[e]ach United States district court . . .
. shall have jurisdiction of actions brought under this