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Lewis v. Board of Regents of Nevada System of Higher Education

United States District Court, D. Nevada

October 23, 2017

MILTON LEWIS, Plaintiff(s),
v.
BOARD OF REGENTS NEVADA SYSTEM OF HIGHER EDUCATION, Defendant(s).

          ORDER

         Presently 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).[1] 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).

         I. Facts

         Lewis 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).

         In the 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).

         II. Discussion

         A. Subject matter jurisdiction

         i. Timing of Lewis's EEOC charges

         CSN 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. § 2000e-5(e).

         On 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:

         THIS QUESTIONNAIRE IS NOT A CHARGE OF DISCRIMINATION

         (ECF 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 days.

         But 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.[2]

         ii. Citation to the wrong statute as the “federal question” for the purposes of federal-question jurisdiction

         Next, 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).

         Federal 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).

         Although 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).

         Lewis 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 ...


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