The amended discrimination lawsuit filed against the Commonwealth Utilities Corp. by its former employee, Carlton Stevens, was dismissed Wednesday but he was given a final chance to amend his complaint a third time.<\/p>\n
U.S. District Court for the NMI Chief Judge Ramona V. Manglona granted CUC\u2019s motion to dismiss Stevens\u2019 second amended complaint for failure to adequately plead compliance with the statutory preconditions to bring a Title VII action (discrimination).<\/p>\n
Stevens was given seven days from the date of the order to file a third amended complaint or the case will be dismissed with prejudice, meaning it can\u2019t be re-opened anymore.<\/p>\n
Manglona said the amendment is limited to alleging facts and attaching documents that are relevant to the determination of whether Title VII\u2019s filing deadlines and other exhaustion requirements have been met.<\/p>\n
Manglona also noted that in the initial complaint and first amended complaint, Stevens sued four individuals in their personal capacity. Manglona said she has already dismissed all claims against those four individuals with prejudice.<\/p>\n
In the second amended complaint, the judge pointed out, Stevens changed the caption to name the four individuals as defendants in their official capacity.<\/p>\n
Manglona said this change was beyond the scope of her Dec. 3, 2014, order that allowed Stevens to amend factual allegations.<\/p>\n
If Stevens wishes to amend the complaint, he must file a motion for leave to amend the pleading and the caption, in accordance with Rule 15 of the Federal Rules of Civil Procedure, and show good cause why leave should be granted, Manglona said.<\/p>\n
In CUC\u2019s motion to dismiss the amended complaint, the utilities agency\u2019s counsel, James Sirok, argued that the lawsuit fails to properly allege subject matter jurisdiction pursuant to Federal Rules of Civil Procedure because jurisdictional requirements have not been satisfied.<\/p>\n
Sirok argued that to bring a Title VII of the Civil Rights Act claim, Stevens is required to exhaust administrative remedies by first filing a claim with the Equal Employment Opportunity Commission.<\/p>\n
In his opposition to the motion to dismiss, Stevens, through counsel Pamela Brown Blackburn, argued that Stevens\u2019 complaint satisfies federal rules of procedure because it identifies claims for which relief can be granted.<\/p>\n
In her order Wednesday dismissing the case, Manglona said the parties agree that Stevens\u2019 second amended complaint does not adequately plead that he filed this action within 90 days of receipt of the EEOC\u2019s right-to-sue notice.<\/p>\n
Manglona said Stevens\u2019 requests that his statement and his counsel\u2019s declaration, submitted with his opposition, be read into the second amended complaint.<\/p>\n
\u201cThe court cannot do that,\u201d Manglona said, citing that deficiencies in the complaint cannot be remedied by attaching new exhibits to an opposition brief.<\/p>\n
Manglona said the 90-day period to file a civil suit commences on \u201cthe date on which a right-to-sue notice letter arrived at the claimant\u2019s address of record.\u201d<\/p>\n
The judge pointed out that Stevens\u2019 second amended complaint and attached documents do not say when he received the EEOC\u2019s notice.<\/p>\n
Manglona said if the receipt date is unknown, courts in the Ninth Circuit apply a rebuttable presumption that the letter was received three days after mailing.<\/p>\n
EEOC mailed the right-to-sue notice in the discrimination claim on March 10, 2014. Under the three-day rule, the 90-day clock started ticking on March 13.<\/p>\n
Manglona said by June 18, the date when Stevens filed this lawsuit, 97 days had passed.<\/p>\n
\u201cWithout an equitable reason why the limitations period should be tolled, this action would be time-barred,\u201d she said.<\/p>\n
Stevens has asked the court to allow him to amend his complaint once again, in order to plead facts establishing the actual date he received the right-to-sue notice.<\/p>\n
Manglona said there is no indication that amendment is sought in bad faith or that it will create undue delay.<\/p>\n
\u201cTherefore, the court will give Stevens one last opportunity to amend his complaint,\u201d the judge added.<\/p>\n
Stevens, an African-American, sued CUC and four of its officials for allegedly not renewing his contract as direct responsible charge operator in CUC\u2019s wastewater division, providing him a used and inoperable computer, and not providing him an office space, among other complaints.<\/p>\n
Stevens is demanding unspecified damages, courts costs, and attorney\u2019s fees.
\nLast December, Manglona dismissed Stevens\u2019 claims against CUC, executive director Alan Fletcher, human resources director Frank Cepeda, wastewater manager Richard Wasser, and water and wastewater manager Paul Raczkowski, for lack of subject matter jurisdiction.<\/p>\n
Manglona dismissed with prejudice all Stevens\u2019 claims against Fletcher, Cepeda, Wasser, and Raczkowski, and dismissed without prejudice his complaint against CUC.<\/p>\n
Dismissed with prejudice means Stevens can\u2019t re-open the claims anymore. Dismissed without prejudice means the plaintiff can re-file the claims in the future.<\/p>\n
Stevens subsequently filed the second amended complaint.<\/p>\n","protected":false},"excerpt":{"rendered":"
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