1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KIM E. TOLBERT, Case No. 22-cv-01467-SI

8 Plaintiff,

ORDER GRANTING DEFENDANTS’

9 v. MOTION TO DISMISS WITHOUT

LEAVE TO AMEND

10 CITY AND COUNTY OF SAN FRANCISCO, et al., Re: Dkt. No. 10 11 Defendants. 12 13 On August 12, 2022, the Court held a hearing by zoom on defendants’ motion to dismiss the 14 complaint. After some technical issues, plaintiff Kim Tolbert was able to join the zoom hearing and 15 was able to listen to the proceedings although she did not verbally participate.1 For the reasons set 16 forth below, the Court GRANTS the motion without leave to amend. 17 18 BACKGROUND 19 I. Tolbert v. City and County of San Francisco Dep’t of Public Health, et al., Case No. 16- cv-00810 JD2 20 On February 18, 2016, plaintiff Kim E. Tolbert filed a lawsuit against the City and County 21 of San Francisco, the San Francisco Department of Public Health, and Barbara Garcia. According 22 to the third amended complaint, Tolbert had been employed by San Francisco as a Senior Account 23 Clerk until her termination in August 2017, while Tolbert was out on disability leave. Dkt. No. 79. 24 Tolbert, who is African-American, alleged that during her time as a city employee she had been 25 26 1 After the hearing, Ms. Tolbert called the Court’s Clerk and left several voicemails stating 27 that she was able to hear the proceedings via zoom and that she heard the entire hearing. 1 subjected to discrimination based on her race and sex, as well as harassment and retaliation, and that 2 she was illegally terminated after she complained about misconduct by Garcia. See generally id. 3 Judge Donato presided over the case, and on March 10, 2021, Judge Donato dismissed the 4 complaint without prejudice for failure to prosecute. Dkt. No. 127. On January 5, 2022, Judge 5 Donato denied Tolbert’s motion to set aside the dismissal:

6 Plaintiff Tolbert’s request to set aside the dismissal of this action, Dkt. No. 130, is 7 denied. The Court has detailed in prior orders Tolbert’s long record of failing to appear at hearings and settlement conferences, fulfill her discovery obligations, and 8 meet the Court’s deadlines. See Dkt. Nos. 121, 123, 124. In response to the Court’s multiple warnings about this unacceptable conduct, Tolbert has at various times 9 blamed ill health, the COVID pandemic, and a bad lawyer. In the request to set aside the order dismissing her case for failing to respond to the Court’s most recent order 10 to show cause, see Dkt. Nos. 124 and 128, Tolbert says she did not get a copy of the 11 OSC and that the Clerk’s Office was closed to her due to the pandemic.

12 Neither claim is persuasive. To start, the ECF docket indicates that Tolbert routinely received the Court’s prior orders without a problem. Consequently, the Court 13 declines to credit Tolbert’s assertion that the last OSC did not reach her. With respect to the Clerk’s office, the District made ECF filing available to all pro se litigants in 14 May 2020. Tolbert did not avail herself of that opportunity. In addition, the Clerk’s 15 office continued to process filings received by U.S. mail during the occasional closures of the office to in-person visits. Tolbert was not denied access to the Court 16 in any way. 17 Order Re: Motion to Set Aside (Dkt. No. 133). 18 19 II. The Instant Action 20 Tolbert, acting in pro per, filed this lawsuit on March 7, 2022, against the same three 21 defendants: the City and County of San Francisco, the San Francisco Department of Public Health, 22 and Barbara Garcia. Although the complaint lists thirteen causes of action in the caption page, the 23 body of the complaint asserts five causes of action: (1) “Title VII – Discrimination 42 U.S.C. 24 § 2000e”; (2) “Retaliation California Labor Code § 1102.5”; (3) “Title VII – Retaliation 42 U.S.C. 25 § 2000e & Qui Tam Whistleblower Act”; (4) “42 U.S.C. § 1981”; and (5) “Cal. Gov. Code § 12900 26 et. seq.” Id. 27 The complaint refers to proceedings in Case No. 16-cv-00810 JD as “this case” and “the 1 original case,”3 and, as in the earlier action, alleges that Tolbert was unlawfully terminated from her 2 employment as a Senior Account Clerk for the San Francisco Department of Public Health in August 3 2017. Compl. at p. 3-4 & ¶¶ 13-17. The allegations of the complaint largely mirror those of the 4 earlier complaint; Tolbert alleges that she was subjected to discrimination, harassment and 5 retaliation, and that she was illegally terminated after she complained about misconduct and 6 discrimination by Garcia. Id. The complaint does not allege any illegal acts against her after the 7 August 2017 termination.4 8 Defendants moved to dismiss the complaint as time-barred. Tolbert filed an opposition,5 9 and defendants filed a reply. 10 11 LEGAL STANDARD 12 A complaint must contain “a short and plain statement of the claim showing that the pleader 13 is entitled to relief,” and a complaint that fails to do so is subject to dismissal pursuant to Rule 14 12(b)(6). Fed. R. Civ. P. 8(a)(2). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must 15 allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 16 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts 17 that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. 18 Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened fact pleading of 19 specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the speculative 20 level.” Twombly, 550 U.S. at 555, 570. “A pleading that offers ‘labels and conclusions’ or ‘a 21 formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678 22 (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ 23 devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557). “While legal 24

25 3 Judge Donato determined that the cases were not related. Dkt. No. 8.

26 4 The complaint does reference another lawsuit filed in 2020 by other Black employees of the Department of Public Health. Compl. ¶¶ 38-55. 27 1 conclusions can provide the framework of a complaint, they must be supported by factual 2 allegations.” Id. at 679. 3 In reviewing a Rule 12(b)(6) motion, courts must accept as true all facts alleged in the 4 complaint and draw all reasonable inferences in favor of the non-moving party. See Usher v. Cty of 5 Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, courts are not required to accept as true 6 “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable 7 inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted). 8 The Ninth Circuit has repeatedly held “a district court should grant leave to amend even if no request 9 to amend the pleading was made, unless it determines that the pleading could not possibly be cured 10 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (citations and 11 internal quotation marks omitted). “When a motion to dismiss is based on the running of the statute 12 of limitations, it can be granted only if the assertions of the complaint, read with the required 13 liberality, would not permit the plaintiff to prove that the statute was tolled.” Jablon v. Dean Witter 14 & Co., 614 F.2d 677, 682 (9th Cir. 1980). 15 16 DISCUSSION 17 Defendants contend that all of Tolbert’s causes of action are time-barred. In response, 18 Tolbert argues the merits of her discrimination, retaliation and harassment claims, and she asserts 19 that the Court should toll the statute of limitations due to the hardships imposed by the COVID-19 20 pandemic, thus implicitly acknowledging that her claims are time-barred. 21 The Court concludes that plaintiff fails to state a claim upon which relief can be granted 22 because all of her claims are barred by the statute of limitations. As an initial matter, the Court notes 23 that “[a] statute of limitations is not tolled by the filing of a complaint subsequently dismissed 24 without prejudice,” as “the original complaint is treated as if it never existed.” Cardio-Medical 25 Assocs. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir. 1983). As a result, “[a] plaintiff who 26 re-files a case in order to reinstate his claims may have a problem with the statute of limitations.” 27 Cozzitorto v. W. Pac. Hous., Inc., No. C 04-0097 JL, 2006 WL 8459994, at *2 (N.D. Cal. Aug. 2, 1 355 F.3d 661, 667 (D.C. Cir. 2004)). 2 Here, all of plaintiff’s causes of action are untimely. Title VII generally requires claimants 3 to file a claim within ninety days of receiving a right to sue letter from the Equal Employment 4 Opportunity Commission (“EEOC”). 42 U.S.C. § 2000e-5(f)(1). The complaint does not allege 5 that Tolbert received a right to sue letter within 90 days of filing this action. Instead, the complaint 6 alleges that “Plaintiff filed EEOC Charge 550-2013-00704 . . . .” Compl. ¶ 36. This is the same 7 EEOC charge alleged in the prior complaint. See Compl. ¶ 17 (in attachment) in Case No. 16-00810 8 JD (“Plaintiff filed EEOC Charge 550-2013-00704 after protesting . . .”). The prior complaint also 9 alleged that Tolbert received a right to sue letter from the EEOC on November 19, 2015. Id. ¶ 9. 10 Thus, Tolbert’s first and third causes of action are untimely. 11 Similarly, claims brought under the California Fair Employment and Housing Act (“FEHA”) 12 must be filed within one year of the issuance of a right to sue notice. Cal. Gov’t Code 13 § 12965(c)(1)(C). The complaint alleges that Tolbert was issued a right to sue notice on November 14 17, 2017, Compl. ¶ 110, and this complaint was filed approximately four and a half years later. As 15 such, the fifth cause of action is time-barred. 16 Tolbert’s second cause of action arises under California Labor Code § 1102.5. “[A]ctions 17 commenced under § 1102.5 must be brought within three years” Minor v. Fedex Off. & Print Servs., 18 Inc., 182 F. Supp. 3d 966, 988 (N.D. Cal. 2016). This cause of action is untimely because Tolbert 19 was terminated on August 7, 2017, and this complaint was filed roughly four and a half years later. 20 Similarly, Tolbert’s fourth cause of action under 42 U.S.C. § 1981 is untimely because this lawsuit 21 was filed after the maximum four-year statute of limitations for such claims. See Johnson v. Lucent 22 Techs. Inc., 653 F.3d 1000, 1007 (9th Cir. 2011) (holding four-year statute of limitations applies to 23 retaliation claims under § 1981); Bratton v. Bethlehem Steel Corp., 649 F.2d 658, 664 (9th Cir. 24 1980) (holding three-year statute of limitations applies to discrimination claims under § 1981). 25 The Court also concludes that Tolbert has not demonstrated that the statute of limitations 26 should be equitably tolled due to the COVID-19 pandemic. The Ninth Circuit has instructed that 27 “relief from strict construction of a statute of limitations is readily available in extreme cases” but 1 failure ‘to exercise due diligence in preserving his legal rights.’” Scholar v. Pac. Bell, 963 F.2d 264, 2 || 267-68 (9th Cir. 1992) (affirming denial of equitable tolling in Title VII action) (quoting Jrwin v. 3 Veterans Admin., 498 U.S. 89, 96 (1990)). For the reasons stated by Judge Donato in denying 4 || Tolbert’s motion to set aside the dismissal, Tolbert has not exercised due diligence in preserving her 5 || legal claims. 6 Because it is clear from the complaint and the docket in this case and the prior action that 7 Tolbert’s claims are time-barred, the Court also finds that leave to amend would be futile. See 8 || Jablon, 614 F.2d at 682. 9 10 CONCLUSION 11 For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendant’s 12 || motion to dismiss the complaint without leave to amend.

IT IS SO ORDERED.

Su Site 16 Dated: August 17, 2022

SUSAN ILLSTON

17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28