Cheryl Young v. Elaine Chao ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHERYL YOUNG, No. 19-16829
Plaintiff-Appellant, D.C. No. 3:19-cv-01411-EDL
v.
MEMORANDUM*
ELAINE L. CHAO, Secretary of U.S.
Department of Transportation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding**
Submitted August 5, 2020***
Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.
Cheryl Young appeals pro se from the district court’s judgment dismissing
her action relating to the Equal Employment Opportunity Commission’s (“EEOC”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
disposition of her administrative complaint. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a dismissal under Federal Rule of Civil Procedure
12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm in part,
vacate in part, and remand.
The district court properly dismissed Young’s claim to enforce the EEOC’s
final decision because Young failed to allege facts sufficient to show that the
Department of Transportation did not comply with the final decision and that there
was a portion of the final decision that remained unenforced. See Carver v.
Holder, 606 F.3d 690, 697-98 (9th Cir. 2010) (in a suit for enforcement, a
plaintiff’s “suit is limited to the enforcement of the EEOC’s administrative
disposition as a whole” and the plaintiff “must either accept the administrative
disposition in its entirety or bring a de novo action in the district court”; a plaintiff
“cannot bring a suit for enforcement when there is no portion of the EEOC’s final
determination left to enforce”).
The district court concluded that Young could not seek de novo review
because Young failed to file her action within 90 days of receipt of the EEOC’s
original final decision. However, the EEOC’s errata, dated December 14, 2018,
stated that the corrected final decision attached thereto was the EEOC’s final
decision. Because it is not clear when Young received the corrected final decision,
it is not absolutely clear that Young could not amend her complaint to allege that
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her action for de novo review was timely. See 42 U.S.C. § 2000e-16(c) (an
employee may file a civil action “[w]ithin 90 days of receipt of notice of final
action” taken by the EEOC); Cervantes v. Countrywide Home Loans, Inc., 656
F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review of a district
court’s denial of leave to amend the complaint); Weilburg v. Shapiro, 488 F.3d
1202, 1205 (9th Cir. 2007) (“Dismissal of a pro se complaint without leave to
amend is proper only if it is absolutely clear that the deficiencies of the complaint
could not be cured by amendment.” (citation and internal quotation marks
omitted)). We vacate the judgment in part and remand for the district court to
provide Young with an opportunity to amend her complaint to seek de novo
review.
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
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