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Maybin v. Hilton Grand Vacations Co., LLC

United States District Court, D. Hawaii

June 12, 2018

CARL MAYBIN, Plaintiff,
v.
HILTON GRAND VACATIONS COMPANY, LLC, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS COUNT II

          Derrick K. Watson United States District Judge.

         INTRODUCTION

         Hilton seeks dismissal of Maybin's hostile work environment cause of action for failure to exhaust administrative remedies. Although the hostile work environment claim was not included in Maybin's Charge of Discrimination filed with the Equal Employment Opportunity Commission, he did include facts supporting that claim in the Pre-Complaint Questionnaire submitted to the agency, but which was not provided to Hilton. Because the Charge itself is deficient in recording Maybin's theory of liability, due at least in part to the actions of the agency completing the Charge form, Maybin may present the Questionnaire as evidence that the claim was properly exhausted, pursuant to B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1102 (9th Cir. 2002), as amended (Feb. 20, 2002). Accordingly, the Court finds that Maybin has exhausted his hostile work environment claim and DENIES Hilton's Motion to Dismiss Count II.

         BACKGROUND

         I. Factual Background

         The Court and the parties are familiar with the facts, which were previously set forth in the Court's order denying Hilton's motion for summary judgment on Maybin's Count I ADEA age discrimination claim. See Dkt. No. 36 (3/6/18 Order).[1] The Court briefly recounts matters relevant to Hilton's present exhaustion arguments.

         Maybin was hired by Hilton as a sales agent in September 2015 when he was 55 years old. Compl. ¶ 7. According to Maybin, shortly after he was hired, he witnessed Hilton's Senior Director of Sales, Joshua Kannel, display overt animus towards older sales agents by making negative comments about their abilities at sales meetings. Compl. ¶ 9. On March 1, 2016, Maybin was assigned a new manager, Tony Wilson, who also “treated [Maybin] in a threatening and hostile manner, ” Compl. ¶ 11, singling him out and making improper “remarks to [Maybin] about his age.” Compl. ¶ 13. Maybin asserts that he “made numerous requests to Human Resources and upper management to be changed to a different team, but [Hilton] refused.” Compl. ¶ 14. Maybin contends that he was wrongfully terminated in August 2016 due to age discrimination. Compl. ¶¶ 16-17.

         II. Procedural Background

         Maybin filed his Charge of Discrimination with the EEOC on January 4, 2017 (Decl. of Julia Montenegro Ex. 1, Dkt. No. 32-1), which then issued a Notice of Right to Sue on June 30, 2017. The EEOC Charge indicates that Maybin suffered discrimination due to his age and was terminated in violation of the ADEA. On September 27, 2017, Maybin filed his Complaint alleging three counts under the ADEA: (1) age discrimination; (2) hostile work environment; and (3) retaliation. Compl. ¶¶ 18-28, Dkt. No. 1. On November 21, 2017, the parties stipulated to the dismissal with prejudice of Maybin's Count III retaliation claim. Dkt. No. 17. The Court previously denied Hilton's motion for summary judgment on Maybin's Count I ADEA age discrimination claim. Dkt. No. 36.

         Hilton currently seeks to dismiss Maybin's Count II hostile work environment claim for failure to exhaust. It is undisputed that Maybin's EEOC Charge does not reference or describe a hostile work environment claim. Nonetheless, in opposition, Maybin produced a Pre-Complaint Questionnaire submitted to the Hawaii Civil Rights Commission (“HCRC”), dated August 2, 2016, that he sent to Kris Kaopuiki, the EEOC investigator who Maybin avers “handled [his] Charge of Discrimination.” Decl. of Carl Maybin ¶¶ 1-2, Dkt. No. 38-1. Maybin's Questionnaire, submitted while he was proceeding pro se, explicitly mentions a “hostile environment, ” in which he “personally feared for [his] job, lost 12 pounds, [had] severe heartburn and went to the doctor for neck [and] back aches.” Maybin Decl., Ex. 1 at 4 (Pre-Complaint Questionnaire), Dkt. No. 38-1. He also describes “a new manager who began treating me in a very hostile and toxic manner.” Id. Presented with the Questionnaire for the first time in opposition to its Motion, Hilton contends that Maybin may not avail himself of the exception established by the Ninth Circuit in B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1102 (9th Cir. 2002), allowing a plaintiff to present his or her pre-complaint questionnaire as evidence that a claim for relief was properly exhausted.

         STANDARD OF REVIEW

         In order to establish subject matter jurisdiction over his Title VII claim, Plaintiff was required to exhaust his administrative remedies. B.K.B., 276 F.3d at 1099. A court's subject matter jurisdiction may be challenged under Federal Rule of Civil Procedure 12(b)(1). The parties may also raise the issue of subject matter jurisdiction at any time under Rule 12(h)(3), Augustine v. United States, 704 F.2d 1074, 1075 n.3 (9th Cir. 1983), and a federal court must generally “satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case, ” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998)).

         On a Rule 12(b)(1) motion to dismiss, “the district court is ordinarily free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary.” Augustine, 704 F.2d at 1077 (citing Thornhill Publ'g Co. v. Gen. Tel. Corp., 594 F.2d 730, 733 (9th Cir. 1979)); see also McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). Where the court considers evidence outside the pleadings for this purpose, “[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Augustine, 704 F.2d at 1077 (citing Thornhill, 594 F.2d at 733). Nevertheless, “where the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits, the jurisdictional ...


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