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Richardson v. Hilton Resorts Corporation

United States District Court, D. Hawaii

March 29, 2019

RUBY RICHARDSON, Plaintiff,
v.
HILTON RESORTS CORPORATION, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS COUNT V (HOSTILE WORK ENVIRONMENT)

          LESLIE E. KOBAYASHI, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Hilton Resort Corporation's (“Defendant” or “Hilton”) Motion to Dismiss Count V (Hostile Work Environment) (“Motion”), filed on December 6, 2018. [Dkt. no. 23.] Plaintiff Ruby Richardson (“Plaintiff”) filed her memorandum in opposition on January 18, 2019, and Defendant filed its reply on January 25, 2019. [Dkt. nos. 28, 29.] This matter came on for hearing on February 8, 2019. Defendant's Motion is hereby granted in part and denied in part in that dismissal of Count V is granted without prejudice and with leave to amend, and denied in all other respects for the reasons set forth below.

         BACKGROUND

         Plaintiff filed this action on September 10, 2018, alleging, inter alia, a hostile work environment claim (“Count V”) pursuant to Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), and the Age Discrimination in Employment Act of 1967 (“ADEA”). [Complaint (dkt. no. 1) at ¶ 40.] The facts relevant to the instant Motion are alleged in the Complaint as follows:

         Plaintiff was employed by Defendant as a Sales Manager starting in 2005. [Id. at ¶ 7.] Between October 2014 and November 2017, Plaintiff's younger, male co-workers verbally and demonstrably harassed her “on a continual basis.” [Id. at ¶ 8.] She describes three incidents in detail: 1) a younger, male co-worker placed a roll of toilet paper with her name written on it on her desk; [id.;] 2) a note was written to her that read “‘do not steal my penis'”; [id.;] and 3) a co-worker, Josh Kannel, stood above her on a staircase, called for her to look up at him, gathered mucous in his mouth, and acted as if he was going to spit on her, [id. at ¶ 11].

         From 2014 to 2017, Plaintiff presented numerous verbal and written complaints to various managers and supervisors at Hilton. She was also forced to take medical leave in April and July of 2017, allegedly due to the stress caused by the harassment. [Id. at ¶¶ 12-13.]

         On November 1, 2017, Plaintiff resigned from Hilton. She was sixty-three years old at the time. [Id. at ¶ 4.] On November 11, 2017, she filed a Charge of Discrimination (“Charge”) with the Equal Employment Opportunity Commission (“EEOC”). The EEOC issued a Dismissal and Notice of Rights on June 15, 2018. [Id. at ¶ 6.]

         The instant Motion seeks dismissal of Count V, with prejudice, pursuant to Fed.R.Civ.P. 12(b)(6). Defendant argues: 1) the conduct alleged in the Complaint does not constitute a hostile work environment under either Title VII or the ADEA; and 2) none of the alleged acts occurred within the statute of limitations.

         DISCUSSION

         I. Consideration of Materials Beyond the Pleadings

         As a preliminary matter, the Court addresses the proper scope of its consideration of the Motion. Plaintiff and Defendant have attached a number of extrinsic documents to their memoranda regarding the instant Motion. As a general rule, this Court's scope of review in considering a Rule 12(b)(6) motion to dismiss is limited to the allegations in the complaint. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018), cert. petition docketed, No. 18-1010 (Feb. 4, 2019). If the district court considers materials beyond the pleadings, “the 12(b)(6) motion converts into a motion for summary judgment under [Fed. R. Civ. P.] 56, ” and “both parties must have the opportunity ‘to present all the material that is pertinent to the motion.'” Id. (quoting Fed.R.Civ.P. 12(d)). However, a district court can consider materials beyond the pleadings without converting the motion to dismiss into a motion for summary judgment if either the incorporation by reference doctrine or Fed.R.Evid. 201 judicial notice applies. Id.

         A. The Charge

         Defendant submitted a copy of the Charge with the Motion, [Motion, Decl. of Andrew L. Pepper, Exh. A, ] and argues this Court can consider the Charge because both the incorporation-by-reference doctrine and judicial notice apply.

[I]ncorporation-by-reference is a judicially created doctrine that treats certain documents as though they are part of the complaint itself. The doctrine prevents plaintiffs from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken - or doom - their claims. Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681-82 (9th Cir. 2006) (observing “the policy concern underlying the rule: Preventing plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based”).
Although the doctrine is straightforward in its purpose, it is not always easy to apply. In Ritchie, we said that a defendant may seek to incorporate a document into the complaint “if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.” [United States v.] Ritchie, 342 F.3d [903, ] 907 [(9th. Cir. 2003)]. . . .

Khoja, 899 F.3d at 1002 (emphasis added). Plaintiff does not appear to dispute Defendant's position - that the Charge is incorporated by reference in the Complaint - having also attached a copy of the Charge to her memorandum in opposition. See Mem. in Opp., Decl. of Ruby Richardson (“Richardson Decl.”), Exh. 8. The Complaint also arises directly out of the same facts and events alleged in the Charge, using substantially similar language and including the same three incidents as the Charge in support of the hostile work environment claim. See, e.g., id. at 1 (“Since October 2014 . . .”); Complaint at ¶ 8. Finally, Plaintiff necessarily relies on the Charge to satisfy the respective statutes of limitations. See Complaint at ΒΆ 6. ...


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