1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 KAREN GASCON, 11 Plaintiff, No. C 19-05412-WHA 12 v. 13 KAISER PERMANENTE, ORDER DISMISSING COMPLAINT 14 Defendant. / 15 16 INTRODUCTION 17 In this action for discrimination and retaliation under Title VII, plaintiff has filed an in 18 forma pauperis application and complaint. A separate order granted plaintiff’s application to 19 proceed in forma pauperis. For the reasons set forth below, this order finds the complaint does 20 not comply with

and is therefore DISMISSED. 21 STATEMENT 22 Kaiser Permanente hired Karen Gascon in or around November 2012. In May 2016, 23 Rebecca Tran, a Kaiser human resources consultant, allegedly asked Gascon to resign or 24 otherwise be terminated. Gascon requested a grievance procedure, but none took place. 25 Thereafter, Tran allegedly entered into a verbal agreement with Gascon in which she agreed 26 that Gascon would have a clean record, could use Kaiser for a referral, and could “come back 27 anytime.” Because of this agreement, Gascon agreed to resign (Dkt. No. 1 at 8–10). 28 1 After resigning, Gascon applied to work at other Kaiser branches. Those branches 2 denied her application, however, and “informed [her] that because [she] was ‘terminated’ by 3 Kaiser San Francisco, [her] records indicate that [she is] not eligible for rehire.” She has also 4 been unable to use Kaiser as a referral. Gascon has attempted to resolve this issue with human 5 resources, but to no avail. In May 2019, she filed charges under Title VII for discrimination 6 and retaliation with the United States Equal Employment Opportunity Commission (EEOC). 7 Gascon alleges Kaiser knew of her health issues, had her “observed”for mental disorders, and 8 ultimately forced her to resign because of her race, her disability, and her questioning of Kaiser 9 procedure (Dkt. No. 1 at 8–10). The EEOC closed the file due to it not being timely brought, 10 but issued her a notice for a private right to sue. Gascon timely filed the instant action, and the 11 undersigned granted her application to proceed in forma pauperis in a separate order (Dkt. Nos. 12 1, 4). 13 ANALYSIS 14 Federal courts are required to dismiss a case filed in forma pauperis if the court 15 determines at any time that the action is frivolous, fails to state a claim, or is directed against a 16 defendant who is immune.

(e)(2). Title VII provides that claimants such as 17 Gascon must file a charge of discrimination or retaliation with the EEOC within 180 days of the 18 alleged discriminatory or retaliatory act. 42 U.S.C. § 2000e-5(e). The 180-day limit serves as 19 a judicial statute of limitations as well, generally barring subsequent suit on incidents occurring 20 prior to the 180-day period. See Zipes v. Trans World Airlines,

(1982). 21 In her complaint, Gascon alleges Kaiser engaged in a discriminatory and retaliatory 22 manner toward her, ultimately forcing her to resign in May 2016. These alleged acts, however, 23 fall far outside the statute of limitations. After her resignation, Gascon had 180 days to file 24 charges with the EEOC. Instead, Gascon filed in May 2019, three years after her resignation 25 and approximately 915 days after she needed to file charges with the EEOC by. Thus, Gascon’s 26 suit will be time-barred unless her complaint alleges the statute of limitations was tolled. For the 27 reasons set forth below, this order holds the complaint alleges neither equitable estoppel nor 28 equitable tolling. 1 1. EQUITABLE ESTOPPEL. 2 Although Gascon’s complaint does not expressly mention “equitable estoppel,” it 3 pleads facts pertaining to the principle and so this order will address it. Equitable estoppel 4 focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit. 5 See Naton v. Bank of California,

(9th Cir. 1981). A finding of equitable 6 estoppel rests on the consideration of a non-exhaustive list of factors, including (1) the plaintiff’s 7 actual and reasonable reliance on the defendant’s conduct or representations, and (2) evidence of 8 improper purpose on the part of the defendant, or of the defendant’s actual or constructive 9 knowledge of the deceptive nature of its conduct.

Our court of appeals has recognized 10 that “equitable estoppel ‘comes into play if the defendant takes active steps to prevent the 11 plaintiff from suing in time, as by promising not to plead the statutes of limitations’” or “when 12 the employer misrepresents or conceals facts necessary to support a discrimination charge.” 13 Santa Maria v. Pacific Bell,

(9th Cir. 2000) (quoting Cada v. Baxter 14 Healthcare Corp.,

, 450–51 (7th Cir. 1990)). 15 In the instant action, Gascon states that she only agreed to resign after Tran, a Kaiser 16 HR consultant, entered into a verbal agreement with Gascon stating she would have a clean, 17 favorable record, she could use Kaiser as a referral, and she could come back anytime. 18 Gascon relied on this agreement and applied to other Kaiser branches, but was thereafter 19 informed that she was ineligible for rehire. She has also been unable to use Kaiser as a referral. 20 The complaint implies Tran’s misrepresentations delayed Gascon from filing a charge with the 21 EEOC. 22 These alleged misrepresentations, however, are not enough. To start, the possibility of 23 being rehired and the ability to use Kaiser as a referral may have operated as incentives not to 24 file charges against Kaiser, but those possibilities did not mask the underlying discrimination 25 claim Gascon now seeks to bring. Moreover, if a misrepresentation is to equitably estop Kaiser 26 from asserting the statute of limitations, Gascon’s reliance on it must have been reasonable. 27 Naton,

. Once Gascon discovered she could not use Kaiser as a referral and 28 would not be rehired by Kaiser, however, any continued reliance on those representations 1 became unreasonable. Gascon does not give an exact date for that discovery, but she discusses 2 at length the number of Kaiser branches and other medical groups she applied to after her 3 resignation, all of whom rejected her based on her ineligibility for rehire or lack of referral. 4 She emphasizes that she called and emailed Tran within the first year to resolve these issues, 5 and further notes that if she had not been deemed ineligible for rehire, she “would have gotten a 6 job easily, as within same month of [her] termination.” Thus, the complaint indicates Gascon 7 discovered the falsehood of these alleged representations within a year of her resignation. 8 Even if the statute of limitations tolled until a year after her resignation, however, Gascon still 9 waited two years to file her charges with the EEOC — approximately 550 days after the deadline 10 to file. It was unreasonable to continue to rely on those representations for those two years, and 11 that unreasonable reliance cannot be said to have equitably estopped the statute of limitations. 12 2. EQUITABLE TOLLING. 13 Equitable tolling may be applied if, despite all due diligence, a plaintiff is unable to 14 obtain vital information bearing on the existence of her claim. See Holmberg v. Armbrecht, 15

(1946). If a reasonable plaintiff would not have known of the existence of 16 a possible claim within the limitations period, then equitable tolling will serve to extend the 17 statute of limitations for filing suit until the plaintiff can gather what information she needs. 18 Santa Maria,

. 19 Gascon believes Kaiser discriminated against her based on her race and disability 20 and retaliated against for engaging in protected activity. Viewing the facts in the light most 21 favorable to Gascon, however, they show that she knew or should have known of the possible 22 existence of these claims as early as the day she was fired. Gascon states in her complaint: 23 “during around the time of termination, the management [knew], that I had health issues . . . I 24 believe that the management retaliated against me because, I started questioning my previous 25 fact finding meetings, asking for a written statement for each fact finding meetings . . .” 26 (emphasis added). She further mentions that at some point Kaiser “placed [her] under 27 ‘observation’ for mental disorders.” Based on Gascon’s own complaint, then, Gascon knew or 28 reasonably should have known of the possible existence of a discrimination or retaliation claim 1 || within the limitations period. She did not need to spend three years confirming Kaiser would 2}| not rehire her before bringing this suit. 3 To summarize, neither equitable estoppel nor equitable tolling saves this complaint 4|| from falling far outside the statute of limitations. Because the complaint fails under 42 U.S.C. § 2000e-5(e), it must be dismissed pursuant to

(e)(2). 6 CONCLUSION 7 Accordingly, plaintiffs complaint is DISMISSED. 8 9 IT IS SO ORDERED. 10 f) A\ 11 || Dated: November 20, 2019. lA WILLIAM ALSUP 12 UNITED STATES DISTRICT JUDGE

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