Tsosie v. N.T.U.A. Wireless LLC

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2024

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VELENA TSOSIE, No. 23-2822

D.C. No.

Plaintiff - Appellant, 2:23-cv-00105-DGC v.

MEMORANDUM* N.T.U.A. WIRELESS LLC, a Delaware Limited Liability Company; WALTER HAASE, husband; Unknown HAASE, named as Jane Doe Haase, wife,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona David G. Campbell, Senior District Judge, Presiding Argued and Submitted October 23, 2024** Phoenix, Arizona

Before: M. SMITH, BADE, and FORREST, Circuit Judges.

Plaintiff Velena Tsosie appeals the district court’s dismissal of her Title VII claims under Rule 12(b)(6) for failure to exhaust her administrative remedies. We

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. review the district court’s dismissal de novo. Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir. 2021). We accept all factual allegations of the operative complaint as true and construe them in the light most favorable to Tsosie. Id. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

1. Generally, Title VII “claimants may sue only those named in the EEOC charge,” Sosa v. Hiraoka, 920 F.2d 1451, 1458 (9th Cir. 1990), but there are exceptions, id. at 1459 (discussing five exceptions). Tsosie does not dispute that she named “Commnet Wireless, LLC d/b/a Choice NTUA Wireless” in her EEOC charge rather than her actual employer, NTUA Wireless, LLC. But she argues that the district court erred in concluding as a matter of law that she could not satisfy exhaustion by demonstrating at least one exception to the naming requirement.

Tsosie first challenges the district court’s conclusion that her EEOC charge should not be construed liberally because she was represented by counsel when she filed her charge. The district court indicated that the exceptions to the naming requirement apply only when it is appropriate to liberally construe the EEOC charge, as when a plaintiff acts pro se. Sosa, however, does not explicitly limit the applicability of the naming-requirement exceptions to charges filed by unrepresented plaintiffs. See 92 F.2d at 1459 (“Courts are particularly likely to invoke one of these exceptions when the initial EEOC charge was filed without the assistance of counsel . . . .”) (quoting 2 Larson, Employment Discrimination § 49.11(c)(2)(1990)) (emphasis added). As such, regardless of whether she was represented, Tsosie is entitled to satisfy exhaustion by demonstrating an exception to the naming requirement.

2. Tsosie next argues that the district court erroneously concluded that the face of her amended complaint makes clear she cannot satisfy an exception to the naming requirement.1 Failure to exhaust is an affirmative defense as to which the defendant bears the burden of proof. Kraus v. Presidio Tr. Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1046 n.7 (9th Cir. 2009). Thus, Tsosie was not required to affirmatively plead exhaustion, including those facts necessary to establish an exception to the naming requirement. Jones v. Bock, 549 U.S. 199, 216 (2007). Considering Tsosie’s complaint, right-to-sue letter, and EEOC charge as a whole,2 we conclude that there is insufficient information to find as a matter of law that Tsosie cannot satisfy at least one exception that she advances.3 For example, to prove that Tsosie cannot show that the unnamed party had notice of and participated in the EEOC conciliation efforts, NTUA Wireless points only to the incorrect addresses listed on Tsosie’s EEOC charge. This is insufficient to establish as a matter of law that NTUA Wireless did not know about or participate in conciliation efforts given Tsosie’s allegations regarding the relation between the various entities involved, that the subject of Tsosie’s complaint was a member of NTUA Wireless’s Board of Directors, and that Tsosie had reported the alleged sexual harassment to that entity.

Because Tsosie’s complaint does not fall within the “rare” category of cases where failure to exhaust administrative remedies is clear on the face of the complaint, we conclude that the district court prematurely dismissed Tsosie’s complaint on a Rule 12(b)(6) motion. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014).

REVERSED and REMANDED.