Jenkins v. ACDA/Easy Park

Final R&R on Motions for Summary Judgment
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
NATHANIEL JENKINS,
Plaintiff,
v.
ACDA/EASY PARK,
Defendant.
Case No. 3:20-cv-00217-SLG-KFR
PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS FOR THE
DISPOSITION OF MOTIONS FOR SUMMARY JUDGMENTS
I. 	MOTIONS PRESENTED AND PROCEDURAL HISTORY
On 	September 	4, 	2020, 	pro 	se 	Plaintiff 	Nathaniel 	Jenkins 	filed 	a
Complaint 	under 	42 	U.S.C. 	§ 	1983 	and 	Alaska 	law 	against 	Defendant
ACDA/Easy 	Park 	alleging 	he 	was 	unlawfully 	discriminated 	against 	and
terminated 	from 	his 	employment 	at 	ACDA/Easy 	Park 	in 	retaliation 	for
engaging in a protected activity, specifically, filing a harassment complaint
against a co-worker.1
Defendant 	answered2 	and 	the 	parties 	engaged 	in 	unsuccessful
settlement 	negotiations 	on 	November 	2, 	2021.3 	Following 	the 	filing 	of
1 Dkt. 1.
2 Dkt. 8.
3 Dkts. 15, 17.
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Defendant’s Motion for Summary Judgment on December 16, 2021, multiple
briefs came in rapid succession: on December 27, 2021, Plaintiff filed a
Motion of Summary Judgment followed one week later by Plaintiff’s Summary
Judgment Response, and his opposition to Defendant’s Motion for Summary
Judgment.4 	In his Summary Judgment Response, Plaintiff inserted a new
claim, 	arguing 	that 	he 	“suffered 	unlawful 	employment 	practices
under…[Title VII,] 42 U.S.C. § 2000e-2.”5
On 	January 	18, 	2022, 	Defendant 	filed 	an 	Opposition 	to 	Plaintiff’s
“Motion of Summary Judgment” and Cross-Motion for Summary Judgment on
Jenkin’s 	Newly-Raised 	Title 	VII 	Claims.6 	This 	cross-motion 	seeks 	both
dismissal of the newly-raised Title VII claims, as well as summary judgment
on those matters.7 On the same day, Defendant also filed a reply to Plaintiff’s
response 	in 	opposition 	to 	Defendant’s 	original 	Motion 	for 	Summary
Judgment.8
4 Dkts. 19, 22, 23.
5 Dkt. 23 at 2.
6 Dkt. 30.
7 Id. Defendant did not object to Plaintiff’s apparent amendment of his original
complaint and addressed substantively all of Plaintiff’s claims. Given Plaintiff’s
pro se status and Defendant’s lack of objection, the Court’s proposed findings and
recommendations similarly address all of Plaintiff’s claims as if they were
properly filed as part of his original complaint.
8 Dkt. 31.
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On May 6, 2022, the Court conducted a hearing to better understand
the status of the case and the parties’ intent as to whether the claims fell
under 42 U.S.C. § 1983 or 42 U.S.C. § 2000e, also known as Title VII. 	At the
conclusion of that hearing, Plaintiff asked to admit into evidence additional
documents in support of his filings. The Court granted Defendant’s objection
to admission of these items.
This 	Court 	considered 	all 	filings 	and, 	for 	the 	following 	reasons,
recommends the District Court GRANT Defendant’s Motion for Summary
Judgment 	at 	Docket 	19 	as 	it 	relates 	to 	Plaintiff’s 	§ 	1983 	claims, 	and
Defendant’s Motion to Dismiss at Docket 30 as it relates to Plaintiff’s Title VII
claims. 	This 	Court 	also 	recommends 	DENYING 	Plaintiff’s 	Motion 	for
Summary Judgment at Docket 22.
II. 	LEGAL STANDARD
a. Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) directs a court to “grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” The
burden of showing the absence of a genuine dispute of material fact lies with
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the moving party.9 If the moving party meets this burden, the non-moving
party must present specific factual evidence demonstrating the existence of
a genuine issue of fact.10 The non-moving party may not rely on mere
allegations or denials.11 Rather, that party must demonstrate that enough
evidence supports the alleged factual dispute to require a finder of fact to
make a determination at trial between the parties’ differing versions of the
truth.12
When considering a motion for summary judgment, a court views the
facts in the light most favorable to the non-moving party and draws “all
justifiable inferences” in the non-moving party’s favor.13 	To reach the level
of a genuine dispute, the evidence must be such “that a reasonable jury could
return a verdict for the non-moving party.”14 If the evidence provided by the
non-moving party is “merely colorable” or “not significantly probative,”
summary judgment is appropriate.15
9 Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986).
11 Id.
12 Id. citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968).
13 Id. at 255 citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970).
14 Anderson, 477 U.S. at 248.
15 Id. at 249.
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b. Motion to Dismiss
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests
the legal sufficiency of the pleadings.16 	Dismissal is appropriate under Rule
12(b)(6) when a plaintiff's allegations fail “to state a claim upon which relief
can be granted.” 	This failure may be based on the absence of a cognizable
legal theory, or on the absence of sufficient facts alleged under a cognizable
legal theory.17 Courts may generally consider only “the complaint, materials
incorporated into the complaint by reference, and matters of which the court
may take judicial notice.”18
To survive a motion to dismiss, a plaintiff must plead “enough facts to
state a claim to relief that is plausible on its face.”19 This “requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”20
Generally, Courts must “accept all material allegations of fact as true,
construe the complaint in a light most favorable to the non-moving party”21
and accept as true all reasonable inferences which can be drawn from the
16 De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978).
17 Johnson v. Riverside Healthcare System, 534 F.3d 1116, 1121 (9th Cir. 2008).
18 Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir.
2008).
19 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
20 Id. at 550.
21 Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007).
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facts alleged.22 	However, courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.”23
Plausibility does not equate to probability, but it requires “more than a
sheer possibility that a defendant has acted unlawfully.”24 	“A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.”25 	Determining whether a complaint states a plausible claim for
relief is a context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.26 Dismissal of claims that fail to
meet this standard should be with leave to amend unless it is clear that
amendment could not cure the complaint's deficiencies.27
III. 	DISCUSSION
a. Civil Rights Act; Title 42, United States Code, Section 1983
Claims
i. 	Failure to Identify Individual
Section 1983 creates a private right of action against individuals who,
acting under color of state law, violate federal constitutional or statutory
22 Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003).
23 Ashcroft v. Iqbal, 556 U.S. 662, (2009) (citation omitted).
24 Iqbal, 129 S. Ct. at 1949.
25 Id.
26 Id. at 1950.
27 Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998).
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rights.28 Section 1983 “is not itself a source of substantive rights, but merely
provides a method for vindicating federal rights elsewhere conferred.”29
“To establish § 1983 liability, a plaintiff must show both (1) deprivation
of a right secured by the Constitution and laws of the United States, and (2)
that the deprivation was committed by a person acting under color of state
law.”30 	To prove discrimination in violation of § 1983, a plaintiff must
demonstrate 	that 	the 	individual 	defendant 	acted 	with 	the 	intent 	to
discriminate,31 and allege facts showing how those defendants caused or
personally participated in causing the harm alleged in the complaint.32
In this case, Plaintiff cannot meet either element of a successful § 1983
claim. 	Plaintiff’s Complaint does not identify any constitutionally protected
right, nor does he allege that any individual violated his civil rights. Instead,
he 	argues 	only 	that 	he 	was 	wrongfully 	terminated 	from 	his 	at-will
employment by Defendant ACDA/Easy Park, a municipal corporation. 	Even
accepting the facts in Plaintiff’s complaint as true, there is no basis for relief
under § 1983.
28 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001).
29 Graham v. Connor, 490 U.S. 386, 393-94 (1989).
30 Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (emphasis
added).
31 Daniels v. Williams, 474 U.S. 327 (1986); Peters v. Lieuallen, 746 F.2d 1390, 1393
(9th Cir. 1984) (emphasis added).
32 Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981).
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ii. 	At-will Employee
“A government employee has a constitutionally protected property
interest in continued employment when the employee has a legitimate claim
of entitlement to the job.”33 	To establish a due process violation, a plaintiff
must show that he has a protected property interest under the Due Process
Clause and that he was deprived of the property without receiving the process
that he was constitutionally due.34 If under state law employment is at-will,
then the claimant has no property interest in the job.35
To create a constitutionally protected property interest in continued
employment, “the law must remove the decision to grant the benefit from
agency discretion.”36 “A state law which limits the grounds upon which an
employee may be discharged, such as conditioning dismissal on a finding of
cause, 	creates 	a 	constitutionally 	protected 	property 	interest.”37 “Where,
however, a state employee serves at will, he or she has no reasonable
expectation of continued employment, and thus no property right.”38
33 Portman v. County of Santa Clara, 995 F.3d 898, 904 (9th Cir. 1993) (citing
Board of Regents v. Roth, 408 U.S. 564, 577, (1972)).
34 Levine v. City of Alameda, 525 F.3d 903, 905 (9th Cir. 2008).
35 Portman, 995 F.2d at 904.
36 Peacock v. Board of Regents of Univ. and State Colleges of Arizona, 510 F.2d 1324,
1327 (9th Cir. 1975).
37 Dyack v. Commonwealth of Northern Mariana Islands, 317 F.3d 1030, 1033 (9th
Cir. 2003).
38 Id. Ortiz v. Lopez, 688 F.Supp.2d 1072, 1082 (E.D. Cal., 2010).
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Alaska has long recognized the doctrine of “at-will” employment, which
is terminable by either party with or without notice for good, bad, or no
reason. As an at-will employee,39 Plaintiff had no property interest in his job
and nothing in the record indicates Defendant ever acted in a way to create
such an expectation. Accordingly, under § 1983 Plaintiff has not been denied
any right to which he is entitled and there is no basis under that statute for
him to challenge his termination.
iii. 	Municipality Exception
In addition, Defendant sues Defendant ACDA/Easy Park. 	This entity is
not an individual, as required in § 1983 actions, but rather, a municipal
corporation. 	Accordingly, Plaintiff has failed to set forth facts against any
individual defendant that personally participated in causing him harm of
constitutional dimension.
Municipalities 	are 	included 	in 	the 	definition 	of 	“persons” 	whose
unconstitutional actions may give rise to section § 1983 liability.40 	A plaintiff
seeking to impose § 1983 liability on a municipality must premise his claim
on one of three distinct theories: “(1) that a [municipal] employee was acting
39 Dkt. 19-2 at 6, 16.
40 Christie v. Iopa, 176 F.3d 1231, 1234 (9th Cir. 1999) citing Monell v. Dept. Of
Social Servs. of N.Y. City, 436 U.S. 658, 694 (2018).
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pursuant to an expressly adopted official policy; (2) that a [municipal]
employee was acting pursuant to a longstanding practice or custom; or (3)
that a [municipal] employee was acting as a ‘final policymaker.’”41
Even 	if 	the 	Court 	were 	to 	apply 	the 	§ 	1983 	rules 	regarding 	a
municipality to a municipal corporation like Defendant,42 Defendant cannot
be held liable under any of the three theories.43 Plaintiff does not allege any
facts 	to 	suggest 	that 	a 	municipal 	employee 	was 	acting 	pursuant 	to 	an
expressly adopted official policy; pursuant to a longstanding practice or
custom; or as a final policymaker. 	Moreover, taking all of the facts alleged
by Plaintiff in the light most favorable to him, none of these conclusions can
be reached.
In summary, Plaintiff’s § 1983 claims fail for multiple reasons. Plaintiff
was an at-will employee who had no Due Process property right to his job.
Moreover, Plaintiff has not identified any individual who violated his rights,
only the municipal corporation for whom he worked. There is no reasonable
dispute regarding the facts that allow the Court to reach these conclusions,
and no basis on these facts that would permit a jury to find in Plaintiff’s favor
41 Eng v. Cnty. of Los Angeles, 737 F.Supp.2d 1078, 1103 (C.D. Cal., 2010).
42 See L.A. Unified Sch. Dist. v. Superior Court, 151 Cal. App. 4th 759 (2007); Cal.
Gov't Code § 6252(c) (defining “[p]erson”).
43 See Board of Cty. Comm'rs. v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 U.S.
at 691; Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014).
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on his § 1983 claim. 	Given these deficiencies, this Court recommends
granting 	Defendant’s 	Motion 	for 	Summary 	Judgment 	and 	dismissing
Plaintiff’s Complaint which alleges violations of his rights under § 1983.
b. Title VII of the Civil Rights Act; Title 42, United States Code,
Section 2000e Claims
Federal law prohibits an employer from discriminating against an
employee or applicant for employment “because of such individual's race,
color, religion, sex, or national origin[.]”44 Title VII requires that before filing
suit in federal court, a plaintiff must first pursue his claims through the Equal
Employment Opportunity Commission (“EEOC”) process.45 	When the EEOC
dismisses a claim, it is required to notify and inform claimant that he has 90
days to bring a civil action.46 	This notification is commonly known as a
“right-to-sue” letter.47 	This timing requirement constitutes a statute of
limitations and if claimant fails to file within the 90-day period, the potential
civil action is time-barred.48
44 Title 42 U.S.C. § 2000e–2(a)(1) (“Title VII”).
45 Ft. Bend County, Texas v. Davis, 139 S. Ct. 1843, 1848-52 (2019).
46 42 U.S.C. § 2000e–5(f)(1) (1988).
47 Id.; 29 C.F.R. § 1601.28.
48 Scholar v. Pac. Bell, 963 F.2d 264, 266-67 (9th Cir. 1992); see also Edwards v.
Occidental Chem. Corp., 892 F.2d 1442, 1445 (9th Cir. 1990).
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Plaintiff submitted in his Complaint a copy of the EEOC right-to-sue
letter he received following his complaint of discrimination. 49 	This letter
states it was mailed on February 6, 2019.50 During the May 6, 2022, Motion
Hearing, Plaintiff argued that this letter was mailed to a prior address and
was not forwarded to him when he left that location. 	He added that he only
received that letter on June 4, 2020, shortly after he followed up with the
EEOC to inquire as to why he had not yet received his right-to-sue letter. This
contention is supported by documentation Plaintiff filed with his Complaint
which shows a postmark of May 29, 2020, on the envelope purporting to have
contained his right-to-sue letter, and a hand-written notation on the letter of
“6,4,2020.”51
The Ninth Circuit presumes receipt of a right-to-sue letter three days
after its mailing.52 	However, the three-day presumption appears to apply
only in cases in which there is no question as to the receipt or attempted
49 Dkt. 1-1 at 1.
50 Id.
51 Id. at 2-3; see also Dkt. 38 at 17-18. At the motion hearing, Plaintiff represented
that he wrote the date on the envelope in order to memorialize the date he
received the letter.
52 See Payan v. Aramark Mgmt. Servs. Ltd. P’Ship, 495 F.3d 1119, 1126 (9th Cir.
2007).
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delivery of the document.53 	Such questions are present in this case as there
is nothing in the record to indicate that delivery at the address reported by
Defendant in his original complaint to EEOC was accomplished or even
attempted 	on 	or 	near 	the 	February 	9, 	2019 	mailing 	date 	or 	any 	time
thereafter.
Nonetheless, Plaintiff was still untimely in his filing. 	Plaintiff admits
receiving his right-to-sue letter on June 4, 	2020, 	and 	his hand-written
notation on the envelope filed with his Complaint supports that statement.
However, 	he 	filed 	his 	Complaint 	on 	September 	4, 	2020, 	92-days 	later.
Plaintiff failed to file his Complaint within the prescribed 90-day statutory
window.
Nothing excuses Plaintiff’s failure to comply with this filing deadline.
Equitable tolling has been applied to Title VII claims to excuse late filings,
however, it is to be used “sparingly,” and “[c]ourts have been generally
unforgiving ... when a late filing is due to claimant's failure ‘to exercise due
diligence in preserving his legal rights[.]’” 	Individuals with matters before
the EEOC have an obligation to be diligent in insuring receipt of their right-
53 Accord Payan, 495 F.3d at 1122-26 (applying three-day rule in case in which the
plaintiff undisputedly received the right-to-sue letter but “the actual date of
receipt is unknown.”)
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to-sue letters.54 	It was Plaintiff’s responsibility to ensure the EEOC had his
correct mailing address and to follow up on his EEOC complaint in a timely
manner to ensure he met the 90-day window for filing of his complaint.55
Plaintiff has failed to exercise the diligence in this matter that the law
requires of him and the doctrine of equitable tolling cannot be applied to his
case.
Plaintiff’s Complaint under Title VII filed on September 4, 2020, is
time-barred. 	This date is outside the 90-day window for filing Title VII civil
actions 	regardless 	of 	whether 	or 	not 	Plaintiff’s 	right-to-sue 	letter 	was
received on or about February 6, 2019, or on June 4, 2020. Accordingly, this
Court recommends Granting Defendant’s motion to dismiss these claims.56
54 Nelmida v. Shelly Eurocars. Inc., 112 F.3d 380, 385 (9th Cir. 1997); see also 29
C.F.R. §1601.7(b)(stating that a person who has filed a Title VII charge “has the
responsibility to provide the Commission with notice of any change in address and
with notice of any prolonged absence from that current address so that he or she
can be located when necessary during the Commission's consideration of the
charge.”)
55 Nelmida, 112 F.3d at 383–84 (holding that the 90-day limit began running on the
date the notice was delivered to the most recent address plaintiff provided the
EEOC because claimant's failure to tell the EEOC that he had moved was not an
event beyond his control); see also Baldwin Cnty. Welcome Center v. Brown, 466
U.S. 147, 151 (1984) (“One who fails to act diligently cannot invoke equitable
principles to excuse that lack of diligence.”)
56 Because the Court recommends dismissal as a result of the fact that Plaintiff’s
Title VII action is time-barred, the Court declines to reach the merits of
Defendant’s Motion for Summary Judgment as they relate to this claim.
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IV. 	CONCLUSION
Defendant’s 	Motion 	for 	Summary 	Judgment 	seeking 	dismissal 	of
Plaintiff’s § 1983 claims alleged as part of Plaintiff’s original Complaint
should be granted. This Court finds that there is no genuine dispute as to any
material 	fact 	relating to these § 1983 claims. 	Plaintiff was an at-will
employee with no Due Process rights to his employment, and Defendant is not
an individual, but rather, a municipal corporation. In light of these facts, no
reasonable 	jury 	could 	return 	a 	verdict 	for 	Plaintiff 	on 	these 	claims.
Therefore, 	this 	Court 	recommends 	GRANTING 	Defendant’s 	Motion 	for
Summary Judgment at Docket 19.
In addition, Plaintiff’s later-filed Title VII Claim is time-barred, which
makes any amendment related to this claim futile. 	This Court therefore
recommends GRANTING Defendant’s Cross-Motion for Summary Judgment
at 	Docket 	30 	and 	DISMISSING 	WITH 	PREJUDICE 	the 	employment
discrimination claims contained in Plaintiff’s Summary Judgment Response
at Docket 22.
//
//
//
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Finally, 	this 	Court 	recommends 	DENYING 	Plaintiff’s 	Motion 	for
Summary Judgment at Docket 22.
DATED this 17th day of June, 2022 at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
NOTICE OF THE RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate
judge 	to 	hear 	and 	determine 	matters 	pending 	before 	the 	Court. 	For
dispositive matters, a magistrate judge reports findings of fact and provides
recommendations to the presiding district court judge.57 	A district court
judge may accept, reject, or modify, in whole or in part, the magistrate judge’s
order.58
A party may file written objections to the magistrate judge’s order
within 14 fourteen days.59 	Objections and responses are limited to five (5)
pages 	in 	length 	and 	should 	not 	merely 	reargue 	positions 	previously
57 28 U.S.C. § 636(b)(1)(B).
58 28 U.S.C. § 636(b)(1)(B).
59 Id.
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presented. 	Rather, objections and responses should specifically identify the
findings or recommendations objected to, the basis of the objection, and any
legal authority in support. Reports and recommendations are not appealable
orders. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be
filed until entry of the district court’s judgment.60
60 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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