United States District Court, W.D. Washington, Seattle
ORDER TO SHOW CAUSE
L. ROBART UNITED STATES DISTRICT JUDGE.
the court are Plaintiff Gregory Gomes's complaint
(see Compl. (Dkt. # 4)) and Magistrate Judge Mary
Alice Theiler's order recommending review pursuant to 28
U.S.C. § 1915(e)(2)(B) (see 6/9/17 Order (Dkt.
# 3) at 1). Mr. Gomes, who is proceeding pro se and
in forma pauperis ("IFP") (id.),
alleges employment discrimination by Defendant The Boeing
Company from March 2011 to March 2012 (Compl. at 2). The
court ORDERS Mr. Gomes to show cause no later than July 11,
2017, why the court should not dismiss his complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii).
28 U.S.C. § 1915(e), district courts must review an IFP
complaint and dismiss it if at any time the court determines
that the complaint fails to state a claim on which relief may
be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); see
also 28 U.S.C. § 1915A(b)(1); Lopez v.
Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (clarifying
that Section 1915(e) applies to all IFP proceedings, not just
those filed by prisoners). The factual allegations of a
complaint must be "enough to raise a right to relief
above the " speculative level." BellAtl Corp.
v. Twombly, 550 U.S. 544, 555 (2007). The court need not
accept as true a legal conclusion presented as a factual
allegation. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Although the pleading standard announced by Federal
Rule of Civil Procedure 8 does not require "detailed
factual allegations, " it demands more than "an
accusation." Id. (citing Twombly, 550
U.S. at 555). A complaint may be dismissed as a matter of law
if it lacks a cognizable legal theory or states insufficient
facts under a cognizable legal theory. Robertson v. Dean
Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.
1984). Although "the allegations of [a pro se plaintiff
s] complaint, 'however inartfully pleaded' are held
'to less stringent standards than normal pleadings
drafted by lawyers, '" Hughes v. Rowe, 449
U.S. 5, 9 (1980) (quoting Haines v. Kerner, 404 U.S.
519, 520 (1972)), this does not preclude dismissal where
"a liberal construction does not remedy the palpable
deficiencies in [the] complaint, " Wallmuller v.
Russell, No. C14-5121RBL-JRC, 2014 WL 2475978, at *2
(W.D. Wash. June 3, 2014).
Mr. Gomes's complaint is somewhat vague, it appears Mr.
Gomes alleges employment discrimination on the basis of an
unnamed disability. (See Compl. at 2 ("The
employer failed to provide or offer any manner of Disability
Accommodation ....").) The Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq., contains an exhaustion
requirement. Timely filing a charge of discrimination with
the Equal Employment Opportunity Commission
("EEOC") or a state equivalent is a prerequisite a
disability-based discrimination claim. See 42 U.S.C.
§ 12117(a) (incorporating the enforcement procedures set
forth at 42 U.S.C. § 2000e-5); 42 U.S.C. " §
2000e-5(e)(1); Leong v. Potter, 347 F.3d 1117, 1122
(9th Or. 2003) (quoting Sommatino v. United States,
255 F.3d 704, 708 (9th Cir. 2001)); Josephs v. Pac.
Bell, 443 F.3d 1050, 1061 (9th Cir. 2006). Although the
statutory deadline varies depending on the specific procedure
in place, it does not exceed 300 days "after the alleged
unlawful employment practice occurred." 42 U.S.C. §
2000e-5(e)(1). However, the filing requirement "is
subject to waiver, estoppel, and equitable tolling."
Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1009
(9th Cir. 2011) (citing Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (1982)); see also Ross v.
U.S. Postal Serv., 696 F.2d 720, 722 (9th Cir. 1983)
(holding that equitable considerations must first be
presented to the administrative agency).
Gomes alleges that the discrimination ended in March 2012,
but he did not file charges with the EEOC until December
2016. (Compl. at 2; see also Right to Sue Letter
(Dkt #4-1).) Even assuming a 300-day deadline applies to his
filing deadline, his window to file an EEOC charge passed in
late 2012 or early 2013. (See Compl. at 2); 42
U.S.C. § 2000e-5(e)(1); (see also Right to Sue
Letter at 1 (rejecting Mr. Gomes's charge as untimely
filed with the EEOC).) Mr. Gomes alleges no facts suggesting
that equitable doctrines such as waiver, estoppel, or tolling
render his EEOC charge timely. (See Compl. at 2);
Johnson, 653 F.3d at 1009; Josephs, 443
F.3d at 1061. Indeed, the court can only infer from Mr.
Gomes's factual allegations that he was aware of the
alleged discrimination and attendant adverse employment
actions during his time at Boeing. (See Compl. at
2.) It therefore appears that Mr. Gomes's EEOC charge was
untimely, which would be fatal to his claim.
the court ORDERS Mr. Gomes to show cause no later than July
11, 2017, why the court should not dismiss this case pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii). To the extent Mr.
Gomes's response adds allegations not contained in the
complaint, Mr. Gomes must amend his complaint to include
those factual allegations. If Mr. Gomes fails to timely respond to
this order or fails to remedy the deficiencies that the court
identifies in this order, the court will dismiss his
 "[T]he general rule is that an
amended complaint super[s]edes the original complaint and
renders it without legal effect." Lacey v. Maricopa
Cty.,693 F.3d 896, 927 (9th ...