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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ANDREA GORDON,

Plaintiffs,

v.

THE BAY AREA AIR QUALITY

MANAGEMENT DISTRICT,

Defendants.

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No. C08-3630 BZ

ORDER DENYING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

ON REMAINING CLAIMS

After reviewing defendant’s second supplemental brief in

support of its motion for summary judgment, IT IS ORDERED that

defendant’s motion for summary judgment as to the remaining

Title VII claims is DENIED. 

Defendant relies exclusively on National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101 (2002) to support its

argument that plaintiff’s February 17, 2007 EEOC charge cannot

as a matter of law encompass acts after its filing date. 

Defendant also argues that although Morgan did not expressly

overrule Sosa v. Hiraoka, 920 F.2d 1451 (9th Cir. 1990),

Sosa’s precedential value is suspect because Sosa is

inconsistent with Morgan.

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1 The Court remains concerned that defendant is not

citing relevant Ninth Circuit authority, which it deems

unfavorable. See e.g. Golden Eagle Distributing Corp. v.

Burroughs Corp., 809 F.2d 584 (9th Cir. 1987) (dissent from

denial of sua sponte request for en banc hearing).

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Morgan held that a “Title VII plaintiff raising claims of

discrete discriminatory or retaliatory acts must file his

charge within the appropriate time period . . . .” 536 U.S.

at 122. Morgan did not address exhaustion of administrative

remedies; it dealt with actions occurring outside of the

applicable 180 or 300 day statute of limitations. In other

words, Morgan focused on actions before filing an EEOC charge,

while Sosa focused on actions post-filing. Defendant did not

explain how or why Morgan’s statute of limitations analysis

should apply to exhaustion.

The Ninth Circuit authority that has interpreted Sosa in

light of Morgan has come to a conclusion contrary to

defendant’s position.1 One court succinctly stated that

“Morgan is inapplicable to the exhaustion issue.” Kitchen v.

WSCO Petroleum Corp., 481 F.Supp.2d 1136, 1142 (D.Or. 2007)

(discussing the post-Morgan applicability of Freeman v.

Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir.2002),

a case interpreting and applying Sosa). Lyons v. England

specifically applied the “like or reasonably related” test for

the exhaustion analysis, and applied Morgan for the statute of

limitations analysis. 307 F.3d 1092, 1104 (9th Cir. 2002). 

Here, the February 17, 2007 EEOC charge for failure to

promote based on race and sex encompasses the subsequent

failures to promote because those hiring decisions are

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2 The last hiring decision that plaintiff challenges in

her complaint was made on May 13, 2008, well before the EEOC

issued the right to sue letter on June 20, 2008. Compl. ¶ 9. 

To the extent defendant sought summary judgment on a hiring

decision made on October 8, 2008, the motion is DENIED since

that decision is not part of the complaint. 

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factually consistent with the allegations in the EEOC charge.2

As was the case with the Abby Young decision, defendant has

failed to carry its burden in the second stage of the

McDonnell Douglas analysis. Doc. No. 55 p. 3-6. Defendant’s

motion for summary judgment on the remaining Title VII claims

is DENIED. 

Dated: January 27, 2010

 Bernard Zimmerman 

 United States Magistrate Judge

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