(PS)Jackson v. Board of Equalization, No. 2:2009cv01387 - Document 38 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Judge Frank C. Damrell, Jr on 8/26/11 RECOMMENDING that: the 33 Amended Motion to Dismiss be denied as to plaintiff's claim that defendant discriminated against her by failing to hire plaintiff for the op en BOE Office Technician positions in July and September 2007; the 33 Amended Motion to Dismiss be denied with respect to plaintiff's claim that defendant retaliated against her; the 33 Amended Motion to Dismiss be granted in all other respe ct; the 33 Motion to strike be denied; and the 33 motion for a more definite statement be denied. Objections due within 14 days after being served with these findings and recommendations. Motion referred to Judge Frank C. Damrell, Jr. (Donati, J)
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(PS)Jackson v. Board of Equalization Doc. 38 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ALICIA B. JACKSON, 11 Plaintiff, 12 13 No. CIV S-09-1387 FCD DAD PS v. BOARD OF EQUALIZATION, 14 FINDINGS AND RECOMMENDATIONS Defendant. 15 / 16 This matter came before the court on December 17, 2010, for hearing of 17 defendant’s amended motion to dismiss, motion to strike, and motion for more definite 18 statement. Attorney Kristin M. Daily appeared for the moving party. Plaintiff, proceeding pro 19 se, appeared on her own behalf. Oral argument was heard, and the motions were taken under 20 submission. 21 For the reasons set forth below, the court will recommend that defendant’s motion 22 to dismiss be granted in part and denied in part, that defendant’s motions to strike and for a more 23 definite statement be denied. 24 25 26 BACKGROUND Plaintiff initiated this action by filing her original complaint on May 19, 2009. On September 8, 2009, defendant moved to dismiss that complaint. Plaintiff did not file written 1 Dockets.Justia.com 1 opposition to that motion but instead, on October 8, 2009, filed a motion seeking leave of court 2 to file an amended complaint. The court granted both defendant’s motion to dismiss and 3 plaintiff’s motion for leave to file an amended complaint. 4 On October 9, 2009, plaintiff filed her amended complaint. On September 20, 5 2010, the court granted defendant’s motion to dismiss the amended complaint but granted 6 plaintiff further leave to amend. 7 On October 26, 2010, plaintiff filed her second amended complaint which is now 8 the operative pleading. On November 19, 2010, defendant filed the amended motion to dismiss 9 now pending before the court. On December 13, 2010, plaintiff filed a late opposition to 10 defendant’s motion to dismiss. In her second amended complaint, plaintiff alleges as follows.1 On or about 11 12 November 22, 2006, defendant California Board of Equalization (“BOE”) asked employees to 13 volunteer to participate in a yearly holiday committee.2 (Sec. Am. Compl. (Doc. No. 28) at 9.)3 14 Plaintiff signed up to be a committee vice chair and was the only African American holiday 15 committee member. (Id. at 9.) In order to raise money for the holiday food drive, plaintiff 16 sought permission to purchase items for a raffle. (Id.) The committee chairperson agreed to 17 reimburse plaintiff and plaintiff then purchased items for the raffle. (Id.) Sometime thereafter 18 plaintiff noticed that dates for the raffle were changed to days when employees were not at work, 19 1 20 21 22 As was the case with her first amended complaint, plaintiff’s second amended complaint is replete with the recounting of trivial and inconsequential disputes and allegations, which plaintiff presumably believes bolsters her claims but only serve to cloud the potentially consequential issues raised by some of plaintiff’s allegations. The court had hoped that plaintiff would heed the direction offered by the court in dismissing plaintiff’s first amended complaint with leave to amend and, in response, submit a more clear and concise second amended complaint. Unfortunately, that is not the case. 23 2 24 For every date identified by plaintiff in her second amended complaint she alleges that the events alleged occurred “on or about” the given date. The court will omit that qualifying phrase from the summary of plaintiff’s factual allegations. 25 3 26 Page number citations such as this one are to the page number reflected on the court’s CM/ECF system and not to page numbers assigned by the parties. 2 1 that incorrect or misleading information was being disseminated about the raffle, and that 2 supplies were not being made readily available. (Id.) On December 6, 2006, plaintiff was 3 informed that she would not be reimbursed for her purchases in connection with the raffle. (Id. at 4 9-10.) 5 On December 8, 2006, plaintiff was approached by “CAC board members/co 6 workers,” Elizabeth Reedman and Judy Weyhe, who demanded to speak with plaintiff 7 immediately.4 (Id. at 10.) Plaintiff was on the phone with a client and requested that the two co- 8 workers leave her work cubicle. (Id.) They did not leave, began yelling at plaintiff, and 9 displayed an “aggressive manner” and “aggressive body language” and informed plaintiff that 10 “using the food drive for the (sic) personal gain is against the law and [that] they will be 11 contacting ISAD (Internal Security and Audit Dept) to prosecute her.” (Id.) The two co-workers 12 also threatened to inform plaintiff’s supervisor about her conduct. (Id.) Plaintiff repeated her 13 request that the two leave her cubicle and the two co-workers finally left when plaintiff stood and 14 repeated her request a third time. (Id. at 10-11.) 15 On December 11, 2006, plaintiff contacted Patrick Finnegun, her union 16 representative, regarding the December 8, 2006 incident with co-workers Reedman and Weyhe. 17 (Id. at 11.) Initially Mr. Finnegun agreed to help plaintiff with this issue but shortly thereafter 18 declined to do so. (Id.) 19 On December 12, 2006, plaintiff completed a BOE absence request form so that 20 she could leave work early to meet with an attorney regarding her discrimination complaint. (Id. 21 at 12.) Plaintiff met with Hiring Supervisor Susan Sineto to obtain approval for her absence 22 from work. (Id.) Sineto had been a BOE employee for more than 10 years, was responsible for 23 hiring plaintiff and, according to plaintiff, had “great ties and influence at BOE.” (Id.) Upon 24 learning about plaintiff’s pending discrimination complaint, Sineto told plaintiff: 25 4 26 According to plaintiff, “CAC is a group of BOE employees who BOE appoints to regulate fund raising projects.” (Sec. Am. Compl. (Doc. No. 28) at 6.) 3 1 You do want to move up the career ladder here, right? I know you have been talking about what classes you need to take to become a Business Tax Representative, well I would not go through with this discrimination complaint because if you do no one will hire you, you will be labeled a troublemaker. You know how people talk here; you do want to move up don’t you. 2 3 4 5 (Id.) 6 On January 2, 2007, plaintiff sent an e-mail inquiring about the status of her 7 discrimination complaint to Dan Tokutomi, Richard Parrot, and Kenneth Lawson.5 (Id. at 13.) 8 On January 3, 2007, plaintiff received an e-mail response from Parrot, stating that Tokutomi 9 would answer her inquiry. (Id.) On January 11, 2007, plaintiff’s wages were garnished “because 10 BOE was sending the money that was coming out of her paycheck and sending it to pay another 11 employees (sic) date (sic) with the Franchise Tax Board.” (Id.) Plaintiff did have a tax bill, but 12 plaintiff’s bill was current and plaintiff had arranged a payment plan. (Id. at 13.) The person “in 13 control” of this “misreporting” was Erika Fischer, a friend of Susan Sineto. (Id. at 12-13.) 14 On January 17, 2007, plaintiff again e-mailed Parrot, Tokutomi and Lawson 15 inquiring about the status of her discrimination complaint but received no response. (Id. at 13.) 16 On January 22, 2007, plaintiff was informed that Lynn Bartolo, the Division Chief, would 17 eventually answer her complaint. (Id. at 14.) On March 12, 2007, plaintiff still had not received 18 an answer to her complaint. (Id.) Plaintiff e-mailed Bartolo about the status of her 19 discrimination complaint and was informed by Bartolo that “labor relations had closed their file 20 and nothing would be done.” (Id.) Bartolo told plaintiff that she would have to fill out another 21 discrimination complaint. (Id.) Believing she was getting the “run around,” plaintiff contacted 22 the Equal Employment Opportunity Commission (“EEOC”).6 (Id.) On May 5, 2007, plaintiff 23 ///// 24 25 5 Plaintiff does not allege when she filed her discrimination complaint with the BOE. 26 6 Plaintiff does not allege the date upon which she contacted the EEOC. 4 1 received a corrected W-2 form produced by Erika Fischer.7 (Id.) 2 Sometime thereafter, plaintiff complained to her supervisor, Ken Lawson, that she 3 had been receiving “differential treatment” from co-workers and supervisors. (Id. at 15.) 4 Specifically, plaintiff’s co-workers would call her names, slam cabinet doors when she was 5 around and run into her while walking in the hallway. (Id.) Plaintiff also “had to endure 6 lesbian[] co-workers making comments about her breast and shape, she had to witness some of 7 her team members who were women getting massages from each other.” (Id.) Lawson advised 8 plaintiff that “it’s probably all in your head.” (Id.) 9 In April of 2007 plaintiff’s doctor took her off work due to stress. (Id. at 16.) The 10 BOE normally announces when an employee takes a leave of absence so that other employees 11 can donate their accrued time-off to the employee on leave. (Id.) Plaintiff asked Fischer not to 12 announce that she was taking a leave of absence. (Id.) However, Fischer nonetheless announced 13 that plaintiff was taking a leave of absence due to work related stress. (Id.) 14 In July of 2007 plaintiff was interviewed for a position as an Office Technician 15 with the BOE but was not hired. (Id. at 20.) The person hired for the position was Asian, was 16 the sister of another employee who had worked for Parrot, had previously worked in a bar and 17 had no experience working in the Excise Tax Division. (Id.) 18 In August of 2007 plaintiff was informed that she could not reschedule a test for a 19 Tax Technician II position, even though her request was based upon the fact that she was 20 returning from a funeral in Texas. (Id. at 17.) However, a Caucasian co-worker who worked “on 21 the same team” as plaintiff was allowed to reschedule her Tax Technician II test. (Id.) 22 23 In September of 2007 plaintiff was notified by the Franchise Tax Board that “they were going to reissue the garnishment order because BOE still had failed to provide them with 24 25 26 7 Plaintiff does not explain in her second amended complaint the genesis of this “corrected W-2” or its significance to her other allegations. In any event, plaintiff alleges that she received a second “corrected W-2” on June 6, 2007. (Sec. Am. Compl. (Doc. No. 28) at 17.) 5 1 evidence to show” that plaintiff had been making the required monthly payments to the Franchise 2 Tax Board. (Id. at 18.) Plaintiff had “to call several times and leave several message[s] before 3 the problem was fixed.” (Id.) 4 That same month plaintiff spoke to Richard Parrot about another open position as 5 a BOE Office Technician and he told plaintiff that she would be interviewed for the position. 6 (Id. at 19.) However, plaintiff was not interviewed and the opening was filled by a Caucasian 7 woman with no previous work experience in the Excise Tax Division. (Id.) In this regard, 8 plaintiff alleges that she was “qualified for the Office Technician [position]; she had the 9 knowledge of the Excise Tax Division.” (Id. at 21.) Moreover, plaintiff “was interviewed and 10 tentatively hired for an Office Technician position with the Dept of Health and [the] Dept of 11 Education.” (Id.) 12 In October of 2007 plaintiff was not paid on schedule and was told that “she had 13 an outstanding balance owed to BOE.” (Id. at 22.) It is Erika Fischer’s responsibility to report to 14 the State Controller those individuals with outstanding balances owed to the BOE. (Id. at 23.) 15 In November of 2007 plaintiff left the BOE for a position with the California 16 Department of Corrections. (Id.) In July of 2008, plaintiff received a check from the BOE for 17 her wrongfully withheld wages in the amount of $644. (Id.) 18 DEFENDANT’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) 19 Defendant seeks dismissal of plaintiff’s second amended complaint with 20 prejudice. In moving to dismiss defendant argues that: 1) plaintiff has failed to state a cause of 21 action for discrimination under Title VII; 2) plaintiff has failed to state a cause of action for 22 hostile work environment; 3) plaintiff has failed to allege that she suffered an adverse 23 employment action; 4) plaintiff has failed to allege discriminatory intent; 5) plaintiff has failed to 24 state a cognizable cause of action for retaliation under Title VII; and 6) this court lacks 25 jurisdiction to adjudicate plaintiff’s state law claims. 26 ///// 6 1 LEGAL STANDARDS APPLICABLE TO DEFENDANT’S MOTION 2 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 3 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 4 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 5 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 6 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to 7 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, 8 a defendant’s Rule 12(b)(6) motion challenges the court’s ability to grant any relief on the 9 plaintiff’s claims, even if the plaintiff’s allegations are true. 10 In determining whether a complaint states a claim on which relief may be granted, 11 the court accepts as true the allegations in the complaint and construes the allegations in the light 12 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 13 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less 14 stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 15 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the 16 form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The 17 court is permitted to consider material which is properly submitted as part of the complaint, 18 documents not physically attached to the complaint if their authenticity is not contested and the 19 plaintiff’s complaint necessarily relies on them, and matters of public record. Lee v. City of Los 20 Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). 21 Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a 22 complaint must give the defendant fair notice of the plaintiff’s claims and must allege facts that 23 state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. 24 Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). The plaintiff must allege with at 25 least some degree of particularity overt acts which the defendants engaged in that support the 26 plaintiff’s claims. Jones, 733 F.2d at 649. A complaint must also contain “a short and plain 7 1 statement of the grounds for the court’s jurisdiction” and “a demand for the relief sought.” Fed. 2 R. Civ. P. 8(a)(1) & 8(a)(3). 3 4 5 ANALYSIS I. Title VII Title VII makes it unlawful for an employer to “discriminate against any 6 individual with respect to [her] compensation, term, conditions, or privileges of employment, 7 because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). 8 1) Discrimination 9 It is well-settled that Title VII is concerned not only with intentional 10 discrimination, but also with employment practices and policies that lead to disparities in the 11 treatment of classes of workers. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 430-31 12 (1971); Connecticut v. Teal, 457 U.S. 440, 446 (1982) Thus, a plaintiff alleging discrimination 13 under Title VII may proceed under two theories: disparate treatment or disparate impact. Ricci v. 14 DeStefano,___U.S.___, ___. 129 S. Ct. 2658, 2672 (2009); Watson v. Fort Worth Bank & Trust, 15 487 U.S. 977, 986-87 (1988); The Committee Concerning Community Improvement v. City of 16 Modesto, 583 F.3d 690, 711 (9th Cir. 2009). A person is discriminated against through disparate 17 treatment “when he or she is singled out and treated less favorably than others similarly situated 18 on account of race.” McGinest v. GTE Service Corp., 360 F.3d 1103, 1121 (9th Cir. 2004) 19 (quoting Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988)). See also Cornell v. 20 Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). While the disparate treatment 21 theory requires proof of discriminatory intent, intent is irrelevant to a disparate impact claim. 22 Watson, 487 U.S. at 988; Garcia v. Spun Steak Co., 998 F.2d 1480, 1484 (9th Cir. 1993). 23 “[I]mpact analysis is designed to implement Congressional concern with ‘the consequences of 24 employment practices, not simply the motivation.’” Garcia, 998 F.2d at 1484 (quoting Rose v. 25 Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990) (citations omitted)). A prima facie case 26 of disparate impact is typically achieved by statistical evidence demonstrating the selection bias 8 1 of an employment practice. Lawrence v. Dept. of Interior, 525 F.3d 916, 921 (9th Cir. 2008); 2 Stout v. Potter, 276 F.3d 1118, 1122 (9th Cir. 2002). Here, plaintiff has failed to allege any facts 3 that would suggest a disparate impact claim. Accordingly, the court will assess whether 4 plaintiff’s second amended complaint alleges a cognizable discrimination claim based on 5 disparate treatment. 6 A plaintiff in a disparate treatment case bears the burden of alleging and proving 7 that the defendant employer intentionally discriminated against her. Texas Dep’t of Community 8 Affairs v. Burdine, 450 U.S. 248, 253 (1981); McGinest, 360 F.3d at 1122. A plaintiff must, 9 therefore, allege and prove discriminatory motive on the part of the defendant. International 10 Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977); Pejic v. Hughes 11 Helicopter, Inc., 840 F.2d 667, 672 (9th Cir. 1988). A plaintiff may prove intent through either 12 “direct or circumstantial evidence demonstrating that a discriminatory reason more likely than 13 not motivated the employer.” Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007); Pejic, 14 840 F.2d at 672. An example of direct evidence of such intent is an employer’s use of a racial 15 slur or epithet. Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1141 (9th Cir. 2006); 16 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1029 n.7 (9th Cir. 2006). Here, plaintiff 17 has failed to allege any facts that would suggest the existence of direct evidence of discriminatory 18 intent on the part of defendant. 19 Alternatively, a plaintiff may rely on the familiar McDonnell Douglas burden 20 shifting framework to prove discriminatory intent. McDonnell Douglas Corp. v. Green, 411 U.S. 21 792, 802 (1973); Surrell v. California Water Service Co., 518 F.3d 1097, 1105 (9th Cir. 2008). 22 Under the McDonnell-Douglas test for assessing Title VII discrimination claims, the plaintiff can 23 establish a prima facie case by showing: 24 (i) that [s]he belongs to a racial minority; (ii) that [s]he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite [her] qualifications, [s]he was rejected; and (iv) that, after [her] rejection, the position remained 25 26 ///// 9 1 open and the employer continued to seek applicants from persons of complainant’s qualifications. 2 3 McDonnell Douglas Corp., 411 U.S. at 802. See also Noyes v. Kelly Services, 488 F.3d 1163, 4 1168 (9th Cir. 2007). 5 Once plaintiff establishes a prima facie case of discrimination, the burden shifts to 6 the defendant to articulate a legitimate nondiscriminatory reason for the adverse employment 7 action. McDonnell Douglas, 411 U.S. at 802-803; Diaz v. Eagle Produce Ltd. Partnership, 521 8 F.3d 1201, 1207 (9th Cir. 2008). If defendant meets its burden in that regard, the burden shifts 9 back to plaintiff to establish that defendant’s proffered reason was a pretext for discrimination. 10 St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Diaz, 521 F.3d at 1207. “The ultimate 11 burden of persuading the trier of fact that the defendant intentionally discriminated against the 12 plaintiff remains at all times with the plaintiff.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 507 13 (quoting Burdine, 450 U.S. at 253). 14 Here, plaintiff alleges in her second amended complaint in relevant part, as 15 follows. That she is African-American. (Sec. Am. Compl. (Doc. No. 28) at 2.) That in July 16 2007 she interviewed for an open position as a BOE Office Technician. (Id. at 20.) That she is 17 well qualified for the position of BOE Office Technician based on her experience within the 18 Excise Tax Division and that she “was in the top three ranking” of applicants on the list the 19 “BOE was using[.]” (Id. at 21-22.) That despite her qualifications, she was rejected for the open 20 position and that defendant eventually hired a less experienced person. (Id. at 20.) Plaintiff also 21 alleges that in September of 2007, she again inquired about an open position as a BOE Office 22 Technician. (Id. at 19.) Plaintiff was told she would be interviewed for that position but never 23 was. (Id.) Ultimately, defendant again hired a person lacking relevant prior experience. (Id.) 24 Defendant does not dispute plaintiff’s allegations that she belongs to a racial 25 minority and expressed her interest in the open BOE Office Technician positions that others were 26 selected to fill, nor could they dispute such allegations by way of their motion to dismiss. 10 1 Defendant does, however, argue that plaintiff has failed to allege that she was qualified for the 2 Office Technician position. (Am. MTD (Doc. No. 33-1) at 7.) 3 With respect to her qualifications, plaintiff alleges that: 4 7 Alicia [referring to plaintiff herself in the third person] was/is qualified for the Office Technician; she had the knowledge of the Excise Tax Division. Ms. Jackson was interviewed and tentatively hired for an Office Technician position with the Dept of Health and Dept of Education. Ken Lawson, Alicia (sic) supervisor can attest to how many phone calls he received from other departments who wanted to hire Alicia. 8 *** 9 Unfortunately, Alicia was not []reachable on the permanent full time hiring list, she was ranked four. To get picked up by a state agency you have to be in the top three testing ranks on the hiring list. Ms. Jackson was reachable on [the] BOE Office Technician list, because it was a permanent limited term list. On the limited term list, which BOE was using Alicia was in the top three ranking. 5 6 10 11 12 13 14 (Sec. Am. Compl. (Doc. No. 28) at 21-22.) Defendant argues that plaintiff’s allegation that “[u]nfortunately, Alicia was not 15 []reachable on the permanent full time hiring list, she was ranked four,” establishes that plaintiff 16 “was not qualified for the position.” (Am. MTD (Doc. No. 33-1) at 7.) The court concludes that, 17 understandably perhaps, defendant’s argument in this regard misconstrues plaintiff’s allegation. 18 In her second amended complaint, plaintiff also alleges that she “spoke to Richard 19 Parrot . . . regarding an Office Technician position.” (Sec. Am. Compl. (Doc. No. 28) at 19.) 20 Plaintiff alleges that she “did interview for a similar position in July 2007” to fill a vacancy 21 created after another employee “who had worked as Richard Parrot’s Office Technician” 22 received a promotion. (Id. at 20.) According to plaintiff, Richard Parrot is an employee of the 23 BOE. (Id. at 6.) With respect to employment within the BOE plaintiff claims that she “was 24 reachable on [the] BOE Office Technician list, because . . . . On the limited term list, which [the] 25 BOE was using [she] was in the top three ranking.” (Id. at 22.) In this regard, plaintiff’s 26 allegation that she “was not reachable on the permanent full time hiring list [because] she was 11 1 ranked four” is in reference to plaintiff’s unrelated allegation that she “was interviewed and 2 tentatively hired for an Office Technician position with the Dept of Health and Dept of 3 Education.” (Id. at 21.) Simply put, in her second amended complaint the court is satisfied that 4 plaintiff has alleged that she was not ranked high enough to be hired as an Office Technician by 5 an agency outside of the BOE, but that she was ranked high enough to be hired as an Office 6 Technician by the BOE. 7 As noted above, for purposes of this motion to dismiss, the court must accept as 8 true the allegations of plaintiff’s second amended complaint and construes those allegations in 9 the light most favorable to the plaintiff. Accepting the above allegations as true, plaintiff’s 10 second amended complaint states a cognizable claim for relief based on defendant’s alleged 11 discriminatory treatment in failing to hire plaintiff for the open BOE Office Technician positions 12 in July of 2007 and September of 2007 and instead filling those positions with less qualified 13 applicants. See Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1037 (9th Cir. 2005) 14 (“To make out a prima facie case under McDonnell Douglas, a plaintiff must show that (1) she 15 belongs to a protected class; (2) she applied for and was qualified for the position she was 16 denied; (3) she was rejected despite her qualifications; and (4) the employer filled the position 17 with an employee not of plaintiff’s class, or continued to consider other applicants whose 18 qualifications were comparable to plaintiff’s after rejecting plaintiff.”). Accordingly, defendant’s 19 motion to dismiss plaintiff’s claim that defendant discriminated against plaintiff by failing to hire 20 plaintiff for the open BOE Office Technician positions in July of 2007 and September of 2007, 21 should be denied. 22 With respect to plaintiff’s allegations that the BOE interfered with he union 23 representation in connection with her involvement in the holiday committee, the corrected W-2 24 forms, the BOE’s refusal to reschedule plaintiff’s test for a Tax Technician II position, the public 25 announcement of plaintiff’s leave of absence, the September 2007 garnishment order and 26 plaintiff’s untimely paycheck in October of 2007, the court has reviewed those allegations and 12 1 finds them insufficient to state a cognizable claim that plaintiff suffered any adverse employment 2 action or that individuals outside her protected class were treated more favorably than she. 3 Plaintiff’s allegations regarding these matters, at worst, reflect that the BOE was an imperfect, 4 inflexible employer that inconvenienced plaintiff through multiple clerical mistakes. While 5 perhaps irritating, even if true, plaintiff’s allegations do not suggest any adverse employment 6 action that materially affected the terms and conditions of her employment.8 See Chuang v. 7 University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1126 (9th Cir. 2000) (For a Title 8 VII discrimination claim, an adverse action is one that “materially affect[s] the compensation, 9 terms, conditions, or privileges of the [plaintiff’s] employment.”). Plaintiff’s allegations with 10 respect to the matters noted above do not suggest any serious job actions, such as the initiating of 11 an investigation against an employee or the transfer of job duties such as those that have been 12 found to constitute adverse employment actions. See Poland, 494 F.3d at 1180 (citing Ulrich v. 13 City and County of San Francisco, 308 F.3d 968, 977 (9th Cir. 2002) and Yartzoff v. Thomas, 14 809 F.2d 1371, 1376 (9th Cir. 1987)). These allegations, even if true, would fail to establish a 15 discriminatory intent on the part of the BOE.9 16 Accordingly, defendant’s motion to dismiss for failure to state a cognizable claim 17 of relief based on these allegations of discrimination under Title VII should be granted. 18 ///// 19 ///// 20 21 22 23 24 25 26 8 The same McDonnell Douglas elements apply to allegations such as these. Thus, plaintiff must allege facts showing that (1) she belongs to a protected class; (2) she was qualified for her position; (3) she was subject to an adverse employment action; and (4) similarly situated individuals outside her protected class were treated more favorably. Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000). 9 The court previously dismissed most of these allegations in its September 20, 2010 order dismissing plaintiff’s first amended complaint with leave to amend. (Order-September 20, 2010 (Doc. No. 27.)) In that order, plaintiff was advised not to attempt to re-allege these claims but to instead focus on those claims the court found potentially cognizable. Plaintiff, however, did not heed the court’s direction. 13 1 2) Hostile Work Environment 2 Title VII also prohibits an employer from “requiring people to work in a 3 discriminatorily hostile or abusive environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 4 (1993). To state a viable hostile work environment claim under Title VII, the plaintiff must 5 allege facts showing that her work environment was “permeated with ‘discriminatory 6 intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of 7 the victim’s employment and create an abusive working environment.’” Harris, 510 U.S. at 21 8 (citation omitted). See also Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) (“For 9 sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the 10 conditions of [the victim’s] employment and create an abusive working environment.”) (internal 11 quotation and citation omitted). 12 Plaintiff has alleged in her second amended complaint that on December 8, 2006, 13 plaintiff was confronted by two co-workers, Reedman and Weyhe, who demanded to speak to her 14 immediately. (Sec. Am. Compl. (Doc. No. 28) at 10.) Plaintiff claims the two co-workers yelled 15 at her, knocked over the wall of her cubicle, pointed their fingers at her while accusing her of 16 using the holiday food drive for her own personal profit. (Id.) The two co-workers also allegedly 17 threatened to report the matter to the Internal Security Audit and to plaintiff’s supervisor. (Id.) 18 Even assuming arguendo that this incident occurred as alleged by plaintiff in her 19 second amended complaint, these allegations would not suffice to state a cognizable hostile work 20 environment claim.10 This is because occasional or isolated incidents, unless especially severe, 21 are insufficient to support such a claim. Rather, a plaintiff must allege facts showing a concerted 22 and continuous pattern of harassment. Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1 23 24 25 26 10 Again, plaintiff made these same allegations in her first amended complaint. On September 20, 2010, the court found that the allegations failed to state a cognizable hostile work environment claim and denied plaintiff leave to amend with respect to this claim. (See Order Sept. 20, 2010 (Doc. No. 27) at 16, 21.) Unfortunately, plaintiff ignored the court’s order and realleged the same claim that was previously dismissed without leave to amend. 14 1 (1998); Harris, 510 U.S. at 23. The alleged argument between co-workers was merely a single 2 isolated incident that cannot be characterized as particularly severe nor as a concerted or 3 continuos pattern of harassment. See Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 4 2000) (rejecting a hostile work environment claim where plaintiff alleged that she was harassed 5 on a single occasion for a matter of minutes in a way that did not impair her ability to perform 6 her job in the long-term); Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 7 1992) (“[I]solated incidents of sexual horseplay alleged by Candelore took place over a period of 8 years and were not so egregious as to render Candelore’s work environment ‘hostile.’”) This is 9 the only incident of harassment alleged by plaintiff involving the identified co-workers. 10 Moreover, plaintiff has not alleged any facts suggesting that the incident was motivated by her 11 race. Instead, it appears from her allegations that the argument was simply a heated dispute 12 between co-workers regarding their actions in connection with a volunteer holiday committee. 13 Finally, plaintiff has not alleged that defendant BOE played any role in the dispute. 14 Plaintiff has also alleged in her second amended complaint that her fellow co- 15 workers and supervisors were “name calling,” “slamming cabinets,” “physically running into 16 her,” “making comments about her breast (sic) and shape,” and that plaintiff had to “witness 17 some of her team members who were women getting massages from each other who were” 18 lesbians. (Sec. Am. Compl. (Doc. No. 28) at 15.) 19 The court finds these allegations to be too vague and conclusory to state a claim 20 upon which relief can be granted. Specially, plaintiff has not identified a single co-worker or 21 supervisor allegedly involved in these alleged actions nor provided a date on which any of these 22 incidents allegedly occurred. Moreover, plaintiff has made only bare assertions, devoid of any 23 factual details, concerning the conduct at issue. To state a claim on which relief may be granted, 24 the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” 25 Twombly, 550 U.S. at 570. Although the Federal Rules of Civil Procedure adopt a flexible 26 pleading policy, a complaint must give the defendant fair notice of the plaintiff’s claims and must 15 1 allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); 2 Jones, 733 F.2d at 649. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic 3 recitation of the elements of cause of action will not do.’ Nor does a complaint suffice if it 4 tenders ‘naked assertions’ devoid of ‘further factual enhancements.’” Ashcroft v. Iqbal, 5 ___U.S.___,___, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555, 557). A 6 plaintiff must allege with at least some degree of particularity overt acts which the defendants 7 engaged in that support the plaintiff’s claims.11 Jones, 733 F.2d at 649. 8 As to the remaining factual allegations of plaintiff’s second amended complaint, 9 even if all are taken to be true, a cognizable hostile work environment claim would still not be 10 presented because the conduct alleged is simply not sufficiently severe to create an objectively 11 hostile or abusive work environment. “Conduct that is not severe or pervasive enough to create 12 an objectively hostile or abusive work environment – an environment that a reasonable person 13 would find hostile or abusive – is beyond Title VII’s purview.” Oncale v. Sundowner Offshore 14 Services, Inc., 523 U.S. 75, 81 (1998) (quoting Harris, 510 U.S. at 21). “[C]onduct must be 15 extreme to amount to a change in the terms and conditions of employment,” lest Title VII 16 become nothing more than “a ‘general civility code.’” Faragher, 524 U.S. at 788 (quoting 17 Oncale, 523 U.S. at 80.) See also Porter v. California Dept. of Corrections, 419 F.3d 885, 893 18 (9th Cir. 2005) (angry remarks and insults directed by co-workers at plaintiff, standing by 19 themselves were not sufficiently severe or pervasive to support a hostile-environment claim). 20 Aside from the lone argument with her co-workers and the vague and conclusory 21 allegation concerning cabinet slamming and inappropriate sexual comments, the events alleged 22 by plaintiff involve clerical errors and a refusal to reschedule a job opening test. While a brief 23 delay in the receipt of a paycheck or repeated mishandling of a wage garnishment order may be 24 11 25 26 Having found that these allegations fail to state a claim upon which relief can be granted, the court need not consider defendant’s argument in support of dismissal that plaintiff did not exhaust her administrative remedies with respect to her allegations of a hostile work environment based upon sex. (Am. MTD (Doc. No. 33-1) at 5.) 16 1 irritating or, at some point, even infuriating, they are not extreme or severe enough so as to 2 amount to a change in the terms and conditions of plaintiff’s employment. 3 Accordingly, for the reasons stated above, the court finds that plaintiff’s second 4 amended complaint fails to state a hostile work environment claim upon which relief may be 5 granted and defendant’s motion to dismiss this claim should therefore be granted. 6 3) Retaliation 7 Title VII also prohibits retaliation by an employer “against an employee for 8 making a charge or otherwise participating in a Title VII proceeding.” Nilsson v. City of Mesa, 9 503 F.3d 947, 953 (9th Cir. 2007). Under § 704 of the Civil Rights Act of 1964, it is unlawful 10 11 12 for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]. 13 14 42 U.S.C. § 2000e-3 (2000). To make out a prima facie case of retaliation under Title VII, a 15 plaintiff must allege facts demonstrating that “(1) she engaged in a protected activity, (2) she 16 suffered an adverse employment action, and (3) there was a causal link between her activity and 17 the employment decision.” Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065-66 (9th 18 Cir. 2003) (quoting Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185, 1196-97 19 (9th Cir. 2003). See also Poland v. Chertoff, 494 F.3d 1174, 1179-80 (9th Cir. 2007) (“To 20 establish a claim of retaliation, a plaintiff must prove that (1) the plaintiff engaged in a protected 21 activity, (2) the plaintiff suffered an adverse employment action, and (3) there was a causal link 22 between the plaintiff’s protected activity and the adverse employment action.”). 23 As to the first element of the prima facie case, an employee’s formal or informal 24 complaint regarding unlawful employment practices is “protected activity,” and a plaintiff need 25 only show that her belief that an unlawful employment practice occurred was “reasonable.” See 26 Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000); 17 1 Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994). As to the second element, for purposes of a 2 retaliation claim, a challenged action must be “materially adverse,” which means that it would 3 dissuade a reasonable worker from exercising protected rights. See Burlington N. & Santa Fe 4 Ry. Co. v. White, 548 U.S. 53, 68 (2006). As to the third element, a plaintiff may establish a 5 causal link between the protected activity and the adverse action by circumstantial evidence, 6 including the employer’s knowledge of the protected activity and a proximity in time between the 7 protected action and the adverse employment act. Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 8 1988). See also Passantino, 212 F.3d at 507 (“[W]hen adverse decisions are taken within a 9 reasonable period of time after complaints of discrimination have been made, retaliatory intent 10 may be inferred.”). 11 Here, defendant argues that plaintiff has failed to allege that she suffered an 12 adverse employment action. In this regard, defendant argues that plaintiff has failed to allege that 13 she was qualified for the open BOE Office Technician positions, that the Office Technician 14 position represented a promotion for plaintiff or that the individuals hired for the open BOE 15 Office Technician positions were less qualified then she. (Am. MTD (Doc. No. 33-1) at 6-7.) In 16 this regard, defendant asserts that the Office Technician position plaintiff sought was “a lateral 17 transfer” from her position as a Tax Technician.12 (Id. at 7.) 18 In her second amended complaint plaintiff alleges as follows. On December 12, 19 2006, she met with hiring supervisor Susan Sineto so that Sineto could approve plaintiff’s 20 request to leave work early to meet with an attorney to discuss plaintiff’s discrimination 21 complaint. (Sec. Am. Compl. (Doc. No. 28) at 12.) Sineto had worked for the BOE for more 22 then ten years and was responsible for hiring plaintiff. (Id.) Upon learning of plaintiff’s 23 intentions, Sineto told plaintiff: 24 12 25 26 In support of this contention, defendant cites the job specifications of a Tax Technician and an Office Technician, which defendant argues show that both positions required “the same minimum qualifications.” (Am. MTD (Doc. No. 33-1) at 7.) Defendant does not however make any assertions with respect to the benefits or compensation offered for the respective positions. 18 1 You do want to move up the career ladder here, right? I know you have been talking about what classes you need to take to become a Business Tax Representative, well I would not go through with this discrimination complaint because if you do no one will hire you, you will be labeled a troublemaker. You know how people talk here; you do want to move up don’t you. 2 3 4 5 (Id.) Thereafter plaintiff applied in July of 2007 and September of 2007 for job openings as a 6 BOE Office Technician but was passed over each time for candidates with “no previous work 7 experience in the Excise Tax Division,” despite the fact that plaintiff was qualified for the 8 position of Office Technician, and was “in the top three ranking” on the BOE’s applicant list. 9 (Id. at 19-20, 22.) 10 Accepting the above allegations as true and construing them in the light most 11 favorable to plaintiff as required, the court finds that plaintiff has alleged in her second amended 12 complaint that she engaged in a protected activity and that she suffered an adverse employment 13 action as a result. Moreover, plaintiff has alleged that she was qualified for the open BOE Office 14 Technician positions and that those positions were ultimately filled by less qualified individuals. 15 While plaintiff has failed to allege that the Office Technician position represented a promotion 16 from her position as a Tax Technician, that failure is not fatal to her claim even assuming the 17 accuracy of defendant’s assertion that the Office Technician position plaintiff sought represented 18 only a lateral transfer.13 See McAlindin v. County of San Diego, 192 F.3d 1226, 1239 (9th Cir. 19 1999) (“[I]f a transfer to a ‘position was not made available to [plaintiff] because of her 20 involvement in protected activities,’ then she suffered an adverse employment decision.”) 21 (quoting Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir. 1991); Randlett v. Shalala, 118 F.3d 22 857, 862 (1st Cir. 1997) (noting that denial of transfer could constitute adverse employment 23 action where transfer was “common enough practice and so arguably a ‘privilege’ of 24 13 25 26 In the July 24, 2008 Charge of Discrimination plaintiff filled with the California Department of Fair Employment & Housing, which was presented to the Equal Employment Opportunity Commission, plaintiff specifically alleged that from March 12, 2007 to November 15, 2007, she was “denied promotions.” (Am. MTD, Ex. 1 (Doc. No. 30-1) at 2.) 19 1 employment”); McCarthy v. R.J. Reynolds Tobacco Co., No. CIV. 2:09-2495 WBS DAD, 2011 2 WL 1740599 at *7 (E.D. Cal. May 4, 2011) (“Denial of a transfer or promotion could certainly 3 dissuade a reasonable worker from engaging in a protected activity.”); see also National R.R. 4 Passenger Corp. V. Morgan, 536 U.S. 101, 114 (2002) (“Discrete acts such as . . . denial of 5 transfer . . . are easy to identify. Each incident of discrimination and each retaliatory adverse 6 employment decision constitutes a separate actionable ‘unlawful employment practice.’”). 7 Defendant also argues that nine months elapsed between plaintiff’s protected 8 activity and the alleged adverse employment action, and that nine month is “too long to show a 9 causal connection.” (Am. MTD (Doc. No. 33-1) at 8.) The nine month span defendant refers to 10 appears to be the time between the filing of plaintiff’s discrimination complaint in December of 11 2006 and when she was not interviewed for the BOE Office Technician position in September of 12 2007. However, plaintiff was allegedly first passed over for an Office Technician position in 13 July of 2007, only seven months after she filed her discrimination complaint. Plaintiff was 14 informed on March 12, 2007 that, with respect to her complaint, “labor relations had closed their 15 file and nothing would be done.” (Sec. Am. Compl. (Doc. No. 28) at 14.) Plaintiff alleges that 16 she “contacted the EEOC” sometime thereafter and was passed over for the first open BOE 17 Office Technician position in July of 2007, only four months later. (Id.) 18 Moreover, “a rule that any period over a certain time is per se too long (or, 19 conversely, a rule that any period under a certain time is per se short enough) would be 20 unrealistically simplistic.” Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003). Under 21 some circumstances a nine-month gap in time may be too great to allow the inference of a causal 22 link. See Manatt v. Bank of America, NA, 339 F.3d 792, 802 (9th Cir. 2003) (nine-month lapse 23 between protected activity and alleged retaliatory employment decision too long to infer 24 causation); see also Cornwell v. Electra, 439 F.3d 1018, 1035-36 (9th Cir. 2006) (gap of eight 25 months too great to support an inference that complaint was related to termination). Under other 26 circumstances, however, even a gap of eleven months may not be too great to allow such an 20 1 inference. See Allen v. Iranon, 283 F.3d 1070, 1078 (9th Cir. 2002) (“[A]n eleven-month gap in 2 time is within the range that has been found to support an inference that an employment decision 3 was retaliatory.”). 4 Here, plaintiff has alleged that in December of 2006 she was warned that if she 5 filed a discrimination complaint no one would hire her. Plaintiff went ahead and filed a 6 discrimination complaint. Plaintiff continued to inquire about the status of that complaint 7 through March of 2007, when she was told that nothing would be done, and then “contacted the 8 EEOC” sometime thereafter. (Sec. Am. Compl. (Doc. No. 28) at 14.) According to plaintiff, 9 four months later she applied for a job for which she was qualified but was passed over for a less 10 qualified applicant. Under such circumstances plaintiff’s allegations, if proven true, may 11 establish a causal link between her protected activity of filing a discrimination complaint and the 12 employment decision to pass her over for the open Office Technician position. See Yartzoff v. 13 Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (causation was found from proximity alone where 14 the adverse actions occurred within three months after protected activity, two weeks after charge 15 investigated, and less than two months after investigation ended); Marinello v. California Dep’t 16 of Corrections & Rehabilitation, No. C 08-00664 JW, 2008 WL 4657775 at *2 (N.D. Cal. Oct. 17 21, 2008) (finding that “under the notice pleading standards, a causal link may be inferred based 18 on the proximity in time” where adverse action occurred within three months of filing complaint 19 with the EEOC). 20 Finally, “[w]hether an adverse employment action is intended to be retaliatory is a 21 question of fact that must be decided in the light of the timing and the surrounding 22 circumstances.” Anthoine v. North Central Counties Consortium, 605 F.3d 740, 751 (9th Cir. 23 2010) (quoting Coszalter, 320 F.3d at 978). While plaintiff may not ultimately be able to present 24 sufficient facts with respect to this issue, on a motion to dismiss “[t]he issue is not whether a 25 plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support 26 the claims. Indeed, it may appear on the face of the pleadings that a recovery is very remote and 21 1 unlikely but that is not the test.” Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting 2 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Here, accepting plaintiff’s allegations as true and 3 construing them in the light most favorable to her, the allegations of the second amended 4 complaint are sufficient to state a prima facie case of retaliation under Title VII. 5 For the reasons stated above, defendant’s motion to dismiss should be denied with 6 respect to plaintiff’s claim that the defendant retaliated against her by failing to hire her for the 7 open BOE Office Technician positions in July of 2007 and September of 2007.14 8 II. State Law Claims 9 Plaintiff generally alleges in her second amended complaint that this action is 10 “authorized and instituted pursuant to . . . the common law of the State of California.” (Sec. Am. 11 Compl. (Doc. No. 28) at 4.) Plaintiff also alleges that this court may “exercise pendant 12 jurisdiction over plaintiff’s state law claims arising under the common law and statutes of the 13 State of California. (Id. at 5.) Defendant argues that any potential state law claims against the 14 BOE should be dismissed because this court lacks jurisdiction over those claims. (Am. MTD 15 (Doc. No. 33-1) at 9.) 16 In general, the Eleventh Amendment bars suits against a state, absent the state’s 17 affirmative waiver of its immunity or congressional abrogation of that immunity. Pennhurst v. 18 Halderman, 465 U.S. 89, 98-99 (1984); Simmons v. Sacramento Cnty Superior Court, 318 F.3d 19 1156, 1161 (9th Cir. 2003); Yakama Indian Nation v. State of Wash. Dep’t of Revenue, 176 F.3d 20 1241, 1245 (9th Cir. 1999); see also Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of 21 Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (“The Eleventh Amendment bars suits against 22 ///// 23 ///// 24 ///// 25 14 26 Having reviewed plaintiff’s second amended complaint, the court finds these allegations to be the only allegations therein that state a cognizable claim for retaliation. 22 1 the State or its agencies for all types of relief, absent unequivocal consent by the state.”).15 2 To be a valid waiver of sovereign immunity, a state’s consent to suit must be 3 “unequivocally expressed in the statutory text.” Lane v. Pena, 518 U.S. 187, 192 (1996). See 4 also Pennhurst, 465 U.S. at 99; Yakama Indian Nation, 176 F.3d at 1245. “[T]here can be no 5 consent by implication or by use of ambiguous language.” United States v. N.Y. Rayon 6 Importing Co., 329 U.S. 654, 659 (1947). Courts must “indulge every reasonable presumption 7 against waiver,” Coll. Sav. Bank v. Florida Prepaid, 527 U.S. 666, 682 (1999), and waivers 8 “must be construed strictly in favor of the sovereign and not enlarged beyond what the [statutory] 9 language requires.” United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (citations, 10 ellipses, and internal quotation marks omitted). “To sustain a claim that the Government is liable 11 for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously 12 to such monetary claims.” Lane, 518 U.S. at 192. 13 To the extent plaintiff has attempted to allege any violations of state law, such 14 claims may be barred by sovereign immunity. In any event, in her second amended complaint 15 plaintiff has failed to allege that any specific conduct engaged in by defendant BOE violated any 16 provision of state law. Rather, plaintiff has simply alleged that this court may exercise 17 jurisdiction over plaintiff’s state law claims without referring to any such specific state law 18 claims. Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair 19 notice to the defendant and must allege facts that support the elements of the claim plainly and 20 succinctly. Jones, 733 F.2d at 649. Because plaintiff has failed to comply with the requirements 21 of Fed. R. Civ. P. 8(a), any unidentified state law claim that she intended to present in her second 22 amended complaint must be dismissed. 23 ///// 24 15 25 26 The Eleventh Amendment also bars federal suits, whether seeking damages or injunctive relief, against state officials where the state is the real party in interest. Pennhurst, 465 U.S. at 101-02. “Eleventh Amendment immunity also shields state officials from official capacity suits.” Krainski, 616 F.3d at 967. 23 1 2 Accordingly, defendant’s motion to dismiss any state law claims contained in plaintiff’s second amended complaint should be granted. 3 DEFENDANT’S MOTION TO STRIKE 4 Defendant moves pursuant to Federal Rule of Civil Procedure 12(f) to strike 5 plaintiff’s claims for declaratory and injunctive relief and for punitive damages, arguing that 6 declaratory and injunctive relief and punitive damages are not forms of relief available to 7 plaintiff in this action. (Am. MTD (Doc. No. 33-1) at 9-10.) 8 A motion to strike pursuant to Rule 12(f) allows a court to strike “from any 9 pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous 10 matter.” Fed. R. Civ. P. 12(f). “[T]he function of a 12(f) motion to strike is to avoid the 11 expenditure of time and money that must arise from litigating spurious issues by dispensing with 12 those issues prior to trial . . . .” Whittlestone, Inc. v. Handi-Craft, Co., 618 F3d 970, 973 (9th 13 Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev’d on other 14 grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 (1994)). See also Sidney-Vinstein v. 15 A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). A motion to strike is well-taken when “it is 16 clear that the matter to be stricken could have no possible bearing on the subject matter of 17 litigation.” LeDuc v. Kentucky Central Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). 18 Impertinent allegations are those that are not responsive or relevant to issues involved in the 19 action and which could not be admitted as evidence in the litigation. Fantasy, Inc., 984 F.2d at 20 1527. “Scandalous” within the meaning of Rule 12(f) includes allegations that cast a cruelly 21 derogatory light on a party or other person. Talbot v. Robert Mathews Distributing Co., 961 F.2d 22 654, 665 (7th Cir. 1992). Ultimately, whether to grant a motion to strike applying these 23 standards lies within the sound discretion of the district court. Fantasy, Inc., 984 F.2d at 1527; 24 ///// 25 ///// 26 ///// 24 1 see also California Dept. of Toxic Substances Control v. Alco Pacific, Inc., 217 F. Supp.2d 1028, 2 1032-33 (C.D. Cal. 2002).16 3 Here, defendant does not allege that plaintiff’s claim for injunctive relief or 4 punitive damages is an insufficient defense or is redundant, immaterial, impertinent, or 5 scandalous. Nor could defendant assert as much. See Fantasy, Inc., 984 F.2d at 1527 6 (“Immaterial matter is that which has no essential or important relationship to the claim for relief 7 or the defenses being pleaded . . . . Impertinent matter consists of statements that do not pertain, 8 and are not necessary, to the issues in question.”). See also Whittlestone, Inc., 618 F3d at 974 9 (finding that a claim for damages could not be redundant, immaterial, impertinent or scandalous). 10 Defendant merely argues that such forms of relief are precluded as a matter of law 11 and therefore should be stricken from plaintiff’s second amended complaint. Such an argument 12 is better addressed by way of a motion to dismiss brought pursuant to Rule 12(b)(6) or a motion 13 for summary judgment brought pursuant to Rule 56, not by way of a motion to strike pursuant to 14 Rule 12(f). Yamamoto v. Omiya, 564 F.2d 1319, 1327 (9th Cir. 1977) (“Rule 12(f) is ‘neither an 15 authorized nor a proper way to procure the dismissal of all or a part of a complaint.’”) (citing 5A 16 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1380, at 782 (1969)); 17 but see Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) (“The 18 purpose of [Rule] 12(b)(6) is to enable defendants to challenge the legal sufficiency of 19 complaints . . . .”). Rule 12(f) does not authorize a district court to strike a claim for relief on the 20 grounds that such relief is precluded as a matter of law. See Whittlestone, 618 F.3d at 976 (“We 21 ///// 22 ///// 23 ///// 24 16 25 26 Rule 12(f) motions are generally viewed with disfavor and not ordinarily granted. Bureerong v. Uvawas, 922 F. Supp. 1450, 1478 (C.D. Cal. 1996). A motion to strike should therefore not be granted unless it is absolutely clear that the matter to be stricken could have no possible bearing on the litigation. Lilley v. Charren, 936 F. Supp. 708, 713 (N.D. Cal. 1996). 25 1 hold that Rule 12(f) of the Federal Rules of Civil Procedure does not authorize a district court to 2 dismiss a claim for damages on the basis it is precluded as a matter of law.”).17 3 4 Accordingly, the undersigned will recommend that defendant’s motion to strike be denied.18 5 MOTION FOR MORE DEFINITE STATEMENT 6 Defendant also moves pursuant to Federal Rule of Civil Procedure 12(e) for a 7 more definite statement. (Am. MTD (Doc. No. 33-1) at 10.) A motion for more definite 8 statement pursuant to Federal Rule of Civil Procedure 12(e) is designed to strike at 9 unintelligibility, rather than want of detail. See Woods v. Reno Commodities, Inc., 600 F. Supp. 10 574, 580 (D. Nev. 1984); Nelson v. Quimby Island Reclamation Dist, 491 F. Supp. 1364, 1385 11 (N.D. Cal. 1980). The rule permits a party to move for a more definite statement “[i]f a pleading 12 is so vague that a party cannot reasonably be required to frame a responsive pleading.” Fed. R. 13 Civ. P. 12(e). It is not the function of such a motion to require the pleader to disclose details of 14 the case, see Boxall v. Sequoia Union High Sch. Dist., 464 F. Supp. 1104, 1114 (N.D. Cal. 15 1979), or to provide the evidentiary material that may properly be obtained by discovery, see 16 Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981). A motion 17 for more definite statement should be denied if a pleading meets federal standards by providing a 18 19 20 17 Even if the court could grant defendant’s motion to strike, particularly in light of plaintiff’s pro se status the court finds that it is inappropriate to grant defendant’s motion to strike at this early stage of the litigation. See Johnson v. GMRI, Inc., No. CV F 07-0283 LJO DLB, 2007 WL 2462101 at *5 (E.D. Cal. Aug. 27, 2007). 21 18 22 23 24 25 26 Although for the reasons set forth above the court will recommend that defendant’s motion to strike be denied, plaintiff may indeed lack standing to seek injunctive relief from which she would not likely benefit. See Walsh v. Nevada Dept. of Human Resources, 471 F.3d 1033, 1037 (9th Cir. 2006). Moreover, “[i]t is well established that punitive damages may not be assessed against a public entity under Title VII.” Hines v. California Public Utilities Com’n, No. C-10-2813 EMC, 2010 WL 4691652 at *8 (E.D. Cal. Nov. 8, 2010) (citing 42 U.S.C. § 1981a(b)(1)). See also Barefield v. California State University Bakersfield, No. CIV F 05-0633 AWI TAG, 2006 WL 829122 at *7 (E.D. Cal. Mar. 28, 2006) (“[U]nder the terms of Title VII itself [42 U.S.C. § 1981a(b)(1)], punitive damages are not recoverable against governmental entities.”). 26 1 “short and plain statement” of the claim showing that the pleader is entitled to relief. See Fed. R. 2 Civ. P. 8(a)(2). 3 Upon careful consideration of plaintiff’s second amended complaint and the legal 4 standards applicable to Rule 12(e) motions, and in light of the recommendation that all of 5 plaintiff’s claims be dismissed except her Title VII claims of discrimination and retaliation in 6 connection with the July 2007 and September 2007 open BOE Office Technician positions, the 7 undersigned finds that plaintiff’s second amended complaint is not impermissibly vague or 8 ambiguous with regard to her pro se allegations of discrimination and retaliation noted above. 9 Accordingly, the undersigned will recommend that defendant’s motion for more definite 10 statement be denied. 11 CONCLUSION 12 IT IS HEREBY RECOMMENDED that: 13 1. Defendant’s November 19, 2010 amended motion to dismiss (Doc. No. 33) be 14 denied as to plaintiff’s claim that defendant discriminated against her by failing to hire plaintiff 15 for the open BOE Office Technician positions in July of 2007 and September of 2007; 16 2. Defendant’s November 19, 2010 amended motion to dismiss (Doc. No. 33) be 17 denied with respect to plaintiff’s claim that defendant retaliated against her for filing a 18 discrimination complaint by failing to hire plaintiff for the open BOE Office Technician 19 positions in July of 2007 and September of 2007; 20 21 3. Defendant’s November 19, 2010 amended motion to dismiss (Doc. No. 33) be granted in all other respect; 22 4. Defendant’s November 19, 2010 motion to strike (Doc. No. 33) be denied; and 23 5. Defendant’s November 19, 2010 motion for a more definite statement (Doc. 24 25 26 No. 33) be denied. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 27 1 days after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 4 shall be served and filed within seven days after service of the objections. The parties are 5 advised that failure to file objections within the specified time may waive the right to appeal the 6 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 DATED: August 26, 2011. 8 9 10 11 12 DAD:6 orders.prose/jackson1387.mtd2.f&rs 13 14 15 16 17 18 19 20 21 22 23 24 25 26 28
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