(PS) Burks v. Salazar et al, No. 2:2012cv01975 - Document 32 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 12/3/12: RECOMMENDING that motion to dismiss 18 be granted. Defendants Donald Glaser and Katherine Thompson be dismissed with prejudice. Plaintiff be directed to file an am ended complaint within thirty days of the order adopting these findings and recommendations. Defendant Salazar be directed to file an answer to the amended complaint within thirty days of its service. F&R referred to Judge John A. Mendez. Objections to F&R due within fourteen days. (Kaminski, H)
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(PS) Burks v. Salazar et al Doc. 32 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KATHLEEN DENESE BURKS, 11 Plaintiff, No. CIV 2:12-cv-1975-JAM-AC (PS) 12 vs. 13 14 KENNETH SALAZAR, Secretary of the Dep’t of the Interior, et al., Defendants. 15 FINDINGS & RECOMMENDATIONS / 16 This matter is before the court on defendants’ motion to dismiss. Defendants 17 18 Donald Glaser and Katherine Thompson seek dismissal of this action with prejudice as to them 19 as a matter of law. Plaintiff has filed a statement of non-opposition. On review of the motion, 20 the documents filed in support, and good cause appearing therefor, THE COURT FINDS AS 21 FOLLOWS: 22 RELEVANT FACTUAL AND PROCEDURAL BACKGROUND 23 Plaintiff, an African-American female proceeding in pro per, initiated this action 24 on May 4, 2012 in the Northern District of California and is proceeding against defendants 25 Kenneth Salazar, Secretary of the Department of Interior (“DOI”); Donald Glaser, Regional 26 Director of the DOI; and Katherine Thompson, Assistant Regional Director of the DOI. 1 Dockets.Justia.com 1 Plaintiff’s suit is brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2 § 2000e et seq., and alleges race and age discrimination, retaliation, and harassment. 3 This case was transferred to this court on July 30, 2012. On September 17, 2012, 4 the moving defendants filed the instant motion to dismiss. Plaintiff has filed a statement of non- 5 opposition to the instant motion. 6 Also pending is plaintiff’s October 23, 2012 motion for permission to file 7 electronically. Doc. No. 21. Because this request complies with Local Rule 133(b)(3), which 8 governs requests by pro se parties to file documents electronically, it will be granted. 9 10 DISCUSSION Defendants Glaser and Thompson seek dismissal of this action with prejudice as 11 to them on the ground that plaintiff’s Title VII claim cannot be brought against individual 12 defendants. Defendants’ point is well-taken. “[T]he Civil Rights Act of 1964, as amended, 13 provides the exclusive judicial remedy for claims of discrimination in federal employment.” 14 Brown v. General Services Administration, 425 U.S. 820, 835 (1976). In a civil action brought 15 pursuant to Title VII, “the head of the department, agency, or unit, as appropriate, shall be the 16 defendant.” 42 U.S.C.A. § 2000e–16. The Ninth Circuit has “consistently held that Title VII 17 does not provide a cause of action for damages against supervisors or fellow employees.” Holly 18 D. v. Cal. Inst. of Tech., 339 F.3d 1158, 1179 (9th Cir. 2003) (internal citations omitted). Thus, 19 while a Title VII plaintiff may bring claims against the head of an agency in his or her official 20 capacity, federal officials cannot be sued in their individual capacities. See Sommatino v. 21 United States, 255 F.3d 704, 707 n.1 (9th Cir. 2001); White v. Gen. Servs. Admin., 652 F.2d 22 913, 916 (9th Cir. 1981). Furthermore, insofar as plaintiff’s age discrimination claim should be 23 brought pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et 24 seq., the provision identifying the proper defendant for a discrimination action brought under 25 Title VII, “also applies to age discrimination claims brought under the ADEA.” Romain v. 26 Shear, 799 F.2d 1416, 1418 (9th Cir. 1986), cert. denied, 481 U.S. 1050 (1987). Plaintiff’s 2 1 statement of non-opposition recognizes this legal framework and has no opposition to the 2 granting of the defendants’ motion to dismiss. Based on the foregoing, defendants’ motion 3 should be granted. Accordingly, IT IS HEREBY ORDERED that plaintiff’s request to file 4 5 electronically (Doc. No. 21) is granted; and 6 IT IS HEREBY RECOMMENDED that: 7 1. Defendants’ September 17, 2012 motion to dismiss (Doc. No. 18) be granted; 8 2. Defendants Donald Glaser and Katherine Thompson be dismissed from this 9 action with prejudice; 3. Plaintiff be directed to file an amended complaint within thirty days of the 10 11 order adopting these findings and recommendations; and 4. Defendant Salazar be directed to file an answer to the amended complaint 12 13 within thirty days of its service. These findings and recommendations are submitted to the United States District 14 15 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 16 days after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised 19 that failure to file objections within the specified time may waive the right to appeal the District 20 Court’s order. Martinez v. Ylst, 95 1 F.2d 1153 (9th Cir. 1991). 21 DATED: December 3, 2012. 22 ______/s/_____________________________ ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 23 24 /mb;burk1975.mtd 25 26 3
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