Chan v. Salas, No. 3:2010cv04348 - Document 23 (N.D. Cal. 2011)
Court Description: ORDER GRANTING MOTION TO DISMISS. Signed by Judge Maria-Elena James on 6/23/2011. (cdnS, COURT STAFF) (Filed on 6/23/2011)
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Chan v. Salas Doc. 23 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 Northern District of California 9 10 SOPHIA Q. CHAN, No. C 10-04348 MEJ Plaintiff, 11 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 12 For the Northern District of California UNITED STATES DISTRICT COURT v. JOAQUIN SALAS, (Dkt. No. 4) 13 14 Defendant. _____________________________________/ 15 16 I. INTRODUCTION Before the Court is Defendant Joaquin Salas’ (“Defendant”) Motion to Dismiss pursuant to 17 Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1) for failure to state a claim and lack of subject 18 matter jurisdiction, filed October 4, 2010. Dkt. No. 4. Despite having been granted multiple 19 opportunities to oppose Defendant’s motion, Plaintiff Sophia Chan (“Plaintiff”) has failed to file any 20 opposition. Pursuant to Civil Local Rule 7-1(b), the Court finds this matter suitable for disposition 21 without oral argument and VACATES the July 14, 2011 hearing. For the reasons set forth below, 22 the Court GRANTS Defendant’s motion. 23 II. BACKGROUND 24 The following background is taken from Plaintiff’s Complaint and documents attached 25 thereto.1 Not. of Removal, Dkt. No. 1. Plaintiff is a management program analyst with the United 26 States Marshals Service. Defendant is the Chief Deputy United States Marshal for the Northern 27 28 1 As Plaintiff’s Complaint has no page numbers, citations herein shall be to the Notice of Removal. Dockets.Justia.com 1 District of California. Not. of Removal at 13-14. Both Plaintiff and Defendant work at the same 2 office of the United States Marshals Service, at 450 Golden Gate Avenue, in San Francisco, 3 California. Id. at 8. 4 On September 20, 2010, Plaintiff filed a Request for Orders to Stop Harassment (Civil 5 Harassment) (the “Request”) in the San Francisco Superior Court against Defendant. Id. at 9-11. In 6 her Request, Plaintiff alleged that Defendant “has raised his voice (bully)” and “raised his hand 7 pounding the copier machines,” and that “when he raised his hand seems like he is hitting me.” Id. 8 at 10. Plaintiff asked the Superior Court to order that Defendant stay at least 100 yards away from 9 her home, workplace, and vehicle, and that he stay away from four other co-workers. Id. at 9-10. 10 Plaintiff brought her claims under California Code of Civil Procedure sections 527.6 and 527.9.2 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 California Code of Civil Procedure § 527.6 provides, in relevant portion: (a) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section. (b) For the purposes of this section, “harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff. As used in this subdivision: (1) “Unlawful violence” is any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, but shall not include lawful acts of self-defense or defense of others. (2) “Credible threat of violence” is a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose. (3) “Course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of “course of conduct.” 27 28 California Code of Civil Procedure § 527.9 provides that “[a] person subject to a 2 1 With her Request, Plaintiff filed an attachment, prefaced with the statement “[m]y complaint 2 of discrimination includes as of following,” in which she alleges that she has been discriminated 3 against and subjected to a hostile work environment by Defendant because of her race, age and 4 disabilities (partial blindness and “retardation”), and that Defendant has retaliated against her for 5 engaging in protected activity. Id. at 13-14. Specifically, Plaintiff alleges that “some people” who 6 work for Defendant have been unfriendly toward her, that Defendant has used a bullying and 7 demanding tone with her, raised his hands toward her, and insulted her in front of other co-workers. 8 Id. 9 On September 20, 2010, the Superior Court scheduled a hearing on Plaintiff’s Request for October 6, 2010, and issued a temporary restraining order against Defendant, ordering that he stay 11 at least 50 yards away from Plaintiff and her workplace, car and home. Id. at 4-7. 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 On September 27, 2010, Defendant removed the matter to this Court. Dkt. No. 1. On 13 October 4, 2010, Defendant filed the present motion to dismiss, with a noticed hearing date of 14 November 18, 2010. Dkt. No. 4. However, on November 17, 2010, Plaintiff filed a request to 15 postpone her case until she was able to recover from a surgery scheduled to take place on November 16 23, 2010. Dkt. No. 13. The Court granted Plaintiff’s request, but noted that she did not provide a 17 date by which her recovery would be complete, and therefore ordered Plaintiff to file an opposition 18 to Defendant’s motion by March 17, 2011. Dkt. No. 14. 19 On March 15, 2011, Plaintiff filed a document in which she stated that she was still 20 recovering from surgery and requested a further continuance of her case. Dkt. No. 15. However, 21 Plaintiff once again provided no information regarding the type of surgery she underwent or the 22 anticipated length of her recovery. Accordingly, the Court ordered Plaintiff to provide a letter from 23 the doctor that performed her surgery, including information regarding (1) the type of surgery 24 Plaintiff underwent, (2) the normal recovery period expected after such a surgery, (3) the anticipated 25 length of Plaintiff’s further recovery, and (4) when the doctor expected that Plaintiff would be able 26 27 28 temporary restraining order or injunction issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure . . . shall relinquish the firearm pursuant to this section.” 3 1 to resume prosecuting her case. Dkt. No. 17. 2 On April 7, 2011, as Plaintiff failed to provide a letter from her doctor, the Court ordered her 3 to show cause why this case should not be dismissed for failure to prosecute. The Court ordered 4 Plaintiff to file a declaration by May 5, 2011, and scheduled a hearing on May 19, 2011. Dkt. No. 5 19. 6 Although Plaintiff did not file a declaration in response, she did appear at the May 19 proceed with the case. Plaintiff subsequently filed a letter from her doctor, which states that she was 9 able to return to work as of April 23, 2011. Dkt. No. 22. Based on Plaintiff’s stated intention, the 10 Court discharged the order to show cause and re-calendared Defendant’s motion for a hearing on 11 July 14, 2011. Dkt. No. 21. The Court ordered Plaintiff to file any opposition to Defendant’s 12 For the Northern District of California hearing, at which time she said she “forgot” to bring the letter from her doctor, but she intended to 8 UNITED STATES DISTRICT COURT 7 motion by June 9, 2011. Plaintiff, however, failed to file any opposition. 13 III. DISCUSSION 14 Defendant moves for dismissal of Plaintiff’s action pursuant to Federal Rules of Civil 15 Procedure 12(b)(6) and 12(b)(1) for failure to state a claim and lack of subject matter jurisdiction. 16 Defendant argues that, because the conduct alleged in Plaintiff’s request for restraining order arises 17 out of the employment context, her claims are precluded by Title VII of the Civil Rights Act of 1964 18 (“Title VII”), 42 U.S.C. §§ 2000e, et seq., the Age Discrimination in Employment Act (“ADEA”), 19 29 U.S.C. §§ 621, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. §§ 791, et seq., which are 20 the exclusive judicial remedies for claims of discrimination by the federal government on the basis 21 of race, age and disability, respectively. 22 A. Legal Standard 23 1. 24 A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) when it Rule 12(b)(6) 25 does not contain enough facts to state a claim to relief that is plausible on its face. See Bell Atlantic 26 Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 27 pleads factual content that allows the court to draw the reasonable inference that the defendant is 28 4 1 liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “The plausibility 2 standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a 3 defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557.) “While a complaint 4 attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s 5 obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 6 conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual 7 allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 8 U.S. at 555 (internal citations and parentheticals omitted). In considering a motion to dismiss, a court must accept all of the plaintiff's allegations as true 10 and construe them in the light most favorable to the plaintiff. See id. at 550; Erickson v. Pardus, 551 11 U.S. 89, 93-94 (2007); Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007). 12 For the Northern District of California UNITED STATES DISTRICT COURT 9 If the court dismisses the complaint, it should grant leave to amend even if no request to 13 amend is made “unless it determines that the pleading could not possibly be cured by the allegation 14 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Cook, Perkiss and 15 Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)). 16 2. 17 Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss an action for lack Rule 12(b)(1) 18 of subject-matter jurisdiction. The plaintiff has the burden of establishing that jurisdiction exists. 19 Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001). In 20 determining whether it has subject matter jurisdiction, a court is not limited to the allegations of the 21 complaint. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2001). Rather, the court is permitted to look 22 beyond the complaint to extrinsic evidence, and need not assume the truth of the complaint’s 23 allegations. Id. 24 B. 25 Application to the Case at Bar In her Request, Plaintiff alleges that she has suffered workplace harassment and 26 discrimination by Defendant, the Chief Deputy United States Marshal of Plaintiff’s office, because 27 of her race, age and disabilities. Although she brings her claims pursuant to California Code of Civil 28 5 1 Procedure sections 527.6 and 527.9, her Request is based on allegedly discriminatory employment 2 actions by Defendant. 3 In claims stemming from alleged employment discrimination based on race by the federal 4 government, Title VII expressly limits Plaintiff’s remedies to those enumerated in the statute. 5 Brown v. Gen. Servs. Admin., 425 U.S. 820, 825 (1976); 42 U.S.C. § 2000e-16, 42 U.S.C. § 6 2000e-5(f)-(k). Title VII is the exclusive judicial remedy for claims of race discrimination in 7 federal employment. Id.; see also Boyd v. U.S. Postal Service, 752 F.2d 410, 413-14 (9th Cir. 1985). 8 Similarly, the ADEA is Plaintiff’s exclusive remedy for her age discrimination claims, and the 9 Rehabilitation Act is Plaintiff’s exclusive remedy for her disability discrimination claims. See v. U.S. Dep’t of the Air Force, 939 F.2d 762, 773 (9th Cir. 1991) (holding that the 12 For the Northern District of California Boyd, 752 F.2d at 413-14 (citing Brown v. Gen. Servs. Admin., 425 U.S. 820 (1976)); Vinieratos 11 UNITED STATES DISTRICT COURT 10 Rehabilitation Act is the exclusive remedy for disability discrimination claims by federal 13 employees); Ahlmeyer v. Nevada Sys. of Higher Educ., 555 F.3d 1051, 1056-57 (2009) (holding 14 that the ADEA is the exclusive remedy for age discrimination claims by federal employees). 15 Where a federal employee asserts a claim under Title VII, the ADEA or the Rehabilitation Act, 16 that statute is exclusive of any other remedy against not only the federal government, but also 17 against the individual federal employee alleged to have participated in the discrimination. White v. 18 Gen. Servs. Admin., 652 F.2d 913, 916-17 (9th Cir. 1981). 19 Here, Plaintiff has attempted to assert an employment discrimination and hostile work 20 environment claim through the California code provisions for obtaining an order to stop civil 21 harassment, California Code of Civil Procedure sections 527.6 and 527.9. In her request, Plaintiff 22 seeks a restraining order on the grounds that Defendant has raised his voice and angrily raised his 23 hand to pound on the photocopier. Not. of Removal at 9-11. Plaintiff characterizes these acts as 24 part of the basis for her “complaint of discrimination,” and asserts that because of these alleged 25 actions, she believes that she has been subjected to a “disparate treatment and a hostile work 26 environment based on . . . [her] race, age . . . retardation,” and partial blindness. Id. at 13-14. 27 Accordingly, because her claims are based on discrimination in a federal workplace and a hostile 28 6 1 work environment, Plaintiff’s state claim for a restraining order against Defendant is precluded by 2 Title VII, the ADEA and Rehabilitation Act, and her claims must be dismissed. 3 If the court dismisses the complaint, it should grant leave to amend even if no request to 4 amend is made “unless it determines that the pleading could not possibly be cured by the allegation 5 of other facts.” Lopez, 203 F.3d at 1127 (quoting Cook, 911 F.2d at 247). Here, the Court finds that 6 Plaintiff’s Complaint could not be cured because, even if her claims were brought under the Title 7 VII, the ADEA, and the Rehabilitation Act, she has failed to exhaust her administrative remedies. 8 “Under Title VII, a plaintiff must exhaust her administrative remedies by filing a timely charge with 9 the EEOC, or the appropriate state agency, thereby affording the agency an opportunity to claims brought under the ADEA, an aggrieved individual must first exhaust her administrative 12 For the Northern District of California investigate the charge.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002). For 11 UNITED STATES DISTRICT COURT 10 remedies, which requires filing a charge with the EEOC detailing facts underlying the discrimination 13 so that an investigation may begin. 42 U.S.C.A. § 2000e–5(b). To bring a claim pursuant to the 14 Rehabilitation Act, “a claimant must exhaust her administrative remedies by filing a claim of 15 discrimination with the allegedly offending agency in accordance with published procedures.” 16 Leorna v. U.S. Dep't of State, 105 F.3d 548, 550 (9th Cir. 1997); see also Leong v. Potter, 347 F.3d 17 1117, 1121–22 (9th Cir. 2003). Accordingly, because Plaintiff has failed to show that she exhausted 18 her administrative remedies, leave to amend cannot cure the deficiencies in Plaintiff’s Complaint. 19 Further, to the extent Plaintiff’s claim can be construed as a tort claim, it must be dismissed 20 because there is no indication that she has exhausted her administrative remedies. The Federal Tort 21 Claims Act (“FTCA”) permits civil actions against the United States for certain torts allegedly 22 committed by federal employees that would be torts under the law of the forum state. 28 U.S.C. § 23 1346(b)(1). However, absent a waiver, sovereign immunity shields the federal government, its 24 agencies, and federal employees acting in their official capacity from suit. FDIC v. Meyer, 510 U.S. 25 471, 475 (1992); Sierra Club v. Whitman, 268 F.3d 898, 901 (9th Cir. 2001). The FTCA provides a 26 limited waiver of sovereign immunity. 28 U.S.C. § 2675(a). A district court has no subject matter 27 jurisdiction over an FTCA claim unless the plaintiff has first presented a claim to the appropriate 28 7 1 agency, and either (1) the claim was “finally denied” in writing, or (2) six months have passed since 2 the claim was submitted. 28 U.S.C. § 2675(a). The claim requirement is jurisdictional in nature and 3 cannot be waived. McNeil v. United States, 508 U.S. 106, 11-12 (1993); Burns v. United States, 764 4 F.2d 722, 723 (9th Cir. 1985). The plaintiff in an action seeking relief under the FTCA has the 5 burden of pleading and proving that she complied with the FTCA’s administrative claim 6 presentment requirement. Bruce v. United States, 621 F.2d 914, 918 (8th Cir. 1980). Here, Plaintiff 7 has not shown that she exhausted administrative remedies with respect to any potential tort claim; 8 accordingly, the Court lacks subject matter jurisdiction. 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 IV. CONCLUSION Based on the analysis above, the Court GRANTS Defendant’s motion to dismiss WITHOUT LEAVE TO AMEND. IT IS SO ORDERED. 13 14 Dated: June 23, 2011 _______________________________ Maria-Elena James Chief United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 4 SOPHIA Q. CHAN Case Number: 10-04348 MEJ 5 Plaintiff, CERTIFICATE OF SERVICE 6 7 8 v. JOAQUIN SALAS Defendant. / 9 10 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on June 23, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Sophia Q. Chan 1468 Silver Avenue San Francisco, CA 94134 16 17 18 Dated: June 23, 2011 Richard W. Wieking, Clerk By: Brenda Tolbert, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 9
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