Mock v. California Department of Corrections and Rehabilitation, et al.

Filing 15

ORDER Granting In Part Defendants' Motion To Dismiss (ECF NO. 4 ), Amended Complaint Due Within Fourteen (14) Days, signed by Magistrate Judge Michael J. Seng on 9/22/2015. (Fahrney, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MAURICE C. MOCK, 12 Plaintiff, Case No. 1:15-cv-01104-MJS ORDER GRANTING IN PART DEFENDANTS’ MOTION TO DISMISS v. 13 CALIFORNIA DEP’T OF CORRECTIONS AND REHABILITATION, et al., 14 15 (ECF NO. 4) AMENDED COMPLAINT DUE WITHIN FOURTEEN (14) DAYS Defendants. 16 17 I. PROCEDURAL HISTORY 18 Plaintiff, a former employee of the California Department of Corrections and 19 Rehabiliation (“CDCR”) at Pleasant Valley State Prison (“PVSP”) in Coalinga, California, 20 filed this action on June 15, 2015, in the Fresno County Superior Court against CDCR; 21 PVSP; Jeffrey Beard, Secretary of CDCR, in his official capacity; John Keith, Chief 22 Nurse Executive at PVSP, in his official and individual capacities; and Does 1-50 on 23 thirteen causes of action under both state and federal law. Defendants CDCR, PVSP, 24 and Jeffrey Beard removed the case to this Court on July 16, 2015, pursuant to 28 25 U.S.C. § 1441(a). All appearing parties have consented to the undersigned’s 26 jurisdiction.1 (ECF Nos. 6-7, 8.) 27 28 1 Defendant John Keith has not yet appeared in this action. 1 This action is before the Court on Defendants CDCR, PVSP, and Jeffrey Beard’s 2 (“the moving Defendants”) July 21, 2015, motion to dismiss and motion to strike. (ECF 3 No. 4.) Plaintiff has filed an opposition. (ECF No. 10.) Defendants have filed a reply. 4 (ECF No. 12.) This matter is now fully briefed and ready for disposition. 5 II. LEGAL STANDARD 6 A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency 7 of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the 8 absence of sufficient facts alleged under a cognizable legal theory. Conservation Force 9 v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). In resolving a 12(b)(6) motion, a 10 court’s review is generally limited to the operative pleading. Daniels-Hall v. Nat’l Educ. 11 Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). 12 To survive a motion to dismiss, a complaint must contain sufficient factual matter, 13 accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 14 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 15 (2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Serv., 572 F.3d 16 962, 969 (9th Cir. 2009). The Court must accept the factual allegations as true and draw 17 all reasonable inferences in favor of the non-moving party. Daniels-Hall, 629 F.3d at 18 998. Pro se litigants are entitled to have their pleadings liberally construed and to have 19 any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 20 2012); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 21 F.3d 1090, 1101 (9th Cir. 2011); Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 22 III. PLAINTIFF’S CLAIMS 23 Plaintiff’s allegations can be summarized as follows: 24 As of June 2014, Plaintiff, a white male, had been employed by CDCR for more 25 than 17 years, most recently as a Supervising Registered Nurse II (“SRN-II”) for 26 approximately seven years. Prior to the events at issue here, Plaintiff served as the 27 specialty services director at PVSP, a highly sought-after position and one requiring 28 more responsibilities than standard SRN-II positions. He was also in charge of 2 1 scheduling of nursing at PVSP and was commended for his performance in that 2 position. 3 Plaintiff had an exemplary employment record at CDCR, and no negative action 4 or substandard performance evaluation had ever been rendered against him. Plaintiff 5 also had a positive working relationship with coworkers and supervisors. Defendant Keith’s Hostile Personal Conduct 6 A. 7 In or around May 2011, CDCR and PVSP hired Defendant John Keith, an 8 African-American male, as the supervisor of the nursing unit where Plaintiff worked (the 9 “Nursing Unit”). 10 Following his arrival, Keith frequently insulted and demeaned Plaintiff in front of 11 other SRN-IIs in the Nursing Unit. For example, on one occasion Keith said that Plaintiff 12 “dressed like a large woman” and that he would help Plaintiff “find a lab coat that would 13 fit” him. Plaintiff also learned from other employees at PVSP that Keith accused Plaintiff 14 of using racially offensive language or slurs against him and other African-American 15 employees in the Nursing Unit, including the “N” word.” One of Plaintiff’s co-workers, 16 Lisa Adkins, with whom he previously had a good relationship, became distrustful of 17 Plaintiff as a result of Keith’s false accusations and said that she was afraid that Plaintiff 18 was going to start “shooting black folks.” 19 B. The August 2012 Complaint 20 On August 20, 2012, a complaint was filed with PVSP by an employee falsely 21 accusing Plaintiff of making inappropriate remarks regarding African-American 22 supervisors at PVSP (“the August 2012 Complaint”). Plaintiff received a “cease and 23 desist” order when he was notified of the August 2012 Complaint. 24 Keith encouraged or directed African-American and other employees, including 25 Ms. Adkins, to make false allegations against Plaintiff and other white employees at 26 PVSP; violated CDCR written policy by forwarding the August 2012 Complaint for 27 disciplinary action without first investigating the allegations internally; and purposefully 28 acted to cause several white employees to be fired. 3 Investigators from the CDCR Office of Internal Affairs interviewed Plaintiff as part 1 2 of their investigation, and Plaintiff testified that the allegations were false.2 Plaintiff also 3 told the investigators of Keith’s discriminatory and retaliatory conduct as directed at 4 him.3 On May 13, 2014, the Office of Internal Affairs held that the allegations of the 5 August 2012 Complaint were not sustained. Plaintiff’s September 2012 Reassignment 6 C. 7 In or around August or September 2012, Keith reassigned Plaintiff from specialty 8 services director to “A Yard.” This was, in practical effect, a demotion due to a reduction 9 in staff supervision and responsibilities. Immediately after reassigning Plaintiff, Keith promoted Ms. Adkins, an African- 10 11 American employee, to specialty services director, even though she was less qualified 12 and had less relevant experience. 13 D. Failure to Promote Plaintiff 14 On or around July or August 2012, a Supervising Registered Nurse III (“SRN-III”) 15 position became available. Plaintiff was the most qualified employee at PVSP for the 16 SRN-III position with the most relevant experience and more seniority than any other 17 SRN-II eligible for the position. The departing SRN-III (Plaintiff’s supervisor) 18 recommended to Keith that Plaintiff be promoted to SRN-III upon her departure. Keith, 19 however, promoted Ms. Adkins, who had substantially less experience and was less 20 qualified for the position than Plaintiff. 21 E. Denial of Schedule and Leave Requests 22 Around this same time, the Nursing Unit SRN-II shifts were rotated, and Plaintiff 23 submitted a scheduling request asking for a particular shift before any other SRN-IIs. 24 Under these circumstances, his request should have been granted. Instead, Keith 25 assigned the particular shift to Kahn Solo, an African-American SRN-II. 26 27 2 Plaintiff does not provide the date of this interview. Since Plaintiff does not specify when this interview took place, it is unclear what discriminatory and retaliatory conduct served as the basis of his complaint to the investigators. 3 28 4 Keith also frequently denied, without justification, Plaintiff’s requests for leave 1 2 even though he granted requests for leave by African-American employees with less 3 seniority than Plaintiff. Plaintiff’s October 2012 EEO Complaint 4 F. 5 In October 2012, Plaintiff filed a complaint with CDCR’s Equal Employment 6 Opportunity office (“EEO”) based on Keith’s denial of Plaintiff’s leave requests, his 7 reassignment of Plaintiff to A Yard, his denial of Plaintiff’s promotion to SRN-III, and his 8 insulting and belittling conduct toward Plaintiff based on Plaintiff’s race. No official action 9 has been taken on Plaintiff’s EEO complaint to his knowledge. 10 G. 2012 Surveillance and Discipline Incidents 11 Following Plaintiff’s October 2012 EEO Complaint, Keith asked Plaintiff’s direct 12 supervisor, Ms. Griffith, to “check up” on Plaintiff while he was working at the Nursing 13 Unit. These requests were frequent and made Ms. Griffith uncomfortable. Each time, 14 Ms. Griffith reported back that Plaintiff was satisfactorily performing his job duties. 15 Despite Ms. Griffith’s surveillance reports, Keith instructured Ms. Griffith to take 16 disciplinary actions against Plaintiff. However, Ms. Griffith determined that Plaintiff and 17 his staff were following all proper procedures.4 Keith did not instruct Ms. Griffith or any 18 other person to conduct this type of surveillance or take disciplinary action against any 19 other employee. Keith’s June 2014 Public Discriminatory Statements 20 H. 21 On June 23, 2014, Keith and Plaintiff held interviews for an SRN-II opening at the 22 Nursing Unit. Two of the interviewees were also current employees of the Nursing Unit 23 and were among those who, like Plaintiff, were falsely accused in the August 2012 24 Complaint of making racially offensive statements. Keith told Plaintiff that “there would 25 never be a place” for them “after what they said,” allegedly referring to the August 2012 26 Complaint. 27 28 4 It is unclear from the complaint if any disciplinary action was in fact taken in response to Keith’s urging. 5 Afterward, Keith called a meeting with all supervisors on Plaintiff’s shift, but 1 2 specifically excluded Plaintiff from attending. Based on statements by individuals who 3 attended that meeting, Keith discussed the prejudice that African-Americans have 4 suffered because of whites, stating things like “blacks better not let the sun set on their 5 back.” Keith’s Incitement of Ms. Lorenz’s EEO Complaint 6 I. 7 On June 25 or 26, 2014, while Plaintiff was attending CDCR training outside of 8 PVSP, Ashley Lorenz, an office administrator at PVSP supervised by Plaintiff, called 9 Plaintiff to discuss a scheduling matter. Plaintiff disagreed with Ms. Lorenz and 10 instructed her to take a different action. Ms. Lorenz became upset as a result. 11 When Keith learned of Ms. Lorenz’s frustration, he personally walked her to the 12 EEO office and influenced her to file an EEO complaint against Plaintiff. 13 J. June 2014 Closed-Door Meeting 14 Plaintiff learned of this incident on June 27, 2014, when he was confronted by 15 Keith and Shirley Franklin, another supervisory employee at PVSP, during a closed16 door meeting. Keith specifically excluded Plaintiff’s supervisor, Ms. Griffith, from the 17 meeting, contrary to CDCR policy. 18 Keith told Plaintiff that Ms. Lorenz filed an EEO complaint against him because 19 Plaintiff had used an inappropriate tone and intimidated her during their phone 20 converstaion.5 Keith then accused Plaintiff of being untrustworthy and attempting to 21 undermine Keith’s authority, accusations that Plaintiff believes to be based on both the 22 October 2012 EEO Complaint and on Plaintiff’s statements to the Internal Affairs 23 Office’s investigation into the August 2012 Complaint. Keith also accused Plaintiff of 24 lacking ability to perform as an SRN-II and an SRN-III. 25 26 27 28 5 Plaintiff later learned that Ms. Lorenz did not file the EEO complaint because the alleged incident did not involve discriminatory conduct and because Ms. Lorenz did not actually intend to make any of the allegations that Keith attempted to influence her to make. 6 1 When Plaintiff realized that the meeting was intended by Keith to be disciplinary 2 in nature, Plaintiff requested that his supervisor, Ms. Griffith, be present. Keith denied 3 this request without justification. 4 During this meeting, Keith was hostile and threatening toward Plaintiff, which 5 caused Plaintiff to feel intimidated. Plaintiff experienced severe distress and asked that 6 he be excused for a break at least four times. Keith denied these requests and 7 continued his false accusations, threats, and intimidation against Plaintiff. 8 Keith told Plaintiff that he was no longer allowed to work with certain employees, 9 including Ms. Lorenz; to return to his office; or to work in certain capacities at PVSP, 10 including in his then-current capacity as SRN-II or as an acting SRN-III during Ms. 11 Griffith’s absences. These restrictions precluded Plaintiff from carrying out virtually any 12 of this then-present duties. Keith did not give Plaintiff any alternative duties, and led 13 Plaintiff to believe that, because of these restrictions, he was constructively terminating 14 Plaintiff’s employment. 15 After Plaintiff’s fifth repeated request to be excused, Keith finally allowed him to 16 leave. Plaintiff immediately became physically ill and began to vomit and suffered a 17 panic attack as a result of the meeting. Keith’s conduct caused Plaintiff to develop an 18 anxiety and panic disorder such that he was directed by his physician not to return to 19 PVSP until his condition improved (elevated blood-pressure and numbness in his 20 extremities). 21 Plaintiff sought relief from Keith’s conduct in numerous ways, including through 22 the October 2012 Complaint; by speaking to his direct supervisors, who also, in turn, 23 spoke to the CEO of PVSP; and in September 2012, by reporting to the Employee 24 Relations Officer at PVSP, Heather Sanchez, and the CEO at the time, Anthony 25 Lonigro, and to the EEO counselor at PVSP, Kent Nash, Keith’s discriminatory denial of 26 Plaintiff’s leave requests and certain employment benefits. 27 Plaintiff claims that Keith intended to establish false grounds upon which to deny 28 Plaintiff an upcoming promotion to SRN-III and intended that these actions inflict 7 1 significant emotional distress upon Plaintiff in the hopes that Plaintiff would quit. Plaintiff 2 also claims that Keith took these actions for the sole purpose of discriminating against 3 Plaintiff on the basis of his race, and did so in retaliation against Plaintiff for his 4 protected activities in reporting or resisting Keith’s discriminatory conduct. 5 Plaintiff brings thirteen causes of action against CDCR, PVSP, Jeffrey Beard, 6 and John Keith: (1) racial harassment in violation of California’s Fair Employment and 7 Housing Act, Cal. Gov’t Code §§ 12900 et seq., (“FEHA”), (2) racial harassment in 8 violation of public policy, (3) wrongful denial of promotion in violation of FEHA, (4) 9 wrongful denial of promotion in violation of public policy, (5) retaliation in violation of 10 FEHA, (6) retaliation in violation of public policy, (7) racial discrimination in violation of 11 Title VII, (8) retaliation in violation of Title VII, (9) negligent training and supervision, (10) 12 failure to prevent racial harassment, discrimination, and retaliation, (11) intentional 13 infliction of emotional distress, (12) breach of implied and express contract, and (13) 14 breach of implied covenant of good faith and fair dealing. 15 Plaintiff seeks compensatory and punitive damages, attorney’s fees, and costs of 16 suit. 17 IV. ARGUMENTS 18 Defendants seek dismissal of the complaint on the following grounds: (1) all of 19 Plaintiff’s claims are barred for failure to allege compliance with claim presentation 20 requirements and exhaustion of administrative remedies, (2) claims 2, 4, 6, 9, 11, 12, 21 and 13 against CDCR and PVSP are subject to dismissal with prejudice because the 22 complaint fails to demonstrate the existence of a statutory basis for these claims, (3) 23 claims against individual defendant Beard must be dismissed because Plaintiff has 24 failed to allege direct involvement, and Beard is not liable for retaliation or discrimination 25 under the FEHA or Title VII, (4) claims 1 and 2 do not constitute harassment, (5) claim 26 10 is subject to dismissal because Plaintiff has not alleged actionable discrimination and 27 retaliation, (6) claims 12 and 13 are subject to dismissal because the terms and 28 conditions of public employment are fixed by statute; alternatively, Plaintiff has not 8 1 alleged the material terms of the contract, and (7) PVPS is not a proper defendant. 2 Additionally, Defendants move to strike Plaintiff’s prayer for punitive damages. 3 Plaintiff opposes Defendants’ motion. He asserts that he complied with the claim 4 presentation requirements and exhaustion of administrative remedies requirements; that 5 there exists a statutory basis for claims 2, 4, 6, 9, 11, 12, and 13 against CDCR and 6 PVSP; that his claims against Beard are not subject to dismissal; that Defendants’ 7 conduct does constitute harassment; that Plaintiff’s retaliation claims are sufficiently 8 plead; that Plaintiff’s claims against Defendants for failure to prevent discriminatory 9 conduct are not precluded; and that whether PVPS should be included is a matter of 10 fact that should be determined through discovery. Plaintiff also argues that his request 11 for punitive damages should not be stricken. Insofar as the Court finds any error with 12 the claims as asserted, Plaintiff seeks leave to cure by amending the complaint. 13 V. ANALYSIS 14 A. 15 16 Exhaustion of Administrative Remedies 1. The California Government Claims Act The California Government Claims Act, which is also known as the California 17 Tort Claims Act, Cal. Gov't Code §§ 900 et seq. (“CGCA”) requires, as a condition 18 precedent to suit for damages against a public entity, the timely presentation of a written 19 claim and the rejection of the claim in whole or in part. See Mangold v. California Pub. 20 Utilities Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995) (citing Snipes v. City of 21 Bakersfield, 145 Cal. App. 3d 861 (1983)). “Public Entities” include counties, public 22 agencies, and any other public entity or a public employee or any other political 23 subdivision or public corporation of the State. Cal. Gov't Code § 811.2. Timely 24 presentation of claims is not merely a procedural requirement but is an element of the 25 plaintiffs cause of action. Shirk v. Vista Unified Sch. Dist., 42 Cal. 4th 201, 209 (2007). 26 Accordingly, under California law, failure to allege facts either demonstrating or 27 excusing compliance with the CGCA subjects a complaint to dismissal for failure to 28 state a claim. See California v. Superior Ct. (Bodde), 32 Cal. 4th 1234, 1245 (2004). 9 1 Relatedly, California Government Code § 950.2 mandates that “a cause of action 2 against a public employee ... for injury resulting from an act or omission in the scope of 3 his employment as a public employee is barred unless a timely claim has been filed 4 against the employing public entity.” Fowler v. Howell, 42 Cal. App. 4th 1746, 1750 5 (1996). The California Legislature “included in the [Government] Claims Act what 6 amounts to a requirement that ... one who sues a public employee on the basis of acts 7 or omissions in the scope of the defendant's employment [must] have filed a claim 8 against the public-entity employer pursuant to the procedure for claims against public 9 entities.” Briggs v. Lawrence, 230 Cal. App. 3d 605, 612-13 (1991) (citing Cal. Gov’t 10 Code §§ 911.2, 945.4, 950.2, 950.6(a)). In federal court, the failure to allege compliance 11 with the Government Claims statutes with respect to a public employee will subject state 12 law claims to dismissal. Karim Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 627 13 (9th Cir. 1988). 14 In the complaint, Plaintiff asserts that he submitted a “completed” Government 15 Claim Form on November 5, 2014 “in connection with the matters alleged in the 16 complaint,” and the Claims Board formally rejected Plaintiff’s claim in its entirety on 17 December 23, 2014. Compl. ¶ 12.. Plaintiff attaches a copy of the formal rejection to the 18 complaint, but does not attach his Claim Form. (See Compl., Ex. A, ECF No. 1 at 34.) 19 Defendants contend that, without a copy of Plaintiff’s Claim Form, a determination 20 cannot be made that Plaintiff satisfied statutory requirements concerning the 21 presentation of his claim. See Cal. Gov’t Code §§ 910(c)-(e). 22 While this is true, it is unnecessary at the pleading stage. Plaintiff is only required 23 to affirmatively allege compliance with the CGCA. His allegation is presumed true; he 24 does not need to submit proof. See, e.g., Dowell v. Contra Costa County, 928 F. Supp. 25 2d 1137, 1152 (N.D. Cal. 2013) (Plaintiff deemed to have adequately alleged 26 compliance by asserting the date that she filed her claim and the date it was rejected); 27 Nnachi v. City and County of San Francisco, 2015 WL 1743454, at *6 (N.D. Cal. 2015) 28 10 1 (dismissing state tort claim for failure to plead facts regarding “when he submitted such 2 a claim, what he stated in that claim, and when the City denied it”). 3 Defendants also seize on the fact that Plaintiff did not use the word “compliance” 4 in the complaint and instead claimed only that he filed a “completed” Claim Form. This 5 argument is without merit. Compliance can be alleged without using the word 6 “compliance.” See, e.g., Moore v. Thomas, 653 F. Supp. 2d 984, 1007 (N.D. Cal. 2009) 7 (Plaintiff claimed to have “exhausted his state tort claims”); Amarkarian v. City of 8 Glendale, 2008 WL 4916315, at *4 (C.D. Cal. 2008) (Plaintiff “submitted a tort claim”); 9 Shotwell v. Stevenson, 2006 WL 2434213, at *2 (E.D. Cal. 2006) (Plaintiff “placed his 10 claim in the mail”). 11 Accordingly, Defendants’ motion to dismiss claims 2, 4, 6, 9, 11, 12 and 13 for 12 failure to allege compliance with the CGCA is denied. 13 14 2. FEHA Administrative Remedies “In order to bring a civil action under FEHA, the aggrieved person must exhaust 15 the administrative remedies provided by law.” Yurik v. Superior Court, 209 Cal. App. 3d 16 1116, 1121 (1989); accord Palmer v. Regents of Univ. of Cal., 107 Cal. App. 4th 899, 17 904 (2003) (under FEHA, exhaustion of administrative remedies is a “jurisdictional 18 prerequisite to resort to the courts”); Martin v. Lockheed Missiles & Space Co., 29 Cal. 19 App. 4th 1718, 1724 (1994). Exhaustion in this context requires filing a written charge 20 with DFEH within one year of the alleged unlawful employment discrimination, and 21 obtaining notice from DFEH of the right to sue. Romano v. Rockwell Int'l, Inc., 14 22 Cal.4th 479, 492 (1996); Rascon v. Diversified Maint. Sys., 2014 WL 1572554, at *5 23 (E.D. Cal. Apr. 17, 2014). The scope of the written administrative charge defines the 24 permissible scope of the subsequent civil action. Yurik, 209 Cal. App. 3d at 1121-23. 25 Allegations in the civil complaint that fall outside the scope of the administrative charge 26 are barred for failure to exhaust. 27 In the complaint, Plaintiff alleges that he filed a complaint of discrimination with 28 the DFEH, which was designated DFEH Matter Number 470973-144443, and that 11 1 DFEH issued a right-to-sue letter to Plaintiff in connection with these allegations prior to 2 the filing of the complaint. (Compl. ¶ 13, ECF No. 1 at 7.) Defendants move for 3 dismissal because Plaintiff’s allegations are vague, making it impossible to determine 4 when he filed his complaint, against whom it was filed, and what unlawful practices he 5 alleged within it. While Plaintiff’s burden in claiming compliance is minimal at the 6 pleading stage, he must still provide a factual basis for his claim, including when his 7 complaint was filed, a reference to the allegations contained therein, and the date he 8 received a right-to-sue letter. Since Plaintiff has not provided even these bare facts as 9 to the exhaustion of FEHA administrative remedies for claims 1, 3, 5 and 10, 10 Defendants’ motion to dismiss these claims will be granted with leave to amend. 11 12 3. EEOC Administrative Remedies Title 42, United States Code, § 2000e–5 provides that a plaintiff must file an 13 administrative claim with the Equal Employment Opportunity Commission (“EEOC”) 14 against their employer within one hundred and eighty days after the alleged unlawful 15 employment practice occurred. Title VII plaintiffs may file timely charges with the EEOC 16 or an equivalent state agency. B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th 17 Cir. 2002), as amended (Feb. 20, 2002). The DFEH is such an agency. Dornell v. City 18 of San Mateo, 19 F. Supp. 3d 900, 905 (N.D. Cal. 2013). This administrative claim is a 19 prerequisite to the filing of a civil action against that employer under federal law. 42 20 U.S.C. § 2000e–5. Title VII provides that within ninety days after the issuance of a right21 to-sue notice, “a civil action may be brought against the respondent.” 42 U.S.C. § 22 2000e–5(f)(1). 23 The complaint does not allege that Plaintiff exhausted his administrative 24 remedies as to his Title VII claims. There is no allegation, for example, that he filed a 25 complaint with the EEOC or that he received a right-to-sue letter, and Plaintiff admits 26 that his complaint does not assert compliance with regard to his Title VII administrative 27 remedies. Opp’n at 6. Plaintiff asserts that he can cure the deficiency. Accordingly, 28 Defendants’ motion to dismiss claims 7 and 8 will be granted with leave to amend. 12 1 B. Statutory Basis of Claims Against CDCR and PVSP 2 Under the CGCA, a public entity is not liable for its own conduct or omission to 3 the same extent as a private person or entity. Zelig v. County of Los Angeles, 27 Cal. 4 4th 1112, 1128 (2002). Section 815(a) provides that a “public entity is not liable for an 5 injury, whether such injury arises out of an act or omission of the public entity or a public 6 employee or any other person,” “[e]xcept as otherwise provided by statute.” 7 “The general rule in California is sovereign immunity. Public entities have liability 8 for injury only when that liability has been assumed by statute.” Davis v. City of 9 Pasadena, 42 Cal. App. 4th 701, 704 (1996). Section 815 “abolishes all common law or 10 judicially declared forms of liability for public entities, except for such liability as may be 11 required by the state or federal constitution, e.g., inverse condemnation.... [T]he 12 practical effect of this section is to eliminate any common law governmental liability for 13 damages arising out of torts.” Cal. Gov’t Code, § 815 Leg. Comm. Comments—Senate. 14 Certain statutes provide expressly for public entity liability in circumstances that 15 are somewhat parallel to the potential liability of private individuals and entities, but the 16 CGCA’s intent “is not to expand the rights of plaintiffs in suits against governmental 17 entities, but to confine potential governmental liability to rigidly delineated 18 circumstances.” Brown v. Poway Unified School Dist., 4 Cal. 4th 820, 829 (1993); see 19 Becerra v. County of Santa Cruz, 68 Cal. App. 4th 1450, 1457 (1998) (“in absence of 20 some constitutional requirement, public entities may be liable only if a statute declares 21 them to be liable”); Michael J. v. Los Angeles County Dept. of Adoptions, 201 Cal. App. 22 3d 859, 866 (1988) (“Under the Act, governmental tort liability must be based on statute; 23 all common law or judicially declared forms of tort liability, except as may be required by 24 state or federal Constitution, were abolished.”) 25 In Cochran v. Herzog Engraving Co., 155 Cal. App. 3d 405, 409 (1984), the 26 California Supreme Court explained the absence of a public entity's common law 27 liability: 28 ... under the statutory scheme in California, all government 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 tort liability must be based on statute.... Government Code section 815, enacted in 1963, abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable. Moreover, under subdivision (b) of section 815, the immunity provisions of the California Tort Claims Act will generally prevail over any liabilities established by statute.... In short, sovereign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute. A court first determines whether a statute “imposes direct liability” on a defendant public entity. Munoz v. City of Union City, 120 Cal. App. 4th 1077, 1111 (2004). “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of [California] Civil Code section 1714.” Eastburn v. Regional Fire Protection Authority, 31 Cal.4th 1175, 1183 (2003). “In the absence of a constitutional requirement, public entities may be held liable only if a statute (not including a charter provision, ordinance or regulation) is found declaring them to be liable. ... [T]he practical effect of this section is to eliminate any common law governmental liability for damages arising out of torts.” Thompson v. City of Lake Elsinore, 18 Cal. App. 4th 49, 62 (1993). In addition, although “public entities always act through individuals, that does not convert a claim for direct negligence into one based on vicarious liability.” Munoz, 120 Cal. App. 4th at 1113. Defendants argue that Plaintiff has not identified a statutory basis for liability against CDCR and PVSP in his second claim for harassment; fourth claim for denial of promotion; sixth claim for retaliation; ninth claim for negligent training and supervision; eleventh claim for intentional infliction of emotional distress; twelfth claim for breach of contract; and thirteenth claim for breach of implied covenant of good faith and fair dealing. These claims are asserted as to all of the Defendants, except for claim 9, which is asserted only as to the moving Defendants. In his opposition, Plaintiff first argues that Defendants may not apply state law to an action in federal court. This argument is flawed. Where, as here, “a federal court [is] 28 14 1 exercising supplemental jurisdiction over state law claims[, it] is bound to apply the law 2 of the forum state to the same extent as if it were exercising its diversity jurisdiction.” 3 Bass v. First Pac. Networks, 219 F.3d 1052, 1055 n.2 (9th Cir. 2000). Thus, the Court is 4 bound by the limitations imposed by California Government Code § 815. 5 Plaintiff next argues that the statutory bases of his claims are listed in the 6 complaint – to wit, “This suit is brought to secure the protection, and to redress the 7 deprivation, of rights secured by the United States Constitution, Section 8 of Article 1 of 8 the California Constitution, Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. 9 §§ 2000e, et seq., as amended […], and California's Fair Employment and Housing Act, 10 codified at Cal. Gov. Code §§ 12900, et seq. […].” Compl. ¶ 1. None of these 11 provisions, however, provide the necessary statutory basis to assert the following state 12 law claims against CDCR and PVSP directly: harassment; denial of promotion; 13 retaliation; negligence, discrimination and retaliation; intentional infliction of emotional 14 distress; breach of contract; and breach of implied covenant of good faith and fair 15 dealing. Plaintiff also asserts that, with respect to claims 2, 4, and 6, the Complaint 16 expressly cites California Government Code §§ 12940 et seq. But to the extent Plaintiff 17 brings suit pursuant to FEHA on claims 2, 4, and 6, these claims are subject to 18 dismissal as duplicative of claims 1, 3, and 5, respectively. 19 As revealed here, the upshot of California's statutory scheme of public sector 20 liability is that public entities are not directly liable except to the extent specifically 21 provided by statute. Since Plaintiff has failed to cite any statute, nor is the Court aware 22 of one, which declares CDCR and/or PVSP liable for any of the common law causes of 23 action listed in the complaint, Defendants are correct that they are not directly liable 24 pursuant to California Government Code § 815. 25 However, the very next section, California Government Code § 815.2, provides 26 that an entity may be liable under a theory of respondeat superior for the common law 27 torts committed by an employee to the extent the employee is liable. Martin v. County of 28 San Diego, 650 F. Supp. 2d 1094, 1109 (S.D. Cal. 2009). “Thus, under California law, 15 1 the [entity's] immunity from suit depends upon whether the individual [employees] are 2 immune.” Id. Defendants do not address, let alone analyze, the application of Section 3 815.2 to this case, and the Court declines to conduct research on the immunities 4 available under that section for the multiple state law causes of action that are also 5 asserted against Defendant Keith individually. The public entities may be liable under a 6 respondeat superior theory of vicarious liability. On the other hand, they may not. 7 Absent any analysis by the Defendants of the immunities available under that section, 8 the Court will grant Defendants’ motion only as to claim 9 (negligent training and 9 supervision), which is the only claim at issue here that is not also asserted against 10 Defendant Keith individually. C. 11 Defendant Beard 1. 12 Individual Liability Under California Government Code § 820.8 Under California Government Code section 820.8, a public employee is immune 13 14 from liability for his discretionary acts when a plaintiff fails to allege the public 15 employee's personal involvement.6 See Milton v. Nelson, 527 F.2d 1158, 1159 (9th Cir. 16 1975) (stating that under section 820.8, “supervisory personnel whose personal 17 involvement is not alleged may not be responsible for the acts of their subordinates 18 under California law”); see also Weaver By & Through Weaver v. State, 63 Cal. App. 19 4th 188 (1998) (stating that a Commissioner of CHP officers was not liable because he 20 did not train officers and was not personally involved in the incident in any way). But a 21 public employee can be liable for injury proximately caused by his or her own 22 negligence. Cal. Gov't Code § 820.8. Defendants move for the dismissal of Defendant Beard with prejudice because 23 24 there are no charging allegations as to him individually and because he cannot be held 25 liable for the alleged wrongs of other public employees. This argument is innapposite 26 6 Section 820.8 provides, in full, “Except as otherwise provided by statute, a public employee is not liable 27 for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by his own negligent or wrongful act or omission.” 28 Cal. Gov't Code § 820.8. 16 1 since Beard is named in his official capacity only, and Section 820.8’s restrictions on 2 individual liability do not apply. 3 4 2. Individual Liability Under Title VII and FEHA Title VII outlaws discrimination in employment in any business on the basis of 5 race, color, religion, sex or national origin. It also prohibits retaliation against employees 6 who oppose such unlawful discrimination. The Ninth Circuit has made it clear that under 7 Title VII, there is no personal liability for individual employees, including supervisors. 8 The Court specifically stated, “[t]here is no reason to stretch the liability of individual 9 employees beyond the respondeat superior principle intended by Congress.” Miller v. 10 Maxwell’s Int’l Inc., 991 F.2d 583, 587-88 (9th Cir. 1993). See also Padway v. Palches, 11 665 F.2d 956, 968 (9th Cir. 1982). Similar rules apply for claims brought pursuant to 12 FEHA. Reno v. Baird, 18 Cal.4th 640, 663 (1998); Jones v. Lodge at Torrey Pines 13 Partnership, 42 Cal.4th 1158 (2008). 14 Defendants also move to dismiss claims against Defendant Beard in his 15 individual capacity for retaliation and discrimination under either Title VII or FEHA. As 16 has already been established, though, this Defendant is sued in his official capacity 17 only. Thus, Defendants’ arguments are moot. 18 19 3. Beard as a “Redundant Defendant” Though Defendants do not raise this point, the Court will dismiss Defendant 20 Beard as a redundant defendant. Beard, who is sued here in his official capacity only, is 21 being sued as an agent of CDCR. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) 22 (“Official-Capacity suits ... generally represent only another way of pleading an action 23 against an entity of which an officer is an agent.”). But because the CDCR is also a 24 defendant in this case, Beard is an “improper target” for Plaintiff's claims. The Ninth 25 Circuit has held that when both an official and a government entity are named, and the 26 officer is named only in an official capacity, the court may dismiss the suit against the 27 official as a redundant defendant. Ctr. For Bioethical Reform, Inc. v. Los Angeles 28 County Sheriff Dept., 533 F.3d 780, 799 (9th Cir. 2007). 17 1 However, official capacity claims are not redundant when they are necessary to 2 foreclose an assertion of Eleventh Amendment immunity on behalf of the government 3 entity. See Fireman's Fund Ins. Co. v. City of Lodi, Cal., 302 F.3d 928, 957 (9th Cir. 4 2002). Moreover, under Ex Parte Young, 209 U.S. 123 (1908), the Eleventh 5 Amendment does not bar actions against state officers in their official capacities when 6 plaintiff is seeking only prospective declaratory or injunctive relief. Los Angeles County 7 Bar Ass'n v. Eu, 979 F.2d 697, 704 (9th Cir. 2002). 8 Here, since there is no assertion of Eleventh Amendment immunity and since 9 Plaintiff seeks only damages, Defendant Beard will be dismissed from this action with 10 prejudice. 11 12 13 D. Harassment 1. Harassment and “Managerial Duties” Under the FEHA, harassment and discrimination fall under separate statutory 14 prohibitions. See Cal. Gov. Code §§ 12940(a), (j)(1). To give effect to this distinction, 15 California courts have distinguished harassing acts from discriminatory acts. Reno v. 16 Baird, 18 Cal. 4th 640, 645-47 (1998). “[H]arassment focuses on situations in which the 17 social environment of the workplace becomes intolerable because the harassment 18 (whether verbal, physical, or visual) communicates an offensive message to the 19 harassed employee.” Roby v. McKesson Corp., 47 Cal. 4th 686, 706 (2009). Harassing 20 acts constitute “conduct outside the scope of necessary job performance ... presumably 21 engaged in for personal gratification, because of meanness or bigotry, or for other 22 personal motives.” Reno, 18 Cal. 4th at 646. “Harassment is not conduct of a type 23 necessary for management of the employer's business or performance of the 24 supervisory employee's job.” Id. “[C]ommon[ ] necessary personnel management 25 actions such as hiring and firing ... promotion or demotion, performance evaluations, the 26 provision of support ... do not come within the meaning of harassment.” Id. at 646-47 27 (quoting Janken v. GM Hughes Elec., 46 Cal. App. 4th 55, 63-65 (1996)). Discriminatory 28 acts in contrast, “arise out of the performance of necessary personnel management 18 1 duties.” Id. at 647 (citation omitted). Conduct such as “hiring and firing, job or project 2 assignments, office or work station assignments, promotion or demotion, performance 3 evaluations ... may retrospectively be found discriminatory if based on improper 4 motives[.]” Id. (citation omitted). 5 Despite this distinction, the California Supreme Court has held that “official 6 employment actions” can be considered as part of the conduct supporting a harassment 7 claim when the actions convey an offensive and hostile message to the employee. 8 Roby, 47 Cal. 4th at 708. Roby confirms the holding in Reno and Janken that necessary 9 personnel management actions based on discriminatory motives are typically remedied 10 by FEHA claims for discrimination rather than harassment. Id. at 707. However, Roby 11 recognized that “although discrimination and harassment are separate wrongs, they are 12 sometimes closely interrelated, and even overlapping, particularly with regard to proof.” 13 Id. Thus, “some official employment actions done in furtherance of a supervisor's 14 managerial role can also have a secondary effect of communicating a hostile message. 15 This occurs when the actions establish a widespread pattern of bias.” Id. at 709 (citation 16 omitted) (“[S]ome actions that Schoener took with respect to Roby are best 17 characterized as official employment actions rather than hostile social interactions in the 18 workplace, but they may have contributed to the hostile message that Schoener was 19 expressing to Roby in other, more explicit ways.”). This secondary effect can also occur 20 when the actions are taken in an “unnecessarily demeaning manner.” Id. at 709. 21 Additionally, if the jury determines that the supervisory employment actions were 22 motivated by discrimination, those actions can be used to establish “discriminatory 23 animus on the part of the manager responsible for the discrimination, thereby permitting 24 the inference that rude comments or behavior by that same manager was similarly 25 motivated by discriminatory animus.” Id. at 709. As such, “discrimination and 26 harassment claims can overlap as an evidentiary matter.” Id. While “FEHA treats 27 28 19 1 discrimination and harassment as distinct categories, ... nothing ... requires that the 2 evidence in a case be dedicated to one or the other claim but never to both.” Id. at 710.7 Defendants move for dismissal of Plaintiff’s first and second claims for 3 4 harassment because the alleged harassment falls within the scope of Defendants’ 5 business and management duties. The import of Reno and Roby is that Defendants are 6 correct that “managerial actions” typically form the basis of a discrimination claim under 7 FEHA, not a harassment claim. See Reno, 18 Cal. 4th at 646-47. However, Roby 8 makes clear that official employment actions may be considered when evaluating a 9 harassment claim if the conduct contributes to communicating the hostile and harassing 10 message of the supervisor. Roby, 47 Cal. 4th at 708-09 (examples of such conduct 11 included “shunning of Roby during staff meetings, Schoener's belittling of Roby's job, 12 and Schoener's reprimands of Roby in front of Roby's coworkers”). In the complaint, Plaintiff argues that Keith’s supervisory actions with respect to 13 14 Plaintiff had the secondary effect of communicating his hostile message that white 15 employees are not valued. See also Opp'n at 9 (“The conduct alleged in the integral 16 paragraphs of Claim 1 [and Claim 2] included ... making and soliciting false accusations, 17 surveillance, and essentially holding Plaintiff against his will and denying him 18 representation or breaks to recover from illness.”). Construing the complaint liberally, 19 the Court concludes that Plaintiff’s allegations at least colorably allege that Keith, by 20 excessively monitoring, micromanaging, and criticizing Plaintiff but not his black co21 workers, engaged in discriminatory actions based on his race in order to send a 22 message to the work force that white employees were not valued. Accordingly, the 23 24 25 26 27 28 7 In Roby, the plaintiff's supervisor made negative comments to plaintiff about her body odor, ostracized her in the office, expressed disapproval when she took rest breaks, and overlooked her when handing out small gifts to other employees. He also disciplined the plaintiff over repeated absences, which were due to a medical condition, and ultimately terminated her employment. Id. at 695. A jury found in plaintiff's favor on her FEHA harassment claim. Id. at 692. The Court of Appeal reversed, reasoning that personnel decisions cannot constitute harassment. Id. at 700. The court thus disregarded every act that could be characterized as a personnel decision. Id. The California Supreme Court reversed, holding that the Court of Appeal had improperly excluded discriminatory personnel decisions in examining plaintiff's harassment claim. Id. at 709. 20 1 Court rejects Defendants' argument that Keith’s actions constituted “business and 2 management duties” that thus have no relevance to Plaintiff’s harassment claim. 2. 3 4 Sufficiently “Severe or Pervasive” Actions Alternatively, Defendants argue that Plaintiff fails to allege specific facts showing 5 racially-related conduct sufficiently severe or pervasive to constitute a hostile work 6 environment. 7 FEHA makes harassment illegal and requires an employer to take immediate and 8 appropriate action against it. Cal. Gov't Code § 12940(j)(1). Since the same legal 9 principles apply to claims under Title VII and FEHA, California courts apply federal 10 decisions interpreting Title VII to analyze FEHA racial harassment claims. See Metover 11 v. Chassman, 504 F.3d 919, 941 (9th Cir. 2007); Jenkins v. MCI Telecomm. Corp., 973 12 F. Supp. 1133, n.5 (C.D. Cal. 1997) (“Because the statutory provisions of Title VII and 13 the FEHA possess identical objectives and public policy considerations, California 14 courts refer to federal decisions when interpreting analogous provisions of the FEHA”); 15 see also Guz v. Bechtel Nat'l, Inc., 24 Cal. 4th 317, 354 (2000) (because of similarity 16 between state and federal employment discrimination laws, California courts look to 17 pertinent federal precedent when applying state statutes). 18 A plaintiff may prove racial harassment by demonstrating that an employer has 19 created a hostile or abusive work environment. Meritor Savings Bank v. Vinson, 477 20 U.S. 57, 65-67 (1986). To prevail on a hostile workplace claim premised on race, a 21 plaintiff must show: (1) that he or she was subjected to verbal or physical conduct of a 22 racial nature; (2) that the conduct was unwelcome; and (3) that the conduct was 23 sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and 24 create an abusive work environment. Vasquez v. County of Los Angeles, 349 F.3d 634, 25 642 (9th Cir. 2003); Fisher v. San Pedro Peninsula Hospital, 214 Cal. App. 3d 590, 608 26 (1989) (adopting same standard for harassment claims under FEHA). A plaintiff must 27 show that the work environment was abusive from both a subjective and an objective 28 point of view. Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995). Whether the 21 1 workplace is objectively hostile must be determined from the perspective of a 2 reasonable person with the same fundamental characteristics as the plaintiff. Id. In 3 determining whether a work environment is hostile or abusive, the court must consider 4 all of the circumstances. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). This may 5 include “the frequency of the discriminatory conduct; its severity; whether it is physically 6 threatening or humiliating, or a mere offensive utterance; and whether it unreasonably 7 interferes with an employee's work performance.” Id. Although the “mere utterance of an 8 ... epithet which engenders offensive feelings in an employee” does not alter the 9 employee's terms and conditions of employment sufficiently to create a hostile work 10 environment, “when the workplace is permeated with ‘discriminatory intimidation, 11 ridicule, and insult,’ ” such an environment exists. Meritor, 477 U.S. at 65, 67. Neither 12 “simple teasing,” “offhand comments,” nor “isolated incidents” alone constitute a hostile 13 work environment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Further, 14 “even if a hostile working environment exists, an employer is only liable for failing to 15 remedy harassment of which it knows or should know.” Fuller, 47 F.3d at 1527. 16 In the complaint, Plaintiff does not identify any instance in which Keith made a 17 racially-related comment to Plaintiff directly. Instead, Plaintiff alleges that Keith (1) 18 frequently insulted and demeaned Plaintiff in front of others, including saying that 19 Plaintiff “dressed like a large woman” and that he would help Plaintiff “find a lab coat 20 that would fit” him; (2) accused Plaintiff of using racially offensive language or slurs 21 against Keith and other African-American employees in the Nursing Unit, including the 22 “N” word”; (3) encouraged or directed African-American and other employees to make 23 false allegations against Plaintiff and other white employees at PVSP; (4) violated 24 CDCR policy by forwarding the August 2012 Complaint for disciplinary action without 25 first investigating the allegations internally; (5) reassigned Plaintiff to A Yard; (6) failed to 26 promote Plaintiff; (7) denied Plaintiff’s schedule and leave requests; (8) directed 27 Plaintiff’s supervisor to check up on him; (9) told Plaintiff that “there would never be a 28 place” for certain employees “after what they said,” allegedly referring to the August 22 1 2012 Complaint; (10) said during a meeting from which Plaintiff was excluded that 2 “blacks better not let the sun set on their back”; (11) incited Ms. Lorenz to file an EEO 3 Complaint; and (12) held a closed-door meeting with Plaintiff where Keith was 4 intimidating, accusatory, and threatening. These actions spanned the course of three 5 years.8 As one court in the Northern District of California has described, “[s]uccessful 6 7 claims of hostile work environment include harsh and, generally, repetitive verbal 8 abuse.” Lockett v. Bayer Healthcare, 2008 WL 624847, at *9 (N.D. Cal. Mar. 3, 2008) 9 (citing Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir. 2002) (finding that a Korean 10 plaintiff suffered national origin harassment where the employer verbally and physically 11 abused the plaintiff because of his race); Nichols v. Azteca Rest. Enters., 256 F.3d 864, 12 872-73 (9th Cir. 2001) (finding a hostile work environment where a male employee was 13 called “faggot” and “fucking female whore” by co-workers and supervisors at least once 14 a week and often several times per day); Anderson v. Reno, 190 F.3d 930 (9th Cir. 15 1999) (finding a hostile work environment where a supervisor repeatedly referred to the 16 employee as “office sex goddess,” “sexy,” and “the good little girl” and where he 17 humiliated the employee in public by drawing a pair of breasts on an easel while the 18 employee was making a presentation and then told the assembled group that “this is 19 your training bra session,” and where the employee received vulgar notes and was 20 patted on the buttocks and told she was “putting on weight down there”); Draper v. 21 Coeur Rochester, 147 F.3d 1104, 1109 (9th Cir. 1998) (finding hostile work environment 22 where plaintiff's supervisor made repeated sexual remarks to her, told her of his sexual 23 fantasies and desire to have sex with her, commented on her physical characteristics, 24 and asked over a loudspeaker if she needed help changing her clothes). Here, Keith’s actions fall short of the conduct described in numerous Ninth Circuit 25 26 opinions where no hostile work environment was found. See Manatt v. Bank of Am., 339 27 28 8 Plaintiff asserts that Keith’s actions spanned only two years. Opp’n at 11. In his complaint, though, Plaintiff claims that Keith’s improper conduct began shortly after Keith was hired in May 2011, Compl. ¶ 18, and continued through the June 2014 closed-door meeting. 23 1 F.3d 792 (9th Cir. 2003); Vasquez, 349 F.3d at 642-44 (finding no hostile environment 2 discrimination where the employee was told that he had “a typical Hispanic macho 3 attitude,” that he should work in the field because “Hispanics do good in the field” and 4 where he was yelled at in front of others); Kortan v. Cal. Youth Auth., 217 F.3d 1104, 5 1111 (9th Cir. 2000) (finding no hostile work environment where the supervisor referred 6 to females as “castrating bitches,” “Madonnas,” or “Regina” in front of plaintiff on several 7 occasions and directly called plaintiff “Medea”); Sanchez v. City of Santa Ana, 936 F.2d 8 1027, 1031, 1036-37 (9th Cir. 1990) (affirming the district court's decision that no 9 reasonable jury could have found a hostile work environment despite allegations that 10 the employer posted a racially offensive cartoon, made racially offensive slurs, targeted 11 Latinos when enforcing rules, provided unsafe vehicles to Latinos, did not provide 12 adequate police backup to Latino officers, and kept illegal personnel files on plaintiffs 13 because they were Latino)). For instance, in Manatt v. Bank of America, the plaintiff, 14 who was a Chinese American, overheard a number of conversations in which fellow 15 employees used the phrase “China man” and referred to “communists” and “rickshaws.” 16 339 F.3d at 795. She was mocked by her coworkers, who “pulled their eyes back with 17 their fingers in an attempt to imitate or mock the appearance of Asians.” Id. She also 18 was told that her pronunciation of the word “Lima” was “ridiculous,” was asked to repeat 19 the pronunciation for others to hear, and had her co-workers explain her pronunciation 20 by saying “that's because she's a China woman.” Id. at 795-96. While the Ninth Circuit 21 said it was “troubled” by the comments and “racially offensive” acts of the plaintiff's 22 coworkers, given that the incidents occurred only a few times over two and a half years 23 and were directed at her only rarely, it found that the actions of the plaintiff's coworkers 24 generally fell into the “simple teasing” and offhand comments” category of non25 actionable discrimination because it was not severe or pervasive enough to alter the 26 conditions of her employment. Id. at 798-99. Accordingly, the Ninth Circuit upheld the 27 district court's grant of summary judgment in favor of the defendant. Id. at 795. 28 24 1 Construing the complaint liberally, the Court agrees with Defendants that the 2 allegations simply do not rise to the level required under the applicable case law. They 3 were less severe than those described in Manatt, and there is no suggestion that, other 4 than the single closed-door meeting in June 2014, Keith’s conduct interfered with 5 Plaintiff’s work performance. For this reason, Defendants’ motion to dismiss will be 6 granted on Plaintiff’s harassment claim. Leave to amend will, however, be granted. 7 E. Retaliation 8 “To succeed on a retaliation claim, [a plaintiff] must first establish a prima facie 9 case [by] demonstrat[ing] (1) that she was engaging in a protected activity, (2) that she 10 suffered an adverse employment decision, and (3) that there was a causal link between 11 her activity and the employment decision.” Trent v. Valley Elec. Ass'n, Inc., 41 F.3d 524, 12 526 (9th Cir. 1994) (citing EEOC v. Hacienda Hotel, 881 F.2d 1504, 1513-14 (9th Cir. 13 1989)). The Ninth Circuit has long held that “a plaintiff does not need to prove that the 14 employment practice at issue was in fact unlawful under Title VII,” but instead “must 15 only show that she had a 'reasonable belief that the employment practice she protested 16 was prohibited under Title VII.” Id. Filing a complaint with an internal human resources 17 department “that a supervisor has violated Title VII may constitute protected activity for 18 which the employer cannot lawfully retaliate.” EEOC v. Go Daddy Software, Inc., 581 19 F.3d 951, 963 (9th Cir. 2009). As for the causation element, “Title VII retaliation claims 20 require proof that the desire to retaliate was the but-for cause of the challenged 21 employment action.” Univ. of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 22 2517, 2528 (2013). The standard for a retaliation claim under FEHA is substantially 23 similar. See Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042-43 (2005) (setting 24 forth the same three-element test and holding that an employee's reasonable belief that 25 he or she engaged in protected activity is sufficient). 26 Defendants argue that Plaintiff fails to state a retaliation claim because the 27 complained-of conduct occurred prior to his engagement in any protected activity. That 28 is, Plaintiff’s October 2012 Complaint followed Keith’s forwarding of the August 2012 25 1 Complaint without investigation, Plaintiff’s reassignment to the A Yard, Keith’s failure to 2 promote Plaintiff, and Keith’s denial of Plaintiff’s schedule and leave requests. 3 Plaintiff rightly counters that, while some of Keith’s conduct preceded the October 4 2012 EEO Complaint, much occurred after, including the heightened surveillance, 5 Keith’s continued (though unspecified) insulting and intimidating conduct toward 6 Plaintiff, the incitement of Ms. Lorenz’s EEO complaint, and the closed-door June 2014 7 meeting where Plaintiff was essentially terminated from his position. However, the 8 timing of these allegedly retaliatory acts requires closer analysis. Other than the 9 heightened surveillance, which Plaintiff alleges occurred “shortly after” the October 2012 10 EEO Complaint, Compl. ¶ 32, the other conduct occurred over one and a half years 11 years later. Compl. ¶¶ 37-44. 12 In Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064-65 (9th Cir 2002), the 13 Ninth Circuit stated the following about proving but-for causation in Title VII retaliation 14 cases: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 We have recognized previously that, in some cases, causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000) (noting that causation can be inferred from timing alone); see also Miller v. Fairchild Indus., 885 F.2d 498, 505 (9th Cir. 1989) ( prima facie case of causation was established when discharges occurred forty-two and fifty-nine days after EEOC hearings); Yartzoff, 809 F.2d at 1376 (sufficient evidence existed where adverse actions occurred less than three months after complaint filed, two weeks after charge first investigated, and less than two months after investigation ended). But timing alone will not show causation in all cases; rather, “in order to support an inference of retaliatory motive, the termination must have occurred ‘fairly soon after the employee's protected expression.’” Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1009-10 (7th Cir. 2000). A nearly 18–month lapse between protected activity and an adverse employment action is simply too long, by itself, to give rise to an inference of causation. See id. (finding that a one-year interval between the protected expression and the employee's termination, standing alone, is too long to raise an inference of discrimination); see also Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 398-99 (7th Cir. 1999) (four months too long); Adusumilli v. City of Chicago, 164 F.3d 353, 363 (7th Cir. 1998) (eight months too long), cert. 26 denied, 528 U.S. 988 (1999); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 511 (7th Cir. 1998) (five months too long); Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (four months). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Here, although Plaintiff alleges that the increased surveillance occurred “shortly after” the October 2012 EEO Complaint, the complaint lacks any facts concerning the actual timing of the incident. As for the other conduct, which occurred over eighteen months after Plaintiff’s protected activity, Plaintiff conclusory allegation that it was in retaliation for Plaintiff’s October 2012 EEO Complaint is insufficient to allege but-for causation. Accordingly, Defendants’ motion to dismiss will be granted with leave to amend. F. Failure to Prevent Harassment, Discrimination and Retaliation Plaintiff’s tenth claim is brought against the moving Defendants for failure to prevent racial harassment, discrimination and retaliation. California Government Code § 12940 provides that “[i]t shall be an unlawful employment practice, unless based upon a bona fide occupational qualification ... [f]or an employer ... to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Cal. Gov't Code § 12940(k). The California Supreme Court has stated that FEHA “makes it a separate unlawful employment practice” for an employer to violate § 12940(k). State Dept. of Health Services v. Superior Court, 31 Cal. 4th 1026 (Cal. 2003). However, it is also clear that there can be no violation of 12940(k) absent a finding of actual discrimination or harassment. See, e.g., Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir. 2003) (holding the district court did not abuse its discretion in requiring a finding of actual discrimination before a violation of section 12940(k) becomes actionable) (citing Trujillo v. North County Transit Dist., 63 Cal. App. 4th 280, 283-84 (1998)). “[T]here's no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn't happen.” Trujillo, 63 Cal. App. 4th at 289. 26 27 28 27 1 In light of the foregoing conclusions that Plaintiff fails to state either a harassment 2 or discrimination claim, his tenth claim for failure to prevent such conduct necessarily 3 fails. It will therefore be dismissed with leave to amend. 4 G. and Fair Dealing 5 6 Breach of Contract and Breach of Implied Covenant of Good Faith No contractual right is vested in a public employee because he occupies a civil 7 service position and because the terms and conditions of such employment are fixed by 8 statute and not by contract. Miller v. State of California, 18 Cal. 3d 808, 814 (1977); 9 Hanford Exec. Mgmt. Emp. Ass'n v. City of Hanford, 2011 WL 5825691, at *8 (E.D. Cal. 10 2011) (rights of employees governed by civil service system derive from statute, not 11 from contract). A claim for breach of an implied covenant “depends upon the existence 12 of a valid contract.” Stanley v. Univ. of Southern California, 176 F.3d 1069, 1078 (9th 13 Cir. 1999). 14 Plaintiff’s twelfth and thirteenth causes of action are for breach of contract and 15 breach of the implied covenant of good faith and fair dealing. Defendants move for 16 dismissal of these claims on the ground that the terms of public employment are 17 governed entirely by statute. Since Plaintiff fails to substantively oppose this argument, 18 see Opp’n at 13, and since he fails to identify a valid contract in the complaint, 19 Defendants’ motion to dismiss will be granted. In his opposition, Plaintiff asserts that he 20 can allege facts establishing a violation of the corresponding statutes that were 21 breached. Accordingly, dismissal is with leave to amend. 22 H. CDCR and PVPS as Separate Entities 23 Plaintiff names CDCR and PVSP as defendants, and asserts that PVSP is “a 24 correctional facility that operates under the CDCR.” Compl. ¶ 5. In so doing, he submits 25 that CDCR and PVSP are separate entities for the purposes of this action. 26 Defendants move for dismissal of PVSP, arguing that there is no distinction 27 between it and CDCR. Defendants’ conclusory argument is based on reference to 28 California Government Code § 12838, which creates the CDCR, and to California Penal 28 1 Code sections 5000 and 5003, which establish the CDCR's jurisdiction over certain 2 prisons. PVSP, however, is not one of the institutions enumerated in Section 5003. On 3 this record, the Court cannot conclude that these two entities are identical for purposes 4 of this action. Accordingly, Defendants’ motion to dismiss is denied. 5 I. Punitive Damages 6 Lastly, Defendants move to strike Plaintiff’s request for punitive damages as 7 improper against a public entity. 8 A motion to strike must involve (1) an insufficient defense, (2) a redundant 9 matter, (3) an immaterial matter, (4) an impertinent matter, or (5) a scandalous matter. 10 Fed. R. Civ. P. 12(f); Yursik v. Inland Crop Dusters Inc., 2011 WL 5592888, at *3 (E.D. 11 Cal. Nov. 16, 2011) (citing Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973-74 12 (9th Cir. 2010)). A defendant may not move to strike factual allegations on the grounds 13 that the allegations are insufficient. Kelley v. Corrections Corp. of America, 750 F. Supp. 14 2d 1132, 1146 (E.D. Cal. 2010) (“The proper medium for challenging the sufficiency of 15 factual allegations in a complaint is through Rule 12(b)(6) not Rule 12(f).”) (citing 16 Consumer Solutions REO, LLC v. Hillery, 658 F. Supp. 2d 1002, 1020 (N.D. Cal. 17 2009)). “[W]here a motion is in substance a Rule 12(b)(6) motion, but is incorrectly 18 denominated as a Rule 12(f) motion, a court may convert the improperly designated 19 12(f) motion into a Rule 12(b)(6) motion.” Id. (citing Consumer Solutions, 658 F. Supp. 20 2d at 1021). Defendants’ motion to strike is in substance a Rule 12(b)(6) motion 21 because it involves the sufficiency of Plaintiff's claim for punitive damages. Accordingly, 22 the Court converts Defendants’ motion to strike to a motion to dismiss. 23 Punitive damages may be awarded in a private enforcement action under the 24 FEHA, but they are not available against public entities. See State Personnel Bd. v. Fair 25 Employment & Housing Comm., 39 Cal. 3d 422, 434 (1985); Runyon v. Superior Ct., 26 187 Cal. App. 3d 878, 881(1986). The Court therefore grants Defendants' motion to 27 dismiss Plaintiff's request for punitive damages as against them. 28 VI. CONCLUSION AND ORDER 29 1 Based on the foregoing, IT IS HEREBY ORDERED that Defendants’ motion to 2 dismiss (ECF No. 4) is granted in part as set forth supra. Plaintiff shall file an amended 3 complaint within fourteen (14) days from the date of this order. 4 5 6 7 IT IS SO ORDERED. Dated: September 22, 2015 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30

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