Pinder v. Employment Development Department, et al

Filing 19

ORDER signed by Judge Lawrence K. Karlton on 8/19/2013 ORDERING that Defendants' 9 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. (Zignago, K.)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10 FRANK PINDER,
NO. CIV. S-13-817 LKK/AC
11
12

Plaintiff,
v.

13 EMPLOYMENT DEVELOPMENT
DEPARTMENT; RICHARD
14 ROGERS; DAVID DERKS and
DOES 1-50, inclusive,
15
Defendants.
16
17

O R D E R

/

Plaintiff Frank Pinder brings this action for harassment,

18 discrimination, and retaliation against the California Employment
19 Development Department (EDD) and his former supervisors in that
20 California agency.
21

Pending before the court is Defendants’ motion to dismiss

22 Plaintiff’s First Amended Complaint.

Defs’ Mot., ECF No. 9.

For

23 the reasons provided herein, the court GRANTS, in part, and DENIES,
24 in part, Defendants’ motion.
25 ////
26 ////
1

1

I. BACKGROUND

2 A. Factual Background1
3

In January 2010, Plaintiff Frank Pinder was hired by the

4 California Employment Development Department (“EDD”) as a System
5 Software

Specialist

III

Supervisor.

He

was

responsible

for

6 supervising approximately 21 employees.
7

The complaint alleges that he is a soft-spoken black man who

8 suffers from mild-to-moderate stuttering, which escalates to more
9 severe stuttering during times of stress and anxiety. He is mostly
10 able to control his stuttering, except during the times when he
11 feels harassed or under duress.
12

During most of his instant employment, Plaintiff’s immediate

13 supervisors included Defendants David Derks and Richard Rogers.
14

Defendant Derks began his employment with EDD as Plaintiff’s

15 supervisor in February 2010.
16 Plaintiff

in

a

rude

and

Defendant Derks would speak to

abusive

manner,

exclude

him

from

17 participation in team meetings, and otherwise frustrate Plaintiff’s
18 ability to perform his essential duties.
19

Defendant Derks also initiated one-on-one weekly meetings with

20 Plaintiff.

These meetings occurred more often with Plaintiff than

21 with the other supervisors working under Defendant Derks.

During

22 these meetings, Defendant Derks was verbally abusive and hostile to
23
24
25
26

1

These facts are taken from the allegations in the
Plaintiff’s First Amended Complaint, ECF No. 8, unless otherwise
specified. The allegations are taken as true for purposes of this
motion only. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct.
2197, 167 L.Ed.2d 1081 (2007).
2

1 Plaintiff.

After

their

first

one-on-one

meeting,

Plaintiff

2 received an email from Defendant Derks, in which Defendant Derks
3 claims that Plaintiff had lost the respect and confidence of the
4 employees whom Plaintiff supervised.
5

In May 2010, Plaintiff filed a complaint with EDD’s Equal

6 Employment Opportunity (“EEO”) office, in which he voiced concerns
7 regarding

the

harassment

by

Defendant

Derks.

Plaintiff

was

8 informed that nothing could be done.
9

On May 11, 2010, Defendant Derks sent Plaintiff an email

10 informing

him

that

the

“perception

of

your

.

.

.

team

and

11 management is that you are not technically qualified” and that
12 “this perception is affecting your ability to lead the group.”
13 Defendant Derks required Plaintiff to print, sign, and acknowledge
14 the contents of this email.
15

On May 14, 2010, Plaintiff was given a sub-par Performance

16 Report.

Plaintiff objected to the report, claiming that it “does

17 not depict my professional skill or ability to do my job,” and that
18 it was retaliatory due to his “continued requests to be provided
19 with the tools to do my job, to be involved in the process of day
20 to day work and to be kept informed of the decisions that directly
21 affect my staff.”
22

On May 28, 2010, Defendant Derks sent an email to Plaintiff,

23 informing Plaintiff that he had been removed as the manager on a
24 certain project and that Defendant Derks, himself, would become the
25 manager on that project.
26

In May or June 2010, Plaintiff met with Defendant Derks to
3

1 report

an

employee’s

timecard

fraud,

but

was

instructed

by

2 Defendant Derks to sign off on that employee’s timesheets.
3

In June 2010, Plaintiff filed another complaint with the EEO

4 office.

The EEO office sought intervention from the Department of

5 Industrial Relations (“DIR”), State Mediation and Conciliation
6 Services section.

After an investigation, the DIR determined that

7 Plaintiff was not being given the opportunity to do his job.

The

8 DIR ordered Defendants Derks and Rogers to allow Plaintiff to
9 perform

his

10 meetings.

duties,

supervise

his

team,

and

participate

in

The DIR also instructed Defendant Derks to cease the

11 one-on-one meetings with Plaintiff; however, Plaintiff continued to
12 be forced to participate in these meetings.

It was clear to

13 Plaintiff that Defendant Rogers was not happy that Plaintiff had
14 made a report to the EEO and DIR.
15

In July 2010, Defendant Derks called Plaintiff in for another

16 one-on-one meeting, at which Defendant Derks verbally attacked
17 Plaintiff by yelling and screaming at him.

In early August 2010,

18 Defendant Derks again called Plaintiff in for a one-on-one meeting,
19 during which Defendant Derks yelled at Plaintiff to “sit down!” and
20 verbally attacked Plaintiff by yelling and screaming at him.
21 Plaintiff became stressed and anxious, and had difficulty sleeping.
22

On

August

23,

2010,

Plaintiff

emailed

Defendant

Rogers,

23 informing him that Defendant Derks was creating a hostile work
24 environment and that, upon the advice of DIR, Plaintiff did not
25 want to continue participating in future one-on-one meetings with
26 Defendant Derks.
4

1

The next day, Defendant Rogers met with Plaintiff and informed

2 him that the one-on-one meetings with Defendant Derks would stop
3 and that Plaintiff would be placed under the direct supervision of
4 Defendant Rogers.
5

On September 10, 2010, the same day that Plaintiff began a

6 pre-approved vacation, a second Performance Report was prepared and
7 given to Plaintiff.

When Plaintiff returned from vacation, he was

8 given a verbal reprimand for failing to respond to his 6-page
9 probation report.
10

In a letter dated September 28, 2010, Plaintiff was informed

11 that he would receive an interim Performance Report.

This report

12 was given to Plaintiff on December 2, 2010.
13

In October 2010, while Plaintiff was out of the office on

14 approved sick leave, Defendant Rogers assigned him a large project.
15 When Plaintiff returned from his approved sick leave, Defendant
16 Rogers

did

17 regarding

not

the

provide

project.

him

with

After

any

some

additional

information

investigation,

Plaintiff

18 discovered that the project had been attempted years before and
19 required collaboration from an entire team, and not just Plaintiff
20 himself. Plaintiff believed that he was given the assignment in an
21 attempt to cause him to fail.
22

Between

23 interviewed

November
staff

and

members

December
and

2010,

employees

Defendant
under

Rogers

Plaintiff’s

24 supervision in an attempt to find fault in Plaintiff’s work.
25

On December 8, 2010, Defendant Rogers submitted a written

26 Request for Rejection on Probation to Tina Campbell, Chief of the
5

1 Human Resources Services Division. On December 12, 2010, Plaintiff
2 was given a third and final Performance Report.
3

In a letter from Defendant Rogers, dated December 17, 2010,

4 Plaintiff was informed that he had been denied a salary adjustment
5 due to the unacceptable ratings on his first, second, and interim
6 Performance Reports.
7

On January 7, 2011, Plaintiff was given a Notice of Rejection,

8 terminating his employment with EDD.
9 competent

service,

Plaintiff

was

Despite his dedicated and

informed

that

he

was

being

10 rejected “for reasons relating to [his] qualifications, for the
11 good of the service[,] and for failure to demonstrate merit,
12 efficiency, and fitness.”
13

Throughout

his

employment

with

EDD,

Plaintiff,

on

many

14 occasions, was not given his required meal and rest breaks.
15

On April 30, 2011, approximately 3.5 months after he was

16 terminated, Plaintiff filed a claim with the Equal Employment
17 Opportunity Commission (“EEOC” or “Commission”).

On November 7,

18 2012, Plaintiff received a Right to Sue notice from the EEOC.

On

19 January 2, 2013, approximately 2 months after receiving his EEOC
20 Right to Sue notice, Plaintiff filed a Government Tort Claim.

On

21 February 2, 2013, Plaintiff filed a DFEH claim and received an
22 immediate Right to Sue notice.

On March 8, 2013, Plaintiff filed

23 a complaint with the State Personnel Board. On March 19, 2013, the
24 State Personnel Board responded seeking additional information. On
25 April 8, 2013, Plaintiff submitted an amended complaint with the
26 State Personnel Board.

On April 11, 2013, the State Personnel
6

1 Board responded with a refusal to issue findings.
2

Plaintiff brings nine causes of action against the Defendants,

3 arising

under

California’s

Fair

Employment

and

Housing

Act

4 (“FEHA”), Title VII of the Civil Rights Act of 1964 (“Title VII”),
5 the Americans with Disabilities Act of 1990 (“ADA”), California’s
6 Whistleblower

Protection

Act,

California

Labor

Codes

§§

98.6

7 (discrimination) and 1102.5 (retaliation), California’s Private
8 Attorneys General Act (“PAGA”), as well as state and federal
9 employment regulations.
10 B. Defendants’ Motion to Dismiss
11

On June 7, 2013, Defendants filed the instant motion to

12 dismiss.

Def’s Mot., ECF No. 9.

Defendants argue, inter alia,

13 that: (1) Plaintiff failed to timely exhaust his administrative
14 remedies; (2) Plaintiff does not sufficiently plead that he was
15 subject to discrimination on the basis of race; (3) Defendants
16 Rogers

and

Derks

were

not

“employers”

under

Title

VII;

(4)

17 Plaintiff fails to sufficiently allege a protected disclosure in
18 support

of

his

discrimination

and

retaliation

claims;

(5)

19 Plaintiff’s claim under the Private Attorneys General Act is barred
20 by the statute of limitations; and (6) Plaintiff’s request for
21 punitive damages fails as a matter of law.
22
23

II. STANDARD FOR A MOTION TO DISMISS
A

dismissal

motion

under

Federal

Rule

of

Civil

24 Procedure 12(b)(6) challenges a complaint's compliance with the
25 federal

pleading

requirements.

Under

Federal

Rule

of

Civil

26 Procedure 8(a)(2), a pleading must contain a “short and plain
7

1 statement of the claim showing that the pleader is entitled to
2 relief.”

The complaint must give the defendant “‘fair notice of

3 what the ... claim is and the grounds upon which it rests.’”

Bell

4 Atlantic v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d
5 929 (2007), quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99,
6 2 L.Ed.2d 80 (1957).
7

To meet this requirement, the complaint must be supported by

8 factual allegations.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129

9 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Moreover, this court “must

10 accept as true all of the factual allegations contained in the
11 complaint.”

Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,

12 167 L.Ed.2d 1081 (2007).2
13

“While legal conclusions can provide the framework of a

14 complaint,” neither legal conclusions nor conclusory statements are
15 themselves sufficient, and such statements are not entitled to a
16 presumption of truth.

Iqbal, 556 U.S. at 679.

Iqbal and Twombly

17 therefore prescribe a two step process for evaluation of motions to
18 dismiss.

The court first identifies the non-conclusory factual

19 allegations, and then determines whether these allegations, taken
20 as true and construed in the light most favorable to the plaintiff,
21 “plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.
22
23
24
25
26

2

Citing Twombly, 550 U.S. at 555-56, Neitzke v. Williams, 490
U.S. 319, 327 (1989) (“[w]hat Rule 12(b)(6) does not countenance
are dismissals based on a judge’s disbelief of a complaint’s
factual allegations”), and Scheuer v. Rhodes, 416 U.S. 232, 236
(1974) (“it may appear on the face of the pleadings that a recovery
is very remote and unlikely but that is not the test” under
Rule 12(b)(6)).
8

1 at 679.
2

“Plausibility,” as it is used in Twombly and Iqbal, does not

3 refer to the likelihood that a pleader will succeed in proving the
4 allegations.

Instead, it refers to whether the non-conclusory

5 factual allegations, when assumed to be true, “allow[ ] the court
6 to draw the reasonable inference that the defendant is liable for
7 the

misconduct

alleged.”

Iqbal,

556

U.S.

at

678.

“The

8 plausibility standard is not akin to a ‘probability requirement,’
9 but it asks for more than a sheer possibility that a defendant has
10 acted unlawfully.”

Id. (quoting Twombly, 550 U.S. at 557).3

A

11 complaint may fail to show a right to relief either by lacking a
12 cognizable legal theory or by lacking sufficient facts alleged
13 under a cognizable legal theory.

Balistreri v. Pacifica Police

14 Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
III. ANALYSIS

15
16
3

17
18
19
20
21
22
23
24
25
26

Twombly imposed an apparently new “plausibility” gloss on
the previously well-known Rule 8(a) standard, and retired the
long-established “no set of facts” standard of Conley v. Gibson,
355 U.S. 41 (1957), although it did not overrule that case
outright. See Moss v. U.S. Secret Service, 572 F.3d 962, 968 (9th
Cir. 2009) (the Twombly Court “cautioned that it was not outright
overruling Conley ...,” although it was retiring the “no set of
facts” language from Conley). The Ninth Circuit has acknowledged
the difficulty of applying the resulting standard, given the
“perplexing” mix of standards the Supreme Court has applied in
recent cases. See Starr v. Baca, 652 F.3d 1202, 1215 (9th Cir.
2011), cert. denied, 132 S. Ct. 2101 (2012). Starr compared the
Court's application of the “original, more lenient version of Rule
8(a)” in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992,
152 L.Ed.2d 1 (2002) and Erickson v. Pardus, 551 U.S. 89 (2007)
(per curiam), with the seemingly “higher pleading standard” in Dura
Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161
L.Ed.2d 577 (2005), Twombly and Iqbal. See also Cook v. Brewer,
637 F.3d 1002, 1004 (9th Cir. 2011) (applying the “no set of facts”
standard to a Section 1983 case).
9

1

Defendants’ arguments alternate between those regarding the

2 court’s

ability

to

hear

each

of

Plaintiff’s

claims

and

the

3 sufficiency of Plaintiff’s substantive pleadings. This court first
4 addresses the jurisdictional claims before turning to the substance
5 of Plaintiff’s pleadings.
6 A.

Exhaustion of Administrative Remedies

7

i. FEHA and Title VII Claims Based on Disability

8

Defendants

contend

that

Plaintiff

failed

to

exhaust

9 administrative remedies relative to his FEHA and Title VII claims
10 insofar as they are premised on disability discrimination or
11 harassment.

They

argue

that

Plaintiff

only

exhausted

12 administrative remedies for claims based on racial discrimination
13 and retaliation.

See Defs’ Mot., ECF No. 9, Att. 1, at 10-11.4

14 Specifically, Defendants assert that Plaintiff’s disability claims
15 should be dismissed because Plaintiff’s “EEOC complaint . . . makes
16 no mention of a disability.”
17

Id. at 10 (emphasis included).

To establish subject matter jurisdiction over a Title VII

18 claim, a plaintiff is required to exhaust his or her administrative
19 remedies.

B.K.B. v. Maui Police Dep’t., 276 F.3d 1091, 1099 (9th

20 Cir. 2002) (citing EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th
21 Cir. 1994)).

Under Title VII, a plaintiff must exhaust his

22 administrative remedies by filing a timely charge with the Equal
23 Employment Opportunity Commission (“EEOC”), or the appropriate
24 state agency, thereby affording the agency an opportunity to
25
4

26

Defendants’ arguments here pertain to Plaintiff’s First,
Second, Fourth, and Seventh causes of action.
10

1 investigate the charge. Id. (citing 42 U.S.C. § 2000e-5(b)). That
2 panel asserted that, “the administrative charge requirement serves
3 the important purposes of giving the charged party notice of the
4 claim and ‘narrow[ing] the issues for prompt adjudication and
5 decision.’”

Id. (citing Park v. Howard Univ., 71 F.3d 904, 907

6 (D.C. Cir. 1995); Babrocky v. Jewel Food Co., 773 F.2d 857, 863
7 (7th Cir. 1985)).
8

Courts construe the language of EEOC charges “with utmost

9 liberality

since

they

are

made

by

10 technicalities of formal pleading.”

those

unschooled

Id. at 1100.

in

the

The crucial

11 element of a charge of discrimination is the factual statement
12 contained therein.

Id. (quoting Sanchez v. Standard Brands, Inc.,

13 431 F.2d 455, 462 (5th Cir. 1970)).

Allegations of discrimination

14 not included in the plaintiff’s administrative charge “may not be
15 considered by a federal court unless the new claims are ‘like or
16 reasonably

related

to

the

allegations

contained

in

the

EEOC

17 charge.’”

Id. (citing, inter alia, Green v. Los Angeles County

18 Superintendent of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989);
19 Anderson

v.

Reno,

190

F.3d

930,

935

(9th

Cir.

1999)).

In

20 determining whether a plaintiff has exhausted allegations that he
21 did not specify in his administrative charge, it is appropriate to
22 consider such factors as the alleged basis of the discrimination,
23 dates

of

discriminatory

24 perpetrators

of

acts

discrimination

specified
named

in

within
the

the

charge,

charge,
and

any

25 locations at which discrimination is alleged to have occurred. Id.
26 In addition, the court should consider plaintiff’s civil claims to
11

1 be reasonably related to allegations in the charge to the extent
2 that those claims are consistent with the plaintiff’s original
3 theory of the case.
4

Id. (citing Farmer Bros., 31 F.3d at 899).

Put another way, the “jurisdictional scope of a Title VII

5 claimant’s court action depends upon the scope of both the EEOC
6 charge and the EEOC investigation.”

Farmer Bros., 31 F.3d at 899

7 (quoting Sosa v. Hirahoka, 920 F.2d 1451, 1456 (9th Cir. 1990)).
8 A district court has subject matter jurisdiction over a plaintiff’s
9 allegations of discriminatory conduct “if that claim fell within
10 the

scope

of

the

EEOC’s

actual

investigation

or

an

EEOC

11 investigation which can reasonably be expected to grow out of the
12 charge of discrimination.”

Id. (citing Sosa, 920 F.2d at 1456

13 (internal citations omitted) (emphasis included)).
14

In

Plaintiff’s

EEOC

charge,

Plaintiff

checked

the

boxes

15 indicating that his allegations of discrimination were based on
16 “race” and “retaliation,” but he failed to check the box marked
17 “disability.”5

In the written description of his allegations,

18 Plaintiff

did

not

19 otherwise

disabled.

mention

his

stutter

Plaintiff

or

concluded

assert
that

he

that
has

he

is

“been

20 discriminated against due to [his] race (black)” and that he has
21 “been retaliated against for engaging in protected activity.”
22

It is clear that the factual basis underlying Plaintiff’s EEOC

23
24
25
26

5

The court takes judicial notice of Plaintiff’s EEOC charge,
dated April 30, 2011. Defs’ Req., ECF No. 9, Att. 2, at 11; see
City of Sausalito v. O’Neill, 386 F.3d 1186, 1223 (9th Cir. 2004)
(“We may take judicial notice of a record of a state agency not
subject to reasonable dispute.”).
12

1 claim is the same as the factual basis underlying his suit relative
2 to race discrimination and retaliation. Plaintiff’s EEOC charge is
3 largely based on Defendant Derk’s alleged failure, from January
4 2010 to January 2011, to “allow[] [Plaintiff] to complete the
5 duties of [his] position,” as well as Defendant Derk’s “rude and
6 abusive manner during one-on-one meetings.”

Plaintiff’s EEOC

7 charge is also based on his allegations that he was “given an
8 assignment that Mr. Rogers knew was impossible, and was later
9 blamed for not completing it.”
10

However, Plaintiff’s failure to mention his disability in the

11 EEOC charge would seem to preclude a finding that his claims of
12 disability discrimination and harassment are “like or reasonably
13 related

to”

the

claims

he

asserted

14 discrimination and retaliation.

to

the

EEOC

of

racial

Cf. Leong v. Potter, 347 F.3d

15 1117, 1122 (9th Cir. 2003) (“A decision that an EEOC complaint with
16 no mention whatsoever of disability is ‘like or reasonably related
17 to’

Leong's

disability

claim

would

reduce

the

exhaustion

18 requirement to a formality.”); Rodriguez v. Airborne Express, 265
19 F.3d 890, 897 (9th Cir. 2001) (“Rodriguez's [DFEH] charge of
20 discrimination

against

Mexican–Americans

would

not

reasonably

21 trigger an investigation into discrimination on the ground of
22 disability.

The two claims involve totally different kinds of

23 allegedly improper conduct, and investigation into one claim would
24 not likely lead to investigation of the other.”); Lowe v. City of
25 Monrovia, 775 F.2d 998, 1004 (9th Cir.), amended by, 784 F.2d 1407
26 (1986) (plaintiff who had alleged only race discrimination to EEOC
13

1 could not include a cause of action for sex discrimination in a
2 federal suit); Shah v. Mt. Zion Hospital & Med. Ctr., 642 F.2d 268,
3 271-72 (9th Cir. 1981) (EEOC complaint based on sex and national
4 origin discrimination did not encompass theories of race, color, or
5 religious

discrimination

and

plaintiff

could

not

make

such

6 allegations in a federal suit).
7
8 As

Despite appearances, that question is less than inevitable.
previously

noted,

a

district

court

has

subject

matter

9 jurisdiction over a plaintiff’s allegations of discriminatory
10 conduct if that claim falls “within the scope of the EEOC’s actual
11 investigation.”

EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th

12 Cir. 1994) (emphasis included).
13

According to the EEOC regulations, however, the EEOC’s

14 investigation of a charge is not limited to the statutory
15 violations asserted by the charging party.

The EEOC regulations

16 provide:
17
18
19
20

Whenever the Commission receives a charge or
obtains information relating to possible violations
of one of the statutes which it administers and the
charge or information reveals possible violations
of one or more of the other statutes which it
administers, the Commission will treat such charges
or information in accordance with all such relevant
statutes.

21
22 29 C.F.R. § 1626.22(b) (2013).

The regulations further provide

23 that:
24
25
26

Whenever a charge is filed under one statute and it
is
subsequently
believed
that
the
alleged
discrimination constitutes an unlawful employment
practice under another statute administered and
enforced by the Commission, the charge may be so
14

1

amended and timeliness determined from the date of
filing of the original charge.

2
3 29 C.F.R. § 1626.22(c) (2013); see also 29 C.F.R. § 1601.34 (2013)
4 (“These rules and regulations shall be liberally construed to
5 effectuate the purposes and provisions of title VII, the ADA, and
6 [the Genetic Information Nondiscrimination Act].”).
7

Similarly, the EEOC Compliance Manual gives its investigators

8 both the latitude and the obligation to report and
9 potential

statutory

violations

beyond

10 charging party in the charging document.

investigate

those specified by the
See, e.g., EQUAL EMP’T

11 OPPORTUNITY COMM., EEOC COMPLIANCE MANUAL §§ 22.3 (“The [Request for
12 Information] will implicitly identify the initial scope of the
13 investigation; however, the respondent should be informed that the
14 scope may be expanded or limited based on information received
15 during the investigation”), 22.3(a) (“If an ADEA/EPA violation is
16 found during a Title VII/ADA case, pursue it regardless of the
17 scope of the charge”), 22.20 (“If an investigation under any
18 statute discloses apparent violations . . . involving Title VII/ADA
19 bases or issues beyond those already being investigated, report
20 them by memo to the supervisor.

Consideration can then be given to

21 expanding the scope of investigation of an existing Title VII/ADA
22 charge (if any) and/or seeking a Commissioner charge to address the
23 new bases/issues. . . .

When, during an investigation under any

24 statute, apparent ADEA/EPA violations are noted involving issues
25 and/or

jobs

not

originally

included

within

the

scope

of

26 investigation, the investigator, with the supervisor’s approval,
15

1 may

expand

the

investigation

to

address

the

other

potential

2 violations.”), 25.7 (same).
3

Because

the

EEOC’s

“actual

investigation”

can

encompass

4 potential statutory violations beyond those alleged in the EEOC
5 charge, a plaintiff may not necessarily be foreclosed from raising
6 a Title VII or ADA claim in federal court that he failed to raise
7 in his EEOC charge.

If, for example, a plaintiff could produce

8 evidence that the EEOC’s actual investigation explored statutory
9 violations beyond those raised in the EEOC charge, it would not be
10 frivolous

for

that

plaintiff

to

argue

that

he

exhausted

his

11 administrative remedies as to the statutory violations actually
12 investigated.
13

Plaintiff, however, has produced no such evidence.

In the absence of such evidence, the court finds that

14 Plaintiff failed to exhaust his administrative remedies as to his
15 claims of disability discrimination.

Plaintiff is granted leave to

16 amend in the event that he is able to produce evidence that the
17 actual EEOC investigation went beyond the scope of his charge of
18 racial discrimination and included disability.
19

Plaintiff argues that his EEOC complaint tolled the statute of

20 limitations for his later filing of a Government Tort Claim with
21 the Victim Compensation and Government Claims Board (“VCGCB”), in
22 which he first asserted that he was discriminated against based in
23 part on his disability. Assuming that equitable tolling applies to
24 his Government Tort Claim, Plaintiff argues that the VCGCB received
25 timely notice of his disability discrimination claim and, thus,
26 Plaintiff’s

disability

discrimination
16

claims

are

properly

1 exhausted.

The court, however, is not persuaded that the notice

2 requirements for his later-alleged disability claims should have
3 been tolled by an EEOC charge alleging racial discrimination in the
4 first instance.
5

The court therefore finds that Plaintiff failed to exhaust the

6 administrative remedies for his FEHA and Title VII claims based on
7 disability

discrimination

or

harassment.

The

court

GRANTS

8 Defendants’ motion to dismiss Plaintiff’s FEHA and Title VII claims
9 based on disability discrimination and harassment, WITH LEAVE TO
10 AMEND.
11

ii. California Whistle Blower Protection Act

12

As to Plaintiff’s California Whistle Blower Protection Act

13 (“WPA”) claim, Defendants argue that: (1) Plaintiff untimely filed
14 his complaint with the State Personnel Board (“SPB”); (2) the one15 year SPB filing requirement was not equitably tolled by his filing
16 of an EEOC complaint; and (3) Plaintiff has still failed to
17 properly present a complaint to the SPB and any such claims are now
18 time-barred.

Defs’ Mot., ECF No. 9, Att. 1, at 12-14.6

California’s

19

20 designed

to

Whistle

protect

Blower

persons

Protection

who

21 “improper governmental activity.”

disclose

Act

(“WPA”)

information

was

about

Bjorndal v. Superior Court, 211

22 Cal.App.4th 1100, 1107, 150 Cal.Rptr.3d 405 (Cal.App. 1 Dist. 2012)
23 (citing Cal. Gov. Code § 8547.2(c),(e)). A state official who uses
24 his

or

her

“authority

or

influence”

to

interfere

with

such

25
6

26

Defendants’ arguments here relate to Plaintiff’s Third Cause
of Action.
17

1 disclosures is subject to “an action for civil damages brought . .
2 .

by

the

offended

3 8547.3(a),(c)).

party.”

Id.

(citing

Cal.

Gov.

Code

§

As a prerequisite to filing a suit for damages

4 under the WPA, a state employee is required to file a “written
5 complaint with the State Personnel Board . . . . within 12 months
6 of the most recent act of reprisal complained about.”

Id. (citing

7 § 8547.8(a)).7
8

Plaintiff does not contest that his complaint to the SPB was

9 untimely filed but argues, instead, that the SPB’s one-year filing
10 requirement should be equitably tolled by his filing of the EEOC
11 charge. Pl’s Opp’n, ECF No. 14, at 12-13. Plaintiff’s argument is
12 unavailing.
13

The party seeking to invoke equitable tolling to avoid a

14 limitations bar bears the burden of proving the applicability of
15 the doctrine.

In re Marriage of Zimmerman, 183 Cal.App.4th 900,

16 912 (Cal.App. 2 Dist. 2010); see also Cervantes v. City of San
17 Diego, 5 F.3d 1273, 1275 (9th Cir. 1993) (“As with the limitations
18 period itself, we borrow our rules for equitable tolling of the
19 period from the forum state, California.”).8
20
7

21
22
23
24

Once the Personnel Board has issued its findings as to the
complaint, the complainant is not required to take any further
administrative action prior to filing suit, and the board’s
findings are not binding in a later judicial proceeding. Id. at
1108 (citing State Bd. of Chiropractic Examiners v. Superior Court,
45 Cal.4th 963, 977-78, 89 Cal.Rptr.3d 576, 201 P.3d 457 (Cal.
2009)).
8

25
26

Cervantes further provides that application of California’s
test for equitable tolling requires a fact-intensive analysis and
is therefore more appropriately analyzed at the summary judgment
or trial stages of litigation, rather than the pleading stage. See
18

1

In McDonald v. Antelope Valley Cmty. College Dist., 45 Cal.4th

2 88, 194 P.3d 1026, 84 Cal.Rptr.3d 734 (Cal. 2008), the California
3 Supreme Court described the doctrine of equitable tolling as
4 follows:
5
6
7
8
9
10
11
12
13
14

The equitable tolling of statutes of limitations is
a judicially created, nonstatutory doctrine. . . .
It is designed to prevent unjust and technical
forfeitures of the right to a trial on the merits
when the purpose of the statute of limitations–timely notice to the defendant of the plaintiff’s
claims–-has been satisfied. . . .
Where
applicable, the doctrine will suspend or extend a
statute of limitations as necessary to ensure
fundamental practicality and fairness. . . .
Broadly speaking, the doctrine applies when an
injured person has several legal remedies and,
reasonably and in good faith, pursues one. . . .
Thus, it may apply where one action stands to
lessen the harm that is the subject of a potential
second action; where administrative remedies must
be exhausted before a second action can proceed; or
where a first action, embarked upon in good faith,
is found to be defective for some reason.

15 McDonald, 45 Cal.4th at 99-100 (internal quotation marks and
16 citations omitted).
17
18
19
20
21
22
23
24
25
26

Cervantes, 5 F.3d at 1276. Nevertheless, a district court may
grant a motion to dismiss, despite a claim of equitable tolling,
if it is clear from the face of the complaint and the judicially
noticed documents that the plaintiff cannot prevail as a matter of
law on the equitable tolling issue. See id. (noting that courts
properly uphold dismissals despite a claim of equitable tolling
where “some fact, evident from the face of the complaint, supported
the conclusion that the plaintiff could not prevail, as a matter
of law, on the equitable tolling issue”); see also United States
v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2010) (“A court may . . .
consider certain material–-documents attached to the complaint,
documents incorporated by reference in the complaint, or matters
of judicial notice–-without converting the motion to dismiss into
a motion for summary judgment.”). In this case, the court is
satisfied that the judicially noticed documents, coupled with
Plaintiff’s complaint, provide a sufficient basis for the court to
rule on the equitable tolling issues presented.
19

1

In order to prove the applicability of California's equitable

2 tolling doctrine, a party must establish three elements: timely
3 notice to the defendant, lack of prejudice to the defendant, and
4 reasonable and good faith conduct on the part of the plaintiff.
5 Id. at 102 (citing Addison v. State of California, 21 Cal.3d 313,
6 319, 146 Cal.Rptr. 224, 578 P.2d 941 (Cal. 1978)).

The second

7 prerequisite essentially translates to a requirement that the facts
8 of the two claims (here, the EEOC charge and Plaintiff’s complaint
9 to

the

SPB)

be

identical

or

at

least

so

similar

that

the

10 defendant’s investigation of the first claim will put him in a
11 position to fairly defend against the second.
12

Id. at n.2.

Here, Plaintiff’s WPA claim is based on his allegation that he

13 reported an employee’s illegal timecard fraud to his supervisors;
14 Plaintiff’s initial complaint to the SPB, dated March 8, 2013,
15 essentially asserts the same.

See Pl’s FAC, ECF No. 8, at 11, ¶

16 53; Def’s Req., ECF No. 9, Att. 2, at 18.9

However, Plaintiff’s

17 complaint to the EEOC, dated April 30, 2011, made no reference to
18 an employee’s illegal timecard fraud, Plaintiff’s reporting of the
19 illegal timecard fraud to his supervisors, or any consequences
20 therefrom.

Defendants’ investigation of the EEOC claim would not

21 have put them in a position to fairly defend against Plaintiff’s
22 WPA claim.

Applying the doctrine of equitable tolling to preserve

23 Plaintiff’s WPA claim would therefore cause prejudice to the
24
9

25
26

The court takes judicial notice of Plaintiff’s complaint to
the SPB. See City of Sausalito v. O’Neill, 386 F.3d 1186, 1223
(9th Cir. 2004) (“We may take judicial notice of a record of a
state agency not subject to reasonable dispute.”).
20

1 Defendants.
2

Because

Plaintiff

failed

to

exhaust

the

administrative

3 remedies for his WPA claim by filing a timely complaint with the
4 SPB,

Defendants’

5 GRANTED.

motion

to

dismiss

Plaintiff’s

WPA

claim

is

Plaintiff’s Third Cause of Action is DISMISSED, WITHOUT

6 LEAVE TO AMEND.
7

iii.

Discrimination and Retaliation Pursuant to California

8

Labor Code §§ 98.6 and 1102.5

9

Defendants argue that Plaintiff failed to properly exhaust the

10 administrative remedies for his claims brought under the California
11 Labor Code §§ 98.6 and 1102.5 because: (1) Plaintiff failed to file
12 a charge with the Labor Commissioner before bringing suit; and (2)
13 Plaintiff failed to timely file a tort claim with the Victim
14 Compensation and Government Claims Board (“VCGCB”), as required by
15 the Government Claims Act.

Defs’ Mot., ECF No. 9, Att. 1, at 17-

16 18.10
17

As to Defendants’ first argument, Plaintiff does not dispute

18 that he failed to file a charge with the Labor Commissioner, but
19 argues, instead, that he was not required to do so, prior to filing
20 civil claims under California Labor Code §§ 98.6 and 1102.5.

Pl’s

21 Opp’n, ECF No. 14, at 15-19.
22

California Labor Code § 98.7 provides, in relevant part: “Any

23 person who believes that he or she has been discharged or otherwise
24 discriminated

against

in

violation

of

any

law

under

the

25
10

26

Defendants’ arguments here pertain to Plaintiff’s Sixth
Cause of Action.
21

1 jurisdiction of the Labor Commissioner may file a complaint with
2 the

division

3 violation.”
4 After

with

six

months

after

the

occurrence

of

the

Cal. Labor Code § 98.7(a) (2003) (emphasis added).

setting

forth

the

Labor

Commissioner’s

process

for

5 investigating and reviewing such complaints, the statute further
6 provides that “[t]he rights and remedies provided by this section
7 do not preclude an employee from pursuing any other rights and
8 remedies under any other law.”
9

Cal. Labor Code § 98.7(f) (2003).

In Campbell v. Regents of Univ. of Cal., 35 Cal.4th 311, 106

10 P.3d 976, 25 Cal.Rptr.3d 320 (Cal. 2005), the California Supreme
11 Court reaffirmed that the exhaustion of administrative remedies is
12 “a jurisdictional prerequisite to resort to the courts” and that
13 California case law requires “a respect for internal grievance
14 procedures and the exhaustion requirement where the Legislature has
15 not specifically mandated its own administrative review process.”
16 Id. at 321 (internal citations omitted).

The court concluded that

17 the plaintiff, a former public university employee bringing suit
18 under California Government Code § 12653(c) and California Labor
19 Code

§

1102.5,

had

been

required

to

exhaust

the

internal

20 administrative remedies available to university employees prior to
21 filing a lawsuit. Id. at 328. In discussing California Labor Code
22 § 1102.5, however, the court did not find that the plaintiff had
23 been required to exhaust administrative remedies by filing a claim
24 with the Labor Commissioner pursuant to California Labor Code §
25 98.7.
26

Nonetheless,

the

weight

of
22

district

court

decisions

1 interpreting California case law has found that exhaustion to the
2 Labor Commissioner is required under California Labor Code § 98.7,
3 despite the statute’s permissive language.

See, e.g., Miller v.

4 Sw. Airlines, Co., -– F.Supp.2d –-, 2013 WL 556963, at *3, 2013
5 U.S. Dist. LEXIS 18835, at *6 (N.D.Cal. Feb. 12, 2013); Ferretti v.
6 Pfizer, Inc., 855 F.Supp.2d 1017, 1024 (N.D. Cal. 2012) (district
7 courts have “uniformly” held since Campbell that exhaustion to the
8 Labor Commissioner is required under § 98.7; collecting cases);
9 Papillon v. San Francisco Unified Sch. Dist., 2012 WL 4892429, at
10 *6–7, 2012 U.S. Dist. LEXIS 147470, at *15-19 (N.D.Cal. Oct. 12,
11 2012); Casissa v. First Republic Bank, 2012 WL 3020193, at *8, 2012
12 U.S. Dist. LEXIS 103206, at *22-24 (N.D.Cal. July 24, 2012); Morrow
13 v. City of Oakland, 2012 WL 2133755 at *21–22, 2012 U.S. Dist.
14 LEXIS 81318, at *60-62 (N.D.Cal. June 12, 2012); Dolis v. Bleum
15 USA, Inc., 2011 WL 4501979, at *2, 2011 U.S. Dist. LEXIS 110575, at
16 *4-6 (N.D.Cal. Sept. 28, 2011); Carter v. Dep't of Corr.-Santa
17 Clara Cnty., 2010 WL 2681905, at *10, 2010 U.S. Dist. LEXIS 67232,
18 at *26-27 (N.D.Cal. July 6, 2010); Hall v. Apartment Inv. & Mgmt.
19 Co., 2008 WL 5396361, at *4, 2008 U.S. Dist. LEXIS 105698, at *10
20 (N.D.Cal.

Dec.

19,

2008)

(“exhaustion

of

the

administrative

21 remedies prescribed in § 98.7 applies to §§ 1102.5 and 98.6”);
22 Romaneck v. Deutsche Asset Mgmt., 2006 WL 2385237, at *6–7, 2006
23 U.S. Dist. LEXIS 59397, *21-22 (N.D.Cal. Aug. 17, 2006); Neveu v.
24 City of Fresno, 392 F.Supp.2d 1159, 1180 (E.D.Cal. 2005) (Wanger,
25 J.) (finding that the plaintiff failed “to allege that he exhausted
26 available administrative remedies, including bringing a complaint
23

1 before the Labor Commissioner, before bringing suit”).
2

A number of courts, however, have found that a plaintiff is

3 not obligated to file a claim with the Labor Commissioner before
4 filing suit for Labor Code violations.

See, e.g., Lloyd v. County

5 of Los Angeles, 172 Cal.App.4th 320, 331-32, 90 Cal.Rptr.3d 872
6 (Cal. App. 2 Dist. 2009) (finding that “case law has recognized
7 there is no requirement that a plaintiff proceed through the Labor
8 Code administrative procedure in order to pursue a statutory cause
9 of action” and further finding “no reason . . . to impose an
10 administrative exhaustion requirement on plaintiffs seeking to sue
11 for Labor Code violations”); Creighton v. City of Livingston, 2009
12 WL 3246825, at *12, 2009 U.S. Dist. LEXIS 93720, at *32 (E.D. Cal.
13 Oct. 7, 2009) (Wanger, J.) (“No California decision requires as a
14 prerequisite to suit for statutory violation of the Labor Code
15 exhaustion

of

16 Commissioner.

.

administrative
.

.

By

its

remedies
terms,

before

Campbell

only

the
held

Labor
that

17 exhaustion of internal administrative remedies is required; there
18 is no discussion in Campbell of exhaustion of administrative
19 remedies before the Labor Commission”); Turner v. City & County of
20 San Francisco, 892, F.Supp.2d 1188, 1200-03 (N.D. Cal. 2012)
21 (finding Lloyd and Creighton’s reasoning persuasive); Paterson v.
22 Cal. Dep't of Gen. Servs., 2007 WL 756954, at *7, n.5, 2007 U.S.
23 Dist. LEXIS 25957, at *22, n.5 (E.D. Cal. March 8, 2007) (England,
24 J.) (disagreeing with Neveu “[t]o the extent Neveu interprets
25 Campbell as requiring that remedies before the Labor Commissioner
26 must necessarily be exhausted as a prerequisite to suit under §
24

1 1102.5”).
2

This court agrees with this latter set of cases and reads the

3 text of Cal. Labor Code § 98.7 and Campbell to stand for the
4 proposition that, while Section 98.7 does not obviate any existing
5 requirements that administrative remedies be exhausted before
6 filing a suit, it also does not require a plaintiff to exhaust
7 administrative

remedies

by

filing

a

claim

with

the

Labor

8 Commissioner before suing based on Labor Code violations.

I

9 conclude that Plaintiff was therefore not required to file a charge
10 with the Labor Commissioner before bringing suit on his §§ 98.6 and
11 1102.5 claims.
12

As to Defendants’ argument that Plaintiff failed to timely

13 file a tort claim with the Victim Compensation and Government
14 Claims Board (“VCGCB”), as required by the Government Claims Act,
15 Plaintiff argues that the statute of limitations for filing a
16 Government Tort Claim should have been equitable tolled by his
17 filing of the EEOC charge.
18

Pl’s Opp’n, ECF No. 14, at 19.

Here, Plaintiff’s Sixth Cause of Action, brought pursuant to

19 California

Labor

Code

§§

98.6

and

1102.5,

is

based

on

his

20 allegations that Defendants engaged in unlawful discrimination
21 against him, and then retaliated against him for his complaint to
22 the Defendant EDD’s internal EEO office.
23 at 15, ¶ 76.

See Pl’s FAC, ECF No. 8,

Plaintiff’s Government Tort Claim, filed on January

24 7, 2013, alleges discrimination and harassment based on the same
25 facts alleged in the present action, Def’s Request for Judicial
26 ////
25

1 Notice, ECF No. 9, Att. 2, at 7-9,11 as does Plaintiff’s charge to
2 the EEOC.
3

The court finds that Plaintiff provided timely notice to the

4 Defendants of his discrimination claims through his filing of the
5 EEOC charge.

The Defendants were not prejudiced by the later

6 filing of Plaintiff’s Government Tort Claim because the facts of
7 the two claims (the EEOC charge and Plaintiff’s later filed
8 Government

Tort

claim)

were

so

similar

that

Defendants’

9 investigation of the EEOC charge would have put them in a position
10 to fairly defend against the Government Tort Claim.

That is,

11 Defendants will not suffer prejudice from the application of
12 equitable tolling to Plaintiff’s claims under the Labor Code.
13 Plaintiff’s timely filing of the EEOC charge and, upon its denial,
14 his filing of the GTC soon thereafter, indicates that Plaintiff
15 pursued his remedies reasonably and in good faith.
16

The six-month statute of limitations for filing a Government

17 Tort Claim with the VCGCB12 was therefore tolled by Plaintiff’s
18 filing of his EEOC charge; Plaintiff’s filing of his Government
19 Tort Claim was timely.13
20
11

21
22
23

The court takes judicial notice of Plaintiff’s Government
Tort Claim. See Defs’ Req., ECF No. 9, Att. 2, at 7-9; City of
Sausalito v. O’Neill, 386 F.3d 1186, 1223 (9th Cir. 2004) (“We may
take judicial notice of a record of a state agency not subject to
reasonable dispute.”).
12

24

See Cal. Gov. Code § 911.2 (2005).

13

25
26

Defendants suggest that this court should defer to the
“VCGCB’s own view that Plaintiff is time barred and that it has no
jurisdiction.” Defs’ Reply, ECF No. 17, at 8, n.2. The court
disagrees. The application of the Government Claims Act’s statute
26

1

a. “Protected Disclosure” Pursuant to California Labor

2
3

Code Section 1102.5
Defendants further argue that Plaintiff failed to sufficiently

4 allege that he made a protected disclosure as required by Labor
5 Code § 1102.5.
6

Defs’ Mot., ECF No. 9, Att. 1, at 18-19.

Section 1102.5 prohibits retaliation by an employer against an

7 employee who reports what he or she believes to be a statutory
8 violation to a governmental agency.

Cal. Lab. Code § 1102.5(c)

9 (2011); Casissa v. First Republic Bank, 2010 WL 2836896, at *2,
10 2010 U.S. Dist. LEXIS 72438, at *6 (N.D. Cal. July 19, 2010)
11 (providing that, in enacting section 1102.5(c), the California
12 Legislature intended “to protect employees who refuse to act at the
13 direction of their employer or refuse to participate in activities
14 of an employer that would result in a violation of law.”) (quoting
15 Act of Sept. 22, 2003, ch. 484, § 1, 2003 Cal. Legis. Serv. 484)).
16

To establish a prima facie case of retaliation under section

17 1102.5(c), a plaintiff must show: (1) that he engaged in protected
18 activity;

(2)

that

he

was

thereafter

subjected

to

adverse

19
20
21
22
23
24
25
26

of limitations is not a matter within the particular expertise of
the VCGCB. See, e.g., Bamidele v. I.N.S., 99 F.3d 557, 561 (3d
Cir. 1996) (finding an agency’s application of its statute of
limitations “a clearly legal issue that courts are better equipped
to handle”) (citing Dion v. Sec’y of Health and Human Serv. , 823
F.2d 669, 673 (1st Cir. 1987); Lynch v. Lyng, 872 F.2d 718, 724
(6th Cir. 1989) (“the amount of weight accorded an agency
interpretation diminishes further when the interpretation does not
require special knowledge within the agency’s field of technical
expertise”); In re Oliver M. Elam, Jr., Co., Inc. , 771 F.2d 174,
181 (6th Cir. 1985) (“When interpretation of the statute does not
require special knowledge within the agency’s field of technical
expertise, reviewing courts sometimes accord little deference to
the agency’s construction”)).
27

1 employment action by his employer; and (3) that there was a causal
2 link between the protected activity and the adverse employment
3 action.

Morgan v. Regents of Univ. of Cal., 88 Cal.App.4th 52, 69,

4 105 Cal.Rptr.2d 652 (Cal. App. 1 Dist. 2000).
5

Pursuant to subdivision (e) of section 1102.5, “[a] report

6 made by an employee of a government agency to his or her employer
7 is a disclosure of information to a government or law enforcement
8 agency” subject to the statute’s protections.
9 1102.5(e)

(2004).

10 interpreted

to

Section

protect

a

1102.5

public

has

employee

Cal. Lab. Code §

been
who

“consistently
reports

legal

11 violations to his or her own employer rather than to a separate
12 public

agency,

where

13 suspected wrongdoer.”

the

employer

or

supervisor

is

not

the

Mize-Kurzman v. Marin Community College

14 Dist., 202 Cal.App.4th 832, 856, 136 Cal.Rptr.3d 259 (Cal.App. 1
15 Dist. 2012).
16

While

bare,

Plaintiff’s

factual

allegations

sufficiently

17 indicate that he filed a complaint with his agency’s EEO office (a
18 protected

activity)

based

on

unlawful

discrimination

and

19 harassment, his employment was thereafter terminated, and he was
20 terminated due to his prior complaints.14

Plaintiff therefore

21 properly alleges that he made a protected disclosure as required by
22 Labor Code § 1102.5.
23
24
25
26

14

Plaintiff, in his opposition, also argues that his
reporting of an employee’s illegal timecard fraud constituted a
protected disclosure under the Labor Code. For the reasons
previously discussed, equitable tolling based on the EEOC charge
does not apply to claims based on this theory.
28

1

Defendants’ motion to dismiss Plaintiff’s Sixth Cause of

2 Action is DENIED.
3

B.

4

California Private Attorneys General Act’s (“PAGA”)
Statute of Limitations

5

Defendants argue that Plaintiff failed to timely file his

6 claim under California’s Private Attorneys General Act (“PAGA”).
7 Defs’ Mot., ECF No. 19-20.15

Plaintiff again argues that the

8 statute of limitations for filing a PAGA claim was equitably tolled
9 by his filing of the EEOC charge.

Pl’s Opp’n, ECF No. 14, at 21-

10 22.
11

As discussed in more detail above, Plaintiff’s EEOC charge set

12 forth Plaintiff’s allegations of discrimination, harassment, and
13 retaliation based on race, but did not set forth allegations
14 regarding Plaintiff’s reporting of an employee’s timecard fraud.
15 Similarly,

the

EEOC

charge

did

not

include

allegations

16 Plaintiff was denied his required meal and rest breaks.

that

For the

17 reasons explicated above, Defendants would be prejudiced by having
18 to defend against the timecard fraud and meal and rest breaks, when
19 Plaintiff did not assert those charges against Defendants in a
20 timely

fashion.

Defendants

are

not

prejudiced,

however,

in

21 defending against Plaintiff’s racial discrimination, harassment,
22 and retaliation claims.
23

To the extent that Plaintiff’s PAGA claims are premised on

24 racial discrimination, harassment, and retaliation, the court finds
25
15

26

Defendant’s arguments here pertain to Plaintiff’s Ninth
Cause of Action.
29

1 that equitable tolling applies to the one-year limitations period
2 under PAGA and Plaintiff’s PAGA claims in this regard were timely
3 filed.

However, to the extent that Plaintiff’s PAGA claims were

4 based on illegal timecard fraud and Defendants’ denial of his meal
5 and

rest

breaks,

equitable

tolling

cannot

apply

to

preserve

6 Plaintiff’s claims.
7

Defendants’ motion to dismiss Plaintiff’s Ninth Cause of

8 Action, brought pursuant to PAGA, is DENIED.
9 C.

Racial Discrimination and Harassment

10

Defendants argue that Plaintiff fails to sufficiently plead

11 facts

setting

forth

claims

of

racial

discrimination,

racial

12 harassment, or failure to prevent or investigate racial harassment,
13 pursuant to FEHA and Title VII.

Defs’ Mot., ECF No. 9, Att. 1, at

14 11-12 (discrimination), 14-15 (harassment), 15-16 (failure to
15 prevent or investigate harassment).16
The same legal principles apply to claims under Title VII and

16

See Metoyer v. Chassman, 504 F.3d 919, 941 (9th Cir. 2007);

17 FEHA.

18 Jenkins v. MCI Telecomm. Corp., 973 F.Supp. 1133, n.5 (C.D. Cal.
19 1997) (“Because the statutory provisions of Title VII and the FEHA
20 possess identical objectives and public policy considerations,
21 California courts refer to federal decisions when interpreting
22 analogous provisions of the FEHA”); see also Guz v. Bechtel Nat’l,
23 Inc., 24 Cal.4th 317, 354, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000)
24 (because

of

similarity

between

state

and

federal

employment

25
16

26

Defendants’ arguments here pertain to Plaintiff’s First,
Second, and Fourth Causes of Action.
30

1 discrimination laws, California courts look to pertinent federal
2 precedent when applying state statutes).
3

Title VII makes it “an unlawful employment practice for an

4 employer . . . to discriminate against any individual with respect
5 to

his

compensation,

terms,

conditions,

or

privileges

of

6 employment, because of such individual’s race, color, religion,
7 sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1); see also Cal.
8 Gov’t Code § 12940(a) (“It is an unlawful employment practice . .
9 . [f]or an employer, because of the race . . . of any person . . .
10 to discriminate against the person in compensation or in terms,
11 conditions, or privileges of employment.”).

A plaintiff may show

12 violation of Title VII by proving disparate treatment or disparate
13 impact, or by proving the existence of a hostile work environment.
14 Sischo-Nownejah v. Merced Community College Dist., 934 F.2d 1104,
15 1109 (9th Cir. 1991), superseded by statute on other grounds as
16 recognized in Dominguez-Curry v. Nevada Transp. Dep't., 924 F.3d
17 1027, 1041 (9th Cir. 2005).
18

A plaintiff may establish a prima facie case of discrimination

19 by introducing evidence that “give[s] rise to an inference of
20 unlawful discrimination.”

Texas Dep’t of Community Affairs v.

21 Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207
22 (1981); Sischo-Nownejah, 934 F.2d at 1109.
23

A plaintiff can establish a prima facie case of discrimination

24 under Title VII by showing: (1) that he belongs to a protected
25 class; (2) he was qualified for the position; (3) he was subject to
26 an adverse employment action; and (4) the action occurred in
31

1 circumstances suggesting discriminatory motive.

See, McDonnell

2 Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36
3 L.Ed.2d 668 (1973).
4

Plaintiff’s allegations sufficiently establish that he is a

5 member of a protected class (black), he was treated in a disparate
6 manner (one-on-one meetings that occurred more often than with
7 other supervisors under Defendant Derks), his work environment was
8 hostile (characterized by yelling and verbal attacks), and he was
9 qualified for his position (he was hired as a supervisor in charge
10 of

numerous

employees).

The

court

finds

these

allegations

11 sufficient, for pleading purposes, to give rise to an inference of
12 unlawful discrimination.
13

Defendants’ motion to dismiss Plaintiff’s claims of racial

14 discrimination,

racial

harassment,

or

failure

to

prevent

or

15 investigate racial harassment, pursuant to FEHA and Title VII, is
16 DENIED.
17

D.

18
19

Title VII Claim Against Defendants Rogers and Derks,
Individually

Defendants argue that Plaintiff’s Fourth Cause of Action for

20 harassment in violation of Title VII, may not be asserted against
21 Defendants Rogers and Derks in their individual capacities.

Defs’

22 Mot., ECF No. 9, Att. 1, at 16.17 Plaintiff concedes that he cannot
23 maintain a Title VII claim against the individual Defendants. Pl’s
24 Opp’n, ECF No. 14, at 15.
25
17

26

Defendants' arguments here relate to Plaintiff's Fourth
Cause of Action.
32

1

Defendants’ motion to dismiss Plaintiff’s Title VII claims

2 against Defendants Rogers and Derks is GRANTED, WITHOUT LEAVE TO
3 AMEND.
4 E.
5

Punitive Damages
Defendants

assert

that

Plaintiff’s

request

for

punitive

6 damages against Defendants, as part of his harassment claims
7 brought under FEHA and Title VII, should fail because public
8 entities are not liable for punitive damages.

Defs’ Mot., ECF No.

9 9, Att. 1, at 20.
10

Punitive damages may be awarded in a private enforcement

11 action under the FEHA, but they are not available against public
12 entities.

See State Personnel Bd. v. Fair Employment & Housing

13 Comm., 39 Cal.3d 422, 434, 217 Cal.Rptr. 16 (Cal. 1985); Runyon v.
14 Superior Ct., 187 Cal.App.3d 878, 881, 232 Cal.Rptr. 101 (Cal. App.
15 4 Dist. 1986).
16

The court GRANTS Defendants’ motion to dismiss Plaintiff’s

17 request for punitive damages as against Defendant EDD, but DENIES
18 Defendants’ motion to dismiss Plaintiff’s request for punitive
19 damages against the individual public employee Defendants.
20
21

IV. CONCLUSION
Accordingly, for the reasons provided herein, Defendants’

22 motion to dismiss is GRANTED, in part, and DENIED, in part, as
23 follows:
24

[1] Plaintiff’s FEHA and Title VII claims based on

25

disability discrimination and harassment are DISMISSED, WITH

26

LEAVE TO AMEND.
33

1

[2] Plaintiff’s Third Cause of Action, brought pursuant to

2

the California Whistle Blower Protection Act, is DISMISSED,

3

WITHOUT LEAVE TO AMEND.

4

[3] Defendants’ motion to dismiss Plaintiff’s Sixth Cause of

5

Action, brought pursuant to California Labor Code §§ 98.6

6

and 1102.5, is DENIED.

7

[4] Defendants’ motion to dismiss Plaintiff’s Ninth Cause of

8

Action, brought pursuant to PAGA, is DENIED.

9

[5] Defendants’ motion to dismiss Plaintiff’s claims of

10

racial discrimination, racial harassment, or failure to

11

prevent or investigate racial harassment, pursuant to FEHA

12

and Title VII, is DENIED.

13

[6] Defendants’ motion to dismiss Plaintiff’s Title VII

14

claims against Defendants Rogers and Derks is GRANTED,

15

WITHOUT LEAVE TO AMEND.

16

[7] Defendants’ motion to dismiss Plaintiff’s request for

17

punitive damages as against Defendant EDD is GRANTED, but

18

Defendants’ motion to dismiss Plaintiff’s request for

19

punitive damages against the individual public employee

20

defendants is DENIED.

21

IT IS SO ORDERED.

22

DATED:

August 19, 2013.

23
24
25
26
34