Saud v. State of California, Department of Health Care Services

Filing 17

ORDER signed by Judge Garland E. Burrell, Jr on 7/14/15 ORDERING for the stated reasons, the portion of count 1 alleging national origin discrimination is dismissed; the portion of counts 2 and 3 alleging national origin, religion and gender discr imination are dismissed; and the portion of counts 4 and 5, 8 and 9, and 12 and 13, alleging national origin and religious discrimination are dismissed. Further, Defendants request for a more definite statement under Rule 12(e) is denied. However, Plaintiff is granted ten days leave from the date on which this Order is filed to file an amended complaint that addresses the stated deficiencies in any dismissed claim. (Becknal, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PHILLIP K. SAUD,

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Plaintiff,

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No. 2:14-cv-02536-GEB-AC

v.

ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS

STATE OF CALIFORNIA,
DEPARTMENT OF HEALTH CARE
SERVICES,

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Defendant.

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Defendant moves under Federal Rule of Civil Procedure
(“Rule”) 12(b)(6) for dismissal of counts 1, 2, 3, 4, 5, 8, 9,
12, and 13 in Plaintiff’s Complaint, and also under Rule 12(e)
for a more definite statement of all counts.1 Defendant argues
the

challenged

portions

of

Plaintiff’s

Complaint

consist

of

conclusory allegations that Plaintiff was discriminated against
in his employment as an attorney with Defendant by being denied
promotions because of his national origin, gender, and religion,
in violation of Title VII of the federal Civil Rights Act of 1964
(“Title VII”) and the California Fair Employment and Housing Act
(“the FEHA”).

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Defendant initially moved to dismiss counts 6, 7, and 16, but Plaintiff
voluntarily dismissed count 16, (Opp’n to Mot. to Dismiss 2:1-4, ECF No. 7),
therefore, the motion challenging count 16 is denied as moot. Further,
Defendant withdrew its dismissal motion in its reply brief that challenged
counts 6 and 7. (Def.’s Reply Br. 2:22-24, ECF No. 8.)

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1

I.

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The

following

FACTUAL BACKGROUND
allegations

in

Plaintiff’s

Complaint

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concern the motion. Plaintiff alleges he is “a male [and]

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naturalized citizen, having emigrated from . . . Jordan,” and “he

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is not Jewish.” (Compl. ¶ 4.) Plaintiff also alleges he “has been

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subjected to a pattern and practice of discrimination . . . based

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on his gender, national origin, and religious creed.” (Id.)

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a

In June of 2013, Plaintiff was a “limited term Attorney
III”

on

Defendant’s

Mental

Health

and

Substance

Use

Disorder

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(“MHSUD”) team. (Id. ¶ 7.) At that time, Plaintiff applied for

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Assistant Chief Counsel, and was not selected. (Id.) Rather, “a

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Jewish woman with just one year of experience in [the Department

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of

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November

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position on the Healthcare Delivery System (“HCDS”) team.” (Id. ¶

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23.) Plaintiff was interviewed twice, with his second interview

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occurring on January 3, 2014. (Id.) However, on or around January

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6, 2014, the hiring attorney “decided not to select anyone for

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the position, and to re-post the position instead.” (Id.)

Healthcare
5,

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Services

2013,

(“DHCS”)]”

[P]laintiff

was

applied

selected.
for

an

(Id.)

“On

Attorney

III

“On November 22, 2013, [P]laintiff’s supervisor . . .

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told

him

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appointment on the MHSUD team] . . . to a permanent position.”

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(Id. ¶

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another team.” (Id.) As a result, the positon was left vacant.

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(Id.

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vacancy on the MHSUD team, and “[o]n February 12, 2014, [he] was

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notified that he was not selected.” (Id.) Plaintiff alleges that

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“all three selectees were women, whose religion [P]laintiff does

¶

she

would

not

transition

[Plaintiff’s

limited

term

11.) Instead, Plaintiff was “demoted to an Attorney I on

17.)

On

December

5,

2013,

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Plaintiff

applied

for

the

1

not know.” (Id.)

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In

May

of

2014,

Plaintiff

again

applied

for

the

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Attorney III position on the HCDS team after it was re-posted.

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(Id. ¶ 29.) “Plaintiff was interviewed but not selected.” (Id.)

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Instead, a “woman . . . who was an attorney with the Department

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of

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“[P]laintiff applied for a position as [Assistant Chief Counsel]

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on the HCDS team.” (Id. ¶ 40.) “Plaintiff was interviewed but not

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selected,” and instead, a “woman . . . who had no [relevant]

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experience” was selected, but “she was never actually placed in

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the position.” (Id.) The position was eventually filled “with an

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Acting [Assistant Chief Counsel].” (Id.)

Corporations”

was

selected.

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II.

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“To

survive

a

(Id.)

Also

in

May

of

2014,

LEGAL STANDARDS

motion

to

dismiss,

a

[pleading]

must

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contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

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Twombly,

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plausible ‘when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.’” Somers v. Apple, Inc., 729

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F.3d 953, 959 (9th Cir. 2013) (citation omitted). “Plausibility

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requires pleading facts, as opposed to conclusory allegations.”

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Id. “Factual allegations must . . .

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above the speculative level.” Twombly, 550 U.S. at 555. that,

550

U.S.

544,

570

(2007)).

“A

claim

is

facially

raise a right to relief

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Further, Rule 12(e) prescribes, inter alia: “A party

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may move for a more definite statement of a pleading to which a

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responsive

pleading

is

permitted
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but

which

is

so

vague

or

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ambiguous that a party cannot reasonably be required to frame a

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responsive pleading . . . . [T]he motion . . . must point out the

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defects complained of and the details desired.”

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III. DISCUSSION

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Title

VII

makes

it

any

unlawful

individual

for

employer

discriminate

against

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compensation,

terms,

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because of such individual’s . . . religion, sex, or national

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origin.” 42 U.S.C. § 2000e-2(a)(1).

or

respect

privileges

of

to

“to

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conditions,

with

an

his

employment,

The FEHA also prohibits an

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employer from discriminating against an employee “because of [the

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employee’s] . . . race, religious creed, [or] national origin.”

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Cal. Gov. Code § 12940(a). “California courts apply the Title VII

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framework to claims brought under FEHA.” Metoyer v. Chassman, 504

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F.3d 919, 941 (9th Cir. 2007).

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“For discriminatory promotion, the plaintiff must show:

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1. he is a member of a class protected by Title VII; 2. he was

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qualified

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promotion; and 4. individuals outside of the protected class were

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promoted.” Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672

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(9th Cir. 1988).

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(a)

for

the

position

sought;

3.

he

was

denied

the

Count 1

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Defendant seeks dismissal of Plaintiff’s count 1, in

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which Plaintiff alleges he was discriminated against in violation

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of the FEHA based on his national origin, gender, and religion,

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when Defendant failed to promote him to a positon for which he

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applied.

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following:

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Plaintiff’s

In

June

of

specific

2013,

allegations

[P]laintiff
4

in

count

occupied

1

a

are

the

1

limited term Attorney III position on the
[MHSUD] team[; h]e applied for an Assistant
Chief Counsel . . . position on that team
when that position was advertised in June of
2013[; and
h]e was not selected for that
position[, even though he] was clearly better
qualified than the selectee, a Jewish woman
with just one year of experience in [another
state agency.] Plaintiff . . . had occupied
an Attorney III position on the MHSUD team
for well over a year at that point, had
repeatedly been praised for his work, and had
been with DHCS for almost eight years.

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5
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7
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(Compl. ¶ 7) (emphasis added).

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the selected “Jewish woman’s” national origin is different from

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Plaintiff’s

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Defendant’s motion challenging national origin discrimination in

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count 1 is granted.

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(b)

national

Plaintiff has not alleged that

origin.

Therefore,

the

portion

of

Counts 2 and 3
Defendant seeks dismissal of counts 2 and 3, in which

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Plaintiff

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national origin, gender, and religion under Title VII and the

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FEHA, respectively, as follows:

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alleges

he

was

discriminated

against

based

On
November
22,
2013,
[P]laintiff’s
supervisor Lisa Velazquez told him she would
not transition the Limited Term appointment
he had occupied for approximately two years
to a permanent appointment, even though the
position had been made a permanent position,
as had been standard practice. This was the
[MHSUD]
.
.
.
Attorney
III
position.
Velazquez told plaintiff he would be demoted
to an Attorney I on another team.
Velazquez originally justified her decision
on the assertion that [P]laintiff had, in
filling out certain forms on-line, failed to
indicate
that
he
wanted
a
permanent
appointment to an Attorney III position. That
assertion was false. Later, after [P]laintiff
complained about Velazquez’s discriminatory
treatment
in
failing
to
transition
[P]laintiff’s appointment into a permanent
appointment, Velazquez changed her story,
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on

his

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asserting that personnel rules prohibited her
from
transitioning
[P]laintiff
into
a
permanent
Attorney
III
position
without
further competition, which was not only a
fundamentally different explanation than that
originally
articulated,
but
also
false.
Plaintiff is
informed and believed and
therefore alleges that, after [P]laintiff
complained about this discriminatory conduct
on the part of Velazquez, the State of
California disciplined Velazquez for her
discriminatory conduct towards plaintiff.

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(Compl. ¶ 11.)
Defendant argues these are conclusory allegations that

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“fail[]

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[Plaintiff’s] protected class[es of gender, national origin, and

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religion] was . . . transfer[ed]” to a permanent position; and

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that [P]laintiff has failed to allege any facts to indicate that

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any decisions not to transfer him were because of his gender,

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national origin or religious creed.” (Mot. 4:16-19.) Plaintiff

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does

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discriminated against based on his gender, national origin, or

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religion.

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challenging counts 2 and 3 is granted.

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to

not

(c)

allege

allege

that

facts

Therefore,

anyone

similarly

supporting

the

his

portion

situated

conclusion

of

but

that

Defendant’s

not

he

in

was

motion

Counts 4 and 5

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Defendant seeks dismissal of counts 4 and 5, in which

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Plaintiff alleges that when Defendant failed to select him for an

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Attorney III position on the MHSUD team, it discriminated against

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him

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therefore, violated Title VII and the FEHA. Plaintiff alleges in

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these counts that “all three selectees [for the Attorney III

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position] were women.” (Compl. ¶ 17) (emphasis added). However,

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Plaintiff also states he “does not know” the religion of the

based

on

his

national

origin,

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gender,

and

religion;

and

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female selectees, (Id. ¶ 17), and he says nothing about each

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selectee’s national origin. Therefore, the portion of Defendant’s

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motion

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based

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granted.

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(d)

challenging
on

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Plaintiff’s

religion

and

allegations

national

origin

in

of

discrimination

counts

4

and

5

is

Counts 8 and 9
Defendant seeks dismissal of counts 8 and 9, in which

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Plaintiff

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position on the HCDS team constitutes discrimination based on his

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national origin, gender, and religion proscribed by Title VII and

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the FEHA, since he “was clearly better qualified than the woman

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who

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Plaintiff has not alleged facts supporting his allegations of

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discrimination based on religion and national origin. Therefore,

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the

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allegations

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origin in counts 8 and 9 is granted.

was

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alleges

selected.”

portion

(e)

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Defendant’s

of
of

(Compl.

failure

¶

Defendant’s

select

29.)(emphasis

motion

discrimination

to

based

him

added).

challenging
on

religion

for

a

However,

Plaintiff’s
and

national

Counts 12 and 13
Defendant seeks dismissal of counts 12 and 13, in which

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Plaintiff

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discrimination under Title VII and the FEHA based on Defendant’s

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failure to select him as Assistant Chief Counsel for the HCDS

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team,

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experience” for that position who “was never actually placed in

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the position” since Defendant ultimately filled the “position

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with an Acting [Assistant Chief Counsel].” (Compl. ¶¶ 39-40.)

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Plaintiff has not alleged facts concerning the alleged national

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origin and religious discrimination in these counts. Therefore,

and

alleges

its

gender,

selection

national

of

“a

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origin,

woman

with

and

no

religious

[relevant]

1

the

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allegations of national origin and religious discrimination in

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counts 12 and 13 is granted.

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portion

(f)

of

Defendant’s

motion

challenging

Plaintiff’s

Defendant’s Motion for a More Definite Statement

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Defendant also argues it is entitled to a more definite

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statement under Rule 12(e) as to any unchallenged claim in the

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dismissal motion and any claim that is not dismissed. This motion

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is denied because Defendant has not sufficiently “point[ed] out

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the defects complained of and the details desired” as required by

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Rule 12(e).

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IV.

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CONCLUSION

For the stated reasons, the portion of count 1 alleging

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national

origin

discrimination

is

dismissed;

the

portion

of

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counts 2 and 3 alleging national origin, religion and gender

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discrimination are dismissed; and the portion of counts 4 and 5,

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8 and 9, and 12 and 13, alleging national origin and religious

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discrimination are dismissed.

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more definite statement under Rule 12(e) is denied.

Further, Defendant’s request for a

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However, Plaintiff is granted ten days leave from the

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date on which this Order is filed to file an amended complaint

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that addresses the stated deficiencies in any dismissed claim.

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Dated:

July 14, 2015

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