Azor v. Peake et al

Filing 48

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS. Plaintiff's claims against Lumbang, Famy, and the VA are dismissed. Signed by Judge Maxine M. Chesney on May 1, 2009. (mmclc2, COURT STAFF) (Filed on 5/1/2009)

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1 2 3 4 5 6 7 8 9 10 For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is defendants United States Department of Veterans' Affairs ("VA"), Stacy Lumbang ("Lumbang"), and Rene Famy's ("Famy") motion to dismiss, filed April 8, 2009, by which said defendants seek dismissal of plaintiff's claims against them on the ground they are improper defendants to the instant action. No opposition has been filed. Having read and considered the papers filed in support of the motion, the Court deems the matter appropriate for decision thereon, hereby VACATES the hearing scheduled for May 15, 2009, and rules as follows. All of the remaining claims in the instant action are brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, et seq.1 Where, as here, such claims are _____________________ *Pursuant to Federal Rule of Civil Procedure 25(d), Eric Shinseki is hereby substituted in place of his predecessor, James B. Peake. On December 9, 2008, the Court dismissed plaintiff's claim for intentional infliction of emotional distress. (See Order filed Dec. 9, 2008 at 3.) 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SUZE AZOR, Plaintiff, v. ERIC SHINSEKI,* Secretary of Veterans Affairs, et al., Defendants. / No. C-08-2825 MMC ORDER GRANTING DEFENDANTS' MOTION TO DISMISS United States District Court 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 28 "based upon federal employment discrimination," they are to be brought "against the director of the agency concerned." See White v. Gen. Servs. Admin., 652 F.2d 913, 916 n.4 (9th Cir. 1981); see also 42 U.S.C. 2000e-16(c) (providing, in action against federal employer under Title VII, "the head of the department, agency, or unit, as appropriate, shall be the defendant"). "Under Title VII there is no personal liability for employees, including supervisors," see Greenlaw v. Garrett, 59 F.3d 994, 1001 (9th Cir. 1994), nor is the agency itself a proper defendant, see, e.g., Cooper v. U.S. Postal Serv., 740 F.2d 714, 716 (9th Cir. 1984) (holding Postmaster General was "the only proper defendant" in action brought against United States Postal Service). Here, Lumbang, Famy, and the VA are all improper defendants to the action. In particular, Lumbang and Famy are employees of the VA (see Compl. 7-8), and the VA itself is an agency. Accordingly, the motion to dismiss is hereby GRANTED, and plaintiff's claims against Lumbang, Famy, and the VA are hereby DISMISSED. IT IS SO ORDERED. Dated: May 1, 2009 MAXINE M. CHESNEY United States District Judge 2

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