Mendenhall et al v. City and County of San Francisco

Filing 18

ORDER Motion Hearing (#9 and #13) reset for 12/16/2011 01:30 PM in Courtroom 5, 17th Floor, San Francisco before Hon. Edward M. Chen.. Signed by Judge Edward M. Chen on 11/15/11. (Attachments: # 1 Appendix)(bpf, COURT STAFF) (Filed on 11/15/2011)

Case3:11-cv-04029-EMC Document13

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DENNIS J. HERRERA, State Bar #139669
City Attorney
ELIZABETH SALVESON, State Bar #83788
Chief Labor Attorney
JONATHAN C. ROLNICK, State Bar #151814
Deputy City Attorney
1390 Market Street, Fifth Floor
San Francisco, California 94102-5408
Telephone:
[phone]
Facsimile:
[phone]
E-Mail:
[e-mail]
Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA
JANICE MENDENHALL & MARK CATO,
Plaintiffs,
vs.
CITY AND COUNTY OF SAN
FRANCISCO, DEPARTMENT OF HUMAN
SERVICES,

Case No. CV 11-4029 EMC
DEFENDANT CITY AND COUNTY OF SAN
FRANCISCO'S AMENDED NOTICE OF
MOTION AND MOTION TO DISMISS OR, IN
THE ALTERNATIVE, FOR A MORE
DEFINITE STATEMENT
[F.R.C.P. 12(b)(6) and 12(e)]

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Hearing Date:
Time:
Place:

November 28, 2011
2:30 p.m.
Judge Edward M. Chen
Courtroom 5, 17th Floor
450 Golden Gate Ave.
San Francisco, CA 94612

Trial Date:

Defendant(s).

Not Set

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DEF'S AMEND. NOT. AND MOTION TO DISMISS
CASE NO. CV 11-4029 EMC

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TABLE OF CONTENTS

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NOTICE OF MOTION AND MOTION .........................................................................................1 

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MEMORANDUM OF POINTS AND AUTHORITIES .................................................................3 
I. 

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INTRODUCTION ...................................................................................................3 

II. 

STATEMENT OF FACTS ......................................................................................3 

III. 

ARGUMENT ...........................................................................................................4 

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A. 

Legal Standard for a Rule 12(b)(6) Motion .................................................4 

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B. 

Plaintiffs' Claims Are Untimely ...................................................................5 

C. 

Plaintiffs Have Failed to State a Prima Facie Claim of Employment
Discrimination..............................................................................................5 

D. 

The Employment Discrimination Complaint is so Vague and Ambiguous
that the City Cannot Reasonably Prepare a Response .................................7 

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IV. 

CONCLUSION ........................................................................................................8 

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DEF'S AMENDED MOT. AND MOT. TO DISMISS
CASE NO. CV 11-4029 EMC

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AMENDED NOTICE OF MOTION AND MOTION

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TO PLAINTIFF AND HIS ATTORNEY OF RECORD:

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PLEASE TAKE NOTICE THAT on November 28, 2011 at 2:30 p.m., or as soon thereafter as

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the matter may be heard in Courtroom 5, 17th Floor of the United States District Court for the

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Northern District of California, located at 450 Golden Gate Avenue, San Francisco, California, the

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Honorable Edward M. Chen presiding, Defendant City and County of San Francisco (the "City") will

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and hereby does move this Court for an order dismissing with prejudice Plaintiffs Janice Mendenhall

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and Mark Cato's Employment Discrimination Complaint in its entirety. This motion is made pursuant

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to Federal Rule of Civil Procedure 12(b)(6) on the following grounds:

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(1)

The Complaint fails to state any claim for relief against the City because Plaintiffs

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alleged claim for unlawful employment discrimination is barred by Plaintiffs' failure to file a timely

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charge of discrimination; and

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(2)

The Complaint fails to state any claim for relief against the City because Plaintiffs have

not alleged facts sufficient to demonstrate a prima facie case of employment discrimination;
In the alternative, the City will and hereby does move for a more definite statement of the

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Employment Discrimination Complaint. This motion is made pursuant to Federal Rule of Civil

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Procedure 12(e) on the grounds that the Employment Discrimination Complaint is so vague and

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ambiguous that the City cannot prepare a response.

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DEF'S AMENDED NOT. AND MOT. TO DISMISS
CASE NO. CV 11-4029 EMC

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Defendant's Motion is based upon this Notice and accompanying Memorandum of Points and

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Authorities, the papers and records on file with the Court in this action, and such argument and

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evidence as may be presented at the hearing on this Motion.

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Dated: October 14, 2011
DENNIS J. HERRERA
City Attorney
ELIZABETH S. SALVESON
Chief Labor Attorney
JONATHAN C. ROLNICK
Deputy City Attorney

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By:

/s/ Jonathan C. Rolnick
JONATHAN C. ROLNICK

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Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO

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DEF'S AMENDED NOT. AND MOT. TO DISMISS
CASE NO. CV 11-4029 EMC

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I.

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MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
Plaintiffs' Mark Cato and Janice Mendenhall filed a form complaint alleging race and gender

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discrimination by the City and County of San Francisco (the City) in violation of Title VII of the Civil

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Rights Act of 1964. But their form complaint provides almost no factual allegations setting forth the

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basic requirements for such claims. In fact, it appears from the limited allegations of their

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Employment Discrimination Complaint (including the attached exhibits and documents referenced)

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that neither one of them was ever employed by the City, and that their only connection to the City

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relates to public welfare benefits received through the City's Department of Human Services. The City

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seeks dismissal of Plaintiffs' claims in their entirety and without prejudice because they have not and

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cannot state a prima facie claim for violation of Title VII or any other federal law prohibiting

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employment discrimination. In the alternative, the City seeks a more definite statement of Plaintiffs'

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claims such that the City will be able to provide a responsive pleading.

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II.

STATEMENT OF FACTS
Plaintiffs Janice Mendenhall and Mark Cato filed their Employment Discrimination Complaint

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on August 17, 2011. (See Employment Discrimination Complaint.) Therein, they allege that they

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have been the victims of unlawful employment discrimination on the basis of their race and sex.

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(Employment Discrimination Complaint ¶¶ 4-5.) They claim to have been subjected to unlawful

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termination, failure to promote, and harassment. (Id.) They assert claims under Title VII of the Civil

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Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (Id.)

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According to Plaintiff' the City's Department of Health Services (DHS) "is with holding [their]

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case from them for six years," and has "civi[l]y harassed" them. (Id. at ¶ 4.) Plaintiffs also contend

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that their "family & case files was retaliated against in the department as 'hard case.'" (Id. at ¶ 5.)

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Plaintiff Mendenhall filed a charge of discrimination with the EEOC on August 1, 2011.

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(Exhibit to Employment Discrimination Complaint.) Therein, she alleges that she was hired in April

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2008 "through [DHS's] Community Job Program." (Id.) She further contends that she was harassed

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from April 2008 through December 2008 by a Michael LNU. (Id.) She asserts that she was "unjustly

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terminated" by LNU in December 2008. (Id.) Mendenhall further asserts in her charge of
DEF'S AMENDED NOT. AND MOT. TO DISMISS
CASE NO. CV 11-4029 EMC

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discrimination that DHS held a hearing related to her "pending case" on January 25, 2011. (Id.)

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Mendenhall received a right to sue letter from the California Department of Fair Employment and

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Housing (DFEH) on August 8, 2011. (Id.)
The "pending case" Mendenhall references was a a hearing before an administrative law judge

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for the California Department of Social Services (CDSS).1 (See Exhibit A.) An administrative law

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judge for the California Department of Social Services held a hearing on January 25, 2011 to consider

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Mendenhall's claim for CalWORKs benefits. (Id.) The City had denied those benefits to Mendenhall.

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(Id.) In a decision adopted March 15, 2011, the CDSS denied Mendenhall's claim. (Id.)

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III.

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ARGUMENT
A.
Legal Standard for a Rule 12(b)(6) Motion
Federal Rule of Civil Procedure 12(b)(6) provides that a motion to dismiss may be made if the

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plaintiff fails "to state a claim upon which relief can be granted." In deciding whether to grant a

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motion to dismiss, the court "accept[s] all factual allegations of the complaint as true and draw[s] all

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reasonable inferences" in the light most favorable to the nonmoving party. TwoRivers v. Lewis, 174

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F.3d 987, 991 (9th Cir. 1999); see also Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir. 2002).

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"To avoid a Rule(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it

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must plead 'enough facts to state a claim to relief that is plausible on its face.'" Weber v. Dept. of

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Veterans Affairs, 521 F.3d 1061 (9th Cir. 2008) (citing Bell Atlantic v. Twombly, (2007) 550 U.S. 544,

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(rejecting interpretation of Rule 8 that permits dismissal only when plaintiff can prove "no set of facts"

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in support of his claim). A court is not "required to accept as true allegations that are merely

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conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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The City attaches as Exhibit A a copy of the Proposed Decision by Administrative Law Judge
N. Lee Ormasa In the Matter of Claimant(s): Janice Mendenhall (Hearing No. 2010335505).
Plaintiffs have referred to this matter in their Employment Discrimination Complaint and is central to
their claims. Accordingly, the City requests that the Court consider such matters on this motion.
Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds Galbraith v. County of
Santa Clara, 307 F.3d 1119, 1127 (9th Cir. 2002).
DEF'S AMENDED NOT. AND MOT. TO DISMISS
CASE NO. CV 11-4029 EMC

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B.

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Plaintiffs' Claims Are Untimely

Under Title VII a plaintiff must file a timely administrative charge with the EEOC before

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instituting a lawsuit. 42 U.S.C. § 2000e-5(f)(1); EEOC v. Farmer Bros. Co., 31 F.3d 891, 899

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(1994)(Title VII exhaustion). Plaintiffs were required to exhaust their administrative remedies by

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either "filing a timely charge with the EEOC, or the appropriate state agency." Id. To be timely, an

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EEOC charge must be filed within 300 days of the date on which the allegedly unlawful conduct

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occurred. 42 U.S.C. §2000e-5(e)(1)).

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Here, Plaintiff Cato does not allege that he ever filed an administrative charge. In fact, the
only charge appears to be one filed by Plaintiff Mendenhall. (See Exhibit to Employment

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Discrimination Complaint.) Moreover, only Mendenhall received a right to sue letter. And that letter

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came from the California Department of Fair Employment and Housing, not the EEOC. (Id.) Neither

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the Employment Discrimination Complaint nor Mendenhall's administrative charge make clear the

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identity of Mendenhall's alleged employer. However, her administrative charge does make clear that

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Mendenhall was terminated from employment in December 2008. (Id.)

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Cato's failure to file an administrative charge with either the DFEH or EEOC relating to his
claims bars any claim for relief he might have under Title VII and the court should dismiss his claims.

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As to Mendenhall, it appears from the face of her administrative charge that she did not bring

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her claims to the EEOC in a timely fashion. In fact, her termination from employment occurred more

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than 3 and a half years before she filed her August 2011 administrative charge. (Id.) Accordingly, the

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Court should also dismiss her Title VII claims as untimely.

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C.

Plaintiffs Have Failed to State a Prima Facie Claim of Employment Discrimination

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Title VII protects employees and "applicants for employment" from unlawful discrimination,

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retaliation, and harassment by their employers. 42 U.S.C. § 2000e-2(a)(1),(2). To resolve claims of

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employment discrimination including those under Title VII, courts apply the McDonnell Douglas

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"shifting burdens" analytical framework. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993);

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-804 (1973) Under this framework, the

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plaintiff at all times bears the ultimate burden of persuasion. Lyons v. England, 307 F.3d 1092, 1112

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(9th Cir. 2002) citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). A
DEF'S AMENDED NOT. AND MOT. TO DISMISS
CASE NO. CV 11-4029 EMC

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plaintiff bears the initial burden of establishing a prima facie case of discrimination by producing

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evidence that: (a) she belonged to a protected class; (b) she performed her job adequately; (c) she

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suffered an adverse employment action; and (d) she was treated differently than similarly situated

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employees or other circumstances showing a causal link between her status and the adverse action. St.

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Mary's Honor Center, 509 U.S. 506; Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840,

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847 (9th Cir. 2004).

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Plaintiffs have not and cannot establish facts to establish a prima facie claim. First, neither

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Cato nor Mendenhall allege that they were employed by the City or any of its constitutent

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departments. In the Employment Discrimination Complaint, Plaintiffs checked boxes noting that they

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are complaining about the "termination of [their] employment," and "failure to promote," but provide

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no facts alleging that either of them had any employment relationship with the City. Nor are there any

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factual allegations that they sought City employment. In fact, it appears that Plaintiffs' connection to

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the City arose not through any employment relationship, but through contact with DHS regarding the

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processing of certain welfare benefits. (Employment Discrimination Complaint ¶¶ 4, 6; Exhibit A to

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Def's Mtn to Dismiss.) Moreover, the Civil Cover Sheet completed by Mendenhall and filed with the

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Employment Discrimination Complaint indicates that the nature of her suit is one concerning

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"welfare" civil rights.

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Second, neither Cato nor Mendenhall offer any allegations to support an inference that they

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were performing any job for the City (adequately or otherwise). Mendenhall alleges in her

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administrative charge that she was hire "through" DHS's Community Job Program, but does not allege

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in the Employment Discrimination Complaint or her administrative charge that she was employed by

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the City. Cato offers no allegations of any kind regarding his employment status.

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Third, there are no allegations that either Plaintiff suffered any adverse employment action at

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the hands of the City. Again, Mendenhall indicates that she was terminated more than 3 and one half

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years ago from her "Sales Association" job, one she obtained through an alleged City job program, but

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fails to offer any allegations that she was terminated or suffered any other adverse action effecting her

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City employment. Nor does she offer any allegation that the City was in any fashion involved in the

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termination of her employment. At best, there are allegations that Plaintiffs were denied certain
DEF'S AMENDED NOT. AND MOT. TO DISMISS
CASE NO. CV 11-4029 EMC

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welfare benefits by the City. But such deprivations do not support an employment discrimination

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claim.

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Finally, assuming that Plaintiffs suffered some adverse action, there are no allegations from

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which an inference might be drawn that any such actions were taken against because of Plaintiffs'

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protected status.

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Because Plaintiffs have not and cannot allege facts to support a prima facie case, the Court
should dimiss their claims with prejudice.
D.

The Employment Discrimination Complaint is so Vague and Ambiguous that the
City Cannot Reasonably Prepare a Response

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A party may move for a more definite statement of a pleading where the pleading is "so vague
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or ambiguous that the party cannot reasonably prepare a response." F.R.C.P. 12(e). A motion for a
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more definite statement is warranted where the complaint is so indefinite that the defendant cannot
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ascertain the nature of the claim being asserted. Cellars v. Pacific Coast Packaging, Inc., 189 F.R.D.
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575, 578 (ND CA 1999).
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Here, the Employment Discrimination Complaint is so vague and ambiguous that the City
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cannot possibly prepare a response. As noted above, there are numerous deficiencies and unanswered
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questions regarding what, if any, facts are actually alleged in the Employment Discrimination
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Complaint. Moreover, there are substantial uncertainties whether or not any of the cursory allegations
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refer or relate to Cato, who is named in the caption as one of the Plaintiffs. Finally, there are
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significant uncertainties whether Plaintiffs' claims related to matters of employment or the provision of
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public welfare benefits and, if they related to public welfare benefits, whether such claims are properly
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before this Court.
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Accordingly, and in the alternative to its motion to dismiss, the City requests that Plaintiffs
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provide a more definite statement of their claims.
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DEF'S AMENDED NOT. AND MOT. TO DISMISS
CASE NO. CV 11-4029 EMC

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IV.

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CONCLUSION
For all the reasons set forth above, the City requests that the Court dismiss the Employment

Discrimination Complaint with prejudice.

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Dated: October 14, 2011
DENNIS J. HERRERA
City Attorney
ELIZABETH S. SALVESON
Chief Labor Attorney
JONATHAN C. ROLNICK
Deputy City Attorney

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By:

/s/ Jonathan C. Rolnick
JONATHAN C. ROLNICK

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Attorneys for Defendant
CITY AND COUNTY OF SAN FRANCISCO

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DEF'S AMENDED NOT. AND MOT. TO DISMISS
CASE NO. CV 11-4029 EMC

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PROOF OF SERVICE
Janice Mendenhall, et al. v. CCSF, DHS
File No. 120331

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Filed10/14/11 Page11 of 11

I, DEBRA GRIFFIN, declare as follows:
I am a citizen of the United States, over the age of eighteen years and not a party to the aboveentitled action. I am employed at the City Attorney’s Office of San Francisco, Fox Plaza Building,
1390 Market Street, Fifth Floor, San Francisco, CA 94102.
On October 14, 2011, I served the following document(s):
DEFENDANT CITY AND COUNTY OF SAN FRANCISCO'S AMENDED NOTICE OF
MOTION AND MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR A MORE
DEFINITE STATEMENT [F.R.C.P. 12(b)(6) and 12(e)]; and
[PROPOSED] ORDER GRANTING MOTION TO DISMISS
on the following persons at the locations specified:
JANICE MENDENHALL
IN PRO PER
MARK CATO
P.O. Box 24370
San Francisco, CA 94124
Tel: [phone]
in the manner indicated below:
BY UNITED STATES MAIL: Following ordinary business practices, I sealed true and correct copies of
the above documents in addressed envelope(s) and placed them at my workplace for collection and mailing with
the United States Postal Service. I am readily familiar with the practices of the San Francisco City Attorney's
Office for collecting and processing mail. In the ordinary course of business, the sealed envelope(s) that I placed
for collection would be deposited, postage prepaid, with the United States Postal Service that same day.
I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct.

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Executed October 14, 2011, at San Francisco, California.

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/s/ Debra Griffin
DEBRA GRIFFIN

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PROOF OF SERVICE
CASE NO. CV 11-4029LB

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