Fitch v. San Francisco Unified School District

Filing 31

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS 20 (Illston, Susan) (Filed on 10/29/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SYLVIA FITCH,

Case No. 15-cv-02769-SI

Plaintiff,
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v.
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SAN FRANCISCO UNIFIED SCHOOL
DISTRICT,

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United States District Court
Northern District of California

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ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS

Defendant.

Re: Dkt. No. 20

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Defendant San Francisco Unified School District moves to dismiss plaintiff Sylvia Fitch’s

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complaint for failure to state a claim. The motion is scheduled for a hearing on October 30, 2015.

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Pursuant to Civil Local Rule 7-1(b), the Court determines this motion is appropriate for resolution

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without oral argument and VACATES the hearing. For the reasons set forth below, the Court

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GRANTS defendant’s motion to dismiss plaintiff’s claims for harassment and failure to prevent

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harassment, with leave to amend, and DENIES the balance of defendant’s motion. Plaintiff is

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given leave to file a second amended complaint by November 6, 2015. The case management

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conference scheduled for October 30, 2015 at 2:30 p.m. remains on calendar.

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BACKGROUND

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The following allegations are taken from plaintiff’s first amended complaint (“FAC”):

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Plaintiff Sylvia Fitch is a Black woman, born in 1943. Dkt. No. 18, FAC ¶ 4. In November 2005,

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defendant hired plaintiff as a teacher. Id. ¶ 3. At all times, plaintiff performed her job duties

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“competently and professionally,” and she consistently received good performance evaluations

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until 2012. Id. ¶ 5.

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In early 2012, defendant removed plaintiff from her position at Burton High School,

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allegedly because of plaintiff’s race and/or age. Id. ¶ 6. Defendant told plaintiff that she was

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removed because she lacked certain teaching credentials: a Health Science Credential and a

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California Technical Education Credential. Id. ¶ 9; FAC Ex. 1. Plaintiff alleges this reason is

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pretext for discrimination.

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experienced Caucasian teacher who lacked a California Technical Education Credential. Id. ¶ 10;

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FAC Ex. 1. Plaintiff also alleges that she was treated differently than younger, similarly-situated

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Caucasian teachers without Health Science Credentials and/or California Technical Education

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Credentials. FAC Ex. 1.

FAC ¶ 9.

Defendant replaced plaintiff with a younger, less

On October 9, 2012, plaintiff filed a Charge of Discrimination with the Equal Employment

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Opportunity Commission (“EEOC”) and the California Department of Fair Employment and

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United States District Court
Northern District of California

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Housing (“DFEH”). FAC ¶ 7; FAC Ex. 1. This charge alleged discrimination on the basis of race

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and age. FAC Ex. 1.

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On October 17, 2012, defendant notified plaintiff that it was placing her in a teaching
position at another school. FAC ¶ 8.

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On January 2, 2014, plaintiff filed a second Charge of Discrimination with the EEOC and

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DFEH. FAC ¶ 15; FAC Ex. 2. This charge alleged that, since filing her first EEOC and DFEH

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charge, defendant failed to hire plaintiff for three teaching positions for which she is qualified: (1)

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biology teacher at Lincoln High School; (2) biology teacher at Wallenberg High School; and (3)

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biology teacher at Lowell High School.

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discriminated against plaintiff because of her race and age, and retaliated against her for

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complaining about the discrimination. Id.

FAC Ex. 2.

The charge alleged that defendant

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Plaintiff alleges that since she complained of discrimination, she was and continues to be

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discriminated against and harassed by defendants because of her race and/or age, and in retaliation

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for complaining. Id. ¶ 11. Plaintiff alleges that the other harassing and retaliatory acts include

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“poor performance evaluations, refusal of a permanent position, excessive monitoring, subjection

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to [d]efendant’s PAR Program, and extensions of that subjection.” 1 Id. ¶ 12. Plaintiff also alleges

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Plaintiff’s opposition to the motion to dismiss describes the PAR Program as “the
required step to termination under the union contract.” Dkt. No. 26 at 4.
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that the refusal to assign her to a permanent position and her placement on an extended PAR

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Program are discriminatory and adverse employment actions. Id. ¶ 13. As a result of defendant’s

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conduct, plaintiff has suffered and continues to suffer “severe emotional distress.” Id. ¶ 14.

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Plaintiff alleges that she exhausted her administrative remedies by filing two charges with

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the EEOC and DFEH and that she “received right-to-sue letters from the federal and state agencies

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on both [c]harges.” Id. ¶ 15; FAC Ex. 1, 2.
Plaintiff filed her complaint on June 19, 2015. Dkt. No. 1. In response to defendant’s

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amended motion to dismiss (Dkt. No. 16), plaintiff filed her FAC. Dkt. No. 18. Plaintiff’s FAC

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asserts seven claims for discrimination based on race and age, and retaliation in violation of Title

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VII of the Civil Rights Act, 42 U.S.C. § 2000e, the Age Discrimination in Employment Act

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United States District Court
Northern District of California

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(“ADEA”), 29 U.S.C. § 621 et seq., and California’s Fair Employment and Housing Act

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(“FEHA”), California Government Code § 12900 et seq. Id. Plaintiff also alleges a claim for

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harassment in violation of public policy set forth in FEHA and a claim for failure to prevent

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discrimination and harassment under FEHA. Id.

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Now before the Court is defendant’s motion to dismiss the FAC for failure to state a claim.

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LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint

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if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a

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Rule 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief

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that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial

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plausibility” standard requires the plaintiff to allege facts that add up to “more than a sheer

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possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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The Court must assume that the plaintiff’s allegations are true and must draw all reasonable

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inferences in the plaintiff’s favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987).

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Although factual allegations are generally accepted as true for the purposes of the motion,

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the Court is not required to accept as true “allegations that are merely conclusory, unwarranted

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deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049,
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1055 (9th Cir. 2008). The Court, for example, need not accept as true “allegations that contradict

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matters properly subject to judicial notice or by exhibit.” Sprewell v. Golden State Warriors, 266

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F.3d 979, 988 (9th Cir. 2001); see also Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96

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(9th Cir. 1998) (“[W]e are not required to accept as true conclusory allegations which are

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contradicted by documents referred to in the complaint.”).
As a general rule, the Court may not consider materials beyond the pleadings when ruling

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on a Rule 12(b)(6) motion. Lee v. City of L.A., 250 F.3d 668, 689 (9th Cir. 2001). However,

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pursuant to Federal Rule of Evidence 201, the Court may take judicial notice of “matters of public

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record,” such as prior court proceedings. Id. at 688-89. The Court may also consider “documents

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attached to the complaint [and] documents incorporated by reference in the complaint . . . without

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United States District Court
Northern District of California

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converting the motion to dismiss into a motion for summary judgment. United States v. Ritchie,

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342 F.3d 903, 908 (9th Cir. 2003).

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If the Court dismisses the complaint, it must then decide whether to grant leave to amend.

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The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no

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request to amend the pleading was made, unless it determines that the pleading could not possibly

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be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)

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(citations and internal quotation marks omitted).

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DISCUSSION

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I.

Exhaustion of Administrative Remedies (Counts One, Three, Five, Six, Seven, Nine)

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Defendant argues that plaintiff’s claims under Title VII and FEHA should be dismissed for

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failure to exhaust her administrative remedies. Before bringing suit in court for violations of Title

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VII, a plaintiff must exhaust administrative remedies by filing “a charge with the EEOC within

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180 days of the alleged unlawful employment practice, or . . . if . . . the person initially instituted

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proceedings with the state or local administrative agency, within 300 days of the alleged unlawful

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employment practice.” Surrell v. California Water Serv. Co., 518 F.3d 1097, 1104 (9th Cir. 2008)

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(citing 42 U.S.C. § 2000e-5(e)(1). If the EEOC does not bring suit, it must notify the person

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through a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). After receiving a right-to-sue letter, a
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plaintiff has ninety days to file suit. Id.

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FEHA also has an exhaustion requirement. Before bringing a claim for violations of

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FEHA in court, a plaintiff must file a written charge of discrimination with the DFEH within one

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year of the alleged violation and obtain a notice of the right to sue from the DFEH. Rodriguez v.

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Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001); Cal. Gov’t Code § 12960(d).

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receiving a right to sue letter, a plaintiff has one year to file his or her FEHA claim in a judicial

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forum. Cal. Gov’t Code § 12965(b).

Upon

Plaintiff alleges that she filed two charges of discrimination with “the federal and state

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administrative agencies” and she attached both charges as exhibits to her FAC. FAC ¶¶ 7, 15.

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She also alleges that she “exhausted her administrative remedies” and “received right-to-sue letters

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United States District Court
Northern District of California

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from the federal and state agencies on both Charges.” Id. ¶ 15. The attached exhibits reveal

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charges filed with both the EEOC and DFEH in October 2012 and January 2014. FAC Ex. 1, 2.

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Defendant argues that because plaintiff did not identify the specific agencies that issued the

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right-to-sue letters, her pleading of administrative exhaustion is insufficient. However, plaintiff

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attached to the FAC the charges of discrimination that she filed with the EEOC and DFEH, and

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she alleges that she received right-to-sue letters on both charges. The Court reasonably infers that

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plaintiff received right-to-sue letters from the same federal and state agencies with whom she filed

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her charges. See Usher, 828 F.2d at 561 (requiring courts to draw all reasonable inferences in the

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plaintiff’s favor on a motion to dismiss).

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Defendant also argues that plaintiff failed to plead when she received right-to-sue letters to

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demonstrate that her suit is timely. Defendant has not cited any authority requiring a plaintiff to

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plead the date on which she received a right-to-sue letter. Courts have found sufficient complaints

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alleging only that a plaintiff exhausted his or her remedies by timely filing charges of

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discrimination with and receiving right-to-sue letters from the DFEH and EEOC. See, e.g.,

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Peterson v. State of California Dep’t of Corr. & Rehab., 451 F. Supp. 2d 1092, 1100, 1112 (E.D.

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Cal. 2006).

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The Court DENIES defendant’s motion to dismiss plaintiff’s FEHA and Title VII claims
for failure to adequately plead exhaustion of administrative remedies.
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II.

Harassment Claim (Count Eight)

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Plaintiff brings a claim for harassment in violation of the public policies set forth in FEHA

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(Count Eight). See FAC ¶ 23. Defendant argues that plaintiff failed to exhaust administrative

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remedies for her harassment claim.

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administrative remedies because she alleged a common law—not statutory—claim. In response,

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defendant argues that no common law cause of action for harassment exists, and that public

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entities cannot be sued for common law claims under California Government Code § 815(a).

Plaintiff argues that she does not have to exhaust any

Plaintiff relies on Rojo v. Kliger, 52 Cal.3d 65 (1990), to support her claim for harassment

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in violation of public policy. In Rojo, two female plaintiffs brought claims under FEHA and

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common law, alleging that sexual harassment forced them to leave their employment. 52 Cal.3d at

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United States District Court
Northern District of California

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71. The defendant argued that FEHA provided the only remedy for sex discrimination, requiring

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the plaintiffs to exhaust administrative remedies. Id. Rojo held that FEHA does not displace

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common law claims relating to employment discrimination, and that a plaintiff bringing common

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law and FEHA claims has to exhaust administrative remedies only for her statutory claims. Id. at

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82, 88. Rojo also identified a public policy against sexual harassment embodied in FEHA and the

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California Constitution, thus allowing the plaintiffs to bring a tort claim for wrongful discharge

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based on sex discrimination without exhausting administrative remedies. Id. at 90-91. Rojo does

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not, however, identify a common law cause of action for harassment in violation of public policy.

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Relying on Rojo, the California Court of Appeal held that there is no common law cause of

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action for sexual harassment. Medix Ambulance Serv., Inc. v. Superior Court, 97 Cal. App. 4th

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109, 118 (2002). The Medix plaintiff alleged a statutory claim for sexual harassment under FEHA

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and a "common law" claim for sexual harassment in violation of public policy, as reflected in

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FEHA and the California Constitution. Id. The court rejected the plaintiff's contention that she

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could bring a common law claim for sexual harassment, and that she need not exhaust

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administrative remedies for that claim:

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True, the Legislature has declared a state policy against sexual harassment, and this
policy is enshrined in the FEHA. Rojo v. Kliger, supra, 52 Cal.3d 65, 90-91,
concluded that article I, section 8 of the California Constitution embodies a general
public policy against sex discrimination, including sexual harassment, and that
there is no requirement a plaintiff exhaust administrative remedies before bringing
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an action for wrongful discharge based on sex discrimination. But plaintiff cites no
authority supporting a common law cause of action for sexual harassment. Because
the cause of action for sexual harassment is a creature of statute, plaintiff must
comply with the exhaustion requirements. (Rojo, at p. 83.)

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Id.; see also Baird v. Office Depot, No. 12-cv-6316, 2014 WL 2527114, at *8 (N.D. Cal. June 4,

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2014) (Chen, J.) (“The Court finds no authority that supports a general common law claim for

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violation of FEHA’s public policy.”).

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In addition, a public entity cannot be held liable for a common law cause of action under

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California law. See Cal. Gov’t Code § 815(a) (“Except as otherwise provided by statute: A public

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entity is not liable for an injury, whether such injury arises out of an act or omission of the public

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entity or a public employee or any other person”). Defendant, a school district, is a public entity

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under the California Government Code. See Cal. Gov’t Code § 811.2; Wright v. Compton Unified

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United States District Court
Northern District of California

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Sch. Dist., 46 Cal. App. 3d 177, 181-82 (Cal. Ct. App. 1975).

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The Court dismisses plaintiff’s claim for harassment in violation of public policy. The

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Court will grant plaintiff leave to amend to assert a statutory harassment claim under Title VII or

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FEHA if plaintiff wishes to do. However, if plaintiff alleges a statutory harassment claim, she

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must allege facts showing that her harassment claim “is like or reasonably related to the charge[s]”

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filed with the EEOC and DFEH and “would ‘reasonably have been uncovered in an investigation

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of the charges that were made.’” See Baird, No. 12-cv-6316, 2014 WL 2527114, at *3 (citing

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Okoli v. Lockheed Technical Operations Co., 36 Cal. App. 4th 1607, 1617 (Cal. Ct. App. 1995),

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and B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002)). Plaintiff must also allege

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facts demonstrating that: “(1) she is a member of a protected group; (2) she was subjected to

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harassment because she belonged to this group; and (3) the alleged harassment was so severe that

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it created a hostile work environment.” Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1244

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(9th Cir. 2013) (citing Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal.4th 121 (1999)).

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III.

Claims for Race- and Age-Based Discrimination Under Title VII, ADEA, and FEHA
(Counts One, Two, Five, Six)
Defendant argues that plaintiff’s claims for race- and aged-based discrimination must be

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dismissed for failure to plead a plausible prima facie case. A plaintiff is not required to plead a
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prima facie case of discrimination in order to survive a motion to dismiss. Sheppard v. David

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Evans & Assoc., 694 F.3d 1045, 1050 n.2 (9th Cir. 2012); Achal v. Gate Gormet, Inc., No. 15-cv-

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1570, 2015 WL 4274990, at *7 (N.D. Cal. July 14, 2015). When a plaintiff does plead a plausible

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prima facie case of discrimination, the complaint sufficiently states a claim. Sheppard, 694 F.3d

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at 1050 n.2. When a plaintiff does not plead a prima facie case, courts still look to the elements of

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the prima facie case “to decide, in light of judicial experience and common sense, whether the

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challenged complaint contains sufficient factual matter, accepted as true, to state a claim for relief

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that is plausible on its face.” Achal, 2015 WL 4274990, at *7.
To establish a prima facie case for race-based discrimination under Title VII and FEHA, a

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plaintiff must plead that: "(1) she is a member of a protected class; (2) she was qualified for her

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United States District Court
Northern District of California

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position; (3) she experienced an adverse employment action; and (4) “similarly situated

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individuals outside [her] protected class were treated more favorably, or other circumstances

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surrounding the adverse employment action give rise to an inference of discrimination.” Fonseca

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v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004); see also Metoyer v.

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Chassman, 504 F.3d 919, 941 (9th Cir. 2007) (“California courts apply the Title VII framework to

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claims brought under FEHA.”).

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Similarly, to establish a prima facie case for age-based discrimination under ADEA and

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FEHA, a plaintiff must allege that: (1) she was age forty or over; (2) she was qualified for the

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position or performed the job satisfactorily; (3) she suffered an adverse employment action; and

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(4) she was replaced by a substantially younger worker “with equal or inferior qualifications or

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discharged under circumstances otherwise giving rise to an inference of age discrimination to

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permit an inference of age discrimination.” Sheppard, 694 F.3d at 1049 (ADEA case) (original

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emphasis); see also Schechner v. KPIX-TV, 686 F.3d 1018, 1023 (9th Cir. 2012) (FEHA case).

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Defendant does not dispute that plaintiff sufficiently alleged the first two elements of the

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prima facie cases of race- and age-based discrimination. Defendant does, however, argue that

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plaintiff did not sufficiently allege the third and fourth elements: that she suffered adverse

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employment actions and was treated differently from similarly situated individuals. The Court

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disagrees.
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A.

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Title VII, ADEA, and FEHA all define unlawful employment practices to include

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discrimination against an individual with respect to her compensation, terms, conditions, or

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privileges of employment. See 42 U.S.C. § 2000e-2; 29 U.S.C. § 623(a)(1); Cal. Gov’t Code

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§ 12940(a). An employment action is adverse if it materially affects the compensation, terms,

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conditions, or privileges of employment. Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d

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1115, 1126 (9th Cir. 2000). The Ninth Circuit interprets this “broadly.” Fonseca, 374 F.3d at

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847. For instance, it has found that warning letters, transfers of job duties, and “undeserved

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performance ratings” are adverse employment actions. Id. (citing Yartzoff v. Thomas, 809 F.2d

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1371, 1376 (9th Cir. 1987)). California state courts have interpreted adverse employment action

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United States District Court
Northern District of California

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Adverse Employment Actions

to include “treatment that is reasonably likely to impair a reasonable employee’s job performance

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or prospects for advancement or promotion.” Horsford v. Bd. of Trs. of Cal. State Univ., 132 Cal.

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App. 4th 359, 373 (Cal. Ct. App. 2005). Alleged discriminatory actions may be considered

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collectively, as well as individually. Id. at 374.

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Plaintiff alleges that she suffered several employment actions because of race and/or age

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discrimination: she was removed from her position at Burton High School, received poor

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performance evaluations, was refused a permanent position, subjected to excessive monitoring,

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subjected to an extended PAR program, and not hired for three positions for which she was

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qualified. FAC ¶¶ 6, 12-13; FAC Ex. 2. Considered collectively, it is plausible that these actions

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materially affected plaintiff’s terms, conditions, and privileges of employment, and are reasonably

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likely to impair plaintiff’s job performance and opportunity for advancement. The Court finds that

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these allegations are sufficient at the pleadings stage.

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B.

Differential Treatment or Other Circumstances Giving Rise to Inference of
Discrimination

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For the fourth element of her prima facie case, plaintiff must allege that similarly situated
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individuals outside her protected class were treated more favorably, she was replaced by a
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substantially younger worker with equal or inferior qualifications, or other circumstances giving
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rise to an inference of race and age discrimination. See Fonseca, 374 F.3d at 847; Sheppard, 694

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F.3d at 1049. Plaintiff’s FAC alleges that she was replaced by “a younger, less experienced

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Caucasian teacher who lacked credentials.” FAC ¶ 10. Also, her first charge of discrimination

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alleges knowledge that “younger similarly situated White Teachers without Health Science and/or

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California Technical Education Credentials were not treated in a similar manner.” FAC Ex. 1.

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These allegations are sufficient to give rise to an inference of race and age discrimination.
The Court finds that plaintiff has alleged a plausible prima facie case of discrimination.

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IV.

Claims for Retaliation Under Title VII, ADEA, and FEHA (Counts Three, Four,
Seven)

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A prima facie case of retaliation requires a plaintiff to show that: (1) she undertook a
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United States District Court
Northern District of California

protected activity; (2) her employer subjected her to an adverse employment action; and (3) there
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is a causal link between the protected activity and the adverse action. Vasquez v. Cnty. of Los
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Angeles, 349 F.3d 634, 646 (9th Cir. 2003). Defendant does not dispute that plaintiff engaged in a
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protected activity. However, defendant argues that plaintiff has not sufficiently alleged that she
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suffered an adverse action or the causal link between the protected activity and the causal link.
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Under Title VII and ADEA, an adverse action for a retaliation claim is one that could
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“dissuade[] a reasonable worker from making or supporting a charge of discrimination.”

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Burlington N. & Santa Fe Rwy. Co. v. White, 548 U.S. 53, 68 (2006). FEHA differs slightly,
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requiring the same standard as a discrimination claim: an adverse action “must materially affect
the terms, conditions, or privileges of employment.” Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th

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1028, 1052 (Cal. 2005). As explained in Section III(A), supra, plaintiff has plausibly alleged
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adverse actions.
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To establish a causal connection between her protected activity and the adverse actions,
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plaintiff may allege direct evidence, or circumstantial evidence from which causation can be
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inferred, such as an employer’s “pattern of antagonism following the protected conduct,” Porter v.
Cal. Dep’t Corr., 419 F.3d 885, 895 (9th Cir. 2005), or the temporal proximity of the protected

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activity and the occurrence of the adverse action. Pardi v. Kaiser Found. Hosps., 389 F.3d 840,
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850 (9th Cir. 2004); Bell v. Clackamas Cnty., 341 F.3d 858, 865 (9th Cir. 2003); Yartzoff v.

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Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987). When relying solely on temporal proximity,

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however, a “specified time period cannot be a mechanically applied criterion. A rule that any

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period over a certain time is per se too long (or, conversely, a rule that any period under a certain

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time is per se short enough) would be unrealistically simplistic.” Porter, 419 F.3d at 895 (citation

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omitted).

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Plaintiff alleges that “[s]ince [p]laintiff complained of discrimination, she has been and

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continues to be discriminated against and harassed.” At the pleading stage, this alleged temporal

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proximity is sufficient to state a plausible causal link between her protected activity—filing

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charges of discrimination with the EEOC and DFEH—and the adverse actions.
The Court denies defendant’s motion to dismiss the retaliation claims.

United States District Court
Northern District of California

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V.

Claim for Failure to Prevent Discrimination & Harassment (Count Nine)

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Plaintiff’s final claim is for failure “to take all reasonable steps to prevent discrimination

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and harassment from occurring” under FEHA. FAC ¶ 24. To bring this cause of action, plaintiff

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must also plausibly allege discrimination and harassment claims. Trujillo v. N. Cnty. Transit Dist.,

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63 Cal. App. 4th 280, 289 (Cal. Ct. App. 1998) (“Employers should not be held liable to

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employees for failure to take necessary steps to prevent such conduct, except where the actions

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took place and were not prevented.”). As discussed supra, the Court finds that plaintiff has stated

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a claim for discrimination, but not for harassment. Thus, the Court dismisses the claim for failure

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to prevent harassment with leave to amend. If plaintiff amends her complaint to assert a statutory

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harassment claim, she may reassert her claim for failure to prevent harassment.

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CONCLUSION

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For the foregoing reasons, defendant’s motion to dismiss is granted as to the harassment

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claim, and denied for all other claims. Plaintiff is given leave to amend her harassment claim and

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must file a second amended complaint by November 6, 2015.

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IT IS SO ORDERED.

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Dated: October 29, 2015
______________________________________
SUSAN ILLSTON
United States District Judge

United States District Court
Northern District of California

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