Robertson v. County of Alameda
Filing
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ORDER GRANTING MOTION TO DISMISS by Judge Jon S. Tigar granting 82 Motion to Dismiss. (wsn, COURT STAFF) (Filed on 6/9/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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FRANK ROBERTSON,
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Case No. 15-cv-03416-JST
Plaintiff,
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v.
ORDER GRANTING MOTION TO
DISMISS
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COUNTY OF ALAMEDA, et al.,
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Re: ECF No. 82
Defendants.
United States District Court
Northern District of California
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Before the Court is Defendants’ Motion to Dismiss Plaintiff’s Second Amended
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Complaint. The Court will grant the motion.
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I.
BACKGROUND
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This is the second Motion to Dismiss addressed by the Court in this case. Plaintiff Frank
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Robertson, an African-American male over the age of 60, originally filed suit against Defendants
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County of Alameda, Alameda County Social Services Agency, Dana Castillo, Lori Cox, Laura
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Jackson, Andrea Ford, Denise Robinson, and Gana Eason in Alameda County Superior Court.
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Defendants removed the case to this Court. ECF No. 1. The Court granted Defendants’ prior
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motion to dismiss in an order dated October 28, 2015, dismissing some claims with prejudice and
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other claims without prejudice. ECF No. 51.
The Second Amended Complaint (“SAC”), ECF No. 81, no longer names individual
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defendants but rather is brought against County of Alameda (“County”) and Does 1-100. SAC at
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1. It alleges that Mr. Robertson was first hired by the County in 1989, last held the position of
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“Supervisor,” and at all times mentioned in the complaint performed all his duties satisfactorily.
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SAC ¶ 9.1
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For purposes of deciding this motion, the Court accepts as true the material allegations of the
Second Amended Complaint. Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994).
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During his tenure, Plaintiff caused to be terminated the mother of Dana Castillo, who
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became his supervisor. Id. ¶ 10. Plaintiff alleges Ms. Castillo “had the purpose and intent on [sic]
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avenging the termination of her mother’s employment” and “led a campaign to have Robertson
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fired.” Id. ¶ 11. Ms. Castillo convinced other employees to “create a racially charged,
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discriminatory, and hostile work environment for Robertson,” and persuaded them “to formally
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charge Robertson with sexual harassment and terminate his employment.” Id.
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Bin Wong, a supervisor, stated Plaintiff is “an intimidator and harasser.” Id. ¶ 12. Plaintiff
complained to multiple people but the County did not investigate or take any action. Ms. Wong
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filed harassment and intimidating charges against Robertson. Id. ¶ 13. Ms. Wong also caused
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Hector Vu “to create a hostile work environment for Robertson.” Mr. Vu caused an employee,
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United States District Court
Northern District of California
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Theophilius Crump, to file complaints against Plaintiff. Id. ¶ 14. After an incident in Plaintiff’s
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office, Mr. Crump “left Robertson’s office mad and embarrassed,” “ran into a column and fell
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down,” and requested that another employee call the County Sheriff and 911. Id. Plaintiff was
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suspended for six months. On July 22, 2013, Plaintiff received a letter “that the allegation of
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workplace violence against him has been completed and that the allegation was not substantiated.”
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Id. During this investigation, Plaintiff “sought and received treatment for severe flash backs,
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relapses, depression, emotional problems, and psychological issues.” Id.
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When Plaintiff returned to work in July 2013, he posted the letter “exonerating him of the
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charges filed by Crump” on the bulletin board, but was reprimanded for doing so. Id. ¶ 15. The
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County did not separate Mr. Crump’s workplace from Plaintiff, which “made Robertson sick.” Id.
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Ms. Wong and her subordinates “started a campaign to recruit other staff members to file charges
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of harassment and intimidation against Robertson.” Id. ¶ 16. Plaintiff reported this, but the
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County did not do anything. Id. Plaintiff also alleges that other individuals, “two public Aid
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recipients,” have written letters complaining that Ms. Wong discriminated against them. Id. ¶ 17.
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In late summer of 2013, Ms. Castillo convinced Laura Jackson to file sexual harassment
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claims against Plaintiff. Ms. Jackson had previously written an email to Robertson referring to
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him as a “lazy Black man.” Id. ¶ 18. Plaintiff complained to Castillo, but she did not investigate
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the incident and instead took steps to destroy the e-mail. Id.
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Plaintiff was placed on administrative leave in December, 2013. Id. ¶ 19. Plaintiff was
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“troubled, depressed, and angry.” Id. The County terminated his employment on November 3,
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2014. Id. While Plaintiff was terminated “allegedly due to sexual harassment of his supervisor
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Dana Castillo,” John Kouch, who is white and a supervisory employee similarly situated to
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Robertson, was “found liable for sexually harassing coworkers [and] was not terminated.” Id. ¶
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20. When the County “found Kouch liable for the accusations of seeking and receiving sexual
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favors from his female subordinates in exchange of their promotion,” it only “suspended Kouch
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for three days without pay.” Id. Plaintiff alleges that the “sexual harassment charges against
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Robertson was a pretext to terminate him because of his race and to hide defendant’s employees
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discriminatory conduct towards Robertson.” Id.
United States District Court
Northern District of California
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The SAC brings three causes of action: (1) Race discrimination pursuant to Title VII and
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the California Fair Employment and Housing Act (“FEHA”); (2) Failure to take reasonable steps
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to prevent a hostile work environment; and (3) Retaliation. Id. ¶¶ 22-32. The County’s Motion to
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Dismiss was filed on April 1, 2016. ECF No. 82. Plaintiff filed a response on April 29, 2016.
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ECF No. 83. Plaintiff’s Response was filed two weeks after the deadline, and the County argues
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in its Reply that his opposition should be stricken. ECF No. 85 at 2. Nevertheless, because the
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County has been afforded a full opportunity to reply, the Court shall consider Plaintiff’s
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contentions.
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II.
LEGAL STANDARD
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief,” in order to “give the defendant fair notice of what the . . . claim is and
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the ground upon which it rests.” Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S.
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544, 555 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual
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matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
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556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A claim has facial plausibility
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when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
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the defendant is liable for the misconduct alleged.” Id. “Dismissal under Rule 12(b)(6) is
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appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support
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a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th
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Cir. 2008). The Court must “accept all factual allegations in the complaint as true and construe
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the pleadings in the light most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d
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1068, 1072 (9th Cir. 2005).
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III.
DISCUSSION
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The County argues that Plaintiff has failed to plausibly allege any of his three claims under
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Title VII or FEHA. The Court agrees. Further, it concludes that additional leave to amend would
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be futile.
A.
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Race Discrimination
To state a claim for discrimination, Plaintiff must demonstrate “(1) he belongs to a
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United States District Court
Northern District of California
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protected class; (2) he was qualified for the position; (3) he was subject to an adverse employment
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action; and (4) similarly situated individuals outside his protected class were treated more
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favorably.” Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir.
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2000).
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Plaintiff contends that he has alleged he was terminated because of his race and that other
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white employees received favorable treatment. ECF No. 83 at 7. However, as the County notes,
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Plaintiff’s dominant theory appears to be that he was subject to adverse employment action in
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retaliation for his firing the mother of another employee. See, e.g., SAC ¶ 11 (alleging Ms.
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Castillo “had the purpose and intent on [sic] avenging the termination of her mother’s
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employment” and “[a]s a result . . . led a campaign to have Robertson fired”). These allegations
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suggest that Plaintiff’s termination was in fact due to the firing of this employee, not to his race.
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See Ardalan v. McHugh, No. 13-CV-01138-LHK, 2013 WL 6212710, at *22 (N.D. Cal. Nov. 27,
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2013) (“Moreover, Ardalan's allegations in other sections of the Complaint suggest that any
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retaliation against her was the direct outcome of her whistleblowing in 1992 regarding the quality
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of DLI's curriculum, and not her national origin.”).
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Plaintiff further contends that he has identified Mr. Kouch, another employee who was
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disciplined for sexual harassment charges, as a “similarly situated individual” who was “treated
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more favorably.” However, the County notes that Plaintiff has failed to allege whether the charges
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against Mr. Kouch were similar to the charges against Plaintiff. ECF No. 82 at 10. In the absence
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of that information, it is not possible to determine whether Mr. Kouch was “similarly situated” to
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Plaintiff since, as the County notes, Mr. Kouch’s less severe discipline could be explained by a
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difference in the charges against each employee. Id. Indeed, there are many other possible
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explanations for the differences in treatment of Mr. Kouch and Plaintiff, such as the fact that
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Plaintiff had previously been suspended and been the subject of other complaints. See SAC ¶¶ 13-
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18. “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops
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short of the line between possibility and plausibility of entitlement to relief.” Ashcroft v. Iqbal,
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556 U.S. 662, 678 (2009) (citation omitted).
Plaintiff does not respond to the County’s argument, but instead continues to assert that
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United States District Court
Northern District of California
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Mr. Kouch is “similarly situated” to Plaintiff by virtue of also having been accused of sexual
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harassment. ECF No. 83 at 8. This conclusory statement is insufficient. Plaintiff also contends
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that other non-African-American employees were treated more favorably because their complaints
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against Plaintiff received a response, while Plaintiff’s complaints did not. Id. Here, too, Plaintiff
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has not plausibly alleged that these other employees were similarly situated to Plaintiff merely
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because all of them made complaints to their supervisors.
Accordingly, the Court grants the County’s motion to dismiss Plaintiff’s first cause of
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action.
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B.
Hostile Work Environment
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“When the workplace is permeated with ‘discriminatory intimidation, ridicule, and insult,’
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that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and
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create an abusive working environment,’ Title VII is violated.” Harris v. Forklift Sys., Inc., 510
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U.S. 17, 21 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986)).
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This standard “takes a middle path between making actionable any conduct that is merely
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offensive and requiring the conduct to cause a tangible psychological injury.” Id. Under FEHA,
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harassment in the workplace may constitute “discriminatory intimidation, ridicule, and insult that
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is sufficiently severe or pervasive to alter the conditions of the victims’ employment and create an
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abusive working environment.” Rehmani v. Superior Court, 204 Cal. App. 4th 945, 951 (2012)
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(citation omitted).
Plaintiff asserts that he “suffered a lot of harassment at the hands of the employees of
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defendant and directly from defendant” and identifies many of the allegations in his complaint.
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Once again, however, these allegations of harassment are connected to the purported desire of Ms.
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Castillo to “avenge” Plaintiff’s termination of her mother. Indeed, Plaintiff once more asserts in
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his responding brief that these various acts of harassment resulted from “[Ms.] Castillo’s
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conspiracy and plan to get plaintiff terminated.” ECF No. 83 at 9.
Allegations of harassment or a hostile work environment generally are insufficient to bring
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a claim under Title VII or FEHA. Rather, these allegations must be connected to some kind of
protected status – in this case, to Plaintiff’s race. See 42 U.S.C. § 2000e-2(a)(1) (prohibiting
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United States District Court
Northern District of California
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discrimination “because of such individual’s race, color, religion, sex, or national origin”
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(emphasis added); Cal. Gov’t Code § 12940(j)(1) (prohibiting harassment of an employee
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“because of race, religious creed, color, national origin, ancestry, physical disability, mental
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disability, medical condition, genetic information, marital status, sex, gender, gender identity,
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gender expression, age, sexual orientation, or military and veteran status” (emphasis added)).
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Though Plaintiff’s brief asserts that “[i]f plaintiff was not an African American he would not have
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suffered this discriminatory treatment,” it offers no factual allegations to support this conclusion.
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Plaintiff does allege that one employee sent an e-mail to him calling him a “lazy Black man.”
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SAC ¶ 18. But this action, while reprehensible, is not sufficient to demonstrate a “pervasive”
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hostile work environment. “Simply causing an employee offense based on an isolated comment is
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not sufficient to create actionable harassment under Title VII.” McGinest v. GTE Serv. Corp., 360
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F.3d 1103, 1113 (9th Cir. 2004) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
Accordingly, the Court grants the County’s motion to dismiss Plaintiff’s second cause of
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action.
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C.
Retaliation
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Under both Title VII and FEHA, a plaintiff may bring a prima facie case of retaliation by
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showing that (1) she engaged in a protected activity, (2) the employer subjected her to an adverse
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employment decision, and (3) there was a causal link between the protected activity and the
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employer's action. Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 506
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(9th Cir. 2000); see also Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005) (using the
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same standard for FEHA claims). The protected activity must relate either to an employee’s
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opposition to a practice made unlawful by Title VII or FEHA, or the employee’s participation in
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an investigation, proceeding, or hearing under one of those acts. 42 U.S.C. § 2000e-3(a); Cal
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Gov’t Code 12940(h).
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As the County notes, Plaintiff’s SAC contain no allegations of a protected activity with a
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causal link to the County’s adverse employment decision. ECF No. 82 at 14. The only allegation
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of racial discrimination involves an e-mail that refers to Plaintiff as a “lazy Black man.” SAC ¶
18. Since Plaintiff complained about this e-mail, this conduct could arguably constitute a
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United States District Court
Northern District of California
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protected activity. Id. However, the County persuasively argues that Plaintiff has failed to allege
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any connection between Plaintiff’s complaints and the County’s actions, especially since there was
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at least a five or six-month gap between the two events. ECF No. 82 at 14.
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Plaintiff declines to respond to any of these arguments. Instead, his brief contends that his
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termination of Ms. Castillo’s mother during the restructuring of the County’s agency is a protected
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activity. ECF No. 83 at 10. It is unclear how the termination of another employee would
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constitute opposition to a practice made unlawful under Title VII or FEHA, or participation in an
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administrative investigation or proceeding, and Plaintiff offers no clarification in this regard.
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Accordingly, the Court grants the motion to dismiss Plaintiff’s third cause of action.
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D.
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A party “may amend its pleading only with the opposing party’s written consent or the
Leave to Amend
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court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P.
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15(a)(2). “Dismissal without leave to amend is proper if it is clear that the complaint could not be
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saved by amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). “A
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district court’s discretion to deny leave to amend is particularly broad where the plaintiff has
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previously amended.” Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (internal
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quotation marks omitted).
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This is Plaintiff’s second attempt at amendment following the Court’s prior order granting
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a motion to dismiss. Plaintiff acknowledges this, but contends that he should be granted further
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leave to amend because this is the first substantive complaint filed after Plaintiff had switched to
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his current counsel. ECF No. 83 at 11. However, the same deficiencies found in all three of
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Plaintiffs’ claims were identified in the Court’s prior order dismissing Plaintiff’s First Amended
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Complaint. See ECF No. 51 at 6-7 (“The allegation that another employee violated ‘these
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policies’ is too vague and conclusory to allege that the Caucasian employee and Robertson were
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similarly situated.”); id. at 6 (noting that Plaintiff had not alleged actionable harassment and that
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his allegation of an e-mail referring to him as a “lazy black man” was insufficient because it was
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an “isolated comment”); id. at 4-5 n.2 (noting that Plaintiff conceded Defendants’ argument that
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he “fails to allege any facts showing a causal link between his alleged complaints to management
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United States District Court
Northern District of California
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and his termination.”). Given that Plaintiff, even with the advantage of his current counsel, was
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unable to remedy those deficiencies in his SAC, it is unclear how he would be able to do so in a
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Third Amended Complaint. Accordingly, the Court concludes that further leave to amend would
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be futile and grants the County’s motion to dismiss with prejudice.
CONCLUSION
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The County’s motion to dismiss is granted with prejudice. The Clerk shall close the file.
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IT IS SO ORDERED.
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Dated: June 9, 2016
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______________________________________
JON S. TIGAR
United States District Judge
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