Lam et al v. Newsom et al

Filing 29

ORDER by Judge Hamilton Granting 25 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 11/9/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ALFRED LAM, et al.,
Plaintiffs,

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ORDER GRANTING MOTION
TO DISMISS

THE CITY AND COUNTY OF SAN
FRANCISCO, et al.,

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For the Northern District of California

United States District Court

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v.

No. C 10-4641 PJH

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Defendants.
_______________________________/

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Defendant’s motion to dismiss plaintiffs’ second, third, and fourth causes of action

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came on for hearing before the court on November 9, 2011. Plaintiffs appeared through

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their counsel, Dow Patten. Defendant City and County of San Francisco (“CCSF”)

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appeared through its counsel, Rafal Ofierski. Having reviewed the parties’ papers and

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carefully considered the parties’ oral arguments and the relevant legal authority, and good

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cause appearing, the court hereby GRANTS defendant’s motion to dismiss, for the reasons

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stated at the hearing, and summarized as follows:

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It is generally true, as defendant argues, that claims asserted pursuant to 42 U.S.C.

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§ 1981 require a contractual relationship. See Domino's Pizza, Inc. v. McDonald, 546 U.S.

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470, 476 (2006). It is also true that California law establishes that public employees hold

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their positions as a result of statute rather than contract. See, e.g., Miller v. State, 18 Cal.

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3d 808, 813 (1977). However, pursuant to Judie v. Hamilton, courts have generally been

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expanding the scope of claims that plaintiffs, notwithstanding their public status, may

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nonetheless assert against a public employer pursuant to section 1981. See 872 F.2d 919

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(9th Cir. 1989); see, e.g., Ramirez v. Kroonen, 2002 WL 1837932 (9th Cir., Aug. 12,

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2002)(allowing denial of promotion claim to proceed under section ); see also White v.

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Davis, 68 P.3d 74 (Cal. 2003)(affirming that public employees hold their position as a result

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of statutes rather than contracts but noting that once "a public employee has accepted

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employment and performed work for a public employer, the employee obtains certain rights

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arising from the legislative provisions that establish the terms of the employment

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relationship-rights that are protected by the contract clause of the state Constitution from

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elimination or repudiation by the state"). These recent developments in the case law

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suggest that, where a plaintiff clearly alleges an act of discrimination that goes directly to

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the heart of a tangible right - i.e., promotion, right to earned compensation - then a claim

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may go forward pursuant to section 1981. However, where the plaintiff alleges only
generalized intentional discrimination in the workplace, no contractual rights are implicated,

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For the Northern District of California

United States District Court

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and a claim under the statute is precluded.

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Here, plaintiffs’ first amended complaint includes allegations that are similar to –

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albeit more recent than – the allegations made by plaintiffs in a similar case, Lam v. CCSF,

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C 08-4702 PJH (“Lam I”). In Lam I, the court dismissed plaintiffs’ section 1981 claims, on

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grounds that plaintiffs had alleged insufficient facts to establish any contractual employment

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right. Because the allegations here are similar to those made in Lam I, defendant now

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argues that the court’s prior ruling should apply to the present action with equal weight.

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The court agrees. Although plaintiffs have attempted to avoid the infirmities present

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in Lam I by including allegations that the plaintiffs were explicitly denied promotions and the

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opportunities for promotion on the basis of race, these allegations are at best conclusory,

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and devoid of factual details sufficient to establish a plausible claim for relief pursuant to

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section 1981 (such as factual allegations answering the who, what, where and when

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questions regarding alleged promotion denials). Stripped of the cursory allegations

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regarding promotion denials, plaintiffs’ underlying complaint is remarkably similar to the

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complaint in Lam I, and generally alleges what can best be characterized as generalized

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intentional discrimination in the workplace.

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Accordingly, and based on the foregoing, defendant’s motion to dismiss the second,

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third, and fourth causes of action in the first amended complaint is GRANTED. Plaintiffs

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are granted leave to amend, however, in order to allege additional facts that would be

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sufficient to support the existence of a contractual employment right pursuant to section

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1981. Plaintiffs are granted 28 days from the date of this order, or until December 7, 2011

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to file their amended complaint.

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IT IS SO ORDERED.

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Dated: November 9, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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