Ou-Yooung v. Potter et al

Filing 34

ORDER RE: 32 DENYING PLAINTIFF'S MOTION FOR LEAVE TO SEEK RECONSIDERATION. Signed by Judge Richard Seeborg on 3/4/11. (rslc3, COURT STAFF) (Filed on 3/4/2011)

Ou-Young v. Potter et al

Doc. 34

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*E-Filed 3/4/11*

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION KUANG-BAO OU-YOUNG, Plaintiff, v. JOHN E. POTTER, UNITED STATES POSTMASTER GENERAL, Defendant. ____________________________________/ I. INTRODUCTION Plaintiff Ou-Young seeks leave to file a motion for reconsideration of the portion of this Court's Order granting defendant's motion to dismiss. The Order found that, despite three attempts to do so, Ou-Young failed to plead a facially plausible hostile work environment claim. Ou-Young now asks the Court to reconsider this finding. The United States has not opposed the request or otherwise indicated its position. II. LEGAL STANDARD & DISCUSSION The Local Civil Rules of the Northern District of California provide that "[b]efore the entry of a judgment adjudicating all of the claims and the rights and liabilities of all the parties in a case" any party may request leave to file a motion for reconsideration of an interlocutory order. N.D. Cal.,
NO. C 10-0464 RS ORDER

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No. C 10-0464 RS ORDER DENYING PLAINITFF'S MOTION FOR LEAVE TO SEEK RECONSIDERAITON

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Civil L.R. 7-9(a). Reconsideration generally is appropriate where a party can show that "a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order," and that "in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order." Rule 79(b)(1). A party might also introduce a "new material fact or a change of law occurring after the time of such order." Rule 7-9(b)(2). Finally, a "manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order" can warrant reconsideration. Rule 7-9(b)(3). Ou-Young argues the Order failed to consider material facts and dispositive legal arguments. That Order found that Ou-Young failed to plead a plausible hostile environment claim because he did not identify any facts suggestive or necessarily consistent with a race-based hostile working environment. Ou-Young argues here that the Court failed to consider an "alternative" test, as set forth by the Ninth Circuit in EEOC v. Hacienda Hotel, 881 F.2d 1504, 1515-16 (9th Cir. 1989), overruled on other grounds by Burrell v. Star Nursery, Inc., 170 F.3d 951 (9th Cir. 1999). OuYoung describes this "alternate standard" as follows: "The proper analysis for employer liability in hostile environment cases is what management-level employees knew or should have known, not whether an employee was acting within the scope of employment." (Pl. Mot. at 4: 17-20, citing Nichols v. Frank, 42 F.3d 503, 508 (9th Cir. 1989); Hacienda Hotel, 881 F.2d at 1515-16). Hacienda Hotel does not stand for the proposition that a plaintiff alleging a race-based hostile environment need not plead a connection to race. What Hacienda did hold was that an employer may be held liable for sexual harassment by one employee against another, where someone in a management position had actual knowledge of the harassment but did nothing. There was no question in Hacienda Hotel that the plaintiff had pleaded that her work environment was severely and pervasively hostile on the basis of gender. Id. at 514-17. The problem with OuYoung's claim was that he failed to do even this (substituting, of course, comments or behavior of a

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racial nature for those connected to gender). Accordingly, Ou-Young has presented no viable grounds to support reconsideration and it will not be afforded here.1 Finally, Ou-Young appears to ask that the Court reconsider the portion of the Order instructing him to remove claims identical to the ones dismissed as a result of defendant's first motion to dismiss. While Ou-Young apparently disagrees with this Court's analysis, he presents no new factual or dispositive legal arguments and reconsideration is not warranted. IT IS SO ORDERED.

Dated: 3/4/11 RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 To the extent Ou-Young's motion asks this Court to reconsider its dismissal of the criminal allegations he asserted against his former co-workers and employer, the request is denied. However ardently he believes his colleagues committed various crimes, Ou-Young cannot criminally "prosecute" them via civil litigation.
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1 2 3 4 5 6 7 8 9 10 Kuang-Bao P Ou-Young 1362 Wright Avenue Sunnyvale, CA 94087 THIS IS TO CERTIFY THAT A HARD COPY OF THIS ORDER WAS MAILED TO:

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DATED: 3/4/11

/s/ Chambers Staff Chambers of Judge Richard Seeborg

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