The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District
MEMORANDUM & ORDER Defendants' motion to dismiss
Plaintiff Ray Klimasewski filed the present employment
discrimination action against defendants Antioch Middle School,
Antioch Unified School District, Principal William Walters, Vice
Principal Carol Lowart, and twenty-five unnamed defendants on
August 12, 2004. Plaintiff's first amended complaint alleges
discrimination on the basis of sexual orientation in violation of
Title VII of the Civil Rights Act of 1964,
42 U.S.C. section 2000e-5, as well as discrimination based on sexual orientation,
medical condition, and age in violation of the California Fair
Employment and Housing Act ("FEHA"), California Government Code
section 12900 et seq. Plaintiff also brings claims based on
California common law, including wrongful termination,
harassment, retaliation, and intentional infliction of emotional
distress. Presently before this court is defendants' motion to
dismiss. Having considered both parties' arguments and
submissions, and for the reasons set forth below, the court now enters the
following memorandum and order.
Plaintiff began working for Antioch Middle School as a teacher
in August, 2000. Plaintiff is openly gay. Principal Walter, a
defendant in this action, accused plaintiff of bringing
pornographic materials to his classroom. On September 12, 2002,
Walters entered plaintiff's classroom in his absence and, without
his knowledge or consent, searched all of the reading material
plaintiff had chosen for his students. No pornographic materials
On September 17, 2002, a student called plaintiff a "fag."
Plaintiff reported the incident to the school administration, but
it took no steps to address the situation. As part of his job,
plaintiff had to stand at his "duty post" during the change of
classes to monitor student movement in the hallways. During each
class change, students would call plaintiff "fag" as they passed
him in the hallway. Students would turn their heads in such a way
that plaintiff could not see their faces as they did this.
Plaintiff again complained, but the school administration
insisted that plaintiff continue to stand at his duty station
On October 28, 2002, plaintiff discovered that someone had
written "Fuck Mr. K the FAG" and "Mr. K is a Fucking FAG Bitch"
on one of his classroom walls. Plaintiff reported the incident to
the school, but no action was taken. On October 31, 2002,
plaintiff again found that someone had written on his wall "Fuck
Mr. K. The Fucking FAG Bitch." Again plaintiff reported the
incident, but again no remedial action was taken. Plaintiff
complained to Carol Lowart, the vice principal, about the
homophobic actions taken against him. When plaintiff told Lowart
that he had never experienced anything like these actions when he
worked in Stockton, she replied, "perhaps you should go back to
Stockton, a place where people like you belong." Although
plaintiff's students won an educational contest, plaintiff
received a negative performance evaluation. Plaintiff became
depressed due to all these problems at work, and on November 27,
2002, plaintiff's doctors placed him on medical leave for at least three months. Plaintiff
was terminated while he was still on medical leave.
On October 3, 2003, plaintiff filed a complaint for
discrimination with the federal Equal Employment Opportunity
Commission ("EEOC") and the California Department of Fair
Employment and Housing ("California DFEH"). On August 8, 2004,
plaintiff filed a complaint against defendants in this court. On
January 18, 2005, plaintiff filed his first amended complaint.
Defendants now move to dismiss.
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) should be granted if "it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claims
which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). Dismissal can be based on the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory. Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Allegations of
material fact are taken as true and construed in the light most
favorable to the nonmoving party. Cahill v. Liberty Mut. Ins.
Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The court need not,
however, accept as true allegations that are conclusory, legal
conclusions, unwarranted deductions of fact or unreasonable
inferences. See Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001); Clegg v. Cult Awareness Network,
18 F.3d 752, 754-55 (9th Cir. 1994). Moreover, the court need not
accept as true allegations that contradict matters properly
subject to judicial notice or by exhibit. See Mullis v. United
States Bankruptcy Court, 828 F.2d 1385, 1388 (9th Cir. 1987).
Defendants argue that plaintiff's claims should be dismissed in
part for failure to exhaust administrative remedies as required
by the EEOC and California DFEH.*fn2 In their reply,
defendants effectively conceded that their motion attacked claims
not appropriately dismissed for failure to exhaust administrative remedies.*fn3 Defendants now seek to
dismiss only plaintiff's age discrimination and medical condition
discrimination claims as outside the scope of plaintiff's initial
EEOC/California DFEH complaint. Consequently, the court confines
this order to discussion of plaintiff's age and medical condition
As a preliminary matter, this court takes judicial notice of
plaintiff's Complaint for Discrimination filed with the
California DFEH and the federal EEOC. Federal Rule of Evidence
201 provides in pertinent part: "A judicially noticed fact must
be one not subject to reasonable dispute in that it is either (1)
generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be
questioned." Fed.R. of Evi. 201(b). The rule instructs that
where a party has properly requested such notice and supplied the
court with the necessary information, a court "shall take
judicial notice." Fed.R. of Evi. 201(d). In the context of a
motion to dismiss, "documents whose contents are alleged in the
complaint and whose authenticity no party questions, but which
are not physically attached to the pleading, may be considered in
ruling on a Rule 12(b)(6) motion to dismiss." Branch v.
Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Plaintiff did not
physically attach his EEOC/California DFEH filing to his
complaint though he referenced the document. He does not
challenge the authenticity of the administrative complaint
submitted by defendants. Therefore, the court takes notice of
plaintiff's complaint for discrimination.
Having taken judicial notice of the original complaint, the
court turns to consider whether plaintiff properly exhausted his
claims for medical condition and age discrimination. Plaintiff's
fourth, sixth, and eighth causes of action allege age and medical
condition discrimination in violation of the FEHA. See Cal.
Gov't Code § 12900 et seq. Because FEHA is the state counterpart
to Title VII, the court may look to analogous federal authority
when interpreting the statutory exhaustion requirements of FEHA.
Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir.
2001) (citing Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192,
1201 (S.D. Cal. 1998)). The scope of this court's jurisdiction
over FEHA claims depends upon the scope of the plaintiff's EEOC/California DFEH charge. EEOC v. Farmer Bros. Co.,
31 F.3d 891, 897 (9th Cir. 1994). To be considered within the
jurisdictional scope of the original EEOC/California DFEH charge,
the claim must fall within the scope of a "reasonably thorough
investigation" by the EEOC/California DFEH, even if no such
investigation took place. Gibbs v. Pierce County Law Enforcement
Support, 785 F.2d 1396, 1400 (9th Cir. 1986). "When an employee
seeks judicial relief for incidents not listed in his original
charge to the EEOC, the judicial complaint nevertheless may
encompass any discrimination like or reasonably related to the
EEOC charge." Oubichon v. North American Rockwell Co.,
482 F.2d 569, 571 (9th Cir. 1973).
On plaintiff's initial EEOC/California DFEH complaint, he
checked only the "sex" and "sexual orientation" boxes as the
basis of his discrimination complaint. In plaintiff's first
amended complaint, he adds claims for discrimination based on age
and medical condition in violation of FEHA, California Government
Code section 12900 et seq. While a "reasonably thorough
investigation" of plaintiff's charge would reach incidents of sex
or sexual orientation discrimination not specifically mentioned
in the charge, it would not reach entire bases or categories of
discrimination not complained of to the EEOC or California DFEH.
These latter claims are thus outside the scope of the court's
jurisdiction. See, e.g., Shah v. Mt. Zion Hospital and Med.
Ctr., 642 F.2d 268, 271-272 (9th Cir. 1981). See also
Rodgers v. Henderson, No. C 99-3012 SI, 2000 WL 288384 *2-3
(N.D.Cal. March 13, 2000) (Illston, J) (holding that
administrative charge ...