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United States District Court, N.D. California

April 11, 2005.


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 were found.

  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 without assistance.

  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 discrimination claims.

  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 ยง 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 alleging race and sex discrimination did not exhaust remedies for disability discrimination claim not included in EEOC charge). Therefore, this court does not have jurisdiction over plaintiff's claims of age and medical condition discrimination.


  For the foregoing reasons:

1. Defendants' motion to dismiss plaintiff's claims of age and medical discrimination, appearing in claims four, six, and eight, is GRANTED. 2. Defendants' motion to dismiss plaintiff's remaining claims is DENIED.

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