The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Motion to Dismiss Amended Complaint or, in the Alternative, to Strike (Doc. # 13).
On October 18, 2006, Plaintiff Mary E. Bullock initiated this action by filing the Complaint (Doc. # 1). On March 3, 2008, Plaintiff filed the First Amended Complaint ("FAC") (Doc. # 9), which is the operative pleading in this action. The FAC alleges that Plaintiff worked as an Administrative Judge for the Equal Employment Opportunity Commission ("EEOC") since 1999. FAC, ¶ 5. The FAC names the following Defendants in their official and individual capacities: Cari Dominguez, EEOC Chairwoman; John F. Sherluck, III, Agency Representative; Leonara L. Guarraia, Chief Operating Officer; Nicholas Inzio, Director of Operations; Denise Lee, Reasonable Accommodation Coordinator; Olophius Perry, Director of the Los Angeles District Office; and Evelyn Gunn and Christine Siegel, who at all relevant times were Plaintiff's first level supervisors. Id., ¶ 7.
The FAC alleges that Plaintiff suffers from multiple sclerosis. The FAC alleges that Defendants refused to accommodate Plaintiff's reasonable requests for accommodations related to her multiple sclerosis; retaliated against Plaintiff after she complained about disability discrimination, failure to accommodate her disability, and failure to engage in the interactive process; and harassed Plaintiff because of her multiple sclerosis during her employment. FAC, ¶¶ 142, 147, 152. The FAC alleges the following three causes of action:
(1) Disability Discrimination - Failure to Accommodate, in violation of the Americans with Disabilities Act, 42 U.S.C. section 12101(8), et seq. ("ADA");
(2) Unlawful Retaliation, in violation of the ADA and section 12940 of the California Government Code; and
(3) Unlawful Harassment - Hostile Work Environment, in violation of the ADA, Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. section 2000e-2, 3(a) ("Title VII"), and section 12940 of the California Government Code.
The FAC alleges that Plaintiff exhausted her administrative remedies with respect to her Title VII claims prior to filing her lawsuit in federal court. The FAC alleges that in January 2003, Plaintiff timely filed an informal complaint against her employer, the EEOC, with the Office of Equal Employment Opportunity ("OEEO"). FAC, ¶ 9. The FAC alleges that on or about May 3, 2003, Plaintiff filed a formal complaint with the OEEO. Id. The FAC alleges that the "liability phase was held on 1/24-1/26, 6/1-6/3, and 8/10-8/12 and 8/15, all in 2005. The damage phase of the hearing was conducted on April 15, 2006. A finding was made in favor of Plaintiff on liability." Id. The FAC alleges that, "after exhausting her administrative remedies and believing the futility of appealing the decision within the [EEOC's] own appellate division, [Plaintiff] filed in Federal District Court on October 13, 2006." Id. The FAC alleges that "Plaintiff received a Final Order, after a hearing, from the EEOC and has timely filed this lawsuit within 90 days of receipt of said Final Order." Id.
On March 14, 2008, Defendants filed the Motion to Dismiss Amended Complaint or, in the Alternative, Motion to Strike ("Motion to Dismiss") pursuant to Rules 4(i), 12(b)(1), 12(b)(5), 12(b)(6), 12(f) and 41(b) of the Federal Rules of Civil Procedure. Defendants contend that "the Court lacks jurisdiction over the subject matter of the action, the federal government has not waived sovereign immunity with respect to Plaintiff's claims, Plaintiff failed to exhaust her administrative remedies, Plaintiff failed to effect service of process, Plaintiff failed to state a claim on which relief may be granted, Plaintiff has alleged improper matters, [and] Plaintiff has named impermissible Defendants." Mot. to Dismiss, p. 2. On April 14, 2008, Plaintiff filed a Response in Opposition to the Motion to Dismiss (Doc. # 14). On April 21, 2008, Defendants filed a Reply (Doc. # 16).
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move for dismissal on grounds that the court lacks jurisdiction over the subject matter. FED R. CIV. P. 12(b)(1). The burden is on the plaintiff to establish that the court has subject matter jurisdiction over an action. Assoc. of Medical Colleges v. United States, 217 F.3d 770, 778-779 (9th Cir. 2000). In resolving an attack on a court's jurisdiction, the court may go outside the pleadings and consider evidence beyond the complaint relating to jurisdiction without converting the motion to dismiss into a motion for summary judgment. Safe Air For Everyone v. Doyle, 373 F.3d 1035, 1039 (9th Cir. 2004).
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978); see FED R. CIV. P. 12(b)(6). A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the "right of relief above the speculative level." Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1965 (2007). Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show "that the pleader is entitled to relief." See id. (citing FED R. CIV. P. 8(a)(2)). In ruling on a motion pursuant to Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff, and must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Robertson v. Corrothers, 812 F.2d 1173, ...