The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER ON DEFENDANT'S MOTION AMENDED COMPLAINT PURSUANT TO DISMISS PLAINTIFF'S FIRST TO FED. R. CIV. P. 12(b)(6) MOTION TO STRIKE PURSUANT TO FED. R. CIV. P. 12(f) (DOC. 44) AND MOTION FOR SANCTIONS
Plaintiff David Paul Davenport ("Davenport") brings this pro se action under Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e-3(a), based on a claim of unlawful retaliation by his former employer, Defendant State Center Community College District ("District"). In his First Amended Complaint ("FAC"), Davenport alleges the District suspended him in May 2002 and fired him in January 2003 in retaliation for a sexual harassment and discrimination complaint he submitted to the District against his supervisor, Dr. Margaret E. Mericle. Plaintiff also asserts the District has engaged more recently in post-employment retaliation by interfering with his prospective employment.
Before the court for decision are: 1) Defendant's Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6), or in the Alternative, Motion to Strike Pursuant to Fed. R. Civ. P. 12(f), and 2) Defendant's Motion for Sanctions. Defendant seeks dismissal for failure to state a claim upon which relief may be granted on grounds that the Title VII retaliation claim and allegations made in the FAC do not materially differ from those made in Plaintiff's original complaint, which was dismissed with leave to amend on January 17, 2008. (Doc. 36.) Accordingly, Defendant seeks dismissal on the following grounds: 1) any claim for retaliation based on alleged acts prior to and including the date of the Board of Trustees' decision to terminate Plaintiff, which was January 7, 2003, is barred because Plaintiff did not submit his claim to the Equal Employment Opportunity Commission ("EEOC") within the Title VII filing limitations period as required by 42 U.S.C. § 2000e-5(e)(1), and 2) any claim for retaliation based on recent alleged acts in November and December of 2006 is barred because Plaintiff has failed to first exhaust his administrative remedies as required by 42 U.S.C. § 2000e-5(e)(1). In the alternative, Defendant seeks to strike portions of the FAC on grounds that it contains redundant, immaterial, impertinent, and scandalous allegations that have no bearing on Plaintiff's retaliation claim.
Defendant moves for sanctions against Plaintiff pursuant to Fed. R. Civ. P. 11, 28 U.S.C. § 1927, and the district court's inherent authority on the grounds that Plaintiff's FAC is frivolous, was filed for an improper purpose, and was filed in bad faith.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Summary of the First Amended Complaint
Plaintiff alleges he was suspended and later fired from his position as a tenured history instructor at Fresno City College by the District's Board of Trustees in retaliation for making an accusation of discrimination and sexual harassment against his supervisor, Dr. Margaret Mericle. He asserts that in doing so, the District violated Title VII of the Civil Rights Act of 1964. Plaintiff seeks relief in the form of reinstatement, lost wages and expenses, out-of-pocket medical and dental expenses, and STRS contributions. (FAC at 27.) He also requests damages in the amount of $1.5 million. (Id.) Plaintiff's FAC contains a long list of allegations of allegedly improper and unlawful conduct by the District, which Plaintiff asserts are all separate instances of retaliation against him by the District.
Plaintiff's FAC is twenty-seven pages long with one-hundred and twenty-one pages of attachments, the latter comprised of thirty-one exhibits. It begins with five pages of argument in which he attempts to demonstrate that certain conclusions reached in the January 17, 2008 order are without merit. Specifically, the Plaintiff states that in the order "two reasons for possibly dismissing Plaintiff's suit are set forth in a lengthy footnote. These are 1) that the Board of Trustees of the State Center Community College, a state agency, possess immunity, a defense not made by the Defendants in their 'Motion to Dismiss...', and 2) that a two-year statute of limitations beginning in January 2003 bars Plaintiff's suit." (Doc. 40, FAC at 3.) Plaintiff's original complaint was not dismissed on these grounds, but the decision addressed what appeared to be an attempt by Plaintiff to assert a 42 U.S.C. § 1983 claim against the District in a footnote on page 2 of his original complaint.
1) Allegations of Retaliation In his FAC, Plaintiff's main allegation is that he was fired in retaliation for a sexual harassment and discrimination complaint he filed against his supervisor. Plaintiff explains that he wrote a sexual harassment and discrimination complaint against Dr. Mericle and delivered it to her supervisor, Tony Cantu, on March 19, 2002. Six weeks later, on May 6, 2002, Plaintiff was placed on administrative leave by Randy Rowe, the District's assistant vice chancellor for human resources, who cited misconduct allegations against Plaintiff as the reason for this administrative action. Plaintiff asserts that no allegations of misconduct against him existed and that any such allegations were entirely fabricated. On January 7, 2003, the District's Board voted to terminate Plaintiff's employment.
Plaintiff alleges that various other actions by the District prior to January 7, 2003 constituted retaliatory conduct separate and apart from his termination. He asserts that his suspension from duty on May 6, 2002 was an act of retaliation as was the denial of compensation of approximately $3000 he was to receive for a summer school class he was scheduled to teach before his suspension took place. (FAC at 11.) Further, Plaintiff contends Mr. Rowe engaged in an act of retaliation when he withheld documents that he was contractually obligated to "promptly" provide Plaintiff until November 8, 2002. Specifically, Plaintiff states:
After May 6, 2002, the Defendant's and their agents, in particular Mr. Randy Rowe and General Counsel Eileen O'Hare, retaliated many hundreds of times or many Mr. Rowe withheld from the Plaintiff approximately 100 conduct the count. It is an incontrovertible fact that thousands of times depending on how one wants to pages of documents that he was contractually obligated to "promptly" provide to Plaintiff. These should have been given to the Plaintiff no later than May 6, 2002, but none were, prior to November 8, 2002, when the Plaintiff was notified by mail that "the State Center District" (Exhibit 13). Enclosed with this mailing you be dismissed from your employment with the Community College District "intends to recommend that were many of the documents subsequently entered into evidence by the Defendants at Plaintiff's administrative hearing. As such it is Plaintiff's contention that each day that one of these documents was withheld from the Plaintiff from the day on which it was created until November 8, 2002, at the earliest constitutes a discrete act of retaliation. The Defendants are, therefore, guilty of literally Plaintiff. furtherance of their illegal dismissal of the thousands of instances of breach of contract in (FAC at 12.)
Plaintiff further complains that Mr. Rowe retaliated against him by concocting allegations of misconduct by Plaintiff. Mr. Rowe notified Plaintiff of the allegations in a letter in which he wrote, "I have learned of very serious allegations of misconduct against you, including possible sexual harassment." (FAC, Exhibit 14 at 63.) Plaintiff asserts no such allegations existed and that he and his union representative, Mr. Zwi Reznik, requested that Mr. Rowe specifically identify the allegations as required by the operative collective bargaining agreement. Plaintiff alleges that when Mr. Rowe did not identify the allegations, he and Mr. Reznik attempted to file a grievance against Mr. Rowe under the collective bargaining agreement but Mr. Rowe, who Plaintiff asserts is the individual responsible for assigning grievance numbers, refused to process the grievance form. Plaintiff asserts this is a separate act of retaliation. Plaintiff claims:
This breach of contract is yet another act of act of retaliation? If so, that took place on Monday Rowe failed to assign a Grievance Number count as an retaliation by the Defendants. Shall each day that Mr. May 13, 2002, and today in Tuesday, March 11, 2008. That's 2,130 acts of retaliation, given that the Ninth Circuit Court has defined retaliation as "any adverse employment action reasonably likely to deter employees from engaging in protected activity." Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). Only behavior by Dr. Mericle, Mr. Rowe, and others as a College have been deterred from reporting questionable GOD knows how many of my fellow faculty at Fresno City result of the illegal and unpunished behavior of the Defendants. (FAC at 13-14.)
Plaintiff also contends that the investigation of the accusations against him, which took place after he was placed on leave, was improper because no written complaint existed as required by the collective bargaining agreement before an investigation is initiated. Further, Plaintiff complains that he was denied his right to respond to the investigative report. As such, Plaintiff alleges the investigation was a separate instance of retaliation. He further asserts that the District's actions violated various policies of the Board of Trustees and provisions of the California Education Code in contravention of his employment contract.
After he was fired, Plaintiff alleges the District continued to retaliate against him. Plaintiff claims he was denied a substitute teaching credential because the District "sabotaged Plaintiff's effort to be a substitute teacher by sending a copy of the unsubstantiated accusations by fax to the California Commission on Teacher Credentialing in December, 2006." (FAC at 18.) Plaintiff also claims the fact that he was denied a position at San Joaquin Memorial High School is "yet another 'adverse employment action' by the Defendants." (Id.)
2) Filing Charges With DFEH and EEOC Plaintiff alleges that he contacted the California Department of Fair Employment and Housing ("DFEH") in early October 2002 to make a Title VII retaliation complaint against the District. (FAC at 8.) Plaintiff attaches as Exhibit 1 a letter from the DFEH to Plaintiff notifying him of an appointment scheduled for November 19, 2002 for an interview at DFEH's Fresno office and enclosing a pre-complaint questionnaire for Plaintiff to complete. (FAC, Exhibit 1.) He attended this interview on November 19, at which he met with DFEH employee Rafael Gonzalez. Plaintiff asserts that he gave Mr. Gonzalez the pre-complaint questionnaire and answered a number of questions asked by Mr. Gonzalez. (FAC at 8.)
Plaintiff asserts he later received a letter from DFEH, dated November 25, 2002 and signed by Mr. Gonzalez, containing two enclosures, a "Notice of Discrimination Complaint Accepted for Filing Purposes" and a partially completed "Complaint of Discrimination." (FAC, Exhibits 3 & 4.) The November 25 DFEH letter reads in part:
I apologize for taking longer than expected in getting back to you regarding your wish to file a complaint with this agency ... Therefore, based on this Consultant's review of your situation and a review of the documentation provided, a complaint for investigation will not be taken on your behalf. As I indicated to you, I will be including in this letter a 'B' complaint for filing purposes, which will be served on the Respondent once you provide the form back. You will also be issued the 'Right to Sue' shortly thereafter, which will authorize you to file a private law suit on your own behalf if you so desire.
(FAC, Exhibit 3.) Exhibit 4 is the notice enclosed with the letter. At the top of the page it reads, "DISCRIMINATION COMPLAINT ACCEPTED FOR FILING PURPOSES," in text that is underlined, bolded, and capitalized. The notice also states:
Your allegation of discrimination against Fresno City College has been considered. the Department of Fair Employment and Housing will file your complaint. Analysis of the facts and circumstances which you allege indicates that further investigation is not warranted. As the Department has determined that it will not be issuing an accusation of discrimination, you will be advised by mail of your right to file a private lawsuit.
(FAC, Exhibit 4.) Plaintiff maintains he completed the complaint form included with the letter and notice and returned it by mail on November 30, 2002.*fn1 (FAC, Exhibit 5.) Exhibit 5 reveals a completed DFEH complaint form, signed by Plaintiff and dated November 30, 2002. The form does not show a date of receipt or receipt stamp and the "Date Filed" line is blank.
Plaintiff claims he contacted DFEH multiple times after he returned the complaint form, writing several letters to Mr. Gonzalez and making several phone calls that went unreturned. (FAC at 9-10; Exhibit 7.) Plaintiff did not hear anything from the agency until he contacted Geraldine Reyes, District Administrator of DFEH, who sent him a notice of case closure and right-to-sue letter dated August 17, 2006. (FAC, Exhibit 8.)
After receiving the DFEH right-to-sue letter, Plaintiff alleges he filed a charge with the EEOC after meeting with EEOC employee Naomi Villa on November 17, 2006. The EEOC issued him a right-to-sue notice on December 29, 2006. (FAC, Exhibit 11.)
B. Administrative Hearing and Appeals to State Courts
Plaintiff submitted a notice of opposition to the District's decision to terminate his employment within 30 days of the decision. He then submitted the matter to an arbitrator who declined to hear it because the collective bargaining agreement did not grant him review authority. In September 2003, an administrative hearing was held and in a later issued decision an administrative law judge sustained the District's decision to dismiss Plaintiff. Plaintiff subsequently petitioned the Superior Court of California, County of Fresno, for a writ of mandamus, which was denied. Plaintiff appealed this denial to the Fifth District Court of Appeal, which affirmed the judgment of the Superior Court. Finally, Plaintiff petitioned the California Supreme Court for review. Review was denied.
Plaintiff filed his complaint on March 29, 2007 and attached the December 29, 2006 right-to-sue notice he received from the EEOC. (Doc. 1.) Defendant filed its Motion to Dismiss Plaintiff's Complaint Pursuant to Fed. R. Civ. P. 12(b)(6), or in the Alternative, Motion for a More Definite Statement Pursuant to Fed. R. Civ. P. 12(e) on June 22, 2007. (Doc. 14.) Plaintiff responded by filing "Plaintiff's Response to Defendant's Motion to Dismiss and to Defendant's Memo. of P & A" on July 25, 2007, in which he opposed Defendant's motion. (Doc. 17.) Plaintiff attached various letters to his response, including correspondence between him and Mr. Rowe, a page of the administrative hearing transcript, and a page of the Fifth District Court of Appeal's opinion. (Id.) Defendant filed a reply on August 20, 2007, along with a request for judicial notice of four documents, which was granted: the discrimination complaint Plaintiff filed with DFEH and the corresponding letters from DFEH to Plaintiff and the District closing the case; the administrative law judge's decision; the Fresno County Superior Court's decision; and the California Fifth District Court of Appeal's opinion. (Docs. 19 and 20.)
On August 24, 2007, Plaintiff filed "Plaintiff's Response to Defendant's Request for Judicial Notice," attaching his own request for judicial notice of various documents, including correspondence Plaintiff had with DFEH and EEOC staff and complaint questionnaires he alleges he completed when he filed his complaints with these agencies. (Doc. 25.) Defendant filed its objection and request to strike Plaintiff's request for judicial notice on September 19, arguing Plaintiff's submission violated Local Rule 78-230 and the documents he submitted were not proper subjects of judicial notice because their accuracy was reasonably questioned by Defendant under Fed. R. Evid. 201(b). (Doc. 26.) On October 15, Plaintiff filed "Plaintiff's Request for Sanctions Against Opposing Counsel and Response to Defendant's Objection and Request to Strike Plaintiff's Request for Judicial Notice." (Doc. 29.)
On March 12, 2008, Plaintiff filed his First Amended Complaint, attaching letters and other documents from and to the DFEH, pre-complaint questionnaires from DFEH and EEOC, the bargaining agreement between the District and the teachers' union, and correspondence from Mr. Rowe, among other items. (Doc. 40.) Defendant filed its Motion to Dismiss Plaintiff's First Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6), or in the Alternative, Motion to Strike Pursuant to Fed. R. Civ. P. 12(f) on April 23, 2008. (Doc. 44.) Defendant filed its Motion for Sanctions Pursuant to Fed. R. Civ. P. 11 on May 14, 2008. (Doc. 48.) Plaintiff filed his opposition to both motions in Plaintiff's Response to the Defendant's Response to Plaintiff's Amended Complaint and Defendant's Motions to Dismiss and to Impose Sanctions on May 23, 2008. (Doc. 52.) On June 16, 2008, Defendant filed its Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss First Amended Complaint and Motion for Sanctions. (Doc. 53.)
At the hearing on Defendant's Motion to Dismiss Plaintiff's First Amended Complaint, held on June 23, 2008, Plaintiff presented a letter signed by Rafael Gonzalez, affirming that as a DFEH consultant, Mr. Gonzalez wrote a letter dated November 25, 2002 to Plaintiff and enclosed with it form DFEH-100-10, also dated November 25, 2002 and captioned "Notice of Discrimination Complaint Accepted for Filing Purposes." The court directed Plaintiff to file and serve the letter, which Plaintiff did on June 24, 2008. (Doc. 55.) Defendant filed an objection to the letter on June 26, arguing it is not a proper subject of judicial notice and does not support Plaintiff's contention that he filed his DFEH complaint in November 2002. (Doc. 56.) On July 3, 2008, Plaintiff filed an affidavit from Steve Richardson, in which Richardson attests that he witnessed Plaintiff complete and sign a DFEH complaint form and mail it to Mr. Gonzalez on November 30, 2002. (Doc. 57.) Defendant filed an objection to the Richardson letter, arguing it is not a proper subject of judicial notice and its submission by Plaintiff after the hearing is both untimely and unfair. (Doc. 58.) Plaintiff filed a response to Defendant's objections on July 22, 2008. (Doc. 59.) The affidavits and Defendant's objections to them are addressed below.
A. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, it is required to contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65 (2007); see also Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (issue is not whether plaintiff will ultimately prevail, but whether claimant is entitled to offer evidence to support the claim). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, ...