The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FOURTH, TENTH, AND ELEVENTH CLAIMS FOR RELIEF Doc. # 22
This is an action for discrimination, harassment, retaliation and wrongful termination by plaintiff Jermaine Roquemore ("Plaintiff") against the California Department of Forestry and Fire Protection ("CDF&FP") and individuals Julio Quiroz, Gratian Bidard, Shelly Mitchell, Ken Craw, and Stan Machado (collectively, "Defendants"). In the present motion, Defendants move to dismiss Plaintiff's fourth claim for relief alleging wrongful termination in violation of the Civil Rights Act of 1964, Plaintiff's tenth claim for relief alleging wrongful termination in violation of California Government Code sections 12940, et seq., and Plaintiff's eleventh claim for relief alleging wrongful termination in violation of public policy. Federal question jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff is an African-American male who, at the time relevant to this action, worked seasonally as a firefighter for CDF&FP. The complaint alleges that, from the time of his employment on or about April 16, 2007, Plaintiff was continuously subjected to discriminatory treatment. The discrimination was manifest in the application of disciplinary measures pertaining to Plaintiff, as well as in scheduling, housing and other facets of the work environment. The complaint alleges the discrimination Plaintiff encountered was racially based and continued unabated during the entire time of his employment despite Plaintiff's efforts to draw the attention of managers and supervisors to the problem. The complaint alleges that on or about December 17, 2007, "Defendant Bidart gave Plaintiff a poor performance evaluation, terminated Plaintiff's employment and put Plaintiff on 'no rehire' status." Doc. # 1 at 17-19. The complaint alleges that Plaintiff was "one of the only African-American firefighters in Defendant CDF&FP's entire organization."
For purposes of this motion, it is not disputed that Plaintiff has exhausted administrative remedies applicable to claims under the Civil Rights Act of 1964 and under California Government Code sections 12940, et seq.
Defendants' motion to dismiss Plaintiffs fourth, tenth and eleventh claims for relief was filed on March 19, 2009. Plaintiff filed his opposition on April 3, 2009, and Defendants' reply was filed on April 16, 2009. The hearing on Defendants' motion to dismiss, which was scheduled for May 5, 2009, has been vacated and the matter was taken under submission as of April 16, 2009.
Defendants move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1)*fn1 and 12(b)(6). Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a motion to dismiss for lack of subject matter jurisdiction. It is a fundamental precept that federal courts are courts of limited jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). The plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert subject matter jurisdiction over the action. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Fed. R. Civ. P. 8(a)(1). When a defendant challenges jurisdiction "facially," all material allegations in the complaint are assumed true, and the question for the court is whether the lack of federal jurisdiction appears from the face of the pleading itself. Thornhill Publishing Co. v. General Telephone Electronics, 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F. 2d 884, 891 (3d Cir.1977); Cervantez v. Sullivan, 719 F. Supp. 899, 903 (E.D. Cal.1989), rev'd on other grounds, 963 F. 2d 229 (9th Cir.1992).
A defendant may also attack the existence of subject matter jurisdiction apart from the pleadings. Mortensen, 549 F. 2d at 891. In such a case, the court may rely on evidence extrinsic to the pleadings and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F. 2d 199, 201 (9th Cir.1989); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir.1987); Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir.1983). "No presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill Publishing, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).
A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure if it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). A Rule 12(b)(6) dismissal can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). In deciding a Rule 12(b)(6) motion, courts do not "assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981).
Plaintiff's complaint is organized primarily around allegations of violation of Title VII of the Federal Civil Rights Act of 1964 (hereinafter, "Title VII"), and under California's Fair Employment and Housing Act ("FEHA"). Under both of these statutes, Plaintiff alleges multiple theories of violation in the alternative. Specifically, the complaint alleges separate claims for racial discrimination, harassment, retaliation, and wrongful termination under both Title VII and FEHA. In addition, the complaint alleges a single claim for racial discrimination pursuant to the federal Civil Rights Act of 1866, and a single tort claim for relief for wrongful termination in violation of public policy. The claims Defendants seek to dismiss -- the fourth, tenth and eleventh claims for relief -- each allege wrongful termination. The fourth claim for relief alleges wrongful termination under Title VII, 42 U.S.C. § 2000e, and the tenth claim for relief alleges wrongful termination in violation of FEHA, California Government Code § 12940, et seq. Plaintiff's eleventh claim for relief alleges wrongful termination in violation of public policy.
Defendants contend, and Plaintiff concedes, that Defendants are, or are employed by, a state entity and are therefore entitled to the protections afforded by Eleventh Amendment Sovereign Immunity to the extent sovereign immunity might apply in this case. It is elementary that, under the Eleventh Amendment, a state or its subdivisions may not be sued except that the state consents to be sued. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). Defendants also contend, and Plaintiff concedes, that a claim for wrongful termination alleged without reference to any statutory authority is a common law tort claim for relief . Temeny v. Atlantic Richfield Co., 27 Cal.3d 167 (1980).
With regard to Plaintiff's eleventh claim for relief, Defendants allege, and Plaintiff appears to concede, that the claim is a tort claim under California common law and that there is no allegation that the administrative procedures required by the California Tort Claims Act were satisfied. Plaintiff concedes that his eleventh claim for relief may not be maintained ...