The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER GRANTING MOTION TO DISMISS [doc. #9] and GRANTING PLAINTIFF LEAVE TO FILE A SECOND AMENDED COMPLAINT
Defendant Corrections Corporation of America ("CCA") moves to dismiss plaintiff's first amended complaint ("FAC") in its entirety. The motion has been fully briefed. Having reviewed the motion, the Court finds this matter suitable for determination on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d)(1).
Plaintiff Susana Winter ("Winter") has been employed with CCA as a correctional officer since March 30, 1998. She began her CCA employment at the Arizona Detention Center and in January 2001, she transferred to the San Diego Correctional Facility. Winter alleges her transfer was necessitated because her life was threatened by an inmate at the Arizona facility. Even after her transfer, plaintiff alleges that she remained fearful for her safety which caused severe mental and emotional problems. Plaintiff contends that her emotional problems were worsened by managers' and supervisors' failure to address her safety concerns.
Because of medical treatment she required, plaintiff states that she was harassed by supervisors and co-workers based on her absences from work. In an effort to obtain relief from the allegedly discriminatory actions she was suffering, plaintiff filed grievances, complaints and incident reports and as a result the severity and frequency of harassing and retaliatory actions taken against her intensified.
After an absence for medical treatment, CCA terminated Winter's employment in early November 2006. Later that month, plaintiff received notice that she had been reinstated. Plaintiff has been on disability leave since October 2006.
Plaintiff filed a complaint of discrimination with the Department of Fair Employment and Housing ("DFEH") under the Fair Employment and Housing Act ("FEHA") on December 28, 2007. In the DFEH complaint, plaintiff indicated that in August 2007, she was harassed, denied a promotion and denied accommodation because of her race/color.
"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dept. of Corrections, 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Novarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). "A district court should grant a motion to dismiss if plaintiffs have not pled 'enough facts to state a claim to relief that is plausible on its face.'" Williams ex rel. Tabiu v. Gerber Products, 523 F.3d 934, 938 (9th Cir. 2008)(quoting Bell Atlantic Corp. v. Twombley, 127 S.Ct. 1955, 1974 (2007)). "'Factual allegations must be enough to raise a right to relief above the speculative level.'" Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombley, 127 S.Ct. at 1964-1965. Dismissal of a claim under Rule 12(b)(6) is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). 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, , 749 F.2d 530, 534 (9th Cir. 1984).
In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). But legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003). Finally, in determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint for additional facts, e.g., facts presented in plaintiff's memorandum in opposition to a defendant's motion to dismiss or other submissions. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998); see also 2 MOORE'S EDERAL PRACTICE, § 12.34 (Matthew Bender 3d ed.) ("The court may not . . . take into account additional facts asserted in a memorandum opposing the motion to dismiss, because such memoranda do not constitute pleadings under Rule 7(a)."). But in addition to the facts alleged in the complaint, the Court may consider documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino, 146 F.3d at 705-706.
As noted above, a matter that is properly the subject of judicial notice pursuant to Federal Rule of Evidence 201 may be considered along with the complaint when deciding a motion to dismiss for failure to state a claim. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). The parties do not dispute that the Court may take judicial notice of the administrative claims filed with the Department of Fair Employment and Housing ("DFEH"). Accordingly, the Court takes judicial notice of plaintiff's DFEH complaint filed on December 28, 2007. (Declar. of Richard Y. Chen, Exh. A.)
B. FEHA's Time Limitation
Plaintiff's first five causes of action are based on alleged violations of FEHA. To bring a civil action under the FEHA, a plaintiff must exhaust her administrative remedies, which requires the filing a complaint with the DFEH within one year of the date of the ...