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Ostrofsky v. Dep't of Rehabilitation

September 17, 2009



On February 11, 2009, this court heard defendants' motion to dismiss plaintiff's Third Amended Complaint or, alternatively, for more definite statement.*fn1 Plaintiff appeared and represented herself; Deputy Attorney General Connie Broussard appeared on behalf of defendants. At the conclusion of the hearing, the court requested supplemental briefing on several issues, which was completed in May 2009. For the reasons discussed below, the court recommends that defendants' motion to dismiss be granted in part, and that plaintiff be granted leave to file a Fourth Amended Complaint.


The pertinent facts of this case have trickled in over the course of plaintiff's various amendments to her complaints, in her varying exhibits, the lengthy hearing on the pending motions, and the parties' subsequent briefing. While pursuing an action in federal court can be a daunting task for any pro se litigant, plaintiff has done so, admirably, with a certified learning disability. Both defendants and this court have sought to cull the essential facts of this case, and to identify the appropriate causes of action based thereon, but the task remains difficult, if not impossible, due to the many sources of information that have been submitted. Moreover, this responsibility lies with plaintiff. Since it continues to appear that plaintiff is able to state causes of action, she must be given yet another opportunity to amend her complaint in order to set forth all essential facts and dates in one pleading, with all appropriate exhibits attached thereto, and to articulate her legal claims, to the best of her ability, based upon specifically identified facts associated with specific defendants.

Plaintiff filed her initial complaint on May 25, 2007. On July 17, 2007, pursuant to granting plaintiff's application to proceed in forma pauperis, the court dismissed plaintiff's initial complaint, with leave to amend, for failure to comply with Fed. R. Civ. P. 8. On November 27, 2007, the court dismissed plaintiff's first amended complaint due to insufficiencies in her claims under the Americans with Disabilities Act and the Rehabilitation Act, and granted plaintiff leave to file a second amended complaint, which she filed on December 26, 2007. On February 1, 2008, the court dismissed plaintiff's second amended complaint on the ground that Title VII does not contemplate claims for discrimination based on disability. Plaintiff was again granted leave to file an amended complaint eliminating this cause of action. On February 25, 2008, plaintiff filed the operative Third Amended Complaint, and the court directed the U.S. Marshal to serve process upon defendants. Defendants thereafter moved to dismiss or for more definite statement. Dckt. No. 24. The hearing on this motion was held after the court granted plaintiff two extensions of time within which to file her opposition. After the detailed hearing before the undersigned on February 11, 2009, see generally, Transcript ("Tr."),*fn2 Dckt. No. 35, the court ordered supplemental briefing.

As set forth in her Third Amended Complaint ("TAC"), plaintiff contends that in May 2001 she commenced work as an "Account Clerk II" with defendant California Department of Rehabilitation ("DOR"). TAC, ¶ 9(a). Plaintiff alleges that she then told her immediate supervisor, Kelly Cook,*fn3 (defendant John Martin was "Section chief," who "had control over Plaintiff's advancement and success at DOR," TAC, at ¶¶ 3, 7) that plaintiff "was on the LEAP State program (for people with disabilities)*fn4 and needed some accommodation." TAC, at 4.

Plaintiff alleges that she was thereafter discriminated against based on her disability, in the form of a hostile work environment and failure to promote; then, when she complained, her supervisors retaliated by refusing to provide plaintiff any reference for other employment. Id.

The complaint alleges that after plaintiff asked for accommodation, Cook spoke to her "in a slow, demeaning, and embarrassing manner," "as if she was retarded,"and made derogatory statements at staff meetings, such as "'we will be learning some new tasks today, and whoever has trouble learning new things, will have a hard time." TAC, ¶ 9(a), (b). The complaint further alleges that Cook and Martin "repeatedly prevented [plaintiff] from being promoted" to Account Technician, yet required plaintiff to train others who were promoted in her place. Id. at ¶ 9(c). The Third Amended Complaint alleges that plaintiff was passed over for promotions on March 20, 2003, and April 5, 2003. Id. at ¶ 9(d). However, plaintiff stated at the hearing that she was again passed over for a promotion in February 2006, despite being the "only one left in my Department," Tr. at 21-24. Plaintiff explains in her supplemental responses that the position was posted in February 2006 (but plaintiff's supervisor failed to inform her of the opening), Dckt. No. 38, at 4, and she interviewed for the position in March 2006, Dckt. No. 39, at 1-2.

Plaintiff states that at all times she "performed excellently on the job; exceeded production standards; trained new employees; received excellent performance apprais[als], and even exceeded her job description by performing higher level Accounting Technician duties on numerous occasions." TAC, at ¶ 9(a). Plaintiff stated at the hearing that she also took college accounting classes. Tr. at 11-12.

The Third Amended Complaint provides that plaintiff was unable to find other employment because Cook told other prospective employers, "that Plaintiff is slow and has difficulty learning and retaining new information; and can only learn one thing at a time." TAC, at ¶ 9(f). The complaint provides that plaintiff complained to defendant Martin on April 10, 2006, who responded that "'no one will believe a perfect reference, and that he gave out other negative references on other people.'" Id. at ¶ 9(g). Further, alleges plaintiff, after she filed a complaint under the state Fair Employment and Housing Act ("FEHA") on April 21, 2006, Martin retaliated by "ordering DOR employees not to give any further job references on Plaintiff to her prospective employers." Id. at ¶ 9(h).

The facts underlying plaintiff's retaliation claim were described differently at the hearing. Plaintiff stated, for example, that on May 15 or 16, 2005*fn5 (at which time plaintiff had a new supervisor, Lonny Franklin, who did not know her very well), plaintiff asked Cook if she would be a reference for plaintiff. Cook stated that she would, but would need to tell prospective employers that plaintiff has "trouble memorizing and [has] to learn one thing at a time." Tr. at 13, 17-18. On May 16, 2005, plaintiff wrote an e-mail to Cook asking her not to provide such reference. Id. at 14-15. On May 19, 2005, plaintiff spoke with Kelly's supervisor, Betty Jong, and expressed frustration with Cook's position. Id. at 18. On May 20, 2005, plaintiff was summoned to a meeting with Martin, Cook, and others (including Lonny Franklin and Betty Jong, who later interviewed plaintiff for the February/March 2006 promotion, see Pl.'s Supp. Resp., Dckt. No. 38, at 2). At the meeting, Martin gave plaintiff the choice of obtaining no reference, or the reference as presented by Cook. Id. at 19-20. While plaintiff "didn't like either one of the choices," she agreed to "take what Kelly says," and Cook said she might change some of the wording. Id. at 20. On May 20 or 21, 2005, plaintiff asked Cook if she was going to change the wording, and Cook told plaintiff she couldn't talk with her. "[A]nd then . . . John Martin called me into his office and he said he doesn't want me bothering people about it. So then he says you're going to have no reference. And then he says I don't want you to tell anyone about this and I started crying . . . ." Id. at 20-21.

"Thereafter, because of the severe emotional distress injuries inflicted on Plaintiff by Defendants, she became so upset that she had a mental breakdown, was suicidal and admitted into Sacramento County mental hospital and eventually Plaintiff took an early retirement." TAC, at 6. Plaintiff retired from DOR on November 7, 2006. Dckt. No. 37, at 2.


Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). A pro se litigant is entitled to notice and an opportunity to amend her complaint unless it is clear that no amendment can cure its inadequacies. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir.2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987).

On a motion to dismiss, the court construes the pleading in the light most favorable to plaintiff and resolves all doubts in plaintiff's favor. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The complaint's factual allegations are accepted as true. Church of Scientology of California v. Flynn, 744 F.2d 694 (9th Cir. 1984). The court may, without converting a motion to dismiss into a motion for summary judgment, consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); United States v. Ritchie, 342 F. 3d 903, 907-908 (9th Cir. 2003). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986).

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "'The pleading must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action.'" Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (internal punctuation omitted). Rather, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008) (quoting Bell, at 127 6 S.Ct. at 1974). Factually unsupported claims framed as legal conclusions, and mere recitations of the legal elements of a claim, do not give rise to a cognizable claim for relief. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1951 (May 18, 2009) (citing Twombly, 550 U.S. at 555).


The Third Amended Complaint purports to assert claims under: (1) the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. ("Rehabilitation Act"); (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"); and (3) California's Fair Employment and Housing Act, Cal. Gov't Code §§ 12940 et seq. ("FEHA"). Each is addressed below.


As the court has previously explained in the order dismissing plaintiff's second amended complaint, plaintiff may not proceed under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., because Title VII does not apply to claims of discrimination based on disability. See 42 U.S.C. § 2000e-2(A)(1) (unlawful employment practices under Title VII limited to claims of discrimination based on race, color, religion, sex and national origin). See Order, Dckt. No. 14, at 1-2.

Accordingly, plaintiff's Title VII claims should be dismissed without leave to amend. Should plaintiff filed a Fourth Amended Complaint, she should not assert a claim under Title VII.


The Eleventh Amendment bars plaintiff's claims, in federal court, against the state and its employees under the California Fair Employment and Housing Act ("FEHA"). See Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999); see also Mar v. San Francisco Unified School District, 1995 WL 621816 (N.D. Cal. 1995) (relying on Pennhurst State School and Hospital v. Haldeman, 465 U.S. 89 (1984) (suits against states based on pendant jurisdiction barred by Eleventh Amendment)). "California has not waived its immunity to FEHA actions in federal court. See Fordyce v. City of Seattle, 55 F.3d 436, ...

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