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Atondo v. County of Solano

October 1, 2009

GEORGE ATONDO, PLAINTIFF,
v.
COUNTY OF SOLANO, ANDREW SWANSON IN HIS INDIVIDUAL CAPACITY, AND DOES 1 THROUGH 15, INCLUSIVE DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on defendants County of Solano (the "County") and Andrew Swanson ("Swanson") (collectively "defendants") motion to dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). Plaintiff George Atondo ("plaintiff" or "Atondo") opposes the motion. For the reasons set forth below,*fn1 defendant's motion to dismiss is DENIED.

BACKGROUND

Plaintiff Atondo began his employment with defendant County in February 2004. (Pl.'s First Am. Compl., filed June 25, 2009, ¶ 7.) On March 14, 2005, Atondo was transferred by the County to Nut Tree Airport to the position of Airport Services Worker. (Id.) Defendant Swanson was Manager of the Nut Tree Airport and Atondo's direct supervisor. (Id. ¶ 5.)

From March 2005 to November 29, 2007, plaintiff alleges that Swanson made and directed derogatory comments, racist slurs and jokes regarding persons of color and Native Americans to Atondo and other employees of color. (Id. ¶ 9.) Atondo is of Native American ancestry. (Id. ¶ 8.) Swanson repeatedly referred to Native Americans as "low life rat Indians," and mocked the livelihood of Native Americans residing in Alaska as fisherman. (Id. ¶ 9.) Throughout his employment, Atondo told Swanson to refrain from making or directing derogatory and racist slurs and jokes regarding persons of color, including African-Americans and Native Americans. (Id. ¶ 10.) Atondo also observed that Swanson treated minority employees in a demeaning, racist manner and intentionally engaged in acts intended to demean and humiliate them. (Id.)

In October 2007, Eric Johnson ("Johnson"), a Caucasian male, was hired as a second Airport Services Worker at the Nut Tree Airport. (Id. ¶ 11.) Plaintiff alleges that Swanson appeared to show preferential treatment to Johnson because of his race, such as reprimanding Atondo harshly for minor errors while being lenient with Johnson for more serious errors. (Id.)

On or about November 9, 2007, Atondo started a two week vacation. (Id. ¶ 12.) Before leaving, Swanson instructed Atondo to turn in his County cell phone and keys. (Id.) While Atondo was on vacation, his office desk was cleared of his belongings. (Id.)

During his employment, Atondo regularly tested the County's Airport fuel truck for fuel contamination. (Id. ¶ 13.) On November 17, 2007, Atondo checked the fuel truck and found water contamination. (Id.) Plaintiff asserts that refueling an airplane with water-contaminated fuel creates a danger and increases the risk of injury to pilots, Nut Tree Airport employees, and the public at large. (Id.) On November 17 and 18, 2007, Atondo reported to Swanson and Johnson that he had found water contamination. (Id. ¶ 14.) On November 18, 2007, Atondo contacted representatives from Chevron and the Federal Aviation Agency ("FAA") and notified them of the fuel contamination. (Id. ¶ 15.)

On November 26, 2007, defendants placed Atondo on paid administrative leave. (Id.) While Atondo was on paid administrative leave, he reported the fuel contamination incidents as well as the alleged subsequent illegal acts committed to fraudulently cover up the incident to a California Occupation Safety and Health Administration ("OSHA") representative and the Federal Bureau of Investigation ("FBI"). (Id. ¶ 16.) Atondo asserts that he made these reports as a private citizen because he was concerned about the danger posed to the public due to the contaminated fuel and the unsafe practices at Nut Tree Airport directed by Swanson. (Id.) On June 16, 2008, defendants terminated Atondo's employment. (Id. ¶ 17.) Plaintiff contends that he was terminated in retaliation for his opposition to discrimination as well as for reporting the dangerous and unlawful fuel contamination. (Id.)

On September 2, 2008, Atondo exhausted his administrative remedies under the California Fair Employment and Housing Act ("FEHA") and Title VII. (Id. ¶ 18.) On September 2, 2008, the Department of Fair Housing and Employment ("DFEH") issued Atondo a Notice of Right to Sue; on March 27, 2009, the U.S. Equal Employment Opportunity Commission ("EEOC") also issued a Notice of Right to Sue. (Id.) On June 25, 2009, plaintiff filed a First Amended Complaint, asserting claims for (1) race discrimination in violation of 42 U.S.C. §§ 1981 and 1983, Title VII, 42 U.S.C. § 2000e et seq., and FEHA; and (2) retaliation in violation of 42 U.S.C. §§ 1981 and 1983, Title VII, 42 U.S.C. § 2000e et seq., and FEHA, Cal. Gov't Code § 12940.

STANDARD

On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). Thus, the plaintiff need not necessarily plead a particular fact if that fact is a reasonable inference from facts properly alleged. See id.

Nevertheless, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 526 (1983). Moreover, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). Indeed, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Ultimately, the court may not dismiss a complaint in which the plaintiff alleged enough facts to "state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. at 1952. When there are well-pleaded factual allegations, "a court ...


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