The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER (1) GRANTING IN PART AND DENYING IN PART COUNTY AND INDIVIDUAL COUNTY DEFENDANTS' MOTION TO DISMISS, (2) GRANTING IN PART AND DENYING IN PART COUNTY AND INDIVIDUAL COUNTY DEFENDANTS' MOTION TO STRIKE, (3) GRANTING UNION AND INDIVIDUAL UNION DEFENDANTS' MOTION TO DISMISS, AND (4) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [Motions filed on June 30, July 9, 2009, July 10, 2009, and July 15, 2009]
Plaintiff Chih Cheng Tsao ("Plaintiff"), appearing pro se, filed this suit alleging unlawful retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and negligent infliction of emotional distress ("NIED") against the defendants the County of Los Angeles Office of the Assessor (the "County"), Soledad Sarmiento-Osborne, Anna Suarez, Sepideh A. Souris, and William T. Fujioka (collectively the "Individual County Defendants"); as well as SIEU Local 721 (the "Union"), Frank Dominguez, and Rose Rangel (collectively the "Individual Union Defendants").
This matter comes before the Court on the County and Individual County Defendants' Motion to Dismiss and Motion to Strike, the Union and Individual Union Defendants' Motion to Dismiss, and Plaintiff's Motion for Summary Judgment. After reviewing the papers submitted by the parties, Court (1) grants in part and denies in part the County and Individual County Defendants' Motion to Dismiss, (2) grants in part and denies in part the County and Individual County Defendants' Motion to Strike, (3) grants the Union and Individual Union Defendants' Motion to Dismiss, and (4) denies Plaintiff's Motion for Summary Judgment.
At all times relevant to this complaint, the Plaintiff has been employed by the County as an Intermediate Clerk. (Union Defendants' Mot. Dismiss ("Union Mot.") 2:13-15.)
In July of 2006, Plaintiff filed a complaint against the County with the U.S. Equal Employment Opportunity Commission ("EEOC"), EEOC Charge No. 480-206-02793, the contents of which are unknown to the Court. (First Amended Complaint ("FAC") ¶ 3.) Plaintiff claims that from September 18, 2006, onward, her supervisor, Sarmiento-Osborne, who is Filipino, discriminated against her because she is Taiwanese. (Id.) Additionally, Plaintiff claims that she was subjected to retaliation for having previously filed EEOC complaints against the County. (Id.)
On December 18, 2006, Plaintiff filed EEOC Charge No. 180-2007-00785, claiming that she had "been subjected to different terms and conditions of employment" by her supervisor and that "[n]o reason had been given as to why [she was] being treated differently." (FAC Ex. A, Charge of Discrimination No. 180-2007-00785.) Plaintiff "believes that [she is] being discriminated against because of [her] national origin" and is "being retaliated against for having filed a previous EEOC charge (480-206-02793)." (Id.)
During the course of the next year, Plaintiff claims that she was subject to different terms and conditions of employment in retaliation for having filed EEOC complaints against the County. Among other things, Plaintiff claims the County subjected her to unlawful retaliation by: (1) denying her an opportunity to do "ARB work" and to use an "ARB computer," (FAC ¶ 3); (2) denying her a promotion, (FAC Ex. A, Charge of Discrimination No. 480-2008-00197); (3) denying her the right to have her interview results reevaluated, (FAC Ex. A, Charge of Discrimination No. 480-2007-01392); (4) requiring her to undergo a psychological evaluation, (FAC Ex. A, Charge of Discrimination No. 480-2008-00197); and (5) denying her appeal "not to appear for a psychological reevaluation", (FAC ¶ 3; Ex. A, Charge of Discrimination No. 480-2008-01858).
In addition to filing several EEOC complaints against the County, Plaintiff also filed complaints against the Union relating to the County's order that she undergo a psychological evaluation. Plaintiff alleges that from October 5, 2007, to October 16, 2007, the Union, Defendant Dominguez, and Defendant Rangel refused to file a grievance challenging the County's actions in placing Plaintiff on administrative leave "because Plaintiff had filed previous  EEOC charge[s]." (FAC ¶ 4.) Plaintiff alleges that Defendant Dominguez, the Union Steward, "refused to inform Plaintiff to take the psychological re-evaluation on October 16, 2007." (FAC ¶ 4.) Plaintiff filed two complaints with the EEOC against the Union, one on July 8, 2008, and the other on July 21, 2008, concerning Defendant Dominguez's alleged failure to inform her to take the psychological re-evaluation and the Union's refusal to file a grievance concerning Plaintiff's administrative leave. (FAC Ex. B, Charges of Discrimination Nos. 480-2008-03056 & 408-2008-02727.)
Plaintiff filed suit against the County, the Individual County Defendants, the Union, and the Individual Union Defendants on March 5, 2009. (Dkt. No. 3.) Plaintiff filed the FAC on June 8, 2009, raising two causes of action: (1) retaliation under Title VII and (2) NIED. (Dkt. No. 16.)
On June 30, 2009, the Union and the Individual Union Defendants filed a Motion to Dismiss the FAC under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Dkt. No. 25.) The Court vacated the motion because it was erroneously scheduled before Magistrate Judge Woerhle, (dkt. no. 41), and the motion was re-filed on July 10, 2009, (dkt. no. 43.) The Union and Individual Union Defendants argue that Plaintiff has (1) failed to state a claim for retaliation and NIED, and (2) filed the equivalent of a breach of fair representation claim in which she has failed to state a claim. (Union Mot. 1:10-13, 17:20-23.)
On June 30, 2009, the County and the Individual County Defendants filed a Motion to Dismiss for (1) insufficiency of process and service of process, Fed. R. Civ. P. 12(b)(4)-(5); (2) lack of subject matter jurisdiction, Fed. R. Civ. P. 12(b)(1); and (3) failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6) for both retaliation and NIED. (Dkt. No. 33.) The County Defendants argue that Plaintiff failed to (1) properly serve the individual County Defendants with the FAC;*fn1 (2) exhaust her administrative remedies; and (3) state a claim for retaliation and NIED. The County filed a Motion to Strike Plaintiff's requests for: (1) damages for NIED; (2) attorney's fees; (3) prejudgment interest; (4) compensation for a car accident; and (5) new employment.
In addition, on July 9, 2009, Plaintiff filed a Motion for Summary Judgment. (Dkt. No. 49.)
A. County Defendants' Motion to Dismiss*fn2
1. Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction, and thus a plaintiff's claim must invoke either diversity jurisdiction or federal question jurisdiction. 28 U.S.C. §§ 1331, 1332. A court will dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) when the complaint or relevant extrinsic evidence demonstrates that the court lacks subject matter jurisdiction over the claim. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Federal question jurisdiction is governed by the "well-pleaded complaint rule," which provides that subject matter jurisdiction is proper only when a question arising under the Constitution, laws, or treaties of the United States appears on the face of a proper complaint. See 28 U.S.C. § 1331; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). It is well-established, however, that a court is to "liberally construe" the complaint of a plaintiff appearing pro se. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987).
"A person seeking relief under Title VII must first file a charge with the EEOC within 180 days of the alleged unlawful employment practice...." Surrell v. Cal. Water Svc. Co., 518 F.3d 1097, 1104 (9th Cir. 2008). If the EEOC decides not to bring suit based upon the charge, it must "notify the person aggrieved" that she can file suit by issuing a right to sue letter. Id. (quoting 42 U.S.C. § 2000e-5(f)(1)). After the plaintiff has received a right-to-sue letter, she must file suit within 90 days. Id. (citing 42 U.S.C. § 2000e-5(f)(1)).
However, "failure to obtain a federal right-to-sue letter does not preclude federal jurisdiction." Id. To the contrary, "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Temengil v. Trust Territory of Pacific Islands, 881 F.2d 647, 654 (9th Cir. 1989) ("Pursuit of administrative remedies is a condition precedent to a Title VII claim. The requirement, however, is not jurisdictional.") (citations omitted).
The County and Individual County Defendants' argument concerning lack of subject matter jurisdiction is without merit. The face of Plaintiff's complaint clearly states that "[t]his is a civil action seeking damages under Title VII of the Civil Rights Act of 1964," (FAC ¶ 1), and contains multiple allegations concerning the County's retaliation against Plaintiff for engaging in protected activities under Title VII. (See, e.g., FAC ¶ 3.) The County Defendants argue that Plaintiff has failed to exhaust administrative remedies before the County's Civil Service Commission, a jurisdictional defect that deprives the Court of subject matter jurisdiction. (County Mot. Dismiss ("County Mot.") 10:6-9.) However, the exhaustion requirement under ...