The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON DEFENDANTS' MOTION TO DISMISS
This is a civil rights case brought by pro se Plaintiff Joe Parks ("Parks") against his employer Defendant Board of Trustees of the California State University ("the Trustees") and various administrative personnel of the Trustees. In the First Amended Complaint ("FAC"), Parks alleges violations of the California Fair Employment and Housing Act (California Government Code § 12940) ("FEHA") and Title VII (42 U.S.C. § 2000e-2). Parks claims discrimination based on his race (African American) and his age (he is 65). The Defendants move to dismiss the FAC under Rule 12(b)(6). Parks has filed no opposition to Defendants' motion. For the reasons that follow, the motion will be granted in part and denied in part.
Parks was hired by the Trustees as an education professor in August 1998 and is currently one of two African American professors at the Kremen School of Education and Human Development at California State University -- Fresno ("CSUF"). From the Fall semester 2007 to the Fall semester 2009, Defendants Paul Beare ("Beare"), Janette Redd Williams ("Williams"), and Janice Parten ("Parten") "subjected Parks to harassment, differential treatment, adverse action and adverse treatment, including but not limited to: (a) verbal harassment; (b) unjustified performance criticism; (c) treatment that was likely to impair a reasonable employee's job performance; and (d) inconsistent application of . . . employment policies to [Park]." FAC at ¶ 15. Parks alleges that his race, age (65 years old), and complaints about discrimination were a motivating reason for his treatment.
Parks identifies the following acts against him by Defendants: (1) he was assigned the "burdensome" responsibility of supervising student teachers in Fresno County; (2) his class assignments were reduced because he complained about the discriminatory nature of the supervisor assignment; (3) he was removed from teaching a master's level class because four white women indicated that they would not be taught by a "Black male Professor;"*fn1 (4) Beare and Williams openly encouraged students to complain directly to them about Parks (which appears contrary to established protocol);*fn2 (5) in February 2008, Williams, at the direction of Gail Baker and/or Defendant John Welty, suspended Parks (and prohibited him from entering campus) for "many months" for making threats against students, even though a police investigation had cleared Parks of any alleged threat;*fn3 (6) Defendants, including Parten, for many months delayed issuing a report regarding the alleged threats, even though other reports were completed in 30 days; (7) Defendants, including Parten, gave Parks another "Letter of Reprimand" on July 30, 2008, and did not give Parks an opportunity to defend himself against the false student complaints; and (8) in November 2008, Parks complained of the adverse treatment and Defendants subjected him to adverse action, including written discipline and limiting his duties. Parks alleges that this conduct constitutes a continuing violation. See FAC at ¶ 25.
On October 30, 2009, Parks filed a complaint with the California Department of Fair Employment and House ("DFEH"). See FAC at Exhibit A. The DFEH closed the case and issued a right to sue letter on the same day. See id.
In the FAC, Parks alleges a FEHA retaliation claim, a FEHA claim based on racial discrimination, a FEHA claim based on age discrimination, a Title VII claim based on racial discrimination, and an unspecified Hostile Work Environment claim based on race. The FEHA and Title VII claims are alleged against the Trustees only. The Hostile Work Environment claim is alleged against all Defendants.
Under Federal Rule of Civil Procedure 12(b)(6) , a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6) . A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The Court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). But, the Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Furthermore, Courts will not assume that plaintiffs "can prove facts which [they have] not alleged, or that the defendants have violated . . . laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court has recently explained:
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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, to "avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see Twombly, 550 U.S. at 570; see also Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.
The plausibility standard is not akin to a 'probability requirement,' but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.' . . .
Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief.
Iqbal, 129 S.Ct. at 1949-50. "In sum, for a complaint to survive a motion to dismiss, the non- conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
If a Rule 12(b)(6) motion to dismiss is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).
I. Exhaustion of Administrative Remedies Under FEHA
Defendants argue that all FEHA causes of action should be dismissed because Parks did not timely exhaust his administrative remedies. Under FEHA, a plaintiff must file an administrative charge within one year of the discriminatory act. Here, the last act identified in the FAC occurred on July 30, 2008. However, Plaintiff filed his DFEH complaint on October 30, 2009, ...