FINDINGS & RECOMMENDATIONS
This employment discrimination case came before the court on May 15, 2009 for hearing of defendant's motion for partial dismissal of claims*fn1 pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff, proceeding pro se, appeared on her own behalf. Todd A. Pickles, Esq. appeared for the defendant. After hearing the parties' arguments, the undersigned took the motion under submission.
Upon consideration of the parties' briefing, their arguments at the hearing, and the entire file, the undersigned recommends that defendant's motion for partial dismissal be granted and that plaintiff's claims alleged pursuant to the Civil Rights Act, 42 U.S.C. §§ 1981 and 1983; the Americans With Disabilities Act, 42 U.S.C. §§ 12101, et seq.; the Family Medical Leave Act, 29 U.S.C. §§ 2601, et seq.; and the Fourteenth Amendment be dismissed with prejudice.
Plaintiff describes her case as an action to recover actual, compensatory, liquidated, and punitive damages under 42 U.S.C. § 1981; 42 U.S.C. § 1983; 29 U.S.C. § 2601, the Family Medical Leave Act; 42 U.S.C. § 12101 et seq., the Americans With Disabilities Act; 42 U.S.C. § 2000e-2, et seq., Title VII of the Civil Rights Act of 1964; and the Fourteenth Amendment to the United States Constitution. (Second Am. Compl. (Doc. No. 31) at 1.) Plaintiff alleges federal question jurisdiction grounded on these statutes and on the Rehabilitation Act of 1973. (Id. at 2.)
Plaintiff alleges that after 26 years of loyal service at Travis Air Force Base she was denied equal protection and the reasonable accommodation recommended by numerous doctors and psychiatrists. While other employees were approved for leave without pay for up to a year, plaintiff, who is African-American, alleges that she was subjected to race discrimination and retaliation, involuntary reassignment, and eventual termination. (Id. at 2-4.) Plaintiff seeks monetary relief and orders requiring defendant to cease all discriminatory acts and rehire her immediately. (Id.)
Defendant's motion for partial dismissal has been brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
I. Legal Standards Applicable to Motions Brought
Pursuant to Fed. R. Civ. P. 12(b)(1) & (6) Federal Rule of Civil Procedure 12(b)(1) allows a defendant to raise the defense, by motion, that the court lacks jurisdiction over the subject matter of an entire action or of specific claims alleged in the action. "A motion to dismiss for lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
In the present case, defendants' Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact as to certain claims set forth in plaintiff's second amended complaint. When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, no presumption of truthfulness attaches to the plaintiff's allegations. Id. "[T]he district court is not restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988). When a Rule 12(b)(1) motion attacks the existence of subject matter jurisdiction in fact, plaintiff will have the burden of proving that jurisdiction does in fact exist. Thornhill Publ'g Co., 594 F.2d at 733.
The purpose of a motion to dismiss brought pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). The plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
As the court explained during oral argument, defendant's motion to dismiss is made on legal grounds rather than factual grounds. The issues before the court at this time do not concern the merits of plaintiff's claims. Instead, defendant's motion brought pursuant to Rule 12(b)(1) challenges this court's authority to adjudicate the claims plaintiff has alleged against the defendant, while defendants' motion pursuant to Rule 12(b)(6) ...