FINDINGS AND RECOMMENDATIONS
This case came before the court on October 30, 2009, for hearing of defendant's motion to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(6). Attorney Lynn Garcia appeared for the moving party. Plaintiff, proceeding pro se, appeared on his own behalf. Oral argument was heard, and the motion was taken under submission.
Upon consideration of all written materials filed in connection with defendant's motion to dismiss and the entire file, the undersigned recommends that the motion be granted and this action be dismissed with prejudice.
Plaintiff filed his complaint in this court on April 17, 2009. (Doc. No. 1.) The court granted plaintiff's motion to proceed in forma pauperis and directed plaintiff to provide documents to the United States Marshal for service of process. (Doc. No. 3.) In due course, service was effected on all defendants. On September 22, 2009, defendants filed a motion to dismiss. (Doc. No. 12.) On October 1, 2009, plaintiff filed multiple documents in opposition to the motion to dismiss. (Doc. Nos. 17-19.) Defendants filed a reply on October 20, 2009. (Doc. No. 16.) On October 27, 2009, plaintiff filed a motion for entry of an order of default against defendants (Doc. No. 20), which was denied at the October 30, 2009, hearing. (Doc. No. 21.)
In his complaint plaintiff alleges as follows. On August 8, 2007, he was hired by the defendant Natomas Unified School District to teach drama at Inderkum High School. (Complaint (Compl.) at 3 of 31.) Plaintiff is an African-American male and was hired by then Inderkum Principal Ben Flores in hopes that plaintiff's teachings would appeal to the school's large African-American, Latino and Asian-American student populations. (Id. at 3-4.)
In September of 2007, Mr. Flores left Inderkum High School and defendant Leslie Sargent was named as the interim Principal. (Id. at 4.) Upon assuming her duties, Ms. Sargent requested that plaintiff "turn away from his culturally inclusive effort and produce 'traditional plays.'" (Id. at 4.) After plaintiff refused to comply with Sargent's request, a policy was implemented requiring plaintiff to submit his proposed plays for review by the department chairs and the school's administration. (Id. at 4-5.) This new policy was unique to plaintiff, the district's "first, Black, male drama teacher," and "was not placed on White drama teachers." (Id. at 5.)
On February 15, 2008, plaintiff filed a grievance against Ms. Sargent and defendant Vice Principal Gregg Ellis. (Id. at 6.) The same day plaintiff was given notice of a "Recommendation for Non-re-election." (Id.) On April 1, 2008, plaintiff filed a complaint with the California Department of Fair Employment and Housing. (Id.) On April 8, 2008, he "was escorted to the front office" by Mr. Ellis and defendant Assistant Superintendent Ken Whittemore. (Id.) Plaintiff was not allowed to return to work. "Consequently, a lessor qualified, White teacher was brought in to direct 'traditional plays'... featuring all White character roles," including a play written by a "White female in 1916." (Id.)
Plaintiff alleges that the defendants' conduct constituted racial discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Plaintiff also alleges a tort claim for the intentional infliction of emotional distress.
LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTION TO DISMISS
The purpose of a motion to dismiss 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). A 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, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
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).
Defendant seeks dismissal of plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the grounds that: (1) plaintiff's claims have already been adjudicated in the Sacramento County Superior Court, Case No. 34-2008-0001605-1-CU-CRGDS, and are therefore barred by the doctrine of res judicata; (2) plaintiff's claims of racial discrimination and retaliation are barred by the Eleventh Amendment; (3) plaintiff has failed to allege facts which would support a claim for relief; (4) plaintiff failed to allege either a timely filling of a discrimination charge with the EEOC or a timely filing of a suit thereafter; and (5) plaintiff ...