This matter came before the court on December 4, 2009, for hearing of defendant's motion to dismiss, motion to strike, and motion for more definite statement. Attorney Kristin M. Daily appeared for the moving party. Plaintiff, proceeding pro se, appeared on her own behalf. Oral argument was heard, and the motions were taken under submission.
For the reasons set forth below, upon consideration of the briefing on file, the parties' arguments at the hearing, and the entire file, the court will grant defendant's motion to dismiss. However, in light of plaintiff's pro se status and for the reasons set forth below, the court will also grant plaintiff a final opportunity to amend her complaint to attempt to allege a cognizable claim.
Plaintiff initiated this action by filing her complaint on May 19, 2009. On September 8, 2009, defendant moved to dismiss that complaint. Plaintiff did not file written opposition to that motion but instead, on October 8, 2009, filed a motion seeking leave of court to file an amended complaint. The court granted both defendant's motion to dismiss and plaintiff's motion for leave to file an amended complaint. On October 9, 2009, plaintiff filed her first amended complaint which is now the operative pleading in this action.
In her first amended complaint, plaintiff alleges as follows. On or about November 22, 2006, defendant California Board of Equalizations ("BOE") asked for employees to volunteer to participate in a yearly holiday committee.*fn2 (First Amended Complaint (FAC) at 4 of 27.) Plaintiff signed up to be a committee vice chair and was the only African American holiday committee member. (Id.) In order to raise money for the holiday food drive, plaintiff sought permission to purchase items for a raffle. (Id.) The committee chairperson agreed to reimburse plaintiff and plaintiff purchased items for the raffle. (Id.) Sometime thereafter plaintiff noticed that dates for the raffle were changed to days when employees were not at work, that incorrect or misleading information was being disseminated about the raffle, and that supplies were not being made readily available. (Id. at 5.) On December 6, 2006, plaintiff was informed that she would not be reimbursed for her purchases. (Id.)
On December 8, 2006, plaintiff was approached by "CAC board members/ co-workers (sic)" who demanded to speak with her immediately.*fn3 (Id.) Plaintiff was on the phone with a client and requested that the two co-workers leave her work cubicle. (Id.) The two co-workers did not leave, began yelling at plaintiff, and displayed an "aggressive manner" and "aggressive body language." (Id.) They informed plaintiff that "using the food drive for the (sic) personal gain is against the law and [that] they will be contacting ISAD to prosecute her."*fn4 (Id.) The two co-workers also threatened to inform plaintiff's supervisor about her conduct. (Id.) Plaintiff repeated her request that the two leave her cubicle. The two co-workers finally left when plaintiff stood and repeated her request a third time. (Id.)
On December 11, 2006, plaintiff was informed that she would have to fill out a discrimination complaint as a result of the incident with her two co-workers, instead of a department grievance form, and that she should give the completed discrimination complaint to her immediate supervisor, Kenneth Lawson. (Id. at 6.) Plaintiff did so and was told that she would receive a decision in response to the complaint within ten working days. (Id.) That same day plaintiff was informed by her union representative that she would not be represented by the union with regard to the December 8, 2006 incident involving her two co-workers. (Id. at 7.)
On December 12, 2006, plaintiff completed a BOE absence request form so that she could leave work early to meet with an attorney regarding her discrimination compliant. Plaintiff was told the following by the employee responsible for signing off on such requests:*fn5
You do want to move up the career ladder here, right? I know you have been talking about what classes you need to take to become a Business Tax Representative, well I would not go through with this discrimination complaint because if you do no one will hire you, you will be labeled a troublemaker. You know how people talk here; you do want to move up don't you. (Id. at 7-8.) On December 13, 2006, plaintiff was reimbursed for all purchases she made in connection with the holiday raffle by administrator Dan Tokutomi. (Id. at 8.)
On January 2, 2007, plaintiff sent an e-mail inquiring about the status of her discrimination complaint to Dan Tokutomi, Richard Parrot, and Kenneth Lawson. (Id.) On January 3, 2007, she was told by Parrot that Tokutomi would answer her inquiry. (Id.) On January 11, 2007, plaintiff's wages were garnished "because BOE was sending the money that was coming out of her paycheck and sending it to pay another employees date (sic) with the Franchise Tax Board." (Id.)
On January 17, 2007, plaintiff again e-mailed Parrot, Tokutomi and Lawson inquiring about the status of her discrimination complaint but received no immediate response. (Id. at 9.) On January 22, 2007, she was informed that Lynn Bartolo would eventually have an answer to her complaint. (Id.) On March 12, 2007, plaintiff still had not received an answer to her compliant and contacted the Equal Employment Opportunity Commission ("EEOC"). (Id.) On May 5, 2007, plaintiff received a corrected W-2 form. (Id. at 10.) On June 6, 2007, plaintiff received a second corrected W-2 form.*fn6 (Id.)
In July of 2007 plaintiff was interviewed for a position as an Office Technician but was not hired. (Id.) The person hired for the position was the sister of another employee and had no previous experience in the Excise Tax Division. (Id. at 10-11.)
Sometime in August 2007 plaintiff was informed that she could not reschedule a test for a Tax Technician II position, even though she was returning from a funeral in Texas. (Id. at 10.) In September of 2007 plaintiff was notified by the Franchise Tax Board that "they were going to reissue the garnishment order because BOE still had failed to provide them with evidence to show" that plaintiff had been making the required monthly payments to the Franchise Tax Board. (Id.)
That same month plaintiff spoke to Richard Parrot about another open position as an Office Technician and was told that she would be interviewed for the position. (Id.) Plaintiff, however, was not interviewed and the person hired for the position was a Caucasian woman with no previous work experience in the Excise Tax Division. (Id.)
In October 2007 plaintiff was informed that, because she "still owed money to the State Controller's Office," she would not be receiving her paycheck on time. (Id. at 11.) Plaintiff alleges that the BOE informs the State Controller's Office of who owes money. (Id.) According to plaintiff, the claim that she owed "money to the state [was] unfounded" and she did not receive her paycheck until "well after payday." (Id.) Sometime in November 2007 plaintiff left the BOE for a position with the California Department of Corrections. (Id.) In July of 2008, plaintiff received a check from the BOE for her wrongfully withheld wages in the amount of $644. (Id.) Plaintiff later filed a complaint with the EEOC.
On February 20, 2009, plaintiff was issued a right to sue letter by the EEOC in connection with the complaint she had filed against the BOE with that agency. (Id., Ex. A.) As noted above, on May 19, 2009, plaintiff commenced this action by filing a complaint alleging racial discrimination and naming the BOE as the sole defendant. On October 9, 2009, plaintiff filed this first amended complaint alleging racial discrimination and retaliation. Specifically, plaintiff alleges that the defendant's conduct violated the Fourteenth Amendment, Title VII of the Civil Rights Act, and the defendant's own administrative manual and ethics policy. On October 29, 2009, defendant filed a motion to dismiss. Plaintiff filed an opposition on November 13, 2009. Defendant filed a reply on November 24, 2009.
DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)
Defendant seeks dismissal with prejudice of plaintiff's first amended complaint.*fn7
In this regard, defendant argues that a cause of action pursuant to the Fourteenth Amendment based on a violation of 42 U.S.C. § 1983 cannot be brought against a state agency. Defendant further argues that plaintiff has failed to state a cause of action for discrimination or retaliation under Title VII. Defendant also argues that this court lacks jurisdiction over any state law claims raised by plaintiff.
I. Federal Rule of Civil Procedure 12(b)(6)
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 that are not physically attached to the ...