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Evelyn Davidson v. Carl E. Korman

December 30, 2010


The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge



Previously pending on this court's law and motion calendar for December 16, 2010, was defendants' motion for judgment on the pleadings. Plaintiff Evelyn Davidson filed an opposition and appeared telephonically in pro se. Edward Olsen appeared on behalf of defendants. Having heard oral argument and reviewed the record, the court now issues the following findings and recommendations. Previously under submission was defendants' motion to dismiss defendant Carl Korman and to substitute John McHugh for Pete Geren, filed October 1, 2010. These findings and recommendations/order will also address that motion. BACKGROUND

This action was filed on April 17, 2009, in the Northern District. It was transferred to this court on September 8, 2010. The only claim remaining on transfer is under Title VII, for retaliation. Plaintiff was employed as a real property transactional attorney for the Army Corps of Engineers' Office of Counsel in Sacramento, from June 26, 2006 to March 9, 2007, when she was terminated for performance and conduct problems, according to defendants. Her supervisor was Carl Korman. Currently, defendants are Korman and Pete Geren, former Secretary of the Army. The Northern District previously dismissed plaintiff's other claims. DISCUSSION

I. Motion to Substitute McHugh for Geren

Defendants move to dismiss defendant Korman because he is not the head of the Department of the Army and is not a proper defendant. This motion is considered below. They also seek to substitute John McHugh, current Secretary of the Army, for Pete Geren, former Secretary of the Army.

Defendant John McHugh will be substituted as defendant in place of Pete Geren. Fed. R. Civ. P. 25(d).

II. Motion for Judgment on the Pleadings

Defendants bring the current motion, arguing that plaintiff did not engage in statutorily protected activity and therefore cannot establish a prima facie case of retaliation under Title VII.

A. Legal Standard "After the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "Because the motions are functionally identical, the same standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog." Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir.1989). Dismissal may be granted where there is no cognizable legal theory or lack of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). In considering a motion for judgment on the pleadings, the Court accepts all factual allegations in the complaint as true and must construe them in the light most favorable to the non-moving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). "[A] judgment on the pleadings is appropriate when, even if all allegations in the complaint are true, the moving party is entitled to judgment as a matter of law." Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.1993).

Although a court generally is confined to the pleadings on a Rule 12(c) motion, it may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds, Astoria Fed. Sav. Etc. v. Solimino, 501 U.S. 104, 111 S.Ct. 2166 (1991). Consideration of these documents outside the complaint will not convert the motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003); In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.1999). The 'incorporation by reference' doctrine has been extended "to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint." Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

B. Analysis

Plaintiff alleges retaliation by defendants because she opposed conduct made an unlawful employment practice. Specifically, she claims co-worker Patricia Hawkins, who happened to be the Sacramento Corps Legal Department EEO attorney, made racist remarks about African-Americans. Plaintiff also alleges that she expressed concern to her supervisor, Carl Korman, that a legal research memorandum prepared by someone in the legal department was inadequate, and that this deficient legal research and writing constituted "violation of attorney ethics under the duty of competence." (Compl. ¶¶ 13, 14.) The complaint further claims that plaintiff told her supervisor, Korman, about her concerns regarding violation of sexual harassment laws in the Sacramento Corps Legal Department. She alleges that Korman's congenial attitude then changed abruptly. The last allegation is that Korman told her to stop prefacing her research memos with a statement that she was not a member of the state's bar.

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., makes it an unlawful employment practice for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." Id., § 2000e-2(a)(1) (emphasis added). Section 2000e-16 makes the substantive provisions of Title VII applicable to federal agencies. If the employer permits the work environment to be permeated by hostility based on ...

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