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Scott Johnston v. City of Red Bluff

February 7, 2011

SCOTT JOHNSTON,
PLAINTIFF,
v.
CITY OF RED BLUFF, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff brings this civil action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, against the City of Red Bluff and various of its current and/or former employees, Martin Nichols, Tessa Pritchard, Mark Barthel, and Richard Crabtree. Plaintiff alleges age discrimination and related constitutional and state law torts with respect to his employment as an engineering technician for defendant City of Red Bluff. All defendants have appeared by way of their answer filed on June 5, 2009.

Plaintiff's original complaint named Art Frolli, a union representative for Operating Engineers Local No. 3. Frolli's separate motion to dismiss was granted on February 18, 2010. The court dismissed Frolli with prejudice and the complaint was dismissed with leave to amend as to the remaining defendants. Plaintiff's interlocutory appeal from that order was dismissed on May 19, 2010, for lack of appellate jurisdiction. Thereafter, plaintiff filed his first amended complaint on June 18, 2010 (Doc. 34). Pending before the court is defendants' motion to dismiss the first amended complaint (Doc. 35).*fn1

I. PLAINTIFF'S ALLEGATIONS

Plaintiff was hired by defendant City of Red Bluff in August 2000 as an Engineering Technician I. He was 43 years old at the time. In February 2002 plaintiff was promoted to the position of Engineering Technician II. According to plaintiff, this position was not posted or advertised and he was promoted solely based on the recommendations of his supervisors. Plaintiff states that, based on this history, he expected to be promoted to Tech III "within the next few years." Plaintiff states that his immediate supervisor -- Tim Wood -- was replaced by defendant Barthel in mid-2004. According to plaintiff, "personality clashes" between plaintiff and Barthel developed "over the years."

Plaintiff states that, by August 14, 2005, he "deserved a promotion" and that a promotion required a recommendation from Barthel. Barthel informed plaintiff that there was not enough money in the city budget for plaintiff to be promoted. Plaintiff claims that, unknown to him at the time, in early 2008 the city began looking for another engineering technician. Plaintiff states that defendants Barthel, Pritchard, and Nichols "would have each known of the opening, but they did not tell the Plaintiff about it." He also states that both Barthel and Pritchard "were aware from prior conversations with the Plaintiff that he wanted to be promoted to the Tech III position, yet neither of them mentioned this opportunity." Plaintiff adds that the City of Red Bluff never provided a written policy regarding promotions and none of the defendants ever suggested that plaintiff would have to formally apply for the promotion.

According to plaintiff, sometime in July 2008 a new person was hired as a Tech III and that this person was only 35 years old. Plaintiff states that he approached defendant Nichols about the situation and was told by Nichols that he should have applied for the position. Plaintiff states that he was terminated on July 31, 2009.

II. STANDARDS FOR MOTION TO DISMISS

In considering a motion to dismiss, the court must accept all allegations of material fact in the complaint as true. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). The court must also construe the alleged facts in the light most favorable to the plaintiff. See Scheuer

v. Rhodes, 416 U.S. 232, 236 (1974); see also Hosp. Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976); Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam). All ambiguities or doubts must also be resolved in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, legally conclusory statements, not supported by actual factual allegations, need not be accepted. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009). In addition, pro se pleadings are held to a less stringent standard than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim under Rule 12(b)(6), a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. at 555-56. The complaint must contain "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 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 for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557).

In deciding a Rule 12(b)(6) motion, the court generally may not consider materials outside the complaint and pleadings. See Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1998); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994). The court may, however, consider: (1) documents whose contents are alleged in or attached to the complaint and whose authenticity no party questions, see Branch, 14 F.3d at 454; (2) documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint, see Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001); and (3) documents and materials of which the court may take judicial notice, see Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

Finally, leave to amend must be granted "[u]nless it is absolutely clear that no amendment can cure the defects." Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam); see also Lopez v. ...


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