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Alicia B. Jackson v. Board of Equalization

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 26, 2011

ALICIA B. JACKSON, PLAINTIFF,
v.
BOARD OF EQUALIZATION,
DEFENDANT.

FINDINGS AND RECOMMENDATIONS

This matter came before the court on December 17, 2010, for hearing of defendant's amended 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, the court will recommend that defendant's motion to dismiss be granted in part and denied in part, that defendant's motions to strike and for a more definite statement be denied.

BACKGROUND

Plaintiff initiated this action by filing her original 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 amended complaint. On September 20, 2010, the court granted defendant's motion to dismiss the amended complaint but granted plaintiff further leave to amend.

On October 26, 2010, plaintiff filed her second amended complaint which is now the operative pleading. On November 19, 2010, defendant filed the amended motion to dismiss now pending before the court. On December 13, 2010, plaintiff filed a late opposition to defendant's motion to dismiss.

In her second amended complaint, plaintiff alleges as follows.*fn1 On or about November 22, 2006, defendant California Board of Equalization ("BOE") asked employees to volunteer to participate in a yearly holiday committee.*fn2 (Sec. Am. Compl. (Doc. No. 28) at 9.)*fn3 Plaintiff signed up to be a committee vice chair and was the only African American holiday committee member. (Id. at 9.) 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 then 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.) On December 6, 2006, plaintiff was informed that she would not be reimbursed for her purchases in connection with the raffle. (Id. at 9-10.)

On December 8, 2006, plaintiff was approached by "CAC board members/co workers," Elizabeth Reedman and Judy Weyhe, who demanded to speak with plaintiff immediately.*fn4 (Id. at 10.) Plaintiff was on the phone with a client and requested that the two co-workers leave her work cubicle. (Id.) They did not leave, began yelling at plaintiff, and displayed an "aggressive manner" and "aggressive body language" and informed plaintiff that "using the food drive for the (sic) personal gain is against the law and [that] they will be contacting ISAD (Internal Security and Audit Dept) to prosecute her." (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 and the two co-workers finally left when plaintiff stood and repeated her request a third time. (Id. at 10-11.)

On December 11, 2006, plaintiff contacted Patrick Finnegun, her union representative, regarding the December 8, 2006 incident with co-workers Reedman and Weyhe. (Id. at 11.) Initially Mr. Finnegun agreed to help plaintiff with this issue but shortly thereafter declined to do so. (Id.)

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 complaint. (Id. at 12.) Plaintiff met with Hiring Supervisor Susan Sineto to obtain approval for her absence from work. (Id.) Sineto had been a BOE employee for more than 10 years, was responsible for hiring plaintiff and, according to plaintiff, had "great ties and influence at BOE." (Id.) Upon learning about plaintiff's pending discrimination complaint, Sineto told plaintiff:

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.)

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.*fn5 (Id. at 13.) On January 3, 2007, plaintiff received an e-mail response from Parrot, stating 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 (sic) date (sic) with the Franchise Tax Board." (Id.) Plaintiff did have a tax bill, but plaintiff's bill was current and plaintiff had arranged a payment plan. (Id. at 13.) The person "in control" of this "misreporting" was Erika Fischer, a friend of Susan Sineto. (Id. at 12-13.)

On January 17, 2007, plaintiff again e-mailed Parrot, Tokutomi and Lawson inquiring about the status of her discrimination complaint but received no response. (Id. at 13.) On January 22, 2007, plaintiff was informed that Lynn Bartolo, the Division Chief, would eventually answer her complaint. (Id. at 14.) On March 12, 2007, plaintiff still had not received an answer to her complaint. (Id.) Plaintiff e-mailed Bartolo about the status of her discrimination complaint and was informed by Bartolo that "labor relations had closed their file and nothing would be done." (Id.) Bartolo told plaintiff that she would have to fill out another discrimination complaint. (Id.) Believing she was getting the "run around," plaintiff contacted the Equal Employment Opportunity Commission ("EEOC").*fn6 (Id.) On May 5, 2007, plaintiff received a corrected W-2 form produced by Erika Fischer.*fn7 (Id.)

Sometime thereafter, plaintiff complained to her supervisor, Ken Lawson, that she had been receiving "differential treatment" from co-workers and supervisors. (Id. at 15.) Specifically, plaintiff's co-workers would call her names, slam cabinet doors when she was around and run into her while walking in the hallway. (Id.) Plaintiff also "had to endure lesbian[] co-workers making comments about her breast and shape, she had to witness some of her team members who were women getting massages from each other." (Id.) Lawson advised plaintiff that "it's probably all in your head." (Id.)

In April of 2007 plaintiff's doctor took her off work due to stress. (Id. at 16.) The BOE normally announces when an employee takes a leave of absence so that other employees can donate their accrued time-off to the employee on leave. (Id.) Plaintiff asked Fischer not to announce that she was taking a leave of absence. (Id.) However, Fischer nonetheless announced that plaintiff was taking a leave of absence due to work related stress. (Id.)

In July of 2007 plaintiff was interviewed for a position as an Office Technician with the BOE but was not hired. (Id. at 20.) The person hired for the position was Asian, was the sister of another employee who had worked for Parrot, had previously worked in a bar and had no experience working in the Excise Tax Division. (Id.)

In August of 2007 plaintiff was informed that she could not reschedule a test for a Tax Technician II position, even though her request was based upon the fact that she was returning from a funeral in Texas. (Id. at 17.) However, a Caucasian co-worker who worked "on the same team" as plaintiff was allowed to reschedule her Tax Technician II test. (Id.)

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. at 18.) Plaintiff had "to call several times and leave several message[s] before the problem was fixed." (Id.)

That same month plaintiff spoke to Richard Parrot about another open position as a BOE Office Technician and he told plaintiff that she would be interviewed for the position. (Id. at 19.) However, plaintiff was not interviewed and the opening was filled by a Caucasian woman with no previous work experience in the Excise Tax Division. (Id.) In this regard, plaintiff alleges that she was "qualified for the Office Technician [position]; she had the knowledge of the Excise Tax Division." (Id. at 21.) Moreover, plaintiff "was interviewed and tentatively hired for an Office Technician position with the Dept of Health and [the] Dept of Education." (Id.)

In October of 2007 plaintiff was not paid on schedule and was told that "she had an outstanding balance owed to BOE." (Id. at 22.) It is Erika Fischer's responsibility to report to the State Controller those individuals with outstanding balances owed to the BOE. (Id. at 23.)

In November of 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.)

DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)

Defendant seeks dismissal of plaintiff's second amended complaint with prejudice. In moving to dismiss defendant argues that: 1) plaintiff has failed to state a cause of action for discrimination under Title VII; 2) plaintiff has failed to state a cause of action for hostile work environment; 3) plaintiff has failed to allege that she suffered an adverse employment action; 4) plaintiff has failed to allege discriminatory intent; 5) plaintiff has failed to state a cognizable cause of action for retaliation under Title VII; and 6) this court lacks jurisdiction to adjudicate plaintiff's state law claims.

LEGAL STANDARDS APPLICABLE TO DEFENDANT'S MOTION

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).

Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). The plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims. Jones, 733 F.2d at 649. A complaint must also contain "a short and plain statement of the grounds for the court's jurisdiction" and "a demand for the relief sought." Fed. R. Civ. P. 8(a)(1) & 8(a)(3).

ANALYSIS

I. Title VII

Title VII makes it unlawful for an employer to "discriminate against any individual with respect to [her] compensation, term, conditions, or privileges of employment, because of such individual's race . . . ." 42 U.S.C. § 2000e-2(a)(1).

1) Discrimination

It is well-settled that Title VII is concerned not only with intentional discrimination, but also with employment practices and policies that lead to disparities in the treatment of classes of workers. See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 430-31 (1971); Connecticut v. Teal, 457 U.S. 440, 446 (1982) Thus, a plaintiff alleging discrimination under Title VII may proceed under two theories: disparate treatment or disparate impact. Ricci v. DeStefano,___U.S.___, ___. 129 S. Ct. 2658, 2672 (2009); Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986-87 (1988); The Committee Concerning Community Improvement v. City of Modesto, 583 F.3d 690, 711 (9th Cir. 2009). A person is discriminated against through disparate treatment "when he or she is singled out and treated less favorably than others similarly situated on account of race." McGinest v. GTE Service Corp., 360 F.3d 1103, 1121 (9th Cir. 2004) (quoting Jauregui v. City of Glendale, 852 F.2d 1128, 1134 (9th Cir. 1988)). See also Cornell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006). While the disparate treatment theory requires proof of discriminatory intent, intent is irrelevant to a disparate impact claim. Watson, 487 U.S. at 988; Garcia v. Spun Steak Co., 998 F.2d 1480, 1484 (9th Cir. 1993). "[I]mpact analysis is designed to implement Congressional concern with 'the consequences of employment practices, not simply the motivation.'" Garcia, 998 F.2d at 1484 (quoting Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990) (citations omitted)). A prima facie case of disparate impact is typically achieved by statistical evidence demonstrating the selection bias of an employment practice. Lawrence v. Dept. of Interior, 525 F.3d 916, 921 (9th Cir. 2008); Stout v. Potter, 276 F.3d 1118, 1122 (9th Cir. 2002). Here, plaintiff has failed to allege any facts that would suggest a disparate impact claim. Accordingly, the court will assess whether plaintiff's second amended complaint alleges a cognizable discrimination claim based on disparate treatment.

A plaintiff in a disparate treatment case bears the burden of alleging and proving that the defendant employer intentionally discriminated against her. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); McGinest, 360 F.3d at 1122. A plaintiff must, therefore, allege and prove discriminatory motive on the part of the defendant. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977); Pejic v. Hughes Helicopter, Inc., 840 F.2d 667, 672 (9th Cir. 1988). A plaintiff may prove intent through either "direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated the employer." Metoyer v. Chassman, 504 F.3d 919, 930 (9th Cir. 2007); Pejic, 840 F.2d at 672. An example of direct evidence of such intent is an employer's use of a racial slur or epithet. Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1141 (9th Cir. 2006); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1029 n.7 (9th Cir. 2006). Here, plaintiff has failed to allege any facts that would suggest the existence of direct evidence of discriminatory intent on the part of defendant.

Alternatively, a plaintiff may rely on the familiar McDonnell Douglas burden shifting framework to prove discriminatory intent. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Surrell v. California Water Service Co., 518 F.3d 1097, 1105 (9th Cir. 2008). Under the McDonnell-Douglas test for assessing Title VII discrimination claims, the plaintiff can establish a prima facie case by showing: (i) that [s]he belongs to a racial minority; (ii) that [s]he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite [her] qualifications, [s]he was rejected; and (iv) that, after [her] rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

McDonnell Douglas Corp., 411 U.S. at 802. See also Noyes v. Kelly Services, 488 F.3d 1163, 1168 (9th Cir. 2007).

Once plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802-803; Diaz v. Eagle Produce Ltd. Partnership, 521 F.3d 1201, 1207 (9th Cir. 2008). If defendant meets its burden in that regard, the burden shifts back to plaintiff to establish that defendant's proffered reason was a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); Diaz, 521 F.3d at 1207. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 507 (quoting Burdine, 450 U.S. at 253).

Here, plaintiff alleges in her second amended complaint in relevant part, as follows. That she is African-American. (Sec. Am. Compl. (Doc. No. 28) at 2.) That in July 2007 she interviewed for an open position as a BOE Office Technician. (Id. at 20.) That she is well qualified for the position of BOE Office Technician based on her experience within the Excise Tax Division and that she "was in the top three ranking" of applicants on the list the "BOE was using[.]" (Id. at 21-22.) That despite her qualifications, she was rejected for the open position and that defendant eventually hired a less experienced person. (Id. at 20.) Plaintiff also alleges that in September of 2007, she again inquired about an open position as a BOE Office Technician. (Id. at 19.) Plaintiff was told she would be interviewed for that position but never was. (Id.) Ultimately, defendant again hired a person lacking relevant prior experience. (Id.)

Defendant does not dispute plaintiff's allegations that she belongs to a racial minority and expressed her interest in the open BOE Office Technician positions that others were selected to fill, nor could they dispute such allegations by way of their motion to dismiss.

Defendant does, however, argue that plaintiff has failed to allege that she was qualified for the Office Technician position. (Am. MTD (Doc. No. 33-1) at 7.)

With respect to her qualifications, plaintiff alleges that: Alicia [referring to plaintiff herself in the third person] was/is qualified for the Office Technician; she had the knowledge of the Excise Tax Division. Ms. Jackson was interviewed and tentatively hired for an Office Technician position with the Dept of Health and Dept of Education. Ken Lawson, Alicia (sic) supervisor can attest to how many phone calls he received from other departments who wanted to hire Alicia.

Unfortunately, Alicia was not []reachable on the permanent full time hiring list, she was ranked four. To get picked up by a state agency you have to be in the top three testing ranks on the hiring list. Ms. Jackson was reachable on [the] BOE Office Technician list, because it was a permanent limited term list. On the limited term list, which BOE was using Alicia was in the top three ranking.

(Sec. Am. Compl. (Doc. No. 28) at 21-22.)

Defendant argues that plaintiff's allegation that "[u]nfortunately, Alicia was not []reachable on the permanent full time hiring list, she was ranked four," establishes that plaintiff "was not qualified for the position." (Am. MTD (Doc. No. 33-1) at 7.) The court concludes that, understandably perhaps, defendant's argument in this regard misconstrues plaintiff's allegation.

In her second amended complaint, plaintiff also alleges that she "spoke to Richard Parrot . . . regarding an Office Technician position." (Sec. Am. Compl. (Doc. No. 28) at 19.) Plaintiff alleges that she "did interview for a similar position in July 2007" to fill a vacancy created after another employee "who had worked as Richard Parrot's Office Technician" received a promotion. (Id. at 20.) According to plaintiff, Richard Parrot is an employee of the BOE. (Id. at 6.) With respect to employment within the BOE plaintiff claims that she "was reachable on [the] BOE Office Technician list, because . . . . On the limited term list, which [the] BOE was using [she] was in the top three ranking." (Id. at 22.) In this regard, plaintiff's allegation that she "was not reachable on the permanent full time hiring list [because] she was ranked four" is in reference to plaintiff's unrelated allegation that she "was interviewed and tentatively hired for an Office Technician position with the Dept of Health and Dept of Education." (Id. at 21.) Simply put, in her second amended complaint the court is satisfied that plaintiff has alleged that she was not ranked high enough to be hired as an Office Technician by an agency outside of the BOE, but that she was ranked high enough to be hired as an Office Technician by the BOE.

As noted above, for purposes of this motion to dismiss, the court must accept as true the allegations of plaintiff's second amended complaint and construes those allegations in the light most favorable to the plaintiff. Accepting the above allegations as true, plaintiff's second amended complaint states a cognizable claim for relief based on defendant's alleged discriminatory treatment in failing to hire plaintiff for the open BOE Office Technician positions in July of 2007 and September of 2007 and instead filling those positions with less qualified applicants. See Dominguez-Curry v. Nevada Transp. Dept., 424 F.3d 1027, 1037 (9th Cir. 2005) ("To make out a prima facie case under McDonnell Douglas, a plaintiff must show that (1) she belongs to a protected class; (2) she applied for and was qualified for the position she was denied; (3) she was rejected despite her qualifications; and (4) the employer filled the position with an employee not of plaintiff's class, or continued to consider other applicants whose qualifications were comparable to plaintiff's after rejecting plaintiff."). Accordingly, defendant's motion to dismiss plaintiff's claim that defendant discriminated against plaintiff by failing to hire plaintiff for the open BOE Office Technician positions in July of 2007 and September of 2007, should be denied.

With respect to plaintiff's allegations that the BOE interfered with he union representation in connection with her involvement in the holiday committee, the corrected W-2 forms, the BOE's refusal to reschedule plaintiff's test for a Tax Technician II position, the public announcement of plaintiff's leave of absence, the September 2007 garnishment order and plaintiff's untimely paycheck in October of 2007, the court has reviewed those allegations and finds them insufficient to state a cognizable claim that plaintiff suffered any adverse employment action or that individuals outside her protected class were treated more favorably than she. Plaintiff's allegations regarding these matters, at worst, reflect that the BOE was an imperfect, inflexible employer that inconvenienced plaintiff through multiple clerical mistakes. While perhaps irritating, even if true, plaintiff's allegations do not suggest any adverse employment action that materially affected the terms and conditions of her employment.*fn8 See Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1126 (9th Cir. 2000) (For a Title VII discrimination claim, an adverse action is one that "materially affect[s] the compensation, terms, conditions, or privileges of the [plaintiff's] employment."). Plaintiff's allegations with respect to the matters noted above do not suggest any serious job actions, such as the initiating of an investigation against an employee or the transfer of job duties such as those that have been found to constitute adverse employment actions. See Poland, 494 F.3d at 1180 (citing Ulrich v. City and County of San Francisco, 308 F.3d 968, 977 (9th Cir. 2002) and Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)). These allegations, even if true, would fail to establish a discriminatory intent on the part of the BOE.*fn9

Accordingly, defendant's motion to dismiss for failure to state a cognizable claim of relief based on these allegations of discrimination under Title VII should be granted.

2) Hostile Work Environment

Title VII also prohibits an employer from "requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To state a viable hostile work environment claim under Title VII, the plaintiff must allege facts showing that her work environment was "permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" Harris, 510 U.S. at 21 (citation omitted). See also Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) ("For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.") (internal quotation and citation omitted).

Plaintiff has alleged in her second amended complaint that on December 8, 2006, plaintiff was confronted by two co-workers, Reedman and Weyhe, who demanded to speak to her immediately. (Sec. Am. Compl. (Doc. No. 28) at 10.) Plaintiff claims the two co-workers yelled at her, knocked over the wall of her cubicle, pointed their fingers at her while accusing her of using the holiday food drive for her own personal profit. (Id.) The two co-workers also allegedly threatened to report the matter to the Internal Security Audit and to plaintiff's supervisor. (Id.)

Even assuming arguendo that this incident occurred as alleged by plaintiff in her second amended complaint, these allegations would not suffice to state a cognizable hostile work environment claim.*fn10 This is because occasional or isolated incidents, unless especially severe, are insufficient to support such a claim. Rather, a plaintiff must allege facts showing a concerted and continuous pattern of harassment. Faragher v. City of Boca Raton, 524 U.S. 775, 787 n.1 (1998); Harris, 510 U.S. at 23. The alleged argument between co-workers was merely a single isolated incident that cannot be characterized as particularly severe nor as a concerted or continuos pattern of harassment. See Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000) (rejecting a hostile work environment claim where plaintiff alleged that she was harassed on a single occasion for a matter of minutes in a way that did not impair her ability to perform her job in the long-term); Candelore v. Clark County Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992) ("[I]solated incidents of sexual horseplay alleged by Candelore took place over a period of years and were not so egregious as to render Candelore's work environment 'hostile.'") This is the only incident of harassment alleged by plaintiff involving the identified co-workers. Moreover, plaintiff has not alleged any facts suggesting that the incident was motivated by her race. Instead, it appears from her allegations that the argument was simply a heated dispute between co-workers regarding their actions in connection with a volunteer holiday committee. Finally, plaintiff has not alleged that defendant BOE played any role in the dispute.

Plaintiff has also alleged in her second amended complaint that her fellow co-workers and supervisors were "name calling," "slamming cabinets," "physically running into her," "making comments about her breast (sic) and shape," and that plaintiff had to "witness some of her team members who were women getting massages from each other who were" lesbians. (Sec. Am. Compl. (Doc. No. 28) at 15.)

The court finds these allegations to be too vague and conclusory to state a claim upon which relief can be granted. Specially, plaintiff has not identified a single co-worker or supervisor allegedly involved in these alleged actions nor provided a date on which any of these incidents allegedly occurred. Moreover, plaintiff has made only bare assertions, devoid of any factual details, concerning the conduct at issue. To state a claim on which relief may be granted, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones, 733 F.2d at 649. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertions' devoid of 'further factual enhancements.'" Ashcroft v. Iqbal, ___U.S.___,___, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555, 557). A plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims.*fn11 Jones, 733 F.2d at 649.

As to the remaining factual allegations of plaintiff's second amended complaint, even if all are taken to be true, a cognizable hostile work environment claim would still not be presented because the conduct alleged is simply not sufficiently severe to create an objectively hostile or abusive work environment. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998) (quoting Harris, 510 U.S. at 21). "[C]onduct must be extreme to amount to a change in the terms and conditions of employment," lest Title VII become nothing more than "a 'general civility code.'" Faragher, 524 U.S. at 788 (quoting Oncale, 523 U.S. at 80.) See also Porter v. California Dept. of Corrections, 419 F.3d 885, 893 (9th Cir. 2005) (angry remarks and insults directed by co-workers at plaintiff, standing by themselves were not sufficiently severe or pervasive to support a hostile-environment claim).

Aside from the lone argument with her co-workers and the vague and conclusory allegation concerning cabinet slamming and inappropriate sexual comments, the events alleged by plaintiff involve clerical errors and a refusal to reschedule a job opening test. While a brief delay in the receipt of a paycheck or repeated mishandling of a wage garnishment order may be irritating or, at some point, even infuriating, they are not extreme or severe enough so as to amount to a change in the terms and conditions of plaintiff's employment.

Accordingly, for the reasons stated above, the court finds that plaintiff's second amended complaint fails to state a hostile work environment claim upon which relief may be granted and defendant's motion to dismiss this claim should therefore be granted.

3) Retaliation

Title VII also prohibits retaliation by an employer "against an employee for making a charge or otherwise participating in a Title VII proceeding." Nilsson v. City of Mesa, 503 F.3d 947, 953 (9th Cir. 2007). Under § 704 of the Civil Rights Act of 1964, it is unlawful for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]. 42 U.S.C. § 2000e-3 (2000). To make out a prima facie case of retaliation under Title VII, a plaintiff must allege facts demonstrating that "(1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between her activity and the employment decision." Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065-66 (9th Cir. 2003) (quoting Raad v. Fairbanks North Star Borough Sch. Dist., 323 F.3d 1185, 1196-97 (9th Cir. 2003). See also Poland v. Chertoff, 494 F.3d 1174, 1179-80 (9th Cir. 2007) ("To establish a claim of retaliation, a plaintiff must prove that (1) the plaintiff engaged in a protected activity, (2) the plaintiff suffered an adverse employment action, and (3) there was a causal link between the plaintiff's protected activity and the adverse employment action.").

As to the first element of the prima facie case, an employee's formal or informal complaint regarding unlawful employment practices is "protected activity," and a plaintiff need only show that her belief that an unlawful employment practice occurred was "reasonable." See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000); Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994). As to the second element, for purposes of a retaliation claim, a challenged action must be "materially adverse," which means that it would dissuade a reasonable worker from exercising protected rights. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). As to the third element, a plaintiff may establish a causal link between the protected activity and the adverse action by circumstantial evidence, including the employer's knowledge of the protected activity and a proximity in time between the protected action and the adverse employment act. Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988). See also Passantino, 212 F.3d at 507 ("[W]hen adverse decisions are taken within a reasonable period of time after complaints of discrimination have been made, retaliatory intent may be inferred.").

Here, defendant argues that plaintiff has failed to allege that she suffered an adverse employment action. In this regard, defendant argues that plaintiff has failed to allege that she was qualified for the open BOE Office Technician positions, that the Office Technician position represented a promotion for plaintiff or that the individuals hired for the open BOE Office Technician positions were less qualified then she. (Am. MTD (Doc. No. 33-1) at 6-7.) In this regard, defendant asserts that the Office Technician position plaintiff sought was "a lateral transfer" from her position as a Tax Technician.*fn12 (Id. at 7.)

In her second amended complaint plaintiff alleges as follows. On December 12, 2006, she met with hiring supervisor Susan Sineto so that Sineto could approve plaintiff's request to leave work early to meet with an attorney to discuss plaintiff's discrimination complaint. (Sec. Am. Compl. (Doc. No. 28) at 12.) Sineto had worked for the BOE for more then ten years and was responsible for hiring plaintiff. (Id.) Upon learning of plaintiff's intentions, Sineto told plaintiff:

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.) Thereafter plaintiff applied in July of 2007 and September of 2007 for job openings as a BOE Office Technician but was passed over each time for candidates with "no previous work experience in the Excise Tax Division," despite the fact that plaintiff was qualified for the position of Office Technician, and was "in the top three ranking" on the BOE's applicant list. (Id. at 19-20, 22.)

Accepting the above allegations as true and construing them in the light most favorable to plaintiff as required, the court finds that plaintiff has alleged in her second amended complaint that she engaged in a protected activity and that she suffered an adverse employment action as a result. Moreover, plaintiff has alleged that she was qualified for the open BOE Office Technician positions and that those positions were ultimately filled by less qualified individuals. While plaintiff has failed to allege that the Office Technician position represented a promotion from her position as a Tax Technician, that failure is not fatal to her claim even assuming the accuracy of defendant's assertion that the Office Technician position plaintiff sought represented only a lateral transfer.*fn13 See McAlindin v. County of San Diego, 192 F.3d 1226, 1239 (9th Cir. 1999) ("[I]f a transfer to a 'position was not made available to [plaintiff] because of her involvement in protected activities,' then she suffered an adverse employment decision.") (quoting Bouman v. Block, 940 F.2d 1211, 1229 (9th Cir. 1991); Randlett v. Shalala, 118 F.3d 857, 862 (1st Cir. 1997) (noting that denial of transfer could constitute adverse employment action where transfer was "common enough practice and so arguably a 'privilege' of employment"); McCarthy v. R.J. Reynolds Tobacco Co., No. CIV. 2:09-2495 WBS DAD, 2011 WL 1740599 at *7 (E.D. Cal. May 4, 2011) ("Denial of a transfer or promotion could certainly dissuade a reasonable worker from engaging in a protected activity."); see also National R.R. Passenger Corp. V. Morgan, 536 U.S. 101, 114 (2002) ("Discrete acts such as . . . denial of transfer . . . are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'").

Defendant also argues that nine months elapsed between plaintiff's protected activity and the alleged adverse employment action, and that nine month is "too long to show a causal connection." (Am. MTD (Doc. No. 33-1) at 8.) The nine month span defendant refers to appears to be the time between the filing of plaintiff's discrimination complaint in December of 2006 and when she was not interviewed for the BOE Office Technician position in September of 2007. However, plaintiff was allegedly first passed over for an Office Technician position in July of 2007, only seven months after she filed her discrimination complaint. Plaintiff was informed on March 12, 2007 that, with respect to her complaint, "labor relations had closed their file and nothing would be done." (Sec. Am. Compl. (Doc. No. 28) at 14.) Plaintiff alleges that she "contacted the EEOC" sometime thereafter and was passed over for the first open BOE Office Technician position in July of 2007, only four months later. (Id.)

Moreover, "a rule that any period over a certain time is per se too long (or, conversely, a rule that any period under a certain time is per se short enough) would be unrealistically simplistic." Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir. 2003). Under some circumstances a nine-month gap in time may be too great to allow the inference of a causal link. See Manatt v. Bank of America, NA, 339 F.3d 792, 802 (9th Cir. 2003) (nine-month lapse between protected activity and alleged retaliatory employment decision too long to infer causation); see also Cornwell v. Electra, 439 F.3d 1018, 1035-36 (9th Cir. 2006) (gap of eight months too great to support an inference that complaint was related to termination). Under other circumstances, however, even a gap of eleven months may not be too great to allow such an inference. See Allen v. Iranon, 283 F.3d 1070, 1078 (9th Cir. 2002) ("[A]n eleven-month gap in time is within the range that has been found to support an inference that an employment decision was retaliatory.").

Here, plaintiff has alleged that in December of 2006 she was warned that if she filed a discrimination complaint no one would hire her. Plaintiff went ahead and filed a discrimination complaint. Plaintiff continued to inquire about the status of that complaint through March of 2007, when she was told that nothing would be done, and then "contacted the EEOC" sometime thereafter. (Sec. Am. Compl. (Doc. No. 28) at 14.) According to plaintiff, four months later she applied for a job for which she was qualified but was passed over for a less qualified applicant. Under such circumstances plaintiff's allegations, if proven true, may establish a causal link between her protected activity of filing a discrimination complaint and the employment decision to pass her over for the open Office Technician position. See Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (causation was found from proximity alone where the adverse actions occurred within three months after protected activity, two weeks after charge investigated, and less than two months after investigation ended); Marinello v. California Dep't of Corrections & Rehabilitation, No. C 08-00664 JW, 2008 WL 4657775 at *2 (N.D. Cal. Oct. 21, 2008) (finding that "under the notice pleading standards, a causal link may be inferred based on the proximity in time" where adverse action occurred within three months of filing complaint with the EEOC).

Finally, "[w]hether an adverse employment action is intended to be retaliatory is a question of fact that must be decided in the light of the timing and the surrounding circumstances." Anthoine v. North Central Counties Consortium, 605 F.3d 740, 751 (9th Cir. 2010) (quoting Coszalter, 320 F.3d at 978). While plaintiff may not ultimately be able to present sufficient facts with respect to this issue, on a motion to dismiss "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed, it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Here, accepting plaintiff's allegations as true and construing them in the light most favorable to her, the allegations of the second amended complaint are sufficient to state a prima facie case of retaliation under Title VII.

For the reasons stated above, defendant's motion to dismiss should be denied with respect to plaintiff's claim that the defendant retaliated against her by failing to hire her for the open BOE Office Technician positions in July of 2007 and September of 2007.*fn14

II. State Law Claims

Plaintiff generally alleges in her second amended complaint that this action is "authorized and instituted pursuant to . . . the common law of the State of California." (Sec. Am. Compl. (Doc. No. 28) at 4.) Plaintiff also alleges that this court may "exercise pendant jurisdiction over plaintiff's state law claims arising under the common law and statutes of the State of California. (Id. at 5.) Defendant argues that any potential state law claims against the BOE should be dismissed because this court lacks jurisdiction over those claims. (Am. MTD (Doc. No. 33-1) at 9.)

In general, the Eleventh Amendment bars suits against a state, absent the state's affirmative waiver of its immunity or congressional abrogation of that immunity. Pennhurst v. Halderman, 465 U.S. 89, 98-99 (1984); Simmons v. Sacramento Cnty Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003); Yakama Indian Nation v. State of Wash. Dep't of Revenue, 176 F.3d 1241, 1245 (9th Cir. 1999); see also Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) ("The Eleventh Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal consent by the state.").*fn15

To be a valid waiver of sovereign immunity, a state's consent to suit must be "unequivocally expressed in the statutory text." Lane v. Pena, 518 U.S. 187, 192 (1996). See also Pennhurst, 465 U.S. at 99; Yakama Indian Nation, 176 F.3d at 1245. "[T]here can be no consent by implication or by use of ambiguous language." United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 659 (1947). Courts must "indulge every reasonable presumption against waiver," Coll. Sav. Bank v. Florida Prepaid, 527 U.S. 666, 682 (1999), and waivers "must be construed strictly in favor of the sovereign and not enlarged beyond what the [statutory] language requires." United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992) (citations, ellipses, and internal quotation marks omitted). "To sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims." Lane, 518 U.S. at 192.

To the extent plaintiff has attempted to allege any violations of state law, such claims may be barred by sovereign immunity. In any event, in her second amended complaint plaintiff has failed to allege that any specific conduct engaged in by defendant BOE violated any provision of state law. Rather, plaintiff has simply alleged that this court may exercise jurisdiction over plaintiff's state law claims without referring to any such specific state law claims. Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice to the defendant and must allege facts that support the elements of the claim plainly and succinctly. Jones, 733 F.2d at 649. Because plaintiff has failed to comply with the requirements of Fed. R. Civ. P. 8(a), any unidentified state law claim that she intended to present in her second amended complaint must be dismissed.

Accordingly, defendant's motion to dismiss any state law claims contained in plaintiff's second amended complaint should be granted.

DEFENDANT'S MOTION TO STRIKE

Defendant moves pursuant to Federal Rule of Civil Procedure 12(f) to strike plaintiff's claims for declaratory and injunctive relief and for punitive damages, arguing that declaratory and injunctive relief and punitive damages are not forms of relief available to plaintiff in this action. (Am. MTD (Doc. No. 33-1) at 9-10.)

A motion to strike pursuant to Rule 12(f) allows a court to strike "from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "[T]he function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial . . . ." Whittlestone, Inc. v. Handi-Craft, Co., 618 F3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 (1994)). See also Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983). A motion to strike is well-taken when "it is clear that the matter to be stricken could have no possible bearing on the subject matter of litigation." LeDuc v. Kentucky Central Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). Impertinent allegations are those that are not responsive or relevant to issues involved in the action and which could not be admitted as evidence in the litigation. Fantasy, Inc., 984 F.2d at 1527. "Scandalous" within the meaning of Rule 12(f) includes allegations that cast a cruelly derogatory light on a party or other person. Talbot v. Robert Mathews Distributing Co., 961 F.2d 654, 665 (7th Cir. 1992). Ultimately, whether to grant a motion to strike applying these standards lies within the sound discretion of the district court. Fantasy, Inc., 984 F.2d at 1527; see also California Dept. of Toxic Substances Control v. Alco Pacific, Inc., 217 F. Supp.2d 1028, 1032-33 (C.D. Cal. 2002).*fn16

Here, defendant does not allege that plaintiff's claim for injunctive relief or punitive damages is an insufficient defense or is redundant, immaterial, impertinent, or scandalous. Nor could defendant assert as much. See Fantasy, Inc., 984 F.2d at 1527 ("Immaterial matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded . . . . Impertinent matter consists of statements that do not pertain, and are not necessary, to the issues in question."). See also Whittlestone, Inc., 618 F3d at 974 (finding that a claim for damages could not be redundant, immaterial, impertinent or scandalous).

Defendant merely argues that such forms of relief are precluded as a matter of law and therefore should be stricken from plaintiff's second amended complaint. Such an argument is better addressed by way of a motion to dismiss brought pursuant to Rule 12(b)(6) or a motion for summary judgment brought pursuant to Rule 56, not by way of a motion to strike pursuant to Rule 12(f). Yamamoto v. Omiya, 564 F.2d 1319, 1327 (9th Cir. 1977) ("Rule 12(f) is 'neither an authorized nor a proper way to procure the dismissal of all or a part of a complaint.'") (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1380, at 782 (1969)); but see Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) ("The purpose of [Rule] 12(b)(6) is to enable defendants to challenge the legal sufficiency of complaints . . . ."). Rule 12(f) does not authorize a district court to strike a claim for relief on the grounds that such relief is precluded as a matter of law. See Whittlestone, 618 F.3d at 976 ("We hold that Rule 12(f) of the Federal Rules of Civil Procedure does not authorize a district court to dismiss a claim for damages on the basis it is precluded as a matter of law.").*fn17

Accordingly, the undersigned will recommend that defendant's motion to strike be denied.*fn18

MOTION FOR MORE DEFINITE STATEMENT

Defendant also moves pursuant to Federal Rule of Civil Procedure 12(e) for a more definite statement. (Am. MTD (Doc. No. 33-1) at 10.) A motion for more definite statement pursuant to Federal Rule of Civil Procedure 12(e) is designed to strike at unintelligibility, rather than want of detail. See Woods v. Reno Commodities, Inc., 600 F. Supp. 574, 580 (D. Nev. 1984); Nelson v. Quimby Island Reclamation Dist, 491 F. Supp. 1364, 1385 (N.D. Cal. 1980). The rule permits a party to move for a more definite statement "[i]f a pleading is so vague that a party cannot reasonably be required to frame a responsive pleading." Fed. R. Civ. P. 12(e). It is not the function of such a motion to require the pleader to disclose details of the case, see Boxall v. Sequoia Union High Sch. Dist., 464 F. Supp. 1104, 1114 (N.D. Cal. 1979), or to provide the evidentiary material that may properly be obtained by discovery, see Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981). A motion for more definite statement should be denied if a pleading meets federal standards by providing a "short and plain statement" of the claim showing that the pleader is entitled to relief. See Fed. R. Civ. P. 8(a)(2).

Upon careful consideration of plaintiff's second amended complaint and the legal standards applicable to Rule 12(e) motions, and in light of the recommendation that all of plaintiff's claims be dismissed except her Title VII claims of discrimination and retaliation in connection with the July 2007 and September 2007 open BOE Office Technician positions, the undersigned finds that plaintiff's second amended complaint is not impermissibly vague or ambiguous with regard to her pro se allegations of discrimination and retaliation noted above. Accordingly, the undersigned will recommend that defendant's motion for more definite statement be denied.

CONCLUSION

IT IS HEREBY RECOMMENDED that:

1. Defendant's November 19, 2010 amended motion to dismiss (Doc. No. 33) be denied as to plaintiff's claim that defendant discriminated against her by failing to hire plaintiff for the open BOE Office Technician positions in July of 2007 and September of 2007;

2. Defendant's November 19, 2010 amended motion to dismiss (Doc. No. 33) be denied with respect to plaintiff's claim that defendant retaliated against her for filing a discrimination complaint by failing to hire plaintiff for the open BOE Office Technician positions in July of 2007 and September of 2007;

3. Defendant's November 19, 2010 amended motion to dismiss (Doc. No. 33) be granted in all other respect;

4. Defendant's November 19, 2010 motion to strike (Doc. No. 33) be denied; and

5. Defendant's November 19, 2010 motion for a more definite statement (Doc. No. 33) be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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