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.
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 ...