The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH LEAVE TO AMEND
Plaintiff Miguel Ilaw, proceeding pro se, a former employee of Defendants Daughters of Charity Health Systems ("Daughters of Charity"), Caritas Business Services ("Caritas"), and 19 O'Connor Hospital, brings suit under Title VII of the U.S. Civil Rights Act of 1964, as amended 20 ("Title VII"), 42 U.S.C. § 2000e et seq. Although difficult to decipher the vague allegations in his 21 First Amended Complaint ("FAC"), Plaintiff does allege gender discrimination and retaliation. 22
Plaintiff has not yet served Caritas or O'Connor Hospital. Defendant Daughters of Charity has 23 moved to dismiss on the basis of failure to timely exhaust administrative remedies. Plaintiff failed 24 to oppose the motion. Pursuant to Civil Local Rule 7-1(b), the Court finds this motion appropriate 25 for determination without oral argument and vacates the September 22, 2011 motion hearing. For 26 the reasons discussed below, Defendant's motion to dismiss is GRANTED WITH LEAVE TO AMEND.
F.3d 916, 930 (9th Cir. 2008). Plaintiff was employed as an "insurance verifier" by Daughters of 5 Charity and Caritas from March 2007 to April 2010. FAC ¶ 6. In May 2010, Plaintiff was 6 transferred to work at O'Connor Hospital. Id. at ¶ 7. Plaintiff alleges that, throughout his 7 employment with Defendants, he was only the male in his department and that his hourly rate was 8 less than similarly situated female employees. Id. at ¶ 9. Plaintiff alleges that, in May 2010, his 9
For purposes of ruling on Defendant's motion to dismiss, the Court accepts as true Plaintiff's well-pled allegations in the complaint. Marceau v. Blackfeet Housing Authority, 540
Department Director, Ms. Mary Ellen Swigert, "discriminated against [him] by giving him 10 instructions that were different from [his] female co-workers." Id. at ¶ 10. Plaintiff further alleges that "the most unbearable incident happened on July 27, 2010, when Swigert and Sandra Corpus, supervisor, provided [him] instructions that required [him] to be in two places at one time and 13 criticized [him] for not following instructions. They berated [him] with open door." Id. at ¶ 11. In 14 addition, Plaintiff found "love in unexpected place: Facebook," as Plaintiff was "devastated" to 15 learn that Swigert and Corpus were apparently having a romantic relationship, but "never showed 16 compassion to [him] as a male co-worker." Id. at ¶¶ 19-20. Plaintiff shared this information with O'Connor Hospital's Director of Employment, Julie Hatcher, telling Ms. Hatcher about the "rumor 18 spreading around that they 'like girls,' so please investigate." Id. at ¶ 21. Plaintiff alleges that this 19 treatment caused him workplace stress and severe anxiety. Id. at ¶ 25.
October 20, 2010, Plaintiff requested a Notice of Right to Sue authorization with respect to his 23 2010. See Compl. at 18. 25
26 discrimination in violation of California Government Code § 12940. See Def.'s RJN, Exh. B.
Plaintiff did not raise his federal claims in the state court action. On May 31, 2011, at Plaintiff's 28 request, the state court complaint was dismissed without prejudice. See Def.'s RJN, Exh. C. On
On September 16, 2010, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). See Charge, attached to Compl. at 17. On 22 EEOC charge. See Def.'s RJN, Exh. A. Plaintiff's Right to Sue Notice was issued on October 22, 24 On November 5, 2010, Plaintiff filed suit in Santa Clara County Superior Court for gender June 7, 2011, Plaintiff filed his initial Complaint in this Court. See Dkt. #1. Following Defendant 2 Daughter of Charity's motion to dismiss, Plaintiff filed the FAC on July 12, 2011.*fn1 Pending before 3 the Court is Daughter of Charity's motion to dismiss the FAC. Plaintiff has not filed an opposition. 4
6 sufficiency of a complaint. To withstand a motion to dismiss, a plaintiff must "plead enough facts 7 to state a claim that is plausible on its face." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). 8
A motion to dismiss for failure to state a claim under Rule ...