The opinion of the court was delivered by: Lucy H. Koh United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS
Now before the Court are Defendant Mike Kanalakis's motion to dismiss ("Kanalakis's Mot."), ECF No. 30, and Defendants County of Monterey ("County"), Monterey Sheriff's 21 Department ("Sheriff's Department"), Jerry Teeter, Victor Lurz, Commander Mike Richards, Sgt. 22 Joe Moses, and Gilbert Aguilar's (collectively, "Other Defendants") motion to dismiss, or, in the 23 alternative, motion for a more definite statement ("Other Defs.' Mot."). ECF No. 27. After 24 considering Defendants' motions; Plaintiff's oppositions to the motions, ECF Nos. 34 ("Pl.'s Opp'n to Kanalakis's Mot.") and 35 ("Pl.'s Opp'n to Other Defs.' Mot."); Defendants' replies, ECF Nos. 36 ("Other Defs.' Reply") and 38 ("Kanalakis's Reply"); and hearing oral argument, the Court hereby GRANTS in part and DENIES in part the motions to dismiss.
Because these are motions to dismiss, "all allegations of material fact are taken as true and construed in the light most favorable to [Plaintiff]." Facebook, Inc. v. MaxBounty, Inc., 274 F.R.D. 279, 282 (N.D. Cal. 2011) (citing Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337--38 (9th Cir. 1996)).
In her first amended complaint ("FAC"), Plaintiff Ms. Scott-Codiga, a forensic evidence technician in the Sheriff's Department of the County of Monterey, alleges that Defendants 8 retaliated against her for engaging in protected activity and speech and that Defendants 9 discriminated against her based on her gender and on her union and political activities. FAC ¶¶ 2, 10
Plaintiff alleges she was discriminated against on the basis of gender. Id. ¶ 17. She alleges that despite "performing her job duties at an exceptional, high level," she was retaliated against for 14 reporting the wrongdoings of her supervisors, by receiving treatment different than her male co-15 workers. Id. At the same time that Plaintiff's male-co-workers were "allowed time off to attend a
golf tournament and other functions," Plaintiff was not "allowed to take time off work to attend a 17 training class for Forensic Evidence Techs." Id. Plaintiff further claims that she was made to work 18 the Christmas Holiday two years in a row, subjected to an unfair Internal Affairs Investigation, and 19 suspended from work for three weeks without pay, whereas similarly situated male co-workers 20 were not. Id.
Plaintiff alleges that Sheriff Mike Kanalakis retaliated against Plaintiff for openly supporting his opponent in the election for county sheriff. Id. ¶ 23. Plaintiff alleges that on March 23, 2010, after work hours, she attended a "Candidate Forum" where Defendant Kanalakis was 25 present, and that the following day, at work, she was confronted and intimidated by Mr. Lurz. Id. ¶ 26
Plaintiff alleges that she reported various unlawful activities occurring at the crime lab to government agencies including, but not limited to, the District Attorney for the County of Monterey, County Supervisor Jane Parker, and the Sheriff. Id. ¶ 15. Although the dates are not 4 clear, Plaintiff alleges that she made such reports on or around April 1, 2010, July 21, 2010, August 10, 2010, and September 21, 2010. Id. ¶¶ 15, 21.6
Plaintiff alleges that on April 1, 2010, she met with Deputy District Attorneys Berkly Brannon and Terry Spitz. Id. ¶ 18. Although the subject of the meeting is not clear, read in the 8 light most favorable to Plaintiff, it appears that this was one of the instances in which Plaintiff 9 reported unlawful activity to a government agency. See id. ¶ 15.
Plaintiff alleges that on August 10, 2010, she complained to the Sheriff about various violations of law, as well as rules and regulations pertaining to the destruction of evidence in the crime lab. Id. ¶ 15. Plaintiff allegedly complained that the Sheriff's department managers were 13 not making the required disclosures to the District Attorney's Office, nor making any reports 14 documenting the destruction of evidence and the failure to follow the chain of evidence. Id. She 15 further complained of improper storage of evidence, erroneous fingerprint I.D., and violation of various County policies pertaining to the standard of practice in the crime lab. Id.
On September 21, 2010, Plaintiff allegedly "provided a memorandum to the Sheriff's Department, documenting the numerous attempts she had made to report serious incidents of 19 misconduct." Id. ¶ 24. After receiving no response from the Sheriff's Department, Plaintiff 20 allegedly made the memo available to another governmental agency, the Monterey County Board 21 of Supervisors. Id. ¶ 27.
Plaintiff claims that after she engaged in the above protected activity, Defendants discriminated and retaliated against her as follows: (1) subjecting her to an unfair Internal Affairs Investigation that resulted in suspension of three weeks without pay; (2) subjecting her to ongoing 26 harassment and retaliation in the office; and (3) terminating Plaintiff from her position as Forensic Evidence Technician. Id. ¶¶ 16, 25. The harassment and retaliation allegedly includes: "excessive emails;" property being "taken off her desk;" ostracism; and an ambush interrogation by an outside 2 attorney." Id. ¶ 16.
Plaintiff acknowledges that she violated the County's policy prohibiting unnatural hair color when she had "a purple streak put in her hair by her hairdresser" on March 31, 2010. Id. ¶ 18. On April 16, 2010, Commander Teeter admonished Plaintiff that she was violating County 6 policy number 10 and ordered her to remove the streak on April 26, 2010. Id. ¶ 19. Plaintiff 7 alleges that she was unable to make an appointment with her hairdresser and instead went to work 8 on April 26, 2010, "with her hair pinned back, thoroughly covering up the one-quarter-inch . . . 9 purple streak." Id. The next day, April 27, 2010, Commander Teeter, accompanied by Plaintiff's 10
SEIU union representative, went to Plaintiff's office, gave her a copy of the grooming standard policy, and ordered to remove the purple from her hair "by tomorrow." Id. By April 28, 2010,
Plaintiff removed the purple from hair, and upon inspection, Commander Teeter agreed that she 13 had done so. Id.
The next day, however, Commander Teeter ordered Plaintiff to return from responding to a crime scene and report to him. Id. ¶ 20. Commander Teeter ordered Plaintiff to "take a barrette out of her hair and comb through her hair. He then accused her of still having purple hair and 17 suspended her on the spot, ordering her to go home. He demanded and confiscated the keys to her 18 assigned vehicle and to the building, and then escorted her off the premises, humiliating her in 19 front of co-workers and bystanders." Id. 20
On May 6, 2010, Plaintiff received a memo from Management and Commander Teeter informing her that she was under an Internal Affairs Investigation alleging that she was 22 insubordinate and in violation of the department's grooming standards. Id. ¶ 21. Defendants 23 allegedly admit that similarly situated individuals receive milder discipline for violations of the 24 grooming standards. Id. Commander Teeter gave Plaintiff a "Notice of Intent to take Punitive 25
Action" on July 9, 2010, informed Plaintiff of her three-week suspension without pay on August 13, 2010, and sent Plaintiff an email ordering her not to speak to the media regarding issues 27 pertaining to Forensic Sciences. Id. ¶ 22.
Plaintiff alleges that Ms. Hennessey, a journalist, "investigated the crime lab and wrote a story about some of the issues raised by Ms. Scott-Codiga," Id. ¶ 29, including Plaintiff's meeting 3 with the district attorneys on April 1, 2010. Id. ¶ 18. Plaintiff alleges that Sgt. Moses, Gilbert 4
Aguilar, and Victor Lurz falsely stated on November 15, November 18, and November 18, 2010, 5 respectively, that Ms. Hennesy had received Plaintiff's memo disclosing unlawful activity at the 6 crime lab. Id. ¶ 30. 7
On or around December 14, 2010, Plaintiff received notice that she was being terminated from her position as Forensic Evidence Technician for the Monterey County Sheriff's Office, 9 allegedly in "direct retaliation . . . for engaging in activity protected by the First Amendment of the U.S. Constitution and protected under California Labor Code Sections 1101-1102.5." Id. ¶ 25.
Plaintiff alleges that the primary justification provided by the Sheriff's Department for her termination was reporting unlawful activity. Id. ¶¶ 26-27. 13
Plaintiff filed her original complaint on December 1, 2010. ECF No. 1. Plaintiff amended her complaint on May 6, 2011, ECF No. 18, and, based on the above allegations, asserts the 15 following claims under federal and California law: (1) retaliation under Title VII and the California Fair Employment and Housing Act ("FEHA") against the County and Sheriff Department; (2) 17 retaliation under 42 U.S.C. § 1983 against all Defendants; (3) disparate treatment discrimination 18 under Title VII and FEHA against the County and Sheriff Department; (4) failure to prevent 19 discrimination/retaliation under Cal. Gov't Code § 12940(K) against County and Sheriff 20
Department; (5) invasion of privacy against all Defendants; (6) retaliation under Cal. Lab. Code § 1102.5 against all Defendants; (7) retaliation under Cal. Lab. Code §§ 1101, 1002, against all Defendants; (8) intentional infliction of emotional distress against all Defendants; (9) violation of 42 U.S.C. § 1985 against Victor Lurz, Commander Mike Richards, Sgt. Joe Moses and Gilbert Aguilar; and (10) violation of 42 U.S.C. § 1986 against Victor Lurz, Commander Mike Richards, Sgt. Joe Moses, and Gilbert Aguilar. FAC ¶¶ 10-21. 26
Defendant Mike Kanalakis moved to dismiss Plaintiff's second and fifth through eighth claims under Federal Rule of Civil Procedure 12(b)(6). ECF No. 30. The Other Defendants 28 moved to dismiss Plaintiff's second and fifth through tenth claims under Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, for a more definite statement under Rule 12(e). ECF No. 2 27.
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering 6 whether the complaint is sufficient to state a claim, the Court must accept as true all of the factual 7 allegations contained in the complaint. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). However, 8 the Court need not accept as true "allegations that contradict matters properly subject to judicial 9 notice or by exhibit" or "allegations that are merely conclusory, unwarranted deductions of fact, or 10 unreasonable inferences." In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
While a complaint need not allege detailed factual allegations, it "must contain sufficient factual matter, accepted as true, to "‗state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible 14 when it "allows the court to draw the reasonable inference that the defendant is liable for the 15 misconduct alleged." Id. at 1949. If a court grants a motion to dismiss, leave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
As an initial matter, the Court notes that neither Defendant Kanalakis nor the Other Defendants argue for the dismissal of claims one, three, or four of the FAC, for disparate treatment 21 and retaliation under Title VII and FEHA and failure to prevent discrimination or retaliation under 22
Cal. Gov't Code § 12940(k). Additionally, the Other Defendants do not request a more definite 23 statement regarding these claims. Therefore, these claims are not dismissed nor does the Court 24 order Plaintiff to provide a more definite statement, even though the claims might benefit from 25 some clarification. Accordingly, to the extent the Other Defendants' motion is styled as a motion 26 to dismiss the entire FAC, it is DENIED with regard to claims one, three, and four.
The Court considers Defendants' motions to dismiss Plaintiff's other claims in turn.
A.Plaintiff's Second Claim: Retaliation Under 42 U.S.C. § 1983
Plaintiff alleges that all Defendants violated 42 U.S.C. § 1983 by retaliating against her for exercising her First Amendment rights to free speech and to petition the government for ...