ORDER ON DEFENDANTS' MOTION TO DISMISS AND MOTION TO STRIKE (Doc. No. 32)
This is an employment discrimination case brought by Plaintiff Zerlean Cooper ("Cooper") against her former employer the California Department of Corrections and Rehabilitation ("CDC"), Secretary of CDC Matthew Cate ("Cate"), Warden Mary Lattimore ("Lattimore"), Chief Deputy Warden Jose Cavazos ("Cavazos"), Associate Warden Michael Tann ("Tann"), and Captain Frank Sanders ("Sanders") (collectively "Defendants"). The operative complaint is the Second Amended Complaint ("SAC"). *fn1 The SAC alleges various violations of Title VII and 42 U.S.C. § 1983 claims based on violations of the First and Fourteenth Amendments. Defendants move under Rule 12(b)(6) to dismiss the SAC, and move under Rule 12(f) to strike the request for punitive damages. For the reasons that follow, the Court will grant in part and deny in part the motion.
From the SAC, Cooper is a 56 year old African-American woman. Cooper began her employment with CDC in 1987. Over the years, Cooper received numerous certificates from CDC, including certificates for outstanding performance. In January 1996, Cooper was promoted to the rank of Correctional Lieutenant. Cooper was assigned to the Central California Women's Facility ("the Prison"). There are approximately 27 correctional lieutenants, and less than 3% of them are African-Americans. During the relevant time period, Cooper was the Visiting Lieutenant. Cooper was responsible for guest and security clearances, mail room, visitations (including several yearly programs), transportation, and parole hearings.
In August 2003, Cooper was a witness in a retaliation complaint filed by a female co-worker. Cooper was questioned and gave true answers about the allegations of retaliation, Cooper's knowledge of the complainant's conversations with the Prison administration, and Cooper's training and knowledge regarding Prison policies and procedures.
On October 5, 2005, a Ms. Sanchez (who was an ex-felon), visited the Prison and complained to another lieutenant that Cooper would not let Sanchez's children enter the prison. Sanchez had not followed the appropriate procedure. Sanchez used the term "nigger" twice while referring to Cooper. On October 19, 2005, the prison refused to accept Cooper's complaint against Sanchez for discrimination. On December 26, 2006, the EEO Coordinator for the prison notified Cooper that they would not accept her complaint about Sanchez.
On March 5, 2007, Cooper wrote a letter complaining about an undue and excessive work load. *fn2
On January 3, 2008, Capt. Harding made inappropriate or sexist comments to Cooper. *fn3
On January 17, 2008, Cooper filed a formal complaint against Harding for hostile work environment. In February 2008, CDC, Cate, and Lattimore allowed Cooper to withdraw her complaint against Harding. Cate and Lattimore did not take any action on their own regarding Harding or any hostile environment.
On January 22, 2008, Warden Patrick, in front of Lattimore, made offensive comments to Cooper while discussing job expectations. *fn4 Neither Patrick nor Lattimore acknowledged that job expectations and job assignments were based on seniority.
On December 29, 2008, Sanders upbraided and orally reprimanded Cooper about her job performance, despite the absence of any complaints. Sanders also unjustifiably disciplined Cooper by giving her on the job training and a job expectations memo, despite Cooper having properly performed her duties.
On February 7, 2009, Cooper was passed over for/denied overtime by Sergeant Todisco. Todisco was following her practice of overlooking employees whose seniority entitled them to be assigned overtime. Cooper reported Todisco's policy to Tann and Sanders, but they did nothing about it.
On April 7, 2009, Capt. Arrellano told Cooper that Tann had given instructions that Cooper was to notify Arrellano whenever Cooper varied her work hours. Cooper filed a grievance about this condition.
On April 20, 2009, Cooper filed an excluded employee grievance, in which she alleged that she was being subjected to a hostile environment and retaliation. On June 22, 2009, Lattimore responded to this grievance. Lattimore informed Cooper of the prison's zero tolerance policy regarding hostile work environment, but found that Cooper's complaints were unsubstantiated. Lattimore also stated that Cooper was not required to notify Capt. Arrellano about work schedule changes.
On May 1, 2009, Tann attempted to set Cooper up by getting her to violate/approve of a violation of established prison policy. Tann sent a sergeant and a captain with the driver's licenses of individuals who were attempting to attend a Prison event. The captain told Cooper that an additional security check of the licenses was unnecessary, despite established procedures to the contrary. Cooper did not listen to the captain, but instead followed the established procedure.
On May 3, 2009, visiting staff were notified of the discontinuation of the Get On The Bus program, and of the discontinuation of non-essential visiting at all CDC sites.
On May 7, 2009, Cooper was notified that visiting on weekends would be discontinued. Cooper was also notified that all visiting staff, except for Supervisors and the Family Visiting Officer, would not be redirected/reassigned on those days.
On May 8, 2009, Cooper was called into the Warden's office by Tann and informed by Cavazos that the position of Visiting Lieutenant was being deleted, that Cooper would be redirected to any vacant Lieutenant position, and that Cooper would be redirected to inmate appeals on Tuesdays and Fridays.
On May 11, 2009, Tann exempted a Visiting Sergeant from redirection, but did not exempt Cooper.
On June 9, 2009, Capt. Scott called Cooper into her office for on the job training regarding administrative segregation. It appears that Capt. Scott told Cooper that Sanders had recommended Cooper for progressive discipline. *fn5
On July 17, 2009, Cooper was ordered to report to the Madera County Hospital for random drug testing.
On July 31, 2009, at the direction of Tann, Capt. Scott spoke to Cooper on two subjects. Scott told Cooper that Tann wanted Cooper written up. *fn6
On October 2, 2009, Cooper returned from her regular days off and attempted to sign up for overtime on Third Watch. She was denied overtime by Sergeant Todisco. Todisco told Cooper that Operations Procedure C-065 was being utilized for correctional officers and correctional lieutenants. However, such a practice is contrary to Article 20 of the Departmental Operations Manual Supplement.
On December 30, 2009, Cooper retired early after 22 years of service. Cooper alleged that the prolonged and sustained harassment by Defendants adversely affected her physical and emotional health, including dangerously high blood pressure.
On May 19, 2010, Cooper filed this lawsuit.
Under Federal Rule of Civil Procedure 12(b)(6) ,
a claim may be dismissed because of the plaintiff's "failure to
state a claim upon which relief can be granted." Fed. R. Civ. P.
12(b)(6) . A dismissal under Rule 12(b)(6) may be
based on the lack of a cognizable legal theory or on the absence of
sufficient facts alleged under a cognizable legal theory. Johnson v.
Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008);
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
In reviewing a complaint under Rule 12(b)(6), all allegations of
material fact are taken as true and construed in the light most
favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth.,
540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075,
1077 (9th Cir. 1999). However, the Court is not required "to accept as
true allegations that are merely conclusory, unwarranted deductions of
fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536
F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001). To "avoid a Rule 12(b)(6)
dismissal, "a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the
court draw the reasonable inference that the defendant is liable for
the misconduct alleged." Iqbal, 129 S.Ct. at 1949. The Ninth Circuit
has distilled the following principles from Iqbal
First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. Cal. 2011). If a Rule 12(b)(6) motion is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). In other words, leave to amend need not be granted where amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).
1. 42 U.S.C. § 1983 Claims Against CDC
CDC contends that it is entitled to Eleventh Amendment immunity for all of Cooper's § 1983 claims. While unclear, Cooper appears to argue that front pay and back pay are equitable or prospective remedies and thus, are not barred by the Eleventh Amendment.
Resolution "The Eleventh Amendment bars suits against the State or its agencies for all types of relief . . . ." Krainski v. State ex rel. Bd. of Regents, 616 F.3d 963, 967 (9th Cir. 2010). Unless a State has waived its Eleventh Amendment immunity or Congress has overridden it, a State or one of its agencies or departments cannot be sued directly in its own name, regardless of the relief sought. See Kentucky. v. Graham, 473 U.S. 159, 167 n.14 (1985); Pennhurst State Sch. & Hosp. v. Halderman 465 U.S. 89, 100 (1984); Krainski, 616 F.3d at 967; Dittman v. California, 191 F.3d 1020, 1025 (9th Cir.1999). Further, states and their agencies or departments are not considered "persons" for purposes of 42 U.S.C. § 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 70 (1989); Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004); Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir. 1997).
Here, § 1983 does not abrogate Eleventh Amendment immunity. Kentucky, 473 U.S. at 169 n.17; Dittman 191 F.3d at 1026. CDC is an agency of the State of California, and California has not waived its immunity for claims brought under 42 U.S.C. § 1983. Brown v. California Dep't of Corr., 554 F.3d 747, 752 (9th Cir. 2009); Dittman, 191 F.3d at 1026. Because CDC is not a person under 42 U.S.C. § 1983 and has not waived its Eleventh Amendment immunity, dismissal with prejudice of all of Plaintiff's § 1983 claims against CDC is appropriate. *fn7 See Will, 491 U.S. at 70; Kentucky, 473 U.S. at 167 n.14; Pennhurst 465 U.S. at 100; Krainski, 616 F.3d at 967; Brown, 554 F.3d at 752; Dittman 191 F.3d at 1025-26.
2. Fourteenth Amendment -- Due Process (First Claim)
Defendants argue that Cooper fails to identify any statute that creates a property right to her specific position as a Visiting Lieutenant or to overtime pay. Mere expectations to overtime pay or the particular position are not cognizable property interests. Alternatively, the law was not so clear that the Defendants would have realized that their conduct violated clearly established law. Thus, qualified immunity is appropriate.
Cooper argues that she was a full-time, permanent employee who could only be terminated for cause. Because she could only be terminated for cause, she had a protected property interest in continued employment.
a. Procedural Due Process "In procedural due process claims, the deprivation by state action of a constitutionally protected interest in life, liberty or property is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law." Zinermon v. Burch, 494 U.S. 113, 125 (1986). Thus, the "constitutional violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete unless and until the State fails to provide due process." Id. at 126. A 42 U.S.C. § 1983 claim based upon Fourteenth Amendment procedural due process has three elements: (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; and (3) lack of process. Ulrich v. City & County of San Francisco, 308 F.3d 968, 974 (9th Cir. 2002); Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). Public employees have a "property interest" in the terms and conditions of their employment if that interest is established "by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Board of Regents v. Roth, 408 U.S. 564, 576-77 (1972); Ulrich, 308 F.3d at 975. "If under state law, employment is at-will, then the ...