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Vasco Espinoza v. Patrick A. Corvington

February 27, 2012



This matter is before the Court on Defendants Patrick A. Corvington and Corporation for National and Community Service's ("CNCS") (collectively "Defendants") Motion to Dismiss (Doc. #18).*fn1

Plaintiff Vasco Espinoza ("Plaintiff") opposes the motion with respect to Defendant Corvington, but does not oppose dismissal of CNCS or the Doe defendants (Doc. # 22). Defendant Patrick Corvington, Chief Executive Officer of CNCS, is designated by CNCS as its representative against whom any civil action should be filed. Defendants filed a reply (Doc. #23).


This action originated when Plaintiff filed a complaint (Doc. 3 #2) with this Court on December 1, 2010. The allegations in the 4 complaint focus on two interrelated series of events during 5 Plaintiff's employment with Defendant Corporation for National and 6 Community Service. First, Plaintiff alleges that he was demoted in 7 retaliation for reporting misconduct at CNCS to the Office of the 8 Inspector General ("OIG"), thereby precipitating an investigation 9 into certain practices at CNCS. Second, Plaintiff alleges that a subordinate employee, Willie Holmes, created a hostile work environment for Plaintiff by engaging in aggressive and threatening behavior. Mr. Holmes was the Facilities Manager within the Operations Department. Plaintiff alleges that this behavior was not properly addressed by their mutual supervisors, Merlene Mazyck and James Phipps.

A. Plaintiff's Promotion

Plaintiff alleges that he was given a new title on June 3, 2008. Plaintiff claims that his title was changed from Deputy Director of Operations to Deputy Director to reflect expanded duties. Plaintiff asserts that his compensation and benefits were unchanged. Plaintiff considered this to be a promotion, but does not allege that it was so characterized by CNCS.

B. The OIG Investigation

Central to Plaintiff's allegations is an investigation allegedly started by Plaintiff's report to the OIG that certain employees, particularly Mr. Holmes, were engaged in accounting and operational improprieties at CNCS. Plaintiff alleges that he made a report to the OIG shortly before December 1, 2008. Plaintiff was allegedly contacted by the National Director of CNCS, Ms. Mazcyk, 2 to verify that he made the report to the OIG. The next month, 3 January 2009, Plaintiff alleges that his title was changed back to 4 Deputy Director of Operations. The allegations in the complaint 5 indicate that his salary and benefits were not reduced. Plaintiff 6 alleges that his title was changed "to undermine his status on 7 campus, and to retaliate against him for his contact and 8 cooperation with the Office of the Inspector General." Complaint ¶ 9 11.

C. Plaintiff's Allegations Regarding Mr. Holmes

Plaintiff's complaint also includes allegations that a subordinate employee was given favorable treatment because of his race to Plaintiff's detriment. Plaintiff alleges that Mr. Holmes was generally threatening, aggressive, and hostile toward Plaintiff and other employees. Plaintiff alleges that he first complained to superiors at CNCS about Mr. Holmes in May, 2008. In June, 2008 Plaintiff alleges that he again reported Mr. Holmes's behavior, which resulted in the issuance of a "Notice of Formal Reprimand" on August 19, 2008. On October 16, 2008, Plaintiff alleges that he again complained about Mr. Holmes's behavior. This complaint resulted in Mr. Holmes being placed on administrative leave. Mr. Holmes was given a 30 day suspension, and allowed to return to CNCS in January, 2009. Plaintiff alleges that the original recommendation was to terminate Mr. Holmes, but that the recommendation was downgraded to a suspension.

At some time after that, Plaintiff alleges that the OIG investigation confirmed improper operational and fiscal activities on the part of Mr. Holmes. The then acting National Director of CNCS, Mikel Herrington, issued a "Notice of Proposed Removal," 2 Plaintiff alleges, and Mr. Holmes subsequently stepped down from 3 his position at CNCS. 4

Plaintiff alleges that CNCS supervisors James Phipps and 5 Merlene Mazyck, both African American, failed to properly deal with 6 complaints directed toward Mr. Holmes by Plaintiff and other 7 employees because Mr. Holmes is also African American. 8

D. Claims 9

Plaintiff's complaint contains nine claims. Claims 2-5 and 8 were voluntarily dismissed by Plaintiff on November 16, 2011. (Doc. #16) Defendants' current motion seeks dismissal of the remaining claims: (1) Retaliation in Violation of 42 U.S.C. § 2000e-3; (6) Discrimination Based on Race in Violation of 42 U.S.C. § 2000e-2; (7) Intentional Infliction of Emotional Distress; and (9) Negligent Supervision, Hiring, and Retention.

The Court has jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and jurisdiction over the remaining claims pursuant to 28 U.S.C. § 1367.


A. Legal Standard

1. Motion to Dismiss

A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 2 322 (1972). Assertions that are mere "legal conclusions," however, 3 are not entitled to the assumption of truth. Ashcroft v. Iqbal, 4 129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly, 5 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a 6 plaintiff needs to plead "enough facts to state a claim to relief 7 that is plausible on its face." Twombly, 550 U.S. at 570. 8

Dismissal is appropriate where the plaintiff fails to state a claim 9 supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by ...

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