ORDER ON DEFENDANTS' MOTION TO DISMISS (Doc. No. 44)
This is an employment discrimination case brought by Plaintiff Zerlean Cooper ("Cooper") against her former employer the California Department of Corrections and Rehabilitation and Secretary Matthew Cate (collectively "CDC"). Previously, the Court granted in part and denied in part a motion to dismiss the second amended complaint. The operative complaint is now the Third Amended Complaint ("TAC").*fn1 The TAC alleges various violations of Title VII and 29 U.S.C. § 621. Defendants move under Rule 12(b)(6) to dismiss the Title VII claims. For the reasons that follow, the Court will grant the motion.
From the TAC, 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. At various times, 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 called another lieutenant to complain 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 during the call. Neither the lieutenant nor any other individual remonstrated against Sanchez about using the term "nigger" in reference to Cooper. On October 19, 2005, the prison refused to accept Cooper's complaint against Sanchez for discrimination. However, on December 26, 2006, the prison's EEO Coordinator B.J. Simmon notified Cooper that they would not accept her complaint about Sanchez because Cooper allegedly failed to establish that she "suffered a specific harm based partly or wholly upon a protected group basis."
On December 9, 2005, Cooper was subjected to violence or the threat of violence. As Cooper was walking through the central control door, Officer Hack (who was immediately ahead of her) suddenly turned and slammed the door, causing it to hit the wall before it shut. Later that day, Hack noticed Cooper as she was approaching a sergeant's office, and Hack turned and hit the wall with his fist. Further, as Cooper entered the program sergeant's office, Hack (who was already in that office) threw papers on the sergeant's desk, walked out, and stood by the gate.
On December 11, 2005, Cooper reported the incident in writing to then Custody Captain Michael Tann ("Tann"). Although this apparently was the second time that Cooper complained about Hack, CDC took no action on the matter.
In December 2006, around the time that CDC refused to act on Cooper's
complaint against Sanchez, CDC took away Cooper's office assistant and
began to give her undue and excessive workloads and assignments.
Specifically, in addition to being responsible for Visiting, Mail
Room, Transportation, Valdivia, Board of Prison Hearings, Gate
Security Clearances, Get on the Bus, and Bill Glass,*fn3
CDC added the Chowchilla Express Buses (a weekly
transportation program for children to visit their imprisoned
On March 5, 2007, Cooper wrote a letter complaining about the undue and excessive work load. In response, Warden Patrick allowed Cooper to have an office assistant for several months, but did not realign Cooper's workload.
On January 3, 2008, Capt. Harding made a staffing change. When Cooper spoke to Harding about the change, Harding said: "First of all, I told her (Officer Lingard) that she could keep her job, and the second reason, personally, is that I don't have the balls or huevos to tell her that she could not have the position, and I don't want to eat crow." Later, in the same conversation, Harding flexed his chest and said, "If you're lucky, I'll get picked up as an associate warden."
On January 17, 2008, Cooper filed a formal complaint against Harding for inappropriate sexist remarks.
On January 22, 2008, Warden Patrick, in front of then Chief Deputy Mary Lattimore ("Lattimore"), made offensive comments to Cooper while discussing job expectations. Warden Patrick said, ". . . you are not authorized to make any job changes or moves, and you should keep your opinion to yourself because you know how people take it out of context and then it would be hanging on the board there." As Cooper was leaving, Patrick asked, "Are my eyes still brown? Is there going to be any retaliation?" Neither Patrick nor Lattimore acknowledged that job expectations and job assignments were based on seniority.
On February 11, 2008, Associated Warden Simmon wrote Cooper and
acknowledged that Cooper had filed a complaint against Harding. CDC
allowed Cooper to withdraw her complaint against Harding.*fn4
No action was taken by CDC to investigate the conditions of
the work place, and CDC did not require Harding to undergo sensitivity
On December 29, 2008, Capt. Frank Sanders ("Sanders") upbraided and orally reprimanded Cooper about her job performance as the Mail/Visiting/Operations Lieutenant, despite the absence of any complaints. On the same day, Sanders also unjustifiably disciplined Cooper in relation to 200 vehicles that had been submitted for clearance. Sanders gave Cooper on the job training and a job expectations memo, despite Cooper having properly performed her duties. Sanders refused to explain why he gave Cooper the training and the memo.
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. Because of Cooper's seniority, she was entitled to the overtime. Cooper reported Todisco's policy to Sanders and now Associate Warden Tann, 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. Cooper withdrew her grievance because Arrellano promised to clarify the instructions. When Arrellano failed to respond further, Cooper re-filed the grievance.
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 May 1, 2009, Tann attempted to set Cooper up by getting her to violate/approve of a violation of established prison policy. Tann sent two officers 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 officers, but instead followed the established procedures.
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. This had the effect of reducing some of Cooper's duties.
On May 4, 2009, Cooper notified Lattimore, Tann, Arrellano, and Chief Deputy Warden Cavazos of the existing back log of visiting applications, gate clearances, out-going letters for the Warden's signature, and assignments.
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 who outranked the sergeant and was entitled to be exempted.
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 Cpt. Sanders had recommended Cooper for progressive discipline.*fn5 Progressive discipline could result in punitive measures being taken against Cooper, which ranged from an oral warning to termination. Cooper had not done anything to justify a recommendation for discipline.
On June 22, 2009, Warden Lattimore responded to the April 20, 2009, 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 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.
Cooper alleges for close to three years, beginning in December 2006, CDC subjected her to a continuous stream of adverse employment action which turned her work into a hostile work environment due to her race, gender, or protected activity. Cooper alleges that the hostility was expressed by CDC's failure to remonstrate against Sanchez. Further, during the three year period, Cooper was threatened with force and violence, continuously given excessive work loads, denied opportunity to earn overtime, denied the necessary assistance to properly perform her duties, demeaned with unjustified threats of on the job training, and threatened with sanctions that could have led to her termination. Cooper alleges that any reasonable African American female under the circumstances would have resigned rather than continue to work in such a hostile environment.
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. ...