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William Ouimette v. County of Los Angeles and Does 1--10

December 12, 2012


The opinion of the court was delivered by: Otis D. Wright, II United States District Judge



Defendant County of Los Angeles moves to dismiss Plaintiff William Ouimette's First Amended Complaint and to strike portions of Ouimette's Petition for Writ of Alternative Mandate, which is no longer an operative pleading in this action. (ECF Nos. 27, 28.) For the reasons discussed below, the Court DENIES the County's motions.*fn1


Plaintiff William Ouimette has been a member of the United States Marine Core Reserve Component since 1987. (FAC ¶ 10.) In 1998, he began employment with the County of Los Angeles as an Electronic Communications Technician. (FAC ¶ 11.) After four years of working for the County, Ouimette was promoted to Digital Systems Technician in 2002. (FAC ¶ 12.) Ouimette then took leave for active military service from January 2006 through September 2007. (FAC ¶ 14.)

Upon his return from service, Ouimette applied for a promotion to Senior Digital Systems Technician. (FAC ¶ 15.) To be considered for promotional opportunities, County employees are required to take a civil-service promotional examination, which constitutes the County's process of testing, evaluating, and investigating the fitness and qualifications of applicants. (FAC ¶ 17.) The County's Civil Service Rules also require County employers to allow service-member employees returning to County service to take these promotional examinations late if the exam was offered while the employee was on leave. (FAC ¶ 19.) Ouimette alleges that despite these rules, the County denied him the promotion because the promotional exam was offered while he was on military leave. (FAC ¶ 20.)

Ouimette once again departed for military leave on November 2007 and remained on leave until July 2011. (FAC ¶ 21.) Four months before returning, Ouimette notified the County of his return and requested reemployment and any promotional examinations he may have missed while absent. (FAC ¶¶ 21--23.) When he returned, he applied for two promotional examinations: one for an Information Technology Specialist position, and the other for Telecom Branch Manager. (FAC ¶ 24.) Ouimette was again denied the opportunity to take these examinations, which (like the first exam in 2007) were originally offered while he was on active military duty. (FAC ¶ 25.)

After being denied the opportunity to take these exams, Ouimette filed a grievance with the Department of Labor for proper reinstatement. (FAC ¶ 26.)

Following the denial of Ouimette's DOL grievance, an unknown Internal Services employee filed a complaint on Ouimette's behalf with the County Equity Oversight panel, and Ouimette made multiple efforts to resolve the dispute by appearing before the Board of Supervisors and meeting with County Counsel and a CEO representative. (FAC ¶ 27--28.) As a result of his efforts, Ouimette was given a promotion to Senior Network Systems Administrator, a position that paid less than and ranked below both of the other positions for which Ouimette had applied. (FAC ¶ 29.)

Ouimette also alleges that he was entitled to various employment benefits during the period from 2006 to 2011 that the County did not provide. (FAC 5--8.) Ouimette specifically contends that while he worked as a Digital Systems Technician from 2002 until 2011, he was represented by Bargaining Unit 411, whose fringe benefits fell under the Coalition of County Unions. (FAC ¶ 35.) Employees represented by Bargaining Unit 411 had access to the Choices Flexible Benefits Plan, a cafeteria benefits plan providing employees and their eligible dependents access to certain medical benefits. (FAC ¶ 36.) According to Ouimette, Choices beneficiaries have 90 days from the first day of active duty to make certain changes to their benefits, one change being a waiver of medical insurance coverage service-member beneficiaries typically opt for when they will be covered under military medical insurance. (FAC ¶ 38.)

Ouimette alleges that when he went on active military duty in 2006, the County's Internal Services Department incorrectly informed him that he was only entitled to benefits for the first 30 days of active duty, and had he been properly informed of his benefits he would have waived medical coverage. (FAC ¶¶ 39, 41.) Such a waiver could have resulted to Ouimette in a $244 cash stipend per month in lieu of the benefit contribution deduction from his salary. (FAC ¶ 41.)

In addition to his cafeteria benefits, Ouimette contends he was denied vacation and holiday accrual and pension contributions to which he was entitled under the fringe-benefits Memorandum of Understanding with SEIU Local 721. (FAC 7--8.)

As a result of these allegations, Ouimette filed a pro se Petition for Writ of Alternative Mandate in this Court on July 20, 2012. (ECF No. 1.) Following the Court's dismissal of his Petition, Ouimette retained an attorney and filed a First Amended Complaint ("FAC") on October 12, 2012. (ECF No. 26.) The FAC alleges two claims: (1) Discrimination under the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301--4335; and (2) Discrimination under California's Military and Veterans Code sections 394 and 395. The County now moves to dismiss Ouimette's first claim and simultaneously moves to strike various portions of Ouimette's Petition for Writ of Alternative Mandate.


Dismissal under Rule 12(b)(6) can be based on "the lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A complaint need only satisfy the minimal notice pleading requirements of Rule 8(a)(2)-a short and plain statement-to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); Fed. R. Civ. P. 8(a)(2). For a complaint to sufficiently state a claim, its "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While specific facts are not necessary so long as the complaint gives the defendant fair notice of the claim and the grounds upon ...

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