The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER ON MOTION TO DISMISS AMENDED COMPLAINT (Doc. 12) PRELIMINARY STATEMENT TO PARTIES AND COUNSEL
Judges in the Eastern District of California carry the heaviest caseload in the nation, and this Court is unable to devote inordinate time and resources to individual cases and matters. This Court cannot address all arguments, evidence and matters raised by parties and addresses only the arguments, evidence and matters necessary to reach the decision in this order given the shortage of district judges and staff. The parties and counsel are encouraged to contact the offices of United States Senators Feinstein and Boxer to address this Court's inability to accommodate the parties and this action. The parties are required to consider consent to a Magistrate Judge to conduct all further proceedings in that the Magistrate Judges' availability is far more realistic and accommodating to parties than that of U.S. District Judge Lawrence J. O'Neill who must prioritize criminal and older civil cases.
Plaintiff Carlton Jones ("Jones") has brought suit against the City of Fresno ("the City"), Randy Bruegman ("Bruegman"), Don MacAlpine ("MacAlpine"), and Does 1 through 15 (collectively "Defendants") for violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000(e), the California Fair Employment and Housing Act ("FEHA"), Cal. Gov. Code § 12940, and California tort law. After Defendants filed motions to dismiss, Jones filed an amended complaint. Now pending before the Court is Defendants' motion to dismiss portions of Jones' amended complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Jones opposed the motion, and Defendants have filed a reply. Upon careful consideration of the parties' arguments, the Court GRANTS Defendants' motion to dismiss portions of Jones' amended complaint and GRANTS IN PART Jones' request for leave to amend.
Jones has worked for the Fresno Fire Department since 2002. His current position is Engineer.
Jones alleges that he has been treated disparately and adversely because he is African-American.
Jones alleges that, in 2005 or 2006, he witnessed a conversation between his then supervisor, Andy Noles, and another firefighter in which Noles referred to the academy requirement that cadets pick up old furniture from alleyways as "nigger work" and "stuff black people do."
MacAlpine supervised Jones at different times. At one point, Jones was provided with a department issued vehicle. Jones alleges that MacAlpine interfered with the issuance of the vehicle to Jones on account of his race.
In December 2006, MacAlpine rated Jones' job performance as "short of standard" on the November monthly report while Jones' prior monthly reports since starting his employment in 2002 allegedly have been positive. Jones wrote a letter to Bruegman, the Fire Chief, notifying him that MacAlpine threatened Jones during the November monthly evaluation and that Jones was completing his probation as a Specialist rather than an Engineer to avoid MacAlpine.
Jones alleges that, in 2008, MacAlpine made statements directed toward Jones that men are ranked by their race. MacAlpine allegedly stated that white men were the most valuable, followed by Asian men, and that black men ranked the lowest in terms of their value, and that women were ranked below all men.
Also in 2008, Jones was interviewed for an article in a local emergency response publication.
Jones alleges that he was harassed about the interview and told that he was using city property for personal gain even though the interview did not hinder response times or take Jones away from his duties. Jones further alleges that non-African American firefighters who used Fire Department equipment for the same publication and for personal purposes were not disciplined for their conduct.
Prior to 2009, Jones had a strained relationship with his then spouse which led to his arrest and criminal charges. Bruegman sought and obtained suspension of Jones' EMT certification, which is required for the firefighter position. Jones was placed on unpaid leave starting July 17, 2009. Following a jury trial, Jones was acquitted of all charges. The Central California Emergency Medical Services Agency for Fresno ("CCMES") held a contested hearing on Jones' suspension and reinstated Jones' EMT certification. Following Jones' return to regular duty, MacAlpine allegedly stated that he and the City still wanted to fire Jones. Jones alleges that, in February 2010, he also filed a report for racial discrimination with the City against MacAlpine and Bruegman, among others.
Jones filed a Charge of Discrimination, dated March 24, 2010, with the California Department of Fair Employment and Housing ("DFEH") against the City for disparate treatment. Jones received a notice of right-to-sue under FEHA, dated March 25, 2010, from the DFEH.
In June 2010, Jones reported to his Captain and other officials that MacAlpine had singled him out and intimidated him with MacAlpine's weapon and title, and that MacAlpine told Jones that "one day we will be in heaven together and you will have to answer for your actions."
Jones filed an amended Charge of Discrimination, dated September 9, 2010, with the DFEH for disparate treatment and harassment. Jones received a notice of right-to-sue under FEHA, dated September 10, 2010, from the DFEH.
Jones requested to be reimbursed for his lost accrued leave and related monetary losses as a result of being placed on unpaid leave. Defendants denied Jones' request. The Equal Employment Opportunity Commission ("EEOC") conducted an investigation pursuant to Jones' complaint and allegedly found that Defendants violated Title VII and that Jones was subject to adverse conditions and employment actions to which non-African American employees were not subject. Specifically, in connection with the EEOC investigation, Jones learned that numerous non-African American employees of the City have been charged with various criminal violations, including fraud, embezzlement, DUI, domestic violence, and assault, but none of those employees had been placed on unpaid leave. The Fire Chief also had never contacted CCEMS to have an employee's EMT certification suspended. Jones has received a notice of right-to-sue within ninety days under Title VII, dated June 27, 2012, from the EEOC.
Jones filed a complaint on September 25, 2012 in Fresno County Superior Court alleging eight
causes of action for violations of Title VII, FEHA, and California common law. On November 2, 2012, Defendants timely removed this action to federal court on the basis of federal question jurisdiction for the causes of action related to Title VII and supplemental jurisdiction over the state law causes of action. Defendants filed motions to dismiss on November 9, 2012 and November 27, 2012. Jones filed a First Amended Complaint on November 30, 2012. Defendants filed the instant motion to dismiss portions of the amended complaint on December 26, 2012. Jones opposed the motion on January 21, 2013, and Defendants filed a reply on January 29, 2013.
Having considered the parties' arguments and the relevant law, the Court issues this order.
Motion to Dismiss pursuant to Fed. R. Civ. P. ...