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Joseph Kennedy v. Kings Mosquito Abatement District; Michael Cavanagh

March 15, 2013



This is an action for damages and injunctive relief arising out of the allegedly wrongful termination of the employment of plaintiff Joseph Kennedy ("Plaintiff") by defendant Kings Mosquito Abatement District ("Defendant District" or, collectively with individual defendants Michael Cavanagh, Steve Gilles and David Hickey, "Defendants"). Plaintiff's complaint, which alleges a total of seventeen claims for relief, was originally filed in the Superior Court of Kings County on July 31, 2012. The case was removed to this court on the basis of federal subject matter jurisdiction on September 5, 2012. Of the seventeen claims for relief alleged, three -- Plaintiff's fourth, fifth and sixth claims for relief -- allege claims arising under federal law. Plaintiff's fourth claim for relief alleges discrimination , retaliation and harassment in violation of Title VII of the Civil Rights Act of 1964. The fifth claim for relief alleges retaliation and harassment in violation of the Age Discrimination in Employment Act ("ADEA"). Plaintiff's sixth claim for relief alleges discrimination, retaliation and harassment in violation of the Americans with Disabilities Act ("ADA").

On November 6, 2012, Defendants filed a motion for judgment on the pleading pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (hereinafter, "Defendants' Motion"). Defendants' Motion seeks judgment as to sixteen of the seventeen claims for relief set forth in Plaintiff's complaint. The only claim not included in Defendants' Motion is Plaintiff's sixth claim for relief for violation of the ADA. Significantly, Defendants' ground their motion for judgment on Plaintiff's Title VII claim on the contention that "the filing of a [California Department of Fair Employment and Housing ("DEFH")] claim and the issuance of a subsequent right to sue notice does not satisfy the jurisdictional requirements for a claim under Title VII." Doc. # 9-1 at 10:12-13. Because Defendants' Motion challenges this court's jurisdiction over the federal claims, the court will address those claims first in the discussion that follows. As will be discussed, infra, the court will also deem Defendants' Rule 12(c) motion to be pursuant to Rule 12(b)(6).


At the time of acts complained of, Plaintiff was a 44-year old African-American male employed by Defendant District with good performance evaluations for approximately 18 years. "Beginning in or about 2008, Plaintiff sustained a series of work related industrial injuries, occurring on July 7, 2008, November 7, 2008, September 25, 2009, September 25, 2009, and on or about May 26, 2011." Doc. #1 at ¶ 14. Plaintiff alleges he was required, as a result of the injuries to wear knee braces and ankle braces and was occasionally required to use additional aids such as ski poles to perform his work. Doc. # 1 at ¶ 12. Plaintiff alleges he also suffered "a work related stress disorder, manifesting various medical conditions, which was known by or should have been known by Defendants." Id.

Plaintiff alleges he was the only African-American employed by Defendant and was "regularly subjected to racial jokes, slurs and sayings by Defendants and other District Employees." Doc. # 1 at ¶ 15. "Additionally, on or about September 25, 2009, Plaintiff filed a complaint with the [DFEH] against the District for acts of racial discrimination, retaliation and disparate treatment discovered by Plaintiff." Doc. #1 at ¶ 14. It is not altogether clear whether the complaint filed on September 25, 2009, incorporated only claims of racial discrimination or whether ADA or ADEA claims were also incorporated. Plaintiff alleges that, beginning in mid-2008, he elected to pursue Worker's Compensation benefits and to protected his civil rights by filing "a grievance with Defendants and filing a DFEH complaint, among other claims, and continuing until his employment with the District was pretextually terminated." Doc. # 1 at ¶ 17.

Plaintiff summarizes the allegedly harassing and discriminatory acts by Defendants as follows:

Defendants' acts of harassment, retaliation and discrimination include, but are not limited to: selectively being written up and reprimanded by management for alleged performance issues; receiving unreasonable negative employee evaluations; being suspended from employment, without pay, for following oral instructions of management; being required to prepare weekly schedules and daily checklists, while other similarly situated employees were not required to do so; being reprimanded for working overtime while others continued to be paid for overtime; being written up for storing District equipment in a locked vehicle, while other employees left equipment in unsecure locations but were not subjected to similar treatment; not being notified of cancelled and/or rescheduled employee meetings although others received notice; not being allowed reasonable use of the District's all terrain vehicle to treat sources that are difficult to access on foot and/or that have traditionally been treated ATV or by air; being assigned to a new zone continuing several large sources that were known by the District to be difficult to access, test and treat on foot, despite Plaintiff's physical disability and/or medical conditions and/or mental disability ; and, ultimately, being terminated and, thereafter, not timely paid by District final wages due and owing Plaintiff. Doc. # 1, ¶17.

Plaintiff states, without further elaboration that he "has exhausted all administrative remedies to the extent required by law." Doc. #1 at ¶ 20. Plaintiff also alleges that "[p]rior to the filing of [this] action, Plaintiff submitted complaints to the California [DFEH] against Defendants. The DFEH issued Right to Sue Notices to Plaintiff, true and correct copies of which are attached hereto and incorporated herein by the reference as Exhibit "A". Doc. # 1 at ¶ 21. Exhibit "A" consists of three letters from DFEH, each dated September 28, 2011, and each titled "Notice of Case Closure." The three letters are identical except as to the case number extension and the name of the defendant. The first of the letters is regarding DFEH Case # E201112C5100-02 and names David Hickey as the defendant. The letter with case extension number -01 names Mike Cavanaugh and the letter with case extension number -00 names "Kings Mosquito Abatement" as the defendant. None of the letters indicate the substantive nature of the complaint. Each of the Notice of Case Closure letters ends with the identical paragraph:

If a federal notice of Right-To-Sue is wanted, the U.S. Equal Employment Opportunity Commission (EEOC) must be visited to file a complaint within 30 days of receipt of this DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier.

Doc. # 1 at pp. 41 - 47.


Under Rule 12(c) of the Federal Rules of Civil Procedure provides that: "After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." In reviewing a motion brought under Rule 12(c), the court "must accept all factual allegations in the complaint as true and construe them in the light most favorable to the non-moving party." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Because the motions are functionally identical, the same standard of review applicable to a Rule 12(b)(6) motion applies to a Rule 12(c) motion. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). Judgment on the pleadings is appropriate when, taking all the allegations in the non-moving party's pleadings as true, the moving party is entitled to judgment as a matter of law. Ventress v. Japan Airlines, 486 F.3d 1111, 1114 (9th Cir. 2007); Honey v. Distelrath, 195 F.3d 531, 532 (9th Cir. 1999). The allegations of the nonmoving party must be accepted as true, while any allegations made by the moving party that have been denied or contradicted are assumed to be false. See MacDonald v. Grace Church Seattle, 457 F.3d 1079, 1081 (9th Cir. 2006); Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). The facts are viewed in the light most favorable to the non-moving party and all reasonable inferences are drawn in favor of that party. See Living Designs, Inc. v. E.I. DuPont de Nemours & Co., 431 F.3d 353, 360 (9th Cir. 2005); Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir. 2004). "However, judgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment." Hal Roach Studios, 896 F.2d at 1550.

Although Rule 12(c) does not mention leave to amend, courts have the discretion to grant a Rule 12(c) motion with leave to amend, or to simply grant dismissal of the action instead of entry of judgment. Courts also have discretion simply to order dismissal of the action instead of entry of judgment on the pleadings. Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir. 1979), disapproved on another ground in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985); RUTTER PRACTICE GUIDE: FED.CIV.TRIALS & EV. CH. 4-G (2006); see also Lonberg v. City of Riverside, 300 F.Supp.2d 942, 945 (C.D. Cal. 2004); Carmen v. San Fransisco Unified School Dist., 982 F.Supp. 1396, 1401 (N.D. Cal. 1997). "A judge should not rebuff a litigant's effort to supplement the complaint or provide legal argument in support of the suit. Because complaints need not articulate legal theories, and because the skeletal presentation in a notice pleading may be fleshed out later, a decision without giving plaintiff the opportunity to argue or augment his position is premature." Johnson v. Revenue Management Corp., 169 F.3d 1057, 1060 (7th Cir. 1999) (internal cite omitted). The court need not grant leave to amend when doing so would be futile and the deficiencies in the complaint could not be cured by amendment. See Reddy v. Litton Indus., 912 F.2d 291, 296 (9th Cir. 1990); Gomez v. Winslow, 177 F.Supp.2d 977, 981 (C.D. Cal. 2001).

"Although the [Rule 12(c)] motion may be helpful in disposing of cases in which there is no substantive dispute that warrants the litigants and the court proceeding further, thereby easing crowded trial dockets in the federal district courts, hasty or imprudent use of this summary procedure by the courts violates the policy in favor of ensuring to each litigant a full and fair hearing on the merits of his or her claim or defense." 5A Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE, CIVIL 2D § 1368 (2007); see also Carrasco v. Fiore Enterprises, 985 F.Supp. 931, 934 (D.Ariz. 1997). The court concludes that the instant action is not of the type usually resolved on an agreed set of facts as might make appropriate a motion pursuant to Rule 12(c). As will be discussed in more detail below, both Defendants' motion and the court's review of plaintiff's complaint point to the conclusion that Plaintiff is not faced with the legal impossibility of achieving relief in this action; rather, his effort to state claims upon which relief can be granted is hampered by poor drafting. The court will therefore exercise its discretion to deem Defendants' Motion for Judgment on the Pleadings (hereinafter, "Defendants' Motion") to be pursuant to Rule 12(b)(6).

In addition, the court notes that Defendants' Motion with regard to Plaintiffs fourth and fifth claims for relief is grounded at least in part on a challenge to the courts subject matter jurisdiction over these claims based on the alleged failure of Plaintiff to exhaust administrative remedies. The court also notes that the single claim for relief not challenged by Defendants' Motion -- the sixth claim for relief under the ADA -- is subject to the same challenge as Defendants have leveled against the other two federal claims. See Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990) (ADA "claimants generally establish federal court jurisdiction by first exhausting their EEOC administrative remedies"); 42 U.S.C. § 12117(a) (provision in ADA incorporating the enforcement procedures from Title VII, 42 U.S.C. § 200e-5). Thus, Defendants Motion for judgment as to Plaintiff's Title VII claim automatically calls into question the existence of federal subject matter jurisdiction over Plaintiff's ADA claim as well since both statutes have the same exhaustion requirements and the requirement for administrative exhaustion is jurisdictional for both claims.

Federal courts are obliged to raise sua sponte the issue of federal jurisdiction whenever a doubt arises as to its existence. Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 278 (1977). A challenge to the court's jurisdiction over the subject mater of the complaint is proper pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Of particular concern to the court, when subject matter jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction. See Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir.1989). "A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment." Smith v. McCullough, 270 U.S. 456, 459, 46 S.Ct. 338, 70 L.Ed. 682 (1926).


I. Federal Claims

The issue of the court's jurisdiction over federal claims has been raised by Defendants' Motion. As a consequence, the court is obliged to first address its jurisdiction over Plaintiff's federal claims and to determine whether the case may proceed in federal court. As this early stage of the proceeding, the court cannot assert pendent subject matter jurisdiction over Plaintiff's state law claims if jurisdiction was factually lacking ab initio over the federal claims. As noted, Defendants' contention that Plaintiff failed to satisfy the jurisdictional requirement for exhaustion of administrative remedies calls into question the court's jurisdiction of Plaintiff's fourth and sixth claims for relief together. The court's jurisdiction over Plaintiff's ADEA claim will be discussed separately.

A. Title VII Claims and ADA Claims

There tends to be some confusion as to the requirement for administrative exhaustion under Title VII and, by extension under the ADA. The requirement is best stated as two propositions: first, an administrative complaint must be filed with the Equal Employment Opportunity Commission ("EEOC"); and second the complaint with the EEOC must be filed within 180 days of the occurrence of the acts giving rise to the complaint. The first proposition is jurisdictional, the second is not. With regard to the first proposition:

To establish federal subject matter jurisdiction [a plaintiff is] required to exhaust her EEOC administrative remedies before seeking federal adjudication of her claims. See Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990). As we explained in Sosa, "[t]he jurisdictional scope of a Title VII claimant's court action depends upon the scope of both the EEOC charge and the EEOC investigation." Id. (citing Green v. Los Angeles Superintendent of Sch., 883 F.2d 1472, 1476 (9th Cir. 1986). The district court [has] subject matter jurisdiction over [a plaintiff's] allegations of discriminatory [dismissal] if that claim fell within the scope of an "'EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Sosa, 920 F.2d at 1456 (citations omitted).

EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1994) ("Farmer Bros.") (italics in original). "'The administrative charge requirement serves the important purposes of giving the charged party notice of the claim and "narrow[ing] the issues for prompt adjudication and decision."' [Citations]" B.K.B. v. Maui Police Dep't, 276 F.3d 1091, 1099 (9th Cir. 2002). The decision in B.K.B. clarified the jurisdictional requirement discussed in Farmer Bros. by holding that a plaintiff's ability to bring a suit in district court is not limited or prevented by a failure of EEOC to address claims raised in an administrative complaint. Id. Rather, the court's subject matter jurisdiction extends over all allegations of discrimination that either "fell within the scope of EEOC's actual investigation" or within the scope of an EEOC investigation that could reasonably have been expected to grow out of the charge of discrimination. Id. at 1100.

There has also been some confusion as to what constitutes the "filing" of an EEOC complaint in the context of state-based relationships between state entities and the EEOC. In Surrell v. California Water Svc. Co., 518 F.3d 1097 (9th Cir. 2007), the plaintiff filed an administrative complaint through DEFH and received a Right-to-Sue Letter which informed the plaintiff that "'[i]f a federal notice of Right-to-Sue is wanted, the [EEOC] must be visited to file a complaint within 30 days of this [notice] or within 300 days of the alleged discriminatory act, whichever is earlier.'" Id. at 1104. The plaintiff in Surrell never obtained a right-to-sue letter from EEOC. Id. The court held "that where, as here, a plaintiff is entitled to receive a right-to-sue letter from the EEOC, a plaintiff may proceed absent such a letter, provided she has received a right-to-sue letter from the appropriate state agency." Id. at 1105.

Although the decision Surrell is somewhat confusing because it appears to conflate the issues of timely filing with the jurisdictional requirement of establishing the scope of the court's inquiry, the matter was revisited and clarified in Stiefel v. Bechtel Corp,, 624 F.3d 1240 (9th Cir. 2010). Unlike the case in Surrell, the Stiefel court dealt with a situation where the plaintiff had filed a complaint with DEFH but filed a complaint with EEOC beyond the 300-day time limit. The court in Stiefel also dealt with a claim under the ADA, instead of under Title VII. In the Stiefel case, the plaintiff had received a right-to-sue letter from DFEH that concluded with a paragraph containing exactly the same wording as was contained in Plaintiff's Right-to-Sue Letters in this case. The court in Stiefel noted that the administrative exhaustion requirements are the same for ADA and Title VII claims. Stiefel, 624 F.3d at 1243-1244. Reviewingand following their decision in Surrell, the Ninth Circuit explained that a plaintiff who files a charge with the DFEH fulfills the filing requirement for a Title VII action because they are entitled to an EEOC right-to-sue letter "because of the Worksharing Agreement between the state agency and the EEOC." Stiefel, 624 F.3d at 1245.

In synthesizing the case authority pertaining exhaustion of administrative remedies in the context of Plaintiff's fourth and sixth claims for relief, the court must conclude that it lacks sufficient information to reach a conclusion. While the fact that Plaintiff timely filed a DFEH complaint and received Right-to-Sue Letters appears to satisfy the requirement for filing of a complaint with EEOC, the mere allegation of the fact of having received right-to- sue letters from DFEH and having "satisfied all applicable exhaustion requirements" does not adequately state facts to establish the scope of the court's jurisdiction.

The inquiry into whether a claim has been sufficiently exhausted must focus on the factual allegations made in the charge itself, describing the discriminatory conduct about which a plaintiff is grieving. Only by engaging in such an inquiry will the actual focus of the administrative charge, and the scope of the claims exhausted, be revealed.

Freeman v. Oakland Unified School Dist., 291 F.3d 632, 637 (9th Cir. 2002).

The facts pled in Plaintiff's complaint establish that charges were filed with DFEH and that three Right to Sue Letters were returned to Plaintiff, one letter referring to each of the three Defendants. What is not clear is whether all three letters refer to charges presented to DFEH that are the same as, or similar to, the charges of discrimination that have been alleged in Plaintiff's complaint, or whether any of the letters referred to charges presented to DFEH that alleged discriminatory conduct based on both disability and race. In order to adequately allege claims for discrimination on the basis of both race and disability, Plaintiff must ...

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