United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS; GRANTING LEAVE TO AMEND
JEFFREY T. MILLER, District Judge.
Defendant City of El Centro ("El Centro") moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff Andrew McFadden opposes the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to dismiss the Title VII retaliation claim, declines to reach the state law claims, and grants Plaintiff ten days leave to amend from the date of entry of this order.
On July 5, 2013, Plaintiff commenced this federal question action alleging three claims for relief: (1) retaliation in violation of Title VII and California Fair Employment and Housing Act ("FEHA"); (2) wrongful termination in violation of public policy; and (3) failure to prevent discrimination, retaliation or harassment in violation of Cal. Gov't Code §12940 et seq. On September 24, 2013, Plaintiff filed the First Amended Complaint ("FAC") and added a fourth cause of action for violation of California Civil Code §56.20.
Plaintiff, an African-American male, began working as a police officer with El Centro in 1989. (FAC ¶17). Between 2002 and 2010, Plaintiff was allegedly subjected to discriminatory, hostile, and harassing employment practices by employees of the El Centro Police Department. (FAC ¶18). In 2009 and in 2010, Plaintiff filed charges of racial discrimination with the California Department of Fair Employment and Housing ("DFEH") and the U.S. Equal Employment Opportunity Commission against several El Centro police officers and El Centro. In 2010, Plaintiff filed a civil lawsuit against El Centro "alleging race discrimination, disability discrimination, retaliation, and deprivation of civil rights." (FAC ¶19). After he filed the suit, Plaintiff alleges that the acts of discrimination "escalated." (FAC ¶21).
In January 2011, Plaintiff was subjected to an "administrative investigation" into his driving practices. The administrative investigation was allegedly based upon a citizen's complaint about the driving practices of the El Centro Police Department in general. (FAC ¶22). Plaintiff was allegedly the only target of the investigation. (FAC ¶22). On March 29, 2011, Sergeant John Seaman completed his report and recommended that Plaintiff's employment with El Centro Police Department should be terminated. (FAC ¶23).
Despite two previous Fitness for Duty examinations, El Centro requested that Plaintiff participate in another Fitness for Duty examination. On September 12, 2011, Plaintiff traveled to Los Angeles "to attend a Fitness for Duty assessment as demanded by Defendant's Human Resources Director." (FAC ¶25). Upon arrival to the doctor's office, Plaintiff was instructed to sign a medical release form. The doctor would not perform the fitness exam unless Plaintiff signed the release. Plaintiff was unwilling to sign the release. On December 22, 2011, Plaintiff's employment with El Centro Police was terminated based upon the investigation into Plaintiff's driving practices and his failure to complete the Fitness for Duty test. (FAC ¶26).
Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in extraordinary cases. United States v. Redwood City , 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept. , 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly , 550 U.S. 544, 555 (2007) (the complaint's allegations must "plausibly suggest" that the pleader is entitled to relief); Ashcroft v. Iqbal , 556 U.S. 662 (2009) (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the mere possibility of misconduct). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678. Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc. , 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co. , 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).
Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London , 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian , 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In Re Syntex Corp. Sec. Litig. , 95 F.3d 922, 926 (9th Cir. 1996).
The Title VII Retaliation Claim
To establish a prima facie case of retaliation under Title VII, Plaintiff must show that (1) he engaged in a protected activity, (2) defendants took an adverse employment action against him, and (3) a causal link exists between his protected activity and the adverse employment ...