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Sumera v. Holder

United States District Court, N.D. California

July 3, 2014

Ruben Sumera, Plaintiff,
ERIC HOLDER, et al., Defendants.


KANDIS A. WESTMORE, Magistrate Judge.

Defendant Eric Holder moves to dismiss Plaintiff Ruben Sumera's amended complaint and moves for a more definite statement. The motion has been fully briefed and is suitable for disposition without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons set forth below, the Court GRANTS the motion for a more definite statement. The Court also GRANTS the motion to dismiss with respect to certain issues Plaintiff concedes in his opposition but otherwise DENIES the motion to the extent it seeks dismissal of Plaintiff's amended complaint for failure to state a claim upon which relief can be granted or for failure to exhaust administrative remedies.


A. Factual background

Ruben Sumera ("Plaintiff") brings this action pursuant to Title VII of the Civil Rights Act, § 42 U.S.C. 2000e-16 ("Title VII") and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621. (Am. Compl., Dkt. No. 25.) According to Plaintiff, he worked as an auditor with the Department of Justice, Office of the Inspector General, San Francisco Division, from April 1998 through his alleged forced resignation in March 2010. ( Id. ¶ 7.) He alleges that his supervisors engaged in a series of discriminatory conduct against him because of his race (Filipino), national origin (Philippines), and age (over 40). ( Id. ) He also avers that this discriminatory and retaliatory conduct resulted from his complaints about unlawful discrimination and his participation in formal proceedings to protect against such unlawful discrimination. ( Id. )

Plaintiff asserts that he was and is qualified for his position, but that he began experiencing problems at work when his first and second-line supervisors, David Gaschke and Laura Nicolosi, both Caucasian, joined the San Francisco Division.[1] ( Id. ¶¶ 7, 8, 10.) According to him, before these individuals became his supervisors, he was "ably performing his job" and "[b]ut for the harassment and actions of the two individuals... [he] would have been able to meet standards for successful performance; any perceived performance deficiency was the result of the harassment and adverse employment actions by his employer." ( Id. ¶ 16.)

Plaintiff contends that on July 31, 2009, Nicolosi placed him on a performance improvement plan after he was late on one audit assignment, and while only a single auditor timely completed assignments during the previous year, no other auditor received a performance improvement plan. ( Id. ) This plan, Plaintiff claims, was given to him in the middle of his next assignment, disrupting his workload. ( Id. ¶ 17.) He responded to the performance improvement plan on August 5, 2009, challenging "certain aspects of and conclusions in [it]." ( Id. ¶ 30.) On August 18, 2009, Nicolosi required Plaintiff to submit daily reports instead of weekly reports. ( Id. ¶ 31.)

He asserts that "[a]s late as 2008, [his] work was satisfying the prerequisite to continued employment." ( Id. ¶ 20.) He also avers that on the performance appraisal that preceded the performance improvement plan, he received an overall rating of "successful, " from the assistant regional audit manager, with only Nicolosi noting deficiencies in his performance. ( Id. ¶ 21.) That performance appraisal covered the period from October 1, 2007 through September 30, 2008. ( Id. )

Plaintiff also alleges that he was assigned to clean the kitchen during his audit, and that for the week he spent on "the humiliating task, " he was unable to work on his audit, resulting in another citation for tardiness. ( Id. ) Plaintiff describes the performance improvement plan and the kitchen cleaning tasks as "discriminatory work assignments, " which materially affected the terms and conditions of his employment, depriving him of "the opportunity to do his job on equal footing with similarly situated employees." ( Id. ¶ 18.) He claims that auditors who were not members of a protected class received preferential treatment. ( Id. ¶ 19.) For example, a Caucasian auditor with the same type of assigned audit report as Plaintiff had two other auditors to assist him, though Plaintiff had no such support. ( Id. ) Plaintiff consistently complained about this harassment. ( Id. ¶ 24.) According to Plaintiff, his supervisors had developed a pattern of singling out minorities and people over the age of 40 for separation beginning in October 29, 2009. ( Id. )

Plaintiff alleges that after constant bullying, harassment, and other acts of discrimination, he filed an informal EEOC complaint on September 11, 2009. ( Id. ¶¶ 14, 32.) The complaint included allegations of discrimination based on race, national origin, and age. ( Id. ) After being contacted by the EEOC, Plaintiff's supervisors responded to the complaint on October 21, 2009. ( Id. ¶¶ 33, 34.) Plaintiff then filed a formal complaint on December 14, 2009. ( Id. ¶¶ 15, 35.)

On February 25, 2010, five months after the filing of his informal complaint and two months after the filing of his formal complaint, he received a notice of proposed removal and an unsatisfactory performance review, both in retaliation for his EEOC complaints. ( Id. ¶ 38.) Plaintiff alleges that he responded to the notice of proposed removal on March 5, 2010, after which he was forced to choose early retirement over termination, and "[r]ather than accept a discriminatory and retaliatory termination, [he] submitted his resignation letter on March 24, 2010." ( Id. ¶¶ 38, 39, 47.) According to Plaintiff, the EEOC "finally' received [his] original complaint" on January 13, 2010. ( Id. ¶ 36.) The EEOC issued an unfavorable decision on December 12, 2012. (Carradero Decl., Ex. A, EEOC Decision.)

B. Procedural background

On April 29, 2013, Plaintiff filed his complaint against Attorney General Eric Holder ("Defendant"), [2] Gaschke, and Nicolosi, alleging a first cause of action for discrimination in violation of Title VII, a second cause of action for constitutional violations, and a third cause of action for supervisory liability. (Compl., Dkt. No. 1.) Defendant moved to dismiss the complaint, Dkt. No. 21, and in lieu of filing an opposition to the motion, Plaintiff filed a "Notice of Intent to Amend in Response to Motion to Dismiss, " Dkt. No. 24. He filed an amended complaint on March 20, 2014, in which he asserts a first cause of action, captioned "Title VII, " and a third cause of action, captioned "ADEA."[3] (Am. Compl, Dkt. No. 25.) On April 3, 2014, Defendant moved to dismiss all causes of action against the Department of Justice, strike all allegations of tortious conduct and/or constitutional violations, strike allegations outside the scope of Plaintiff's EEOC complaint, strike Plaintiff's claims for punitive damages, and strike Plaintiff's claims for damages against individual employees who are not proper parties to this action.[4] (Def.'s Mot. at 1, Dkt. No. 27.) Defendant also seeks dismissal of the first and third causes of action without prejudice, as well as a more definite statement for any remaining claim asserted against him. ( Id. )

After the Court issued an order to show cause, Plaintiff filed an opposition to the motion on May 9, 2014. (Pl.'s Opp'n, Dkt. No. 32.) In his opposition, Plaintiff concedes that (1) the only proper defendant is the Attorney General, in his official capacity, (2) his prayer for punitive damages should be dismissed, and (3) "the constitutional claims outside the EEOC exhaustion process [ Bivens ] are not cognizable as to this former federal employee, absent an independent basis for such a claim which on these facts does not appear." ( Id. at 2.) He argues, however, that his remaining claims, as exhausted, are viable. ( Id. ) Defendant filed a reply to Plaintiff's opposition on May 16, 2014. (Def.'s Reply, Dkt. No. 34.)

The Court ordered Plaintiff to submit supplemental briefing on whether Plaintiff's allegations go outside the scope of the EEOC charge and whether the amended complaint contains sufficient factual matter to state a claim for relief that is plausible on its face. (May 30, 2014 Order, Dkt. No. 37.) Plaintiff filed his supplemental brief on June 6, 2014. (Pl.'s Supplemental Br., Dkt. No. 38.)


A. Motion for a more definite statement

The Federal Rules of Civil Procedure require that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 12(e) authorizes a motion for a more definite statement when the pleading at issue is "so vague or ambiguous that the party cannot reasonably prepare a response." Fed.R.Civ.P. 12(e).

The Court grants Defendant's motion for a more definite statement on the ground that Plaintiff's amended complaint does not conform to Federal Rule of Civil Procedure 10(b). Plaintiff has failed to plead each cause of action separately, lumping together all Title VII claims, irrespective of whether the claims are based on alleged race, age, or national origin, discrimination, harassment, or retaliation. As such, the amended complaint is so vague and ambiguous that Defendant cannot reasonably prepare a response. Even the Court had a very difficult time deciphering the causes of action in the amended complaint. It is unclear whether each Title VII claim is based on age, race, and national origin, or just race and age.

Accordingly, Plaintiff shall file a second amended complaint within 14 days of this order. In his second amended complaint, Plaintiff shall present each distinct Title VII claim separately, consistent with Federal Rule of Civil Procedure 10(b) ("If doing so would promote clarity, each claim founded on a ...

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