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Jing v. County of Los Angeles

United States District Court, C.D. California

October 6, 2014

XING WEI JING, Plaintiff,


DEAD D. PREGERSON, District Judge.

Presently before the court is a Motion to Dismiss filed by Defendant County of Los Angeles. (Dkt. 20.) Having considered the parties' submissions, the court grants the motion and adopts the following order.

I. Background

Plaintiff is a forty-seven year old Chinese-American citizen. ([First] Amended Complaint ("FAC") ¶¶ 1, 3, p. 11:1-2.) He was a doctor in China, but was employed as a registered nurse at LAC/USC Medical Center. (FAC. ¶¶ 1, 8.) Plaintiff participated in the intensive care unit program in the spring and summer of 2012. (FAC ¶ 2.) Plaintiff was the oldest person in the program, and the only Chinese employee. (FAC. ¶3.) Plaintiff was demoted to a clerk position, and effectively terminated on February 22, 2012 (Am. Compl. ¶¶ 4.) Plaintiff alleges that he was rated "competence" at all times and that, in spite of the rating, he was replaced by someone less qualified. (FAC ¶¶ 2, 4)

At a Christmas party in 2011, Plaintiff's immediate supervisor's husband asked Plaintiff about his age, religion, and reasons for moving to the United States. (FAC ¶ 5.) In February 2012, assistant supervisor Amelia Shovlin also inquired about his age and reasons for immigrating. (FAC ¶ 6.)

Plaintiff also complains that some instructors spread rumors that "Chinese doctor should not be nurse" and "Chinese nurse will get fired, " while some preceptors graded him "not met" on evaluations and opined to colleagues that Plaintiff was "too old to work in ICU." (FAC. ¶¶ 8-9) Instructor Mike Pucket " reached his face to plaintiff face 2, 3, fists far, shaving his head to Plaintiff said, I would not let you pass this program, are you emotional?'" (FAC. ¶ 25.) Plaintiff also contends that he was called "Ying Yang" and "Buda" by preceptor Carmen Martinez. (FAC ¶ 10) The same preceptor also suggested to Plaintiff that his eyebrows were too long, and needed to be cut. (FAC ¶ 11.) Plaintiff explained that long eyebrows were important in his culture, to which Martinez replied "forget your culture." (FAC ¶ 11.) Plaintiff contends that he overheard Martinez say to other nurses that she would not give him a "met" rating on the evaluation because she did not like him. (FAC ¶ 11.) Plaintiff further alleges that he was required to sign "DHS Discipline Manual Attestation form" on two occasions, but that no one else signed it. (FAC. ¶ 7.) Plaintiff alleges that he was told he had to sign twice because his form was lost, "which is not true, but Scaring', because is kept in HR, not in manager's hands." (Id.)

Plaintiff filed several complaints to managers, union authorities, and other throughout 2012 and 2013. (FAC ¶ 28). Plaintiff was required to attended some type of counseling session, during which someone gave false testimony regarding Plaintiff's performance. (FAC ¶ 14.) Plaintiff was then forced to resign.[1] (Id.)

Plaintiff alleges five claims in the FAC: (1) "discrimination termination"; (2) "hostile working environment, and harassment"; (3) "retaliation"; (4) "intentional discrimination" and (5) "employment defamation." He cites 42 U.S.C. § 2000e-2 (unlawful employment practices), 42 U.S.C. § 1981 (equal rights under the law) and Cal. Civil Code § 46(3) (slander). Defendant now moves to dismiss the FAC.

II. Legal Standard

A complaint will survive a motion to dismiss when it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). When considering a Rule 12(b)(6) motion, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes , 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include "detailed factual allegations, " it must offer "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal , 556 U.S. at 678. Conclusory allegations or allegations that are no more than a statement of a legal conclusion "are not entitled to the assumption of truth." Id. at 679. Even under the liberal pleading standard of Federal Rule of Civil Procedure 8(a)(2), under which a party is only required to make a "short and plain statement of the claim showing that the pleader is entitled to relief, " a "pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Id . 678 (quoting Twombly , 550 U.S. at 555).

III. Discussion

A complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The allegations must be "simple, concise and direct." Fed.R.Civ.P. 8(d)(1). Confusing, ambiguous, and distracting pleadings do not meet the requirements of Rule 8. See Cafasso v. Gen. Dynamics C4 Sys., Inc. , 637 F.3d 1047, 1058 (9th Cir. 2011). A complaint must be dismissed if it is "so verbose, confused and redundant that its true substance, if any, is well disguised." Hearns v. San Bernardino Police Dep't , 530 F.3d. 1124, 1131 (9th Cir. 2008)(quoting Gillibeau v. City of Richmond , 417 F.2d 426, 431 (9th Cir. 1969).

This court dismissed Plaintiff's original complaint for failure to comply with Rule 8. (Dkt. 17). Recognizing Plaintiff's pro se status, the court dismissed the original complaint with leave to amend. Plaintiff's First Amended Complaint, however, suffers from many of the same deficiencies as the original complaint. For example, Plaintiff's first claim for "discrimination termination" refers to his race, age, religion and "gene of his image: short, long eyebrow, '" without specifying on which protected characteristic his claim is based. Plaintiff also alleges that he was rated "competence" at all times (FAC ¶ 2), but also that he received "not met" evaluations. (FAC ¶9.) Plaintiff's amended complaint also includes numerous allegations, such as those involving conversations at a Christmas party, that are not tied to any particular claim or otherwise explained.[2] Furthermore, the sequence of events alleged remains unclear. Plaintiff's First Amended Complaint does not adequately identify the basis for each cause of action or give Defendant sufficient notice of what Plaintiff's claims are, and must therefore be dismissed. See Pickern v. Pier 1 Imports , 457 F.3d 963, 968 (9th Cir. 2006).

Though Defendant contends that amendment would be futile, the court disagrees. While the FAC does not satisfy Rule 8, it is an improvement upon Plaintiff's original complaint. Similarly, while Plaintiff's opposition to the instant motion cannot cure the deficiencies of the First Amended Complaint, it is significantly better organized than Plaintiff's first opposition, and is ...

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