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Xing Wei Jing v. County of Los Angeles

United States District Court, C.D. California

May 12, 2015

XING WEI JING, Plaintiff,


DEAN D. PREGERSON, District Judge.

Presently before the court is Defendant County of Los Angeles' a Motion to Dismiss Plaintiff's Second Amended Complaint. Having considered the parties' submissions, the court grants the motion and adopts the following order.

I. Background

As described in this court's earlier orders, Plaintiff is a Chinese-American citizen. He was a doctor in China, but was employed as a registered nurse at LAC/USC Medical Center, where he participated in the intensive care unit program in the spring and summer of 2012. Plaintiff was the oldest person in the program, and the only Chinese employee. Plaintiff alleges several instances of discriminatory acts that underlie his claims for unlawful termination, hostile work environment and harassment, retaliation, discrimination, and employment defamation.

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. In February 2012, assistant supervisor Amelia Shovlin also inquired about his age and reasons for immigrating.

Plaintiff also alleges that an instructor stated that "Chinese doctor should not be nurse" while other colleagues opined that Plaintiff was "too old to work in ICU." An instructor also allegedly "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?'" Plaintiff also contends that he was called "Ying Yang" and "Buda" by another instructor, who also suggested to Plaintiff to "forget your culture, " and that his eyebrows were too long, and needed to be cut.

Plaintiff further alleges that he was required to sign a "DHS Discipline Manual Attestation form" on two occasions, but that no one else signed it. 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."

Plaintiff alleges that he complained about the instructors' conduct in early 2012 and again in August 2012. Plaintiff alleges that although he was at all times rated "competence, " he was discharged on February 22, 2012 and replaced by a younger, less qualified person.[1]

Plaintiff appealed his discharge to the County Civil Service Commission, and participated in a two-day hearing in December 2013. The hearing examiner concluded that Plaintiff committed several workplace violations, that his "allegations of discrimination, raised as a defense, do not ring true and appear to be a straw man issue intended to detract from the main charges against him, " that Plaintiff provided no evidence of discrimination against him, and that his discharge was appropriate. (Declaration of Natalie Luongo in Support of Defendant's Request for Judicial Notice, Ex. B.) The Civil Service Commission overruled Plaintiff's objections to the hearing officer's findings of fact and conclusions of law and adopted the hearing officer's recommendation. (Luongo Decl., Ex. A). Plaintiff did not appeal that decision.

Plaintiff's Second Amended Complaint in this court alleges five claims: (1) "discrimination termination"; (2) "hostile working environment, and harassment"; (3) "retaliation"; (4) "intentional discrimination" and (5) "employment defamation." Defendant now moves to dismiss.

II. Legal Standard

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).

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 ...

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