United States District Court, N.D. California
ORDER GRANTING PARTIAL MOTION TO DISMISS Re: Dkt. No.
M. RYU UNITED STATES MAGISTRATE JUDGE
Roger Holly is an African American man and a licensed
minister in the Baptist Church who worked for the National
Park Service until his termination on March 10, 2014.
Plaintiff's First Amended Complaint ("FAC")
[Docket No. 16] alleges four claims for relief: 1) religious
and race discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., ("Title VII"); 2) retaliation on the
basis of religion and race in violation of Title VII; 3)
violation of his First Amendment rights to free speech, free
exercise of religion, and freedom of association; and 4)
violation of the Religious Freedom Restoration Act
("RFRA"), 42 U.S.C. § 2000(bb) et
seq. Plaintiff brings this action against Defendant
Sally Jewell in her official capacity as the Secretary of the
United States Department of the Interior.
now moves pursuant to Federal Rule of Civil Procedure
12(b)(1) to dismiss Plaintiff's First Amendment and RFRA
claims. Defs.' Partial Motion to Dismiss
("MTD") [Docket No. 19]. Defendant argues that both
claims are "preempted" by Title VII, which provides
the sole remedy for discrimination in federal
employment. Id. Having considered the
parties' briefs and oral argument, the court grants
following facts are set forth in Plaintiff's FAC. The
court focuses on Plaintiff's allegations relating to his
claims for religious discrimination and violation of his
First Amendment rights. It does not discuss allegations
relating to race discrimination or retaliation, as those
claims are not at issue in the present motion.
an African American man, is a Baptist Christian and a gospel
minister. He worked at the San Francisco Maritime National
Historic Park as a maintenance worker from May 2012 until his
termination in March 2014. In late November 2013, Plaintiff
met with management officials. Among other things, Plaintiff
complained that he had been told that he could not
"display" a Bible that he read on his breaks,
although other employees were not questioned about the
reading materials that they kept for their break times. On
November 23, 2013, while on a break and out of uniform,
Plaintiff performed a baptism in the seashore adjoining the
park. On his next work day, Plaintiff's supervisor
interrogated Plaintiff about the baptism, and questioned him
extensively about his religion. On January 28, 2014,
Plaintiff's employer issued a Notice of Proposed
Termination, followed by a termination decision on March 10,
2014. The final agency decision noted that Plaintiff was
terminated for performing a baptism at Aquatic Park.
motion to dismiss filed pursuant to Rule 12(b)(1) is a
challenge to the court's subject matter jurisdiction.
See Fed. R. Civ. P. 12(b)(1). A court will dismiss a
party's claim for lack of subject matter jurisdiction
"only when the claim is so insubstantial, implausible,
foreclosed by prior decisions of th[e Supreme] Court, or
otherwise completely devoid of merit as not to involve a
federal controversy." Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 89 (1998) (citation and
quotation marks omitted). When reviewing a 12(b)(1) motion,
the court sculpts its approach according to whether the
motion is "facial or factual." White v.
Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A facial
challenge asserts that "the allegations contained in a
complaint are insufficient on their face to invoke federal
jurisdiction." Safe Air for Everyone v. Meyer,
373 F.3d 1035, 1039 (9th Cir. 2004). By contrast, a factual
attack disputes "the truth of the allegations that, by
themselves, would otherwise invoke federal
jurisdiction." Safe Air for Everyone, 373 F.3d
Defendant facially attacks Plaintiff's First Amendment
and RFRA claims pursuant to Rule 12(b)(1), arguing that they
should be dismissed because they are "preempted" by
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the legal sufficiency of the claims alleged in
the complaint. Ileto v. Glock Inc., 349 F.3d 1191,
1199-200 (9th Cir. 2003). When reviewing a motion to dismiss
for failure to state a claim, the court must "accept as
true all of the factual allegations contained in the
complaint, " Erickson v. Pardus, 551 U.S. 89,
94 (2007) (per curiam) (citation omitted), and may dismiss
the case "only where there is no cognizable legal theory
or an absence of sufficient facts alleged to support a
cognizable legal theory." Shroyer v. New Cingular
Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir.
2010) (citation and quotation marks omitted).
argues that Plaintiff's First Amendment and RFRA claims
assert religious discrimination in a federal workplace, and
therefore should be dismissed because Title VII provides the
exclusive remedy for discrimination in federal employment.
Defendant also argues that since she has been sued in her
official capacity, she cannot be held vicariously liable for
monetary damages resulting from constitutional violations
allegedly committed by Plaintiff's supervisors.
Whether Defendant Properly Brings This Motion Under Rule
initial matter, Plaintiff asserts that Defendant's motion
should be denied because she improperly brings it under Rule
12(b)(1) instead of Rule 12(b)(6). According to Plaintiff,
Defendant's argument raises an issue of statutory
standing (as opposed to Article III standing), which cannot
be addressed through Rule 12(b)(1). Pl.'s Opposition
("Opp.") [Docket No. 20] at 2 (citing Maya v.
Centex Corp., 658 F.3d 1060, 1067-68 (9th Cir. 2011)).
Defendant responds that Plaintiff confuses the issues of
standing and preemption. Reply [Docket No. 21] at 6.
this dispute is styled as a motion to dismiss for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1), the
more appropriate analysis is under Rule 12(b)(6), which asks
whether Plaintiff has failed to state a claim upon which
relief can be granted. This case unequivocally raises federal
questions which confer subject matter jurisdiction pursuant
to 28 U.S.C. § 1331. In this motion, Defendant
essentially argues that Plaintiff cannot state a claim for
relief under RFRA or the First Amendment because Title VII
prevents him from doing so. See, e.g., Francis
v. Mineta, 505 F.3d 266, 268 (3d Cir. 2007) (disagreeing
with district court's dismissal of RFRA claim under Rule
12(b)(1) due to lack of subject matter jurisdiction, but
affirming result pursuant to Rule 12(b)(6)).
Title VII and Federal Employment
VII of the Civil Rights Act of 1964 prohibits employment
discrimination based on race, color, religion, sex or
national origin. 42 U.S.C. § 2000e et seq. As
originally enacted, Title VII did not provide a remedy for
federal employees alleging job-related discrimination.
Congress filled this loophole through passage of section
2000e-16 as part of the 1972 amendments to Title VII.
Brown v. Gen. Servs. Admin., 425 U.S. 820, 825
Brown, the Supreme Court took up the question of
whether the 1972 amendment "provides the exclusive
judicial remedy for claims of discrimination in federal
employment." 425 U.S. at 820-21. After review of the
legislative history, Brown held that "the
congressional intent in 1972 was to [create] an exclusive,
pre-emptive administrative and judicial scheme for the
redress of federal employment discrimination."
Id. at 829. The court then examined Title VII's
statutory scheme as a whole, and found that "the
structure of ...