Holly v. Jewell

          ORDER GRANTING PARTIAL MOTION TO DISMISS Re: Dkt. No. 19

          DONNA M. RYU UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         Defendant 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.^[1] Id. Having considered the parties' briefs and oral argument, the court grants Defendant's motion.

         I. FACTUAL BACKGROUND

         The 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.

         Plaintiff, 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.

         II. LEGAL STANDARDS

         A. Rule 12(b)(1)

         A 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 at 1039.

         Here, 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 Title VII.

         B. Rule 12(b)(6)

         A 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).

         III. ANALYSIS

         Defendant 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.

         A. Whether Defendant Properly Brings This Motion Under Rule 12(b)(1)

         As an 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.

         Although 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)).

         B. Title VII and Federal Employment

         1.General Principles

         Title 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 (1976).

         In 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 ...