United States District Court, E.D. California
DYWANE C. STONUM, Plaintiff,
COUNTY OF KERN, et al., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS (DOC. NO. 15)
matter came before the court on February 7, 2017, for hearing
of defendants' motion to dismiss pursuant to Federal
Civil Procedure Rule 12(b)(6). (Doc. No. 15.) Plaintiff
Dywane C. Stonum, proceeding pro se, appeared telephonically
on his own behalf. Attorney James Brannen appeared
telephonically on behalf of defendants County of Kern,
Patricia Gable, Tracy Selph, James McClellan, Shannon
Oastler, Debbie Spears, and Debra Davis. Following oral
argument, the motion was taken under submission. For the
reasons set forth below, the defendants' motion to
dismiss will be granted in part and denied in part.
26, 2016, plaintiff commenced this action against defendants,
alleging employment discrimination claims under Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e, et seq., and the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C.
§§ 621-634. (Doc. No. 1.) In his complaint
plaintiff alleges the following facts.
is a California resident who was employed with Kern County
Department of Human Services (“KDHS”) between
April 2013 and January 2014. (Id. at 6, 17.) The
individual defendants were also employed by KDHS during the
relevant time frame.
April 1, 2013, plaintiff was hired by KDHS to fill the
position of Human Services Technician I, charged with
determining new and ongoing eligibility for California public
assistance programs. (Id. at 6.) In May of 2013,
plaintiff was placed at Kern County's Mojave office.
his employment at the Mojave office, plaintiff was exposed to
a discriminatory work environment. Specifically, plaintiff
observed “Obama-bashing”; the belittling of the
Director of KDHS, a black woman; and co-workers celebrating
after rejecting individual and family public assistance
requests. (Id. at 11.) Plaintiff also observed
defendants Gable and Selph, together with Melissa Calliston,
operating as a management team that “target[ed] to
eliminate anyone who disagree[d] with their unlawful acts of
discrimination, and to discourage prospective applicants [for
state public assistance].” (Id. at 12.)
multiple occasions, defendants disputed plaintiffs handling
of public assistance cases. In May 2013, plaintiff provided a
customer with advice about how to avoid losing her public
benefits, and Calliston reacted by reprimanding plaintiff and
disparaging his character in front of coworkers.
(Id. at 11-12.) Calliston ordered plaintiff to send
the customer notice that she owed the county eleven years of
over-payments; when plaintiff expressed concerns about this
determination, Calliston admitted that the customer did not
owe money to the county. (Id.)
later time, plaintiff identified an improper public
assistance sanction being imposed on a customer, and
instructed the customer regarding how to address the problem.
(Id. at 14-15.) Defendants Gable and McClellan then
met with plaintiff and reprimanded him, with defendant Gable
telling plaintiff to be “very careful.”
(Id. at 15.)
County State Investigation Unit (“SIU”) officials
also began to harass plaintiff. (Id. at 16.) The SIU
officials expressed dissatisfaction with the number of
suspected fraud cases plaintiff was reporting, and told him
that he was falling short of the required fraud case quota.
Gable began instructing coworkers to send adverse letters to
customers under plaintiffs name, resulting in a series of
complaints being made against plaintiff. (Id. at
17.) Defendant Gable also restricted plaintiffs ability to
schedule walk-in appointments with customers, causing him to
miss a work deadline. (Id.) In response to the
missed deadline, defendant Gable wrote plaintiff a negative
performance evaluation. (Id.)
plaintiffs white co-worker, Donald Burke, was treated more
favorably and given less scrutiny than plaintiff in the
workplace. In particular, Burke was given an earlier lunch
hour, was assigned a desk that was located closer to
supervisors and managers, and was asked to join a union by
Calliston that plaintiff was never asked to join.
(Id. at 18.)
25, 2013, plaintiff received a Memo of Concern from defendant
Gable threatening plaintiff with disciplinary action and
termination. (Id. at 13.) Plaintiff was not provided
any additional information by defendant Gable, and was not
given an August 2013 performance evaluation report.
(Id.) Plaintiff ultimately did not receive his
employee performance report until December 13, 2013.
(Id. at 16.)
September 4, 2013, plaintiff made a complaint of racial
discrimination to defendant Davis. (Id. at 13.)
Plaintiff also submitted a written request for an appointment
with KDHS Department Head Tony Lopez to discuss his employee
performance report, but his request for that appointment was
denied without explanation. (Id.)
November 2013, plaintiff interviewed for the position of KDHS
Social Services Worker for which he had applied earlier that
year. (Id.) The interview panel consisted of
defendants Selph, McClellan, and Oastler. (Id.)
According to plaintiff was denied the position in retaliation
for his earlier complaint of racial discrimination.
(Id.) By December 2013, plaintiffs work started to
be reassigned to his coworkers. (Id. at 16.)
January 3, 2014, plaintiff was discharged by defendant Gable.
(Id. at 17.) Plaintiff was not given his final pay
after his discharge. (Id.)
his discharge, plaintiff filed a grievance with SEIU Local
521 and the Kern County Human Resources Department.
(Id. at 18.) On April 2, 2014, plaintiff also filed
a complaint with the Equal Employment Opportunity Commission
(“EEOC”). (Id. at 6, 18.)
Plaintiff's grievance and complaint were found to be
without merit. (Id. at 18.)
filed his complaint in this action on July 26, 2016. (Doc.
No. 1.) On December 19, 2016, defendants filed the instant
motion to dismiss the complaint. (Doc. No. 15.) Plaintiff
filed his opposition and declaration in support thereof on
January 9, 2017. (Doc. Nos. 19-20.) Defendants filed their
reply on January 31, 2017. (Doc. No. 22.)
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the legal sufficiency of the complaint. N. Star
Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581
(9th Cir. 1983). “Dismissal can be based on the lack of
a cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A claim for relief must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Though Rule 8(a) does not require detailed factual
allegations, a plaintiff is required to allege “enough
facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662,
677-78 (2009). “A claim has facial plausibility when
the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
determining whether a complaint states a claim upon which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Novak v.
United States, 795 F.3d 1012, 1017 (9th Cir. 2015). It
is inappropriate to assume that the plaintiff “can
prove facts that it has not alleged or that the defendants
have violated the . . . laws in ways that have not been
alleged.” Associated Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S. 519, 526
pleadings are held to a less stringent standard than those
drafted by lawyers. Haines v. Kerner, 404 U.S. 519,
520 (1972); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1
(9th Cir. 1985). However, the court's liberal
interpretation of a pro se litigant's pleading may not
supply essential elements of a claim that are not pled.
Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992);
Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d
266, 268 (9th Cir. 1982). Furthermore, “[t]he court is
not required to accept legal conclusions cast in the form of
factual allegations if those conclusions cannot reasonably be
drawn from the facts alleged.” Clegg v. Cult
Awareness Network, 18 ...