United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS AND DENYING
SANCTIONS RE: DKT. NO. 25, 29, 41
William H. Orrick United States District Judge.
Ivette Rivera was an employee of the East Bay Municipal
Utility District (“EBMUD”), a public entity in
Alameda County. During her time as an employee with EBMUD,
Defendant Local 444 of the American Federation of State,
County, and Municipal Employees (“Local 444”) was
her exclusive bargaining representative. She previously filed
a pro se lawsuit in this district against EBMUD, Local 444,
and a number of individuals alleging that EBMUD's refusal
to reclassify her as a supervisor was tantamount to
discrimination on the basis of her sex; as a result, she was
underpaid and then retaliated against for protesting that
alleged discrimination and unequal pay. In that action, her
claims against Local 444, brought under Title VII of the
Civil Rights Act of 1964 (“Title VII”) and the
Equal Pay Act (“EPA”), were dismissed with
prejudice. She now brings the same claims, based upon the
same facts, against the same party. Because this action is
prohibited under the doctrine of claim splitting, Local
444's motion is GRANTED. Rivera's complaint is
DISMISSED WITHOUT LEAVE TO AMEND. But because her complaint
was not brought in bad faith, she need not be imposed the
extreme penalty of sanctions.
RIVERA'S PRIOR LAWSUIT
2015, Rivera brought a pro se action in the Northern District
of California against her former employer, East Bay Municipal
Utility District (“EBMUD”), Local 444 of the
American Federation of State, County, and Municipal Employees
(“Local 444”), and a number of individual
defendants. See 2015 First Am. Compl. (“2015
FAC”)(Def.'s Request for Judicial Notice, ¶ 1,
Ex. A, Dkt. No. 27-1). She alleged that she complained to the
EBMUD Board repeatedly about her improper categorization as a
non-supervisor, 2015 FAC ¶ 45, that EBMUD and Local 444
prevented her from joining the supervisors' union, Local
21, Id. ¶ 100, that EBMUD informed her that she
would have to make any complaints through her union, Local
444, Id. ¶ 58, and that when she filed
complaints with EBMUD anyway, they retaliated against her by
declining to process her complaints. Id. ¶ 101.
On the basis of these facts, she asserted claims against
Local 444 for employment discrimination and retaliation under
Title VII and for violation of the Equal Pay Act.
Id. ¶¶ 99-101.
EBMUD defendants and the Union defendants separately moved to
dismiss Rivera's complaint. See Rivera v. E. Bay Mun.
Util. Dist., No. C 15-00380 SBA, 2015 WL 6954988, at *1
(N.D. Cal. Nov. 10, 2015)(“Prior Order”). On
November 10, 2015, the Honorable Saundra Brown Armstrong
dismissed all of Rivera's claims against each of the
defendants. Prior Order at *1. Judge Armstrong granted leave
to amend only as to EBMUD. Id. at *8-9. On November
11, 2015, David Poore entered a notice of appearance as
counsel for Rivera. Dkt. No. 27-3. Until this point, Rivera
had represented herself. See 2015 FAC at 28 (filed
by “Ivette Rivera, Pro Se Plaintiff”). Poore
represents Rivera in the present action as well.
THE PRESENT ACTION
filed this action on August 29, 2016, alleging the same
claims stemming from the same set of facts, against Local
444. Compare Compl. (Dkt. No. 1), with 2015
FAC (Dkt. No. 27-1). According to Rivera, EBMUD hired her on
January 24, 2005, to be a “Gardener Foreman.”
Compl. ¶ 7. This entailed supervising and managing a
large portion of the gardening and grounds maintenance staff
in the West Division of EBMUD. Id. In December 2013,
she spoke to the EBMUD Board about “her concerns of
discrimination and unequal pay for females in the
workplace.” Id. ¶ 8. Specifically, she
complained that she had been misclassified as a
non-supervisory employee and was not paid the same as men who
performed similar functions. Id. ¶ 9. She asked
that she and similar employees be properly classified and
allowed to join Local 21, the supervisors' union.
Id. Rivera informed the Board that when men had
previously held “foreman” positions they were
classified as supervisors at the request of Local 444 and
moved to Local 21. Id. She also informed Local 444
of these concerns. Id.
Local 444 and EBMUD changed the internal complaint process to
require employees to file all equal employment opportunity
complaints through Local 444. Id. ¶ 10. After
that change, Rivera reiterated her concerns to the EBMUD
Board on January 14 and January 28, 2014. Id. ¶
12. On January 28, 2014, EBMUD Director Frank Mellon told
Rivera that EBMUD would not investigate or process her
complaints on the basis that such matters were
“owned” by Local 444. Id. ¶ 13.
Rivera nonetheless filed a discrimination and unequal pay
complaint with the Board. Id. EBMUD “took the
position that they were going to … strip Plaintiff of
her supervisory duties.” Id. Rivera alleges
that Local 444 refused to issue any complaints or grievances
to EDMUD, refused to properly classify her as a supervisor,
interfered with her rights under Title VII, and failed to
transfer her to the supervisor's union, Local 21.
Id. ¶ 14. On the basis of these allegations,
Rivera brings claims for gender discrimination, id.
¶¶ 16-21, and retaliation, id.
¶¶ 22-27, under Title VII, and for negotiation of
unequal wages under the Equal Pay Act, id.
motion to dismiss for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6) tests the legal sufficiency
of a complaint. Navarro v. Block, 250 F.3d 729, 732
(9th Cir. 2001). “Dismissal under Rule 12(b)(6) is
appropriate only where the complaint lacks a cognizable legal
theory or sufficient facts to support a cognizable legal
theory.” Mendiondo v. Centinela Hosp. Med.
Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). While a
complaint “need not contain detailed factual
allegations” to survive a Rule 12(b)(6) motion,
“it must plead enough facts to state a claim to relief
that is plausible on its face.” Cousins v.
Lockyer, 568 F.3d 1063, 1067-68 (9th Cir. 2009)
(internal quotation marks and citations omitted). A claim is
facially plausible when it “allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(internal quotation marks omitted). In considering whether a
claim satisfies this standard, the court must “accept
factual allegations in the complaint as true and construe the
pleadings in the light most favorable to the nonmoving
party.” Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008). However,
“conclusory allegations of law and unwarranted
inferences are insufficient to avoid a Rule 12(b)(6)
dismissal.” Cousins, 568 F.3d at 1067
(internal quotation marks omitted).
prior suit was based on the same set of facts, and included
the same claims against the same defendant. In that action,
her Title VII and EPA claims were dismissed without leave to
amend as to Local 444. Prior Order at *8-9. The court also
determined that the claims against Local 444 were
“objectively baseless.” Id. at *10.
Rivera brings the same claims here.
444 now moves to dismiss Rivera's current action with
prejudice on the basis that she has impermissibly split her
claims. Mot. to Dismiss (“MTD”)(Dkt. No. 25). It
also seeks sanctions under Rule 11, 28 U.S.C. §1927, and
the court's inherent powers because the current action is
“an unreasonable multiplication of proceedings.”
MTD at 11; see also Mot. for Sanctions (Dkt. No.
29); Mot. for Sanctions Under 28 U.S.C. § 1927 (Dkt. No.