United States District Court, E.D. California
Loan Phan brings this civil rights action against her former
employer, Employment Development Department
(“EDD”), asserting claims of discrimination,
harassment and retaliation under Title VII. See
Fourth Am. Compl. (“FAC”), ECF No. 42. EDD moves
to dismiss the fourth amended complaint. Mot., ECF No. 43.
Phan opposes. Opp'n, ECF No. 44. EDD filed a reply.
Reply, ECF No. 45. The court submitted the matter without
oral argument. ECF No. 47. For the reasons discussed below,
the court GRANTS the motion with prejudice.
worked for EDD as an Employment Program Representative from
June 2009 until May 2012 and then as an Accountant Trainee
until November 2013. FAC ¶ 5. Phan is Vietnamese and
speaks English as a second language and with a heavy accent.
Id. ¶¶ 7, 9. For each of these reasons,
Phan alleges she experienced discrimination, harassment and
retaliation at EDD starting in 2009. See generally
else from the fourth amended complaint is clear. Phan alleges
her colleagues and supervisors mistreated her, id.
¶ 9, but she does not say who, when or in what office
this conduct occurred. Similarly, she alleges she
“complained” about this mistreatment to her
supervisors and the mistreatment worsened, id.
¶ 6, but provides few details about the complaints or
the mistreatment. The operative complaint does provide the
following specific, albeit stray, allegations: although Phan
worked within a unit of foreign language speaking employees,
she was the only employee not certified in a foreign
language, id. ¶ 12; during Phan's training
starting in 2012, one of her trainers did not adhere to
Phan's training schedule, id. ¶ 16; in
spring 2013, she submitted but then withdrew two applications
for a promotion, id. ¶¶ 22, 25; and Phan
was subjected to “name-calling” and was told she
had a “hormone problem” and that she was
“crazy, ” id. ¶ 27.
January 21, 2014, Phan filed a complaint with the Equal
Employment Opportunity Commission (“EEOC”) and
another with the California Department of Fair Employment and
Housing (“DFEH”). Id. ¶ 29. She
received a right-to-sue letter from the EEOC in November
2015. Id. Ex. B.
filed the original complaint and a first amended complaint,
proceeding pro se, in early 2016. Compl., ECF No. 1; First
Am. Compl., ECF No. 5. After acquiring counsel, ECF No. 14,
the parties stipulated to permit a second and third amended
complaint. Second Am. Compl., ECF No. 28; Third Am. Compl.,
ECF No. 34. At hearing held on March 24, 2017, the court
granted EDD's motion to dismiss the third amended
complaint, stating its reasons for dismissal on the record.
See Hr'g Mins., ECF No. 41.
weeks later, Phan filed the operative fourth amended
complaint. See FAC. Phan makes the following claims
against EDD, all brought under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e-e-17: (1)
Discrimination on the basis of Race, National Origin, and/or
Ethnicity; (2) Harassment on the basis of Race, National
Origin, and/or Ethnicity; and (3) Retaliation on the basis of
Race, National Origin, and/or Ethnicity. See FAC
noted, EDD moves to dismiss all claims. See
STANDARDS ON MOTION TO DISMISS
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
party may move to dismiss a complaint for “failure to
state a claim upon which relief can be granted.” A
court may dismiss “based on the lack of 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). In
making this determination, a court considers “only
allegations contained in the pleadings, exhibits attached to
the complaint, and matters properly subject to judicial
notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763
(9th Cir. 2007) (per curiam).
a complaint need contain only “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), in order to survive
a motion to dismiss this short and plain statement
“must contain sufficient factual matter . . . 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)). A complaint must include something
more than “an unadorned,
the-defendant-unlawfully-harmed-me accusation” or
“‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action.'” Id. (quoting Twombly,
550 U.S. at 555). Determining whether a complaint will
survive a motion to dismiss for failure to state a claim is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Id. at 679. Ultimately, the inquiry
focuses on the interplay between the factual allegations of
the complaint and the dispositive issues of law in the
action. See Hishon v. King & Spalding, 467 U.S.
69, 73 (1984).
making this context-specific evaluation, this court must
construe the complaint in the light most favorable to the
plaintiff and accept as true the factual allegations of the
complaint. Erickson v. Pardus, 551 U.S. 89, 93-94
(2007). This rule does not apply to “a legal conclusion
couched as a factual allegation, ” Papasan v.
Allain, 478 U.S. 265, 286 (1986), nor to
“allegations that contradict matters properly subject
to judicial notice” or to material attached to or
incorporated by reference into the complaint, Sprewell v.
Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir.
2001). A court's consideration of documents attached to a
complaint or incorporated by reference or matter of judicial
notice will not convert a motion to dismiss into a motion for
summary judgment. United States v. Ritchie, 342 F.3d
903, 907-08 (9th Cir. 2003); Parks Sch. of Bus. v.
Symington, 51 F.3d 1480, 1484 (9th Cir. ...