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Phan v. Employment Development Department

United States District Court, E.D. California

July 20, 2017

LOAN PHAN, Plaintiffs,


         Plaintiff 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.

         I. BACKGROUND

         A. Factual Allegations

         Phan 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 id.

         Little 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.

         B. Procedural Background

         On 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.

         Phan 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.

         Three 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 ¶¶ 36-60.

         As noted, EDD moves to dismiss all claims. See generally Mot.


         Under 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).

         Although 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).

         In 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. ...

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