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Austin v. City of Oakland

United States District Court, N.D. California

May 30, 2018

Samuel E. Austin, Plaintiff,
City of Oakland., et al., Defendants.



         On March 14, 2018, plaintiff Samuel E. Austin, proceeding pro se, filed a second amended complaint (“SAC”) alleging four causes of action: two under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e (“Title VII”) for gender and racial discrimination (Count I) and hostile work environment namely for sexual harassment (Count III); and two more under the Americans with Disabilities Act, 42 U.S.C. 12101 (the “ADA”) for failure to accommodate (Count II) and retaliation (Count IV). The SAC charged a litany of defendants, including Equal Opportunity Program Administrator Barbara A. Sylvester; Barbara J. Parker and Selia M. Warren of the City of Oakland's Attorney's Office; Oakland Police Department Deputy Chief John Lois; Assistant Mayor Sabrina Landreth; Public Works manager Darin Minor; Marco Torres; Everett Cleveland; Roslyn Ratliff; Jemea Jeffrey; Yolanda Lopez, Debbie Corso; Kip Walsh; Adama Wilson; Dwight McElroy; Shelia Stolin (the “City Individual Defendants”); and the City of Oakland (the “City”) (collectively, “City Defendants”) as well as Steve Pitocchi of the Local 1021 Service Employees International Union (collectively with City Individual Defendants, “Individual Defendants”). (Dkt. No. 50.)

         On February 27, 2018, plaintiff also filed a second action, Austin v. City of Oakland, et al, 18-cv-1329 (“Austin II”). Austin II alleges essentially the same facts and legal theories as those alleged in the SAC, as well as an apparent additional cause of action for racial discrimination, against the City and Service Employees International Union, Local 1021 (the “Union”).[1] (Id.) On March 27, 2018, the Court consolidated Austin II with the instant matter. (Austin v. City of Oakland, et al, 18-cv-1329, Dkt. No. 11.)

         All defendants now move to dismiss all counts alleged in the SAC, as well as in Austin II. (Dkt. Nos. 57, 62.) City Defendants move to dismiss for failure to state a claim under Rule 12(b)(6). (Dkt. No. 57, City Defendants' Motion to Dismiss & Strike (“City Motion”).) Union Defendants move to dismiss for insufficient service under Rule 12(b)(5) and lack of subject matter jurisdiction under Rule 12(b)(1). (Dkt. No. 62, Union Defendants' Motion to Dismiss (“Union Motion”).) City Defendants also move to strike Austin's claim for racial discrimination under Rule 12(f). (City Motion.)

         Having carefully considered the pleadings, the papers submitted, and oral arguments on May 15, 2018, and for the reasons set forth more fully below, the Court hereby Grants defendants' motions to dismiss and Dismisses with Prejudice all of Austin's claims other than those of racial discrimination against the City and the Union, which are Dismissed without Prejudice. Thus, Austin may file a third amended complaint regarding only his claim of racial discrimination against the City and the Union. Additionally, the Court hereby Denies City Defendants' motion to strike.

         I. Background

         In March of 2013, Austin began working as a part-time custodian in the City of Oakland's Public Works Administration, (“Public Works”). (SAC ¶ 23.) In early 2014, Austin applied for and obtained a full-time custodian position. (City Motion at 3).[2] Austin remained a full-time custodian with Public Works until his termination in February 2017. (SAC ¶ 65.)

         Over the course his employment, Austin was allegedly involved in a number of incidents in which he engaged in hostile and aggressive behavior toward his coworkers and supervisors. (See Id. ¶¶ 24-49.) In October 2016, the City filed a petition for a workplace violence restraining order against Austin with the Alameda County Superior Court. (Id. ¶ 59.) The City also conducted a threat assessment of Austin and discovered that, contrary to Austin's representations when he applied for a full-time custodian position, he had previously been convicted of multiple felonies. (Id. ¶¶ 60-64.) Following a hearing at which Austin testified, the Alameda County Superior Court issued a three-year restraining order against Austin. (Dkt. No. 32, Request for Judicial Notice (“RJN”), Ex. A.) Following a subsequent administrative investigation and hearing, the City determined that Austin knowingly misled the City by omitting material information on his Criminal History Form and terminated Austin's employment, effective February 8, 2017. (See SAC at ¶ 65.)

         Austin now alleges that on November 10, 2016, he filed an administrative charge against Public Works with the Equal Employment Opportunity Commission (“EEOC”) regarding gender and disability discrimination as well as retaliation, and the EEOC refused to issue a right-to-sue letter.[3] (Id. ¶ 70.) On February 10, 2017, Austin filed a second complaint with EEOC regarding the same. (Id.) On February 24, the EEOC issued Austin a right-to-sue letter, which Austin alleges he received on February 27, 2017.[4] (Id.) Next, Austin alleges that on September 25, 2017, he filed a charge with the EEOC regarding racial discrimination.[5] (Austin II ¶ 15.) Plaintiff appears to say that he received a right-to-sue letter that encompassed the racial charge on November 30, 2017, but it is not clear, as no such letter has been submitted. (Id.) This lawsuit ensued.

         II. Legal Standard

         A. Motion to Dismiss Under Rule 12(b)(6)

         Pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief may be granted. Dismissal for failure to state a claim under Rule 12(b)(6) is proper if there is a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). The complaint must plead “enough facts to state a claim [for] relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the plaintiff pleads factual content that 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 (2009). If the facts alleged do not support a reasonable inference of liability, stronger than a mere possibility, the claim must be dismissed. Id. at 678-79. Mere “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004). Pro se pleadings must satisfy the same standard. See Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995) (finding that courts must construe pro se pleadings liberally, but “those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong.”)

         B. Motion to Dismiss Under Rule 12(b)(1)

         Federal courts will dismiss claims under Rule 12(b)(1) for lack of subject matter jurisdiction when plaintiff fails to exhaust administrative remedies. See Sommatino v. United States, 255 F.3d 704, 707-10 (9th Cir. 2011). To establish federal subject matter jurisdiction over causes of action brought under Title VII and the ADA, a plaintiff must “exhaust her EEOC administrative remedies before seeking federal adjudication of her claims.” EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir. 1004); see also Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006); Jasch v. Potter, 302 F.3d 1092, 1095-96 (9th Cir. 2002).

         C. Motion to Dismiss Under Rule 12(b)(5)

         Under Rule 12(b)(5), a complaint may be dismissed for insufficient service of process with respect to the complaint. Rule 4(h)(1) governs service of process for corporations, partnerships, and associations in a United States judicial district. For such service, the Rule provides two methods: (1) in a manner set forth in the relevant state law, or (2) by delivering the process to an officer or other agent authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(h)(1).

         D. Motion to Strike Under Rule 12(f)

         Rule 12(f) allows a court to strike “redundant, immaterial, impertinent, or scandalous matter” from a pleading. A court may grant a motion to strike where “the matter to be stricken clearly could have no possible bearing on the subject of the litigation.” In re Arris Cable Modem Consumer Litig., 2018 WL 288085, at *5 (N.D. Cal. Jan. 4, 2018). The purpose of a Rule 12(f) motion is to “avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial.” Sydney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 1983).

         III. Discussion

         A. All Claims Against The Individual Defendants

         Between the SAC and Austin II, plaintiff asserts claims under Title VII and the ADA against seventeen Individual Defendants. (SAC ¶¶ 72, 86, 122, 143, 152.) Aside from Austin's claim based on racial discrimination under Title VII, the Court previously dismissed all of his claims as to these Individual Defendants. (Dkt. No. 42 (“Prior Order”) at 3-4.) Austin does not include any new allegations in support of these claims. Therefore, the Court reaffirms its prior dismissal, this time with prejudice.

         With respect to Austin's remaining claim for racial discrimination, only an “employer” may be held liable under Title VII or the ADA. See 42 U.S.C. §§ 2000e(b); 2000e-3(a); 42 U.S.C. § 12111(5)(a). Title VII does not impose liability on individual supervisors or other employees. See Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir. 2007) (“Title VII does not provide a separate cause of action against supervisors or co-workers.”). Therefore, the Court reaffirms its previous decision (see Prior Order at 3-4) and Grants defendants' motions to dismiss as to the Individual Defendants and Dismisses with Prejudice all claims against the Individual Defendants asserted in the SAC and the Austin II complaint.[6] See Morrow v. City of Oakland, 690 Fed.Appx. 517, 518 (9th Cir. 2017) (affirming dismissal of Title VII claims against individual defendants). Because the Court once again grants defendant's motions to dismiss as to the Individual Defendants with prejudice, Austin may not include the Individual Defendants in his third amended complaint. See Turner v. Advantage N.W. Credit Union, 2011 WL 2293095, at *3 (D. Or. June 3, 2011).

         B. All Claims ...

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