United States District Court, E.D. California
ORDER RE: MOTION TO DISMISS
Vernon Franklin was a firefighter/EMT with the Kingsburg City
Fire Department between 2006 and 2017. Franklin was the first
and only African American member of the Fire Department. Tim
Ray was the Fire Chief at the time. Defendants are Chief Ray
and the City of Kingsburg.
2014, Franklin got into an altercation with a white
co-worker. Franklin was written up while the co-worker was
not. At an unspecified time in the past, Franklin had also
been written up for unsafe driving and put on six-month paid
leave while the incident was investigated. Franklin was
responsible in part for maintaining self-contained breathing
apparatus (“SCBA”) equipment used by the Fire
Department. In September 2015, Franklin asked Chief Ray if he
could take a course on SCBA maintenance he thought was
necessary for ensuring their safe use. Chief Ray denied the
request. Franklin then e-mailed his request to Chief Ray,
City Manager Alex Henderson, and the City of Kingsburg Safety
Council. Franklin's supervisor, Captain Bob McGee, told
Franklin in October that Chief Ray and the City Manager were
upset with his e-mail and that he would consequently be
punished. With reference to his prior write ups, Franklin was
given two 48-hour shift suspension and required to comply
with a Performance Improvement Plan (“PIP”).
then filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”). After mediation, Franklin
and the Fire Department came to a formal settlement agreement
(“Settlement Agreement”). Franklin agreed to
comply with two 6-month PIPs in return for pay withheld due
to his suspension and a release of all prior other claims up
to that point. In October 2016, Franklin and Chief Ray argued
about Franklin's PIP.
early 2017, Franklin's EMT accreditation with the Central
California Emergency Medical Services Agency lapsed.
Paramedics with the Fire Department are required to maintain
that accreditation. Franklin corrected the problem; he was
without accreditation for two weeks. Fire Department then
started proceedings to end Franklin's employment. He was
formally dismissed on May 12, 2017. Franklin challenged his
dismissal through a civil service administrative process.
Though the administrative law judge found in favor of
Franklin, recommending that he not be fired, the Kingsburg
City Council (who had the last word) rejected that conclusion
and affirmed Franklin's dismissal. Additionally, Franklin
filed a new EEOC complaint in August 2017; Franklin
thereafter received a right to sue letter.
filed suit against Defendants City of Kinsgburg and Chief Ray
on eight causes of action: 1) discrimination in violation of
California's Fair Employment and Housing Act
(“FEHA”), 2) harassment in violation of FEHA, 3)
retaliation in violation of FEHA, 4) failure to provide a
harassment/retaliation/discrimination free work environment
in violation of FEHA, 5) discrimination in violation of 42
U.S.C. § 2000e (“Title VII”), 6) retaliation
in violation of Title VII, 7) violation of 42 U.S.C. §
1981, and 8) violation of 42 U.S.C. § 1983. Doc. 1,
Complaint. Franklin has clarified that he is only suing Chief
Ray based on the eighth cause of action. Doc. 7, 5:11-12.
Defendants have made a motion to dismiss all eight causes of
action. Doc. 6. Franklin opposes the motion. Doc. 7.
Federal Rule of Civil Procedure 12(b)(6), a claim may be
dismissed because of the plaintiff's “failure to
state a claim upon which relief can be granted.” Fed.
Rule Civ. Proc. 12(b)(6). A dismissal under Rule 12(b)(6) may
be based on the lack of a cognizable legal theory or on the
absence of sufficient facts alleged under a cognizable legal
theory. Conservation Force v. Salazar, 646 F.3d
1240, 1242 (9th Cir. 2011); Johnson v. Riverside
Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008). In
reviewing a complaint under Rule 12(b)(6), all allegations of
material fact are taken as true and construed in the light
most favorable to the non-moving party. Faulkner v. ADT
Sec. Servs., 706 F.3d 1017, 1019 (9th Cir. 2013).
However, complaints that offer no more than “labels and
conclusions” or “a formulaic recitation of the
elements of action will not do.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The Court is not
required “to accept as true allegations that are merely
conclusory, unwarranted deductions of fact, or unreasonable
inferences.” Wilson v. Hewlett-Packard Co.,
668 F.3d 1136, 1145 n. 4 (9th Cir. 2012); Sprewell v.
Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001). To avoid a Rule 12(b)(6) dismissal, “a complaint
must contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court draw the reasonable
inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 570 (2007). The Ninth Circuit has distilled the
following principles from Iqbal and
Twombly: (1) to be entitled to the presumption of
truth, allegations in a complaint or counterclaim may not
simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively; (2) the factual allegations that are taken as
true must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation. Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011). In assessing a motion to dismiss, courts may
consider documents attached to the complaint, documents
incorporated by reference in the complaint, or matters of
judicial notice. Dichter-Mad Family Partners. LLP v.
United States, 709 F.3d 749, 761 (9th Cir. 2013). If a
motion to dismiss is granted, “[the] district court
should grant leave to amend even if no request to amend the
pleading was made.” Henry A. v. Willden, 678
F.3d 991, 1005 (9th Cir. 2012). However, leave to amend need
not be granted if amendment would be futile or if the
plaintiff has failed to cure deficiencies despite repeated
opportunities. Mueller v. Aulker, 700 F.3d 1180,
1191 (9th Cir. 2012); Telesaurus VPC. LLC v. Power,
623 F.3d 998, 1003 (9th Cir. 2010).
Employment Discrimination Claims - Causes of Action One
causes of action allege racial discrimination, racial
harassment, and retaliation under FEHA and Title VII. As the
legal arguments that apply to these causes of action are
largely shared, they will be considered and addressed in
EEOC Charges and Settlement Agreement
order to sue under FEHA and Title VII, a plaintiff is
required to first exhaust certain administrative remedies.
See Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir.
1990) (“Title VII claimants generally establish federal
court jurisdiction by first exhausting their EEOC
administrative remedies”). “To properly exhaust
these claims, a claimant must first file the charge with
either the EEOC (enforcing Title VII) or the Department of
Fair Employment and Housing (“DFEH”) (enforcing
FEHA). When Title VII and FEHA claims overlap, the EEOC and
DFEH are each the agent of the other for purposes of
receiving charges, and thus a filing with one agency is
considered to be constructively filed with the other.”
Chew v. City & Cty. of S.F., 2016 U.S. Dist.
LEXIS 19987, *19-20 (N.D. Cal. Feb. 17, 2016). “A
claimant cannot file a lawsuit until receiving a right-to-sue
notice from the agency that specifically enforces those
laws.” Dornell v. City of San Mateo, 19
F.Supp.3d 900, 905 (N.D. Cal. 2013). “[P]laintiff may
only bring suit on claims that are ‘like or reasonably
related' to allegations mentioned in his administrative
charges.” Henry v. Regents of the Univ., 37
F.Supp.3d 1067, 1083 (N.D. Cal. 2014), quoting Freeman v.
Oakland Unified Sch. Dist., 291 F.3d 632, 636 (9th Cir.
2002). “Subject matter jurisdiction extends over all
allegations of discrimination that either fell within the
scope of the EEOC's actual investigation or an EEOC
investigation which can reasonably be expected to grow out of
the charge of discrimination. We construe the language of
EEOC charges with utmost liberality since they are made by
those unschooled in the technicalities of formal
pleading.” B.K.B. v. Maui Police Dep't,
276 F.3d 1091, 1100 (9th Cir. 2002), quotations omitted.
case, the procedural history of exhaustion is not altogether
straightforward. Franklin filed Charge Number 485-2016-00263
with the EEOC on May 26, 2016. Doc. 6-2, Ex. A. Franklin alleged
racial discrimination that occurred between October 26, 2015
and April 8, 2016; he checked the box for continuing action.
His complaint is as follows:
I. On or about August 2006, I was hired as a Fire
Fighter/Paramedic. My supervisor is Bob McGee, Fire Captain.
Shortly after being hired, Russ Davis informed me that, when
he was growing up, he had a dog named ‘nigger.' In
November 2014, I was in a verbal altercation with George
Alves. Subsequently, I was given a written disciplinary
warning and mandated to attend a conflict management course.
I understand that Mr. Alves frequently makes racist jokes
while on the job. I understand that management is aware of
Mr. Alves comments. I understand that Mr. Alves has never
been disciplined. In August or September 2015, Tim Ray
assigned me to the position of Self-Contained Breathing
Apparatus. I had never performed the duties of this position
and, as such, I requested to attend training. My request was
denied. Mr. Ray then proceeded to yell at me in front of my
peers in response to my request. Mr. Ray did not yell at any
other employees at that meeting. I then reported a safety
issue. Shortly thereafter, I was falsely accused of workplace
harassment, driving recklessly, and endangering a coworker
and patient. I was suspended. I understand that other
non-Black employees have been accused of similar issues and
they have not been disciplined or suspended.
II. I was told that I was suspended while Respondent
conducted an internal investigation into an alleged
complaint. No other reason was given for the treatment.
III. I believe I was given different terms and conditions of
employment, harassed, disciplined, and suspended because of
my Race, Black, in violation of Title VII of the Civil Rights
Act of 1964, as amended.
dispute was resolved by settlement between Franklin and
Kingsburg in June 2016. The Settlement Agreement states in
1. In exchange for the promises made by Respondent pursuant
to Charge Number 485-2016-00263, Charging Party agrees not to
institute a lawsuit under Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, the Equal Pay Act (EPA), the
Age Discrimination in Employment Act of 1967 (ADEA), as
amended, or the Americans with Disabilities Act of 1990
(ADA), as amended, based on EEOC Charge Number 485-
2. Further, the parties agree that submission of this
agreement to EEOC will constitute a request for closure of
EEOC Charge Number 485-2016-00263.
4. Respondent agrees that there shall be no discrimination or
retaliation of any kind against the Charging Party as a
result of filing this charge or against any person because of
opposition to any practice deemed illegal under Title VII,
the EPA, the ADEA, or the ADA, as a result of filing this
charge, or for giving testimony, assistance or participating
in any manner in an investigation, proceeding or a hearing
under the aforementioned Acts.
on these documents, it appears that neither the EEOC or DFEH
issued a right to sue letter ...