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Franklin v. City of Kingsburg

United States District Court, E.D. California

July 10, 2019

VERNON FRANKLIN, Plaintiff
v.
CITY OF KINGSBURG; TIM RAY; and DOES 1 through 20 inclusive Defendants

          ORDER RE: MOTION TO DISMISS

         I. Background

         Plaintiff 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.

         In 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”).

         Franklin 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.

         In 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.

         Franklin 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.

         II. Legal Standard

         Under 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).

         III. Discussion

         A. Employment Discrimination Claims - Causes of Action One Through Six

         These 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 parallel.

         1. EEOC Charges and Settlement Agreement

         In 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.

         In this 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.[1] 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.

         The dispute was resolved by settlement between Franklin and Kingsburg in June 2016. The Settlement Agreement states in relevant part:

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- 2016-00263.
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.

         Based on these documents, it appears that neither the EEOC or DFEH issued a right to sue letter ...


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