Opinion
No. C 04-2762 SI.
February 11, 2005
ORDER PARTIALLY GRANTING DEFENDANTS' MOTION TO DISMISS, WITH LEAVE TO AMEND
On February 11, 2005, the Court heard argument on defendants' motion to dismiss plaintiff's First Amended Complaint. Having carefully considered the arguments of the parties and the papers submitted, the Court hereby GRANTS defendants' motion in part, with leave to amend on or before February 25, 2005.
BACKGROUND
Plaintiff Keith Stevens has been an employee with the San Mateo County Probation Department since December 1992. Plaintiff alleges that in 2001 he was demoted because he complained to his supervisor about the lack of employees on the night shift. Plaintiff was demoted again in July 2002 and was assigned to work in the "bubble," a job that offered no possibility of overtime. Plaintiff claims that he was demoted because of his age, in order to be replaced by workers receiving a lower wage. Plaintiff also alleges that he was taunted by fellow employees because of his age and race; however, neither plaintiff's age nor his race is stated in the complaint. Although plaintiff informed his supervisors of the taunts, no disciplinary action was taken.
Plaintiff alleges that Vincent Obiajulu, an employee at the Probation Department, threatened him in January 2002. While plaintiff was driving to work in February 2002, Obiajulu tailgated plaintiff and forced him off the road, telling plaintiff, "when you see me, get out of the way." Finally, plaintiff claims that Obiajulu in April 2002 violently opened a door into plaintiff, causing plaintiff to suffer a broken wrist and a separated shoulder. In the same incident, plaintiff claims that Obiajulu also tried to punch him. Plaintiff alleges that no disciplinary action was taken.
As a result, plaintiff filed this action in federal court on July 9, 2004, naming as defendants the County of San Mateo, the San Mateo County Probation Department, and Vincent Obiajulu, as an individual. Plaintiff filed his First Amended Complaint on August 26, 2004. Plaintiff asserts a number of claims, including hostile work environment, retaliation, assault and battery, and intentional infliction of emotional distress. Defendants filed a motion to dismiss on October 29, 2004. It is this motion that is before this Court today.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S. Ct. 3012 (1984).
In answering this question, the Court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. See United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).
If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).
DISCUSSION
1. First cause of action: hostile work environment
Defendants argue that plaintiff has not alleged any facts supporting his hostile work environment claim within the limitations period. Plaintiff has brought this claim under Title VII and FEHA. In California, plaintiff must file a charge of discrimination with the Equal Employment Opportunity Commission("EEOC") within 300 days of the unlawful employment practice. Nuss v. Pan Am. World Airways, Inc., 634 F.2d 1234, 1236 (9th Cir. 1980). If alleging discrimination under FEHA, plaintiff must file a charge of discrimination with the California Department of Fair Employment and Housing ("DFEH") within one year of the unlawful employment practice. Rodriguez v. Airborne Express, 265 F.3d 890, 896 (9th Cir. 2001).
Plaintiff filed charges with the EEOC and DFEH on May 2, 2003. First Amended Complaint ("FAC") at ¶ 8. Plaintiff identifies several facts in the complaint in support of his hostile work environment claim. See FAC at ¶¶ 16-21. However, these facts all occur before May 2002, falling outside of the limitations period.
Plaintiff argues that these incidents should be considered under the continuing violation doctrine in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002). However, the continuing violation doctrine only applies when "an act contributing to that hostile environment takes place within the statutory time period." Id. at 105. Plaintiff's FAC does not contain any allegations of hostile conduct during the statutory period. However, in his opposition, plaintiff asserts that he was called "old man" and "bubble man" by employees after being transferred into a small area known as the "bubble." Plaintiff argues that this teasing has been constant since he began working in the "bubble" in July 2002.
This conduct is within the statute of limitations; however, it is not included in the complaint. For purposes of a motion to dismiss, the Court must rely upon the facts pled in plaintiff's complaint, not factual representations in plaintiff's briefs. Therefore, the Court GRANTS defendants' motion to dismiss the first claim with leave to amend on or before February 25, 2005. Plaintiff must allege sufficient facts for each defendant in his Second Amended Complaint, including Obiajulu as an individual.
2. Second cause of a action: retaliation
To establish a prima facie case of retaliation under Title VII, plaintiff must show that (1) he engaged in protected activity; (2) his employer subjected him to an adverse employment action; and (3) the employer's action is causally linked to the protected activity. EEOC v. Dinuba Medical Clinic, 222 F.3d 580, 586 (9th Cir. 2000). Plaintiff alleges that the "temporal proximity of the protected activities and adverse employment actions" demonstrate a causal connection. FAC at ¶ 36.
The two adverse actions alleged by plaintiff during the limitations period are that plaintiff was assigned to the "bubble," a less desirable position, in July 2002, and that plaintiff's requests for leave or a shift change in order to care for a sick family member were denied in October 2002 and January 2003. See FAC at ¶¶ 22-23. Defendants argue that there is at least a five month gap between these adverse employment actions and plaintiff's protected activities. See FAC at ¶ 20.
However, the complaint also contains an allegation that plaintiff notified his superiors of the alleged assault by Obiajulu in April 2002. See FAC at ¶ 21. In his allegation of retaliation, plaintiff alleges that his protests against harassment from other employees subjected him to adverse employment actions. See FAC at ¶ 35. Therefore, the gap between plaintiff's protected activities and the adverse employment actions is only three months. Defendants cite Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997) in support oftheir claim that even three months is not sufficiently close to state a prima facie case of retaliation. However, Richmond was determined on summary judgment. At this stage in the case, plaintiff must only satisfy the requirements of Federal Rule of Civil Procedure 8(a). Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). Therefore, the Court DENIES defendants' motion to dismiss plaintiff's second cause of action for retaliation.
3. Third cause of action: discrimination based on age
Defendants argue that plaintiff's claim of "discrimination based on age" should be dismissed because it is a disparate treatment claim and identical to the fourth cause of action, which is a claim of "disparate treatment" based on race and age. Plaintiff asserts that the third cause of action is not redundant and provides the standard for a prima facie case of age discrimination in support of his argument.
It appears that plaintiff is arguing that the third cause of action is an employment discrimination claim based on age. However, if the third cause of action is an employment discrimination claim, then the fourth cause of action is redundant, as it also brings an employment discrimination claim based on age. Therefore, given the redundancy and confusion created by plaintiff's complaint, the Court GRANTS defendants' motion to dismiss the third cause of action with leave to amend on or before February 25, 2005.
4. Fifth, sixth, seventh and eighth causes of action: state law claims
Defendants move to dismiss all of plaintiff's state law claims because they are barred by plaintiff's failure to comply with the California Tort Claims Act. California Government Code § 945.4 states that "no suit for money or damages may be brought against a public entity . . . until a written claim . . . has been presented to the public entity and has been acted upon by the board . . . or has been deemed rejected by the board. . . ." Plaintiff does not allege that he submitted a written claim to the County of San Mateo in compliance with the Tort Claims Act.
Instead, plaintiff claims that he provided sufficient notice to the County because he filed a grievance with his union after the April 2002 incident with Obiajulu. However, plaintiff does not allege that he provided proper written notice to the government under the Tort Claims Act. It is not enough for the County to have actual notice. "It is well-settled that claims statutes must be satisfied even in the face of the public entity's actual knowledge of the circumstances surrounding the claim. Such knowledge — standing alone — constitutes neither substantial compliance nor basis for estoppel." City of San Jose v. Superior Court, 12 Cal.3d 447, 455 (1974).
Additionally, plaintiff does not allege that his grievance informed the County that he was pursuing litigation against defendants. Instead, plaintiff alleges that the County was on notice because he "followed the proper procedure" to file a grievance. Pl.'s Opp'n at 11. However, a union grievance is not a legal claim. See Cal. Government Code § 910 (providing the requirements of a claim). "The purpose of [claim] statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and settle them, if appropriate, without the expense of litigation." City of San Jose, 12 Cal.3d at 455. Plaintiff presents no authority in support of his assertion, and other courts have found that submission of a complaint to EEOC or FEHA is not sufficient. See Williams v. County of Marin, 2004 WL 2002478, * 11-12 (N.D. Cal. 2004). Therefore, the Court finds that the filing of a union grievance in this case does not satisfy the requirements of the Tort Claims Act. Accordingly, the Court GRANTS defendants' motion as to the state law claims.
Defendants also argue that the sixth, seventh and eighth causes of action, which are based on the February 2002 and April 2002 incidents involving defendant Obiajulu, are barred by the statute of limitations. The Court agrees. See Cal. Civ. Proc. § 335.1 (two year of statute oflimitations for assault); Cal. Civ. Proc. § 340(c) (one year statute of limitations for false imprisonment).
Based on the discussion above, the Court GRANTS defendants' motion to dismiss the fifth, sixth, seventh, and eighth causes of action without leave to amend.
CONCLUSION
For the foregoing reasons and for good cause shown, the Court hereby: 1) GRANTS defendants' motion to dismiss for the first and third causes of action, with leave to amend; 2) DENIES defendants' motion to dismiss for the second cause of action; and 3) GRANTS defendants' motion to dismiss the fifth, sixth, seventh, and eighth causes of action without leave to amend.
Plaintiff's Second Amended Complaint must be filed on or before February 25, 2005.
IT IS SO ORDERED.