# Jones v. Lewis > District Court, N.D. California · October 20, 2020 URL: https://www.frixlaw.com/law-library/cases/10065510 ## Case - **Court:** District Court, N.D. California - **Decided:** October 20, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10065510 ## How later opinions describe it (automated extraction) - holding that a court may 19 consider “all claims of discrimination that fall within the scope of the EEOC’s actual investigation 20 or an EEOC investigation that could reasonably be expected to grow out of the charge.” ## Opinion text 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DOLLENE JONES, Case No. 20-cv-00385-SI 8 Plaintiff, ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AMENDED 9 v. COMPLAINT AND GRANTING LEAVE TO AMEND; DENYING 10 JEFFREY LEWIS, et al., PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL; 11 Defendants. DENYING PLAINTIFF’S MOTION TO COMPEL AS PREMATURE 12 Re: Dkt. Nos. 13, 15 & 25 13 14 15 Defendants’ motion to dismiss the amended complaint is scheduled for a hearing on 16 November 6, 2020. Pursuant to Civil Local Rule 7-1(b), the Court determines that the matter is appropriate for resolution without oral argument and VACATES the hearing. For the reasons set 17 forth below, the Court GRANTS defendants’ motion and GRANTS plaintiff leave to amend. The 18 Court also DENIES plaintiff’s request for appointment of counsel1 and DENIES plaintiff’s motion 19 to compel discovery as premature. If plaintiff is able to state a claim, the Court will hold a case 20 management conference and set a schedule for discovery. 21 22 BACKGROUND 23 Plaintiff Dollene Jones, who is representing herself, filed this lawsuit on January 17, 2020, 24 and filed an amended complaint on June 22, 2020. The amended complaint alleges that plaintiff is 25 a former employee of AC Transit District and that she retired in 2010. The amended complaint 26 27 1 names four individual defendants (Jeffrey Lewis, Davis Riemer, Hugo Wildmann, and Curtis Lim), 2 all of whom are alleged to be members of the AC Transit Retirement Board. 3 The amended complaint states that plaintiff is Black, female and a lesbian, and that she has 4 been discriminated against on account of her race, color and gender/sex. First Amended Compl. 5 Sections 3 & 4. Plaintiff alleges that defendants discriminated against her by temporarily “holding 6 back” a portion of her retirement benefits because plaintiff had previously registered two different 7 same-sex domestic partnerships with the AC Transit Employees’ Retirement System, despite the 8 fact that she provided “proof from the Secretary of State of California . . . that showed she was not 9 declared domestic partnered with anyone.” Id. at Section 2.2 Plaintiff alleges that it “took 4 or 5 10 months” to receive the amount that had been withheld, and that she is the “only lesbian pensioner 11 to have (2) holdbacks.” Id. at Section 3. The amended complaint mentions a June 20, 2019 meeting 12 of the AC Retirement Benefits Board at which defendant Reimer spoke about his “morals,” although 13 the complaint does not specify what Reimer said. Id. Plaintiff also alleges that the “benefit 14 calculations starting with part-time hours and adjusted pension start date are off.” Id. 15 The amended complaint alleges claims under Title VII of the Civil Rights Act of 1964, the 16 Employment Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1140 et seq., and state law 17 claims for intentional infliction of emotional distress and the California Fair Employment and 18 Housing Act. Defendants have moved to dismiss all claims alleged in the amended complaint.3 19 20 2 Plaintiff has attached an April 19, 2019 letter from defendant Lim to plaintiff in which Mr. Lim states, “When you retired . . . , I explained to you that we would hold back a portion of your 21 pension due to your separation from your ex-domestic partners, Michele Reid and Tracey Rock. You have been receiving a monthly pension benefit of $1,708 per month. This retirement benefit 22 was calculated based on the information provided to us of the estimated time you and Michele, as well as Tracey were together. . . .” As noted in the complaint, plaintiff eventually received the 23 withheld amounts. 24 3 Defendants attached various documents to the motion to dismiss. Defendants did not seek judicial notice of these documents. In the event plaintiff amends the complaint and defendants file 25 another motion to dismiss, the Court advises defendants of the following: As a general rule, the Court may not consider materials beyond the pleadings when ruling on a Rule 12(b)(6) motion. Lee 26 v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). However, the Court may take judicial notice of some public records, including the ‘records and reports of administrative bodies.’” United 27 States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (citing Interstate Nat. Gas Co. v. S. Cal. Gas 1 LEGAL STANDARD 2 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if 3 it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 4 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” 5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires 6 the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted 7 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require “heightened 8 fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a right to relief above the 9 speculative level.” Twombly, 550 U.S. at 544, 555. While a court deciding a motion to dismiss 10 must take a complaint’s well-pleaded factual allegations as true, it also must determine, relying on 11 its “judicial experience and common sense,” whether those allegations amount to a “plausible” 12 claim. Iqbal, 556 U.S. at 664. 13 If the Court dismisses the complaint, it must then decide whether to grant leave to amend. 14 The Ninth Circuit has “repeatedly held that a district court should grant leave to amend even if no 15 request to amend the pleading was made, unless it determines that the pleading could not possibly 16 be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) 17 (citations and internal quotation marks omitted). 18 19 DISCUSSION 20 I. Title VII 21 Defendants move to dismiss plaintiff’s Title VII claim on several grounds. Defendants 22 contend that plaintiff has not shown that she has exhausted her administrative remedies with respect 23 to her Title VII claim and thus that the Court lacks subject matter jurisdiction. Defendants note that 24 the “Right to Sue” letter from the Equal Employment Opportunity Commission (“EEOC”) that 25 plaintiff attached to her amended complaint refers to “AC Transit” as the respondent, and does not 26 mention any of the individual defendants. Defendants also assert that AC Transit is a separate legal 27 entity from the AC Transit Retirement Board, and that the complaint does not allege that the 1 letter does not contain any information about the substance of the charge that plaintiff filed with the 2 EEOC, and thus that it is not clear whether plaintiff has exhausted her administrative remedies with 3 respect to her claims about payment of her retirement benefits. Defendants also contend that the 4 amended complaint does not state a claim for discrimination under Title VII because plaintiff does 5 not allege that defendants intentionally discriminated against her on account of a protected 6 characteristic. 7 As an initial matter, although defendants frame the exhaustion argument as jurisdictional, 8 the Supreme Court has recently held that “Title VII’s charge-filing requirement is a processing rule, 9 albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of 10 courts.” Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1851 (2019). Nevertheless, plaintiff must allege 11 compliance with this mandatory processing rule in order to state a claim on which relief may be 12 granted. See Williams v. Wolf, No. 19-CV-00652-JCS, 2019 WL 6311381, at *6 (N.D. Cal. Nov. 13 25, 2019). In order to satisfy this requirement, the allegations of plaintiff’s complaint must be “like 14 or reasonably related to the allegations” in the administrative complaint submitted to the EEOC, 15 such that they would fall within “the scope of an EEOC investigation which [could] reasonably be 16 expected to grow out of the [administrative] charge of discrimination.” Sosa v. Hiraoka, 920 F.2d 17 1451, 1456 (9th Cir. 1990) (citations, internal quotation marks, and emphasis omitted); see also 18 Vasquez v. County of Los Angeles, 349 F.3d 634, 644 (9th Cir. 2003) (holding that a court may 19 consider “all claims of discrimination that fall within the scope of the EEOC’s actual investigation 20 or an EEOC investigation that could reasonably be expected to grow out of the charge.”). 21 The Court is unable to determine whether plaintiff has satisfied the mandatory claims 22 processing rule because plaintiff did not attach the administrative charge to her complaint. If 23 plaintiff amends the Title VII claim, plaintiff shall attach the charge to the amended complaint. In 24 addition, the Court notes that the amended complaint seeks damages against the individual 25 defendants. However, the Ninth Circuit has held that individual supervisors cannot be held liable 26 under Title VII. See Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 589 (9th Cir. 1993) (holding 27 Congress imposed liability only on employers under Title VII and the ADEA, not individuals); see 1 liability for employment discrimination does not extend to individual agents of the employer who 2 committed the violations, even if that agent is a supervisory employee.”). 4 3 With regard to the merits of the Title VII claim, the Court agrees with defendants that 4 plaintiff has not alleged that defendants intentionally discriminated against her on account of her 5 race, color or sex/gender. “Disparate treatment occurs ‘where an employer has treated a particular 6 person less favorably than others because of a protected trait.’” Ricci v. DeStefano, 557 U.S. 557, 7 577 (2009) (internal quotation marks and alterations omitted). “A disparate-treatment plaintiff must 8 establish that the defendant had a discriminatory intent or motive for taking a job-related action.” 9 Id. (internal quotation marks omitted). “A discriminatory motive may be established by the 10 employer’s informal decisionmaking or ‘a formal, facially discriminatory policy,’ but ‘liability 11 depends on whether the protected trait . . . actually motivated the employer’s decision.’” Wood v. 12 City of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012) (quoting Hazen Paper Co. v. Biggins, 507 13 U.S. 604, 610 (1993)). “It is insufficient for a plaintiff alleging discrimination under the disparate 14 treatment theory to show the employer was merely aware of the adverse consequences the policy 15 would have on a protected group.” Am. Fed'n of State, Cnty., & Mun. Emps. v. Washington, 770 16 F.2d 1401, 1405 (9th Cir.1985). 17 The amended complaint does not contain any allegations that plaintiff was treated differently 18 because she is Black or female. The amended complaint does allege that defendants temporarily 19 held back a portion of her retirement benefits because plaintiff had previously registered two same- 20 sex domestic partners, thus suggesting that plaintiff believes that she was discriminated against on 21 account of sexual orientation. However, plaintiff does not allege that defendants withheld her 22 retirement benefits because she is a lesbian. Instead, the amended complaint and the materials 23 attached thereto indicate that the amounts were initially withheld because plaintiff had registered 24 two domestic partners; a policy regarding treatment of domestic partners with regard to retirement 25 benefits is a facially neutral policy. “Where, as here, a plaintiff is challenging a facially neutral 26 27 4 In addition, the Court notes that plaintiff alleges that she formerly worked for AC Transit, 1 policy, there must be a specific allegation of discriminatory intent.” Wood, 678 F.3d at 1081 2 (affirming dismissal of disparate treatment claim under Title VII where plaintiff alleged that facially 3 neutral surviving spouse retirement benefit discriminated against women based on the theory that in 4 the aggregate, the defendant paid more to married retirees who selected surviving spouse benefits 5 than to single retirees, and male employees were more likely to be married). 6 Accordingly, the Court GRANTS defendants’ motion to dismiss plaintiff’s Title VII claim. 7 If plaintiff amends this claim, in addition to attaching her EEOC charge, plaintiff shall specifically 8 allege how defendants intentionally discriminated against her on the basis of a protected 9 characteristic. 10 11 II. ERISA 12 Although somewhat unclear, it appears that plaintiff’s ERISA claim is based on her 13 allegation that defendants have miscalculated her retirement benefits by not giving her credit for 14 part-time hours and using an incorrect pension start date. Defendants assert that “[t]he A.C. Transit 15 District Retirement Plan is not regulated by or subject to ERISA. As a Plan providing retirement 16 benefits to public employees of a governmental District of the State of California this Plan is 17 regulated by Section 17 of Article XVI, of the California Constitution.” Defs’ Mtn. at 15. Plaintiff’s 18 opposition does not address her ERISA claim, although the opposition continues to assert that 19 plaintiff’s retirement benefits have been improperly calculated. 20 Because plaintiff’s opposition does not address her ERISA claim, it is not clear whether 21 plaintiff intends to pursue this claim. If plaintiff amends the complaint and wishes to pursue an 22 ERISA claim, the amended complaint shall specifically allege how defendants have violated 23 ERISA, including citing relevant portions of the statute. In the event plaintiff pursues an ERISA 24 claim and defendants move to dismiss this claim, defendants shall cite authority for the proposition 25 that the AC Transit Retirement Plan is not subject to ERISA. 26 27 III. State law claims 1 address defendants’ arguments in favor of dismissal of the state law claims. See generally Ove v. 2 || Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (“A court may decline to exercise supplemental 3 || jurisdiction over related state-law claims once it has ‘dismissed all claims over which it has original 4 || jurisdiction.’ 28 U.S.C. § 1367(c)(3).” 5 6 CONCLUSION 7 For the foregoing reasons, the Court GRANTS defendants’ motion to dismiss and GRANTS 8 || plaintiff leave to amend. If plaintiff wishes to amend the complaint, she must do so no later than 9 November 2, 2020. The Court encourages plaintiff to contact the Pro Se Help Desk at (415) 782- 10 || 8982 to seek assistance with amending the complaint. 11 IT IS SO ORDERED. Gute Seite || Dated: October 20, 2020 SUSAN ILLSTON 15 United States District Judge 16 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10065510. Public record. Not legal advice.