dismissing plaintiff’s §§ 1981 and 1981a claims because “neither statute creates a 23 cause of action against federal employees being sued in their official capacities”
How later courts described this case
- dismissing plaintiff’s §§ 1981 and 1981a claims because “neither statute creates a 23 cause of action against federal employees being sued in their official capacities”
- finding plaintiff failed to exhaust administrative remedies 8 because his claim “relie[d] on a different theory and a different statute than his other 9 claims,” and noting that finding otherwise “would reduce the exhaustion requirement to a 10 formality”
- dismissing claims brought under Title VII for discrimination based on age and 21 disability, “neither of which are protected classes under Title VII”
Written by the judges who cited it.
The opinion
1
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 DONALD SIMMONS; JAMES Case No.: 19-CV-1448 JLS (WVG)
TRIPLETT; THERREL GATLING; AND
12
PAUL GONZALES, ORDER GRANTING DEFENDANTS’
13 MOTION TO DISMISS AND
Plaintiffs,
DENYING DEFENDANTS’ MOTION
14
v. FOR A MORE DEFINITE
15 STATEMENT
HONORABLE THOMAS B. MODLY,
16 SECRETARY OF THE NAVY;
(ECF No. 6)
US DEPARTMENT OF DEFENSE;
17
DEPARTMENT OF THE NAVY,
18 UNITED STATES NAVY
DEPARTMENT, AND DOES
19
1 THROUGH 100 INCLUSIVE,
20
Defendants.
21
22
23 Presently before the Court are Defendants’ Motion to Dismiss Plaintiffs’ Complaint
24 and for a More Definite Statement (“Mot.,” ECF No. 6), Plaintiffs’ Opposition to
25 Defendants’ Motion (“Opp’n,” ECF No. 7), and Defendants’ Reply to Plaintiffs’
26 Opposition (ECF No. 8). After considering the Parties’ arguments and the law, the Court
27 GRANTS IN PART AND DENIES IN PART Defendants’ Motion.
28 ///
1 BACKGROUND
2 Plaintiffs are physically disabled Navy veterans currently or formerly employed by
3 Defendants as Police Officer Instructors. ECF No. 1, (“Compl.”) ¶¶ 24–25, 70–71,
4 107–08, 139–40. Plaintiff Donald Simmons’s last day of employment was March 22, 2019,
5 id. ¶ 66, and Plaintiff James Triplett’s last day of employment was February 21, 2019. Id.
6 ¶ 103. Plaintiffs Therrel Gatling and Paul Gonzales remain employed by Defendants. Id.
7 ¶¶ 5–6. Defendants, the Honorable Thomas B. Modly,1 Secretary of the Navy, the United
8 States Department of Defense, the United States Department of the Navy, and the United
9 States Navy Department, were Plaintiffs’ employers at all relevant times. Id. ¶ 7.
10 At the time of their hiring, Plaintiffs disclosed all medical conditions and physical
11 disabilities to their employers. Id. ¶¶ 25, 71, 108, 140. Plaintiffs allege that, beginning in
12 March 2012 and continuing throughout their employment, they experienced harassment,
13 retaliation, discrimination, and a hostile work environment because of their age and
14 physical disabilities. Id. ¶¶ 28, 72, 112, 141. During their employment, Plaintiffs
15 complained to management about “various policy violations,” id. ¶¶ 58, 95, 176,
16 “violations of laws,” id. ¶¶ 58, 95, 76, “hostile or unfair conditions in the work place,” id.
17 ¶ 58, a hostile work environment toward older and disabled workers, id. ¶¶ 58, 95, 176,
18 “mistreatment of disabled workers,” id. ¶ 58, “disability discrimination,” id. ¶¶ 58, 95,
19 “treating people differently because of their health history,” id. ¶¶ 58, 95, “offensive and
20 disrespectful treatment of older workers,” id. ¶¶ 58, 95, 176, “the employer’s negative
21 perceptions of older injured workers,” id. ¶ 58, “disparate treatment,” id. ¶ 95,
22 “mistreatment in the workplace,” id. ¶ 135, and “other violations of laws, statutes or
23 ordinances.” Id. ¶¶ 58, 95, 176. Plaintiffs Simmons, Triplett, and Gonzales also sought
24 assistance from their union. Id. ¶¶ 33, 64, 77, 88, 145.
25
26
1 At the time of filing of the Complaint, the Honorable Richard V. Spencer was Secretary of the United
27
States Department of the Navy and was therefore named as a Defendant. Secretary Spencer has since
28 been succeeded by the Honorable Thomas B. Modly. Accordingly, Acting Secretary Modly is
1 According to the Complaint, Plaintiffs “timely and properly initiated and
2 participated in the employer’s EEO process” and “exhausted their administrative
3 remedies.” Id. ¶¶ 20, 67, 104, 136, 162. In 2013, Plaintiffs Simmons and Gonzales filed
4 EEO complaints “alleging mistreatment, discrimination[,] and harassment in the
5 workplace.” Id. ¶¶ 41, 151. Plaintiffs’ grievances were not resolved through the EEO
6 process. Id. ¶¶ 20, 67, 104, 136, 162.
7 On August 1, 2019, Plaintiffs filed this action against Defendants. See generally id.
8 Plaintiffs bring eighteen causes of action: (1) disparate treatment in violation of Title VII
9 of the Civil Rights Act of 1964 (“Title VII”); (2) hostile work environment in violation of
10 Title VII; (3) retaliation under Title VII; (4) discrimination in violation of the Age
11 Discrimination in Employment Act of 1967 (“ADEA”); (5) violation of Title I of the
12 Americans with Disabilities Act of 1990 (“ADA”); (6) violation of sections 102 and 103
13 of the Civil Rights Act of 1991; (7) violation of the Rehabilitation Act of 1973; (8) violation
14 of ADA regulations; (9) wrongful termination in violation of Title VII; (10) disability
15 discrimination under the California Fair Employment and Housing Act (“FEHA”);
16 (11) failure to provide reasonable accommodation under the FEHA; (12) failure to engage
17 in the interactive process under the FEHA; (13) wrongful termination in violation of public
18 policy; (14) retaliation under the FEHA; (15) age discrimination under the FEHA;
19 (16) disparate treatment under the FEHA; (17) intentional infliction of emotional distress
20 (“IIED”); and (18) violation of California Labor Code § 1102.5. See generally id.
21 ¶¶ 181–254.
22 On November 26, 2019, Defendants filed the instant Motion. See generally Mot.
23 Defendants move to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)
24 all causes of action except Plaintiffs’ seventh cause of action for violation of the
25 Rehabilitation Act. Id. In addition, Defendants request that all references to punitive
26 damages be dismissed, see id. at 22, along with Plaintiffs’ request for compensatory
27 damages under the ADEA. Id. at 22–23. Lastly, Defendants move to dismiss all
28 Defendants except the Honorable Thomas B. Modly, Secretary of the Navy. Id. at 21–22.
1 Defendants also move for a more definite statement under Federal Rule of Civil Procedure
2 12(e) of the Plaintiffs’ Rehabilitation Act claim. See id. at 23–24.
3 LEGAL STANDARDS
4 I. 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction
5 Federal courts are courts of limited jurisdiction, and as such have an obligation to
6 dismiss claims for which they lack subject-matter jurisdiction. Demarest v. United States,
7 718 F.2d 964, 965 (9th Cir. 1983). Rule 12(b)(1) motions may challenge jurisdiction
8 facially or factually. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
9 “In a facial attack, the challenger asserts that the allegations contained in a complaint are
10 insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the
11 challenger disputes the truth of the allegations, that, by themselves, would otherwise invoke
12 federal jurisdiction.” Id. In resolving factual attacks on jurisdiction, the district court “need
13 not presume the truthfulness of the plaintiff’s allegations.” Id.
14 II. 12(b)(6) Motion to Dismiss for Failure to State a Claim
15 A 12(b)(6) motion to dismiss tests the legal sufficiency of the complaint. Fed. R.
16 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The pleading
17 standard requires only “a short and plain statement of the claim showing that the pleader is
18 entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss, however, the
19 claim to relief must be “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S.
20 544, 570 (2007). Although a complaint need not contain “detailed factual allegations,” it
21 must provide more than “‘naked assertions’ devoid of ‘further factual enhancement.’”
22 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555–57). Mere
23 “labels and conclusions, and a formulaic recitation of the elements of a cause of action will
24 not do.” See Twombly, 550 U.S. at 555.
25 When considering a 12(b)(6) motion, the court must accept all material allegations
26 of the complaint and “construe[ them] in the light most favorable to the nonmoving party.”
27 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The court need not
28 assume the truth of “legal conclusions” or “assume that ‘the [plaintiff] can prove facts that
1 [he or she] has not alleged.’” Naigan v. Nana Servs., LLC, No. 12-cv-2648 BAS (NLS),
2 2015 WL 300368, at *1 (S.D. Cal. Jan. 22, 2015) (alterations in original) (citing Assoc.
3 Gen. Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983)).
4 Dismissal may be based on the absence of a cognizable legal theory, or failure to allege
5 sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept.,
6 901 F.2d 696, 699 (9th Cir. 1988). Upon dismissal, the district court should grant leave to
7 amend unless “the pleading could not possibly be cured by the allegation of other facts.”
8 Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
9 III. 12(e) Motion for a More Definite Statement
10 District courts possess broad authority to relieve defendants of “the burden of
11 responding to a complaint with excessive factual detail.” Hearns v. San Bernardino Police
12 Dept., 530 F.3d 1124, 1132 (9th Cir. 2008). Rule 12(e), however, provides that a party
13 may move for a more definite statement only when a pleading “is so vague or ambiguous
14 that the party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). A Rule 12(e)
15 motion is appropriate if the complaint “is so indefinite that the defendant cannot ascertain
16 the nature of the claim being asserted.” C.B. v. Sonora Sch. Dist., 691 F. Supp. 2d 1170,
17 1191 (E.D. Cal. 2010). The motion must be denied if the complaint is sufficiently specific
18 to notify the defendant of the substance of the cause of action. Id. The court may also
19 deny a Rule 12(e) motion if the detail being sought is obtainable through discovery. Id.
20 DISCUSSION
21 I. Motion to Dismiss
22 A. Title VII Disparate Treatment and Wrongful Termination Claims (First and
Ninth Causes of Action)
23
24 Plaintiffs bring their first and ninth causes of action for disparate treatment and
25 wrongful termination in violation of Title VII, 42 U.S.C. §§ 2000e, et seq. See Compl.
26 ¶¶ 181–91, 215–18. Plaintiffs allege that their ages, medical conditions, and physical
27 disabilities were “either the sole reason or a motivating factor” for adverse employment
28 actions against them, including their eventual terminations. Id. ¶¶ 184–85, 216.
1 Title VII prohibits employment discrimination based on an “individual’s race, color,
2 religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added). To
3 establish a prime facie case for disparate treatment under Title VII, a plaintiff must show
4 that “(1) he belongs to a protected class; (2) he was qualified for the position; (3) he was
5 subject to an adverse employment action; and (4) similarly situated individuals outside his
6 protected class were treated more favorably.” Chuang v. Univ. of Cal. Davis, Bd. of Trs.,
7 225 F.3d 1115, 1123–24 (9th Cir. 2000). Similarly, to establish a prima facie case for
8 wrongful termination under Title VII, a plaintiff must show that “(1) he was a member of
9 a protected class; (2) he was performing his job in a satisfactory manner; (3) he suffered
10 an adverse employment action; and (4) other similarly-situated employees who were not
11 members of the protected class were treated more favorably.” Johnson v. Boys & Girls
12 Clubs of Puget Sound, 191 Fed. App’x. 542, 544–45 (9th Cir. 2006).
13 Here, Plaintiffs fail to allege membership of a protected class. Instead, they allege
14 that Defendants engaged in adverse employment actions based on Plaintiffs’ “respective
15 medical conditions and physical disabilities and . . . respective ages.” Compl. ¶ 183.
16 Medical conditions, physical disabilities, and age are not protected under Title VII. See
17 Ross v. Padres LP, No. 17-CV-1676 JLS (JLB), 2018 WL 3126114, at *6 (S.D. Cal. June
18 25, 2018) (dismissing Title VII claims where the plaintiff alleged discrimination based on
19 medical status and age); Montanez v. Educ. Tech. Coll., 660 F. Supp. 2d 235, 243 (D.P.R.
20 2009) (dismissing claims brought under Title VII for discrimination based on age and
21 disability, “neither of which are protected classes under Title VII”). Thus, Plaintiffs have
22 failed to state a claim for disparate treatment or wrongful termination under Title VII. The
23 Court therefore GRANTS Defendants’ Motion as to Plaintiffs’ first and ninth causes of
24 action and DISMISSES WITHOUT PREJUDICE Plaintiffs’ claims for disparate
25 treatment and wrongful termination under Title VII.
26 B. Title VII Hostile Work Environment Claim (Second Cause of Action)
27 In their second cause of action for hostile work environment, Plaintiffs allege
28 Defendants harassed and mistreating them in the work place on the basis of their ages,
1 medical conditions, and physical disabilities, which created a hostile work in violation of
2 Title VII. See Compl. ¶ 189.
3 To establish a prima facie case of hostile work environment, the plaintiff must show
4 that “(1) Defendant subjected him to verbal or physical conduct because of his protected
5 characteristic; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe
6 or pervasive to alter the conditions of his employment and create an abusive working
7 environment.” Gipaya v. Dept. of the Air Force, 345 F. Supp. 3d 1286, 1297 (D. Haw.
8 2018) (citing Surrell v. Cal. Water Servs. Co., 518 F.3d 1097, 1108 (9th Cir. 2008)). Here,
9 Plaintiffs allege that “ageist attitudes and hostility against injured and disabled older
10 workers . . . created a hostile work environment.” Compl. ¶ 189. Again, Plaintiffs attempt
11 to bring a Title VII claim based on their membership in classes that are not protected by
12 Title VII. Because Plaintiffs have failed to allege membership of a protected class, they
13 cannot establish the first element of a hostile work environment claim. Accordingly, the
14 Court GRANTS Defendants’ Motion as to Plaintiffs’ second cause of action and
15 DISMISSES WITHOUT PREJUDICE Plaintiffs’ claim for hostile work environment
16 under Title VII.
17 C. Title VII Retaliation Claim (Third Cause of Action)
18 Plaintiffs bring their third cause of action for retaliation in violation of Title VII. See
19 generally Compl. ¶¶ 192–95. Plaintiffs contend that Defendants subjected them to adverse
20 employment actions because Plaintiffs participated in activities protected under Title VII,
21 including “their opposition to unlawful employment practices.” Id. ¶ 193.
22 Title VII prohibits discrimination against an employee “because he has opposed any
23 practice made an unlawful employment practice by this subchapter, or because he has made
24 a charge, testified, assisted, or participated in any manner in an investigation, proceeding,
25 or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). To state a prima facie case of
26 retaliation, a plaintiff must show that “(1) [he] engaged in a protected activity, (2) [he]
27 suffered an adverse employment action, and (3) there was a causal link between [his]
28 protected activity and the adverse employment action.” Poland v. Chertoff, 494 F.3d 1174,
1 1179–80 (9th Cir. 2007). Defendants argue that Plaintiffs Triplett and Gatling failed to
2 establish the first element of a retaliation claim, see Mot. at 11–12, while Plaintiffs
3 Gonzales and Simmons failed to establish the third element. See id. at 13. The Court is
4 not convinced that any of the Plaintiffs have established the first element.
5 The first element of a retaliation claim is satisfied if the plaintiff (1) has opposed an
6 employment practice made unlawful under Title VII; or (2) has participated in a proceeding
7 under Title VII. Brophy v. Day & Zimmerman Hawthorne Corp., 799 F. Supp. 2d 1185,
8 1199 (D. Nev. 2011) (citing 42 U.S.C. § 2000e-3(a)). Under the opposition clause, the
9 employment practice need not actually be unlawful, as long as the plaintiff’s opposition is
10 based on a “reasonable belief” that the practice is unlawful. Moyo v. Gomez, 40 F.3d 982,
11 984 (9th Cir. 1988) (internal quotation marks omitted). “The opposition clause, by its
12 terms, protects only those employees who opposed what they reasonably perceive as
13 discrimination under the Act.” Learned v. City of Bellevue, 860 F.2d 928, 932 (9th Cir.
14 1988). As to the participation clause, mere participation in an investigation or proceeding
15 involving charges of discrimination does not trigger a claim for retaliation unless the
16 underlying discrimination may “reasonably [be] perceived as discrimination prohibited by
17 Title VII.” Id.
18 The Complaint alleges generally that Plaintiffs “participated in activities protected
19 under federal law [i.e., filing a discrimination complaint, initiating the EEO process,
20 objecting to mistreatment in the work place, filing a complaint for mistreatment due to
21 medical conditions and physical disabilities, union activities, and other whistleblowing].”
22 Compl. ¶ 193. From this language, it is unclear whether Plaintiffs seek to invoke the
23 opposition or participation clause; regardless, Plaintiffs have failed to establish that they
24 engaged in a protected activity under either clause.
25 1. Opposition Clause
26 Plaintiff Triplett alleges that:
27 On numerous occasions during his employment with defendants,
the plaintiff complained to management about various policy
28
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2
existed toward older injured or disabled workers, mistreatment
3 of older injured or disabled workers, disability discrimination,
treating people differently because of their health history,
4
including offensive and disrespectful treatment of older workers,
5 [and] disparate treatment, among other violations of laws,
statutes or ordinances.
6
7 Id. ¶ 95. Plaintiff Simmons makes an almost identical allegation, stating that he made
8 numerous complaints about “the mistreatment of disabled workers, disability
9 discrimination, treating people differently because of their health history, offensive and
10 disrespectful treatment of older workers, [and] the employer’s negative perceptions of
11 older injured workers.” Id. ¶ 58. Similarly, Plaintiff Gonzales alleges that he “complained
12 to ownership, supervisors and management about various policy violations, violations of
13 laws, statutes or ordinances as to conditions in the work place, [and] the hostile
14 environment which existed toward older disabled workers, including offensive and
15 disrespectful treatment of older disabled workers, among other violations of laws, statutes
16 or ordinances.” Id. ¶ 176. Finally, Plaintiff Gatling alleges that “he voiced the foregoing
17 complaints about violations of law, [and] mistreatment in the work place.” Id. ¶ 135.
18 Plaintiffs fail to demonstrate any belief that the employment practices they opposed
19 were made unlawful by Title VII. Other than Gatling, who alleges only generally that he
20 complained about “mistreatment in the work place,” Plaintiffs specifically allege that they
21 complained about the mistreatment of older and disabled workers—classes that are not
22 protected by Title VII. Moreover, Gatling’s vague statement referring to “the foregoing
23 complaints” suggests that he also exclusively opposed mistreatment of older and disabled
24 workers, as most of his factual allegations pertain to age and disability discrimination. See
25 generally id. ¶¶ 106–37. The Court therefore finds that the opposition to employment
26 practices alleged by Plaintiffs does not constitute protected activity under Title VII.
27 ///
28 ///
1 2. Participation Clause
2 Plaintiffs all allege that they “timely and properly initiate[d] and participate[d] in the
3 employer’s EEO process.” Compl. ¶¶ 67, 104, 136, 162. Plaintiffs Simmons and Gonzales
4 additionally allege that they filed EEO complaints in 2013 “alleging mistreatment,
5 discrimination and harassment in the workplace.” Id. ¶¶ 41, 151. Plaintiffs Simmons,
6 Triplett, and Gonzales further allege that they engaged in union activities. Id. ¶¶ 33, 64,
7 77, 88, 145.
8 As with their opposition claims, none of the Plaintiffs assert that their participation
9 in the EEO process pertained in any way to Title VII. Indeed, the absence of any
10 allegations that Plaintiffs belonged to a protected class under Title VII suggests the
11 contrary. Given the extensive allegations that Defendants discriminated against Plaintiffs
12 based on their ages and disabilities, see, e.g., id. ¶¶ 38, 52–54, 58, 91, 95, 99, 132, 163,
13 174, 176, and without specific allegations otherwise, the Court can only assume that
14 Plaintiffs brought only age and disability discrimination claims to the EEOC. Without a
15 reasonable belief that Defendants’ conduct was unlawful under Title VII, Plaintiffs’
16 participation in the EEO process is insufficient to establish the first element of retaliation.
17 And as for Plaintiffs Simmons, Triplett, and Gonzales, specifically, their allegations that
18 they engaged in union activities fail because union activity is also not a protected action.
19 See Cloud v. Brennan, 436 F. Supp. 3d 1290, 1298 (N.D. Cal. 2020). Because Plaintiffs
20 have failed to establish that they engaged in protected activities, the Court GRANTS
21 Defendants’ Motion as to Plaintiffs’ third cause of action and DISMISSES WITHOUT
22 PREJUDICE Plaintiffs’ claim for Title VII retaliation.
23 D. ADEA Claim (Fourth Cause of Action)
24 Plaintiffs bring their fourth cause of action under the Age Discrimination in
25 Employment Act, 29 U.S.C. §§ 621 et seq., alleging that they were subjected to
26 employment discrimination based on age. See Compl. ¶¶ 196–99. Plaintiffs assert that
27 they were each over 40 years old at the time Defendants subjected Plaintiffs to adverse
28 employment actions and, but for Plaintiffs’ ages, Defendants would not have engaged in
1 these actions. Id. ¶ 197. Plaintiffs seek compensatory and punitive damages, costs, and
2 attorney’s fees. Id. ¶ 191.
3 The ADEA makes it unlawful for an employer to “discharge . . . or otherwise
4 discriminate against any individual with respect to his compensation terms, conditions, or
5 privileges of employment, because of such individual’s age.” 29 U.S.C. § 623. A federal
6 employee seeking to bring an ADEA claim in federal court has two options. Under the
7 first option, a plaintiff may file an administrative action with the EEOC and wait 180 days
8 or wait for a final agency determination before bringing an action in district court. Forester
9 v. Chertoff, 500 F.3d 920, 924 (9th Cir. 2007). Under the second option, a plaintiff may
10 bypass administrative proceedings by filing a notice of intent to file a civil action with the
11 EEOC within 180 days of the discriminatory conduct, and then wait 30 days before filing
12 the action directly in district court. Id. Satisfying one of these options is a prerequisite to
13 bringing a civil action in district court. Sisco v. Jewell, No. CV 14-08057 PCT MEA, 2015
14 WL 11182028, at *5 (D. Ariz. Jan. 29, 2015).
15 Plaintiffs allege generally that they complied with the EEO process, see Compl. ¶ 20,
16 but do not specifically allege that they pursued either prerequisite option. Defendants
17 assert that Plaintiffs did not allege age discrimination in their initial EEO contacts and
18 formal EEO complaints and, therefore, Plaintiffs have not exhausted their administrative
19 remedies. See Mot. at 14–16. In support of this assertion, Defendants direct the Court to
20 Plaintiffs’ EEO complaints attached to their Motion. 2 See ECF No. 6-3.
21
22 2 Plaintiffs urge the Court not to consider these Exhibits when assessing the sufficiency of the Complaint.
See Opp’n at 5–6. Ordinarily, a court may not consider extra-pleading materials without converting a
23
12(b)(6) motion into a motion for summary judgment. Fed. R. Civ. P. 12(d). In ruling on a 12(b)(6)
24 motion, however, Courts may consider extra-pleading documents where the contents of the documents are
alleged in the complaint and the authenticity of the documents is not in question. See Branch v. Tunnell,
25 14 F.3d 449, 454 (9th Cir. 1994). For example, in Cloud v. Brennan, 436 F. Supp. 3d 1290, 1303 (N.D.
Cal. 2020), the court took judicial notice of official records of EEO proceedings to determine whether the
26 plaintiff had administratively exhausted her discrimination claim because the documents were referenced
in plaintiff’s supplemental affidavit and were “likely essential to [the plaintiff’s] claims.” Here, Plaintiffs
27
reference their EEO proceedings numerous times throughout the complaint, Compl. ¶¶ 20, 41, 59, 67, 96,
28 104, 129, 136, 151, 162, 171, 179, and neither party disputes the authenticity of the Exhibits. Accordingly,
1 In their initial contacts, Plaintiffs checked only “Physical Disability” as the basis of
2 their complaint, leaving the box for “Age” unchecked. See Mot. Exs. 1, 11, 19, 27. In their
3 formal EEO complaints, Plaintiffs again left “Age” unchecked as to the basis of the
4 complaint, and proceeded instead on theories of physical disability discrimination and
5 reprisal. See id. Exs. 2, 12, 20, 28. Having reviewed these documents, the Court finds that
6 Plaintiffs have not exhausted their administrative remedies. See, e.g., Leong v. Potter, 347
7 F.3d 1117, 1122 (9th Cir. 2003) (finding plaintiff failed to exhaust administrative remedies
8 because his claim “relie[d] on a different theory and a different statute than his other
9 claims,” and noting that finding otherwise “would reduce the exhaustion requirement to a
10 formality”). Plaintiffs also do not allege anywhere in the Complaint that they filed a notice
11 of intent to sue, see generally Compl., so they have not satisfied their prerequisite for
12 bypassing administrative proceedings. Accordingly, Plaintiffs’ ADEA claim must be
13 dismissed.3
14 The Court therefore GRANTS Defendants’ Motion as to Plaintiffs’ fourth cause of
15 action and DISMISSES WITHOUT PREJUDICE Plaintiffs’ ADEA claims.
16 E. ADA Claims (Fifth and Eighth Causes of Action)
17 Plaintiff’s fifth and eighth causes of action assert that Plaintiffs are entitled to
18 recovery under the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq., because
19 Defendants discriminated against Plaintiffs on the basis of Plaintiffs’ disabilities. See
20 generally Compl. ¶¶ 200–03, 211–14. Defendants assert that the federal government is not
21 subject to suit under the ADA, see Mot. at 16, and request dismissal for lack of jurisdiction
22 and failure to state a claim. See id. at 17. In response, Plaintiffs voluntarily dismiss their
23
24
25 3 Defendants also request that the Court dismiss all references to compensatory and punitive damages
under the ADEA claim. See Mot. at 22–23. Compensatory and punitive damages are not available under
26 the ADEA. Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1059 (9th Cir. 2009). Under the
ADEA, a plaintiff may only seek “‘judgments compelling employment, reinstatement, or promotion,’ the
27
recovery of unpaid minimum wages or overtime pay, and reasonable attorneys’ fees and costs.” Id. (citing
28 29 U.S.C. §§ 216(b), 626(b)). For this reason, all references to compensatory and punitive damages under
1 fifth and eighth causes of action against Defendants. See Opp’n at 23. Accordingly, the
2 Court GRANTS Defendants’ Motion as to Plaintiffs’ fifth and eighth causes of action and
3 DISMISSES Plaintiffs’ claims under the ADA.
4 F. Civil Rights Act of 1991 Claim (Sixth Cause of Action)
5 Plaintiffs bring their sixth cause of action for violation of the Civil Rights Act of
6 1991, 42 U.S.C. §§ 1981 and 1981a. See generally Compl. ¶¶ 204–06. Plaintiffs assert
7 that Defendants’ unlawful employment practices directly caused Plaintiffs to suffer
8 economic and non-economic damages and, therefore, Plaintiffs are entitled to
9 compensatory and punitive damages under § 1981 and §1981a. Id. ¶¶ 205–06. Defendants
10 move to dismiss this cause of action on the grounds that § 1981 and § 1981a do not create
11 independent causes of action. See Mot. at 17. Defendants further assert that Plaintiffs are
12 not entitled to punitive damages for their claims under Title VII, the Rehabilitation Act,
13 and the ADEA, so they cannot recover such damages under § 1981 and § 1981a. Id. at
14 17–18.
15 Defendants are correct that Plaintiffs’ sixth cause of action fails because these
16 sections do not create an independent cause of action. See Chiang v. Gonzales, No. CV
17 05-03273 MMM (Ex), 2005 WL 8168158, at *13 (E.D. Cal. Dec. 7, 2005). According to
18 the “plain language of the statute . . . [§ 1981a] merely provides an additional remedy for
19 ‘unlawful intentional discrimination . . . prohibited under . . . 42 U.S.C. § 2000e-2 or 2000e-
20 3.’” Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998) (citing 42 U.S.C.
21 §1981a(1)(1)); see also Daniels v. Donahoe, 901 F. Supp. 2d 1238, 1246–47 (D. Haw.
22 2012) (dismissing plaintiff’s §§ 1981 and 1981a claims because “neither statute creates a
23 cause of action against federal employees being sued in their official capacities”).
24 Plaintiffs themselves concede that these sections do not provide an independent
25 cause of action, but they argue that they can rely on § 1981a to recover additional remedies
26 for their Rehabilitation Act claim. See Opp’n at 19–21. Indeed, remedies for violations of
27 the Rehabilitation Act are governed by §1981(a)(2). McCoy v. Dept. of the Army, No. CIV.
28 S-09-1973 LKK/CMK, 2011 WL 6749806, at *3 (E.D. Cal. Dec. 22, 2011). Accordingly,
1 Plaintiffs may seek compensatory damages within the limits established in §1981a pursuant
2 to their Rehabilitation Act claim. See 42 U.S.C. §1981a(b).
3 Plaintiffs, however, mistakenly assert that § 1981a(2) allows them to recover
4 punitive damages against Defendants. See Opp’n at 20. Plaintiffs overlook § 1981a(b)(1),
5 which provides that “[a] complaining party may recover punitive damages under this
6 section against a respondent (other than a government, government agency or political
7 subdivision).” (emphasis added). Because Defendants are government entities, Plaintiffs
8 cannot recover punitive damages from Defendants under § 1981a.
9 For the reasons stated above, the Court GRANTS Defendants’ Motion as to
10 Plaintiffs’ sixth cause of action and DISMISSES WITHOUT PREJUDICE Plaintiffs’
11 claims under §§ 1981 and 1981a. Plaintiffs may still recover compensatory, but not
12 punitive damages, under § 1981a for their Rehabilitation Act claim.
13 G. FEHA and California Labor Code Claims (Tenth through Sixteenth and
Eighteenth Causes of Action)
14
15 In their tenth through sixteenth causes of action, Plaintiffs allege numerous
16 violations of California’s Fair Employment and Housing Act, Cal. Gov. Code §§ 12940 et
17 seq. See generally Compl. ¶¶ 219–46. In their eighteenth cause of action, Plaintiffs allege
18 a violation of California Labor Code section 1102.5. Id. ¶¶ 251–54. These state law claims
19 are founded on the assertion that Defendants discriminated against Plaintiffs on the basis
20 of age and physical disabilities. See id. ¶¶ 219–46, 251–54.
21 Defendants move to dismiss Plaintiffs’ FEHA and California Labor Code claims
22 because Defendants are protected by sovereign immunity. See Mot. at 18–20. As a
23 sovereign, the United States is immune from suit unless it has “unequivocally expressed”
24 a waiver of such immunity and consented to be sued. Gilbert v. DaGrossa, 756 F.2d 1455,
25 1458 (9th Cir. 1985). A party cannot bypass sovereign immunity simply by naming
26 officers and employees of the United States as defendants. Id. As the parties bringing suit
27 against the federal government, Plaintiffs “bear[] the burden of showing an unequivocal
28 waiver of immunity.” Baker v. United States, 817 F.2d 560, 562 (9th Cir. 1987). “Waivers
1 of immunity must be strictly construed in favor of the sovereign.” United States v. Trident
2 Seafoods Corp., 92 F.3d 855, 864 (9th Cir. 1996).
3 Plaintiffs assert that Congress waived the government’s sovereign immunity in the
4 Federal Tort Claims Act (“FTCA”). See Opp’n at 21–22. The FTCA gives district courts
5 exclusive jurisdiction over civil actions “against the United States . . . for injury or loss of
6 property, or personal injury or death caused by the negligent or wrongful act or omission
7 of any employee of the Government while acting within the scope of his office or
8 employment.” 28 U.S.C. § 1346(b)(1). Plaintiffs do not cite any authority in support of
9 their argument that the FTCA waives sovereign immunity for employment causes of action.
10 See Opp’n at 23–24. The FTCA applies to tort causes of action; nothing in the plain
11 language of the statute suggests that Congress intended to waive sovereign immunity in
12 employment actions brought under state law.
13 Moreover, the Ninth Circuit has made clear that the ADEA “is the exclusive remedy
14 for age discrimination claims by federal employees.” Ahlmeyer v. Nev. Sys. of Higher
15 Educ., 555 F.3d 1051, 1075 n.5 (9th Cir. 2009). Thus, Plaintiffs’ “claims for discrimination
16 and retaliation under state law fail and must be addressed under . . . the ADEA.” See Bernal
17 v. U.S. Postal Serv., No. 120CV0829AWIJLT, 2020 WL 3453525, at *3 (E.D. Cal. June
18 24, 2020).
19 For these reasons, the Court GRANTS Defendants’ Motion as to Plaintiffs’ tenth
20 through sixteenth, and eighteenth causes of action and DISMISSES WITHOUT
21 PREJUDICE Plaintiffs’ FEHA and California Labor Code claims.
22 H. IIED Claim (Seventeenth Cause of Action)
23 Plaintiffs bring their seventeenth cause of action for Intentional Infliction of
24 Emotional Distress, alleging that Defendants employment practices disproportionately
25 impacted employees 40 years of age or older, including Plaintiffs, causing “economic and
26 non-economic damages.” See Compl. ¶¶ 247–50. Defendants argue that Plaintiff’s IIED
27 claim should be dismissed because Plaintiffs failed to exhaust their administrative remedies
28 under the FTCA prior to filing suit. See Mot. at 20–21.
1 “The FTCA is the exclusive remedy for tortious conduct by the United States.”
2 F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th Cir. 1992). In order to bring an FTCA claim
3 against the United States, a plaintiff must first file his claim with an appropriate federal
4 agency. Jerves v. U.S., 966 F.2d 517, 519 (9th Cir. 1992). Although Plaintiffs allege
5 generally that they have gone through the EEO process, see Compl. ¶ 20, they do not allege
6 that their EEO proceedings contained any claim for IIED. See generally id. Plaintiffs do
7 not even mention the FTCA in their Complaint, leaving the Court unable to assume that
8 they complied with the FTCA’s administrative procedures. Accordingly, the Court
9 GRANTS Defendants’ Motion as to Plaintiffs’ seventeenth cause of action and
10 DISMISSES WITHOUT PREJUDICE Plaintiffs’ claims for IIED.
11 I. Claims against the Federal Agencies
12 Defendants argue that the Secretary of the Navy is the only proper defendant in this
13 case. See Mot. at 21. “[A]ctions based upon federal discrimination are to be brought
14 against the director of the agency concerned.” White v. Gen. Servs. Admin., 652 F.2d 913,
15 916 n.4 (9th Cir. 1981) (citing 42 U.S.C. § 2000-e16(c)). Plaintiffs have agreed to amend
16 their Complaint to reflect the Secretary of the Navy as the only defendant. Opp’n at 22.
17 Accordingly, the Court GRANTS Defendants’ Motion and DISMISSES all claims against
18 the United States Department of Defense, the United States Department of the Navy, and
19 the United States Navy Department, and DOES 1 through 100.
20 II. Motion for a More Definite Statement
21 Defendants do not move to dismiss Plaintiffs’ seventh cause of action under Rule
22 12(b)(6); instead, they move for a more definite statement under Rule 12(e). See Mot. at
23 23–24. Plaintiffs’ seventh cause of action is for violation of sections 501 and 503 of the
24 Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. See generally Compl. ¶¶ 207–09.
25 The Rehabilitation Act protects qualified individuals with disabilities from being
26 discriminated against because of such disabilities under programs receiving Federal
27 financial assistance and programs conducted by an Executive agency. See 29 U.S.C. § 794.
28 ///
1 Defendants request that the Court require Plaintiffs allege facts that, “at a minimum,
2 identifies the specific allegations and claims being brought on behalf of each plaintiff.” Id.
3 at 24. Defendants contend that a more definite statement is necessary because preparing
4 an answer to the operative Complaint “would impose an unreasonably onerous burden on
5 Defendants.” See id. at 23.
6 Plaintiffs’ Complaint includes nearly 80 pages of factual allegations describing the
7 events leading up to this litigation. See generally Compl. at 12–87. The Complaint
8 separates factual allegations pertaining to each Plaintiff and provides dates for most of the
9 alleged events. See generally id. Under the Rehabilitation Act cause of action, the
10 Complaint states, “[t]he plaintiffs claim that their respective record of disability was the
11 reason for the defendants’ decision to discharge them or to otherwise engage in adverse
12 employment actions towards each of them.” Id. ¶ 94. From these allegations, Defendants
13 can certainly “ascertain the nature of the claim.” See Sonora Sch. Dist., 691 F. Supp. 2d at
14 1191. Although the Complaint is lengthy and, at times, redundant, it is not “so vague or
15 ambiguous” as to warrant a more definite statement. See Fed. R. Civ. P. 12(e).
16 Accordingly, the Court DENIES Defendants’ Motion for a more definite statement of
17 Plaintiffs’ seventh cause of action for violation of the Rehabilitation Act.
18 CONCLUSION
19 For the reasons articulated above, the Court GRANTS IN PART AND DENIES
20 IN PART Defendants’ Motion (ECF No. 6). Specifically, the Court DISMISSES
21 WITHOUT PREJUDICE Plaintiffs’ first, second, third, fourth, fifth, sixth, eight, ninth,
22 tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, and
23 eighteenth causes of action. The Court DISMISSES WITHOUT PREJUDICE
24 Defendants the United States Department of Defense, the United States Department of the
25 Navy, and the United States Navy Department, and DOES 1 through 100 as to the
26 remaining cause of action. The Court DENIES Defendants’ Motion for a More Definite
27 Statement as to seventh cause of action under the Rehabilitation Act. Plaintiffs MAY
28 FILE an amended complaint within thirty (30) days of the electronic docketing of this
1 || Order. If Plaintiffs fail to file an amended complaint by that deadline, this case will proceed
2 || as to Plaintiffs’ remaining cause of action.
3 IT IS SO ORDERED.
4 ||Dated: August 18, 2020 tt ,
5 jen Janis L. Sammartino
6 United States District Judge
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