Freeman v. Cnty. of Sacramento Dep't of Human Assistance

BENNIE FREEMAN, Plaintiff, v. COUNTY OF SACRAMENTO DEPARTMENT OF HUMAN ASSISTANCE, et. al., Defendants.

No. 2:19-cv-02418-KJM-CKD PS

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

May 19, 2020

ORDER

Before the court is defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12.) Plaintiff filed an opposition, (ECF No. 13), and defendant filed a reply. (ECF No. 14.) Upon review of the documents in support and opposition, the court finds as follows:

BACKGROUND

Plaintiff Bennie Freeman asserts seven causes of action against the County of Sacramento Department of Human Assistance ("County") alleging racial discrimination and harassment under Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act ("FEHA"). The complaint's factual allegations are sparse, but plaintiff generally alleges that during his fifteen-year tenure working for the County, he has repeatedly been denied promotional positions because he is African American. (ECF No. 1.) Defendant asks this court to dismiss the complaint in its entirety under Rule 12(b)(6) because (1) plaintiff improperly attempts to assert a class action; (2) plaintiff has not sufficiently alleged that he exhausted his administrative remedies before filing suit; and (3) plaintiff's factual allegations fail to state a claim upon which relief can be granted. (ECF No. 12.)

LEGAL STANDARD

In considering a motion to dismiss for failure to state a claim upon which relief can be granted, the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 94 (2007), and construe the pleading in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to avoid dismissal for failure to state a claim, a complaint must contain more than "naked assertions," "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57 (2007). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, a claim upon which the court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. In ruling on a motion to dismiss pursuant to Rule 12(b), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007).

ANALYSIS

1. Plaintiff's class claims should be dismissed.

With respect to plaintiff's disparate treatment claim under Title VII, plaintiff appears to be attempting to assert a class action by alleging that "[t]his claim is brought by plaintiffs on behalf of themselves and the class they seek to represent." (ECF No. 1 ¶ 17.) Plaintiff has made no motion pursuant to Federal Rule of Civil Procedure 23 asking the court to certify this case as a class action. In addition, plaintiff is a non-lawyer proceeding without counsel and admits that he "is not an individual schooled in the law." (ECF No. 1 at 1.) It is well established that alayperson cannot ordinarily represent the interests of a class. See McShane v. United States, 366 F.2d 286, 288 (9th Cir. 1966). Although a plaintiff "may appear in propria persona in his own behalf, that privilege is personal to him." Id. (citing 28 U.S.C. § 1654). "He has no authority to appear as an attorney for others than himself." Id.; see Hallford v. California Corr. Peace Officers Ass'n, No. CIVS061081, 2007 WL 3046047, at *5 (E.D. Cal. Oct. 18, 2007). To the extent plaintiff is attempting to assert a disparate treatment claim on behalf of class members, plaintiff's claim should be dismissed.

2. Plaintiff has sufficiently alleged that he exhausted his administrative remedies under Title VII and the FEHA.

Title VII and the FEHA require a plaintiff to exhaust his administrative remedies before filing suit. Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001) (citing 42 U.S.C. § 2000e-16(c)); Yurick v. Superior Court, 209 Cal. App. 3d 1116, 1121 (1989) (citing Cal. Gov't Code § 12960(d)). A plaintiff exhausts his administrative remedies by timely filing a charge with the EEOC or the DFEH, thereby affording the agency an opportunity to investigate the charge. See Fort Bend Cty., Tex. v. Davis, 139 S. Ct. 1843, 1851 (2019) (citing 42 U.S.C §§ 2000e-5(b), (e)(1)). The EEOC and the DFEH have entered into a work-sharing agreement, such that a plaintiff who exhausts his administrative remedies under Title VII also exhausts his remedies under the FEHA. McCarthy v. R.J. Reynolds Tobacco Co., 819 F. Supp. 2d 923, 935 (E.D. Cal. 2011). A plaintiff must allege compliance with the exhaustion requirement in order to state a claim on which relief may be granted. See Cloud v. Brennan, No. 19-CV-04638, 2020 WL 533003, at *7 (N.D. Cal. Feb. 3, 2020).

Defendant argues that plaintiff has not properly alleged compliance with the exhaustion requirements. Since plaintiff does not attach a copy of the administrative charge to his complaint, defendant argues that he must specifically plead the date he filed his charge and the dates of the alleged discriminatory acts. Otherwise, defendant says, it is "impossible" to determine whether plaintiff properly exhausted his remedies and timely complained to the EEOC. (ECF No. 12 at 5.)

///// Although it would be helpful to know the timeline of events and the contents of the EEOC charge, plaintiff's exhaustion allegations are sufficient. The complaint alleges that plaintiff "has exhausted his administrative remedies and complied with all statutory prerequisites to Title VII claims." (ECF No. 1 ¶ 16.) It further alleges that he "filed a charge of discrimination and retaliation individually and on behalf of himself with the [EEOC and] the EEOC issued a Notice of Right to Sue." (ECF No. 1 ¶ 16.) These allegations are enough to survive a motion to dismiss under Rule 12(b)(6). See U.S. E.E.O.C. v. Farmers Ins. Co., 24 F. Supp. 3d 956, 965 (E.D. Cal. 2014) (Plaintiff sufficiently alleged exhaustion of administrative remedies by pleading that "all conditions precedent to the institution of this [Title VII] lawsuit have been fulfilled."); see also Okeke v. Biomat USA, Inc., 927 F. Supp. 2d 1021, 1025 (D. Nev. 2013) (Plaintiff's allegations that he "filed his Charges of Discrimination with the EEOC and received a copy of his Right to Sue notice" were sufficient). Accordingly, plaintiff has sufficiently alleged exhaustion under Title VII and the FEHA.¹

3. Plaintiff has not alleged sufficient facts to support his Title VII and FEHA claims.

In addition, defendant argues that plaintiff fails to allege sufficient factual information to state plausible claims for relief under Title VII and the FEHA. (ECF No. 12 at 5-6.) To state a plausible claim for relief under Title VII and the FEHA, a plaintiff need not plead each element of a prima facie discrimination case. Swierkiewicz v. Sorema N.A., 534 U.S. 505, 514-15 (2002); see also Sheppard v. David Evans & Assocs., 694 F.3d 1045, 1050 n. 2 (9th Cir. 2012) (citing Swierkiewicz favorably after Iqbal and Twombly). Nevertheless, courts look to the prima facie elements to analyze a motion to dismiss, so as to decide, in light of judicial experience and common sense, whether the challenged complaint contains sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Sheppard, 964 F.3d at 1050 n. 2; Achalv. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 796-97 (N.D. Cal. 2015). As discussed below, the court finds that plaintiff's factual allegations are deficient with respect to each of his claims.

a. Disparate Treatment under Title VII and the FEHA

In counts 1 and 3, plaintiff asserts claims for disparate treatment under Title VII and the FEHA. Disparate treatment occurs when an employer intentionally treats an employee less favorably than other employees due to a protected characteristic. Wood v. City of San Diego, 678 F.3d 1075, 1081 (9th Cir. 2012). To state a prima facie case of disparate treatment under Title VII and the FEHA, a plaintiff must allege that (1) he was a member of a protected class; (2) he was qualified for the position sought or was performing competently in the position she held; (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) similarly situated employees not in his protected class received more favorable treatment. Moran v. Selig, 447 F.3d 748, 753 (9th Cir. 2006); Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 355, 8 P.3d 1089, 1113 (2000).

Here, plaintiff does not sufficiently allege that he was qualified for the promotional positions sought. Plaintiff alleges that (1) he possesses a bachelor's degree in Sociology; (2) he has fifteen years' experience working for the County as a Human Services Specialist; and (3) he "tested and ranked 1" for a supervisor and social worker position. (ECF No. 1 ¶ 7.) But he does not allege that he applied for a supervisor or social worker position. Instead, he alleges that he applied for a "program planner" position, without specifying his test results for that position. The court cannot reasonably infer that plaintiff was qualified for the positions sought without knowing additional facts, such as the titles of the positions and their prerequisites.

Similarly, plaintiff does not sufficiently allege that similarly situated individuals outside of his protected class were treated more favorably. Smith v. W.W. Grainger, Inc., No. ED-CV-181405, 2019 WL 1670942, at *3 (C.D. Cal. Feb. 5, 2019). A...