1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 GREGORY S. LEWIS, 10 Case No. 25-cv-00869-RS Plaintiff, 11 v. ORDER GRANTING MOTION TO 12 DISMISS SF BAY AREA RAPID TRANSIST 13 DISTRICT (BART), 14 Defendant.
15 I. INTRODUCTION1 16 Plaintiff is a former employee of Defendant. He brings various employment discrimination 17 claims against Defendant, including a tort claim for wrongful termination/constructive discharge. 18 Defendant moves to dismiss this tort claim based on the rule that a California public entity’s tort 19 liability must be authorized by statute. For the reasons set forth below, Defendant’s motion is 20 granted.2 21 II. BACKGROUND 22 Pro se Plaintiff Gregory S. Lewis brings this employment discrimination suit against his 23 former employer the San Francisco Bay Area Rapid Transit District (“BART”). He contends 24 Defendant violated the Americans with Disabilities Act (“ADA”), the California Fair Employment 25 1 Unless otherwise stated, this order accepts well-pled factual allegations made in the complaint as 26 true. 27 2 Pursuant to Civil Local Rule 7-1(b), the motion is suitable for disposition without oral argument, 1 and Housing Act (“FEHA”), and the Rehabilitation Act (29 U.S.C. § 794) and wrongfully 2 terminated or constructively discharged him in violation of California common law. He seeks 3 declaratory relief that Plaintiff’s rights under the ADA were violated, injunctive relief barring the 4 discriminatory conduct, reinstatement of his position or a comparable position, and compensatory 5 damages. 6 In August 2025, Defendant moved to dismiss all the claims against three parties 7 erroneously3 named in the first amended complaint (“FAC”) as well as Plaintiff’s fourth claim for 8 wrongful termination/constructive discharge. See Dkt. 36. The erroneously included defendants 9 were not mentioned in the allegations in the FAC, and the FAC included the unsupported 10 averment that Plaintiff was still employed by BART. Accordingly, this court granted Defendant’s 11 motion to dismiss the FAC with leave to amend. See Dkt. 44. The court, however, did not address 12 Defendant’s additional argument, made again here, that Plaintiff’s wrongful termination/ 13 constructive discharge claim was deficient not only because Plaintiff alleged he was still employed 14 by BART but also because he failed to identify an authorizing statute for that claim, as discussed 15 below. Plaintiff was invited at that time to seek assistance from the Federal Pro Bono Project’s 16 Legal Help Center. 17 In October 2025, Plaintiff filed a second amended complaint (“SAC”). Plaintiff’s SAC 18 made only a few changes to the FAC. Since the allegations in the SAC are otherwise substantially 19 similar to those in the FAC4 and were discussed in this court’s prior order, see Dkt. 44, they are 20 not repeated here. 21 In the SAC, Plaintiff newly alleges he was “formerly employed by BART as an 22
23 3 The Office of the General Counsel for San Francisco BART and its attorneys Sam N. Dawood and Simran Mahal Fail were included as defendants in the FAC in error. See Dkt. 38, Notice of 24 Errata. 25 4 Plaintiff also added allegations which ultimately have no effect on the sufficiency of his claims. To make clear the court considered those other changes, they are summarized here: new 26 allegations that BART ignored details Plaintiff provided regarding his ability to perform essential job functions, see Dkt. 45 ¶¶ 33-34, 47, as well as certain additional support for Plaintiff’s fourth 27 claim for wrongful termination/constructive discharge. 1 Electrician[.]” Compare Dkt. 45 ¶ 5 (emphasis added), with Dkt. 31 ¶ 5. The change, indicating 2 that Plaintiff is a former BART employee, cures the deficiency regarding Plaintiff’s wrongful 3 termination/constructive discharge claim identified in the prior motion to dismiss, see Dkt. 36, and 4 court order granting that motion, see Dkt. 44, but does not address Defendant’s other argument, 5 which is repeated in their present motion to dismiss. 6 In that motion, Defendant moves to dismiss and, in the alternative, strike one of Plaintiff’s 7 four claims, the wrongful termination/constructive discharge claim. Defendant argues Plaintiff has 8 no statutory basis to plead such a claim against a California public agency such as BART. 9 Defendant also seeks an award of costs. 10 III. LEGAL STANDARD 11 Rule 12(b)(6) governs motions to dismiss for failure to state a claim. A complaint must 12 contain a short and plain statement of the claim showing the pleader is entitled to relief, Fed. R. 13 Civ. P. 8(a), and “giv[ing] the defendant fair notice of what the… claim is and the grounds upon 14 which it rests,” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007) (citing Conley v. Gibson, 355 15 U.S. 41, 47 (1957)). While “detailed factual allegations” are not required, a complaint must have 16 sufficient factual allegations to “state a claim to relief that is plausible on its face.” Ashcroft v. 17 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). 18 Dismissal under Rule 12(b)(6) may be based on either the “lack of a cognizable legal theory” or 19 on “the absence of sufficient facts alleged” under a cognizable legal theory. UMG Recordings, Inc. 20 v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (internal quotation marks 21 and citation omitted). When evaluating such a motion, courts “accept all factual allegations in the 22 complaint as true and construe the pleadings in the light most favorable to the nonmoving 23 party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Where a complaint is brought by 24 pro se plaintiffs, the court is obligated to evaluate the claims liberally. See Hebbe v. Pillar, 627 25 F.3d 338, 342 (9th Cir. 2010). 26 In dismissing a complaint, leave to amend must be granted unless it is clear the 27 complaint’s deficiencies cannot be cured by amendment. Lucas v. Dep’t of Corrections, 66 F.3d 1 245, 248 (9th Cir.1995). When amendment would be futile, however, dismissal may be 2 ordered with prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir.1996). When the “plaintiff has 3 previously been granted leave to amend and has subsequently failed to add the requisite 4 particularity to its claims, ‘[t]he district court's discretion to deny leave to amend is particularly 5 broad.’” Zucco Partners LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir.2009) (quoting In re 6 Vantive Corp. Sec. Litig., 283 F.3d 1079, 1097–98 (9th Cir.2002)). 7 IV. DISCUSSION 8 In California, a governmental entity can be sued in tort only pursuant to 9 an authorizing statute or enactment. Van Ort v. Estate of Stanewich, 92 F.3d 831, 840 (9th Cir. 10 1996) (citing Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal.3d 780, 710 P.2d 907, 909 n. 2 11 (1985)). See also Miklosy v. Regents of Univ. of California, 44 Cal.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 GREGORY S. LEWIS, 10 Case No. 25-cv-00869-RS Plaintiff, 11 v. ORDER GRANTING MOTION TO 12 DISMISS SF BAY AREA RAPID TRANSIST 13 DISTRICT (BART), 14 Defendant.
15 I. INTRODUCTION1 16 Plaintiff is a former employee of Defendant. He brings various employment discrimination 17 claims against Defendant, including a tort claim for wrongful termination/constructive discharge. 18 Defendant moves to dismiss this tort claim based on the rule that a California public entity’s tort 19 liability must be authorized by statute. For the reasons set forth below, Defendant’s motion is 20 granted.2 21 II. BACKGROUND 22 Pro se Plaintiff Gregory S. Lewis brings this employment discrimination suit against his 23 former employer the San Francisco Bay Area Rapid Transit District (“BART”). He contends 24 Defendant violated the Americans with Disabilities Act (“ADA”), the California Fair Employment 25 1 Unless otherwise stated, this order accepts well-pled factual allegations made in the complaint as 26 true. 27 2 Pursuant to Civil Local Rule 7-1(b), the motion is suitable for disposition without oral argument, 1 and Housing Act (“FEHA”), and the Rehabilitation Act (29 U.S.C. § 794) and wrongfully 2 terminated or constructively discharged him in violation of California common law. He seeks 3 declaratory relief that Plaintiff’s rights under the ADA were violated, injunctive relief barring the 4 discriminatory conduct, reinstatement of his position or a comparable position, and compensatory 5 damages. 6 In August 2025, Defendant moved to dismiss all the claims against three parties 7 erroneously3 named in the first amended complaint (“FAC”) as well as Plaintiff’s fourth claim for 8 wrongful termination/constructive discharge. See Dkt. 36. The erroneously included defendants 9 were not mentioned in the allegations in the FAC, and the FAC included the unsupported 10 averment that Plaintiff was still employed by BART. Accordingly, this court granted Defendant’s 11 motion to dismiss the FAC with leave to amend. See Dkt. 44. The court, however, did not address 12 Defendant’s additional argument, made again here, that Plaintiff’s wrongful termination/ 13 constructive discharge claim was deficient not only because Plaintiff alleged he was still employed 14 by BART but also because he failed to identify an authorizing statute for that claim, as discussed 15 below. Plaintiff was invited at that time to seek assistance from the Federal Pro Bono Project’s 16 Legal Help Center. 17 In October 2025, Plaintiff filed a second amended complaint (“SAC”). Plaintiff’s SAC 18 made only a few changes to the FAC. Since the allegations in the SAC are otherwise substantially 19 similar to those in the FAC4 and were discussed in this court’s prior order, see Dkt. 44, they are 20 not repeated here. 21 In the SAC, Plaintiff newly alleges he was “formerly employed by BART as an 22
23 3 The Office of the General Counsel for San Francisco BART and its attorneys Sam N. Dawood and Simran Mahal Fail were included as defendants in the FAC in error. See Dkt. 38, Notice of 24 Errata. 25 4 Plaintiff also added allegations which ultimately have no effect on the sufficiency of his claims. To make clear the court considered those other changes, they are summarized here: new 26 allegations that BART ignored details Plaintiff provided regarding his ability to perform essential job functions, see Dkt. 45 ¶¶ 33-34, 47, as well as certain additional support for Plaintiff’s fourth 27 claim for wrongful termination/constructive discharge. 1 Electrician[.]” Compare Dkt. 45 ¶ 5 (emphasis added), with Dkt. 31 ¶ 5. The change, indicating 2 that Plaintiff is a former BART employee, cures the deficiency regarding Plaintiff’s wrongful 3 termination/constructive discharge claim identified in the prior motion to dismiss, see Dkt. 36, and 4 court order granting that motion, see Dkt. 44, but does not address Defendant’s other argument, 5 which is repeated in their present motion to dismiss. 6 In that motion, Defendant moves to dismiss and, in the alternative, strike one of Plaintiff’s 7 four claims, the wrongful termination/constructive discharge claim. Defendant argues Plaintiff has 8 no statutory basis to plead such a claim against a California public agency such as BART. 9 Defendant also seeks an award of costs. 10 III. LEGAL STANDARD 11 Rule 12(b)(6) governs motions to dismiss for failure to state a claim. A complaint must 12 contain a short and plain statement of the claim showing the pleader is entitled to relief, Fed. R. 13 Civ. P. 8(a), and “giv[ing] the defendant fair notice of what the… claim is and the grounds upon 14 which it rests,” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007) (citing Conley v. Gibson, 355 15 U.S. 41, 47 (1957)). While “detailed factual allegations” are not required, a complaint must have 16 sufficient factual allegations to “state a claim to relief that is plausible on its face.” Ashcroft v. 17 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). 18 Dismissal under Rule 12(b)(6) may be based on either the “lack of a cognizable legal theory” or 19 on “the absence of sufficient facts alleged” under a cognizable legal theory. UMG Recordings, Inc. 20 v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (internal quotation marks 21 and citation omitted). When evaluating such a motion, courts “accept all factual allegations in the 22 complaint as true and construe the pleadings in the light most favorable to the nonmoving 23 party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Where a complaint is brought by 24 pro se plaintiffs, the court is obligated to evaluate the claims liberally. See Hebbe v. Pillar, 627 25 F.3d 338, 342 (9th Cir. 2010). 26 In dismissing a complaint, leave to amend must be granted unless it is clear the 27 complaint’s deficiencies cannot be cured by amendment. Lucas v. Dep’t of Corrections, 66 F.3d 1 245, 248 (9th Cir.1995). When amendment would be futile, however, dismissal may be 2 ordered with prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir.1996). When the “plaintiff has 3 previously been granted leave to amend and has subsequently failed to add the requisite 4 particularity to its claims, ‘[t]he district court's discretion to deny leave to amend is particularly 5 broad.’” Zucco Partners LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir.2009) (quoting In re 6 Vantive Corp. Sec. Litig., 283 F.3d 1079, 1097–98 (9th Cir.2002)). 7 IV. DISCUSSION 8 In California, a governmental entity can be sued in tort only pursuant to 9 an authorizing statute or enactment. Van Ort v. Estate of Stanewich, 92 F.3d 831, 840 (9th Cir. 10 1996) (citing Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal.3d 780, 710 P.2d 907, 909 n. 2 11 (1985)). See also Miklosy v. Regents of Univ. of California, 44 Cal. 4th 876, 899, 188 P.3d 629, 12 643 (2008) (“[O]ur own decisions confirm that [the Government Claims Act] abolishes common 13 law tort liability for public entities.”). BART is a public entity, and, despite Plaintiff’s arguments, 14 his fourth claim for wrongful termination/constructive discharge is a tort. 15 Plaintiff argues in his Opposition that his “Fourth Cause of Action: Wrongful Termination 16 / Constructive Discharge,” Dkt. 45, “does not assert a common-law wrongful termination claim” 17 but rather “completes the ADA and FEHA violations.” Dkt. 51 at 2. This argument is not 18 persuasive. In the SAC, Plaintiff’s wrongful termination/constructive discharge claim makes no 19 reference or citation to the ADA or FEHA whereas his first, second, and third claims do. See 20 Dkt. 45. Further the cases cited by Plaintiff in the SAC in support of his wrongful termination/ 21 constructive discharge claim are tort-based suits or invoked by Plaintiff for 22 “demonstrat[ing]…constructive discharge,” a tort. See Dkt. 45 ¶ 67-73 (citing Lopez, 40 Cal.3d 23 (1985); Brady v. Elixir Indus., 196 Cal. App. 3d 1299, 1302, 242 Cal. Rptr. 324, 325 (Ct. App. 24 1987); Zilmer v. Carnation Co., 215 Cal. App. 3d 29, 35, 263 Cal. Rptr. 422, 425 (Ct. App. 1989), 25 modified (Nov. 8, 1989); Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1251, 876 P.2d 1022, 26 1030 (1994); Garcia-Brower v. Premier Auto. Imports of CA, LLC, 55 Cal. App. 5th 961, 269 Cal. 27 Rptr. 3d 856 (2020) (a California Labor Code case invoked by Plaintiff nonetheless for its support 1 of the tort asserted by Plaintiff)). Accordingly, the fourth claim is a tort claim. 2 Since the fourth claim is a tort claim against a California public entity, Plaintiff must 3 identify an authorizing statute that permits him to assert a claim for wrongful termination/ 4 || constructive discharge against BART. Since Plaintiff has not, his wrongful termination/ 5 constructive discharge claim is insufficient. 6 V. CONCLUSION 7 Defendant’s motion to dismiss Plaintiff's wrongful termination/constructive discharge 8 claim is granted without further leave to amend, and the motion to strike is denied as moot. 9 10 || ITISSO ORDERED. 11 a 12 Dated: January 6, 2026 ' 4 RICHARD SEEBORG 5 Chief United States District Judge 15 16
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Z 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING MTD CASE No. 25-cv-00869-RS