1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK JIMENEZ, No. 2:19-cv-01458-TLN-KJN 12 Plaintiff, 13 v. ORDER 14 DEPARTMENT OF TRANSPORTATION; THE HON. PETE 15 BUTTIGIEG, SECRETARY OF TRANSPORTATION; and DOES 1 16 through 50, inclusive, 17 Defendants. 18 19 This matter is before the Court pursuant to Defendants U.S. Department of Transportation 20 (the “DOT”) and Secretary Pete Buttigieg’s1 (collectively, “Defendants”) Motion to Dismiss. 21 (ECF No. 7.) Plaintiff Mark Jimenez (“Plaintiff”) opposes Defendants’ motion. (ECF No. 15.) 22 Defendants filed a reply. (ECF No. 16.) For the reasons set forth below, the Court hereby 23 GRANTS Defendants’ motion. (ECF No. 7.) 24 /// 25 /// 26 1 Pursuant to Federal Rule of Civil Procedure (“Rule”) 25(d), “[t]he officer’s successor is 27 automatically substituted as a party” when a public officer “ceases to hold office while the action is pending.” Fed. R. Civ. P. 25(d). The Clerk of the Court is directed to update the docket as 28 necessary. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff worked for the DOT before he was removed from his position on October 10, 2018. 3 (ECF No. 1 ¶ 12.) Plaintiff identifies as being “of Hispanic descent” and having “brown skin.” 4 (Id. at ¶ 7.) In January 2018, Plaintiff was one of three volunteers selected for temporary 5 promotions to “NOM”2 positions for one to two pay periods each. (Id. at ¶ 13.) On March 23, 6 2018, Plaintiff discovered a fourth employee was given a NOM temporary promotion. (Id. at ¶ 7 14.) Plaintiff was assured he would receive the fourth temporary NOM promotion after “pay 8 period 2018-11.” (Id.) However, on June 14, 2018, NCT SOC3 Manager Paul Deane denied 9 Plaintiff a temporary NOM promotion. (Id.) 10 Plaintiff filed a complaint of discrimination for both the denial of the temporary NOM promotion 11 and the disparate treatment he received throughout his career with the DOT. (Id. at ¶ 16.) On 12 October 3, 2018, Plaintiff participated in a mediation with the Office of Civil Rights; Paul Deane; 13 and Northern California TRACON Technical Group Manager, Sarah Goldfarb. (Id. at ¶ 17.) On 14 November 27, 2018, Plaintiff received notice that his complaint of discrimination was partially 15 accepted by the DOT’s Office of Civil Rights. (Id. at ¶ 18.) On May 1, 2019, the DOT rescinded 16 the partial acceptance, dismissed Plaintiff’s entire complaint, and informed Plaintiff of his appeal 17 rights. (Id.) On May 31, 2019, Plaintiff appealed the DOT’s decision dismissing the complaint to 18 the United States Equal Employment Opportunity Commission (“EEOC”), Office of Federal 19 Operations. (Id.) 20 Plaintiff filed the instant action with this Court on July 30, 2019. (ECF No. 1.) On July 31, 2020, 21 Defendants filed a motion to dismiss. (ECF No. 7.) Plaintiff originally filed a statement of non- 22 opposition, to which Defendants replied. (ECF Nos. 10, 11.) However, on March 16, 2021, 23 Plaintiff submitted a motion for leave to file a late opposition, which the Court granted. (ECF 24 Nos. 13, 14.) On April 5, 2021, Plaintiff filed his opposition. (ECF No. 15.) On April 15, 2021,
25 2 Defendants correctly note that Plaintiff “does not explain what a ‘NOM’ position is, whether the promotion would involve a pay increase or new duties, or how the non-selection 26 would otherwise constitute an adverse employment action.” (ECF No. 7-1 at 7.) 27 3 Plaintiff fails in his Complaint to explain what these abbreviations stand for. (See ECF 28 No. 1.) 1 Defendants filed an amended reply. (ECF No. 16.) 2 II. STANDARD OF LAW 3 A motion to dismiss for failure to state a claim upon which relief can be granted under 4 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 5 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 6 showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 7 (2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice 8 of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 9 544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on 10 liberal discovery rules and summary judgment motions to define disputed facts and issues and to 11 dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 12 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 13 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give the plaintiff the benefit of every 14 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 15 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 16 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 17 relief.” Twombly, 550 U.S. at 570. 18 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 19 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 20 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 21 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 22 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 23 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 24 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove 26 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not 27 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 28 U.S. 519, 526 (1983). 1 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 2 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting 3 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 4 content that allows the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged.” Id. at 680. While the plausibility requirement is not akin to a probability 6 requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.” 7 Id. at 678. This plausibility inquiry is “a context-specific task that requires the reviewing court to 8 draw on its judicial experience and common sense.” Id. at 679. 9 In ruling on a motion to dismiss, a court may only consider the complaint, any exhibits 10 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 11 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK JIMENEZ, No. 2:19-cv-01458-TLN-KJN 12 Plaintiff, 13 v. ORDER 14 DEPARTMENT OF TRANSPORTATION; THE HON. PETE 15 BUTTIGIEG, SECRETARY OF TRANSPORTATION; and DOES 1 16 through 50, inclusive, 17 Defendants. 18 19 This matter is before the Court pursuant to Defendants U.S. Department of Transportation 20 (the “DOT”) and Secretary Pete Buttigieg’s1 (collectively, “Defendants”) Motion to Dismiss. 21 (ECF No. 7.) Plaintiff Mark Jimenez (“Plaintiff”) opposes Defendants’ motion. (ECF No. 15.) 22 Defendants filed a reply. (ECF No. 16.) For the reasons set forth below, the Court hereby 23 GRANTS Defendants’ motion. (ECF No. 7.) 24 /// 25 /// 26 1 Pursuant to Federal Rule of Civil Procedure (“Rule”) 25(d), “[t]he officer’s successor is 27 automatically substituted as a party” when a public officer “ceases to hold office while the action is pending.” Fed. R. Civ. P. 25(d). The Clerk of the Court is directed to update the docket as 28 necessary. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff worked for the DOT before he was removed from his position on October 10, 2018. 3 (ECF No. 1 ¶ 12.) Plaintiff identifies as being “of Hispanic descent” and having “brown skin.” 4 (Id. at ¶ 7.) In January 2018, Plaintiff was one of three volunteers selected for temporary 5 promotions to “NOM”2 positions for one to two pay periods each. (Id. at ¶ 13.) On March 23, 6 2018, Plaintiff discovered a fourth employee was given a NOM temporary promotion. (Id. at ¶ 7 14.) Plaintiff was assured he would receive the fourth temporary NOM promotion after “pay 8 period 2018-11.” (Id.) However, on June 14, 2018, NCT SOC3 Manager Paul Deane denied 9 Plaintiff a temporary NOM promotion. (Id.) 10 Plaintiff filed a complaint of discrimination for both the denial of the temporary NOM promotion 11 and the disparate treatment he received throughout his career with the DOT. (Id. at ¶ 16.) On 12 October 3, 2018, Plaintiff participated in a mediation with the Office of Civil Rights; Paul Deane; 13 and Northern California TRACON Technical Group Manager, Sarah Goldfarb. (Id. at ¶ 17.) On 14 November 27, 2018, Plaintiff received notice that his complaint of discrimination was partially 15 accepted by the DOT’s Office of Civil Rights. (Id. at ¶ 18.) On May 1, 2019, the DOT rescinded 16 the partial acceptance, dismissed Plaintiff’s entire complaint, and informed Plaintiff of his appeal 17 rights. (Id.) On May 31, 2019, Plaintiff appealed the DOT’s decision dismissing the complaint to 18 the United States Equal Employment Opportunity Commission (“EEOC”), Office of Federal 19 Operations. (Id.) 20 Plaintiff filed the instant action with this Court on July 30, 2019. (ECF No. 1.) On July 31, 2020, 21 Defendants filed a motion to dismiss. (ECF No. 7.) Plaintiff originally filed a statement of non- 22 opposition, to which Defendants replied. (ECF Nos. 10, 11.) However, on March 16, 2021, 23 Plaintiff submitted a motion for leave to file a late opposition, which the Court granted. (ECF 24 Nos. 13, 14.) On April 5, 2021, Plaintiff filed his opposition. (ECF No. 15.) On April 15, 2021,
25 2 Defendants correctly note that Plaintiff “does not explain what a ‘NOM’ position is, whether the promotion would involve a pay increase or new duties, or how the non-selection 26 would otherwise constitute an adverse employment action.” (ECF No. 7-1 at 7.) 27 3 Plaintiff fails in his Complaint to explain what these abbreviations stand for. (See ECF 28 No. 1.) 1 Defendants filed an amended reply. (ECF No. 16.) 2 II. STANDARD OF LAW 3 A motion to dismiss for failure to state a claim upon which relief can be granted under 4 Rule 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th 5 Cir. 2001). Rule 8(a) requires that a pleading contain “a short and plain statement of the claim 6 showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 7 (2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice 8 of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 9 544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on 10 liberal discovery rules and summary judgment motions to define disputed facts and issues and to 11 dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 12 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 13 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give the plaintiff the benefit of every 14 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 15 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 16 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 17 relief.” Twombly, 550 U.S. at 570. 18 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 19 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 20 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 21 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 22 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 23 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 24 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 25 statements, do not suffice.”). Moreover, it is inappropriate to assume the plaintiff “can prove 26 facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not 27 been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 28 U.S. 519, 526 (1983). 1 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 2 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting 3 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 4 content that allows the court to draw the reasonable inference that the defendant is liable for the 5 misconduct alleged.” Id. at 680. While the plausibility requirement is not akin to a probability 6 requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.” 7 Id. at 678. This plausibility inquiry is “a context-specific task that requires the reviewing court to 8 draw on its judicial experience and common sense.” Id. at 679. 9 In ruling on a motion to dismiss, a court may only consider the complaint, any exhibits 10 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 11 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 12 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 13 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 14 amend even if no request to amend the pleading was made, unless it determines that the pleading 15 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 16 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). 17 III. ANALYSIS 18 Plaintiff’s Complaint alleges three claims: (1) a violation of 42 U.S.C. § 1981; (2) a 19 violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); and (3) a violation of the 20 California Fair Employment and Housing Act (“FEHA”). (ECF No. 1 at 5–8.) Defendants move 21 to dismiss the first and third claim, arguing Title VII “is the exclusive remedy available to federal 22 employees (both past and present) alleging job discrimination.” (ECF No. 7-1 at 3.) Defendants 23 further move to dismiss the second claim, arguing: (1) the Secretary of Transportation is the only 24 proper defendant; (2) the Complaint fails to state a Title VII claim; and (3) Plaintiff has failed to 25 exhaust administrative remedies. (Id. at 3–8.) The Court will first evaluate Defendants’ 26 argument on the first and third claims. The Court will then evaluate each of Defendants’ 27 arguments on the second claim in turn. 28 /// 1 Claims One and Three: Violation of 42 U.S.C. § 1981 and FEHA 2 Defendants argue Plaintiff’s claims under 42 U.S.C. § 1981 and FEHA should be dismissed 3 because “Title VII is the exclusive remedy available to federal employees (both past and present) 4 alleging job discrimination.” (ECF No. 7-1 at 3.) In opposition, Plaintiff notes that he “has no 5 objection” to dismissing these claims and “leaving Title VII as the exclusive remedy for his job- 6 related discrimination claims.” (ECF No. 15 at 2.) Accordingly, because all parties agree to 7 dismiss this claim, Defendants’ motion to dismiss Plaintiff’s first and third claims is GRANTED 8 without leave to amend. 9 Claim Two: Violation of Title VII 10 i. Proper Defendants 11 Defendants first argue Plaintiff improperly included DOT as a Defendant, as a federal 12 agency is not the proper defendant to a Title VII action — the only proper defendant is the head 13 of the agency. (ECF No. 7-1 at 3–4.) Plaintiff does not address this argument in his opposition. 14 (See ECF No. 15.) Defendants are correct that “the head of the department, agency, or unit” is 15 the proper defendant in a civil action. (ECF No. 7-1 at 3–4 (citing 42 U.S.C. § 2000e–16(c); 16 Sommatino v. U.S., 255 F.3d 704, 707 n.1 (9th Cir. 2001).) Plaintiff has therefore improperly 17 named DOT as a Defendant in the instant action. Accordingly, DOT is DISMISSED from the 18 instant case. 19 ii. Failure to State a Claim 20 Defendants next argue Plaintiff fails to state a Title VII claim because “the Complaint fails to 21 allege any facts that would establish a prima facie case of disparate treatment or otherwise give 22 rise to an inference that the reason he was denied a temporary promotion at the [DOT] was 23 because of his origin/race or color.” (ECF No. 7-1 at 4–5.) In opposition, Plaintiff concedes that 24 his Complaint fails to include the factual allegations necessary to state a Title VII claim.4 (ECF
25 4 Plaintiff also seeks leave to amend his Complaint to add additional factual allegations. (Id. at 2–4.) Defendants are correct that Plaintiff has not complied with Local Rule 137(c), which 26 provides: “If filing a document requires leave of court, such as an amended complaint after the 27 time to amend as a matter of course has expired, counsel shall attach the document proposed to be filed as an exhibit to moving papers seeking such leave and lodge a proposed order as required by 28 [the Local] Rules.” E.D. Cal. L.R. 137(c). As Plaintiff has not attached a proposed amended 1 No. 15 at 2.) Accordingly, Defendants’ motion to dismiss Claim Two is GRANTED. Because 2 the defects could be cured by amendment, such dismissal is with leave to amend. See Lopez, 203 3 F.3d at 1130. 4 iii. Failure to Exhaust Administrative Remedies 5 Defendants also argue Plaintiff failed to exhaust administrative remedies, as he “alleges that he 6 filed an appeal with the EEOC on or about May 31, 2019” and “there is no allegation that 7 Plaintiff withdrew his EEOC appeal prior to filing this action.” (ECF No. 7-1 at 7–8.) In 8 opposition, Plaintiff maintains his claims have been exhausted because the EEOC dismissed his 9 complaint on October 27, 2020.5 (ECF No. 15 at 4.) The Court finds Defendants’ final argument 10 persuasive. 11 “Title VII specifically requires a federal employee to exhaust his administrative remedies as a 12 precondition to filing suit.” Vinieratos v. U.S. Dep’t of Air Force, 939 F.2d 762, 767–68 (9th Cir. 13 1991) (citing Brown v. Gen. Servs. Admin., 425 U.S. 820, 832 (1975)). The Ninth Circuit has 14 held that “an aggrieved employee subject to the procedural rules of Title VII exhausts [his] 15 administrative remedies by filing a formal complaint for adjudication by an ALJ.” Bullock v. 16 Berrien, 688 F.3d 613, 618 (9th Cir. 2012). After final agency action has been taken on the 17 complaint, the employee can either file an administrative appeal or file suit in federal district 18 court within 90 days of receiving notice of the final agency action. Id. “If the employee files an 19 optional administrative appeal, []he may withdraw that appeal and file suit in district court 20 without waiting 180 days from the filing of the notice of appeal.” Id. “The employee’s lawsuit in 21 district court may proceed even though the employee filed and then withdrew an administrative 22 appeal.” Id. at 618–19 (finding an employee who filed suit within 90 days of receiving notice of 23 final agency action on her complaint did not fail to exhaust administrative remedies by 24 withdrawing her optional administrative appeal to the EEOC within 180 days after filing a notice 25
complaint with this request, his request for leave to amend is DENIED. 26
27 5 Plaintiff filed with his opposition the declaration of his counsel Jesse Ortiz. (See ECF No. 15-1.) Attached to this declaration is a copy of the EEOC administrative law judge’s (“ALJ”) 28 order dismissing Plaintiff’s formal complaint. (Id. at 4–6.) 1 | of appeal). 2 | Here, the Court agrees with Defendants that Plaintiff's Complaint is unclear as to “whether the 3 | agency has issued a final agency decision implementing the [ALJ’s] order or whether Plaintiff has 4 | filed an appeal with the EEOC.” (See ECF No. 16 at 5-6.) As previously mentioned, Plaintiff 5 | will be considered to have exhausted his administrative remedies as long as he has withdrawn his 6 | EEOC appeal. See Bullock, 688 F.3d at 618-19. Plaintiff's Complaint fails to make sufficient 7 | allegations as to whether he exhausted the requisite administrative remedies. Accordingly, 8 | Defendants’ motion to dismiss Claim Two is GRANTED on this basis as well with leave to 9 | amend. See Lopez, 203 F.3d at 1130. 10 IV. CONCLUSION 11 For the aforementioned reasons, the Court hereby GRANTS Defendants’ Motion to 12 | Dismiss (ECF No. 7) as follows: 13 1. Defendants’ Motion to Dismiss for Claims One and Three is GRANTED without 14 leave to amend; and 15 2. Defendants’ Motion to Dismiss for Claim Two is GRANTED with leave to amend. 16 | Defendant U.S. Department of Transportation is also DISMISSED from this case. Plaintiff may 17 | file an amended complaint not later than thirty (30) days after the electronic filing date of this 18 | Order. Secretary Pete Buttigieg shall file a responsive pleading not later than twenty-one (21) 19 | days after the electronic filing date of Plaintiff's amended complaint. 20 IT IS SO ORDERED. 21 DATED: September 22, 2021 22 r> /) 23 “ J of Lor 24 Ze NL Troy L. Nunley» } 25 United States District Judge 26 27 28