Simmons et al v. Modly et al, No. 3:2019cv01448 - Document 11 (S.D. Cal. 2020)

Court Description: ORDER granting 6 Defendants' Motion to Dismiss and denying Defendants' motion for a more definite statement. The Court dismisses without prejudice Defendants the United States Department of Defense, the United States Department of the Nav y, and the United States Navy Department, and DOES 1 through 100 as to the remaining cause of action. The Court denies Defendants Motion for a More Definite Statement as to seventh cause of action under the Rehabilitation Act. Plaintiffs may file an amended complaint within thirty (30) days of the electronic docketing of this. Signed by Judge Janis L. Sammartino on 8/18/2020. (jpp) (dlg).

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Simmons et al v. Modly et al Doc. 11 Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.526 Page 1 of 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 DONALD SIMMONS; JAMES TRIPLETT; THERREL GATLING; AND PAUL GONZALES, 13 14 15 16 17 18 19 Case No.: 19-CV-1448 JLS (WVG) ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND DENYING DEFENDANTS’ MOTION FOR A MORE DEFINITE STATEMENT Plaintiffs, v. HONORABLE THOMAS B. MODLY, SECRETARY OF THE NAVY; US DEPARTMENT OF DEFENSE; DEPARTMENT OF THE NAVY, UNITED STATES NAVY DEPARTMENT, AND DOES 1 THROUGH 100 INCLUSIVE, 20 (ECF No. 6) 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 19-CV-1448 JLS (WVG) Dockets.Justia.com Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.527 Page 2 of 18 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. 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. Id. ¶¶ 28, 72, 112, 141. During their employment, Plaintiffs 25 26 1 27 28 At the time of filing of the Complaint, the Honorable Richard V. Spencer was Secretary of the United States Department of the Navy and was therefore named as a Defendant. Secretary Spencer has since been succeeded by the Honorable Thomas B. Modly. Accordingly, Acting Secretary Modly is “automatically substituted” as the named Defendant. Fed. R. Civ. P. 25(d). 2 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.528 Page 3 of 18 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. 28 Defendants except the Honorable Thomas B. Modly, Secretary of the Navy. Id. at 21–22. Id. at 22–23. Lastly, Defendants move to dismiss all 3 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.529 Page 4 of 18 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 4 LEGAL STANDARDS 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 4 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.530 Page 5 of 18 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 21 22 23 DISCUSSION I. Motion to Dismiss A. Title VII Disparate Treatment and Wrongful Termination Claims (First and Ninth Causes of Action) 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. 5 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.531 Page 6 of 18 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. 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, Title VII Hostile Work Environment Claim (Second Cause of Action) 6 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.532 Page 7 of 18 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. 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. Title VII Retaliation Claim (Third Cause of Action) 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, 7 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.533 Page 8 of 18 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 26 27 28 1. Opposition Clause Plaintiff Triplett alleges that: On numerous occasions during his employment with defendants, the plaintiff complained to management about various policy 8 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.534 Page 9 of 18 1 violations, violations of laws, statutes or ordinances as to conditions in the work place, the hostile environment which existed toward older injured or disabled workers, mistreatment of older injured or disabled workers, disability discrimination, treating people differently because of their health history, including offensive and disrespectful treatment of older workers, [and] disparate treatment, among other violations of laws, statutes or ordinances. 2 3 4 5 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 /// 9 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.535 Page 10 of 18 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. 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 ADEA Claim (Fourth Cause of Action) 10 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.536 Page 11 of 18 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 23 24 25 26 27 28 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 12(b)(6) motion into a motion for summary judgment. Fed. R. Civ. P. 12(d). In ruling on a 12(b)(6) 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, 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 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 reference their EEO proceedings numerous times throughout the complaint, Compl. ¶¶ 20, 41, 59, 67, 96, 104, 129, 136, 151, 162, 171, 179, and neither party disputes the authenticity of the Exhibits. Accordingly, the Court GRANTS Defendants’ request and takes judicial notice of those Exhibits. 2 11 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.537 Page 12 of 18 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 The Court therefore GRANTS Defendants’ Motion as to Plaintiffs’ fourth cause of 14 15 action and DISMISSES WITHOUT PREJUDICE Plaintiffs’ ADEA claims. 16 E. 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 ADA Claims (Fifth and Eighth Causes of Action) 23 24 25 26 27 28 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 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 recovery of unpaid minimum wages or overtime pay, and reasonable attorneys’ fees and costs.” Id. (citing 29 U.S.C. §§ 216(b), 626(b)). For this reason, all references to compensatory and punitive damages under these claims are likewise dismissed. 12 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.538 Page 13 of 18 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. 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. Civil Rights Act of 1991 Claim (Sixth Cause of Action) 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.’” 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”). Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998) (citing 42 U.S.C. 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, 13 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.539 Page 14 of 18 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 14 G. FEHA and California Labor Code Claims (Tenth through Sixteenth and Eighteenth Causes of Action) 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 14 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.540 Page 15 of 18 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. 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. IIED Claim (Seventeenth Cause of Action) 15 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.541 Page 16 of 18 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. 9 GRANTS Defendants’ Motion as to Plaintiffs’ seventeenth cause of action and 10 Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiffs’ claims for IIED. 11 I. 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. Claims against the Federal Agencies 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 /// 16 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.542 Page 17 of 18 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. 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 19 See Fed. R. Civ. P. 12(e). CONCLUSION 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. 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 The Court DISMISSES WITHOUT PREJUDICE 17 19-CV-1448 JLS (WVG) Case 3:19-cv-01448-JLS-WVG Document 11 Filed 08/18/20 PageID.543 Page 18 of 18 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 4 IT IS SO ORDERED. Dated: August 18, 2020 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 19-CV-1448 JLS (WVG)

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