Wilson-Combs v. Cal. Dept. of Consumer Affairs

• Decision Date: 14 May 2008
• Docket Number: No. CIV. 07-2097 WBS DAD.,CIV. 07-2097 WBS DAD.
• Citation: 555 F.Supp.2d 1110
• Parties: Lana WILSON-COMBS, Plaintiff, v. CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS, Russ Heimerich, Steve Dakota, Miles Bristow, Glenn Mason, Kevin Flanagan, Deborah Wells, Melanie Bedwell, Steve Bretz, and Does 1 through 10, inclusive, Defendants.
• Court: U.S. District Court — Eastern District of California

555 F.Supp.2d 1110

Lana WILSON-COMBS, Plaintiff, v. CALIFORNIA DEPARTMENT OF CONSUMER AFFAIRS, Russ Heimerich, Steve Dakota, Miles Bristow, Glenn Mason, Kevin Flanagan, Deborah Wells, Melanie Bedwell, Steve Bretz, and Does 1 through 10, inclusive, Defendants.

No. CIV. 07-2097 WBS DAD.

United States District Court, E.D. California.

May 14, 2008.

Chad Wesley Carlock, Law Offices of Chad Carlock, Davis, CA, for Plaintiff.

Andrea R. Austin, California State Attorney General's Office, David John Neill, California Dept. of Justice, Office of the Attorney General, Sacramento, CA, for Defendants.

MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS

WILLIAM B. SHUBB, District Judge.

Plaintiff Lana Wilson-Combs filed this sexual harassment and discrimination action against the California Department of Consumer Affairs (DCA) and current or former DCA employees Melanie Bedwell, Steve Bretz, Miles Bristow, Steve Dakota, Kevin Flanagan, Russ Heimerich, Glenn Mason, and Deborah Wells ("defendants"). Defendants now move to dismiss portions of plaintiffs First Amended Complaint (FAC) pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and, alternatively, Rule 12(b)(6) for failure to state a claim upon which relief may be granted.

I. Factual and Procedural Background

Plaintiff began working for the DCA as an Assistant Information Officer in October of 2000.¹ (FAC ¶ 23.) While employed at the DCA, plaintiff alleges that she has been continually and repeatedly subjected to sexually suggestive and derogatory comments, (see id. at ¶¶ 24-25 (detailing the alleged sexual harassment)), improper sexual and physical contacts (id.), and acts of racial discrimination and harassment. (See id. at ¶ 27 (detailing the alleged racial discrimination).)

Plaintiff allegedly objected to the harassment and discrimination through several methods. (Id. at ¶¶ 17-21.) Initially, plaintiff asserts that she personally informed Heimerich, her supervisor, and several of her co-employees of her complaints (id. at ¶ 25) and contacted law enforcement. (Id. at ¶ 28.) On August 4, 2005, plaintiff filed a formal grievance with the DCA pursuant to the applicable Collective Bargaining Agreement. (Id. at ¶ 20.) On November 16, 2006, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). (Id. at ¶ 18.) The EEOC subsequently began an investigation into plaintiffs charge and simultaneously forwarded the charge to the California Department of Fair Employment and Housing (DFEH). (Id. at ¶ 18.) While the EEOC conducted its investigation, the DFEH notified plaintiff that they would not be conducting a separate investigation and issued plaintiff a Right to Sue notice on November 28, 2006. (Id.) On March 17, 2008, the EEOC informed plaintiff that it had completed its investigation and would not be initiating a suit on her behalf, thereby issuing plaintiff her second Right to Sue notice. (Carlock Decl. Ex. A.)

Plaintiff also filed a formal complaint with DCA's internal office of Equal Employment Opportunity (EEO) on November 11, 2006, (FAC ¶ 19), and submitted a "Government Claims Form" to the California Victim Compensation and Government Claims Board on August 8, 2007. (Id. at ¶ 21.) The "Government Claims Form" was not acted upon within forty-five days and thus deemed rejected pursuant to California Government Code section 911.6(c) on September 14, 2007. (Id.); see also Cal. Gov't Code § 911.6(c) ("If the board fails or refuses to act on an application within the time prescribed by this section, the application shall be deemed to have been denied on the 45th day...."). On September 20, 2007, the DCA's EEO office "determined that insufficient evidence was found to sustain a violation" of plaintiffs rights and therein closed plaintiffs November 11, 2006 internal complaint with the DCA. (Id. at ¶ 19.)

On October 5, 2007, plaintiff initiated this lawsuit.² In addition to her aforementioned allegations, plaintiff also claimed that defendants refused to remedy her concerns and have since decreased her job responsibilities in retaliation. (FAC ¶¶ 27-28.) Additionally, plaintiff alleges she was exposed to other forms of co-employee retaliation, including claims that defendant Dakota has used physical force to confront her and vandalized her vehicle. (Id. at ¶¶ 28, 60.)

After this court's January 28, 2008 Order granted in part and denied in part defendants' motion to dismiss plaintiffs Complaint, Wilson-Combs v. Cal. Dep't of Consumer Affairs, No. 07-2097, 2008 WL 227850, at *8 (E.D.Cal. Jan. 28, 2008), plaintiff filed her FAC on March 5, 2008, alleging claims for (1) sexual and racial harassment, racial discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, against defendant DCA; (2) sexual and racial harassment, racial discrimination, and retaliation in violation of 42 U.S.C. § 1983 against all individually-named defendants; (3) sexual and racial harassment as well as retaliation in violation of state law, including California Government Code sections 11135, 12940 (Fair Employment and Housing Act (FEHA)), and 19702 (Civil Service Act), against all the individually-named defendants; and (4) state law assault, battery, and property claims against defendant Dakota.

Defendants now move to dismiss several portions of plaintiff's FAC under the contention that plaintiff failed to exhaust her administrative remedy, thereby rendering the court without subject matter jurisdiction over her Title VII and FEHA claims. Additionally, defendants request dismissal of plaintiffs assault and battery claims against Dakota for a lack of subject matter jurisdiction, or, alternatively, on grounds that plaintiff fails to state a claim upon which relief may be granted because worker's compensation is the exclusive remedy available.³

II. Discussion

A. Legal Standards

1. Motion to Dismiss for Lack of Subject Matter Jurisdiction

"Federal courts are courts of limited jurisdiction" and possess only the power to adjudicate cases that the Constitution and federal statutes permit. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). "A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears." Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.1989) (citing Cal. ex rel. Younger v. Andrus, 608 F.2d 1247, 1249 (9th Cir. 1979)).

When considering a motion to dismiss for lack of subject matter jurisdiction, the district court may properly review evidence outside the pleadings to resolve factual disputes concerning the existence of jurisdiction. Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) ("[W]hen a question of the District Court's jurisdiction is raised, either by a party or by the court on its own motion ... the court may inquire, by affidavits or otherwise, into the facts as they exist."); see also Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir.1983) (consideration of material outside of the pleadings does not convert a Rule 12(b)(1) motion into a summary judgment motion).

2. Motion to Dismiss for Failure to State a Claim

On a motion to dismiss for failure to state a claim upon which relief may be granted, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Cruz v. Beta, 405 U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). To survive a motion to dismiss, a plaintiff needs to plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Dismissal is appropriate, however, where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990); see also Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (complaint must "give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests"), abrogated on other grounds by Twombly, 127 S.Ct. at 1968. "However, the court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir.1994).

B. Subject Matter Jurisdiction with Respect to Plaintiffs Race-Based Allegations in the Title VII and FEHA Claims

Title VII and FEHA place primary responsibility for disposing of employment discrimination complaints with the EEOC and DFEH, respectively, in order to encourage informal conciliation of employment discrimination claims and foster voluntary compliance with Title VII and FEHA. Ong v. Cleland, 642 F.2d 316, 319 (9th Cir.1981); see also Lyle v. Warner Bros. Television Prod., 38 Cal.4th 264, 278, 42 Cal.Rptr.3d 2, 132 P.3d 211 (2006) (noting that standards for employment discrimination and harassment claims under FEHA are identical to those under Title VII). A plaintiff must therefore exhaust his or her administrative remedies under Title VII and/or FEHA before seeking judicial relief from the discriminatory action alleged in his or her administrative charge. Id. at 320, 42 Cal.Rptr.3d 2, 132 P.3d 211.

Defendants contend that plaintiff failed to exhaust her administrative remedies with respect to the race-based allegations encompassed in her Title VII and FEHA claims because she did not include such allegations in her original charge filed jointly with the EEOC and DFEH. Plaintiff does not dispute this contention, and an examination of plaintiff's administrative charge⁴ indeed...