SAUNDRA BROWN ARMSTRONG, District Judge.
Plaintiff, a 61-year-old African-American, Muslim and disabled female, alleges that her former employer, Defendant Peralta Community Colleges ("Defendant" or "Peralta"), discriminated and retaliated against her on account of her race, religion, sex and disability. She alleges federal claims under Title I of The Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq.; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.; and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq. Plaintiff also alleges supplemental state law claims for breach of contract and breach of collective bargaining agreement. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367(a).
The parties are presently before the Court on Defendant's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 36. Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS IN PART and DENIES IN PART the motion, as set forth below. The Court, in its discretion, finds this matter suitable for resolution without oral argument.
Beginning in 1990, Plaintiff began working at Merritt College ("Merritt") as a Physical Education ("PE") instructor.
While at Merritt, Plaintiff made numerous attempts to obtain a position at Laney. Specifically, after earning a Master's Degree in Physical Education, Health and Recreations in 2004, Plaintiff requested an assignment to teach PE classes at Laney.
From 2005 to 2009, Plaintiff continued to request an assignment to teach PE classes at Laney, but her requests were denied and/or ignored by Defendant.
On June 29, 2009, Plaintiff complained to her supervisor about what she perceived as discriminatory treatment.
On May 28, 2010, Peralta notified Plaintiff that its Board of Trustees had eliminated certain positions due to budget cuts, and that she was being laid off, effective July 14, 2010. Compl. ¶ 30 & Ex. V.
During and after her term of employment with Peralta, Plaintiff filed four EEOC charges based on various complaints of discrimination and retaliation.
On February 8, 2010, Plaintiff filed an EEOC charge against Peralta for discrimination based on race, sex, religion, age, and retaliation.
Less than a week after submitting her first complaint, Plaintiff filed a second EEOC charge against Peralta on February 16, 2010 for discrimination based on race, sex, disability, and retaliation.
On May 11, 2010, Plaintiff filed a third EEOC Charge against Peralta, this time, for discrimination based on disability and retaliation.
On August 24, 2010, Plaintiff filed her fourth and final EEOC Charge against Peralta for discrimination based on sex, disability, and retaliation.
The EEOC issued a Right-to-Sue letter to Plaintiff based on her first EEOC charge on January 6, 2011.
On April 8, 2011, Plaintiff, acting pro se, filed a form employment discrimination complaint in this Court alleging that Peralta failed to hire her on account of her race, religion and sex. Compl., Dkt. 1. Plaintiff also alleged that Peralta breached the EEOC Settlement Agreement and retaliated again her by making unspecified false accusations to the EEOC. On July 14, 2011, Judge Fogel granted Peralta's motion to transfer venue, and the action was transferred to the San Francisco/Oakland Division of this Court. Dkt. 22.
On October 28, 2011, Plaintiff, now represented by counsel, filed a First Amended Complaint ("FAC"), which alleges eight claims for relief: (1) disability discrimination under the ADA; (2) race discrimination under Title VII; (3) sex discrimination under Title VII; (4) religious discrimination under Title VII; (5) age discrimination under the ADEA; (6) retaliation under Title VII; (7) breach of contract; and (8) breach of the CBA. FAC ¶¶ 34-113, Dkt. 29. These claims do not specifically identify the conduct that forms the basis thereof; rather, they merely incorporate by reference all of the conduct alleged in the first thirty-three paragraphs of the FAC, which chronicles various events since her hiring in 1990.
Defendant now moves to dismiss Plaintiff's seventh claim for breach of contract and eighth claim for breach of collective bargaining agreement, and to limit the temporal scope of Plaintiff remaining claims for discrimination and retaliation. Plaintiff and Peralta timely filed an opposition and reply, respectively. The matter is fully briefed and is ripe for adjudication.
A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory.
To survive a motion to dismiss for failure to state a claim, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face."
"It has long been established that an individual employee may bring suit against his employer for breach of a collective bargaining agreement," pursuant to § 301 of the LMRA.
The mandatory procedure for pursuing a grievance under the CBA is set forth in Article 19 of the CBA. Def.'s RJN Ex. A ("CBA"). The initial step of the grievance procedure is the "Informal Review" process, which requires the faculty member to first seek an informal meeting with his or her first level manager.
The FAC does not allege that Plaintiff exhausted her administrative remedies in accordance with the CBA—and Plaintiff tacitly concedes in her opposition brief that she failed to do so. Instead, Plaintiff claims that she "attempted to exhaust the [CBA]'s grievance procedures on August 14, 2009 by complaining to high ranking officials." Pl.'s Opp'n at 4 (emphasis added). Under the specified grievance procedure, however, Plaintiff should have first sought an informal meeting with her supervisor, as opposed to complaining to "high ranking officials." CBA Art. 19, ¶ O. That aside, Plaintiff's communications with those officials make no mention of any complaints of discrimination or retaliation, and instead, pertain only to whether she was on the Part-Time Faculty Rehire Preference Pool list. Compl. Ex. S. And even if Plaintiff's emails could be construed as an effort to initiate the Informal Review process, Plaintiff fails to allege any facts showing that she attempted to comply with any of the three steps comprising the Formal Review process.
Alternatively, Plaintiff contends that between August 2009 and May 2010, she attempted to commence the grievance process by contacting her Union representative, but was informed that Peralta was in compliance with the CBA and "that [the Union] could not help her." Pl.'s Opp'n at 5-6. This allegation is not set forth in the FAC, and as such, cannot be considered in response to a motion to dismiss.
Plaintiff's seventh claim alleges that Peralta breached the 2005 Settlement Agreement. As an initial matter, Peralta contends that it is not bound by the 2005 Settlement Agreement on the grounds that the obligations thereunder only apply to Merritt, while Plaintiff alleges that the breach was allegedly committed by Laney. Def.'s Mot. at 13. As Plaintiff points out in her opposition, however, the FAC alleges that Peralta is a single entity that is bound by and which breached the terms of the agreement. Pl.'s Opp'n at 7; FAC ¶¶ 2, 107. Tellingly, Peralta does not respond to Plaintiff's contention.
Peralta next contends that Plaintiff's breach of contract claim fails on the ground that she has failed to allege compliance with the California Tort Claims Act ("CTCA"). "As a condition precedent to suit against a public entity, the [CTCA] requires the timely presentation of a written claim and the rejection of the claim in whole or in part."
California Government Code § 910 requires that a "claim" include: (1) the name and address of the claimant, (2) the address to which notices are to be sent, (3) the date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted, (4) a general description of the indebtedness, obligation, injury, damage or loss incurred, (5) the name or names of the public employee or employees causing the injury, damage, or loss, and (6) the amount claimed if it totals less than $10,000. Cal. Gov. Code § 910. Because compliance with the CTCA is deemed to be a substantive element of a plaintiff's claim, compliance must be stated or shown in a complaint in order for a plaintiff to proceed on the claim.
Plaintiff asserts that Peralta is not a public entity subject to the CTCA. This contention lacks merit. A community college district, such as Peralta, is a "local public entity," within the meaning of the CTCA, to which a claim must be presented as a condition precedent to bringing a lawsuit for money or damages. Cal. Gov. Code, § 900.4;
Alternatively, Plaintiff contends that to the extent that her claims are subject to the CTCA, she has "substantially complied" with its requirements. Opp'n at 8. If a claimant has attempted to comply with the CTCA's requirements but the claim is deficient in some way, the doctrine of substantial compliance may validate the claim "if it substantially complies with all of the statutory requirements . . . even though it is technically deficient in one or more particulars."
Plaintiff's claim of substantial compliance is uncompelling. Her EEOC charge makes no mention of the 2005 Settlement Agreement or its terms.
Accordingly, the Court GRANTS Defendant's motion to dismiss Plaintiff's seventh claim for breach of contract, which is dismissed with prejudice.
Title VII provides that employers may not "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). The ADEA prohibits an employer from engaging in discrimination against an employee because of an employee's age. 29 U.S.C. § 623. Both Title VII and the ADEA require exhaustion of administrative remedies before filing a lawsuit alleging employment discrimination. See 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d);
To timely exhaust administrative remedies under Title VII or the ADEA, a plaintiff must file a charge with the EEOC within 180 days from the last act of alleged discrimination, unless the complainant initially institutes proceedings with a state or local agency, in which case the EEOC charge must be filed within 300 days of the last discriminatory act, or within 30 days of receiving notice that the state or local agency has terminated proceedings, whichever is earlier. 42 U.S.C. § 2000e-5(e); 29 U.S. § 626(d)(1). Furthermore, a plaintiff seeking to file a complaint in federal court under Title VII or ADEA must do so within 90 days of receiving the EEOC's right to sue letter. 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 626(e);
Here, Plaintiff filed her initial administrative charge with the EEOC on February 8, 2010, wherein she alleged discrimination, inter alia, on the basis of age and religion. FAC Ex. O. Though she filed three subsequent EEOC charges, none of them again alleged age or religious discrimination.
Both her initial and second administrative charges and her charge, dated February 8 and 16, 2010, respectively, included a claim of race discrimination. As such, Defendant contends that all acts of alleged race discrimination occurring more than 300 days prior to February 8, 2009 (i.e., April 14, 2009) and after February 16, 2010 should be barred for failure to exhaust. Def.'s Mot. at 14. As above, Plaintiff does not dispute that race discrimination claims arising from conduct outside that time-frame are not actionable. Pl.'s Opp'n at 10. Accordingly, the Court GRANTS Peralta's motion to dismiss Plaintiff's claim for race discrimination insofar as it is based on any conduct occurring prior to April 14, 2009 and after February 16, 2010.
All four of Plaintiff's administrative charges alleged discrimination on account of her sex (gender) and retaliation. As the first such charge was filed on February 8, 2010, Defendant contends, and Plaintiff does not dispute, that any conduct occurring more than 300 days prior to that date is not actionable. Accordingly, the Court GRANTS Peralta's motion to dismiss Plaintiff's claims for sex discrimination and retaliation insofar as they are based on any conduct occurring prior to April 14, 2009.
The first administrative charge containing a claim for disability discrimination is dated February 16, 2010. As above, Defendant contends, and Plaintiff does not dispute, that any conduct occurring more than 300 days before that date, i.e., April 22, 2009, is not actionable as disability discrimination. Accordingly, the Court GRANTS Peralta's motion to dismiss Plaintiff's claims for disability discrimination insofar as it is based on any conduct occurring prior to April 22, 2009.
IT IS HEREBY ORDERED THAT:
1. Defendant's motion to dismiss is GRANTED IN PART and DENIED IN PART as follows:
a. Defendant's motion to dismiss Plaintiff's claim for breach of contract is GRANTED. Said claim is dismissed with prejudice.
b. Defendant's motion to dismiss Plaintiff's claim for breach of the CBA is GRANTED. Said claim is dismissed with leave to amend. Plaintiff shall have fourteen (14) days from the date this Order is filed to file a Second Amended Complaint, consistent with the Court's rulings. Plaintiff is advised that any additional factual allegations set forth in her amended complaint must be made in good faith and consistent with Rule 11.
c. Defendant's motion to dismiss Plaintiff's claims for religious and age discrimination is GRANTED insofar as they are based on any conduct occurring prior to April 14, 2009 and after February 8, 2010.
d. Defendant's motion to dismiss Plaintiff's claim for race discrimination is GRANTED insofar as it is based on any conduct occurring prior to April 14, 2009 and after February 16, 2010.
e. Defendant's motion to dismiss Plaintiff's claims for sex discrimination and retaliation are GRANTED insofar as they are based on any conduct occurring prior to April 14, 2009.
f. Defendant's motion to dismiss Plaintiff's claims for disability discrimination is GRANTED insofar as it is based on any conduct occurring prior to April 22, 2009.
2. This Order terminates Docket No. 33.
