YVONNE GONZALEZ ROGERS, District Judge.
On August 1, 2017, plaintiff Samuel E. Austin, proceeding pro se, filed a first amended complaint alleging four causes of action for gender discrimination (Count I) and hostile work environment sexual harassment (Count III) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e ("Title VII"); and for failure to accommodate (Count II) and retaliation (Count IV) under the Americans with Disabilities Act, 42 U.S.C. 12101 (the "ADA"), against a litany of defendants, namely Equal Opportunity Program Administrator Barbara A. Sylvester; Barbara J. Parker and Selia M. Warren of the City of Oakland's Attorney's Office; Oakland Police Department Deputy Chief John Lois; Steve Pitocchi of the Local 1021 Service Employees International Union; Assistant Mayor Sabrina Landreth; Public Works manager Darin Minor; Marco Torres; Everett Cleveland; Roslyn Ratliff; Jemea Jeffrey;Yolanda Lopez, Debbie Corso; Kip Walsh; Adama Wilson; Dwight McElroy; Shelia Stolin (the "Individual Defendants"); and the City of Oakland (the "City"). (Dkt. No. 11, First Amended Complaint ("FAC").
Defendants now move to dismiss all counts alleged in the FAC.
Having carefully considered the pleadings and the arguments of the parties, the Court hereby
In March of 2013, Austin began working as a part-time custodian in the City of Oakland's Public Works Administration. (FAC at 3.)
Over the course his employment, Austin was allegedly involved in a number of incidents in which he engaged in hostile and aggressive behavior toward his coworkers and supervisors. (See FAC at 13, 20.) In October 2016, the City filed a petition for a workplace violence restraining order with the Alameda County Superior Court. (See FAC at 13, 20.) The City also conducted a threat assessment of Austin and discovered that, contrary to Austin's representations when he applied for a full-time custodian position, he had previously been convicted of multiple felonies. (See FAC 13-15, 20, 34.) Following a hearing at which Austin testified, the Alameda County Superior Court issued a three-year restraining order against Austin. (RJN, Ex. A.)
Following a subsequent administrative investigation and hearing, the City determined that Austin knowingly misled the City by omitting material information on his Criminal History Form and terminated Austin's employment, effective February 8, 2017. (See FAC at 13-14, 20, 34.) On February 10, 2017, Austin filed an administrative charge against the City of Oakland's Public Works Agency. (FAC at 15.) On February 24, the Equal Employment Opportunity Commission ("EEOC") issued Austin a right-to-sue letter, which Austin alleges he received on February 27, 2017. (Id.) This lawsuit ensued.
Pursuant to Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief may be granted. Dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). The complaint must plead "enough facts to state a claim [for] relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If the facts alleged do not support a reasonable inference of liability, stronger than a mere possibility, the claim must be dismissed. Id. at 678-79. Mere "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).
Austin's FAC asserts claims under Title VII and the ADA against seventeen Individual Defendants. (FAC at 17, 24, 29, 31.) However, only an "employer" may be held liability under Title VII or the ADA. See 42 U.S.C. §§ 2000e(b); 2000e-3(a); 42 U.S.C. § 12111(5)(a). Neither Title VII nor the ADA imposes liability on individual supervisors or other employees. See Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir. 2007) ("Title VII does not provide a separate cause of action against supervisors or co-workers."); Walsh v. Nev. Dep't of Human Res., 471 F.3d 1033, 1037-38 (9th Cir. 2006) ("[I]ndividual defendants cannot be held personally liable for violations of the ADA").
Therefore, the Court
To state a prima facie case of gender discrimination under Title VII, Austin must allege that he (1) belongs to a protected class, (2) performed his job satisfactorily, (3) suffered an adverse employment action, and (4) was treated differently because of his membership in the protected class. Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (internal citation omitted). To establish the fourth element, Austin must allege either direct evidence of discrimination, such as derogatory comments about his gender or circumstantial evidence, "which may include allegations that similarly situated individuals outside [his] protected class were treated more favorably or that other circumstances surrounding the at-issue employment action give rise to an inference of discrimination." McCarthy v. Brennan, 2016 WL 946099 at *4. (N.D. Cal. 2016).
Here, Austin fails to allege facts sufficient to raise a plausible inference that he received different treatment because of his gender. Plaintiff alleges several contentious incidents involving his coworkers and supervisors and asserts that these incidents constitute gender discrimination. (FAC at p. 17-24.) Such conclusory assertions are insufficient to raise a plausible inference that Austin was treated differently because of his membership in the protected class. See Cornwell, 439 F.3d at 1028; Knox v. Donahoe, 2012 WL 949030, at *7 (N.D. Cal. Mar. 20, 2012). Accordingly, defendants' motion to dismiss Count I is
To state a claim for sexual harassment causing a hostile work environment, Austin must allege "(1) that he was subjected to verbal or physical conduct of a harassing nature, (2) that this conduct was unwelcome, and (3) that the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Arizona ex rel. Horne v. Geo Grp., Inc., 816 F.3d 1189, 1206 (9th Cir. 2016). The conduct must be so "extreme as to amount to a change in the terms and conditions of employment." Id. (internal quotation marks omitted). C ourts determine whether an environment is sufficiently hostile by examining "all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (internal quotation marks omitted). "The absence of any tangible job detriment requires a commensurately higher showing that the sexually harassing conduct was pervasive and destructive of the working environment." Kob v. Cnty. of Marin, 2009 WL 10680775, at *7 (N.D. Cal. Nov. 25, 2009) (internal quotation marks omitted). One isolated incident generally is not sufficient to establish a hostile work environment claim. Craig, 496 F.3d at 1055-56 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)); Brooks v. City of San Mateo, 229 F.3d 917, 926 (9th Cir. 2000) ("If a single incident can ever suffice to support a hostile work environment claim, the incident must be extremely severe.").
Here, Austin concedes that the alleged harassment did not "deprive [him] of any tangible job benefit." (FAC at 30.) Austin's hostile work environment claim apparently arises from a single incident in which a coworker sent Austin a vulgar text message. (FAC at 30.) Austin does not allege physical implications of a sexual nature or that the text messages interfered with his work performance. See Geo Grp., 816 F.3d at 1206. The Court thus finds that this incident fails to raise a plausible inference that defendants' conduct was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id.
Therefore, defendants' motion to dismiss Count III is
To state a prima facie case for failure to provide a reasonable accommodation under the ADA, Austin must plead facts showing that (1) he had a disability; (2) he actually requested an accommodation; (3) the requested accommodation was reasonable; and (4) the request was refused. Huynh v. Harasz, 2016 WL 2757219, at *11-13 (N.D. Cal. May 12, 2016). Austin's claim fails for two reasons: First, Austin has not alleged facts to support his claim that he had a qualifying disability under the ADA. Second, Austin has not alleged facts showing that he notified the City of a qualifying disability or requested an accommodation in connection with a qualifying disability.
With regard to the first reason, which is that the FAC does not allege a qualifying disability under the ADA, Austin must "must allege his disability with specificity" and "specify what major life activities his disability limits." Alejandro v. ST Micro Elecs., Inc., 129 F.Supp.3d 898, 907-08 (N.D. Cal. 2015); see also Bell v. Univ. of Cal. Davis Med. Ctr., 2013 WL 1896318, at *4 (E.D. Cal. May 6, 2013) (citing Bragdon v. Abbott, 524 U.S. 624, 631 (1998); Gribben v. Utd. Parcel Serv., Inc., 528 F.3d 1166, 1169 (9th Cir. 2008)). Here, Austin alleges generally that he has an "immune deficiency disorder and P.T.S," and that his back "goes out . . . from time to time." (FAC at 25.) He further alleges that those conditions impact "[m]ajor bodily functions [and] function of the immune system." (Id.) However, Austin does not specify which "major life activities" are impacted and how his alleged conditions actually impact these activities. See Bell, 2013 WL 1896318, at *4; Alejandro, 129 F. Supp. 3d at 907-08; Lacayo v. Donahoe, 2015 WL 993448 (N.D. Cal. 2012), at *17 (dismissing claims where the plaintiff failed "to specify which condition was purportedly the basis of a discriminatory employment action"); Jackson v. Napolitano, 2010 WL 941110, at *5 (D. Ariz. 2010) (finding complaint insufficient where plaintiff failed to specifically identify the nature of his purported impairment and "how that impairment substantially limits one or more of his major life activities").
Second, Austin has not alleged facts that show he requested an accommodation or notified the City of his purported disability. See Bell, 2013 WL 1896318, at *4; Lacayo, 2015 WL 993448, at *17. Austin alleges that he asked his supervisor for a chair to sit on while working. (FAC at 5, 25, 26.) However, plaintiff fails to allege that he informed his supervisor of his purported disability, or that he required the chair as an accommodation which was related to that disability.
Accordingly, defendants' motion to dismiss Count II is
To state a case of retaliation under Title VII, Austin must show that "(1) he engaged in a statutorily protected activity (i.e., that he protested or otherwise opposed unlawful employment discrimination directed against employees protected by Title VII); (2) subsequently, he suffered an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action." Johnson v. Eckstrom, 2011 WL 5975039, at *2 (N.D. Cal. 2011) (citing Thomas v. City of Beaverton, 379 F.3d 802, 811 (9th Cir. 2004)). To raise the inference of causation necessary to state a prima facie case for retaliation, the alleged protected activity must be "very close" in time to the adverse action. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). Austin's retaliation claim fails for two reasons: First Austin does not allege facts sufficient to show that he engaged in protected activity related to his alleged disability. Second, the FAC does not allege facts to establish a causal link between protected activity and an adverse employment action.
First, as discussed above Austin fails to allege facts to support his claim that he engaged in statutorily protected activity by requesting an accommodation or notifying the City of his purported disability. See Section III.D, supra.
Second, and in any event, the FAC does not allege facts to show a causal link between a protected activity and an adverse employment action. The FAC references three alleged adverse employment actions, namely the City's (i) denial of Austin's complaint to the City's Equal Opportunity Program ("EOP") on July 18, 2016; (ii) petition for a workplace violence restraining order against Austin; and (iii) termination of Austin's employment. Regarding the EOP complaint, Austin concedes that EOP denied his claim on July 18, 2016, because it did not relate to a purported disability or any other protected characteristic. (Id. at 8, 21-22, 27-28.) Thus, the FAC fails to allege a causal connection between the EOP denial and protected activity.
Austin similarly fails to allege a causal link between protected activity and either the City's petition for a workplace violence restraining order or its termination of Austin. Specifically, Austin alleges no facts which suggest that either the restraining order or Austin's termination was connected to his alleged disability or his alleged request for a related accommodation.
Accordingly, defendants' motion to dismiss Count IV is
Punitive damages are not available against governmental entities for claims under Title VII or the ADA. Hines v. Cal. Pub. Utilities Comm'n, 07-cv-4145-CW, 2008 WL 2631361, at *11 (N.D. Cal. June 30, 2008) (Title VII); Peacock v. Terhune, CIV. S-01-1589 WBS/DA, 2002 WL 459928, at **3-5 (E.D. Cal. Jan. 23, 2002) (the ADA). Accordingly, Austin's request for punitive damages is
For the foregoing reasons, the Court
1. Defendants' motion to dismiss Austin's claims against the Individual Defendants is
2. Defendants' motion to dismiss Austin's claims against the City is
3. Plaintiff shall file a second amended complaint by
Austin appears to argue that he raised the issue of his alleged disability in a motion he filed in stated court in response to the City's petition for a workplace violence restraining order. (Dkt. No. 40, Ex. A ("Austin Response to Petition").) However, Austin's state court filing fails to (i) identify a purported disability or (ii) link that\ purported disability to an adverse employment action.
