SUSAN ILLSTON, District Judge.
On September 4, 2015 and October 16, 2015, the Court held hearings on defendant's motion to dismiss the second amended complaint. For the reasons set forth below, the Court GRANTS defendant's motion to dismiss the second amended complaint, and GRANTS plaintiff
Plaintiff, who is acting in pro per, filed this case on February 26, 2015. The original complaint appeared to allege that plaintiff had been wrongfully terminated from her position as a paraprofessional at Oakland Unified School District on the basis of her gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In an order filed March 3, 2015, Magistrate Judge Westmore denied without prejudice plaintiff's application for leave to proceed in forma pauperis ("IFP") because plaintiff's application was incomplete. Dkt. 4. The Court's March 3, 2015 order directed plaintiff to file another IFP application with complete information. The same order also dismissed the original complaint, noting that although plaintiff alleged that she had been terminated on the basis of her gender, the complaint did not provide any details of the events that led to her termination. The Court also noted that plaintiff's termination occurred on January 20, 2010, which was more than four years prior to the filing of this action, and is, therefore, likely barred by the statute of limitations. Finally, the Court noted that plaintiff did not allege that she exhausted her administrative remedies prior to filing this lawsuit. The Court dismissed the complaint and granted plaintiff leave to file an amended complaint by March 31, 2015.
On April 27, 2015, plaintiff filed a First Amended Complaint ("FAC").
On June 22, 2015, defendant moved to dismiss the FAC as untimely, as well as based on failure to exhaust administrative remedies and failure to state a claim. On July 7, 2015, plaintiff filed a Second Amended Complaint ("SAC"). The SAC alleges a claim for breach of contract and a claim for "employment discrimination." The SAC alleges that plaintiff was "a union employee with benefits and job related contractual rules." SAC ¶ 6. The SAC alleges that plaintiff "was not reassigned according to contract that states an employee has the right to available work after the 90 day probation. And if work is available to stay working unless on strike which the plaintiff was never on any strike." Id. ¶ 8. The breach of contract claim alleges that defendant "failed to pay Plaintiff her back pay, failed to reassign her, and failed to pay her ongoing salary and benefits, as the contract required it to do." Id. ¶ 14. The employment discrimination claim does not identify the statute or statutes under which it is brought. Under the employment discrimination claim, plaintiff alleges that she "engaged in protected activity by making a complaint of sexual harassment," that defendant "failed to pay Plaintiff her back pay, failed to reassign her, and failed to pay her ongoing salary and benefits," and that "[d]efendant refused to do these things in retaliation for Plaintiff's engaging in protected activity." Id. ¶¶ 17-19. The SAC does not allege that plaintiff exhausted her administrative remedies with regard to the employment discrimination (or retaliation) claim.
On July 21, 2015, plaintiff filed a motion for judgment on the pleadings, and on July 22, 2015, defendant moved to dismiss the SAC. Plaintiff did not file an opposition to defendant's motion to dismiss the SAC. Both motions were scheduled for a hearing on September 4, 2015. In an order filed August 31, 2015, the Court denied plaintiff's motion for judgment on the pleadings. With regard to defendant's motion to dismiss the SAC, the Court's order stated,
Dkt. 36 at 1-2.
On September 4, 2015, the Court held a hearing on defendant's motion to dismiss the second amended complaint. At that hearing, the Court asked plaintiff to clarify the nature of her claims. Plaintiff stated that in 2010, defendant was supposed to reassign her to Skyline High School, and defendant failed to do so. Plaintiff also stated that she believed that the failure to reassign was retaliatory. Plaintiff also stated that her claims arose out of events that occurred in 2014, and that she had a meeting in 2014 with either her union or someone from the school district regarding the failure to reassign her. It was not clear from the discussion at the hearing whether plaintiff had filed an EEOC charge in 2014, or whether the claims that plaintiff wished to pursue in this lawsuit have been exhausted.
On October 16, 2015, the Court held a second hearing on defendant's motion to dismiss the second amended complaint. At that hearing, the Court again asked plaintiff to state the factual basis for her claims. Plaintiff stated that she felt that she had been retaliated against after she complained about harassment, and that the retaliatory act was the failure to reassign her. It was unclear from the discussion at the hearing whether this occurred in 2010 or later, and it was also unclear whether plaintiff had exhausted her administrative remedies regarding this claim. At the hearing, defense counsel stated that he was unaware of any EEOC charge filed by plaintiff against the District aside from the March 24, 2015 EEOC charge, that plaintiff had last worked for the District in January 2010, and that plaintiff had filed previous lawsuits against the District regarding the failure to reassign her. On October 28, 2015, defendant filed a request for judicial notice attaching various documents related to plaintiff's state court lawsuits, including an order declaring plaintiff a vexatious litigant. Dkt. 44.
Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge a federal court's jurisdiction over the subject matter of a complaint. As the party invoking the jurisdiction of the federal court, the plaintiff bears the burden of establishing that the court has the requisite subject matter jurisdiction to grant the relief requested. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376-78 (1994) (citation omitted). A complaint will be dismissed if, looking at the complaint as a whole, it appears to lack federal jurisdiction either "facially" or "factually." Thornhill Publishing Co., Inc. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require "heightened fact pleading of specifics," a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 544, 555.
In deciding whether the plaintiff has stated a claim upon which relief can be granted, the court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
If the Court dismisses the complaint, it must then decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted).
Defendant contends, inter alia, that plaintiff has not established federal subject matter jurisdiction because the SAC does not allege that plaintiff filed a charge with the EEOC regarding the alleged employment discrimination. "To establish federal subject matter jurisdiction, a plaintiff is required to exhaust his or her administrative remedies before seeking adjudication of a Title VII claim." Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002). "Exhaustion of administrative remedies under Title VII requires that the complainant file a timely charge with the EEOC, thereby allowing the agency time to investigate the charge." Id. at 1104; 42 U.S.C. § 2000e-5(b). In addition, for this Court to have jurisdiction over plaintiff's claims, plaintiff must allege a claim under federal law.
The Court finds that the SAC does not state a claim over which this Court has jurisdiction because the SAC does not allege that plaintiff exhausted her administrative remedies, and the SAC does not identify a federal statute under which plaintiff brings her claims. In light of plaintiff's pro se status, the Court will grant plaintiff
For the reasons set forth above, the Court GRANTS defendant's motion to dismiss the second amended complaint, and GRANTS plaintiff one final opportunity to amend. Dkt. 32.
