ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Re: Dkt. No. 9.

YVONNE GONZALEZ ROGERS, District Judge.

Plaintiff Lutrell B. Huddleston brings this pro se action against defendants the City & County of San Francisco ("CCSF"), the Office of Treasurer and Tax Collector for CCSF, and David Augustine and Debra Lew in their official capacities only1 for alleged employment discrimination. (Dkt. No. 1.) Specifically, plaintiff brings five counts against defendants for violations of: (i) Title VII of the Federal Civil Rights Act;2 (ii) 42 U.S.C. Section 1981 for prohibited discrimination in the making or enforcement of employment laws; (iii) 42 U.S.C. Section 1985 for conspiring to violate federal civil rights; (iv) the California Unruh Civil Rights Act, California Civil Code Section 51; and (v) San Francisco Charter Section 10.103, the City & County of San Francisco Civil Service Commission Rules 103, 203, 303, and 403, and California Civil Code 51.7.

Now before the Court is defendants' Motion to Dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Having carefully considered the pleadings and the papers submitted on this motion, and for the reasons set forth more fully below, the Court GRANTS defendants' motion to dismiss as follows. Plaintiff shall file an amended complaint consistent with the rulings made herein by October 17, 2016.3

I. FACTUAL ALLEGATIONS

Plaintiff is a citizen of the State of California residing in San Francisco County. (Compl. ¶ 1.)4 She worked as a legal assistant within the Legal Section of the Office of the Treasurer & Tax Collector of CCSF. (Id. at ¶ 13.)

Plaintiff's allegations of discriminatory and retaliatory treatment begin in 2012, when defendant David Augustine became the manager of the Legal Section of the Office of the Treasurer & Tax Collector. (Id.) Plaintiff alleges that Augustine subjected her to "countless occasions of regular abuse, employment law violations, sexual and other discrimination, harassment, retaliation, humiliation and severe scrutiny, while in a protected class." (Id.) Plaintiff also claims she was subject to a "`special' type of retaliation" in connection with a situation involving another employee. (Id. at ¶ 14.) The complaint provides that she filed informal reports and complaints with the U.S. Equal Employment Opportunity Commission ("EEOC") and her local union regarding Augustine's behavior. (Id. at ¶ 15; see also Dkt. No. 1 at 4 (2013 Charge of Discrimination).)

Next, plaintiff alleges that she "experienced harassment and retaliation at the hands of her supervisor Debra D. Lew," and that Augustine and another supervisor, Tajel Shaw, took no action in violation of Civil Service Commission Rule 103. (Id. ¶ 16.) As a result of this continued harassment, plaintiff claims that she had a "nervous breakdown" for which she was hospitalized. (Id. ¶¶ 17-18.) Prior to returning to work, plaintiff claims that a senior staff member informed her that no action would be taken regarding her harassment complaints and that she should quit her job. (Id. ¶ 18.)

At some point, the Legal Section hired a new manager. (Id.) Yet, plaintiff claims that she continued to be "subject to daily retaliation and harassment with scrutiny becoming worse," causing her to have panic attacks. (Id.) Ultimately, plaintiff asserts she was forced to retire. (Id.) According to plaintiff, at the time she was forced into retirement in September 2014, she was sixty-three years old, had twelve years of experience working for the City & County of San Francisco, and was the only African American employee within the Legal Section. (Id. at ¶ 13.)

II. LEGAL STANDARD

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; see also In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (stating that a court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences") (citation omitted).

"Federal Rule of Civil Procedure 8(a)(2) requires only a `short and plain statement of the claim showing that the pleader is entitled to relief,' in order to `give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Twombly, 550 U.S. at 554-55 (quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original) (citation omitted). Even under the liberal pleading standard of Rule 8(a)(2), "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) (internal brackets and quotation marks omitted)). The Court will not assume facts not alleged, nor will it draw unwarranted inferences. Iqbal, 556 U.S. at 679 ("Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.").

Courts ordinarily construe complaints filed by pro se plaintiffs liberally. Pena, 976 F.2d at 471. However, a "liberal interpretation of a [pro se] civil rights complaint may not supply essential elements of the claim that were not initially pled. Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id. (quoting Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)).

III. DISCUSSION

A. Count I: Violation of Title VII of the Civil Rights Act

Title VII makes it unlawful for an employer to subject an employee to (i) discrimination on account of "race, color, religion, sex, or national origin" or (ii) retaliation because of involvement in certain protected activities. See 42 U.S.C. § 2000e-2(a)(1) (prohibiting discrimination based on race, color, religion, sex, or national origin); 42 U.S.C. § 2000e-3(a) (prohibiting retaliation against employees for opposing any practice made unlawful by Title VII or for making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing under Title VII).5

With respect to claims of discrimination under Title VII, a plaintiff may proceed under several legal theories. See Sischo-Nownejad v. Merced Comm. College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991) (stating that plaintiffs may proceed pursuant to Title VII under theories of disparate treatment, disparate impact, or the existence of a hostile work environment), superseded by statute on other grounds as rec'd in Recinto v. U.S. Dep't of Vet. Affairs, 706 F.3d 1171 (9th Cir. 2013). Based on the allegations in the complaint, plaintiff appears to raise claims under Title VII based on a theory of disparate treatment or the existence of a hostile work environment.6 To assert a claim for disparate treatment, plaintiff must allege that: (i) she is a member of a protected class; (ii) she was qualified for her position; (iii) she experienced an adverse employment action; and (iv) similarly situated individuals outside of her protected class were treated more favorably, or that other circumstances existed surrounding the adverse employment action that give rise to an inference of discrimination. See Fonseca v. Sysco Food Servs. of Az., Inc., 374 F.3d 840, 847 (9th Cir. 2004). The elements for a claim of hostile work environment are: (i) plaintiff was subjected to verbal or physical conduct because of her race, color, religion, sex, or national origin; (ii) the conduct was unwelcome; and (iii) the conduct was sufficiently severe or pervasive as to alter the condition of plaintiff's employment and create an abusive work environment. See Manatt v. Bank of Am., N.A., 339 F.3d 792, 798 (9th Cir. 2003).

With respect to her retaliation claim under Title VII, plaintiff must allege that: (i) she engaged in a protected activity; (ii) the employer subjected her to an adverse employment action; and (iii) a causal link exists between the protected activity and the adverse action. Klat v. Mitchell Repair Info. Co., LLC, No. 10-CV-0100, 2010 WL 1028157, at *2 (S.D. Cal. Mar. 18, 2010) (citing Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000)).

Plaintiff's bare allegations that she experienced "countless occasions of regular abuse, employment law violations, sexual and other discrimination, harassment, retaliation, humiliation[,] and severe scrutiny, while in a protected class" are only conclusions. They lack the factual allegations upon which the conclusions are based. Accordingly, they fail to meet basic pleading standards. (Compl. ¶ 13); see Iqbal, 556 U.S. at 678 ("Threadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice."). For instance, plaintiff at one point alleges that she was subjected to a "special" type of retaliation in connection with another employee, but she provides no details as to the incident with the other employee or what retaliation she received. (Id. ¶ 14.) Similarly, plaintiff claims that she experienced harassment and retaliation at the hands of Lew, but again fails to allege any facts describing the harassment or retaliation. (Id. at ¶ 16.) Such allegations are insufficient to sustain a claim under Title VII because they fail not only to raise an inference of discriminatory intent but also because they lack facts to support plaintiff's conclusion that she was subjected to any adverse employment actions or abusive physical or verbal conduct at all. Twombly, 550 U.S. at 555 (holding that labels, conclusions, or a formulaic recitation of the elements of a claim are insufficient at the pleadings stage).

Plaintiff also alleges that she was forced into retirement in September 2014. (Id. ¶ 13.) Although such an allegation can support plaintiff's claim that she was subjected to an adverse employment action, that she was forced into retirement while being a member of a protected class—in this case, a black woman—is insufficient without more to raise an inference that such action was taken for a discriminatory or retaliatory purpose. See, e.g., Xing Xing Lin v. Potter, No. 10-CV-03757, 2011 WL 1522382, at *13 (N.D. Cal. Apr. 21, 2011) (dismissing claims under Title VII where plaintiff failed to plead sufficient facts "regarding the causal link between the adverse employment action and the protected activity"); Williams v. Los Angeles Unified School Dist., No. 10-CV-01417, 2010 WL 4794943, at *7 (C.D. Cal. Nov. 18, 2010) (dismissing discrimination claims under Title VII where plaintiff failed to plead "non-conclusory factual allegations" that gave rise to an inference of unlawful discrimination). Plaintiff must allege the facts upon which she concludes she was so "forced." Thus, for the same reasons, plaintiff's allegations that defendants failed to investigate her complaints are insufficient to raise an inference that defendants' failure to act was motivated by discriminatory or retaliatory intent. (See Compl. ¶¶ 16-18); cf. Brown v. Dep't of Public Safety, 446 F. App'x 70, 72-73 (9th Cir. 2011) (holding at summary judgment that plaintiff must demonstrate that any failure to investigate complaints of harassment was motivated by racial discrimination).

The Court therefore DISMISSES WITHOUT PREJUDICE plaintiff's Title VII claims with leave to amend.

B. Count II: Violation of Section 1981 of the Civil Rights Act

Section 1981 guarantees to all persons the same right to "make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property." 42 U.S.C. § 1981. The same elements that apply in discrimination and retaliation claims under Title VII in Count I also apply under Section 1981. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103, 1106-09 (9th Cir. 2008); Fonseca, 374 F.3d at 850 ("Analysis of an employment discrimination claim under [Section] 1981 follows the same legal principles as those applicable in a Title VII disparate treatment case."). "Both require proof of discriminatory treatment and the same set of facts can give rise to both claims." Fonseca, 374 F.3d at 850 (citing Lowe v. Monrovia, 775 F.2d 998 (9th Cir. 1985)). Thus, for the same reasons discussed above in the context of plaintiff's claims under Title VII, plaintiff has failed to state a claim under Section 1981.7

Additionally, a municipality cannot be held liable under Section 1981 unless the alleged constitutional violation was committed pursuant to an official policy, custom, or practice. See Fed. of African Am. Contractors v. Oakland, 96 F.3d 1204, 1214-15 (9th Cir. 1996); see also Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 691 (1978) (holding that under Section 1983 municipalities may only be held liable if the violation was committed pursuant to an official policy, custom, or practice).8 Plaintiff has not alleged facts supporting the existence of any policy, custom, or practice responsible for the alleged discrimination and retaliation to which she was subjected. Instead, plaintiff has made a bare conclusory allegation that defendants "engaged in a systemic level [sic] and grossly disparate hiring & promotion practices, management intimidation, bias, cronyism; nepotism; sexism; favortism [sic] and race discrimination within its citywide departments." (Compl. ¶ 10.) Such bare allegations are insufficient to survive a motion to dismiss. See Via v. Fairfield, 833 F.Supp.2d 1189, 1196 (E.D. Cal. 2011) (finding in the context of a claim against a state actor under Section 1983 that "conclusory allegations that lack factual content" are insufficient to survive a motion to dismiss).9

Therefore, the Court DISMISSES WITHOUT PREJUDICE plaintiff's claims under Section 1981 of the Civil Rights Act with leave to amend.

C. Count III: Violation of Section 1985 of the Civil Rights Act

To state a claim under Section 1985, plaintiff must allege: (i) the existence of a conspiracy; (ii) that the goal of the conspiracy was to deprive her of the equal privileges and immunities under the laws; (iii) an act in furtherance of the conspiracy; and (iv) that plaintiff suffered an injury or deprivation of her rights or privileges. 42 U.S.C. § 1985(3); see Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). "A mere allegation of conspiracy without factual specificity is insufficient." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988). The absence of an underlying claim for a deprivation of plaintiff's rights "precludes a section 1985 conspiracy claim predicated on the same allegations." Thornton v. St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005).

Here, the alleged conspiracy relates to the violations asserted in Counts I and II. Because plaintiff has failed to allege facts sufficient to sustain her underlying claims for constitutional violations under Title VII and under Section 1981, her Section 1985 claim also fails. Further, plaintiff has also failed to allege any facts that support the existence of a conspiracy. Accordingly, the Court DISMISSES WITHOUT PREJUDICE plaintiff's section 1985 claim with leave to amend.10

D. Counts IV and V: Causes of Action Under California Law

Plaintiff also brings two counts under California law: (i) Count Four under California Civil Code Section 51, the Unruh Civil Rights Act; and (ii) Count Five under the San Francisco Charter, certain Civil Commission Rules, and California Civil Code Section 51.7.

As a threshold matter, the Court addresses whether plaintiff's claims under California law are barred as a result of plaintiff's failure to comply with the California Tort Claims Act ("CTCA"). See Cal. Gov. Code § 905. Under the CTCA, "a plaintiff may not maintain an action for damages against a public entity unless a written claim has first been presented to the appropriate entity and has been acted upon by that entity before filing suit in court." Butler v. Los Angeles, 617 F.Supp.2d 994, 1001 (C.D. Cal. 2008) (citing Cal. Gov. Code §§ 905, 945.4, 950.2 and Mangold v. Cal. Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995) ("The California Tort Claims Act requires, as a condition precedent to suit against a public entity, the timely presentation of a written claim and the rejection of the claim in whole or in part.")). Plaintiffs must present such claims to the entity they intend to sue "not later than six months after the accrual of the cause of action." Id. at 1002. "Plaintiffs must `allege facts demonstrating or excusing compliance with the claim presentation requirements'" to survive a motion to dismiss. Id. at 1001 (quoting California v. Sup. Ct. (Bodde), 32 Cal.4th 1234, 1239 (2004)); see also Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 627 (9th Cir. 1988).

Here, plaintiff concedes in her opposition that "she did not file a written claim with CCSF within six months of the date of the injury." (Dkt. 18 at 4.) Plaintiff argues that the ongoing nature of the discrimination she faced was the reason why she did not file a written claim with CCSF. (Id.) Even if that were an acceptable excuse, plaintiff herself alleges that she was forced into retirement in September 2014. At the very latest, therefore, plaintiff would have had to have filed a claim with CCSF by March 2015. Because no amendment could cure this deficiency in plaintiff's complaint, the Court DISMISSES WITH PREJUDICE plaintiff's state law claims under Counts Four and Five.11

IV. CONCLUSION

For the foregoing reasons, the Court DISMISSES WITHOUT PREJUDICE Counts I, II, and III of the complaint. The Court DISMISSES WITH PREJUDICE claims under Title II of the Civil Rights Act and Counts Four and Five of the complaint. Plaintiff must file her amended complaint by Monday, October 17, 2016. Defendants' response shall be filed twenty-one (21) days thereafter.

The Court advises plaintiff that a Handbook for Pro Se Litigants, which contains helpful information about proceeding without an attorney, is available in the Clerk's office or through the Court's website, http://cand.uscourts.gov. The Court also advises plaintiff that additional assistance may be available by making an appointment with the Legal Help Center. There is no fee for this service. Please visit the Court's website or call the phone numbers listed below for current office hours, forms, and policies.

To make an appointment with the Legal Help Center in Oakland, plaintiff may visit the Oakland Courthouse, located at 1301 Clay Street, Room 470S, Oakland, California or call (415) 782-8982.

To make an appointment with the Legal Help Center in San Francisco, plaintiff may visit the San Francisco Courthouse, located at 450 Golden Gate Avenue, 15th Floor, Room 2796, San Francisco, California, or call (415) 782-8982.

To make an appointment with the Federal Legal Assistance Self-Help Center in San Jose, plaintiff may visit the San Jose Federal Courthouse, located at 280 South 1st Street, 4th Floor, Rooms 4093 & 4095, San Jose, California, or call (408) 297-1480.

This Order terminates Docket Number 9.

IT IS SO ORDERED.