Poole v. Garland

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 KAIRE POOLE, Case No. 20-cv-09379-PJH 8 Plaintiff, 9 v. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS 10 MERRICK B. GARLAND, Re: Dkt. No. 27 11 Defendant. — 12 — — 13 — 14 Defendant’s motion to dismiss plaintiff’s second amended complaint (“SAC”) came 15 on for hearing before this court on October 14, 2021. Plaintiff appeared through her 16 counsel, Michael Hawbecker. Defendant appeared through his counsel, Kenneth 17 Brakebill. Having read the papers filed by the parties and carefully considered their 18 arguments and the relevant legal authority, and good cause appearing, the court hereby 19 GRANTS defendant’s motion, for the reasons stated at the hearing. 20 As noted at the hearing, “Title VII provides the exclusive judicial remedy for claims 21 of discrimination in federal employment.” McGee v. Dejoy, 821 F.App’x 860, 861 (9th Cir. 22 2020) (citing White v. Gen. Servs. Admin., 652 F.2d 913, 916-17 (9th Cir. 1981)); see 23 also Brown v. Gen. Servs. Admin., 425 U.S. 820, 824 (1976). This case involves 24 allegations of racial discrimination in federal employment. Therefore, the claims, 25 currently pleaded as violations of Title 42 U.S.C. §1981 , must be re-pleaded under Title 26 VII. The court grants plaintiff leave to amend her first and second claims for hostile 27 environment and disparate treatment. In the third amended complaint, the allegations of 1 header “adverse employment actions/disparate treatment of plaintiff.” Defendant has 2 properly grouped the factual allegations found in this section of the SAC into 6 3 categories, to which the court has added a seventh. Dkt. 26 ¶¶ 72-107. Plaintiff’s third 4 claim for retaliation is dismissed with prejudice based on plaintiff’s continued failure to 5 plead facts establishing a causal nexus between her prior protected activity and the 6 conduct at issue in this lawsuit. 7 Plaintiff may file her amended complaint, complying with the guidance given on the 8 record, within 28 days of the date of this order. Defendant may respond within 28 days 9 following plaintiff’s filing. 10 IT IS SO ORDERED. 11 Dated: October 15, 2021 12 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 13 United States District Judge — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 —