Lau v. Guam Department of Education

[5] IN THE DISTRICT COURT OF GUAM [6] FOR THE TERRITORY OF GUAM [7] 8 GABRIEL H.T. LAU, CIVIL CASE NO. 10-00035 9 Plaintiff, 10 vs. ORDER [11] DEPARTMENT OF EDUCATION for the 12 GOVERNMENT OF GUAM, 13 Defendant. [14] This matter is before the court on a Motion to Dismiss filed by Defendant Department of [15] Education for the Government of Guam. Having considered the Parties’ arguments and [16] submissions, as well as relevant caselaw and authority, the court hereby issues the following [17] decision. [18] I. BACKGROUND [19] The facts in this case are as follows.1 Gabriel H.T. Lau (“Plaintiff”) is of Chinese race, [20] descent and national origin and suffers from a form of disability known as Obsessive and [21] Compulsive Disorder and impaired vision. ECF No. 54, Third Am. Compl. at ¶21, ¶40. [22] 1This statement of facts is based on the Third Amended Complaint. See ECF No. 54. On a 23 motion to dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), all allegations of material fact stated in the complaint are taken as true and construed in the light most favorable to the nonmoving 24 party. See United States v. One 1997 Mercedes E420, 175 F.3d 1129 , 1130-31 & n.1 (9th Cir. 1999). 1 On or about August 12, 2008, Plaintiff was employed by the Department of Education 2 (“D.O.E.”) at D.L. Perez Elementary School for a probationary period of one year. Id. at ¶9. 3 On November 6, 2008, Plaintiff received from D.O.E. a “Memorandum of Concern,” a 4 warning to “improve” or be subjected to “more stringent discipline.” Id. at ¶14. 5 On November 25, 2008, Plaintiff was served a notice of termination, because Plaintiff 6 was unable to perform his duties and responsibilities as a professional educator in a satisfactory 7 manner. Id. at ¶18; ECF No. 54-1, Third Am. Compl. at 5, Ex. A, Sub-Ex. 2. 8 On December 15, 2008, Plaintiff filed his first Equal Employment Opportunity 9 Commission (“E.E.O.C.”) Charge of Discrimination (“Plaintiff’s First E.E.O.C. Charge”) against 10 D.O.E., claiming that, in terminating Plaintiff, D.O.E. discriminated against him on the basis of 11 his national origin. See ECF No. 54-1, Third Am. Compl. at 4, Ex. A, Sub-Ex. 1. 2 12 In a letter dated March 16, 2009 from D.O.E. to Plaintiff, D.O.E. asked Plaintiff not to 13 contact D.O.E. or any of its personnel regarding Plaintiff’s new application for re-employment as 14 they were awaiting the findings and recommendations from E.E.O.C. before making any further 15 decision on Plaintiff’s application. ECF No. 54-1 Third Am. Compl. at 6, Ex. A, Sub-Ex. 3. [16] 2 Plaintiff’s First E.E.O.C. Charge led to Plaintiff filing a wrongful termination action in the District Court of Guam: Civil Case No. 09-00015, Gabriel H.T. Lau v. D.O.E.(F.K.A. Guam [17] Public School System). Therein, Plaintiff alleged that he was employed by D.O.E. at D.L. Perez Elementary School from August 12, 2008 through November 25, 2008. See Order, ECF No. 36, [18] District Court of Guam Civil Case No. 09-00015. Plaintiff alleged wrongful termination by D.O.E., inclusive of retaliation. Id. The court noted that “[a]lthough the Plaintiff generally [19] argues that he was wrongfully terminated, this court will interpret his Complaint as alleging that he was subject to retaliation and a hostile working environment, (emphasis added).” Id. With [20] regard to the retaliation claim, the court noted that the Plaintiff argued that there was retaliation based on the refusal of the D.O.E. Superintendent to give him a teacher’s referral for re21 employment because the Plaintiff had filed a complaint with the E.E.O.C. after he was terminated. The court reviewed Plaintiff’s references to two letters from D.O.E. to the Plaintiff [22] dated March 16, 2009 and April 15, 2009. Based on the two letters, the court held that it was “clear that [Plaintiff’s] claim of retaliation under Title VII is without merit.” Id. The same two [23] letters are addressed in the action now before this court. This first lawsuit shall hereinafter be referred to as Lau I. [24] 1 In a letter dated April 1, 2009 from E.E.O.C. to D.O.E., E.E.O.C. cautioned D.O.E. to 2 refrain from retaliating against Plaintiff for engaging in a protected activity. ECF No. 54-1, 3 Third Am. Compl. at 4, Ex. A, Sub-Ex. 1. 4 In a letter dated April 15, 2009, D.O.E. wrote to Plaintiff clarifying its letter of March 16, 5 2009. ECF No. 54-1, Third Am. Compl., at 7, Ex. A, Sub-Ex. 4. Therein, D.O.E. invited 6 Plaintiff to submit a new application for other positions. Id. It further advised Plaintiff that 7 waiting for the E.E.O.C.’s review “will not hamper you from submitting new applications for 8 positions currently announced at [D.O.E.’s] Personnel Services Division. If you qualify for the 9 position, based on the minimum requirements, you are more than welcome to submit your 10 application. [D.O.E.] will continue to accept and process your application, as we have done 11 previously…” Id. 12 On August 14, 2009, Plaintiff was interviewed and recommended by D.O.E. Principal 13 Derrick Santos of Merizo Elementary School to be immediately employed as an English as a 14 Second Language (“ESL”) teacher at Merizo Elementary School. ECF No. 54, Third Am. 15 Compl.at ¶27. 16 On August 21, 2009, D.O.E.’s Equal Employment Officer Margaret Cruz notified 17 Plaintiff that his employment was rejected, because of incidents at George Washington High 18 School and D.L. Perez Elementary School. Id. at ¶29; ECF No. 54-1, Third Am. Compl.at 8, Ex. 19 A-5. 20 On September 21, 2009, Plaintiff filed a second E.E.O.C. Charge of Discrimination 21 (“Plaintiff’s Second E.E.O.C. Charge”) against D.O.E. for discrimination and retaliation.3 Id. at [22] 3 Plaintiff’s Second Charge form was attached to Plaintiff’s Initial Complaint; however, it was 23 omitted from Plaintiff’s subsequently filed amended complaints, including the Third Amended Complaint. See ECF Nos. 1 (Initial Complaint), 14 (Amended Complaint), 31 (Second 24 Amended Complaint) and 54 (Third Amended Complaint). Although the form was not attached, the Third Amended Complaint did reference this document as Exhibit A and indicated that it was 1 ¶34. 2 In a letter of Determination dated May 11, 2010 from E.E.O.C. to Plaintiff, the E.E.O.C. 3 stated, in relevant part, the following: 4 “[Plaintiff] alleges [D.O.E] failed to hire him to a teaching position because of his national origin (Chinese), disability and in 5 retaliation for engaging in a protected activity. 6 [D.O.E.] denies that it has discriminated against [Plaintiff]. 7 The Commission makes no finding on [the Plaintiff’s] allegations of national origin and disability discrimination. [8] The Commission’s investigation determined that there is 9 reasonable cause to believe that [D.O.E.] retaliated against [Plaintiff] by failing to hire him for a teaching position because of 10 his protected activity. 11 In a like and related issue, the evidence revealed [D.O.E.] retaliated against [Plaintiff] when it informed him in a letter that it 12 would not make a decision on his application for employment until after the E.E.O.C. completed its investigation. Therefore, I have 13 concluded that the evidence is sufficient to establish a violation of the above-cited statute. [14] [D.O.E.] is reminded that Federal law prohibits retaliation against 15 persons who have exercised their right to inquire or complain about matters they believe may violate the law. Discrimination 16 against persons who have cooperated in Commission investigations is also prohibited. These protections apply 17 regardless of the Commission’s determination on the merits of the charge. [18] Having determined that there is reason to believe that violations 19 have occurred, the Commission now invites [D.O.E.] to join with it in a collective effort toward a just resolution of this matter.” [20] ECF No. 54-1, Third Am. Compl. at 15, Ex. B. [21] In a letter dated June 16, 2010 from E.E.O.C., Plaintiff was notified that efforts to [22] conciliate the E.E.O.C. charge were unsuccessful. ECF No. 54-1, Third Am. Compl. at 18, Ex. [24] attached. 1 C. It was further noted that the case would be forwarded to the Department of Justice (“DOJ”) 2 for possible litigation. Id. 3 In a letter dated October 4, 2010, DOJ issued its Notice of Right to Sue. ECF No. 54-1, 4 Third Am. Compl. at 20, Ex. D. Therein, Plaintiff was notified that conciliation was 5 unsuccessful. Plaintiff was further notified of the right to institute a civil action under Title VII 6 of the Civil Rights Act of 1964, as amended, and Title I of the Americans with Disabilities Act 7 of 1990. Id. 8 On December 30, 2010, Plaintiff filed pro se a complaint against D.O.E. See ECF No. 1. 9 On February 15, 2011, Plaintiff, through counsel, filed an Amended Complaint. 10 See ECF No. 14. 11 On April 6, 2011, Plaintiff served his formal Notice of Government Claim upon 12 the Office for the Attorney General of Guam and D.O.E. under the Government Claims 13 Act. ECF No. 54, Third Am. Compl. at ¶33. 14 On June 30, 2011, Plaintiff filed his Second Amended Complaint. See ECF No. 31. 15 On November 29, 2011, Plaintiff filed his Third Amended Complaint. See ECF No. 54. 16 The Third Amended Complaint alleges three (3) counts: (1) Count I: D.O.E. is liable for 17 violation of Title I of the Americans with Disabilities Act (“ADA”); (2) Count II: D.O.E. is 18 liable for violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) that protects U.S. 19 citizens from an employer’s discrimination and retaliation based on race, color, national origin 20 and/or engaging in a protected activity; and (3) Count III: Plaintiff has suffered emotional 21 distress arising from the torts of negligence and/or intentional infliction of emotional distress 22 based on D.O.E.’s acts or omissions. Id. at ¶¶40-46. 23 On December 30, 2011, D.O.E. filed the instant motion seeking to dismiss Plaintiff’s 24 Third Amended Complaint pursuant to Federal Rules of Civil Procedure 8, 12(b)(1), 12(b)(6), 1 12(h)(3), 15(c) and 41(b). ECF No. 60. 2 II. DISCUSSION 3 A. Request for Judicial Notice 4 D.O.E. requests the court to take judicial notice of facts that appear in the Plaintiff’s 5 original Complaint, but not in Plaintiff’s Third Amended Complaint, including the Plaintiff’s 6 Second E.E.O.C. Charge form. See ECF No. 1, Compl. at 4, Ex. A. D.O.E. also requests the 7 court to take judicial notice of its Opinion and Order in Lau I. 8 The court may judicially notice a fact that is not subject to reasonable dispute because it 9 can be accurately and readily determined from sources whose accuracy cannot reasonably be 10 questioned. Fed. R. Evid. 201(b)(2). The court must take judicial notice if a party requests it 11 and the court is supplied with the necessary information. Fed. R. Evid. 201(c)(2). The court 12 may take judicial notice at any stage of the proceeding. Fed. R. Evid. 201(d). 13 A court may look beyond the complaint and consider extrinsic evidence, in ruling on a 14 12(b)(1) jurisdictional challenge. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136 , 1141 15 (9th Cir. 2003), citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In addition, while a 16 court must generally refrain from considering extrinsic evidence in deciding a 12(b)(6) motion, it 17 may consider documents on which the complaint “necessarily relies” and whose “authenticity ... 18 is not contested.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). 19 Based on D.O.E.’s request, the authority cited therein and the Plaintiff’s non-opposition, 20 the court takes judicial notice of the Plaintiff’s original Complaint, the Plaintiff’s Second 21 E.E.O.C. Charge form, and its Opinion and Order in Lau I. 22 B. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) 23 Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co. 24 of America, 511 U.S. 375, 377 (1994). They can adjudicate only those cases that the 1 Constitution and Congress authorize them to adjudicate. See id. In fact, federal courts are 2 presumptively without subject-matter jurisdiction over civil actions, and the burden of 3 establishing the contrary rests upon the party asserting jurisdiction. See id.; see also Stock West, 4 Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). 5 Since subject-matter jurisdiction is such a fundamental issue, a motion to dismiss for lack 6 thereof may be brought at any stage of the proceedings. See Fed. R. Civ. P. 12(h)(3). The vehicle 7 for such a motion is Rule 12(b)(1) of the Federal Rules of Civil Procedure. 8 A Rule 12(b)(1) motion is either “facial” or “factual.” See Safe Air for Everyone v. 9 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial attack, the challenger asserts that the 10 allegations contained in a complaint are insufficient, on their face, to invoke federal jurisdiction. [11] Id. In a factual attack, on the other hand, the challenger disputes the truth of the allegations that, 12 by themselves, would otherwise invoke federal jurisdiction. Id. Here, the instant motion is 13 “facial,” because D.O.E. argues that the allegations contained in Plaintiff’s complaint are 14 insufficient to invoke federal jurisdiction. 15 In order to establish subject matter jurisdiction over an ADA or Title VII claim, Plaintiff 16 is required to exhaust his or her administrative remedies. E.E.O.C. v. Farmer Bros., 31 F.3d 891 , 17 899 (9th Cir. 1994). Filing an administrative charge with E.E.O.C. is a jurisdictional prerequisite 18 to bringing these claims in federal court. 42 U.S.C. § 2000 (e)-5(e)(1) & (f); 42 U.S.C. § 19 12117(a). The Ninth Circuit has held that subject matter jurisdiction extends over all allegations 20 of discrimination that either “fell within the scope of the E.E.O.C.’s actual investigation or an 21 E.E.O.C. investigation which can reasonably be expected to grow out of the charge of 22 discrimination.” Farmer Bros., 31 F.3d at 899 (emphasis in the original) (internal quotations 23 omitted); see also Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir.1990) (“The jurisdictional [24] 1 scope of a Title VII claimant's court action depends upon the scope of both the E.E.O.C. charge 2 and the E.E.O.C. investigation.”). 3 The Ninth Circuit court has construed the language of E.E.O.C. charges “with utmost 4 liberality.” Farmer Bros., 31 F.3d at 899. “[T]he crucial element of a charge of discrimination is 5 the factual statement contained therein.” Sanchez v. Standard Brands, Inc., 431 F.2d 455 , 462 6 (5th Cir. 1970). Allegations of discrimination not included in the plaintiff’s E.E.O.C. charge 7 “may not be considered by a federal court unless the new claims are ‘like or reasonably related to 8 the allegations contained in the E.E.O.C. charge.’ ” Green v. Los Angeles County Superintendent 9 of Schs., 883 F.2d 1472, 1475-76 (9th Cir. 1989). The court should consider plaintiff’s civil 10 claims to be reasonably related to allegations in the charge to the extent that those claims are 11 consistent with the plaintiff’s original theory of the case. See Farmer Bros., 31 F.3d at 899 12 (ruling that plaintiff exhausted her claim for discriminatory layoff since that claim was always a 13 part of the plaintiff’s theory of the case as expressed in her explicit allegations of discriminatory 14 failure to recall and to rehire laid-off female employees). 15 D.O.E. argues that Plaintiff’s claims should be dismissed, because Plaintiff failed to 16 exhaust his administrative remedies for Counts I, II and III. The court agrees, in part, with 17 D.O.E. 18 Plaintiff alleges in Count I that D.O.E. is liable for violation of Title I of the ADA. To 19 bring a claim under the ADA, a plaintiff must exhaust his or her administrative remedies. See 42 20 U.S.C. § 12117 (a) (incorporating Title VII enforcement procedures into the ADA). In the case at 21 bar, Plaintiff’s Third Amended Complaint states that Plaintiff suffers from a form of disability 22 known as Obsessive and Compulsive Disorder and impaired vision. Plaintiff’s Second E.E.O.C. 23 charge and supporting documents, however, fail to indicate Plaintiff’s alleged disabilities of 24 Obsessive and Compulsive Disorder and impaired vision. Plaintiff’s Second E.E.O.C. Charge 1 and supporting documents also fail to indicate whether Plaintiff disclosed to E.E.O.C. and 2 D.O.E. the alleged disabilities he is claiming are protected. The court further finds that 3 Plaintiff’s Second E.E.O.C. Charge offers no discussion as to how Plaintiff was allegedly 4 discriminated on the basis of his alleged disabilities. Based on the foregoing and construing the 5 language of Plaintiff’s Second E.E.O.C. Charge with utmost liberality, the court finds that the 6 assertions in Plaintiff’s Third Amended Complaint regarding D.O.E.’s alleged violation of the 7 ADA in Count I are not like or reasonably related to the allegations contained in the Plaintiff’s 8 Second E.E.O.C. Charge. Accordingly, the court finds that Plaintiff failed to exhaust his 9 administrative remedies for Count I. This court is prohibited from considering allegations of 10 discrimination not included in Plaintiff’s Second E.E.O.C. Charge. Green, 883 F.2d at 1475-76 . 11 Thus, this court lacks subject matter jurisdiction to proceed on this count. 12 In Count II, Plaintiff alleges, in part, that D.O.E. is liable for violation of Title VII which 13 protects U.S. citizens from an employer’s discrimination and retaliation based on race, color, 14 and/or national origin. In the case at bar, Plaintiff’s Second E.E.O.C. Charge and supporting 15 documents fail to state Plaintiff’s national origin. Additionally, Plaintiff’s claims for race and 16 color in Count II of the Third Amended Complaint are new; these claims were not selected when 17 Plaintiff submitted his Second E.E.O.C. Charge. Furthermore, although Plaintiff’s claims 18 describe retaliation, there is no claim for retaliation based on Plaintiff’s race, color or national 19 origin under Title VII contained within Plaintiff’s Second E.E.O.C. Charge. Based on the 20 foregoing and construing the language of Plaintiff’s Second E.E.O.C. Charge with utmost 21 liberality, the court finds that Plaintiff’s Third Amended Complaint allegations contained in 22 Count II as they relate to Title VII discrimination and retaliation based on race, color, and/or 23 national origin, are not like or reasonably related to the allegations contained in the Plaintiff’s 24 Second E.E.O.C. Charge. Accordingly, the court finds that Plaintiff failed to exhaust his 1 administrative remedies for Count II, as it relates to these claims, and, therefore, lacks subject 2 matter jurisdiction to proceed, in part, on this count. 3 Count II further alleges that D.O.E. is liable for violation of Title VII that protects U.S. 4 citizens from an employer’s discrimination and retaliation for engaging in a protected activity. 5 In the case at bar, D.O.E. contends that Plaintiff fails to invoke the court’s subject matter 6 jurisdiction over Plaintiff’s alleged claim of retaliation for engaging in a protected activity. In 7 support of its argument, D.O.E. indicates that no specifics are referenced in either Plaintiff’s 8 Second E.E.O.C. Charge or E.E.O.C.’s Determination letter as to Plaintiff’s claim of retaliation, 9 other than Plaintiff’s claim of retaliation for engaging in a protected activity. According to 10 D.O.E., the protected activity is not sufficiently set forth by Plaintiff in his Second E.E.O.C. 11 Charge, in his original complaint or in his Third Amended Complaint. According to D.O.E., 12 Plaintiff fails to set forth how he was retaliated against for engaging in a protected activity, and 13 what protected activity he had engaged in prior to the retaliation by D.O.E. in August 2009. 14 The court must examine Plaintiff’s Second E.E.O.C. Charge and the E.E.O.C. 15 investigation to determine if Plaintiff’s claims of retaliation for engaging in a protected activity 16 were administratively exhausted. See Farmer Bros. Co., 31 F.3d at 899. “The E.E.O.C. charge 17 must be construed ‘with the utmost liberality.’” Deppe v. United Airlines, 217 F.3d 1262 , 1267 18 (9th Cir.2000) (quoting Farmer Bros., 31 F.3d 891 at 899). Exhausted claims include those 19 actually investigated as well as those which “would have been within the scope of a ‘reasonably 20 thorough investigation.’ ” Farmer Bros., 31 F.3d at 899 n.5 (citing and quoting Gibbs v. Pierce 21 County Law Enforcement Support, 785 F.2d 1396 , 1400 (9th Cir. 1986)). 22 In the case at bar, the allegations in Plaintiff’s Second E.E.O.C. Charge focus solely on 23 D.O.E.’s alleged retaliation against Plaintiff for engaging in a protected activity. In its letter of 24 Determination, the E.E.O.C.’s investigation determined that there was reasonable cause to 1 believe that D.O.E. retaliated against Plaintiff by failing to hire him for a teaching position 2 because of his protected activity. See ECF No. 54-1, Third Am. Compl. at 15, Ex. B. The court 3 finds that the allegations in Count II as it relates to retaliation on the basis of a protected activity, 4 fall within the scope of E.E.O.C.’s actual investigation and, furthermore, is on its face 5 sufficiently like or reasonably related to the allegations in the E.E.O.C. charge. The court 6 therefore finds that Plaintiff exhausted his administrative remedies for his claim of retaliation for 7 engaging in a protected activity. Accordingly, the court finds that it has subject matter 8 jurisdiction to proceed on Plaintiff’s theory of retaliation for engaging in a protected activity 9 pursuant to Title VII in Count II. 10 In Count III, Plaintiff alleges that based on D.O.E.’s acts or omissions, Plaintiff has 11 suffered emotional distress arising from the torts of negligence and/or intentional infliction of 12 emotional distress. 13 Guam’s Government Claims Act, codified at 5 G.C.A. § 6105, states in relevant part that 14 the Government of Guam has waived immunity from suit “for claims in tort, arising from the 15 negligent acts of its employees…” The Government of Guam has not waived its sovereign 16 immunity to allow a lawsuit against it for an intentional tort in any forum; accordingly, 17 Plaintiff’s intentional tort claim must fail. For Plaintiff’s negligence claim, this court lacks 18 subject matter jurisdiction, because it was untimely filed. All claims filed pursuant to the 19 Government Claims Act must be filed within eighteen (18) months from the date the claim arose. 20 5 G.C.A. § 6106(a). Here, the Plaintiff filed suit approximately twenty (20) months after the 21 claim arose on August 21, 2009. Furthermore, claims made under the Guam’s Government 22 Claims Act must be brought against the Government of Guam in state court, not federal court. 23 See 5 G.C.A. § 6208. Based on the foregoing, the court agrees with D.O.E. that Plaintiff fails to 24 establish this court’s subject matter jurisdiction over the state law tort claims as alleged in Count 1 III. 2 C. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) 4 3 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a Defendant to raise by 4 motion the defense that the complaint “fail[s] to state a claim upon which relief can be granted.” 5 A pleading that states a claim for relief must contain, among other things, “a short and plain 6 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). 7 Although a complaint does not need “detailed factual allegations, . . . a plaintiff’s obligation to 8 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, 9 and a formulaic recitation of the elements of a cause of action will not do . . . .” Bell Atlantic 10 Corp.v. Twombly, 550 U.S. 544, 555 (2007). And although the court “must take all of the factual 11 allegations in the complaint as true, [the court is] not bound to accept as true a legal conclusion 12 couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks 13 omitted). So, to survive a Rule 12(b)(6) motion to dismiss, a complaint “must contain sufficient 14 factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’”Id. 15 (quoting Twombly, 550 U.S. at 570 )). 16 Iqbal suggests a two-step process for determining whether a motion to dismiss should be 17 granted. The first step is to “identif[y] pleadings that, because they are no more than conclusions, 18 are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679 . These are to be discarded. 19 See id. After discarding those unsupported legal conclusions, the second step is to take any 20 remaining well-pleaded factual allegations, “assume their veracity and then determine whether 21 they plausibly give rise to an entitlement to relief.” Id. [23] 4 Because of the court’s findings on the Rule 12(b)(1) motion, the court now proceeds to analyze 24 the remaining claim in Count II as it relates to Plaintiff’s Title VII claim of retaliation based on a protected activity. 1 As for the meaning of the term “plausibly,” “[a] claim has facial plausibility when the 2 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 3 defendant is liable for the misconduct alleged.” Id. at 678 . This standard 4 . . . is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a 5 complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility 6 of “entitlement to relief.” [7] Id. (quoting Twombly, 550 U.S. at 557 ). Application of this standard is “a context-specific task 8 that requires the reviewing court to draw on its judicial experience and commonsense.” Id. at 9 679. And this standard applies to “all civil actions”—“antitrust and discrimination suits alike.” [10] Id. at 684 . In short, “a complaint may survive a motion to dismiss only if, taking all well11 pleaded factual allegations as true, it contains enough facts to ‘state a claim to relief that is 12 plausible on its face.’”Hebbe v. Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010) (quoting Iqbal, 556 13 U.S. at 678). Furthermore, the court accepts “all facts alleged as true and construes them in the 14 light most favorable to the plaintiff.” Daniels v. National Educ. Ass’n, 629 F.3d 992, 998 (9th 15 Cir. 2010). The court may consider facts established by exhibits attached to the complaint. 16 Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also 17 consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d 1385 , 1388 18 (9th Cir. 1987). 19 In order to succeed on a claim of retaliation under Title VII, a plaintiff must show: (1) 20 that he engaged in an activity protected by Title VII; (2) that he was the subject of an adverse 21 employment action; and (3) that there exists a causal link between his protected activity and the 22 adverse action of his employer. Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir. 1988); Yartzoff v. 23 Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987). In establishing a causal link, plaintiff must show 24 that the alleged discriminator had knowledge of the protected activity. Cohen v. Fred Meyer, 1 Inc., 686 F.2d 793, 796 (9th Cir. 1982). Courts may infer causation based on a close temporal 2 proximity between the protected activity and the alleged violation, but the retaliation must be 3 “fairly soon” after the protected activity. Villarimo v. Aloha Island Air, Inc., 281 F.3d 1054 , 4 1065 (9th Cir. 2002). If plaintiff establishes a prima facie case, the burden shifts to the employer 5 to articulate a legitimate, non-retaliatory reason for its decision. Cohen, 686 F2d. at 796. Once 6 an employer does so, plaintiff bears the burden of proving the reason was merely a pretext for a 7 retaliatory motive. Id. 8 In construing the allegations in the light most favorable to the Plaintiff, the court finds 9 that Plaintiff has satisfied his burden of proving a prima facie case of retaliation. First, Plaintiff 10 engaged in a protected activity when he filed his First E.E.O.C. Charge. See ECF No. 54, Third 11 Am. Compl. at ¶26 (addressing Plaintiff’s First E.E.O.C. Charge and referencing Ex. A, Sub-Ex 12 1, which indicates Plaintiff’s filing of his First E.E.O.C. Charge.) Second, Plaintiff satisfies the 13 second part of establishing the prima facie case of retaliation as D.O.E. failed to re-hire Plaintiff. 14 See ECF No. 54, Third Am. Compl. at ¶29. Third, Plaintiff can also establish a causal link 15 between his protected activity and the adverse action: D.O.E. was aware of Plaintiff’s First 16 E.E.O.C. Charge. See ECF No. 54, Third Am. Compl. at ¶26. Furthermore, the series of letters 17 from E.E.O.C. and D.O.E. dated March 16, 2009, April 1, 2009 and April 15, 2009, strengthen 18 the causal link with D.O.E.’s final decision to reject Plaintiff’s application on August 21, 2009. 19 See ECF No. 54, Third Am. Compl. at ¶¶27, 28, 29 (referencing Ex. A, which addressed these 20 letters). Based on the foregoing, the court finds that Plaintiff has sufficiently alleged a Title VII 21 claim of retaliation based on a protected activity. 22 III. CONCLUSION 23 For the foregoing reasons, the court hereby orders as follows: 24  Defendant D.O.E.’s Request for Judicial Notice of the Plaintiff’s original Complaint, 1 Plaintiff’s Second E.E.O.C. Charge of Discrimination form, and this court’s Opinion 2 and Order in Lau lis GRANTED. 3 e Defendant D.O.E.’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 4 12(b)(1) is GRANTED in part and DENIED in part. Count I is dismissed, because 5 Plaintiff did not exhaust his administrative remedies as to the alleged ADA claim. 6 Count IJ as it relates to the Title VI claims of discrimination and retaliation on the 7 basis of race, color and/or national origin are dismissed, because Plaintiff did not 8 exhaust his administrative remedies as to these alleged claims. Count II as it relates to 9 the Title VII claim of retaliation based on a protected activity is not dismissed, 10 because Plaintiff exhausted his administrative remedies for this claim. Count II is 11 dismissed, because this court lacks subject matter jurisdiction over these claims. 12 e Defendant D.O.E.’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 13 12(b)(6) is DENIED for Count II as it relates to Plaintiff’s Title VII claim of 14 retaliation based on a protected activity. Plaintiffs Third Amended Complaint as it 15 relates to this claim in Count IJ contains sufficient factual matter, accepted as true, to 16 state a claim for relief that it plausible on its face. 17 IT IS SO ORDERED. 18 6 /s/ Frances M. Tydingco-Gatewood 3 Chief Judge 19 i * Dated: Mar 21, 2013 [20] > Rule 15 of the Federal Rules of Civil Procedure governs the amendment of pleadings. The rule 21 |! mandates that “{t]he court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). “In the absence of any apparent or declared reason-such as undue delay, bad faith or 22 dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the 23 |! amendment, futility of amendment, etc.-the leave sought should, as the rules require, be ‘freely given.’” Foman vy. Davis, 371 U.S. 178, 182 (1962). The court finds that amendment of these 24 |! dismissed claims will be futile, because the court’s lacks subject matter jurisdiction over these claims.