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assistance, the court orders the matter submitted on the briefs. 

E.D. Cal. 78-320(h).

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

----oo0oo----

JOHN IRISH,

NO. CIV. S-04-1813 FCD PAN

Plaintiff,

v. MEMORANDUM AND ORDER

CITY OF SACRAMENTO,

Defendant.

----oo0oo----

This matter is before the court on defendant City of

Sacramento’s (“defendant”) motion to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6) and motion to strike pursuant to

Federal Rule of Civil Procedure 12(f).1 

BACKGROUND

 In September of 1992, defendant hired John Irish

(“plaintiff”), a Caucasian male, as a sanitation worker for its

Solid Waste Division. (Pl’s. Am. Compl., filed June 3, 2005, at

3.) Defendant promoted plaintiff within six months to the

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position of Sanitation Worker II. (Id.) Defendant recognized

plaintiff for his contributions to the Solid Waste Division in

1993 and in 2003. (Id.) 

In the Fall of 1998, plaintiff expressed concerns regarding

unfair labor practices and the racially discriminatory practices

of defendant. (Id. at 3-4.) Specifically, plaintiff complained

about the discriminatory elimination of a practice known as

“double backs.” (Id. at 4.) According to plaintiff, “double

backs” occurred when defendant allowed workers to get additional

hours and corresponding compensation if they completed their

shifts ahead of schedule. (Id.) 

A few months after plaintiff’s initial complaints about the

elimination of “double backs,” plaintiff was speaking with other

co-workers over the radio, making jokes and light-hearted

conversation. (Id.) A fellow co-worker, Sean Irby, who is

African American, yelled at plaintiff over the radio stating

three times, “What do you want, Boy?” (Id.) Irby continued, “I

know where you live, the house with the basketball hoop. I’ll be

by.” (Id.) This exchange significantly affected plaintiff. 

Plaintiff “felt like he had been kicked in the stomach, because

the verbal assault came out of no where.” (Id.) On other

occasions, plaintiff felt harassed by “hard stares” from seven

African-American co-workers and one Filipino co-worker and by

phone calls from an anonymous caller who refused to respond when

plaintiff answered the phone. (Id.) 

The harassment affected the manner in which plaintiff dealt

with his co-workers as he abstained from talking to them on the

radio, even to clear his route. (Id.) In January 1999,

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plaintiff’s relationship with his superior, Senior Supervisor

Burrell, an African American, turned from cordial to

antagonistic. (Id. at 5.) While Burrell knew of the acts of

intimidation and humiliation against plaintiff, he refused to

take any remedial action. (Id.) Later that January, Burrell

ordered plaintiff to train other employees on the “side loader.” 

(Id.) Plaintiff considered this order retaliatory because it

meant that he would have to take longer hours at the yard and

because he was not on a supervisory track. (Id.)

On September 24, 2002, other employees notified plaintiff

that he would no longer be able to take the company-owned truck

to his home. (Id.) Previously, plaintiff had taken the truck to

his home with the tacit approval of defendant. While he was now

denied this privilege other employees were not. (Id.)

In November 2002, plaintiff filed unfair practices charges

with the City Manager, the Mayor, and one councilman from the

City of Sacramento. (Id.) On January 31, 2003, defendant

suspended plaintiff for 20 days. (Id.) Two of his supervisors

told him, “Yes, we are discriminating against you.” (Id.) 

Defendant terminated plaintiff on August 27, 2003. (Id.)

Plaintiff filed an administrative complaint with the

California Department of Fair Employment and Housing (“DFEH”) and

the United States Equal Employment Opportunity Commission

(“EEOC”) on March 8, 2004. (Def’s. RJN, filed July 1, 2005, at

Ex. A.) 

Based on the aforementioned facts, plaintiff filed a

complaint in this court on August 30, 2004. (Pl’s. Compl. filed

August 30, 2004, at 1.) Plaintiff asserts nine claims: 1)

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2 Because the court grants defendant’s motion with

respect to plaintiff’s federal claims, it does not consider infra

plaintiff’s state law claims. 

4

wrongful termination; 2) wrongful termination in violation of

public policy; 3) hostile work environment harassment; 4)

retaliation; 5) violation of United States Civil Rights Laws, 42

U.S.C. §§ 1981, 1983, & 1985; 6) discrimination under the Unruh

Civil Rights Act; 7) breach of contract; 8) breach of the

covenant of good faith and fair dealing; and 9) intentional

infliction of emotional distress.2 (Pl’s. Am. Compl. at 5-11.) 

Defendant now moves to dismiss and/or strike the complaint on

various grounds addressed below. 

STANDARD

I. Rule 12(b)(6)

On a motion to dismiss, the allegations of the complaint

must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322

(1972). The court is bound to give the plaintiff the benefit of

every reasonable inference to be drawn from the “well-pleaded”

allegations of the complaint. Retail Clerks Int'l Ass'n v.

Schermerhorn, 373 U.S. 746, 753 n.6 (1963). Thus, the plaintiff

need not necessarily plead a particular fact if that fact is a

reasonable inference from facts properly alleged. See id. 

Given that the complaint is construed favorably to the

pleader, the court may not dismiss the complaint for failure to

state a claim unless it appears beyond a doubt that the plaintiff

can prove no set of facts in support of the claim which would

entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45

(1957); NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th

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Cir. 1986).

Nevertheless, it is inappropriate to assume that the

plaintiff “can prove facts which it has not alleged or that

defendants have violated the . . . laws in ways that have not

been alleged.” Associated Gen. Contractors of Calif., Inc. v.

Calif. State Council of Carpenters, 459 U.S. 519, 526 (1983). 

Moreover, the court “need not assume the truth of legal

conclusions cast in the form of factual allegations.” United

States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th

Cir. 1986).

In ruling upon a motion to dismiss, the court may consider

only the complaint, any exhibits thereto, and matters which may

be judicially noticed pursuant to Federal Rule of Evidence 201. 

See Mir v. Little Co. Of Mary Hospital, 844 F.2d 646, 649 (9th

Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of United

States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998).

II. Rule 12(f)

Federal Rule of Civil Procedure 12(f) enables the court by

motion of a party or by its own initiative to “order stricken

from any pleading . . . any redundant, immaterial, impertinent,

or scandalous matter.” The function of a 12(f) motion is to

avoid the time and expense of litigating spurious issues. 

Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993),

rev’d on other grounds, 510 U.S. 517 (1994); see also 5A Wright &

Miller, Federal Practice and Procedure 2d § 1380 (1990). 

Rule 12(f) motions are generally viewed with disfavor and

not ordinarily granted because they are often used to delay, and

because of the limited importance of the pleadings in federal

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practice. Bureerong v. Uvawas, 922 F. Supp. 1450, 1478 (C.D.

Cal. 1996). A motion to strike should not be granted “unless it

is clear that the matter to be stricken could have no possible

bearing on the litigation.” Lilley v. Charren, 936 F. Supp. 708,

713 (N.D. Cal. 1996) (citing Colaprico v. Sun Microsystems, Inc.,

758 F. Supp. 1335, 1339 (N.D. Cal. 1991)).

ANALYSIS

The court first considers plaintiff’s federal claims for

relief because absent such claims, the court would decline to

exercise supplemental jurisdiction over plaintiff’s state law

claims. 28 U.S.C. § 1367. 

I. Timeliness of the Federal Claims

Defendant asserts that plaintiff has failed to timely bring

his federal claims for relief because these claims are barred by

the statute of limitations. When there are facts alleged that

occur outside the relevant statute of limitations, the continuing

violations doctrine may apply to “revive” the facts. The

doctrine, however, does not apply to discrete discriminatory and

retaliatory acts.

First, discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in

timely filed charges. Each discrete discriminatory act

starts a new clock for filing charges alleging that act . .

. Discrete acts such as termination, failure to promote,

denial of transfer, or refusal to hire are easy to identify.

Each incident of discrimination and each retaliatory adverse

employment decision constitutes a separate actionable

unlawful employment practice. 

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-114

(2002). In contrast, the doctrine can apply to harassment claims

so long as at least one harassing act occurs within the

applicable limitations period. Id. at 115-117 (explaining that

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3 While Morgan limits the application of the continuing

violations doctrine to harassment claims under Title VII, the

California Supreme Court has recently refused to similarly apply

Morgan to the Fair Employment and Housing Act. 

L'Oreal urges us to adopt Morgan's reasoning and limit the

continuing violation doctrine to only harassment claims,

thus excluding discrimination and retaliation claims. A rule

categorically barring application of the continuing

violation doctrine in retaliation cases, however, would mark

a significant departure from the reasoning and underlying

policy rationale of our previous cases interpreting the FEHA

statute of limitations.

Yanowitz v. L'Oreal USA, Inc., 2005 WL 1903591 at 16 (Cal.

Sup. Ct. 2005).

7

“[h]ostile work environment claims are different in kind from

discrete acts. Their very nature involves repeated conduct”).3

A. Plaintiff’s federal claims under Title VII

The court construes plaintiff’s complaint, namely his first

through fourth claims for relief, as asserting a Title VII claim

based on three separate theories: 1) discriminatory termination;

2) hostile work environment harassment; and 3) retaliation. As

to these claims under Title VII, plaintiff is required to file an

administrative complaint to the EEOC within 300 days of the

alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1);

Morgan, supra 536 U.S. at 119. 

Plaintiff submitted his charge of discrimination to the EEOC

on March 8, 2004. (Def’s. RJN at Ex. A.) Thus, to be timely,

the alleged unlawful employment practices must have occurred

after May 13, 2003.

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1. Discriminatory Termination

Plaintiff alleges that he was terminated on August 27, 2003

because of his race and national origin. (Pl’s. Am. Compl. at 1,

6.) As defendant concedes, this discriminatory act falls clearly

within the applicable statute of limitations. 

However, with respect to this theory of his Title VII claim,

plaintiff also makes several other allegations of discrete

discriminatory acts that fall outside the 300-day period. It is

these acts that defendant seeks to strike and/or dismiss. These

allegations include plaintiff’s 20-day suspension and comments by

fellow employees to plaintiff that, “Yes, we are discriminating

against you” (all occurring in January 2003). (Id. at 4-5.) 

These alleged discriminatory acts are discrete and thus the

continuing violations doctrine does not apply. Morgan, supra 536

U.S. at 113-114. Accordingly, these acts may not serve as a

basis for plaintiff’s discriminatory termination claim. 

Nonetheless, because plaintiff has alleged a fact, his

termination, that falls within the 300-day period, this theory of

his Title VII claim cannot wholly be dismissed for violation of

the statute of limitations.

2. Hostile Work Environment Harassment

Plaintiff alternatively bases his Title VII claim on a

hostile work environment theory of harassment. (Pl’s. Am. Compl.

at 7.) However, plaintiff does not allege any facts that

occurred within the 300-day statute of limitations, and thus this

theory of his claim must be dismissed.

The court will nonetheless grant plaintiff leave to amend

because reviewing the complaint in the light most favorable to

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plaintiff, there are two facts that may have continued into the

limitations period. In particular, plaintiff alleges, without

specific reference to the time, that other employees of defendant

gave him “hard stares” and that he received harassing phone calls

at home. (Pl’s. Am. Compl. at 4.) Such conduct is of a

harassing nature such that the continuing violations doctrine

would apply if at least one act, i.e. a “hard stare” or phone

call, occurred within the limitations period. 

3. Retaliation

Finally, plaintiff also, alternatively, bases his Title VII

claim on a theory of retaliation. Like his discrimination

theory, there is one fact, namely plaintiff’s termination in

August 2003, which occurred within the requisite 300-day period. 

(Pl’s. Am. Compl. at 4,8.) Specifically, plaintiff alleges his

termination was the result of his speaking out on the unfair

labor practices of defendant and the racially discriminatory

atmosphere of his workplace. (Id. at 7-8.) 

However, plaintiff also alleges other events to support his

retaliation claim which fall outside the 300-day period. For

example, plaintiff claims that in 1999, he engaged in a

statutorily protected activity when he complained about

defendant’s discriminatory elimination of “double backing.” (Id.

at 4.) In addition, plaintiff claims that defendant retaliated

against him by suspending him for 20 days in January 2003. (Id.

at 5, 8.) However, these acts do not fall within the 300-day

limitations period and are therefore untimely. 

Under Morgan, plaintiff cannot rely on these acts to support

his retaliation claim because they are “separate actionable

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unlawful employment practice[s].” Morgan, supra 536 U.S. at 113-

114. Nonetheless because there is one act within the limitations

period, plaintiff’s termination, this claim cannot be dismissed

on the ground of the statute of limitations. 

B. Violation of 42 U.S.C. §§ 1981, 1983, and 1985

“Courts considering § 1983 claims should borrow the general

or residual statute for personal injury actions.” Owens v.

Okure, 488 U.S. 235, 250 (1989). Courts also apply the residual

statute for personal injury statutes to Section 1981 claims as

well. Goodman v. Lukens Steel Co., 482 U.S. 656, 662 (1987)

(criticized on other grounds); Saint Francis College v. AlKhazraji, 481 U.S. 604, 607 (1987). In addition, the same

residual statute of limitations also applies to Section 1985

claims. McDougal v. County of Imperial, 942 F.2d 668, 673 -674

(1991). California’s current residual statute for personal

injury statutes, California Code of Civil Procedure section 335.1

provides that the statute of limitations is two years. Plaintiff

filed his complaint on August 30, 2004. (Pl’s. Compl. at 1.) 

Therefore, to support these claims, plaintiff must allege facts

that occurred after August 30, 2002. 

In support of his Section 1981 claim, plaintiff alleges he

had a contract of employment with defendant, which was embodied

through defendant’s policies and procedures. (Pl’s. Am. Compl.

at 8.) Defendant’s agents, who acted under color of state

authority, illegally interfered with and breached the contract. 

(Id.) Plaintiff does not state when this contract was formed or

when the defendant’s agents breached this contract. As such,

plaintiff has failed to plead facts which fall within the twoCase 2:04-cv-01813-FCD-EFB Document 18 Filed 09/14/05 Page 10 of 16
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year statute of limitations, and his Section 1981 claim must be

dismissed.

Plaintiff also alleges that defendants violated Section 1983

by depriving plaintiff of his First Amendment free speech and

association rights, Fifth Amendment due process rights, and 

Fourteenth Amendment due process and equal protection rights. 

(Id. at 8-9.) Plaintiff, however, does not explain when

defendants deprived plaintiff of these constitutional rights. 

Because plaintiff failed to allege facts within the two-year

statute of limitations period, plaintiff’s Section 1983 claim

must also be dismissed.

Additionally, plaintiff alleges that defendant conspired

with others to deprive plaintiff of his constitutional rights in

violation of Section 1985. (Id. at 9.) Plaintiff does not

allege when any acts of the alleged conspiracy occurred. 

Plaintiff’s Section 1985 claim must therefore be dismissed

because plaintiff fails to allege any facts within the two-year

limitations period. 

As plaintiff’s Section 1981, 1983, and 1985 claims are

barred by the statute of limitations, these claims must be

dismissed. However, because Rule 15(a) of the Federal Rules of

Civil Procedure provides that leave to amend shall be freely

given when justice so requires, the court will allow plaintiff to

amend his complaint once more to attempt to correct these

pleading defects. 

II. Exhaustion of Remedies

Defendant additionally alleges that plaintiff failed to

exhaust his administrative remedies because he did not include

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allegations of retaliation and harassment in his charge of

discrimination. (Mtn. Dis. Am. Compl. at 4, 6.) In response,

plaintiff argues he exhausted his administrative remedies because

he checked the box “retaliation” and included specific factual

allegations pertaining to retaliation. (Pl’s. Opp. Def’s Mtn.

Dis., filed July 29, 2005, at 3.)

Title VII provides that “[c]harges shall be in writing under

oath or affirmation and shall contain such information and be in

such form as the Commission requires.” 42 U.S.C. § 2000e-5(b). 

The EEOC regulations provide additional guidance and require

sworn charges to contain 1) the name, address, and telephone

number of the charging party; 2) the name and address of the

person against whom the charge is made, if known; 3) a “clear and

concise” statement of facts, including pertinent dates; 4) the

approximate number of employees of the respondent, if known; and

5) whether or not proceedings have begun before a state or local

agency. 29 C.F.R. § 1601.12(a). Courts have liberally construed

charges of discrimination. 

When an individual fills out an EEOC form entitled 'Charge

of Discrimination,' checks a box indicating discrimination

because of 'Race or Color,' names a respondent in answer to

the question 'Who discriminated against you?', indicates

'The most recent date on which this discrimination took

place,' and alleges the existence of racially discriminatory

employment practices in response to the instruction 'Explain

what unfair thing was done to you,' we think it plain enough

that he is claiming to be aggrieved within the statutory

meaning of Title VII.

Graniteville Co. (Sibley Division) v. Equal Employment

Opportunity Commission, 438 F.2d 32, 36 (4th Cir. 1971)

(disapproved on other grounds in E.E.O.C. v. Shell Oil Co., 466

U.S. 54, 63(1984)).

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After construing the charge of discrimination in the light

most favorable to the non-moving party, plaintiff stated

sufficient facts in his charge of discrimination to exhaust his

administrative remedies because plaintiff checked the appropriate

boxes and filled in the appropriate fields in the charge of

discrimination. 

III. Adequacy of Remaining Claims for Discriminatory

Termination and Retaliation

While not barred on timeliness grounds, plaintiff’s Title

VII claim based on discrimination and retaliation theories must

nevertheless be dismissed because it fails to allege all

requisite elements of such theories.

A. Discriminatory Termination

To establish a prima facie case of discriminatory

termination plaintiff must show: (1) he is a member of a

protected class; (2) he was qualified for his position as a

sanitation worker; (3) he was subject to termination; and (4)

similarly situated individuals outside his protected class were

treated more favorably. Steik v. Garcia, 2003 WL 22992223, at 6

(N.D.Cal. 2003) (citing Chuang v. University of California Davis,

Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000)). 

As discussed in section I, infra, plaintiff alleges he was

terminated because of his race and national origin on August 27,

2003. (Pl’s. Am. Compl. at 1,6.) However, he does not allege

any other facts within the applicable limitations period to

demonstrate that he was qualified as a sanitation worker or that

similarly situated persons outside of his class were treated more

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favorably. As a result, plaintiff fails to state a claim for

discriminatory termination. Although plaintiff has alleged some

facts to support a discriminatory termination claim, and leave to

amend shall be freely given, and thus the court dismisses this

claim without prejudice and permits plaintiff leave to amend. 

B. Retaliation

To allege a retaliation claim plaintiff must show: “(1) he

engaged in a protected activity; (2) his employer subjected him

to an adverse employment action; and (3) a causal link exists

between the protected activity and the adverse action.” Ray v.

Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). Plaintiff

alleges one fact, his termination, that falls within the

requisite 300-day period. (Pl’s. Am. Compl. at 5.) Yet, he does

not allege any timely facts to demonstrate that he engaged in a

protected activity or a causal link between any such protected

activity and his termination. 

Nevertheless, light the above, because plaintiff has alleged

some facts to support a retaliation claim, and leave to amend

shall be freely given, the court dismisses this claim without

prejudice and permits plaintiff leave to amend.

IV. Remaining State Law Claims

Because the above federal claims are dismissed, the court 

declines to consider at this time plaintiff’s remaining state law

claims for violation of: 1) The Fair Employment and Housing Act;

2) wrongful termination under state common law; 3) the Unruh

Civil Rights Act; 4) breach of contract; 5) breach of the

covenant of good faith and fair dealing; and 6) intentional

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infliction of emotional distress. Unless plaintiff can

adequately state a federal claim, the court would decline to

exercise supplemental jurisdiction over the remaining state law

claims. See Acri v. Varian Associates, Inc., 114 F.3d 999, 1000

(9th Cir. 1994) (en banc). 

V. Motion to Strike References of “Double Backs”

Defendant moves to strike all references to the practice

known as “double backs.” (Def’s. Mot. Str. at 5.) Defendant

claims that the elimination of “double backs” is not alleged to

pertain to discrimination, harassment, or retaliation on the

basis of race, or any other activity prohibited by statute. 

(Id.) Plaintiff asserts that the reference to “double backs” has

an essential and important relationship to his claims for relief. 

(Pl’s Opp. Def’s Mtn. Str., filed July 29, 2005, at 2.) 

According to plaintiff, his protest regarding the elimination of

“double backs” demonstrates that he engaged in a protected

activity, namely, the elimination of a practice he contends

benefitted minorities. (Id.) Thus, the reference to the

elimination of “double backs” should not be stricken because it

is relevant to plaintiff’s Title VII claim under a theory of

retaliation.

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss

plaintiff’s amended complaint is GRANTED without prejudice. 

Plaintiff is granted 20 days from the date of this order to file

a second amended complaint. Defendant shall have 20 days after

service thereof to file a response.

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Defendants’s motion to strike references regarding the

elimination of “double backs” is DENIED.

IT IS SO ORDERED.

DATED: September 14, 2005.

/s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL, Jr.

UNITED STATES DISTRICT JUDGE

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