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Because oral argument will not be of material 1

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

E.D. Cal. L.R. 78-230(h).

1

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 plaintiff John

Irish’s (“plaintiff”) second amended complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6). The second amended 1

complaint, filed September 27, 2005, asserts federal claims for

violations of Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C.

§§ 1981, 1983, and 1985, as well as state law claims for

discrimination under the Unruh Civil Rights Act, Cal. Civ. Code §

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52, wrongful termination and wrongful termination in violation of

public policy pursuant to the Fair Employment and Housing Act

(“FEHA”), Cal. Gov’t Code § 12900 et seq., breach of contract,

breach of the covenant of good faith and fair dealing, and

intentional infliction of emotional distress.

For the reasons set forth below, the court GRANTS

defendant’s motion to dismiss as to plaintiff’s Unruh Civil

Rights Act claim and DENIES defendant’s motion to dismiss the

remaining federal and state claims.

BACKGROUND

As alleged in the complaint, plaintiff was employed by the

City of Sacramento’s Solid Waste Division from September 1992

until his termination on August 27, 2003. (Pl’s. Sec. Am. Compl.

[“Sec. Am. Compl.”], filed Sept. 27, 2005, at ¶¶ 14, 27.) Within

six months of his hiring, plaintiff was promoted to Sanitation

Worker II and received an award from the division for exemplary

service. (Id. at ¶ 14.) Beginning in 1998, plaintiff, a male

Caucasian, complained to management on behalf of his co-workers

about unfair and discriminatory labor practices, alleged

discrimination within the division, and challenged the

elimination of “double-back” incentives which encouraged

sanitation workers to complete their duties early. (Id. at ¶

15). Plaintiff alleges he “wrote and spoke to Defendant’s

affirmative action officer [challenging] the racial make-up of

the City’s workforce and its methodology to measure the racial

make-up.” (Id. at ¶ 36.) 

Soon after making these complaints, plaintiff was verbally

threatened by a co-worker, received “hard stares” from a group of

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African-American and Filipino co-workers, was the subject of

threatening remarks on the company radio, and began receiving

harassing phone calls at his home. ( Id. at ¶¶ 16-19.) In

January 1999, plaintiff alleges that his previously cordial

relationship with Senior Supervisor Burrell, an African-American,

became hostile. (Id. at ¶ 21.) According to plaintiff, Burrell

knew of the harassment by plaintiff’s co-workers but refused to

do anything about it. (Id.) Around this time, Burrell

reassigned plaintiff to train new co-workers on the “side

loader,” a supervisory position which required plaintiff to work

longer hours. (Id. at ¶ 22.) Plaintiff perceived this

reassignment as part of an ongoing pattern of harassment and

retaliation. (Id.) More than a year later however, in July

2000, plaintiff received a positive performance evaluation from

the Division. (Id. at ¶ 14.) 

In September 2002, plaintiff was ordered to stop taking his

sanitation truck home after finishing his route. (Id. at ¶ 23.) 

In November 2002, plaintiff filed an unfair practices complaint

with the City of Sacramento’s City Manager, the Mayor, and one

Council Member. (Id. at ¶ 24.) Two months later, the Solid

Waste Division suspended plaintiff for twenty days. (Id. at ¶

25.) In July 2003, plaintiff’s work truck was confiscated after

the Division found a urine bottle in the truck. (Id. at ¶ 26.)

Finally, plaintiff was terminated by the Division on August 27,

2003. (Id. at ¶ 27.)

Plaintiff filed administrative complaints with the City of

Sacramento on February 5, 2004 (Pl’s RJN, Ex. A, filed July 29,

2005), and with the EEOC on March 8, 2004 (Def’s. RJN, Ex. A,

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filed July 1, 2005). Plaintiff filed his original complaint with

this court on August 30, 2004 and an amended complaint on June

30, 2005. Thereafter, defendant filed a Rule 12(b)(6) motion to

dismiss the amended complaint. This court granted the motion but

gave plaintiff leave to amend. (Memorandum and Order, filed

Sept. 19, 2005.) Plaintiff filed the second amended complaint on

September 27, 2005.

STANDARD

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

Cir. 1986). Motions to dismiss are generally disfavored and are

rarely granted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248-

49 (9th Cir. 1997).

 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

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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). 

A complaint need not plead all elements of a prima facie

case, however, in order to survive a motion to dismiss. 

Swierkewicz v. Sorema N.A., 534 U.S. 506, 510-512 (2002)

(rejecting a heightened pleading standard for employment

discrimination and civil rights cases). Fair notice of the

grounds for relief along with a short and plain statement of the

claim are all that is required. Id. at 508 (citing Fed. R. Civ.

Proc. 8(a)(2)).

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). 

ANALYSIS

Defendant argues that plaintiff has not stated a viable

claim for relief because plaintiff has not pleaded a prima facie

case under Title VII or the federal civil rights statutes. The

federal rules do not require a plaintiff to make out a prima

facie case in the pleadings. Swierkewicz, supra, 534 U.S. at

510-512; Fed. R. Civ. Proc. 8(a). Notice pleading is all that is

required. Id. Taking plaintiff’s statements in the second

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Although plaintiff alleged disparate treatment in his 2

claim filed with the EEOC, plaintiff does not allege such a claim

in his second amended complaint.

6

amended complaint as true, plaintiff has stated facts sufficient

to give rise to an inference of discrimination on theories of

workplace harassment and retaliation, either on the basis of his

race or on the basis of his association with and advocacy on

behalf of his minority co-workers. Plaintiff has given adequate 2

notice that suit is being filed under Title VII, the federal

civil rights statutes, §§ 1981, 1983, and 1985, and on various

state law theories. 

1. Federal Title VII Claims

Plaintiff alleges he was terminated on August 27, 2003

because of his race or national origin and/or in retaliation for

speaking out against his employer’s unfair and discriminatory

labor practices affecting minorities. (Sec. Am. Compl. at ¶¶ 29-

49.) Title VII permits employment actions on the alternative

theories, among others, of hostile work environment harassment

and retaliation for asserting rights on behalf of oneself or on

behalf of minority co-workers (see Johnson v. Univ. of

Cincinnati, 215 F.3d 561, 575 (6th Cir. 2000)). Plaintiff filed

a complaint with the EEOC on March 8, 2004, alleging disparate

treatment, hostile work environment, and retaliation. (Def’s RJN

at Ex. A.) Said complaint was filed well within 300 days of his

termination as required by statute, 42 U.S.C. § 2000e-5(e)(1),

and as such is timely. 

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A. Hostile Work Environment Harassment

The elements of a hostile work environment claim are (1)

plaintiff was subjected to verbal or physical conduct because of

his race, (2) the conduct was unwelcome, and (3) the conduct was

sufficiently severe or pervasive so as to alter the conditions of

employment and create an abusive work environment. Manatt v.

Bank of Am., 339 F.3d 792, 798 (9th Cir. 2003). 

Defendant argues that plaintiff has failed to allege

sufficient facts to make out a prima facie case of hostile work

environment harassment and that the claim is insufficient “as a

matter of law.” (Def’s Motion to Dismiss the Sec. Am. Compl.

[“MTD”], filed Oct. 13, 2005 at 5.) However, the question on

this motion under Rule 12(b)(6) is not whether plaintiff can

establish a prima facie case, but whether plaintiff has alleged

sufficient facts to state a claim. Swierkewicz, supra, 534 U.S.

at 510-512.

Plaintiff has done so. Plaintiff alleges that he was

subjected to verbal or physical harassment either because of his

race or because he asserted his or his co-worker’s rights to be

free from a discriminatory work environment. (Sec. Am. Compl. at

¶¶ 15, 19, 36.) Specifically, plaintiff alleges that he was

harassed by his co-workers in the form of hard stares,

intimidating statements, and verbal threats over the company

radio. (Id. at ¶¶ 19-20.) Plaintiff also alleges that the

conduct was unwelcome and that he was sufficiently threatened in

that he felt as if he had been “kicked in the stomach.” (Id. at

¶ 16.) 

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While defendant is correct that Title VII hostile work

environment claims are not a “means to enforce a code of general

civility in the workplace,” this court must take plaintiff’s

allegations as true. (MTD at 4.) Plaintiff states sufficient

facts to allege severe and pervasive conduct. (Sec. Am. Compl.

at ¶¶ 15-22.) Moreover, plaintiff alleges that his job

assignment was changed; that he was denied certain privileges;

and that he was suspended, all events which altered the terms and

conditions of his employment. (Id. at ¶¶ 19, 22, 24.) 

Plaintiff also alleges a causal connection between his

activities challenging the division’s discriminatory work

environment and the harassment he suffered at the hands of both

his co-workers and supervisors. (Id. at ¶¶ 15, 19, 21, 36.)

Plaintiff alleges that the harassment began soon after he made

complaints about the division’s discriminatory policies. Id. 

Moreover, plaintiff alleges that some of the acts that give

rise to his hostile work environment harassment claim, such as

the harassing phone calls, continue to occur. (Id. at ¶ 18.) In

hostile work environment harassment cases, if one harassing act

occurs within the applicable limitations period, the continuing

violations doctrine will serve to “revive” facts which occur

outside of the limitations period. National R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 115-17 (2002). Therefore, because

plaintiff alleges acts occurring within the limitations period

(harassing phone calls), the continuing violations doctrine

applies to the claim and defeats defendant’s argument that the

claim is time-barred. 

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For all the foregoing reasons, plaintiff’s claim for hostile

work environment harassment under Title VII cannot be dismissed. 

B. Retaliation

In establish a prima facie case of retaliation plaintiff

must show (1) that he engaged in protected activity, such as

filing a complaint alleging racial discrimination, (2) was

subjected to an adverse employment action and that (3) there was

a causal link between the activity and the action. See 42 U.S.C.

§ 2000e-3. Title VII specifically makes unlawful:

Discrimination for making charges, testifying,

assisting, or participating in enforcement 

proceedings. It shall be an unlawful employment

practice for an employer to discriminate against

any of his employees ... because he has opposed

any practice made an unlawful employment practice

by this title [42 U.S.C. §§ 2000e-2000e-17], or 

because he has made a charge, testified, assisted,

or participated in any manner in an investigation,

proceeding, or hearing under this title 

[42 U.S.C. §§ 2000e-2000e-17].

Id.

In this case, plaintiff identifies his supervisors and the

series of events and other disciplinary actions leading up to his

termination with sufficient specificity to provide notice to

defendant of the claimed retaliation. (Sec. Am. Compl. at ¶¶ 30,

32, 36.) Specifically, plaintiff alleges that Senior Supervisor

Burrell, and Supervisors Hicks and Davis, retaliated against him

because of his opposition to discriminatory practices within the

division. (Id. at ¶¶ 21-22, 24-26, 36.) Plaintiff further

alleges that his supervisors began a series of disciplinary

actions against him as a pretext to punish him for his opposition

to division policies and practices. (Id. at ¶ 21-27.) These

disciplinary actions culminated in plaintiff’s termination. (Id.

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at ¶ 27.)

In contrast to hostile work environment harassment cases,

the continuing violations doctrine does not apply to discrete

discriminatory and retaliatory acts. See Morgan, supra 536 U.S.

at 113-114. Here, while many of the alleged retaliatory acts

occurred outside the applicable limitations period, one of those

acts, plaintiff’s termination, took place within the 300-day

limitations period. (Id. at ¶ 27.) As such, plaintiff’s

retaliation claim is not time-barred. Plaintiff has adequately

stated a claim of retaliation under Title VII.

2. Federal Civil Rights Claims

The facts outlined above giving rise to plaintiff’s Title

VII claims are also sufficient to state claims under the federal

civil rights statutes, 42 U.S.C. §§ 1981, 1983, 1985. 

 Section 1981 prohibits interference with contracts on the

basis of race and applies to Caucasian as well as minority

groups. McDonald v. Santa Fe Transp. Co., 427 U.S. 273 (1976). 

Facts that give rise to Title VII claims are generally sufficient

to state a claim for § 1981 violations. See Lowe v. Monrovia,

775 F.2d 998, 1010 (9th Cir. 1985), amended by 784 F.2d 1407 (9th

Cir. 1986). For example, § 1981 clearly establishes a right to

be free from retaliatory discharge and courts employ a Title VII

analysis to determine the validity of the claim. Manatt, supra,

339 F.3d at 800. Therefore, for the same reasons the court

cannot dismiss plaintiff’s Title VII claims, it cannot dismiss

plaintiff’s § 1981 claim. 

Likewise, § 1983 is the general enforcement mechanism for

the protection of constitutional rights including equal

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protection rights under the Fourteenth Amendment and free

association and speech rights under the First Amendment. 

Employees may bring both Title VII and § 1983 claims even when

both claims are based on the same set of operative facts. 

Roberts v. Coll. of the Desert, 870 F.2d 1411, 1415-16 (9th Cir.

1988). The same facts that give rise to plaintiff’s Title VII

claims also give rise to possible violations of plaintiff’s

constitutional rights, particularly retaliation for exercise of

his First Amendment rights in speaking out about alleged

discrimination within the division, and discriminatory

termination in violation of the Equal Protection Clause of the

Fourteenth Amendment. (Sec. Am. Compl. at ¶ 27, 36.) Therefore,

plaintiff may state a viable § 1983 claim provided he has alleged

sufficient facts to establish “municipal liability.”

Section 1983 claims against municipal actors “must contain

two allegations: 1) deprivation of a federal right by (2) a

person acting under color of state law.” Federation of African

Am. Contrs. v. City of Oakland, 96 F.3d 1204, 1216 (9th Cir.

1996). Plaintiff alleges that his First and Fourteenth amendment

rights, among other constitutional rights, have been violated by

his supervisors who, at least by inference, acted pursuant to

division custom, policy or practice. (Sec. Am. Compl. at ¶¶ 21-

27, 52.) Further, plaintiff identifies a specific policy action,

the elimination of “double backs,” that he alleges is

discriminatory. (Id. at ¶ 52.)

Defendant argues that plaintiff has not identified a custom,

policy, or practice of the City of Sacramento sufficient to give

rise to a claim against the City. (MTD at 8.) There are three

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ways a plaintiff can establish municipal liability in § 1983

claims: (1) the alleged unconstitutional action was performed

pursuant to an official government policy or longstanding custom

or practice, (2) the official who performed the unconstitutional

action was an official with “final policy making authority,” or

(3) an official with “final policy making authority” ratified the

unconstitutional action of their subordinate. Gillette v.

Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992). Congress

intended that government “custom” be given a broad reading in §

1983 claims, “because of the persistent and widespread

discriminatory practices of state officials . . . . Although not

authorized by written law, such practices of state officials

could well be so permanent and well settled as to constitute a

'custom or usage' with the force of law.” Monell v. Dep't of

Soc. Servs., 436 U.S. 658, 691 (U.S. 1978) citing Adickes v. S.

H. Kress & Co., 398 U.S. 144, 167-168 (1970).

Plaintiff alleges that the division and the City have

racially discriminatory policies and procedures and that he

complained to the City of Sacramento’s affirmative action officer

about the methodology used to determine the racial make-up of the

City’s workforce. (Sec. Am. Compl. at ¶ 36.) Plaintiff also

alleges he was retaliated against because of his advocacy on

behalf of African-American co-workers. (Id. at ¶ 27.) These

facts are sufficient to state a claim under the broadly construed

first prong of Gillette. As such, plaintiff has stated a viable 

§ 1983 claim against the City.

Finally, § 1985(3) makes conspiracies to deprive individuals

of their civil rights illegal. The same facts that state a claim

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under Title VII and §§ 1981 and 1983 also give rise to a claim

under § 1985(3). Plaintiff identifies several supervisors and

city officials who allegedly violated his civil rights and

alleges specifically that two of his supervisors stated they were

“discriminating against [him].” (Id. at ¶ 30.) Those facts

sufficiently support an inference of invidious discriminatory

animus as required by § 1985. 

Defendant asserts that the intra-corporate conspiracy

doctrine bars plaintiff’s § 1985 claim. (MTD at 11.) The intracorporate conspiracy doctrine bars individual government

employees of a single entity from forming a conspiracy with one

another. Portman v. County of Santa Clara, 995 F.2d 898, 910

(9th Cir. 1993). Federal circuits have split on whether the

doctrine applies to § 1985 claims, and the Ninth Circuit has

declined to address the issue. Id. There is, however, some

legal authority holding that the intra-corporate conspiracy

doctrine is inapplicable to § 1985 claims. Id. Thus, the court

finds the doctrine does not automatically bar plaintiff’s § 1985

action.

Defendant argues, notwithstanding the above, that the

statute of limitations bars plaintiff’s civil rights claims. 

(MTD at 8-9.) Courts considering federal civil rights claims

generally borrow the state statute of limitations for personal

injury claims. See e.g. Owens v. Okure, 488 U.S. 235, 250

(1989); Saint Francis College v. Al-Khazraji, 481 U.S. 604, 607

(1987). California’s statute of limitations for personal injury

claims, California Code of Civil Procedure § 335.1, provides a

two year limitations period. In this case, plaintiff was

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terminated by defendant City of Sacramento in August of 2003 and

filed his complaint within the applicable statute of limitations

period on August of 2004. 

3. State Law Causes of Action

A. The Unruh Civil Rights Act

The Unruh Civil Rights Act does not apply to the employeremployee relationship. Alcorn v. Anbro Engineering, Inc., 2 Cal.

3d 493, 500 (1970); Cal. Civ. Code § 51. Therefore, plaintiff’s

sixth cause of action is dismissed.

B. Remaining State Law Claims

Initially, defendant argues that plaintiff has not complied

with the California Government Tort Claims Act, Cal Gov. Code §

945.4, and thus plaintiff’s state law tort claims must fail. 

Although plaintiff failed to allege compliance with the Tort

Claims Act, this court may take judicial notice of public

documents pursuant to Rule 201 of the Federal Rules of Evidence. 

Here, considering plaintiff’s Request for Judicial Notice,

plaintiff complied with the requirements of § 945.4 when he filed

a complaint with the City of Sacramento, on February 5, 2004,

thereby fulfilling the presentment requirement of the Tort Claims

Act. (Pl’s RJN, at Ex. A.) Accordingly, defendant’s motion to

dismiss on this basis is denied. 

1. Breach of Contract and Breach of the Covenant 

 of Good Faith and Fair Dealing

Plaintiff alleges the existence of an implied employment

contract with defendant. (Sec. Am. Compl. at ¶¶ 58-63.) 

Specifically, he alleges his employment was not at will but was

governed by an implied contract which contained terms including

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Plaintiff relies on California’s public policy against 3

unlawful discrimination outlined in FEHA in stating his claim for

wrongful discharge in violation of public policy. See Reno v.

Baird, 18 Cal. 4th 640, 663 (Cal. 1998); Cal. Gov’t Code § 12920.

15

the right to be free from discrimination, the right to fair

treatment, and the right to be discharged only for good cause. 

(Id.) Implied contracts are created by conduct of the employer

and the employee. See Cal. Civ. Code § 1621. Every contract

contains an implied covenant of good faith and fair dealing. 

Storek & Storek, Inc. v. Citicorp Real Estate, Inc., 100 Cal.

App. 4th 44, 57 (2002). Taking these allegations as true, as the

court must under Rule 12(b)(6), plaintiff adequately states these

claims. Therefore, defendant’s motion to dismiss is denied.

2. Wrongful Termination and Wrongful Termination 

 in Violation of Public Policy

The facts outlined in the Title VII and federal civil rights

sections above also sufficiently state claims under FEHA for

wrongful termination and wrongful termination in violation of

public policy. FEHA makes racial harassment or discrimination 3

against employees on the basis of race and other protected

categories unlawful. Cal. Gov’t Code § 12900 et seq. California

courts have consistently applied Title VII analysis to state law

claims under FEHA. See e.g., Etter v. Veriflo Corp., 67 Cal.

App. 4th 457, 464 (Cal. Ct. App. 1998); Heard v. Lockheed

Missiles & Space Co., 44 Cal. App. 4th 1735, 1747 (Cal. Ct. App.

1996); Greene v. Pomona Unified School Dist., 32 Cal. App. 4th

1216, 1221, fn. 6 (1996). Therefore, the facts giving rise to

plaintiff’s Title VII claims also suffice to state claims under

FEHA. Therefore, these claims cannot be dismissed.

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3. Intentional Infliction of Emotional Distress

Finally, “the elements of a prima facie case of intentional

infliction of mental distress are (1) outrageous conduct by the

defendant, (2) intention to cause or reckless disregard of the

probability of causing emotional distress, (3) severe emotional

suffering and (4) actual and proximate causation of the emotional

distress.” Bogard v. Employers Casualty Co., 164 Cal. App. 3d

602, 616 (1985). Plaintiff alleges he was verbally harassed,

both at work and at home, in person and over the phone. (Sec.

Am. Compl. at ¶¶ 16-20.) Plaintiff has stated that he felt as if

he had “been kicked in the stomach.” (Id.) At the same time,

plaintiff alleges he was forced to relinquish work related

privileges and was unfairly disciplined. (Id. at 21-27.) Taken

as true, plaintiff has sufficiently stated a claim for

intentional infliction of emotional distress. Therefore,

defendant’s motion to dismiss this cause of action is denied. 

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss

plaintiff’s second amended complaint is GRANTED IN PART and

DENIED IN PART. 

1. Plaintiff’s sixth claim for relief for violation of the

California Unruh Civil Rights Act is dismissed with

prejudice;

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2. Defendant’s motion as to the remaining claims is

denied.

IT IS SO ORDERED.

DATED: January 27, 2006.

 

/s/Frank C. Damrell, Jr.

FRANK C. DAMRELL, Jr.

UNITED STATES DISTRICT JUDGE

Case 2:04-cv-01813-FCD-EFB Document 28 Filed 01/30/06 Page 17 of 17