United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

BESSIE BAKER,

Plaintiff,

v.

RES-CARE INC., 

Defendant.

____________________________________/

No. C 05-01338 SBA

ORDER

This matter comes before the Court on Res-Care Inc.’s (“Defendant”) Motion to Dismiss. 

Having read and considered the papers submitted to the Court, the Court finds the matter appropriate

for resolution without a hearing. The Court HEREBY GRANTS IN PART Defendant’s Motion to

Dismiss and REMANDS the remaining causes of action to San Francisco Superior Court. 

BACKGROUND

Bessie Baker (“Plaintiff”) began working as a bus driver and security guard at the Treasure

Island Job Corps Center for Defendant on June 11, 2002. Compl. ¶ 11, Ex. 5. Plaintiff carried out her

duties of driving the bus and counseling students under Defendant’s supervision. Id. On September 5,

2003, Defendant suspended Plaintiff for allegedly sleeping on the job, though Plaintiff claims that she

was on break and entitled to take a nap. Id. at ¶ 12. Prior to this incident, Plaintiff had never heard a

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1Plaintiff’s complaint erroneously numbers paragraphs, repeating the numbers twelve through

fifteen. This citation refers to the first ¶ 14.

2This citation refers to the first ¶ 15. 

2

complaint about her work. Id. at ¶ 21.

Plaintiff is an African-American woman, and was 56 years old when she was fired. Id. at ¶ 10.

Plaintiff is also a practicing Rastafarian. Id. at ¶ 18. While Plaintiff worked for Defendant, she took

medication which made her drowsy. Id. at ¶ 13. Approximately one year after her termination, Plaintiff

was diagnosed with obstructive sleep apnea and treated for anxiety, depression, and stress. Id. at ¶ 14,1

Exhibit 2. 

Plaintiff complained that she had been wrongly suspended from work on October 7, 2003. Id.

at ¶ 9(I). Defendant reviewed the suspension and on October 9, 2003 terminated Plaintiff’s employment

because of alleged misconduct and sleeping on the job. Id. at ¶¶ 9(ii) & 15.2 Plaintiff appealed this

decision as her employment agreement allowed, but her appeal was denied on October 20, 2003. Id. at

¶ 9(iii). Plaintiff took her dispute to the Director of the Treasure Island Job Center two days later, but

this appeal was also denied and Plaintiff’s termination was upheld. Id. at ¶ 9(iv). On May 11, 2004,

Plaintiff filed a complaint with the California Department of Fair Employment and Housing (“DFEH”).

Id. at ¶ 9(v). On May 26, 2004, the DFEH issued Plaintiff a right-to-sue letter. Id. at ¶ 9(vi). Nowhere

in Plaintiff’s complaint does she mention contacting the Equal Employment Opportunity Commission

(“EEOC”) or receiving a right-to-sue letter from it.

On January 20, 2005, Plaintiff filed the present suit in San Francisco Superior Court. Plaintiff’s

complaint encompasses eight causes of action, including both federal and state law claims. Plaintiff’s

federal causes of action include discrimination on the basis of race and sex under 42 U.S.C. § 2000e et

seq (first and sixth causes of action), and discrimination on the basis of disability under 42 U.S.C. §

12101 et seq (fifth cause of action). Plaintiff’s state law claims include discrimination on the basis of race

and age discrimination under Cal. Govt. Code § 12900 et seq (second and third causes of action), and

wrongful termination in violation of public policy (fourth cause of action). Although somewhat unclear, it

appears that Plaintiff’s claims of retaliatory firing (seventh cause of action) and hostile work environment

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3Title VII (42 U.S.C. § 2000e-3(a)) and the Americans with Disabilities Act (42 U.S.C. §

12203(a)) make retaliatory firing illegal under federal law. Retaliatory firing is illegal under California state

law as well. Cal. Gov. Code § 12900 et seq. Hostile work environment claims can be made pursuant to

California state law. Id. A federal claim for hostile work environment does not exist explicitly under Title

VII, but has been consistently inferred. See, e.g., Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 64-

67 (1986) (hostile work environment based on sexual harassment cognizable under Title VII); 29 C.F.R.

§§ 1604.11, 1606.8. Because pro se complaints should be liberally construed, the Court interprets

Plaintiff’s complaint as alleging those violations under both federal and state laws.

4N.D. Civ. L.R. 7-3(a)-(b) requires that an opposition or notice of non-opposition be filed 21 days

prior to the hearing date.

3

(eighth cause of action) are brought under both federal and state law.3

Defendant removed the case to federal court on April 1, 2005. Notice of Removal at 1.

Defendant justified removal based on original jurisdiction over federal claims, supplemental jurisdiction

over the state claims, and, as a separate basis for removal, diversity of citizenship. Id. at ¶¶ 3-5.

Defendant then filed the pending motion to dismiss on May 11, 2005. Plaintiff has not filed an

opposition to this motion.4

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss should be granted only if it

appears beyond a doubt that the plaintiff “can prove no set of facts in support of his claim which would

entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). For purposes of such a motion,

the complaint is construed in a light most favorable to the plaintiff and all properly pleaded factual

allegations are taken as true. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Everest and

Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir. 1994). All reasonable

inferences are to be drawn in favor of the plaintiff. Jacobson v. Hughes Aircraft, 105 F.3d 1288,

1296 (9th Cir. 1997).

When a complaint is dismissed for failure to state a claim, “leave to amend should be granted

unless the court determines that the allegation of other facts consistent with the challenged pleading

could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d

1393, 1401 (9th Cir. 1986). The court should consider factors such as “the presence or absence of

undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies by previous amendments,

undue prejudice to the opposing party and futility of the proposed amendment.” Moore v. Kayport

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Package Express, 885 F.2d 531, 538 (9th Cir. 1989). Of these factors, prejudice to the opposing

party is the most important. See Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990)

(citing Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31 (1971)). Leave to

amend is properly denied “where the amendment would be futile.” DeSoto v. Yellow Freight Sys.,

957 F.2d 655, 658 ( 9th Cir. 1992). 

ANALYSIS

I. Jurisdiction

Defendant removed the case to federal court based on diversity of citizenship and federal

question jurisdiction. Notice of Removal at ¶¶ 5-6. “We strictly construe the removal statute against

removal jurisdiction.” Gaus v. Miles Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citations omitted). The

party seeking to invoke federal jurisdiction bears the burden of establishing that jurisdiction exists. Scott

v. Breeland, 792 F.2d 925, 927 (9th Cir.1986). Jurisdiction can be established through diversity of

citizenship pursuant to 28 U.S.C. § 1332 or through the existence of a federal question pursuant to 28

U.S.C. § 1331. 

A. Diversity of Citizenship

In order to remove on the basis of diversity jurisdiction, the parties must be from different states

and the amount in controversy must exceed $75,000. 28 U.S.C. § 1332. The jurisdictional amount is

usually met if the plaintiff claims a sum greater than the jurisdictional minimum. Gaus, 980 F.2d at 566.

If, however, the allegations of a complaint filed in state court do not conclusively demonstrate that the

amount in controversy exceeds the jurisdictional minimum, the removing party must demonstrate by a

preponderance of the evidence that the jurisdictional minimum has been met. See Sanchez v.

Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996). “Federal jurisdiction must be rejected

if there is any doubt as to the right of removal in the first instance.” Gaus, 980 F.2d at 566 (citation

omitted); see also Matheson v. Progressive Speciality Ins. Co., 319 F.3d 1089, 1090 (9th Cir.

2003). A district court should consider facts presented in the removal petition or any “summaryjudgement-type evidence relevant to the amount in controversy at the time of removal.” Matheson, 319

F.3d at 1090. However, “conclusory allegations as to the amount in controversy are insufficient.” Id. at

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1090-91.

Plaintiff currently lives and works in California. Compl. Ex. 6 & 7. Defendant does business in

California but is incorporated in Kentucky and maintains its principal place of business in Louisville,

Kentucky. Id. at ¶ 5. The parties therefore satisfy the first element of diversity jurisdiction.

Plaintiff’s complaint does not allege any specific dollar amounts, only certain types of damages

in “amount[s] to be proven at trial.” Compl. ¶¶ 27-30. The complaint therefore fails to conclusively

demonstrate the amount in controversy exceeds $75,000. Thus, it is up to Defendant to show by a

preponderance of the evidence that this suit meets the minimum amount to establish diversity jurisdiction.

Defendant makes no such showing. It makes no calculation of the possible damages and merely

contends that, based on Plaintiff’s eight causes of action, it is “facially apparent that the value of the

matter in controversy in this action exceeds $75,000.” Notice of Removal at ¶ 5. Defendant, however,

provides no factual support for its conclusion. Such a conclusory allegation does not meet the

evidentiary standard required to proceed under diversity of citizenship. See Sanchez, 102 F.3d at 404; 

Matheson, 313 F.3d at 1090. Because the complaint does not conclusively demonstrate that the

amount in controversy exceeds $75,000 and because Defendant does not prove that it does beyond a

preponderance of the evidence, the second element for diversity jurisdiction has not been met and this

Court lacks diversity jurisdiction.

B. Federal Question

Under 28 U.S.C. § 1331, the federal courts have “original jurisdiction of all civil actions arising

under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Plaintiff’s complaint

includes claims arising under federal laws – namely Title VII and the Americans with Disabilities Act

(“ADA”). Accordingly, removal is appropriate on this ground.

II. Motion to Dismiss the Federal Claims

A. Legal Standard

Plaintiff’s federal claims all fall under Title VII or the ADA. Federal courts lack jurisdiction over

such claims until a plaintiff has completely exhausted his administrative remedies before the EEOC. 42

U.S.C. § 2000e-5e (Title VII); 42 U.S.C. § 12117(a) (ADA); see also, EEOC v. Farmer Bros. Co.,

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31 F.3d 891, 899 (9th Cir. 1994). A plaintiff must bring a charge alleging an unlawful employment

practice before the EEOC within 180 days of it occurring; or, if an authorized state or local agency first

heard the claim, within 300 days of the occurrence or within 30 days of the state or local agency closing

its investigation, whichever is earlier. 42 U.S.C. § 2000e-5(e)(1). If the EEOC chooses not to pursue

the charge after its investigation, it issues the plaintiff notice that they may bring their own lawsuit

(commonly referred to as a “right-to-sue” letter). See 42 U.S.C. § 2000e-5(f); McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 798 (1973). A plaintiff may not bring a civil action under Title VII or

the ADA without first obtaining a right-to-sue letter from the EEOC. See Owens v. Kaiser Found.

Health Plan, Inc., 244 F.3d 708, 715 (9th Cir. 2001); 42 U.S.C. § 12117(a) (incorporating Title VII

enforcement procedures into ADA).

B. Analysis

Plaintiff has not alleged that she brought a charge before the EEOC or obtained a right-to-sue

letter from it. While Plaintiff has alleged that she received a right-to-sue letter from the DFEH, that letter

cannot substitute for a right-to-sue letter from the EEOC. Turley v. C.U.R.A., Inc., 2002 U.S. Dist.

LEXIS 15465 (N.D. Cal. 2002) (Breyer, J.); Roman v. County of Los Angeles, 102 Cal. Rptr.2d.

13, 20 (2000). In Turley, the pro se plaintiff (Turley) filed a complaint with the DFEH after being fired.

2002 U.S. Dist. LEXIS 15465 at 2. The DFEH concluded that there had been no discrimination and

closed the investigation. Id. Turley received a notice from the DFEH informing him that the DFEH had

closed his case and that he had one year to bring suit against his employer. Id. The notice also informed

him that to bring any federal claims, he had to file a complaint with the EEOC within the next thirty days.

Id. Turley did not file a complaint with the EEOC, but instead immediately filed a complaint in state

court comprised of five state claims and one federal claim. Id. at 3-4. The defendant removed the action

to federal district court where the court dismissed Turley’s federal claim because he had not exhausted

his administrative remedies by filing a complaint with the EEOC and obtaining a right-to-sue letter, as

required by 42 U.S.C § 2000e-5. Id. at 5.

In Roman, the California Court of Appeal explained the rationale for not allowing a DFEH

right-to-sue letter to serve as an EEOC right-to-sue letter. 102 Cal. Rptr. 2d. at 20. After a state

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5As stated supra, Plaintiff has not filed an opposition to Defendant’s motion to dismiss.

Pursuant to the Court’s Civil Standing Orders, failure to oppose a motion is consent to the

granting of the motion. Civil Standing Orders, ¶ 8.

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agency like the DFEH closes its investigation, Title VII specifically sets a deadline for a plaintiff to file a

charge with the EEOC. 42 U.S.C. § 2000e-5(e)(1). The court reasoned that this deadline would not

exist if a DFEH letter could serve as an EEOC letter. Id.; see also 3-43 Cal. Employment Law § 43.10

(“The right-to-sue letter must be obtained from the EEOC to satisfy the jurisdictional requirements for a

claim under Title VII; a right-to-sue notice from the DFEH does not satisfy EEOC requirements”).

Plaintiff has failed to allege that she received a right-to-sue letter from the EEOC. Moreover,

Plaintiff’s right-to-sue letter from the DFEH cannot substitute for a right-to-sue letter from the EEOC.

Additionally, rather than dispute Defendant’s arguments in opposition or assert that she does have a

right-to-sue letter from the EEOC and can amend her complaint accordingly, Plaintiff has chosen not to

oppose Defendant’s motion at all.5 Therefore, because Plaintiff has failed to allege that she filed a charge

with the EEOC and receiving a right-to-sue letter and has also failed to oppose Defendant’s motion, her

federal causes of action are dismissed.

III. Supplemental Jurisdiction of Remaining State Law Claims

A. Legal Standard

Plaintiff’s remaining causes of action all arise under state law. When no federal cause of action

remains, district courts usually decline supplemental jurisdiction over the state claims and remand them

to state court. Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 (1988) (“[I]n the usual case

in which all federal claims are eliminated before trial, the balance of factors . . . will point toward

declining to exercise jurisdiction over the remaining state law claims.”). However, consideration of

factors such as judicial economy, comity, convenience, and fairness can allow a district court to retain

jurisdiction over state law claims. Brady v. Brown, 51 F.3d 810, 816 (9th Cir. 1995).

B. Analysis

Here, the Court declines to exercise supplemental jurisdiction. The parties have not even begun

discovery, suggesting that judicial resources would not be wasted by remand. Because the case now

only involves questions of California state law, comity strongly favors remanding the action. There also

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do not appear to be any issues of convenience or fairness that would trump the preference for

remanding pendent state claims when all federal claims are eliminated. See Harrell v. 20th Century

Ins. Co., 934 F.2d 203, 205 (9th Cir. 1991). 

CONCLUSION

Accordingly, Plaintiff’s first, fifth, sixth, and to the extent that they are based upon federal law,

seventh and eighth causes of action are DISMISSED. The action is REMANDED to San Francisco

Superior Court. The Clerk of the Court shall close the file and terminate any pending matters.

IT IS SO ORDERED.

Dated: 6/23/05 s/Saundra Brown Armstrong 

SAUNDRA BROWN ARMSTRONG

United States District Judge

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