The opinion of the court was delivered by: Robert C. Jones United States District Judge
This case arises out of the Reno Police Department's alleged violations of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). Pending before the Court
Motions to Dismiss (ECF Nos. 10, 17). For the reasons given herein, the Court denies the first motion as moot but grants the second motion.
FACTS AND PROCEDURAL HISTORY
Plaintiff Jeffrey Church is a long-serving Air Force reservist who has been employed as a by Defendant City of Reno (the "City") since 1980. (Compl. ¶¶ 15--16, Nov. 13, 2012, ECF No. 1). He has been a sergeant since 1988. (Id. ¶ 17). Plaintiff filed a class action in federal court in 1983, complaining that the City had violated USERRA by permitting the military of its employees to affect employee benefits, and in 1987, the court granted a consent decree (the "Decree"). (Id. ¶¶ 18--19). Plaintiff filed another suit in 1989 to enforce the Decree, and the court found the City in contempt for having failed to adopt a written policy addressing leave, awarding Plaintiff damages and attorney's fees, and fining the City $100 per day until compliance. (Id. ¶ 20). Plaintiff filed a second contempt action in 1997, and the court found in contempt for having given Plaintiff a negative performance evaluation because of his service-related absences in Panama, Iraq, and Bosnia. (Id. ¶¶ 24--30). The Court ordered the disputed evaluation rescinded and rewritten without consideration of military absences. (Id. ¶ 30). Plaintiff filed a third contempt action in 1999, but the court did not make the City show
because it had since remedied the alleged violation. (Id. ¶ 34). Plaintiff alleges that he was treated differently and harassed due to his military service through June 3, 2003, when he filed a complaint with the state Occupational Safety and Health Enforcement alleging that he had been
discharged. (See id. ¶¶ 35--56).
Plaintiff filed the Complaint in this Court against the City, City Manager Charles McNeely, Chief of Police Jerry Hoover, Deputy Policy Chief Ondra Berry, and Lieutenant Ronald Donnelly. Plaintiff alleged discrimination under 38 U.S.C. § 4311 and reemployment violations under § 4316. Defendants moved to dismiss for claim preclusion. Plaintiff did not respond, except to file the First Amended Complaint ("FAC"). The FAC recites the same sixand-a-half pages of factual allegations verbatim but lists single cause of action for hostile work environment under § 4311. Plaintiffs have moved to dismiss the FAC.
Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief" in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555).
"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss." Hal Roach Studios, Inc. v. Richard Feiner, 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss" without converting the motion to dismiss into a motion for summary
Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of Evidence 201, a court may take judicial notice of "matters of public record." Mack v. S. Bay., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.
The Court grants the motion to dismiss. Section 4311 can support a hostile workplace environment claim. See Wallace v. City of San Diego, 479 F.3d 616, 625--26 (9th Cir. 2006). But such a claim requires a constructive discharge, see id., and Plaintiff does not allege that he quit. He alleges only that a psychologist recommended that he not return to work, that Defendant gave him three options (return to work, retire, or refuse to return and be terminated), and that he filed a complaint with the state Occupational Safety and Health Enforcement Department alleging constructive discharge. (See First Am. Compl. ¶¶ 54--56, Feb. 22, 2013, ECF No. 12). Plaintiff must affirmatively allege facts making constructive discharge plausible, i.e., that he quit or ...