Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 1 of 13 Page ID #:244

O 11

22 33 44 55

66 77

88 United States District Court 99 Central District of California 1100 1111 TONY SPEED, Case № 5:22-cv-00117-ODW (SHKx)

1122 Plaintiff,

ORDER GRANTING IN PART AND

1133 v. DENYING AS MOOT IN PART

1144 CITY OF MORENO VALLEY, DEFENDANT’S MOTION TO

DISMISS [10]

1155 Defendant.

1166 1177 I. INTRODUCTION 1188 Plaintiff Tony Speed brought suit in the Superior Court of California, County of 1199 Riverside, against his former employer, Defendant City of Moreno Valley (“City”) for 2200 harm suffered in connection with the termination of his employment. (Notice of 2211 Removal (“NOR”) ¶ 1, ECF No. 1; NOR Ex. A (“Compl.”), ECF No. 1-1.) On 2222 December 23, 2021, Speed filed the operative First Amended Complaint (“FAC”) in 2233 state court. (NOR ¶ 10; id. Ex. I (“FAC”), ECF No. 1-9.) Now, after having removed 2244 the case, Defendant moves to dismiss the FAC pursuant to Federal Rule of Civil 2255 Procedure (“FRCP”) 12(b)(6). (Mot. Dismiss FAC (“Motion” or “Mot.”), ECF 2266 No. 10.) The parties fully briefed the Motion, (Opp’n, ECF No. 12; Reply, ECF 2277 No. 13), and pursuant to FRCP 78 and Local Rule 7-15, the Court deemed the matter 2288

1 Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 2 of 13 Page ID #:245

1 appropriate for decision without oral argument. For the following reasons, the Motion 2 is GRANTED IN PART and DENIED AS MOOT IN PART. 3 II. BACKGROUND 4 For purposes of this Rule 12(b)(6) Motion, the Court accepts Speed’s 5 well-pleaded allegations as true. Lee v. City of Los Angeles, 250 F.3d 668, 688 6 (9th Cir. 2001). 7 Speed is an African American male who has an unspecified disability. (FAC 8 ¶ 10.) On January 5, 2015, the City hired Speed as a Traffic Signal Technician. (FAC 9 ¶ 9.) The principal events leading up to Speed’s termination involve three City 10 employees: Transportation Senior Signal Technician Ron Matthews (“Matthews”); 11 Transportation Supervisor Scott Duncan (“Duncan”); and Traffic Signal Technician 12 Terry Klaumanzer (“Klaumanzer”). (See, FAC ¶¶ 11–19.) The FAC does not 13 indicate whether and to what extent these individuals were Speed’s supervisees, 14 colleagues, or supervisors. 15 Speed sets forth a series of chronological allegations describing the harassment 16 and unfair treatment he received at work, as follows: 17  June 6, 2017. While working, “Speed overheard . . . Matthews make a remark 18 about ‘roots & Kunta Kente.’” Speed asked Matthews what he had said. 19 Matthews replied he needed the jack hammer to get rid of roots, and then 20 repeated the phrase, ‘Roots, Kunta Kente.’” (FAC ¶ 11.) 21  June 6, 2017. At the jobsite, Speed “overheard Matthews say, ‘Look how many 22 of them there [are]; there’s so many Mexicans. They’re everywhere; they call 23 this place “Morenexico.”’” Duncan and Klaumanzer “were present at the time, 24 but none of these men saw that Speed could overhear the comments.” (FAC 25 ¶ 12.) 26  June 20, 2017. “Speed received an incident report for damaging the front 27 passenger bin on a new City truck. While filling out the incident report, 28 Duncan told Speed he was going to write him up for not paying attention on the

2 Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 3 of 13 Page ID #:246

1 job, despite not being at the location when the incident took place. Duncan also 2 told Speed he had ‘his head up his ass.’” (FAC ¶ 13.) 3  June 29, 2017. “Duncan used the term ‘yessum’ with a southern accent when 4 talking to Speed.” (FAC ¶ 14.) 5  August 1, 2017. While working on a digging job, “Duncan instructed 6 Klaumanzer to stop digging and for Speed to dig instead. Speed began digging 7 while Duncan sat in front of him and watched. Duncan would not let any of the 8 other employees assist Speed.” (FAC ¶ 15.) 9  August 5, 2017. While fixing a traffic light, Speed “called Klaumanzer for 10 help. Klaumanzer began talking through certain steps. Speed said he had 11 already completed those steps, to which Klaumanzer responded angrily and said 12 Speed had been acting differently lately.” (FAC ¶ 16.) 13  August 11, 2017. “Matthews called Speed’s sister to tell her he had been in a 14 motorcycle accident even though Speed was in no such accident. Speed 15 reported the incident to Duncan,” but Duncan did not take action. (FAC ¶ 17.) 16  August 11, 2017. “Duncan falsely wrote Speed up for being a no-call and no- 17 show to work . . . . Human Resources later removed the write-up from Speed’s 18 file but this harassment was never explained.” (FAC ¶ 18.) 19  August 17, 2017. “Speed found a knife in his work mail box. Duncan, 20 Matthews, and Sign and Striping Technician Brandon Miranda admitted to 21 putting the knife in his work mail box. Speed was placed on administrative 22 leave on August 23, 2017, while the City conducted an internal investigation.” 23 (FAC ¶ 19.) 24 Thereafter, from November 16, 2017, through November 27, 2017, Speed took 25 leave due to his disability. (FAC ¶ 21.) At some point around this time, Speed 26 apparently took leave pursuant to the California Family and Medical Leave Act 27 (“FMLA”); it is unclear whether the November 16–27 leave is the FMLA leave to 28 which the FAC refers. (See FAC ¶ 22.)

3 Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 4 of 13 Page ID #:247

1 On December 19, 2017, Speed filed an administrative charge against the City 2 with the California Department of Fair Employment and Housing (“DFEH”). (FAC 3 ¶ 27.) In this first DFEH Charge, Speed accused the City of race-based harassment, 4 race-based discrimination, retaliation for having requested disability leave, and 5 disability-based harassment. (Req. Judicial Notice1 (“RJN”) Ex. 1 (“First DFEH 6 Charge”), ECF No. 11.) 7 On January 4, 2018, the City terminated Speed’s employment for the 8 “pretextual reason of being absent without leave on December 19, 2017, through 9 December 25, 2017.” (FAC ¶ 23.) Speed also alleges that, prior to this, on 10 December 21, 2017, he was placed on unpaid leave, but it is unclear whether and how 11 this allegation relates to his allegation that the City’s reason for termination was his 12 December 19–25 absence without leave. (See FAC ¶ 22.) Speed alleges that “[t]he 13 true reason the CITY terminated Speed’s employment was because of his race, in 14 retaliation for opposing race discrimination and harassment and in retaliation for 15 taking [FMLA] leave.” (FAC ¶ 23.) 16 On October 6, 2019, Speed filed a second DFEH Charge, accusing the City of 17 retaliation for exercising FMLA rights and for disability discrimination. (RJN Ex. 3 18 (“Second DFEH Charge”), ECF No. 11.) 19 On October 6, 2021, Speed brought suit in state court, and on December 23, 20 2021, he filed the operative FAC, setting forth claims for (1) harassment under the 21 California Fair Employment and Housing Act (“FEHA”); (2) discrimination under 22 FEHA; (3) retaliation for exercising FMLA rights; and (4) violations of 42 U.S.C. 23 24

25 1 The City requests judicial notice of the two complaints Speed filed with the DFEH and the two respective Right-to-Sue Notices the DFEH sent Speed. (Req. Judicial Notice, ECF No. 11.) Speed 26 does not object to the request, and judicial notice appears proper. See, e.g., Minor v. FedEx Off. & 27 Print Servs. Inc., 78 F. Supp. 3d 1021, 1027 (N.D. Cal. 2015) (noting “records of administrative agencies,” including those of the DFEH, are “proper subjects of judicial notice”). The City’s 28 Request for Judicial Notice is GRANTED. (ECF No. 11.)

4 Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 5 of 13 Page ID #:248

1 § 1981. The City removed the case to district court on the basis of federal question 2 jurisdiction. (NOR ¶ 11.) This Motion followed. 3 III. LEGAL STANDARD 4 A court may dismiss a complaint under FRCP 12(b)(6) for lack of a cognizable 5 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 6 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 7 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading 8 requirements of Rule 8(a)(2) by setting forth a short and plain statement of the claim. 9 Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be 10 enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. 11 Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 12 (holding that a claim must be “plausible on its face” to avoid dismissal). 13 The determination of whether a complaint satisfies the plausibility standard is a 14 “context-specific task that requires the reviewing court to draw on its judicial 15 experience and common sense.” Iqbal, 556 U.S. at 679. A court is generally limited 16 to the pleadings and must construe all “factual allegations set forth in the 17 complaint . . . as true and . . . in the light most favorable” to the plaintiff. Lee, 18 250 F.3d at 679. However, a court need not blindly accept conclusory allegations, 19 unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden 20 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Ultimately, there must be 21 sufficient factual allegations “to give fair notice and to enable the opposing party to 22 defend itself effectively,” and the “allegations that are taken as true must plausibly 23 suggest an entitlement to relief, such that it is not unfair to require the opposing party 24 to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 25 652 F.3d 1202, 1216 (9th Cir. 2011). 26 Where a district court grants a motion to dismiss, it should generally provide 27 leave to amend unless it is clear the complaint could not be saved by any amendment. 28 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d

5 Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 6 of 13 Page ID #:249

1 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court 2 determines that the allegation of other facts consistent with the challenged pleading 3 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture 4 Co., 806 F.2d 1393, 1401 (9th Cir. 1986); Carrico v. City & County of San Francisco, 5 656 F.3d 1002, 1008 (9th Cir. 2011) (“[Leave to amend] is properly denied . . . if 6 amendment would be futile.”). 7 IV. DISCUSSION 8 Speed fails to allege facts sufficient to state a § 1981 civil rights claim as he 9 characterizes that claim, and accordingly, the Court dismisses the § 1981 claim with 10 leave to amend. Without an active, well-pleaded federal claim to anchor the case, the 11 Court declines at this juncture to exercise supplemental jurisdiction and accordingly 12 declines to proceed to the merits of Speed’s three state-law claims. The Court 13 accordingly dismisses those claims, without prejudice to re-pleading them as part of a 14 set of revised allegations and a revised § 1981 claim. 15 A. Federal Civil Rights Violations (42 U.S.C. § 1981) 16 Speed’s sole federal claim is brought pursuant to 42 U.S.C. § 1981. “Section 17 1981 offers relief when racial discrimination blocks the creation of a contractual 18 relationship.” Lambert v. Tesla, Inc., 923 F.3d 1246, 1248 (9th Cir. 2019) (quoting 19 Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006)). The statute provides 20 in part: 21 All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to 22 sue, be parties, give evidence, and to the full and equal benefit of all laws 23 and proceedings for the security of persons and property as is enjoyed by 24 white citizens.” 25 42 U.S.C. § 1981(a). The purpose of § 1981 is to enforce the Fourteenth Amendment 26 to the United States Constitution, Davis v. Foreman, 251 F.2d 421, 422 (7th Cir. 27 1958), by “proscrib[ing] discrimination in the making or enforcement of contracts 28 against, or in favor of, any race,” Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003).

6 Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 7 of 13 Page ID #:250

1 See Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1122 (9th Cir. 2008) (noting 2 § 1981 protects right to “the enjoyment of all benefits, privileges, terms, and 3 conditions of the contractual relationship”). Of particular relevance here, § 1981 4 “affords a federal remedy against discrimination in private employment on the basis of 5 race.” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 285 (1976); see 6 Magana v. Commonwealth of the N. Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 7 1997) (“Section 1981 . . . provides a federal remedy against race-based employment 8 discrimination in the private and public sectors.” (citing Runyon v. McCrary, 427 U.S. 9 160, 168–72 (1976)).) 10 In the FAC, under the heading for this claim, Speed alleges that “Defendant 11 terminated Plaintiff’s employment because of his race, African-American, and/or 12 because he opposed racial harassment and discrimination.” (FAC ¶ 64.) With this 13 allegation, Speed accuses the City of (1) race-based discrimination and (2) retaliation. 14 The City’s chief challenge to this claim is that Speed fails to plead facts showing that 15 his “race was the but-for cause of the City’s decision to terminate” his employment. 16 (Mot. 23.) 17 In response to this challenge, Speed asserts that he “has pled sufficient facts that 18 he was terminated because of his race and for opposing racial harassment,” and that 19 his termination is actionable in either sense under § 1981. (Opp’n 6 (emphasis 20 added).) The City asserts that this is a “complete shift” from what Speed contended in 21 his Second DFEH Charge, (Reply 12), but this observation is mostly irrelevant 22 because the viability of a federal § 1981 claim is independent of whether a plaintiff 23 followed state-law administrative procedures for related claims before filing their 24 federal claim in court. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 25 (9th Cir. 2008) (observing § 1981 does not require any exhaustion of administrative 26 remedies); see also Henderson v. Aria Resort & Casino Holdings, LLC, No. 2:21-cv- 27 0280-JAD-NJK, 2022 WL 1785433, at *3 (D. Nev. May 31, 2022) (same); cf. Fed. of 28 African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1214 (9th Cir. 1996)

7 Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 8 of 13 Page ID #:251

1 (“Private causes of action against state actors who impair federal civil rights have not 2 been traditionally relegated to state law.”). 3 Accordingly, in determining whether Speed states a § 1981 claim, the Court 4 accepts, for the purpose of this Motion, Speed’s characterization of the claim as one 5 for (1) race-based discrimination and (2) retaliation for opposing race harassment. For 6 the following reasons, however, Speed fails to allege facts sufficient to support a 7 § 1981 claim under either of these theories. 8 1. Race discrimination 9 “Most § 1981 actions involve employment discrimination claims, and courts 10 analyze such cases employing the same statutory scheme used in cases brought under 11 Title VII.” Balt.-Clark v. Kinko’s Inc., 270 F. Supp 2d 695, 698–99 (D. Md. 2003); 12 Sanders v. City of Phoenix, No. CV06-1644-PHX-GMS, 2008 WL 11338788, at *5 13 (D. Ariz. Apr. 10, 2008) (“The same legal principles applicable to Title VII claims 14 apply when analyzing claims for race discrimination under § 1981.”) 15 Title VII provides in relevant part that “[i]t shall be an unlawful employment 16 practice for an employer . . . to discharge any individual, or otherwise to discriminate 17 against any individual with respect to his compensation, terms, conditions, or 18 privileges of employment, because of such individual’s race.” 42 U.S.C. 19 § 20003-2(a). Thus, to obtain relief for employment discrimination, a plaintiff must 20 plead and prove that (1) they belonged to a protected class; (2) they were qualified for 21 their position; (3) they experienced an adverse employment action; and (4) similarly 22 situated individuals outside the plaintiff’s protected class were treated more favorably. 23 Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000). 24 Under California’s FEHA, the first three elements for employment 25 discrimination are the same, and California cases frame the fourth element as 26 requiring “some other circumstance suggests discriminatory motive.” Chisholm v. 27 7-Eleven, Inc., 383 F. Supp. 3d 1032, 1059 (S.D. Cal. May 23, 2019) (citing Guz v. 28 Bechtel Nat’l Inc., 24 Cal. 4th 317, 355 (2000); cf. Means v. City & Cnty. of S.F.,

8 Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 9 of 13 Page ID #:252

1 Dep’t of Pub. Health, 749 F. Supp. 2d 998, 1004 (N.D. Cal. 2010) (analyzing Title 2 VII, section 1981, and FEHA employment discrimination claims under singular 3 framework). “Thus, a plaintiff must establish a causal nexus between the adverse 4 employment action and her protected characteristic.” Chisholm, 383 F. Supp 3d 5 at 1059. 6 The Supreme Court recently confirmed that the but-for causation test applies to 7 federal employment discrimination claims and that, to apply the test, the Court is to 8 imagine the factual scenario without the putative causal event, and if the adverse 9 employment action would not have taken place absent the causal event, the causal 10 event is a but-for cause. See Bostock v. Clayton County, 140 S. Ct. 1731, 1739 11 (2020). 12 Here, Speed’s claim for § 1981 employment discrimination fails because his 13 allegations are insufficient to support a causal nexus between his protected class and 14 the adverse employment action. The causal nexus is weak for two overlapping 15 reasons: first, a lack of specificity regarding who made the decision to terminate 16 Speed’s employment, and second, a lack of factual evidence linking the termination to 17 his race. 18 First, in the FAC, Speed merely alleges the names and job titles of the key 19 actors, sets forth factual allegations regarding misconduct by City employees, and 20 proceeds to allege that the City fired him. Missing from these allegations is any 21 indication (1) whether these key actors were Speed’s supervisees, colleagues, or 22 supervisors and (2) whether any of these people were involved in the decision to 23 terminate his employment. Speed simply alleges his employment “was terminated by 24 the CITY.” (FAC ¶ 23.) Absent these details, any attempt on Speed’s part to draw a 25 connection between the allegedly race-related acts and his termination must be 26 rejected as unreasonable and unsupported by the well-pleaded factual allegations. 27 Compounding this problem is the dearth of race-related acts alleged in the 28 complaint. Of the nine chronological factual allegations Speed presents in support of

9 Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 10 of 13 Page ID #:253

1 his discrimination claim, few in fact relate to race, and those that do are not relevant to 2 the required causal nexus. First, the “roots & Kunta Kente” incident occurred 3 between Speed and an apparently non-supervisory co-worker many months before 4 Speed’s termination. (FAC ¶ 11.) Nothing in the FAC suggests that any 5 discrimination committed by this co-worker implies a discriminatory animus on the 6 part of the individuals who ultimately decided to terminate Speed’s employment, 7 whether under a cat’s paw theory or any other theory. (See Opp’n 7 (mentioning cat’s 8 paw theory).) 9 Second, the derogatory comment about Mexicans contributes nothing 10 substantial to the causal nexus because Speed’s allegations are that the City 11 discriminated against him on the basis of his race, and Speed does not allege that he is 12 Mexican. The weakness of this allegation is ultimately a “relevance issue,” Patterson 13 v. Boeing Co., No. CV 16-7613-GW (SKx), 2018 WL 5937911, at *20 (C.D. Cal. 14 Apr. 4, 2018), and even in Speed’s best-case scenario, the incident holds no weight in 15 Speed’s prove-up of race discrimination against him. 16 This leaves one incident, on June 29, 2017, in which Duncan used the term 17 “yessum” with a southern accent when talking to Speed.2 (FAC ¶ 14.) This happened 18 many months before Speed’s termination, and, as discussed, Duncan’s exact 19 supervisory relationship to Speed is unclear. Speed asks the Court to extrapolate from 20 this single event and threadbare set of facts that, in January 2018, when the City (not 21 Duncan) terminated Speed’s employment, it did so on the basis of Speed’s race, and 22 the City used his absence without leave as a pretext for the termination. This is an 23 untenable inference, which the Court cannot reasonably make. 24 The remaining allegations are of workplace mistreatment, but without more 25 facts tying the mistreatment to Speed’s race, the mistreatment does not support a claim 26

27 2 The additional allegation that “[t]his was not the first instance in which Duncan had spoken to Speed in this manner” is lacking in factual detail, is not well-pleaded, and is accordingly ignored for 28 the purpose of this analysis. (FAC ¶ 14); Sprewell, 266 F.3d at 988.

10 Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 11 of 13 Page ID #:254

1 for discrimination. Title VII “is not a general civility code for the American 2 workplace,” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006), and a 3 plaintiff’s “personal belief of discrimination, without any factual support, is 4 insufficient to satisfy federal pleading standards,” Moralez v. Whole Foods Mkt. Cal., 5 Inc., No. 14-cv-05022, 2016 WL 845291, at *2 (N.D. Cal. Mar. 4, 2016). “Rather, 6 plaintiff must allege some facts that demonstrate that race was the reason for 7 defendant’s actions.” Williams v. Tobener, No. C 16-02209, 2016 WL 5235039, at *2 8 (N.D. Cal. Sept. 22, 2016) (internal quotation marks and citation omitted); see 9 Mesumbe v. Howard Univ., 706 F. Supp. 2d 86, 92 (D.D.C. 2010) (“[P]laintiff cannot 10 merely invoke his race in the course of a claim’s narrative and automatically be 11 entitled to pursue relief.” (quoting Bray v. RHT, Inc., 748 F. Supp. 3, 5 (D.D.C. 12 1990))); see also Melendez v. Sunnyvale Life, Inc., No. 14-cv-1771-EJD, 2015 WL 13 3882966 (N.D. Cal. June 23, 2015) (“Plaintiff’s suggestion that [Defendant’s] 14 employees were engaged in some type of racially-motivated ‘set up’ . . . is supported 15 only by speculation.”). Here, Speed alleges insufficient facts to demonstrate that race 16 motivated any of the alleged mistreatment. Without such facts, nothing supports the 17 conclusion that the City was motivated by race when, in January 2018, it ultimately 18 terminated Speed’s employment. For these reasons, Speed fails to state a § 1981 19 claim under a race discrimination theory. 20 2. Retaliation for having opposed race harassment 21 “Section 1981 prohibits retaliatory action motivated by racial discrimination.” 22 Muldrew v. County of Fresno, No. 1:09-cv-00023-OWW-DLB, 2010 WL 3294710, 23 at *3 (E.D. Cal. Aug. 10, 2010); see generally London v. Coopers & Lybrand, 24 644 F.2d 811, 818 (9th Cir. 1981) (distinguishing retaliation based on racial animus 25 from other types of retaliatory action), overruled on other grounds by Lacey v. 26 Maricopa County, 693 F.3d 896 (9th Cir. 2012). To make out a prima facie case of 27 retaliation, a plaintiff must establish that: (1) they engaged in a protected activity, such 28 as the filing of a complaint alleging racial discrimination, (2) their employer subjected

11 Case 5:22-cv-00117-ODW-SHK Document 17 Filed 06/29/22 Page 12 of 13 Page ID #:255

1 them to an adverse employment action, and (3) “a causal link exists between the 2 protected activity and the adverse action.” Ray v. Henderson, 217 F.3d 1234, 1240 3 (9th Cir. 2000) (discussing Title VII). 4 All the analysis above regarding a lack of causal link for the purpose of § 1981 5 discrimination applies equally to § 1981 retaliation; nothing in the FAC plausibly 6 suggests prohibited reasons for terminating Speed’s employment. Moreover, the only 7 protected activity predating Speed’s termination is the filing of the First DFEH 8 Charge, (FAC ¶ 27), and Speed fails to allege with any sort of clarity or specificity 9 that the City employees who ultimately decided to terminate Speed’s employment 10 (1) knew about the existence of the First DFEH Charge and its contents; and (2) were 11 motivated by Speed’s complaints about race harassment and discrimination in the First 12 DFEH Charge when they made their decision. 13 As nothing in the FAC supports a causal nexus between the First DFEH Charge 14 and Speed’s termination, Speed fails to allege facts sufficient to state a claim for 15 § 1981 race-related retaliation. 16 Accordingly, Speed fails to state a claim under § 1981. The City’s Motion is 17 GRANTED with respect to that claim, with leave to amend to cure the identified 18 deficiencies. Carrico, 656 F.3d at 1008. 19 B. State-law claims (FEHA and CFRA); Supplemental Jurisdiction 20 Remaining at issue are Speed’s three claims brought under California state law. 21 Ordinarily, courts in the Ninth Circuit decline supplemental jurisdiction and dismiss or 22 remand state law claims after dismissing all claims over which the court has original 23 jurisdiction. See 28 U.S.C. § 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 24 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are 25 eliminated before trial, the balance of factors to be considered under the pendent 26 jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will 27 point toward declining to exercise jurisdiction over the remaining state-law claims.”). 28

12 Case|b:22-cv-00117-ODW-SHK Document17 Filed 06/29/22 Page 130f13 Page ID #:256

1 Applying this principle here, the Court will not wade into state-law issues 2 || unless and until Speed sufficiently pleads a federal claim to anchor the case in federal 3 || court. Should Speed choose to amend, he is GRANTED leave to re-plead and/or 4|| amend these claims in connection with his revised § 1981 claim. Should Speed 5 || choose not to amend, the Court will remand the remaining claims. In either case, a 6 || ruling on the remaining claims is not currently required, and the Court accordingly 7 || DENIES the Motion AS MOOT with respect to the state-law claims. 8 Vv. CONCLUSION 9 For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED IN 10 || PART and DENIED AS MOOT IN PART, with leave to amend as provided 11 || herein. (ECF No. 10.) Plaintiff's § 1981 claim is dismissed, and the Court declines at 12 | this juncture to rule on the remaining claims. If Plaintiff chooses to amend, the 13 | amended complaint must be filed within twenty-one (21) days of the date of this 14 || Order, and the City’s Answer or other response is due no later than fourteen (14) 15 || days following the filing of the amended pleading. If Plaintiff does not amend, then 16 || as of the lapse of the deadline to amend, the dismissal of the § 1981 claim shall 17 || convert to a dismissal with prejudice, in which case the Court will remand the state- 18 || law claims without further notice. 19 20 IT IS SO ORDERED. 21 22 June 29, 2022 N . 23 a“ 24 left: |

5 OTIS D. GHT, II 6 UNITED STATES,DISTRICT JUDGE

27 28

13