1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 KEVIN FRANKEN, CASE NO. 2:19-CV-2172 AWI EPG

7 Plaintiff

ORDER ON DEFENDANT’S MOTION

8 v. TO DISMISS

9 RYAN D. McCARTHY, Secretary of the United States Army, (Doc. No. 10) 10 Defendant 11

12 13 This is a discrimination lawsuit brought by pro se Plaintiff Kevin Franken (“Franken”) 14 against his former employer, the Defendant United States Army (“Army”). Currently before the 15 Court is the Army’s Rule 12(b)(6) motion to dismiss. For the reasons that follow, the motion will 16 be granted, and this case will be closed. 17 18 BACKGROUND 19 Franken was employed as an Army Corps of Engineers Park Ranger at New Hogan Lake, 20 California from February 2013 to April 2017. During his employment, Franken filed over 400 21 Equal Employment Opportunity (“EEO”) complaints regarding disparate treatment, retaliation, 22 hostile work environment, and harassment. Franken was removed from his position for conduct 23 unbecoming of a federal employee. Following his removal, Franken filed an EEO complaint 24 regarding his removal/termination. The Army upheld the removal and Franken appealed to the 25 Merit Systems Protection Board (“MSPB”) in October 2017. The Administrative Law Judge 26 upheld the removal, and Franken filed a petition for review, which remains pending. 27 Between May 2017 and July 2018, Franken (through counsel) filed four lawsuits, one in 28 the Eastern District of California and three in the Northern District of California. Each of these 1 lawsuits dealt with discrimination against Franken while employed at Hogan Lake. All four cases 2 eventually found their way to the Eastern District of California and were later consolidated and 3 stayed by the undersigned on May 1, 2019. See Franken v. McCarthy, Eastern Dist. of Cal. Case 4 No. 1:18-cv-1687 AWI EPG (”Franken I”) at Doc. No. 71.1 Franken I remains stayed pending 5 resolution of the MSPB proceedings. 6 On May 24, 2019, Franken in a pro se capacity filed a fifth lawsuit in this Court. The fifth 7 lawsuit, Franken v. McCarthy, 1:19-cv-1655 AWI EPG (“Franken V”) largely repeats the 8 allegations and claims made in Franken I but also includes post-termination allegations and 9 claims. Franken V was related to Franken I on January 24, 2020, but the cases were not 10 consolidated. Franken V was also stayed, and remains stayed, pending resolution of the MSPB 11 proceedings. 12 On October 28, 2019, before completing service in Franken V, Franken in a pro se capacity 13 filed this case. Franken repeats the same allegations and claims in this case as he did in Franken I 14 and Franken V. 15 16 RULE 12(b)(6) STANDARD 17 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the 18 plaintiff’s “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A 19 dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the 20 absence of sufficient facts alleged under a cognizable legal theory. See Mollett v. Netflix, Inc., 21 795 F.3d 1062, 1065 (9th Cir. 2015). In reviewing a complaint under Rule 12(b)(6), all well- 22 pleaded allegations of material fact are taken as true and construed in the light most favorable to 23 the non-moving party. Kwan v. SanMedica, Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017). However, 24 complaints that offer no more than “labels and conclusions” or “a formulaic recitation of the 25 elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Johnson 26 v. Federal Home Loan Mortg. Corp., 793 F.3d 1005, 1008 (9th Cir. 2015). The Court is “not 27 1 The consolidation order merged all four cases, so there is now only one case that is composed of the allegations 28 made in the four cases filed between May 2017 and July 2018; that one case is Franken I. See Franken v. McCarthy, 1 required to accept as true allegations that contradict exhibits attached to the Complaint or matters 2 properly subject to judicial notice, or allegations that are merely conclusory, unwarranted 3 deductions of fact, or unreasonable inferences.” Seven Arts Filmed Entm’t, Ltd. v. Content Media 4 Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013). To avoid a Rule 12(b)(6) dismissal, “a 5 complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is 6 plausible on its face.” Iqbal, 556 U.S. at 678; Mollett, 795 F.3d at 1065. “A claim has facial 7 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 8 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; Somers 9 v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). “Plausibility” means “more than a sheer 10 possibility,” but less than a probability, and facts that are “merely consistent” with liability fall 11 short of “plausibility.” Iqbal, 556 U.S. at 678; Somers, 729 F.3d at 960. In assessing a motion to 12 dismiss, courts may consider documents attached to the complaint, documents incorporated by 13 reference in the complaint, or matters subject to judicial notice. In re NVIDIA Corp. Sec. Litig., 14 768 F.3d 1046, 1051 (9th Cir. 2014). If a motion to dismiss is granted, leave to amend need not be 15 granted if amendment would be futile or the plaintiff has failed to cure deficiencies despite 16 repeated opportunities. Garmon v. County of L.A., 828 F.3d 837, 842 (9th Cir. 2016). 17 18 DEFENDANT’S MOTION 19 Defendant’s Argument 20 The Army argues that vast majority of the claims alleged in this case are also being made 21 in Franken I and Franken V. This is impermissible and all duplicative claims should be 22 dismissed. The Army also argues that Franken is pursuing two claims that are not duplicative, but 23 are nevertheless subject to dismissal. Franken is pursuing claims based on gossip that was only 24 discovered after his termination. However, the gossip is not an adverse action and cannot support 25 any liability. Franken also is pursuing claims based on allegedly perjured testimony at a May 26 2018 MSPB hearing. However, the proper avenue for complaining about perjured testimony is 27 through that administrative procedures of the MSPB, not the anti-discrimination statutes. 28 Therefore, the non-duplicative claims fail to state a claim and dismissal is appropriate. 1 Plaintiff’s Opposition 2 Franken filed no opposition or response of any kind to the Army’s motion to dismiss. 3 Discussion 4 1. Duplicate Claims 5 There is generally “no right to maintain two separate actions involving the same subject 6 matter at the same time in the same court and against the same defendant.” Adams v. California 7 Dept. of Health Servs., 487 F.3d 684, 688 (9th Cir. 2007) (quoting Walton v. Eaton Corp., 563 8 F.2d 66, 70 (3d Cir. 1977) (en banc)). District courts have broad discretion to control their 9 dockets, which includes the power to dismiss duplicative claims and lawsuits. See M.M v. 10 Lafayette Sch. Dist., 681 F.3d 1082, 1091 (9th Cir. 2012); Adams, 487 F.3d at 688. “Dismissal of 11 the duplicative lawsuit, more so than the issuance of a stay or the enjoinment of proceedings, 12 promotes judicial economy and the comprehensive disposition of litigation.” Adams, 487 F.3d at 13 692. 14 Here, the vast majority of Franken’s Complaint in this case is identical to allegations and 15 claims found in Franken I and Franken V, including some of the same typographical errors. 16 Franken makes no attempt to distinguish or defend the claims included in this case that are also 17 being pursued in Franken I and Franken V. In the absence of an opposition from Franken, the 18 Court concludes that the Complaint in this case is largely and impermissibly duplicative of 19 Franken I and Franken V. Therefore, each claim in this case that is being pursued in Franken I 20 and/or Franken V will be dismissed without leave to amend. See M.M., 681 F.3d at 1091; Adams, 21 487 F.3d at 688, 692. 22 2. Non-Duplicative Claims 23 The Army identifies fourteen paragraphs that appear to be unique to this case.2 The 24 allegations involve gossip against Franken and false testimony during an MSPB on May 10, 2018. 25 With respect to gossip, the Complaint alleges that Franken he was the subject of gossip 26 from the summer of 2015 through his termination in April 2017. See Complaint ¶ 31. Franken 27

28 2 Those are numbers 30, 31, 33, 34, 76, 77, 124, 125, 180, 181, 253, 254, 388, and 389. 1 learned about the gossip in May 2018 from testimony at MSPB proceedings regarding his 2 termination. See id. The gossip apparently was that Franken had filed a number of EEO 3 complaints against many individuals. See id. Franken includes this gossip as a basis for claiming 4 “sex and gender based discrimination and hostility,” see id. at ¶ 77, “disability based 5 discrimination and hostility,” see id. at ¶ 125, “retaliation,” see id. at ¶ 181, “hostile work 6 environment,” see id. at ¶¶ 254, 389. 7 With respect to false testimony, the Complaint alleges that various agency employees 8 testified at the May 10, 2018 MSPB hearing.3 See id. at ¶ 30. The employees failed to disclose 9 material and relevant information and failed to answer questions in a candid, forthright, 10 responsive, and transparent manner, and made inaccurate, misleading, and untrue statements. See 11 id. Franken includes allegations about this false and non-forthright testimony as a basis for 12 claiming “sex and gender based discrimination and hostility,” see id. at ¶ 76, “disability based 13 discrimination and hostility,” see id. at ¶ 124, “retaliation,” see id. at ¶ 180, “hostile work 14 environment,” see id. at ¶¶ 253, 388. 15 a. Gossip 16 As indicated above, the alleged “gossip” was that Franken had filed many EEO reports 17 against many individuals. There are at least two critical problems with Franken’s “gossip” based 18 claims. 19 First, Franken did not learn of the gossip until about one year after his termination. The 20 allegations do not adequately explain how this unknown gossip adversely affected Franken’s 21 employment. 22 Second, courts generally find that co-worker ostracism, see Manatt v. Bank of Am., 339 23 F.3d 792, 803 (9th Cir. 2003) (allegations that a supervisor stared angrily at the plaintiff and 24 allowed coworkers to be mean to the plaintiff was not actionable because “mere ostracism” in the 25 workplace is not actionable); Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000) 26 (“Because an employer cannot force employees to socialize with one another, ostracism suffered 27

28 3 The MSPB apparently conducted proceedings on May 10, 11 and 15, 2018. For ease of reference, the Court will 1 at the hands of coworkers cannot constitute an adverse employment action.”), and gossip, see 2 Clarkson v. SEPTA, 700 F. App’x 111, 115 (3d Cir. 2017) (“[T]he sporadic threats of termination, 3 workplace gossip, and disparaging comment, do not rise to the level of a materially adverse 4 employment action. The antiretaliation provisions do ‘not set forth a general civility code for the 5 American workplace.’” (citation omitted)); Clemmons v. Academy for Educ. Dev., 107 F.Supp.3d 6 100, 121 (D. D.C. 2015) (holding that plaintiff’s “allegations of workplace criticisms, gossip, 7 rudeness, and subjective changes in perception are simply insufficient to establish an objectively 8 hostile work environment.”); Davis v. NYS Dept. of Corr., 46 F.Suppp.3d 226, 236 (W.D. N.Y. 9 2014) (“Whispering, gossiping, and making negative comments about an employee also do not 10 rise to the level of an adverse employment action because they do not materially change the terms 11 and conditions of employment.”); Webb v. Round Rock Indep. Sch. Dist., 2013 U.S. Dist. LEXIS 12 116109, *13-*14 (W.D. Tex. Aug. 16, 2013) (“The fact that co-workers may have been gossiping 13 or talking about [plaintiff] does not rise to the level of an adverse employment action.”); Derringe 14 v. Old Nat’l Bank, 2006 U.S. Dist. LEXIS 78669, *15 (S.D. Ind. Oct. 27, 2006) (“Evidence of 15 office gossip amongst one’s co-workers, in and of itself, is insufficient to establish a hostile work 16 environment.”); Rheineck v. Hutchinson Tech., Inc., 171 F.Supp.2d 915, 929 (D. Minn. 2000) 17 (holding that, after an employer took remedial measure, the “ensuing gossip and rumors in the 18 workplace . . . did not constitute actionable sexual harassment under Title VII.”); but see Stutler v. 19 Illinois Dept. of Corr., 263 F.3d 698, 703 (7th Cir. 2001) (explaining that retaliatory harassment 20 had been found in a prior case where co-workers had “embarked on a campaign of vicious gossip 21 and profanity aimed at making ‘[plaintiff’s] life hell’ in response to her complaints that a 22 supervisor sexually harassed her.”) do not constitute an adverse employment action. The gossip in 23 this case is not shocking, scandalous, defamatory, or hurtful, nor can it be classified as vicious and 24 part of a campaign to make Franken’s life hell because he engaged in protected conduct. In fact, 25 the “gossip” appears to be accurate as Franken admits in the Complaint that he submitted over 400 26 EEO complaints over a roughly four year span, and (as stated above) Franken did not even know 27 about the gossip while he was an employee of the Army. There is nothing about the gossip 28 identified that would take it out of the general rule that gossip is not actionable under the anti- 1 discrimination statutes. 2 In sum, the gossip identified is not actionable. Therefore, dismissal without leave to 3 amend of all claims based on the “gossip” identified in Paragraph 31 is appropriate. 4 b. False and Non-Forthright Testimony 5 Like the claims based on “gossip,” there are at least two critical problems with Franken’s 6 “false and non-forthright” MSPB testimony claims. 7 First, the allegations are conclusory and do not explain what was actually said by the 8 various Army officials during the May 2018 MSPB testimony. Not all false or non-forthcoming 9 statements are material, nor will they necessarily adversely affect Franken. The MSPB 10 proceedings are still on-going through the administrative appellate process. 11 Second, the general rule is that false or perjured testimony given as part of administrative 12 proceedings or a trial does not constitute retaliation or discrimination for purposes of Title VII. 13 See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993) (“Title VII is not a cause of 14 action for perjury; [there are] other civil and criminal remedies for that.”); Lenahan v. Johnson, 15 2016 U.S. Dist. LEXIS 11992, *5-*8 (E.D. Pa. Feb. 1, 2016) (rejecting Title VII claims based on 16 testimony at an EEOC hearing that was “outright false” and “lacking in any documentary 17 support.”); Mamman v. Chao, 2011 U.S. Dist. LEXIS 50903, *10-*20 (D. N.J. May 12, 2011) 18 (rejecting claims based on employees giving allegedly perjured testimony at an MSPB hearing); 19 Duncan v. Henderson, 2000 U.S. Dist. LEXIS 8588, *10 (D. Or. Mar. 16, 2000) (“Further, any 20 issues plaintiff had about fraud, mishandling, and perjury in his MSPB cases should have been 21 raised in administrative and/or judicial appeals of those decisions.”); cf. McKenzie v. Illinois 22 DOT, 92 F.3d 473, 485 (7th Cir. 1996) (“An attempt to obstruct the litigation of the underlying 23 discrimination complaint, like oppressive discovery requests and the withholding of other 24 evidence, is inseparable from the litigation of the claim.”). The conclusory allegations (and lack 25 of opposition) do nothing to suggest that the testimony at issue may somehow be the “rare case” in 26 which the testimony at issue could support some form of actionable discrimination. See Steffes v. 27 Steppan Co., 144 F.3d 1070, 1075-76 (7t h Cir. 1998) (“[I]t will be the rare case in which conduct 28 occurring within the scope of litigation constitutes retaliation prohibited by [anti-discrimination WAS 2 AVVO VEL OUND SMMC Le POC Veer er

1 | statutes].”); Mamman, 2011 U.S. Dist. LEXIS 50903 at *18. 2 In sum, the allegations regarding “false and non-forthright testimony” are not actionable. 3 | Therefore, dismissal without leave to amend of all claims based on the “false or non-forthright 4 |testimony” at the May 2018 MSPB hearing (as identified and explained in Paragraph 30) is 5 | appropriate. 6 7 ORDER 8 Accordingly, IT IS HEREBY ORDERED that: 9/1. Defendant’s motion to dismiss (Doc. No. 10) is GRANTED; 10 All claims in this matter that are also being pursued in the Franken I and Franken V cases 11 are DISMISSED without leave to amend as they are impermissibly duplicative; 12 |3. All other claims, 1.e. claims based on “gossip” and “false and non-forthright testimony” at 13 the May 2018 MSPB hearing, are DISMISSED without leave to amend; and 14 The Clerk shall CLOSE this case. 15 16 IT IS SO ORDERED. 17 |Dated: _May 22, 2020 7 Sz 7 Cb Lec "SENIOR DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28