Free Notice (Other) - District Court of California - California

Case 4:08-cv-01066-SBA

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION 50 Wssi San Feinando Street 15th Floor San Jose, CA 95113.230 408.998.4150

BRIAN T. McMILLAN, Bar No. 111890 LITTLER MENDELSON A Professional Corporation 50 West San Fernando Street 15th Floor San Jose, CA 95113.2303 Telephone: 408.998.4150 Facsimile: 408.288.5686 Email: [email protected] Attorneys for Defendant SANDPLAY THERAPISTS OF AMERICA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JANE R. EVANS, Plaintiff, Case No. C 08-01066 SBA DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION (Fed. R. Civ. P. 12(b)(6) and 56(c)) Hearing Date: Tuesday, September 9,2008 Time: 1:00 p.m. Place: Courtroom 3, Third Floor

v.
SANDPLAY THERAPISTS OF AMERICA, Defendant.

PLEASE TAKE NOTICE that on September 9, 2008, at 1:00 p.m. in the Courtroom of the Honorable Saundra Brown Armstrong, United States District Court for the Northern District of California, Courtroom 3, Third Floor, Defendant Sandplay Therapists of America will move and hereby does move this Court for dismissal with prejudice of the Complaint filed by Plaintiff Jane R. Evans against Defendant, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"). PLEASE TAKE FURTHER NOTICE that in the event the Court, in ruling on this Motion to Dismiss, relies on matters outside the pleadings, Defendant requests that this motion be viewed as a motion for summary judgment/adjudication under Rule 56 of the FRCP, and on that basis, seeks the dismissal with prejudice of Plaintiff s Complaint.

CASE NO. C 08-01066 SBA
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MOT. TO DISMISS OR FOR SUMM. JUDGMT, AND MEMO OF POINTS AND AUTH. IN SUPPORT

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Defendant's Motion is based on this Notice of Motion and Memorandum of Points and Authorities; the declaration of Rie Rogers Mitchell served and filed herewith as Exhibit A to the Notice of Motion; the pleadings and papers filed in this action to date; and on such additional evidence and oral argument that the Court may consider. STATEMENT OF RELIEF REQUESTED Defendant requests that the Court grant with prejudice, and without leave to amend, its motion to dismiss the Complaint against it pursuant to FRCP 12(b)(6). In the alternative, Defendant requests that summary judgment/adjudication be granted in favor of Defendant and against Plaintiff pursuant to FRCP 56. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On February 22, 2008, Plaintiff Jane R. Evans (hereinafter "Plaintiff) filed a Complaint against Defendant Sandplay Therapists of America (hereinafter referred to as "Sandplay" or "Defendant"). Plaintiffs Complaint, consisting of several pages of attachments, makes general

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allegations of maltreatment by individuals, such as denying her access to programs, insults and other acts, all predicated on her Hispanic ethnicity. Plaintiff brings her action under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 United States Code section 2000e et seq. See Complaint ]flf 4, 5 and accompanying documents. Sandplay brings this motion to dismiss or, in the alternative, for summary judgment, based on two grounds. First, Plaintiff was never employed by Sandplay, and, thus, she cannot maintain a Title VII action for employment discrimination against Sandplay. Second, Title VII is not applicable to Sandplay because Sandplay does not have the requisite number of employees and thus is not an "employer" as defined by that statute. For these reasons, Sandplay respectfully requests that the Court dismiss Plaintiffs Complaint against it with prejudice. II. LEGAL STANDARD Sandplay brings its motion pursuant to FRCP 12(b)(6), or in the alternative, pursuant to Rule 56(c). Dismissal of a claim pursuant to Rule 12(b)(6) is appropriate when the cause of action pleaded fails to state a claim upon which relief may be granted. Arnold v. United Artists Theater
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LITTLER MENDELSON
50 West San Fernando Si reel 15th Floor San Jose. CA 95113.2303 408.998.4150

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MOT. TO DISMISS OR FOR SUMM. JUDGMT, AND MEMO OF POINTS AND AUTH. IN SUPPORT

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Circuit, Inc., 866 F. Supp. 433, 435 (N.D. Cal. 1994). When considering a motion to dismiss the complaint of a pro se plaintiff, the court must determine if, "even when liberally construed, 'it appears beyond doubt' that [plaintiff] 'can prove no set of facts in support of his claim that would entitle him to relief.'" Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). In the alternative, Sandplay brings a motion for summary judgment. A motion for summary judgment shall be granted where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). III. ARGUMENT A. Title VII Pertains Only to Alleged Employment Discrimination.

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LITTLER MENDELSON 50 West San Fernando Street 15lh Floor San Jose, CA 95113.2303 408.99B 4150

Title VII is entitled "Equal Employment Opportunities." Section 703 (42 U.S.C. § 2000e-2) enumerates "unlawful employment practices," including discriminating against any individual "with respect to his compensation, terms, conditions or privileges of employment..." 42 U.S.C. § 2000e2(a)(l) (emphasis added). Title VII proscribes certain discriminatory acts by employers, and defines an "employee" as "an individual employed by an employer." Id. § 2000e(f). Thus, "it is axiomatic that in order to establish her Title VII claims against [the defendant], [the plaintiff] must prove that [the defendant] was her employer. Scales v. Sonic Industries, Inc., 887 F. Supp. 1435, 1438 (E.D. Okla. 1995). In the case of Tadros v. Coleman, 717 F. Supp. 996 (S.D. N.Y. 1989), the district court stated: "As the statute's language makes clear, Title VII is not a legal catchall. Title VII is an employment law, available only to employees (or prospective employees) seeking redress for the unlawful employment practices of their employers." Id. at 1002-1003 (citations omitted). See also Schoenbaum v. Orange County Center for Performing Arts, Inc., 677 F. Supp. 1036, 1039 (C.D. Cal. 1987) (finding that volunteers are not employees under the Age Discrimination in Employment Act). Here, Plaintiff fails to state a claim upon which relief may be granted under Title VII. Nowhere in her Complaint or in the attachments to her Complaint does Plaintiff state or indicate that
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MOT. TO DISMISS OR FOR SUMM. JUDGMT, AND MEMO OF POINTS AND AUTH. IN SUPPORT

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she was ever an employee of Sandplay or had applied for employment. See Plaintiffs Complaint and attachments. Indeed, Plaintiff admits in a Court filing that she was never employed by

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Sandplay, and that no employer-employee relationship existed. In her document titled "Exhibits and Response Mailed by Plaintiff to Defendant," filed with the Court on June 10, 2008, Plaintiff stated: EXHIBIT 2: Plaintiff sent a letter to the EEOC office on February 8, 2008. In this letter, Plaintiff gave reasons as to why Plaintiff saw that even though there was no employee/employer relationship with Defendant, Plaintiff stated that the matter fell within the scope of practice of the EEOC, as Defendant's organization is a professional employment related organization for Plaintiff. See June 10, 2008, filing at p. 2 (Docket Entry No. 19) (emphasis added). Plaintiffs letter to the EEOC responded to the EEOC's dismissal of her administrative claim because there was no employee-employer relationship between Plaintiff and Sandplay. See EEOC Dismissal and Notice of Rights attached to Plaintiffs June 10, 2008, filing (listing the reason for dismissal as "No employer/employee relationship"). Plaintiff confuses the scope of Title VII by claiming that the EEOC still has jurisdiction over her claim because it is a "professional employment related organization" for Plaintiff. While

membership in the organization may relate to an individual's "professional employment," that does not create the requisite employment relationship. Sandplay is a non-profit organization established to train, support, and promote professional development in sandplay. (Declaration of Rie Rogers Mitchell Tflf 3-4, attached hereto as Exhibit A.) Plaintiff was an associate member, and not an employee. (Mitchell Declaration ff 5, 7-8.) As such, Plaintiffs Complaint is fatally defective. Because Plaintiff was never an employee of Sandplay, as she has conceded, Title VII is not implicated. Plaintiff may not, therefore, maintain this action against Sandplay. B. Title VII Applies To Employers with Fifteen Employees, and, Thus, It Does Not Apply to Sandplay, Which Has No Employees.

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION 50 Wesl San Fernando Street 15lh Floor San Jose. CA 95113.2303 408.998.4150

Title VII defines "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." 42 U.S.C. 2000e(b). Where an

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MOT. TO DISMISS OR FOR SUMM. JUDGMT, AND MEMO OF POINTS AND AUTH. IN SUPPORT

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LITTLER M E N D E L S O N
SO Wesl San Fernando Street 15th Floor San Jose, CA 95113.2303 408.998.4150

employer does not have the requisite number of fifteen employees, Title VII does not apply. See Schoenbaum v. The Orange County Center for the Performing Arts, Inc., 677 F. Supp. 1036, 1039 (C.D. Cal. 1987) (granting defendant's motion to dismiss on the grounds that the employer did not have the requisite number of twenty employees to be subject to the Age Discrimination in Employment Act). Here, Sandplay has no employees and never employed any of the individuals identified in Plaintiffs Complaint. (Mitchell Declaration 15.) At all times relevant to Plaintiff Jane Rocio Evans' lawsuit, it never held an employer-employee relationship with any individual. (Mitchell Declaration If 5.) To the extent it needs assistance such as bookkeeping, it hires independent contractors. (Mitchell Declaration 1 6.) There are no more than 3 to 5 independent contractors that provide bookkeeping or web design services in a year. (Mitchell Declaration If 6.) Because Sandplay does not qualify as an "employer" under the fifteen-employee requirement under Title VII, Title VII does not apply to Sandplay. Plaintiff, thus, cannot bring this action against Sandplay under Title VII.
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IV. CONCLUSION For the reasons discussed above, Defendant Sandplay Therapists of America respectfully requests that this Court dismiss this Complaint with prejudice and in its entirety. Dated: July 3, 2008 Respectfully Submitted,

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A Professional Corporation Attorneys for Defendant SANDPLAY THERAPISTS OF AMERICA

BRIAN T. MCMILLAN LITTLER MENDELSON

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LITTLER MENDELSON
A PROFESSIONAL CORPORATION 50 West San Feinando Street 15th Floor San Joss, CA 95113.2303 40S.998.4150

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MOT. TO DISMISS OR FOR SUMM. JUDGMT, AND MEMO OF POINTS AND AUTH. IN SUPPORT

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EXHIBIT A

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BRIAN T. McMILLAN, Bar No. 111890 LITTLER MENDELSON A Professional Corporation 50 West San Fernando Street 15th Floor San Jose, CA 95113.2303 Telephone: 408.998.4150 Facsimile: 408.288.5686 Email: [email protected] Attorneys for Defendant SANDPLAY THERAPISTS OF AMERICA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JANE R. EVANS, Plaintiff,
v.

Case No. C 08-01066 SB A RIE ROGERS MITCHELL'S DECLARATION IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

SANDPLAY THERAPISTS OF AMERICA, Defendant.

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LITTLER MENDELSON
50 Wesl San Fernando Slreel 15th Floor San Jose, CA 95113 2303 408.998.4150

I, Rie Rogers Mitchell, declare as follows: 1. I make this declaration in support of the motion to dismiss or, in the alternative,

motion for summary judgment filed by Defendant Sandplay Therapists of America ("Sandplay"). The matters referred to in this declaration are based upon my personal knowledge, and if called as a witness in this action, I could and would testify competently thereto. 2. I am the Chair of the Board of Trustees for Sandplay. Since 1998,1 have served on

the Board of Trustees, and since 1992,1 have been a member of the organization. 3. Sandplay is a non-profit organization established to train, support, and promote

professional development in sandplay. 4. Sandplay invites individuals interested in the goals and mission of the organization to

become members of the organization. There are different levels of membership. 5. Sandplay has no employees, and none of the individuals identified in Plaintiffs

Complaint, which I have read, were employees. At all times relevant to Plaintiff Jane Rocio Evans'
CASE NO. C 08-01066 SBA MITCHELL DEC. IN SUPPORT OF MOTION TO DISMISS AND/OR SUMM. JUDGT

OMIS-08 Case 4:08-cv-01066-SBA Document 23 OB: 17 Fren-LITTLER (ENHLSON

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lawsuit, it never held an employer-employee relationship with any individual. 6. To the extent Sandplay needs bookkeeping or other services, it contracts with

individuals to provide those services. For example, Sandplay has contracted with one individual to provide office administrative assistance and bookkeeping. She is an independent cofltracior.

Sandplay uses no more than 3 to 5 independent contractors every year. 7. 8. Sandplay. I have read the foregoing declaration consisting of this and one other page. I hereby declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, Executed this 3 day of July, 2008 in C-^XMs^L^^ California. Plaintiff Jane R. Evans was an associate member of Sandplay. Plaintiff was never financially compensated by Sandplay and was never employed by

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MITCHELL DECLARATION FN SUPPORT Of MOTION TO DISMISS AND/OR SUMM. JUDGT

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LITTLER MENDELSON 50 Wesi San Fernando Street 15lh Floor f A Clj CASH. ]\J/"% f nfi A1 AjC£ CR A iNO. C Uo-UlUoo SBA
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PROOF OF SERVICE BY MAIL I am employed in Santa Clara County, California. I am over the age of eighteen years and not a party to the within-entitled action. My business address is 50 West San Fernando Street, 15th Floor, San Jose, California 95113.2303. I am readily familiar with this firm's practice for collection and processing of correspondence for mailing with the United States Postal Service. On July 3, 2008, I placed with this firm at the above address for deposit with the United States Postal Service a true and correct copy of the within document(s): DEFENDANT'S NOTICE OF MOTION AND MOTION TO DISMISS OR, ALTERNATIVELY, FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION in a sealed envelope, postage fully paid, addressed as follows: Jane Rocio Evans, MFT P. O. Box 424886 San Francisco, C A 94142 Following ordinary business practices, the envelope was sealed and placed for collection and mailing on this date, and would, in the ordinary course of business, be deposited with the United States Postal Service on this date. I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on July 3, 2008, at San Jose, California.

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AND MEMO OF POINTS AND AUTH. IN SUPPORT