Werner v. Advance Newhouse Partnership, LLC et al

Filing 3

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND. signed by Magistrate Judge Jennifer L. Thurston on 8/19/2013. Amended Complaint due in 30 days. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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ADVANCE NEWHOUSE PARTNERSHIP, )
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LLC, a New York limited liability company
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d/b/a BRIGHTHOUSE NETWORKS; and
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BRIGHTHOUSE NETWORKS,
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Defendants.
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PATRICIA WERNER,

Case No.: 1:13-cv-01259 - LJO – JLT
ORDER DISMISSING PLAINTIFF’S
COMPLAINT WITH LEAVE TO AMEND
(Doc. 1)

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Plaintiff Patricia Werner initiated this action against Advance Newhouse Partnership, LLC and

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Brighthouse Networks (collectively, “Defendants”) by filing a complaint on August 12, 2013. (Doc. 1).

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According to Plaintiff, Defendants are liable for retaliation and discrimination in violation of Title VII,

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and a violation of the Equal Pay Act. As set forth more fully below, though Plaintiff’s complaint

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concludes that unlawful employment actions occurred at her former workplace, her complaint fails to

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set forth sufficient factual allegations to support the conclusions. This is not sufficient. Ashcroft v.

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Iqbal, 556 U.S. 662, 678-79 (2009). Thus, the Court ORDERS the complaint DISMISSED with leave

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to amend.

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I.

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Pleading Requirements
The Federal Rules of Civil Procedure govern the requirements for filing an adequate complaint
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in the District Court. A complaint must include a statement affirming the court’s jurisdiction, “a short

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and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief

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sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ. P. 8(a).

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The purpose of the complaint is to give the defendant fair notice of the claims against him, and the

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grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

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Thus, a complaint must give fair notice and state the elements of the plaintiff’s claims in a plain and

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succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The

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Supreme Court explained,
Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.

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Iqbal, 556 U.S. at 678-79 (internal quotation marks and citations omitted).
Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents,

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673 F.2d 266, 268 (9th Cir. 1982). When factual allegations are well-pled, a court should assume the

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truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in the

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pleading are not entitled to the same assumption of truth. Id.

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The Court has a duty to dismiss a case at any time it determines an action fails to state a claim,

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“notwithstanding any filing fee that may have been paid.” 28 U.S.C. § 1915e(2). Accordingly, a court

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“may act on its own initiative to note the inadequacy of a complaint and dismiss it for failure to state a

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claim.” See Wong v. Bell, 642 F.2d 359, 361 (9th Cir. 1981) (citing 5 C. Wright & A. Miller, Federal

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Practice and Procedure, § 1357 at 593 (1963)). However, the Court may grant leave to amend when

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the deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122,

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1127-28 (9th Cir. 2000) (en banc).

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II.

Plaintiff’s Allegations

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Plaintiff alleges she was employed by Defendants from July 19, 1997 through August 24, 2011.

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(Doc. 1 at 2.) She asserts she “was paid less than similarly situated male employees and was retaliated

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against for persistently raising the issue and requesting equal pay.” (Id.) In addition, Plaintiff asserts
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that “[t]he work place environment was saturated with discriminatory practices against female

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employees, including but not limited to blatant and extensive sexual harassment of female employees

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by high management employees whose conduct was ignored by higher management officers.” (Id.)

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According to Plaintiff, the “[m]ale management employees were given preferential treatment and acts

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of egregious misconduct were tolerated without consequence.” (Id. at 3.) Further, Plaintiff alleges the

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treatment she received “in connection with her separation was discriminatory in contrast to the

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preferential treatment of similarly situated male employees.” (Id.)
Plaintiff reports she “timely field charges of discrimination” with the Equal Employment

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Opportunity Commission and received a “Notice of Right to Sue” on May 13, 2013. (Doc. 1 at 3.)
III.

Discussion and Analysis

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A.

Title VII claims

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Title VII makes it unlawful “for an employer to discriminate against any of his employees . . .

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because he has opposed any practice made an unlawful employment practice by this [title] . . . or

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because he has made a charge, testified, assisted, or participated in any manner in an investigation,

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proceeding, or hearing under this [title]. . . .” 42 U.S.C. § 2000e-3(a). Further, Title VII provides it is

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“an unlawful employment practice for an employer . . . to discriminate against any individual with

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respect to his compensation, terms, conditions, or privileges of employment, because of such

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individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1); Harris v. Forklift

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Sys., Inc., 510 U.S. 17, 21 (1993). The Supreme Court determined this guarantees “the right to work in

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an environment free from discriminatory intimidation, ridicule, and insult.” Meritor Sav. Bank, FSB v.

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Vinson, 477 U.S. 57, 65 (1986).

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Retaliation

The Ninth Circuit explained an “employer can violate the anti-retaliation provisions of Title

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VII in either of two ways: (1) if the adverse employment action occurs because of the employee’s

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opposition to conduct made unlawful [by Title VII]; or (2) if it is in retaliation for the employee’s

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participation in the machinery set up by Title VII to enforce its provisions.” Hashimoto v. Dalton, 118

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F.3d 671, 680 (9th Cir. 1997). To state a cognizable claim for retaliation, a plaintiff must allege: “(1)

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she engaged in an activity protected by Title VII; (2) her employer subjected her to an adverse
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employment action; and (3) a causal link exists between the protected activity and the adverse action.”

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Bleeker v. Vilsack, 468 Fed. App’x 731, 732 (9th Cir. 2012); Ray v. Henderson, 217 F.3d 1234, 1240

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(9th Cir. 2000).
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Protected activity

For an employee’s “opposition” to be protected, the employer’s conduct which the employee

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opposed “must fairly fall within the protection of Title VII to sustain a claim of unlawful retaliation.”

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Learned v. Bellevue, 860 F.2d 928, 932 (9th Cir. 1988). Conduct constituting a “protected activity”

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under Title VII includes filing a charge or complaint, testifying about an employer’s alleged unlawful

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practices, and “engaging in other activity intended to oppose an employer’s discriminatory practices.”

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Raad v. Fairbanks N. Star Borough, 323 F.3d 1185, 1197 (9th Cir. 2003) (citing 42 U.S.C. § 2000e-

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3(a)) (internal quotation marks omitted). Here, although Plaintiff asserts she “persistently” raised the

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issue of not receiving equal pay, there are no facts regarding to whom she complained such that the

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Court may determine her complaints were protected under Title VII.
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Adverse employment action

“[A]n adverse employment action is one that materially affects the compensation, terms,

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conditions, or privileges of employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir.

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2008) (internal quotation marks and citation omitted). The Ninth Circuit has determined “a wide array

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of disadvantageous changes in the workplace constitute adverse employment actions.” Ray, 217 F.3d

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at 1240. Here, Plaintiff has alleged that her employment with Defendants was terminated, which is an

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adverse employment action under Title VII. See Nat’l Railroad Passenger Corp. v. Morgan, 536 U.S.

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101, 114 (2002).

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c.

Causal link

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Even if Plaintiff alleged facts sufficient to support a determination that she engaged in a

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protected activity, she has not alleged a causal link between her complaints and the termination of her

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employment with Defendants. The causal link may be “inferred from circumstantial evidence, such as

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the employer’s knowledge that the plaintiff engaged in protected activities and the proximity in time

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between the protected action and the allegedly retaliatory employment decision.” Yartzoff, 809 F.2d at

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1375. “[C]ausation can be inferred from timing alone where an adverse employment action follows on

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the heels of protected activity.” Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1065 (9th Cir. 2002).

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Significantly, for a causal link to be inferred, Plaintiff must allege her employer had knowledge

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of the protected activities. See, e.g., Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)

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(inferring causation where adverse employment actions took place less than three months after the

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plaintiff’s complaint where his supervisors were aware of his Title VII charges and his participation in

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administrative investigations); Strother v. S. Cal. Permanente Med. Grp., 79 F.3d 859, 869-70 (9th

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Cir. 1996) (finding causal link where alleged retaliation followed within months of protected activity

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where supervisor knew of the employee’s complaint). Here, Plaintiff has failed to allege sufficient

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facts supporting such an inference. Consequently, her claim for retaliation is DISMISSED.
2.

Gender Discrimination—Disparate Treatment

An individual suffers disparate treatment in her employment when “she is singled out and

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treated less favorably than others similarly situated.” Cornwell v. Electra Central Credit Union, 439

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F.3d 1018, 1028 (9th Cir. 2006). “[T]o assert a valid Title VII claim for sex discrimination, a plaintiff

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must make out a prima facie case establishing that the challenged employment action was either

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intentionally discriminatory or that it had a discriminatory effect on the basis of gender.” Jespersen v.

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Harrah’s Operating Co., 444 F.3d 1104, 1109 (9th Cir. 2006) (citing McDonnell Douglas Corp. v.

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Green, 411 U.S. 792, 802 (1973); Harriss v. Pan Am. World Airways, Inc., 649 F.2d 670, 673 (9th Cir.

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1980). A plaintiff must allege “(1) she belongs to a protected class, (2) she was performing according

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to her employer’s legitimate expectations, (3) she suffered an adverse employment action, and (4) other

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employees with qualifications similar to her own were treated more favorably.” Godwin v. Hunt

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Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (citation omitted).

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Plaintiff alleges she “was paid less than similarly situated male employees.” (Doc. 1 at 2). As a

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female, Plaintiff is a member of a protected class. See, e.g., Berg v. Cal. Horse Racing Bd., 419 F.Supp.

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2d 1219, 1230 (E.D. Cal. 2006). As discussed above, Plaintiff suffered an adverse employment action.

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However, Plaintiff has not alleged that she was meeting her employer’s expectations. Thus, Plaintiff

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has not alleged facts sufficient to support her claim for disparate treatment in violation of Title VII, and

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this cause of action must be DISMISSED.
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3.

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Hostile Work Environment—Sexual Harassment

The Supreme Court determined Title VII is violated “[w]hen the workplace is permeated with

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discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the

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conditions of the victim’s employment and create an abusive working environment.” Oncale v.

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Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). To state a claim under Title VII for hostile

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work environment based upon sexual harassment, an employee must allege: “(1) she was subjected to

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verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and (3) the conduct

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was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive

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work environment.” Porter v. California Dept. of Corrections, 419 F.3d 885, 892 (9th Cir. 2005)

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(citation omitted). The “severe or pervasive” element has both objective and subjective components,

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and courts consider “not only the feelings of the actual victim, but also ‘assume the perspective of the

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reasonable victim.’” EEOC v. Prospect Airport Servs., 621 F.3d 991, 998 (9th Cir. 2010) (quoting

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Brooks v. City of San Mateo, 229 F.3d 917, 924 (9th Cir. 2000)).

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Here, Plaintiff alleges that “[t]he work place environment was saturated with discriminatory

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practices against female employees, including but not limited to blatant and extensive sexual

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harassment of female employees by high management employees whose conduct was ignored by

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higher management officers.” (Doc. 1 at 2). Plaintiff does not allege sufficient facts for the Court to

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evaluate whether the conduct rises to the level of a Title VII violation, such as “the frequency of the

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discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere

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offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”

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Morgan, 536 U.S. at 116 (citation omitted). Most significantly, Plaintiff does not allege she personally

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was subjected to unwelcome verbal or physical conduct that was sexual in nature or, even, that she

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observed it occur. Thus, Plaintiff has not stated a cognizable claim for a hostile work environment

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based upon sexual harassment, and this claim must be DISMISSED.

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B.

Equal Pay Act

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Under the Equal Pay Act (“EPA”), it is unlawful for employers to pay employees of one sex

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less than employees of the other sex “for equal work on jobs the performance of which requires equal

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skill, effort, and responsibility, and which are performed under similar working conditions.” 29 U.S.C.
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§ 206(d)(1). To state a cognizable claim for a violation of the EPA, a plaintiff must allege the employer

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paid “different wages to employees of the opposite sex for equal work.” Hein v. Oregon Coll. of Educ.,

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718 F.2d 910, 913 (9th Cir. 1983) (citation omitted). The work need “need not be identical, but they

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must be ‘substantially equal.’” Id.; Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1073-74 (9th Cir. 1999).
Plaintiff alleges she “was paid less than similarly situated male employees.” (Doc. 1 at 2).

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However, that the male employees were “‘similarly situated’ is a legal conclusion.” Williams v.Vidmar,

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367 F.Supp.2d 1265, 1272 (N.D. Cal. 2005). Consequently, this allegation is not entitled to the

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assumption of truth without factual support. Ivey, 673 F.2d at 268. If the jobs involve substantial

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differences in skill, effort, or responsibility, or if the jobs are not performed under similar working

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conditions, Plaintiff’s claim fails. See Forsberg v. Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1414 (9th Cir.

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1988) (explaining each criterion must be satisfied under the EPA). Because Plaintiff’s claim for a

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violation of the Equal Pay Act lacks factual support, it must be DISMISSED.

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IV.

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Conclusion and Order
Plaintiff will be given an opportunity to file an amended complaint to plead sufficient facts

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supporting her claims. See Lopez, 203 F.3d at 1127-28; Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th

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Cir. 1987). Plaintiff is admonished to provide more than conclusions in her complaint, and provide a

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short, plain statement of her case, including facts that support her allegations. See Fed. R. Civ. P. 8(a);

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Iqbal, 556 U.S. at 678-79. Although accepted as true, “[f]actual allegations must be [sufficient] to raise

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a right to relief above the speculative level…” Bell Atl. Corp v. Twombly, 127 S.Ct. 1955, 1965 (2007)

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(citations omitted).

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Plaintiff is advised the Court cannot refer to a prior pleading in order to make her amended

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complaint complete. As a general rule, an amended complaint supersedes the original complaint. See

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Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, once Plaintiff file an amended complaint, the

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original pleading no longer serves any function in this action.

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The amended complaint must bear the docket number assigned this case and must be labeled

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“First Amended Complaint.” Finally, Plaintiff is warned that “[a]ll causes of action alleged in an

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original complaint which are not alleged in an amended complaint are waived.” King v. Atiyeh, 814

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F.2d 565, 567 (9th Cir. 1986) (citing London v. Coopers & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981).
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Based upon the foregoing, IT IS HEREBY ORDERED:

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Plaintiffs’ Complaint is DISMISSED with leave to amend; and

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Plaintiff is GRANTED thirty days from the date of service of this Order to file a First
Amended Complaint.

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Plaintiff is cautioned that failure to comply with this order by filing an amended complaint will result

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in a recommendation that this action be dismissed pursuant to Local Rule 110.

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IT IS SO ORDERED.
Dated:

August 19, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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