Werner v. Advance Newhouse Partnership, LLC et al

Filing 7

ORDER Directing plaintiff to file a second amended complaint or notify the court of her willingness to proceed only on claims found to be cognizable, signed by Magistrate Judge Jennifer L. Thurston on 10/7/2013. (Kusamura, W)

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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 DIRECTING PLAINTIFF TO FILE A
SECOND AMENDED COMPLAINT OR NOTIFY
THE COURT OF HER WILLINGNESS TO
PROCEED ONLY ON CLAIMS FOUND TO BE
COGNIZABLE

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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. She

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filed a First Amended Complaint on September 23, 2013. (Doc. 4) For the following reasons, the

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Court finds Plaintiff has stated a cognizable claim for a violation of the Equal Pay Act but she failed to

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state cognizable claims for violations of Title VII. Therefore, the Court directs Plaintiff to either (1)

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file a Second Amended Complaint or (2) notify the Court of her willingness to proceed only on his

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cognizable claim for a violation of the Equal Pay Act.

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I.

Pleading Requirements

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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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Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (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.
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, 1127-

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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 as Director of Human Resources of the

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Bakersfield Division of Brighthouse Networks/ Advance Newhouse Partnership until August 24, 2011.

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(Doc. 4 at 2, 3.) She asserts she “was paid less than similarly situated male employees and was

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retaliated against for persistently raising the issue and requesting equal pay.” Id. at 2. According to
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Plaintiff, she “was paid less than male management employees who held similar positions and were

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[her] counterparts in management.” Id. at 3. Also, she asserts the “male employees in similar

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management positions who had not complained about compensation disparity were treated differently

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than Plaintiff was treated.” Id.
Plaintiff alleges the “practice of the company was to provide additional compensation to

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management employees when additional duties were assigned,” but when she received no additional

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compensation when she was assigned “additional duties including the responsibility for safety and fleet

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management.” (Doc. 4 at 3). On the other hand, “[a]dditional compensation was provided to male

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management employees on the occasion of assignment of additional duties.” Id. at 4. In addition,

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Plaintiff asserts one man “was given management level benefits and paid additional compensation

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without assignment of additional duties.” Id. at 6. Plaintiff asserts Bob Rogola was “hired at the same

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grade level as Plaintiff,” yet “was paid significantly more. . . exceeding the maximum allowable salary

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in the grade range.” Id. at 8. She identifies several other male employees whom she believes received

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salaries greater than was appropriate. Plaintiff asserts she “complained about her unequal pay to her

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supervisor and to corporate offices, but her complaints were ignored.” Id. at 3.
Further, 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. 4 at 2). According to Plaintiff, although she “was not subjected to

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direct sexual harassment by Mr. Schoenstein, she was offended by his sexual harassment of other

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female employees and the graphic reports of that sexual harassment.” Id. at 5.
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. 4 at 10).

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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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1.

Retaliation

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An “employer can violate the anti-retaliation provisions of Title VII in either of two ways: (1) if

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the adverse employment action occurs because of the employee’s opposition to conduct made unlawful

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[by Title VII]; or (2) if it is in retaliation for the employee’s participation in the machinery set up by

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Title VII to enforce its provisions.” Hashimoto v. Dalton, 118 F.3d 671, 680 (9th Cir. 1997). To state

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a cognizable claim for retaliation, a plaintiff must allege: “(1) she engaged in an activity protected by

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Title VII; (2) her employer subjected her to an adverse employment action; and (3) a causal link exists

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between the protected activity and the adverse action.” Bleeker v. Vilsack, 468 Fed. App’x 731, 732

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(9th Cir. 2012); Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).

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Here, Plaintiff alleges her employment was terminated, which is an adverse employment action

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under Title VII. See Nat’l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Plaintiff

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asserts she complained to her supervisory and officers at the corporate level regarding the inequitable

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pay (Doc. 4 at 3), which is protected activity under Title VII. Ray v. Henderson, 217 F.3d 1234, 1240

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n.3 (9th Cir. 2000) (complaints to a supervisor are protected under Title VII); see also Raad v.

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

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(protected activities include filing a charge or complaint with the EEOC, testifying about an

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employer’s alleged unlawful practices, and “engaging in other activity intended to oppose an

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employer’s discriminatory practices”). However, Plaintiff has not alleged a causal link between her

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complaints and the termination of her employment with Defendants.

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The causal link may be “inferred from circumstantial evidence, such as the employer’s
knowledge that the plaintiff engaged in protected activities and the proximity in time between the
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protected action and the allegedly retaliatory employment decision.” Yartzoff v. Thomas, 809 F.2d

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1371, 1375 (9th Cir. 1987) “[C]ausation can be inferred from timing alone where an adverse

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employment action follows on the heels of protected activity.” Villiarimo v. Aloha Island Air, 281 F.3d

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1054, 1065 (9th Cir. 2002); see, e.g., Yartzoff, 809 F.2d at 1376 (inferring causation where adverse

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employment actions took place less than three months after the plaintiff’s complaint where his

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supervisors were aware of his Title VII charges and his participation in administrative investigations);

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Strother v. S. Cal. Permanente Med. Grp., 79 F.3d 859, 869-70 (9th Cir. 1996) (finding causal link

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where alleged retaliation followed within months of protected activity where supervisor knew of the

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employee’s complaint). Here, Plaintiff has failed to allege when her complaints were made and, as a

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result, there are insufficient facts to support an inference of causation. Consequently, Plaintiff has

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failed to state a cognizable claim for retaliation in violation of Title VII.

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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. 4 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.
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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 was

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

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

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

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

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

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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. 4 at 2). Plaintiff admits she “was not subjected to direct sexual

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harassment” though “she was offended by [the] sexual harassment of other female employees and the

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graphic reports of that sexual harassment.” Id. at 5. Incidents of harassment directed at others —and

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not the plaintiff—“have some relevance in demonstrating the existence of a hostile work environment.”

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Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1144 (7th Cir. 1997) (citing, e.g., Hirase-Doi v.

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U.S. West Communications, Inc., 61 F.3d 777, 782 (10th Cir. 1995); Hall v. Gus Const. Co., Inc., 842

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F.2d 1010, 1015 (8th Cir. 1988); but see also Conto v. Concord Hosp., Inc., 265 F.3d 79, 82 (1st Cir.

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2001) (holding evidence submitted by the plaintiff did not generate a trial-worthy hostile work

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environment claim where she “witnessed male coworkers uttering sexually-charged profanities and

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making obscene bodily gestures to [others]… but never to her”). As the Seventh Circuit explained,

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“the impact of ‘second-hand harassment’ is obviously not as great as the impact of harassment directed

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at the plaintiff.” Id., 118 F.3d at 1144.
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The Supreme Court instructs that a court must consider “all the circumstances, including the

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frequency of the discriminatory conduct; its severity; whether it is physically threatening or

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humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s

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work performance.” Morgan, 536 U.S. at 116 (citation omitted). “[S]imple teasing, offhand

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comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes

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in the terms and conditions of employment.” Faragher v. City of Boca Raton, 524 U.S. 775, 788

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(1998) (internal quotation marks and citations omitted). Here, Plaintiff does not provide information

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regarding the nature or frequency of the harassment suffered by others such that the Court may

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determine it interfered with Plaintiff’s work. Consequently, she has failed to allege facts sufficient to

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support a claim for sexual harassment in violation of Title VII.

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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).

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Plaintiff alleges she “was paid less than similarly situated male employees with similar

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responsibilities and duties.” (Doc. 4 at 10). As an example, Plaintiff observes that Bobby Gallen, who

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also worked at the management level, “was assigned additional responsibilities for safety previously

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assigned to the Plaintiff, and in connection therewith he was given additional management benefits and

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additional compensation based on the assignment.” Id. at 6. However, when Plaintiff received the

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“additional duties including the responsibility for safety and fleet management,” she received no

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additional compensation. Id. at 3. Another man was “hired at the same grade level as Plaintiff,” yet

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“was paid significantly more. . . exceeding the maximum allowable salary in the grade range.” Id. at 8.

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Because Plaintiff received different pay as her male counterparts for jobs involving similar skill, effort,

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or responsibility, she has stated a cognizable claim for a violation of the Equal Pay Act. See Forsberg v.
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Pac. Nw. Bell Tel. Co., 840 F.2d 1409, 1414 (9th Cir. 1988) (explaining each criterion must be satisfied

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under the EPA).

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IV.

Conclusion and Order
Plaintiff has stated a cognizable claim for a violation of the Equal Pay Act. However, Plaintiff

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has not stated facts sufficient to support her claims for retaliation, disparate treatment, or sexual

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harassment in violation of Title VII.
Plaintiff will be given one final opportunity to file an amended complaint curing deficiencies

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identified in this order. See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987) (“A pro se litigant

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must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of

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the complaint could not be cured by amendment”). In the alternative, Plaintiff may notify the Court in

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writing that she does not wish to file a Second Amended Complaint and is willing to proceed only on

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her claim for violation of the Equal Pay Act. At that time, the Court will recommend dismissal of the

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other claims and issue summons.
The Second Amended Complaint must bear the docket number assigned this case and must be

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labeled “Second Amended Complaint.” Plaintiff is reminded that the Court cannot refer to a prior

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pleading in order to make an amended complaint complete. Local Rule 220 requires and amended

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complaint be “complete in itself without reference to the prior or superseded pleading.” As a general

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rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Also, Plaintiff is warned that “[a]ll causes of action alleged in an original complaint which

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are not alleged in an amended complaint are waived.” King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.

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1986).

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Based upon the foregoing, IT IS HEREBY ORDERED:

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1.

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Within 21 days from the date of service of this order Plaintiff SHALL:
a.

Court in this order, or

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File a Second Amended Complaint curing the deficiencies identified by the

b.

Notify the Court, in writing, of her willingness to proceed on the cognizable
claim for a violation of the Equal Pay Act.

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2.

Plaintiff is advised that the action may be dismissed for failure to comply with this

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Order. See e.g. Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissing

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the action for failure to comply with an order requiring amendment of complaint).

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IT IS SO ORDERED.
Dated:

October 7, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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