Mility v. County of Kern et al

Filing 29

ORDER Denying Defendant Taylor's 17 Motion to Dismiss, signed by District Judge Dale A. Drozd on 8/1/2017. (Defendant Taylor's motion to dismiss plaintiff's prayer for punitive damages against him in connection with his claim of racial discrimination in violation of 42 U.S.C. § 1983 (Doc. No. 17) is denied.) (Gaumnitz, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KERNEL MILITY, an individual, 12 13 14 15 No. 1:17-cv-00446-DAD-JLT Plaintiff, v. ORDER DENYING DEFENDANT TAYLOR’S MOTION TO DISMISS COUNTY OF KERN, et al., (Doc. No. 17) Defendants. 16 17 18 This matter is before the court on defendant, Phil Taylor’s motion to dismiss. (Doc. No. 19 17.) A hearing on the motion was held on July 25, 2017. Attorney Randall Martin Rumph 20 appeared on behalf of plaintiff. Attorney Michael Charles Kellar appeared on behalf of defendant 21 Taylor and Deputy County Counsel Andrew Thomson appeared telephonically on behalf of the 22 remaining defendants. Having considered the parties briefing and heard oral argument and for the 23 reasons set forth below, the court will deny defendant’s motion to dismiss. 24 25 BACKGROUND Plaintiff, Kernel Mility, is African American and was employed as a maintenance worker 26 by defendant County of Kern from August 2015 to August 2016. (Doc. No. 1 at ¶ 3.) Plaintiff 27 was a “nine-month” employee: he worked for nine months and was given time off for two 28 months before beginning a new nine-month shift. (Id. at ¶ 8.) Defendants Phil Taylor (“Taylor”), 1 1 Chris Rodriguez (“Rodriguez”), Richard Carillo (“Carillo), and Dave Langella (“Langella”), were 2 at all times employed by the County of Kern as maintenance workers and were operating under 3 color of state law. (Id. at ¶ 4, 5, 6.) Defendant Taylor was plaintiff’s direct supervisor. (Id. at 4 ¶ 6.) While serving as a maintenance worker for the county, plaintiff alleges that he was subject 5 to harassment on the basis of his race. Specifically, plaintiff alleges the following in his 6 complaint. 7 On December 21, 2015, Rodriguez referred to plaintiff and stated, “Who hired this 8 nigger? This nigger won’t last.” (Id. at ¶ 9A.) Later that day, Rodriguez again referred to 9 plaintiff as “a nigger” in Spanish and referred to plaintiff’s friend as a “nigger lover.” (Id. at 10 ¶ 9A.) Plaintiff alleges that he was called a “nigger” at least monthly by defendant Carillo and 11 Langella, and at least weekly by Rodriguez. (Id. at ¶ 9B.) Plaintiff complained to defendant 12 Taylor, his supervisor, about the use of these racial slurs. (Id. at ¶ 9C.) Taylor responded that the 13 employees in the department use the word loosely and are not accustomed to “having a black guy 14 work with them.” (Id.) Taylor promised that the matter would be handled. (Id.) However, the 15 harassment continued. In particular, plaintiff’s work area was disrespected. For example, 16 plaintiff’s sweater was thrown on the floor. (Id. at ¶ 9D.) Dirty paint brushes, trash, and 17 footprints were placed on his desk and work chair. (Id. at ¶¶ 9E–G.) Plaintiff registered several 18 more complaints to defendant Taylor, but was either ridiculed at work meetings or had reason to 19 believe his complaints to Taylor were not remaining confidential. (Id. at ¶¶ 9I–J.) 20 According to plaintiff’s complaint, on May 20, 2016, Taylor told plaintiff that he would 21 not be coming back after his two months off and that “if you mess with the bull, you are going to 22 get the horns.” (Id. at ¶ 9K.) Taylor also monitored plaintiff’s activity at work and would not 23 allow him to come in early before 8:00 a.m., while other non-black workers were allowed to enter 24 county vehicles before 8:00 a.m. (Id. at ¶ 9L.) On June 8, 2016, plaintiff overheard defendant 25 Langella tell defendant Carillo, “Dave gave you that nigger tomorrow. He (plaintiff) is going to 26 feel the whip.” (Id. at ¶ 9M.) Plaintiff again complained to defendant Taylor who responded that 27 he “should not put dirty laundry on the front street.” (Id.) Plaintiff further alleges that defendant 28 Taylor too called him a “nigger” and “bottom feeder” at least monthly. (Id. at ¶ 9O.) 2 1 Plaintiff also alleges that his complaints to Taylor were met with more harassment or 2 additional work assignments. For example, after his first complaint to Taylor, plaintiff alleges he 3 was assigned to move 14 car stops weighing approximately 100 pounds. (Id. at ¶ 10A.) After 4 making another complaint of harassment, plaintiff was assigned to move 1,700 books. (Id. at 5 ¶ 10B.) After complaining to Taylor’s direct supervisor, Dave Hardin, plaintiff alleges Taylor 6 cancelled a meeting they had earlier scheduled. (Id. at ¶ 10C.) Plaintiff also alleges that his co- 7 workers witnessed Taylor place plaintiff’s written complaints into a bin to be shredded. (Id. at 8 ¶ 10E.) Plaintiff also provided these written statements describing the ongoing racial harassment 9 he was experiencing to the human resources department. (Id. at ¶ 11–12.) The County hired an 10 attorney to investigate plaintiff’s allegations of harassment. (Id. at ¶ 13.) While plaintiff was 11 reassured that he would be returning to work after his two months off, plaintiff has yet to return. 12 (Id. at ¶ 17.) His last day of work with the county was October 16, 2016. (Id.) 13 Plaintiff has exhausted his administrative remedies pursuant to Title VII and the Fair 14 Employment and Housing Act (“FEHA”), and obtained a right to sue notice. (Id. at ¶ 18.) On 15 March 28, 2017, plaintiff filed suit in federal court alleging violations of 42 U.S.C. § 1983. (Doc. 16 No. 1.) Defendant Taylor filed the instant motion to dismiss on June 6, 2016. (Doc. No. 17.) 17 None of the other defendants joined in that motion. Plaintiff filed his opposition on June 19, 18 2017. (Doc. No. 19.) Defendant filed a reply brief on July 20, 2017. (Doc. No. 24.) Below, the 19 court will address the parties’ arguments. 20 LEGAL STANDARD 21 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal 22 sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 23 1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of 24 sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 25 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to 26 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A 27 claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 28 ///// 3 1 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009). 3 In determining whether a complaint states a claim on which relief may be granted, the 4 court accepts as true the allegations in the complaint and construes the allegations in the light 5 most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. 6 United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth 7 of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. 8 Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed 9 factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me 10 accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and 11 conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. 12 at 555. See also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action, 13 supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to 14 assume that the plaintiff “can prove facts which it has not alleged or that the defendants have 15 violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal., 16 Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 17 DISCUSSION 18 Defendant moves to dismiss plaintiff’s prayer for punitive damages in connection with his 19 first claim for relief alleging discrimination by defendant Taylor in violation of 42 U.S.C. § 1983. 20 (Doc. No. 17 at 1.) Defendant Taylor argues that plaintiff’s complaint merely states conclusory 21 allegations of an unlawful intent to discriminate. (Doc. No. 17-1 at 2.) Specifically, defendant 22 contends that the affirmative acts of harassment alleged by plaintiff can only be attributed to 23 defendants Rodriguez, Carillo, and Langella. (Id.) In essence, defendant Taylor contends that he 24 had no affirmative involvement in the alleged acts of harassment. Rather, “[t]he acts attributed to 25 Taylor pertain to his alleged failure to take adequate action in response to complaints of 26 harassment conveyed by Mility[,]” and that as such, punitive damages are not warranted. (Id.) 27 The court finds defendant Taylor’s argument in this regard to be unpersuasive in light of the 28 specific allegations of plaintiff’s complaint. 4 1 “A jury may be permitted to assess punitive damages in an action under § 1983 when the 2 defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves 3 reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 4 U.S. 30, 56 (1983). The Ninth Circuit has further explained that “the standard for punitive 5 damages under § 1983 mirrors the standard for punitive damages under common law tort cases,” 6 which extends to “malicious, wanton, or oppressive acts or omissions.” Dang v. Cross, 422 F.3d 7 800, 807 (9th Cir. 2005) (citing Wade, 461 U.S. at 49). “Malice or reckless indifference can be 8 established by ‘demonstrating that the relevant individuals knew of or were familiar with the anti- 9 discrimination laws’ but nonetheless ignored them.” Campbell v. EWC, Inc., No. 13-C-1066, 10 2014 WL 3895534, at *1 (E.D. Wis. Aug. 7, 2014) (quoting Bruso v. United Airlines, Inc., 239 11 F.3d 848, 858 (7th Cir. 2001)). 12 The use of racial slurs or epithets is sufficient for finding maliciousness or recklessness to 13 satisfy the standard for punitive damages. Swinton v. Potomac Corp., 270 F.3d 794, 817-18 (9th 14 Cir. 2001) (upholding jury’s punitive damages award where the plaintiff was regularly subjected 15 at work to the use of the same racial slur as is alleged here); Eriba v. Chrysler Plastic Prod. 16 Corp., 772 F.2d 1250, 1260 (6th Cir. 1985) (upholding the jury’s award of punitive damages in a 17 § 1983 suit where “[p]laintiff testified that he continuously brought the problem of racial slurs to 18 the attention of his supervisors and that they failed to take any action to rectify the situation.”); 19 Johnson v. Strive E. Harlem Employment Grp., 990 F. Supp. 2d 435, 450 (S.D.N.Y. 2014) 20 (upholding jury’s finding of reckless indifference in awarding punitive damages and noting that, 21 defendant’s “plethora of discriminatory comments supports the jury’s finding of malice or 22 reckless indifference to plaintiff’s right to work free from race and gender discrimination”); 23 Campbell, 2014 WL 3895534, at *1 (holding that plaintiff was entitled to punitive damages 24 because the “use of a racial slur supports a finding of maliciousness or recklessness”) (citing 25 Farias v. Instructional Sys., Inc., 259 F.3d 91, 101 (2d Cir. 2001)). 26 The court finds that plaintiff’s complaint has sufficiently alleged maliciousness and 27 recklessness on the part of defendant Taylor to support plaintiff’s prayer for punitive damages. In 28 addition to failing to take action to rectify the situation despite plaintiff’s numerous complaints 5 1 about ongoing racial harassment, in his complaint plaintiff specifically alleges that Taylor was 2 also complicit in these acts. Indeed, plaintiff alleges in his complaint that defendant Taylor 3 directed the same racial slurs toward him at least monthly, did not allow him to arrive early while 4 other non-blacks were allowed to do so, intentionally failed to stop the ongoing harassment, and 5 instead retaliated against plaintiff for lodging his complaints of racial harassment. (Doc. No. 19 6 at 6.) In short, the specific allegations of plaintiff’s complaint are sufficient to support a punitive 7 damages claim against defendant Taylor. See, e.g., Swinton v. Potomac Corp., 270 F.3d at 817- 8 18; Eriba, 772 F.2d at 1260. Therefore, defendant Taylor’s motion to dismiss must be denied. 9 CONCLUSION 10 For the reasons set forth above, defendant Taylor’s motion to dismiss plaintiff’s prayer for 11 punitive damages against him in connection with his claim of racial discrimination in violation of 12 42 U.S.C. § 1983 (Doc. No. 17) is denied. 13 IT IS SO ORDERED. 14 Dated: August 1, 2017 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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