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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KERNEL MILITY, an individual,

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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.

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This matter is before the court on defendant, Phil Taylor’s motion to dismiss. (Doc. No.

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17.) A hearing on the motion was held on July 25, 2017. Attorney Randall Martin Rumph

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appeared on behalf of plaintiff. Attorney Michael Charles Kellar appeared on behalf of defendant

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Taylor and Deputy County Counsel Andrew Thomson appeared telephonically on behalf of the

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remaining defendants. Having considered the parties briefing and heard oral argument and for the

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reasons set forth below, the court will deny defendant’s motion to dismiss.

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BACKGROUND
Plaintiff, Kernel Mility, is African American and was employed as a maintenance worker

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by defendant County of Kern from August 2015 to August 2016. (Doc. No. 1 at ¶ 3.) Plaintiff

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was a “nine-month” employee: he worked for nine months and was given time off for two

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months before beginning a new nine-month shift. (Id. at ¶ 8.) Defendants Phil Taylor (“Taylor”),
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Chris Rodriguez (“Rodriguez”), Richard Carillo (“Carillo), and Dave Langella (“Langella”), were

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at all times employed by the County of Kern as maintenance workers and were operating under

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color of state law. (Id. at ¶ 4, 5, 6.) Defendant Taylor was plaintiff’s direct supervisor. (Id. at

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¶ 6.) While serving as a maintenance worker for the county, plaintiff alleges that he was subject

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to harassment on the basis of his race. Specifically, plaintiff alleges the following in his

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complaint.

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On December 21, 2015, Rodriguez referred to plaintiff and stated, “Who hired this

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nigger? This nigger won’t last.” (Id. at ¶ 9A.) Later that day, Rodriguez again referred to

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plaintiff as “a nigger” in Spanish and referred to plaintiff’s friend as a “nigger lover.” (Id. at

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¶ 9A.) Plaintiff alleges that he was called a “nigger” at least monthly by defendant Carillo and

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Langella, and at least weekly by Rodriguez. (Id. at ¶ 9B.) Plaintiff complained to defendant

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Taylor, his supervisor, about the use of these racial slurs. (Id. at ¶ 9C.) Taylor responded that the

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employees in the department use the word loosely and are not accustomed to “having a black guy

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work with them.” (Id.) Taylor promised that the matter would be handled. (Id.) However, the

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harassment continued. In particular, plaintiff’s work area was disrespected. For example,

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plaintiff’s sweater was thrown on the floor. (Id. at ¶ 9D.) Dirty paint brushes, trash, and

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footprints were placed on his desk and work chair. (Id. at ¶¶ 9E–G.) Plaintiff registered several

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more complaints to defendant Taylor, but was either ridiculed at work meetings or had reason to

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believe his complaints to Taylor were not remaining confidential. (Id. at ¶¶ 9I–J.)

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According to plaintiff’s complaint, on May 20, 2016, Taylor told plaintiff that he would

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not be coming back after his two months off and that “if you mess with the bull, you are going to

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get the horns.” (Id. at ¶ 9K.) Taylor also monitored plaintiff’s activity at work and would not

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allow him to come in early before 8:00 a.m., while other non-black workers were allowed to enter

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county vehicles before 8:00 a.m. (Id. at ¶ 9L.) On June 8, 2016, plaintiff overheard defendant

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Langella tell defendant Carillo, “Dave gave you that nigger tomorrow. He (plaintiff) is going to

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feel the whip.” (Id. at ¶ 9M.) Plaintiff again complained to defendant Taylor who responded that

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he “should not put dirty laundry on the front street.” (Id.) Plaintiff further alleges that defendant

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Taylor too called him a “nigger” and “bottom feeder” at least monthly. (Id. at ¶ 9O.)
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Plaintiff also alleges that his complaints to Taylor were met with more harassment or

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additional work assignments. For example, after his first complaint to Taylor, plaintiff alleges he

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was assigned to move 14 car stops weighing approximately 100 pounds. (Id. at ¶ 10A.) After

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making another complaint of harassment, plaintiff was assigned to move 1,700 books. (Id. at

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¶ 10B.) After complaining to Taylor’s direct supervisor, Dave Hardin, plaintiff alleges Taylor

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cancelled a meeting they had earlier scheduled. (Id. at ¶ 10C.) Plaintiff also alleges that his co-

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workers witnessed Taylor place plaintiff’s written complaints into a bin to be shredded. (Id. at

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¶ 10E.) Plaintiff also provided these written statements describing the ongoing racial harassment

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he was experiencing to the human resources department. (Id. at ¶ 11–12.) The County hired an

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attorney to investigate plaintiff’s allegations of harassment. (Id. at ¶ 13.) While plaintiff was

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reassured that he would be returning to work after his two months off, plaintiff has yet to return.

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(Id. at ¶ 17.) His last day of work with the county was October 16, 2016. (Id.)

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Plaintiff has exhausted his administrative remedies pursuant to Title VII and the Fair

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Employment and Housing Act (“FEHA”), and obtained a right to sue notice. (Id. at ¶ 18.) On

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March 28, 2017, plaintiff filed suit in federal court alleging violations of 42 U.S.C. § 1983. (Doc.

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No. 1.) Defendant Taylor filed the instant motion to dismiss on June 6, 2016. (Doc. No. 17.)

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None of the other defendants joined in that motion. Plaintiff filed his opposition on June 19,

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2017. (Doc. No. 19.) Defendant filed a reply brief on July 20, 2017. (Doc. No. 24.) Below, the

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court will address the parties’ arguments.

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LEGAL STANDARD

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The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal

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sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.

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1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901

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F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to

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relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009).

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In determining whether a complaint states a claim on which relief may be granted, the

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court accepts as true the allegations in the complaint and construes the allegations in the light

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most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v.

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United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court need not assume the truth

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of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v.

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Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed

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factual allegations, “it demands more than an unadorned, the defendant-unlawfully-harmed-me

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accusation.” Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere “labels and

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conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S.

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at 555. See also Iqbal, 556 U.S. at 676 (“Threadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.”). Moreover, it is inappropriate to

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assume that the plaintiff “can prove facts which it has not alleged or that the defendants have

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violated the . . . laws in ways that have not been alleged.” Associated Gen. Contractors of Cal.,

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Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

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DISCUSSION

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Defendant moves to dismiss plaintiff’s prayer for punitive damages in connection with his

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first claim for relief alleging discrimination by defendant Taylor in violation of 42 U.S.C. § 1983.

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(Doc. No. 17 at 1.) Defendant Taylor argues that plaintiff’s complaint merely states conclusory

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allegations of an unlawful intent to discriminate. (Doc. No. 17-1 at 2.) Specifically, defendant

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contends that the affirmative acts of harassment alleged by plaintiff can only be attributed to

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defendants Rodriguez, Carillo, and Langella. (Id.) In essence, defendant Taylor contends that he

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had no affirmative involvement in the alleged acts of harassment. Rather, “[t]he acts attributed to

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Taylor pertain to his alleged failure to take adequate action in response to complaints of

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harassment conveyed by Mility[,]” and that as such, punitive damages are not warranted. (Id.)

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The court finds defendant Taylor’s argument in this regard to be unpersuasive in light of the

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specific allegations of plaintiff’s complaint.
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“A jury may be permitted to assess punitive damages in an action under § 1983 when the

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defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves

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reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461

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U.S. 30, 56 (1983). The Ninth Circuit has further explained that “the standard for punitive

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damages under § 1983 mirrors the standard for punitive damages under common law tort cases,”

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which extends to “malicious, wanton, or oppressive acts or omissions.” Dang v. Cross, 422 F.3d

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800, 807 (9th Cir. 2005) (citing Wade, 461 U.S. at 49). “Malice or reckless indifference can be

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established by ‘demonstrating that the relevant individuals knew of or were familiar with the anti-

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discrimination laws’ but nonetheless ignored them.” Campbell v. EWC, Inc., No. 13-C-1066,

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2014 WL 3895534, at *1 (E.D. Wis. Aug. 7, 2014) (quoting Bruso v. United Airlines, Inc., 239

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F.3d 848, 858 (7th Cir. 2001)).

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The use of racial slurs or epithets is sufficient for finding maliciousness or recklessness to

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satisfy the standard for punitive damages. Swinton v. Potomac Corp., 270 F.3d 794, 817-18 (9th

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Cir. 2001) (upholding jury’s punitive damages award where the plaintiff was regularly subjected

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at work to the use of the same racial slur as is alleged here); Eriba v. Chrysler Plastic Prod.

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Corp., 772 F.2d 1250, 1260 (6th Cir. 1985) (upholding the jury’s award of punitive damages in a

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§ 1983 suit where “[p]laintiff testified that he continuously brought the problem of racial slurs to

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the attention of his supervisors and that they failed to take any action to rectify the situation.”);

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Johnson v. Strive E. Harlem Employment Grp., 990 F. Supp. 2d 435, 450 (S.D.N.Y. 2014)

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(upholding jury’s finding of reckless indifference in awarding punitive damages and noting that,

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defendant’s “plethora of discriminatory comments supports the jury’s finding of malice or

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reckless indifference to plaintiff’s right to work free from race and gender discrimination”);

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Campbell, 2014 WL 3895534, at *1 (holding that plaintiff was entitled to punitive damages

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because the “use of a racial slur supports a finding of maliciousness or recklessness”) (citing

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Farias v. Instructional Sys., Inc., 259 F.3d 91, 101 (2d Cir. 2001)).

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The court finds that plaintiff’s complaint has sufficiently alleged maliciousness and

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recklessness on the part of defendant Taylor to support plaintiff’s prayer for punitive damages. In

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addition to failing to take action to rectify the situation despite plaintiff’s numerous complaints
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about ongoing racial harassment, in his complaint plaintiff specifically alleges that Taylor was

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also complicit in these acts. Indeed, plaintiff alleges in his complaint that defendant Taylor

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directed the same racial slurs toward him at least monthly, did not allow him to arrive early while

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other non-blacks were allowed to do so, intentionally failed to stop the ongoing harassment, and

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instead retaliated against plaintiff for lodging his complaints of racial harassment. (Doc. No. 19

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at 6.) In short, the specific allegations of plaintiff’s complaint are sufficient to support a punitive

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damages claim against defendant Taylor. See, e.g., Swinton v. Potomac Corp., 270 F.3d at 817-

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18; Eriba, 772 F.2d at 1260. Therefore, defendant Taylor’s motion to dismiss must be denied.

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CONCLUSION

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For the reasons set forth above, defendant Taylor’s motion to dismiss plaintiff’s prayer for

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punitive damages against him in connection with his claim of racial discrimination in violation of

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42 U.S.C. § 1983 (Doc. No. 17) is denied.

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IT IS SO ORDERED.

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Dated:

August 1, 2017
UNITED STATES DISTRICT JUDGE

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