Altimus v. Saint-Gobain Corp. of North America

Filing 13

ORDER GRANTING 5 Motion to Dismiss and GRANTING Motion for a More Definite Statement; ORDER GRANTING Thirty Days to File an Amended Complaint, signed by District Judge Dale A. Drozd on 11/21/2017. (30-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUSTIN ALTIMUS,

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Plaintiff,

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No. 1:17-cv-01271-DAD-EPG

v.
SAINT-GOBAIN CORP. OF NORTH
AMERICA,

ORDER GRANTING MOTION TO DISMISS
AND MOTION FOR A MORE DEFINITE
STATEMENT
(Doc. No. 5)

Defendant.

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This matter came before the court on November 14, 2017, for hearing on defendant’s

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motion to dismiss for failure to state a claim and motion for a more definite statement. (Doc. No.

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5). Attorney Kelsey A. Webber appeared telephonically on behalf of defendant. Plaintiff did not

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file any written opposition to the pending motion to dismiss1 and did not appear at the hearing.

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For the reasons set forth below, the court grants defendant’s motion to dismiss and motion for a

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more definite statement.

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However, on November 13, 2017, plaintiff did file with the court a stipulation to elect referral
of this action to the court’s Voluntary Dispute Resolution Program (VDRP), a consent to
magistrate judge jurisdiction under 28 U.S.C. § 636, and a certificate of service with respect to his
complaint filed in state court reflecting service on defendant by mail on August 23, 2017.
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BACKGROUND

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Plaintiff Justin Altimus brings this action against his former employer, defendant

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Certainteed Corporation and in his complaint alleges as follows.2 Plaintiff began working for

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defendant on or around July 2014. (Doc. No. 1-1 ¶ 5.) Plaintiff’s supervisors were Kenny

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Dingler Sr. and Troy Cook. (Id. ¶¶ 6, 9.) Beginning in or around January 2015, plaintiff claims

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that he was harassed and wrongly “written up” by his supervisors for purported attendance

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infractions (id. ¶¶ 6, 8, 9–11) and other purported job performance mistakes (id. ¶¶ 12, 15–17).

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On or around August 1, 2015, Cook falsely told other employees that he had witnessed plaintiff

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“bent over in a sexual manner with another employee” during an overnight shift. (Id. ¶ 18.) On

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or around August, 3, 2015, plaintiff reported Cook’s statement to Dingler Sr., but Dingler Sr. took

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no further steps to investigate. (Id. ¶¶ 19, 24, 30.) According to plaintiff, Dingler Sr. took

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retaliatory actions against plaintiff for reporting the sexual harassment, including but not limited

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to denying plaintiff training opportunities in favor of less senior employees (id. ¶¶ 20–21), and

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denying plaintiff bereavement leave following the death of a family member (id. ¶ 23).
According to the complaint, due to plaintiff’s family tragedy and the stressful workplace

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environment, plaintiff took medical leave beginning in February 2016. (Id. ¶ 24.) The complaint

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is unclear about the next sequence of events. Plaintiff claims that he was terminated from his

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employment in January 2017, but apparently was reinstated after he obtained and provided an

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updated doctor’s note authorizing his continued medical leave. (Id. ¶ 29.) Following further

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disputes with defendant’s human resources department regarding his employment status over the

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subsequent months (id. ¶ 31), plaintiff filed a charge of discrimination with the Equal

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Employment Opportunity Commission (“EEOC”) in April 2017. (Id. ¶ 33.) Plaintiff claims that

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defendant was aware of the EEOC complaint when it sent a letter to him in May 2017 claiming

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that plaintiff had abandoned his employment. (Id. ¶ 34.)

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On April 19, 2017, the EEOC issued plaintiff a notice of right to sue. (Doc. 1, Ex. 17.)
On July 27, 2017, plaintiff filed a complaint against Saint-Gobain Corporation of North America
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In its motion to dismiss, defendant asserts that it is erroneously sued as “Saint-Gobain
Corporation of North America.”
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in Madera County Superior Court. (Doc. No. 1-1.) The complaint alleges seven causes of action

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for: 1) violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); 2) violation of the

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Occupational Safety and Health Act (“OSHA”); 3) violation of the National Labor Relations Act

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(“NLRA”); 4) violation of California Civil Code §§ 45–47; 5) violation of Assembly Bill 2053,

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Chapter 306; 6) violation of California Government Code §§ 12940–12950.1; and 7) violation of

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defendant’s Hourly Employee Handbook. (Id.) On September 29, 2017, defendant filed a motion

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to dismiss plaintiff’s claims brought under OSHA, NLRA, Assembly Bill No. 2053, and

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defendant’s employee handbook. (Doc. No. 5.) Defendant concurrently filed a motion for a more

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definite statement with respect to plaintiff’s claims brought under Title VII, California Civil Code

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§§ 45–47, and California Government Code §§ 12940–12950.1. (Id.) As noted above, plaintiff

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did not file any written opposition to the motions and did not appear at the properly noticed

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hearing on those motions.

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LEGAL STANDARDS
A. Standard for Motion to Dismiss

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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). A dismissal may be warranted where there is “the lack of a cognizable legal theory or the

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absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police

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Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff must 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 is plausible on its face “when the plaintiff pleads factual content that allows the court to

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draw 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 evaluating whether a complaint states a claim on which relief may be granted, the court

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

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

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

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conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788
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F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations,

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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Iqbal, 556 U.S. at 676. A complaint must do more than allege mere

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“labels and conclusions” or “a formulaic recitation of the elements of a cause of action.”

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Twombly, 550 U.S. at 555.

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In ruling on such a motion, the court is permitted to consider material that is properly

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submitted as part of the complaint, documents that are not physically attached to the complaint if

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their authenticity is not contested and the plaintiff’s complaint necessarily relies on them, and

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matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001).

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B. Standard for Motion for A More Definite Statement

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Federal Rule of Civil Procedure 12(e) provides that a party may move for a more definite

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statement if the pleading is “so vague and ambiguous that the party cannot reasonably prepare a

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response.” Fed. R. Civ. P. 12(e). In moving for a more definite statement, the party “must point

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out the defects complained of and the details desired.” Id. Such motions are “not favored by the

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courts since pleadings in federal courts are only required to fairly notify the opposing party of the

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nature of the claim.” Griffin v. Cedar Fair, L.P., 817 F. Supp. 2d 1152, 1154 (N.D. Cal. 2011)

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(quoting Resolution Trust Corp. v. Dean, 854 F. Supp. 626, 629 (D. Ariz. 1994)). Finally,

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motions for a more definite statement “should not be granted unless the defendant cannot frame a

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responsive pleading.” Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 949 (E.D.

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Cal. 1981). A Rule 12(e) motion “is likely to be denied where the substance of the claim has

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been alleged, even though some of the details are omitted.” Neveu v. City of Fresno, 392 F. Supp.

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2d 1159, 1169 (E.D. Cal. 2005). This liberal pleading standard is consistent with Federal Rule of

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Civil Procedure 8(a), which allows pleadings that simply contain a “short and plain statement of

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the claim.” Id.

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DISCUSSION

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I.

Motion to Dismiss

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a. Violation of Occupational Safety and Health Act

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Plaintiff brings his second cause of action under OSHA. (Doc. No. 1-1 ¶ 37.) The

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complaint alleges that “[o]n or around June 2015, Supervisor/Tony Cook violated Occupational

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Safety and Health Act(OSHA) [sic] federal law by not providing requirements for work related

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situations.” (Id. ¶ 14.) The complaint notes that plaintiff was left working two stories

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underground “with no harness, spotter or radio,” and that plaintiff later expressed to his

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supervisor his “concerns of the unsafe situation.” (Id.)

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OSHA, however, does not provide a private right of action for employees to bring claims

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in federal court based on alleged violations of its provisions or regulations. Glanton v. Harrah’s

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Entertainment, Inc., 297 Fed. App’x 685, 687 (9th Cir. 2008) (“OSHA does not provide a private

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cause of action.”).3 Rather, “OSHA creates an intra-agency mechanism by which an alleged

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violation can be raised by a private actor, . . . suggesting that Congress did not intend for OSHA-

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based actions to be litigated by private actors in federal court.” Id. (emphasis added). Plaintiff

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had the right to file a complaint with OSHA and request an inspection of his workplace if he

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believed there to be a violation of OSHA standards or other serious hazards. Because plaintiff’s

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claim for an alleged OSHA violation is not properly before this court, it will be dismissed with

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prejudice.

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b. Violation of National Labor Relations Act

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Plaintiff alleges his third cause of action under the NLRA. (Doc. No. 1-1 ¶ 38.) Section 7

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of the NLRA protects employees’ rights to join labor unions, collectively bargain, and engage in

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other activities for purposes of mutual aid. 29 U.S.C. § 157. Section 8 of the NLRA prevents

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employers from engaging in unfair labor practices or interfering with employees’ rights to join

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labor unions and bargain collectively. 29 U.S.C. § 158(a)(1)–(3). The NLRA only protects

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concerted activities, in which an employee acts “with or on behalf of other employees, and not

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Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
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solely by and on behalf of the . . . employee himself.” NLRB v. Mike Yourosek & Son., Inc., 53

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F.3d 261, 264 (9th Cir. 1995).

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Plaintiff alleges that defendant violated the NLRA by taking adverse employment actions

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against him—including denial of training and promotion opportunities—as retaliation for

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plaintiff’s complaint of sexual harassment. (Doc. No. 1-1 ¶¶ 20–22.) Notwithstanding whether

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these facts may support an NLRA claim, the claim is not properly before this court. Both the

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state and federal courts must defer to the “exclusive competence” of the National Labor Relations

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Board (“NLRB”) in cases involving either an actual or an arguable violation of either Section 7 or

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8 of the NLRA. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959); see also

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Cardenas v. U.P.S., Inc., No. CV10-6132 ODW (CWx), 2010 WL 5116343, at *4 (C.D. Cal.

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2010) (“Where it is not clear whether particular conduct is protected, prohibited, or left to state

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regulation by the NLRA, the courts must stay their hand, because courts are not the primary

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tribunals to adjudicate such issues, which must be left in the first instance to the NLRB.”) (citing

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Int’l Bhd. of Boilermakers, etc. v. Hardeman, 401 U.S. 233 (1971)).

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Based upon these authorities, plaintiff’s cause of action brought pursuant to the NLRA
will also be dismissed with prejudice.
c. Violation of Defendant’s Employee Handbook
Plaintiff’s seventh cause of action is brought pursuant to defendant Certainteed’s “Hourly

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Employee Handbook. (Doc. No. 1-1 ¶ 42.) Plaintiff’s complaint claims that, on numerous

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occasions, defendant took adverse actions against plaintiff in violation of defendant’s employee

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handbook. Defendant contends that this claim should be dismissed because it lacks a cognizable

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legal theory. (Doc. No. 5 at 6.) That argument is persuasive.

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Plaintiff does not state a plausible claim for relief, absent any allegation that the employee

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handbook operated as an employment contract, or that there were other circumstances

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surrounding the employment relationship indicating that the parties had an implied-in-fact

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agreement that plaintiff’s employment was not at-will. See Comeaux v. Brown & Williamson

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Tobacco Co., 915 F.2d 1264, 1271 (9th Cir. 1990) (“In California, employment is presumed to be

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‘at will,’ and an employee can be fired without good cause, unless there exists an express or
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implied contract that restricts the employer’s right to terminate the employee.”). Moreover, at the

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November 14, 2017 hearing on the pending motions, counsel for defendant represented that, to

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his knowledge, the employee handbook did not constitute a contract and that plaintiff never

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signed anything indicating that it was a contract.

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Accordingly, plaintiff’s cause of action brought pursuant to defendant’s employee

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handbook will be dismissed with leave to amend, should plaintiff be able to allege additional facts

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indicating that the employee handbook operated as a contract between the parties that was subject

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to breach.

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II.

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Motion for A More Definite Statement
a. Violation of Title VII
Plaintiff’s first cause of action is brought under Title VII. (Doc. No. 1-1 ¶ 36.) Defendant

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contends that it lacks fair notice of what legal theories the plaintiff wishes to pursue with respect

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to this claim and therefore cannot sufficiently respond to the complaint. (Doc. No. 5 at 7.) The

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complaint sporadically mentions discrimination on the basis of sex, race, color, sexual

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harassment, and retaliation, without making intelligible whether plaintiff intends to pursue some

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or all of these theories of discrimination. Because different requirements and defenses are

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applicable depending on what basis plaintiff grounds his Title VII claim, defendant’s motion for

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more definite statement with respect to this cause of action will therefore be granted.

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b. Violation of California Government Code §§ 12940–12950.1

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In his complaint plaintiff also lists a sixth cause of action brought under California

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Government Code §§ 12940–12950.1.4 (Doc. No. 1-1 ¶ 41.) Defendant avers that it lacks fair

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notice of what legal theories plaintiff wishes to pursue with respect to this claim and therefore

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cannot sufficiently respond to plaintiff’s complaint. (Doc. No. 5 at 7.) Sections 12940 through

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Plaintiff separately lists a fifth cause of action under the heading “Assembly Bill No. 2053,
Chapter 306.” (Doc. No. 1-1 ¶ 40.) The bill referred to was signed into law in September 2014
and went into effect in January 2015, amending California Civil Code § 12950.1 to require that
California employers with 50 or more employees provide training on the “prevention of abusive
conduct” along with the sexual harassment training already required by law. Because a claim
under Assembly Bill No. 2053, Chapter 306 is subsumed within plaintiff’s claim under California
Civil Code § 12950.1, the court will not separately address the former in this order.
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12950.1 represent no less than eighteen different provisions regulating various employment

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practices—including discrimination, temporary disability, medical leave, child care services,

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licensing boards, sterilization, retention of records, and sexual harassment—some of which have

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no apparent relevance to the facts as alleged in plaintiff’s complaint. The court finds that this

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cause of action is too broad and wide-ranging as presently alleged to alert defendant to the claims

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that plaintiff wishes to pursue. Defendant’s motion for a more definite statement with respect to

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plaintiff’s claims under California Government Code §§ 12940–12950.1 will, therefore, also be

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granted.

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c. Violation of California Civil Code §§ 45–47

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Finally, plaintiff alleges a fourth cause of action brought under California Civil Code §§

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45–47. (Doc. No. 1-1 ¶ 39.) These sections define libel, slander, and privileged publication or

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broadcast, respectively. Defendant argues that these claims are so vague and ambiguous that it

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cannot reasonably prepare a response. (Doc. No. 5 at 7.) The court agrees. The relevance of

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each of these sections is not apparent from the face of plaintiff’s complaint. Defendant’s motion

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for more definite statement as to plaintiff’s cause of action under California Civil Code §§ 45–47

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will also be granted.

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CONCLUSION

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For the reasons set forth above:

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1. Defendant’s motion to dismiss (Doc. No. 5) is granted;

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2. Defendant’s motion for a more definite statement (Doc. No. 5) is granted;

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3. Plaintiff is granted leave to file an amended complaint with respect to his claim based

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upon alleged violation of the provisions of the employee handbook and providing a more

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4. definite statement clarifying his allegations pursuant to Title VII, California Government
Code §§ 12940–12950.1, and California Civil Code §§ 45–47.5

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5. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint and his failure to comply with this order will result in the dismissal of this

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action.

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IT IS SO ORDERED.

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Dated:

November 21, 2017
UNITED STATES DISTRICT JUDGE

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Plaintiff is advised that the court cannot refer to a prior pleading in order to make an amended
complaint complete. Local Rule 220 requires any amended complaint to be complete in itself
without reference to prior pleadings. The amended complaint will supersede the original
complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Thus, in any amended complaint
plaintiff elects to file, he must include concise but complete factual allegations describing the
conduct and events which underlie his claims and provide a more definite statement of those
claims as indicated above.
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