Robinson v. HD Supply, Inc.

Filing 18

ORDER signed by Judge Garland E. Burrell, Jr., on 7/3/12 ORDERING that the dismissal motion 6 is granted in part and denied in part. Robinson is GRANTED 10 days from date on which this order is filed to file a First Amended Complaint in which he addresses the deficiencies in any dismissed claim. (Kastilahn, A)

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6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE EASTERN DISTRICT OF CALIFORNIA

8
9

KRIS ROBINSON,
Plaintiff,

10
v.

11
12

HD SUPPLY, INC.,

13

Defendant.
________________________________

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2:12-cv-00604-GEB-CKD
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
DISMISSAL MOTION

14
15

Defendant HD Supply, Inc. (“HD Supply”) moves under Federal

16

Rule of Civil Procedure (“Rule”) 12(b)(6) for dismissal of Plaintiff’s

17

complaint. Plaintiff Kris Robinson (“Robinson”) filed an opposition

18

brief.
I. LEGAL STANDARD

19
20

Decision

on

HD

Supply’s

Rule

12(b)(6)

dismissal motion

21

requires determination of “whether the complaint’s factual allegations,

22

together with all reasonable inferences, state a plausible claim for

23

relief.” Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., 637 F.3d 1047,

24

1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79

25

(2009)). “A claim has facial plausibility when the plaintiff pleads

26

factual content that allows the court to draw the reasonable inference

27

that the defendant is liable for the misconduct alleged.” Iqbal, 556

28
1

1

U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

2

(2007)).

3

When determining the sufficiency of a claim, “[w]e accept

4

factual allegations in the complaint as true and construe the pleadings

5

in the light most favorable to the non-moving party[; however, this

6

tenet does not apply to] . . . legal conclusions . . . cast in the form

7

of factual allegations.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.

8

2011) (citation and internal quotation marks omitted). “Therefore,

9

conclusory

allegations

of

law

and

unwarranted

inferences

are

10

insufficient to defeat a motion to dismiss.” Id. (citation and internal

11

quotation marks omitted); see also Iqbal, 556 U.S. at 678 (quoting

12

Twombly, 550 U.S. at 555) (stating “[a] pleading that offers ‘labels and

13

conclusions’ or ‘a formulaic recitation of the elements of a cause of

14

action will not do’”).

15

II. REQUEST FOR JUDICIAL NOTICE

16

HD Supply requests that judicial notice be taken of the

17

administrative complaint Robinson filed with the California Department

18

of Fair Employment and Housing (“DFEH”). (Def.’s Request for Judicial

19

Notice

20

referenced in a complaint but not explicitly incorporated therein if the

21

complaint relies on the document and its authenticity is unquestioned.”

22

Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). Since Robinson

23

alleges in his civil complaint that he exhausted administrative remedies

24

applicable to his California Fair Employment and Housing Act (“FEHA”)

25

claims and does not dispute the authenticity of the document of which HD

26

Supply seeks judicial notice, this document is considered under the

27

incorporation by reference principle.

28

//

(“RJN”)

Ex.

A.)

However,

“a

2

court

may

consider

a

writing

1

HD Supply also requests that judicial notice be taken of

2

“[t]he driving distance between the city centers of Sacramento and

3

Salinas,

4

distance.” (Def.’s RJN 2:8-9.) However, in light of the issues decided

5

in this motion, this request is denied because these facts have no

6

bearing on the decision. See Ventura Mobilehome Communities Owners Ass’n

7

v. City of San Buenaventura, 371 F.3d 1046, 1052 n.5 (9th Cir. 2004)

8

(denying judicial notice request where the facts “d[id] not alter . . .

9

determination of the case”).

California,

10

and

the

time[]

it

would

take

to

drive

that

III. ROBINSON’S ALLEGATIONS

11

This case concerns Robinson’s termination from employment with

12

HD

13

Transportation Manager with HD Supply from March 2008 to February 2010,

14

and that “his job duties included . . . scheduling truck drivers and

15

coordinating pick-ups and deliveries throughout Northern California.”

16

(Pl.’s Compl. (“Compl.”) ¶¶ 7-8.)

Supply.

Robinson

alleges

he

was

employed

as

an

Assistant

17

Robinson alleges that “[o]n or about January 11, 2010, [he]

18

informed Mary Sullivan [(‘Sullivan’)], [HD Supply’s] Distribution Center

19

Manager and [his] immediate supervisor, that he had recently been

20

diagnosed with Post Traumatic Stress Disorder (‘PTSD’) as a result of

21

events that occurred during his overseas service in the United States

22

Marine Corps.” Id. ¶ 10. Robinson alleges that “on or about January 20,

23

2010, [Sullivan] instructed [him] to locate a driver who would be able

24

to make a delivery from Sacramento to Salinas on short notice.” Id. ¶

25

12. “[Robinson] was concerned about this instruction . . . because he

26

knew that, based on the distance between these locations, this delivery

27

route

28

Transportation Hours-of-Service Regulations[,] . . . [which] require,

would

necessitate

a

violation

3

of

the

U.S.

Department

of

1

inter alia, that employers . . . only permit their drivers to drive for

2

a maximum of 11 hours after 10 consecutive hours off duty.” Id.

3

Robinson alleges he “shared his concern with [Sullivan], who

4

refused

5

consulted with [HD Supply’s] Regional Transportation Manager, Bruce

6

Gagon [(‘Gagon’)], and informed him of the situation.” Id. “When making

7

this complaint, [Robinson] also suggested an alternative method of

8

accomplishing

9

Transportation Regulations.” Id.

10

to

rescind

her

the

Robinson

order.”

delivery

alleges

Id.

without

“[Gagon]

¶

13.

“Thereafter,

violating

advised

any

[him]

[Robinson]

Department

that

if

he

of

was

11

uncomfortable with the instruction, he should ask [Sullivan] to issue

12

the order herself.” Id. ¶ 14. Robinson further alleges he “complied with

13

this direction from [Gagon] and refused to issue the non-compliant

14

order.” Id. Robinson alleges “[Sullivan] . . . told [him] that he would

15

be disciplined for insubordination if he maintained his refusal to

16

execute the order.” Id. ¶ 15. Robinson alleges “[Sullivan’s] . . .

17

threat to discipline [him] unless he participated in a practice that he

18

knew violated Federal law caused [him] extreme stress and anxiety[,]

19

. . . [which] exacerbated [his] pre-existing PTSD[.]” Id. ¶ 16. Robinson

20

alleges

21

[Sullivan] created, [Robinson] decided to take a walk in the warehouse

22

in order to calm down.” Id. ¶ 17. Robinson alleges that “[b]ased on

23

[this] incident, [he] was suspended indefinitely.” Id. ¶ 18.

that

“[i]n

an

attempt

to

defuse

the

volatile

situation

24

Robinson alleges that “[b]ecause of the stress the suspension

25

caused him, [he] visited his physician’s office and received a note from

26

[a] Nurse Practitioner . . . prescribing he take a 10-working-day leave

27

of absence.” Id. ¶ 19. Robinson alleges that “[i]mmediately upon his

28

return [to work on February 9, 2010], [Sullivan] continued to discipline
4

1

[him]

2

Robinson alleges “[HD Supply] summarily terminated [his] employment the

3

next day, February 10, 2010[.]” Id. ¶ 22.

for

his

alleged

pre-suspension

insubordination.”

Id.

¶

21.

4

Robinson alleges that “[o]n or about March 22, 2010, [he] duly

5

presented a discrimination and harassment Complaint against [HD Supply]

6

to the [DFEH] . . . in compliance with the requirements of [FEHA.]” Id.

7

¶ 6. Robinson alleges the following in the administrative complaint he

8

submitted to the DFEH:

9
10

I believe I was suspended and my employment was
terminated because of my disability (post traumatic
stress disorder). My belief is based on the
following:

11
12

A. On approximately January 11, 2010, I informed
Mary Sullivan . . . that I was diagnosed with
[PTSD].

13
14
15

B. On January 20, 2010, I was informed by Mary
Sullivan . . . that I was being suspended. Other
managers have committed infractions and were not
suspended. Therefore, I believe I was suspended
because of my disability[.]

16
17

C. On January 25, 2010, I was placed off work by my
physician.

18

D. On February 9, 2010, I returned to work.

19

E. On February 10, 2010, I was informed by Mary
Sullivan . . . that my employment was being
terminated for insubordination. Other managers have
committed
infraction[s]
and
have
not
been
terminated. Therefore, I believe I was terminated
because of my disability[.]

20
21
22
23

(Def.’s RJN Ex. A.) Robinson alleges “DFEH issue[d] a Right-to-Sue

24

Notice . . . on January 25, 2011[,]” which Robinson attached to his

25

civil complaint. (Compl. ¶ 6 & Ex. A.)

26

Robinson

alleges

in

his

civil

complaint

that

HD

Supply

27

violated FEHA by discriminating against him because of his disability;

28

failing to provide a reasonable accommodation; failing to engage in the
5

1

interactive process; and failing to prevent discrimination. (Compl. ¶¶

2

38, 40, 48-57 & 74-75.) Robinson also alleges HD Supply violated

3

California Labor Code sections 1102.5 and 98.6 by terminating his

4

employment in retaliation for his refusal to follow Sullivan’s order,

5

which Robinson alleges would have required him to violate federal law.

6

Id. ¶ 66. Robinson further alleges HD Supply’s termination of his

7

employment

8

discrimination and retaliation. Id. ¶¶ 27-31. Robinson also alleges a

9

claim for negligent hiring and retention. Id. ¶¶ 81-82.

violated

California

10
11

public

policy

against

disability

IV. DISCUSSION
A. Failure to Exhaust Administrative Remedies

12

HD Supply argues the following claims should be dismissed

13

since

14

applicable to these claims: retaliation under Labor Code sections 1102.5

15

and 98.6; and FEHA claims for failure to provide him with a reasonable

16

accommodation and an interactive process, and to prevent discrimination

17

to which he was subjected. (Def.’s Mot. to Dismiss (“Mot.”) 11:19-21.)

18

“[T]he rule [of exhaustion of administrative remedies] is that where an

19

administrative remedy is provided by statute, relief must be sought from

20

the administrative body and this remedy exhausted before the courts will

21

act.” Campbell v. Regents of Univ. of Cal., 35 Cal. 4th 311, 321 (2005)

22

(internal quotation marks and citation omitted). HD Supply argues:

23
24
25
26
27
28

“[Robinson]

failed

to

exhaust

his

administrative

[Robinson’s] administrative complaint is based upon
a claim that his employment was terminated because
of an alleged mental disability. The administrative
complaint does not contain any claims or facts that
an adverse action was taken against [him] for
retaliatory purposes or that HD [Supply] failed to
accommodate [him regarding his disability], failed
to engage in the interactive process, or failed to
prevent discriminatory acts.
(Mot. 11:14-19.)
6

remedies”

1

1. Retaliation Claim

2

Robinson argues in his opposition brief:

3

6

[The] Retaliation claim is based on violations of
[Labor Code sections] 1102.5 and 98.6, and not the
FEHA. Therefore, there is no FEHA-based exhaustion
requirement for the Retaliation [claim]. For this
reason,
[Robinson]
will
not
offer
further
opposition to [HD Supply’s] ‘failure to exhaust’
argument [regarding] the Retaliation claim.

7

(Pl.’s Opp’n (“Opp’n”) p.5 n.1.) HD Supply rejoins that “[s]ections 98.6

8

and

9

[administrative r]emedies.” (Def.’s Reply 1:24-2:18.)

4
5

1102.5

of

the

Labor

Code

[r]equire

an

[e]xhaustion

of

10

Section 1102.5(c) proscribes “[a]n employer . . . [from]

11

retaliat[ing] against an employee for refusing to participate in an

12

activity that would result in a violation of state or federal statute,”

13

and “[r]emedies for [section] 1102.5 are specifically found in [section]

14

98.6(b)[.]”

15

CV-F-08-1250, 2010 WL 2465418, at *2 (E.D. Cal. June 15, 2010). “[I]n

16

order to bring a claim under section 1102.5 . . . , plaintiff must

17

exhaust his administrative remedies.” Lund v. Leprino Foods Co., No.

18

CIV. S-06-0431, 2007 WL 1775474, at *4 (E.D. Cal. June 20, 2007) (citing

19

Campbell, 35 Cal. 4th at 333). Since Robinson fails to allege he

20

exhausted his administrative remedies applicable to his retaliation

21

claim, this claim is dismissed.

22

Manser

v.

Sierra

Foothills

Pub.

Util.

Dist.,

No.

2. Failure to Provide a Reasonable Accommodation and Failure to

23

Engage in the Interactive Process Claims

24

Robinson

argues

he

exhausted

his

administrative

remedies

25

applicable to his FEHA claims, because his allegations that HD Supply

26

failed to provide him with a reasonable accommodation and an interactive

27

process

28

discrimination claims in his administrative complaint. (Opp’n 5:12-7:3.)

are

“like

or

reasonably

7

related”

to

the

disability

1

“In order to bring a civil action under FEHA, the aggrieved

2

person must exhaust the administrative remedies provided by law . . .

3

[by] filing a written charge with DFEH . . . and obtaining notice from

4

DFEH of the right to sue.” Rodriguez v. Airborne Express, 265 F.3d 890,

5

896 (9th Cir. 2001) (internal quotation marks and citations omitted).

6

The scope of the administrative [complaint] defines
the scope of the subsequent civil action, and
unlawful conduct not included in an administrative
complaint is not considered by a court unless the
conduct is like or reasonably related to the
allegations in the administrative complaint, or can
reasonably be expected to grow out of an
administrative investigation.

7
8
9
10
11

Lelaind v. City & Cnty. of San Francisco, 576 F. Supp. 2d 1079, 1090

12

(N.D. Cal. 2008) (citations omitted). Further, where “additional claims

13

[in the civil complaint] . . . stem from the [same conduct] identified

14

in the [administrative] complaint, [the additional claims] would have

15

been uncovered during the course of a DFEH investigation.” Ramirez v.

16

Silgan Containers, No. CIV F 07-0091, 2007 WL 1241829, at *5 (E.D. Cal.

17

Apr. 26, 2007).

18

Here, Robinson alleged in his administrative complaint that he

19

informed Sullivan that he had been diagnosed with PTSD and that he was

20

terminated because of this disability approximately one month later.

21

(Def.’s RJN Ex. A.) Since Robinson’s claims alleging failure to provide

22

a reasonable accommodation and an interactive process stem from the same

23

conduct alleged in Robinson’s administrative complaint, these claims

24

probably

25

investigation. Therefore, these claims “are reasonably . . . related to

26

the conduct identified in the administrative charge[,]” and HD Supply

27

has not demonstrated that Robinson failed to exhaust his administrative

would

have

been

uncovered

28
8

during

the

course

of

a

DFEH

1

remedies applicable to these claims. Ramirez, 2007 WL 1241829, at *5

2

(citations omitted).

3

3. Failure to Prevent Discrimination Claim

4

HD Supply argues Robinson failed to exhaust his administrative

5

remedies applicable to his failure to prevent discrimination FEHA claim.

6

(Mot.

7

opposition brief. Since Robinson did not allege in his administrative

8

complaint that HD Supply failed to prevent discrimination, and since

9

Robinson has not demonstrated that he has exhausted his administrative

11:14-21.)

Robinson

does

not

address

this

argument

10

his

remedies applicable to this claim, this claim is dismissed.

11

in

B. Disability Discrimination Claim

12

HD Supply argues, inter alia:

13

[FEHA]
does
not
prohibit
an
employer
from
discharging an employee that is unable to perform
his . . . essential duties because of his . . .
mental
disability
even
with
reasonable
accommodation. In this regard, [Robinson] fails to
allege 1) that his PTSD condition affected his
ability to perform his essential duties of
dispatching drivers[;] and 2) that his PTSD
required
an
accommodation
to
perform
those
essential duties.

14
15
16
17
18
19

(Mot. 14:7-12.) Robinson counters that “[e]ven if this were true . . . ,

20

[it] would not be a valid ground upon which to base a motion to dismiss

21

[a] claim for disability discrimination.” (Opp’n p.8 n.2.)

22

“[A] prima facie case [of disability discrimination] requires

23

the plaintiff to show he . . . (1) suffered from a disability . . . ;

24

(2) could perform the essential duties of the job with or without

25

reasonable

26

employment action because of the disability[.]” Wills v. Super. Ct. of

27

Orange Cnty., 195 Cal. App. 4th 143, 159-60 (2011) (internal quotation

28

marks and citations omitted). Here, Robinson does not allege facts

accommodations[;]

and

(3)

9

was

subjected

to

an

adverse

1

supporting drawing a reasonable inference that he “could perform the

2

essential

3

accommodation[].” Id. Therefore, his disability discrimination claim is

4

dismissed.

5

C. Failure to Provide a Reasonable Accommodation and Failure to Engage

6

duties

of

[his]

job

with

or

without

reasonable

in the Interactive Process Claims

7

HD Supply argues Robinson fails to state viable failure to

8

provide

9

interactive process claims, since “[FEHA] requires that the employee

10

initiate the [interactive] process . . . [and Robinson] does not allege

11

that

12

accommodation.” (Mot. 16:16-19.) HD Supply also argues “[Robinson] does

13

not allege that he informed Sullivan, Gagon, or HD [Supply] of [his]

14

medical leave of absence.” Id. at 7 n.8. Robinson counters that an

15

employer’s “duty [to accommodate a disabled employee] arises even if the

16

employee has not requested any accommodation, so long as the employer is

17

aware of the disability.” (Opp’n 12:11-12.)

a

he

reasonable

sought

out

accommodation

or

initiated

and

a

failure

request

to

engage

for

a

in

the

reasonable

18

FEHA proscribes an employer from “fail[ing] to make reasonable

19

accommodation for the known . . . mental disability of an . . .

20

employee.” Cal. Gov’t Code § 12940(m). FEHA also imposes a duty on the

21

employer “to engage in a timely, good faith, interactive process with

22

the

23

reasonable

24

reasonable accommodation by an employee . . . with a known . . . mental

25

disability.” Id. § 12940(n). Therefore, “[t]he duties of employers under

26

[sections] 12940(m) and 12940(n) are inextricably linked.” Kelley v.

27

Corrections Corp. of Am., 750 F. Supp. 2d 1132, 1140 (E.D. Cal. 2010)

28

(citation omitted).

employee

.

.

.

[for

accommodations,

the
if

purpose
any,

10

in

of]

determin[ing]

response

to

a

effective

request

for

1

“The employee bears the burden of giving the employer notice

2

of his . . . disability. Although no particular form of request is

3

required,

4

employee’s handicap does not arise until the employer is aware of [the

5

employee’s] disability and [related] limitations.” Avila v. Cont’l

6

Airlines,

Inc.,

7

quotation

marks,

8

Therefore, “[t]he interactive process is triggered either by a request

9

for

the

duty

of

165

an

Cal.

employer

App.

citations,

accommodation

by

a

4th

reasonably

to

1252-53

alteration

and

1237,

in

disabled

employee

accommodate

an

(internal

original

or

(2008)

omitted).

by

the

employer’s

10

recognition of the need for such an accommodation.” Barnett v. U.S. Air,

11

Inc., 228 F.3d 1105, 1112 (9th Cir. 2000), vacated in part on other

12

grounds, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).

13

Here, Robinson fails to allege facts supporting drawing a

14

reasonable inference that HD Supply was aware of a need to engage in the

15

interactive

16

disability. Therefore, these claims are dismissed.

17

D. Wrongful Termination in Violation of Public Policy Claims

18

process

and

to

accommodate

Robinson’s

alleged

mental

HD Supply argues Robinson’s “wrongful termination [claims are]

19

based

20

employment

21

terminated his employment [in] retaliation.” (Mot. 15:19-22.) HD Supply

22

argues that since Robinson “fail[s] to allege sufficient facts to

23

constitute

24

derivative wrongful termination claims should also be dismissed. Id.

25

15:22-25. Robinson counters that “[t]o the extent [his] underlying

26

claims

27

claim[s].” (Opp’n 11:26-27.)

28

//

upon

two

alleged

because

a

should

cause

not

of

of

activities:
his

mental

action

fail,

for

neither

11

1)

HD

[Supply]

disability;

either

should

and

terminated
2)

[underlying]

the

Wrongful

HD

his

[Supply]

claim,”

the

Termination

1

“To prevail on a claim of wrongful termination in violation of

2

public policy, a plaintiff employee must establish the existence of a

3

public policy, a nexus between [his] termination and the protected

4

activity related to that public policy, and damages resulting from the

5

termination.” Scheller v. Am. Med. Response, Inc., No. 1:08–CV–00798,

6

2010 WL 2991508, at *18 (E.D. Cal. July 28, 2010) (citation omitted).

7

“FEHA’s provisions prohibiting discrimination may provide the policy

8

basis for a claim for wrongful discharge in violation of public policy.”

9

Diaz v. Fed. Express Corp., 373 F. Supp. 2d 1034, 1065 (C.D. Cal. 2005)

10

(internal quotation marks and citation omitted). “[A] [v]iolation[] of

11

California Labor Code § 1102.5 can [also] support a [claim] for wrongful

12

termination in violation of public policy.” Ferretti v. Pfizer Inc., No.

13

11–CV–04486, 2012 WL 694513, at *7 (N.D. Cal. Feb. 29, 2012) (citation

14

omitted).

15

Since Robinson’s FEHA disability discrimination “claim fails,

16

his claim for wrongful termination in violation of public policy [based

17

on disability discrimination also] fails” and is dismissed. Hanson v.

18

Lucky Stores, Inc., 74 Cal. App. 4th 215, 229 (1999).

19

HD Supply argues Robinson’s wrongful termination in violation

20

of public policy claim based on retaliation should also be dismissed,

21

since “[Robinson] fails to state a claim for retaliation.” (Mot. 14:20-

22

21 & 15:17-25.) “To establish a prima facie case for retaliation under

23

[Labor Code] Section 1102.5, an employee must show (1) that he engaged

24

in protected activity, (2) that he was thereafter subjected to an

25

adverse employment action by his employer, and (3) that there was a

26

causal link between the protected activity and the adverse employment

27

action.” Love v. Motion Indus., Inc., 309 F. Supp. 2d 1128, 1134 (N.D.

28
12

1

Cal. 2004) (citing Morgan v. Regents of Univ. of Cal., 88 Cal. App. 4th

2

52, 69 (2000)).

3

HD Supply argues Robinson “has not established that he was

4

engaged in a protected activity” since he “alleges . . . there was an

5

alternative [to Sullivan’s order] that would not have violated any

6

[Department of Transportation] regulation[.]” (Mot. 15:2-4 & 15:8-14.)

7

However,

8

disciplined for insubordination if he . . . refus[ed] to execute [her]

9

order[,]” which Robinson alleges would have violated federal law.

10

(Compl. ¶¶ 12 & 15.) A reasonable inference can be drawn from this

11

allegation that Robinson’s refusal to carry out Sullivan’s order was

12

protected activity under Labor Code section 1102.5; therefore, HD Supply

13

has not demonstrated that Robinson’s wrongful termination claim based on

14

the

15

dismissed.

16

E. Negligent Hiring and Retention Claim

Robinson

public

policy

alleges

stated

Sullivan

in

Labor

“told

Code

[him]

section

that

he

1102.5

would

should

be

be

17

HD Supply argues “[Robinson] has failed to state a claim for

18

negligent hiring and retention[,]” since “[t]here are no facts alleged

19

that create a reasonable inference that HD [Supply] knew or should have

20

know[n] that unidentified actors were incompetent or unfit.” (Mot. 18:5-

21

17.) Robinson counters that he alleges “he complained to [Gagon] . . .

22

about [Sullivan’s] insistence on his compliance with an unlawful order”

23

and “following his suspension, [Robinson] took a 10-working-day leave of

24

absence based on [Sullivan’s] conduct.” (Opp’n 13:23-26.) Robinson

25

argues “despite [HD Supply’s] knowledge of these facts, it permitted

26

[Sullivan] to resume her mistreatment of [Robinson] immediately upon his

27

return.” Id. 13:27-28.

28

//
13

1

“An

employer

may

be

liable

hiring

or

to

a

third

person

for

the

2

employer’s

3

incompetent or unfit.” Delfino v. Agilent Techs., Inc., 145 Cal. App.

4

4th 790, 815 (2006) (internal quotation marks and citation omitted).

5

“Negligence liability will be imposed upon the employer if it knew or

6

should have known that hiring [or retaining] the employee created a

7

particular risk or hazard and that particular harm materializes.” Id.

8

(internal quotation marks and citation omitted).

negligence

in

retaining

an

employee

who

is

9

Here, Robinson fails to allege facts supporting a reasonable

10

inference that “[HD Supply] knew or should have known that hiring [or

11

retaining

12

particular harm materialize[d].” Id. Therefore, this claim is dismissed.

13

V. CONCLUSION

Sullivan]

created

a

particular

risk

or

hazard

and

that

14

For the stated reasons, the dismissal motion is granted in

15

part and denied in part. Robinson is granted ten (10) days from date on

16

which this order is filed to file a First Amended Complaint in which he

17

addresses the deficiencies in any dismissed claim.

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Dated:

July 3, 2012

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21

GARLAND E. BURRELL, JR.
United States District Judge

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