McBroom v. Wal-Mart Stores, Inc. et al

Filing 14

MEMORANDUM and ORDER signed by District Judge Morrison C. England, Jr on 6/29/16 granting 4 Motion to Dismiss and denying 5 Motion to Remand and Attorney's Fees. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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COY MCBROOM,

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No. 2:15-cv-02648-MCE-EFB

Plaintiff,
v.

MEMORANDUM AND ORDER

WAL-MART STORES, INC.; STEVE
PROCTOR, an individual; and Does 1
through 25, inclusive,
Defendants.

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Plaintiff Coy McBroom (“Plaintiff”) seeks redress from his former employer,

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Defendant Wal-Mart Stores, Inc. (“Wal-Mart”) for alleged discrimination, harassment and

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wrongful termination. According to Plaintiff, he was harassed and ultimately fired

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following a workplace injury on May 7, 2014. Plaintiff’s former manager, Steve Proctor

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(“Proctor”), is also named as a defendant on grounds that he harassed Plaintiff prior to

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his termination. Plaintiff’s Complaint, initially filed in state court, was removed to this

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Court on diversity of citizenship grounds pursuant to 28 U.S.C. §§ 1332(a) and 1441(a).

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Two motions are presently before the Court. First, Plaintiff moves to remand this

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matter back to state court arguing that Proctor’s presence in this case destroys diversity

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and therefore deprives this Court of jurisdiction. Second, both Wal-Mart and Proctor

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move to dismiss Plaintiff’s Second Cause of Action for Disability Harassment in violation
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of the California Fair Employment and Housing Act (“FEHA”),1 the only cause of action

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directed at Proctor, pursuant to Federal Rule Civil Procedure 12(b)(6).2 According to

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Defendants, Plaintiff has failed to state a claim upon which relief can be granted

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because none of the acts alleged against them constitute the requisite “severe” or

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“pervasive” conduct needed for a viable FEHA harassment claim. For the reasons set

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forth below, Plaintiff’s Motion to Remand is DENIED, and Defendants’ request that the

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Second Cause of Action be dismissed, and that Proctor consequently be terminated as a

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Defendant, is GRANTED.3

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BACKGROUND

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Plaintiff was employed between October 13, 2007, and August 13, 2014, as an

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overnight maintenance associate at Wal-Mart’s Pleasant Grove store located in

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Roseville, California. Pl.’s Compl., ¶ 16. On May 7, 2014, Plaintiff sustained a

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workplace accident which resulted in injuries to his hip and elbow and necessitated

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immediate surgery. Id. at ¶ 18. According to Plaintiff, while Plaintiff was on medical

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leave, Proctor told him “that he did not want [Plaintiff] to return to work unless he could

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work like he did before his injury.” Id. at ¶ 19. On or about August 9, 2014, after

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Plaintiff’s doctor had released him to return to work with light duty restrictions, Plaintiff

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returned to work at Wal-Mart in a temporary basis as a “people greeter.” Plaintiff was

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terminated four days later. Id. at ¶¶ 20-21, 23.

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Plaintiff has sued Wal-Mart and Proctor on the basis of these admittedly sparse
allegations. Plaintiff’s Complaint, filed on or about November 16, 2015, in the Placer

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FEHA is codified at California Government Code § 12940, et seq., and Plaintiff’s specific
contentions with respect to disability harassment allege violations of § 12940(j).
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All further references to “Rule” or “Rules” are to the Federal Rules of Civil Procedure unless
otherwise noted.
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Having determined that oral argument would not be of material assistance, the Court ordered this
matter submitted on the briefs in accordance with Eastern District of California Local Rule 230(g).

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County Superior Court, was removed by Defendants on December 22, 2015. Despite

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the purported inclusion of Proctor, a California resident, as a defendant, Wal-Mart

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alleged that because Proctor was a “sham” defendant named as a party solely for

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purposes of defeating diversity, removal was nonetheless proper. Wal-Mart points to the

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fact that on the basis of the complaint, Proctor’s only claimed wrongdoing was to tell

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Plaintiff on one occasion that he should not return to work “unless he could work like he

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did before his injury.” According to Wal-Mart, a single allegation of that nature was

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insufficient to state the kind of pervasive and severe conduct required to establish an

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actionable harassment claim. Because Proctor is named as a Defendant only in a single

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cause of action for disability harassment, he alleges that Plaintiff cannot state a viable

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claim against him and that his presence in this lawsuit must be disregarded for diversity

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purposes.

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As indicated above, Plaintiff moves to remand his case back to Placer County

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arguing to the contrary that Proctor’s inclusion as a defendant is in fact proper and

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defeats diversity. Defendants concurrently move to dismiss the Second Cause of Action

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predicated on harassment under FEHA on taking the position that no actionable

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harassment can be pled against either Proctor or Wal-Mart. Defendants further request

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that Proctor be dismissed from this case in its entirety as an improperly joined defendant

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under Rule 21.

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STANDARD

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A. Motion to Remand

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When a case “of which the district courts of the United States have original

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jurisdiction” is initially brought in state court, the defendant may remove it to federal court

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“embracing the place where such action is pending.” 28 U.S.C. § 1441(a). There are

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two bases for federal subject matter jurisdiction: (1) federal question jurisdiction under

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28 U.S.C. § 1331, and (2) diversity jurisdiction under 28 U.S.C. § 1332. A district court
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has federal question jurisdiction in “all civil actions arising under the Constitution, laws,

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or treaties of the United States.” Id. § 1331. A district court has diversity jurisdiction

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“where the matter in controversy exceeds the sum or value of $75,000, . . . and is

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between citizens of different states, or citizens of a State and citizens or subjects of a

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foreign state . . . .” Id. § 1332(a)(1)-(2).

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A defendant may remove any civil action from state court to federal district court if

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the district court has original jurisdiction over the matter. 28 U.S.C. § 1441(a). “The

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party invoking the removal statute bears the burden of establishing federal jurisdiction.”

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Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988) (citing Williams v.

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Caterpillar Tractor Co., 786 F.2d 928, 940 (9th Cir. 1986)). Courts “strictly construe the

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removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th

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Cir. 1992) (internal citations omitted). “[I]f there is any doubt as to the right of removal in

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the first instance,” the motion for remand must be granted. Id.

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B. Motion to Dismiss

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On a motion to dismiss for failure to state a claim under Federal Rule of Civil

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Procedure 12(b)(6), all allegations of material fact must be accepted as true and

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construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Rule 8(a)(2) “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell

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Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

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47 (1957)). A complaint attacked by a Rule 12(b)(6) motion to dismiss does not require

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detailed factual allegations. However, “a plaintiff's obligation to provide the grounds of

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his entitlement to relief requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Id. (internal citations and

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quotations omitted). A court is not required to accept as true a “legal conclusion

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couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

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Twombly, 550 U.S. at 555). “Factual allegations must be enough to raise a right to relief
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above the speculative level.” Twombly, 550 U.S. at 555 (citing 5 Charles Alan Wright &

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Arthur R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004) (stating that the

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pleading must contain something more than “a statement of facts that merely creates a

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suspicion [of] a legally cognizable right of action”)).

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Furthermore, “Rule 8(a)(2) . . . requires a showing, rather than a blanket

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assertion, of entitlement to relief.” Twombly, 550 U.S. at 555 n.3 (internal citations and

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quotations omitted). Thus, “[w]ithout some factual allegation in the complaint, it is hard

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to see how a claimant could satisfy the requirements of providing not only ‘fair notice’ of

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the nature of the claim, but also ‘grounds' on which the claim rests.” Id. (citing Wright &

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Miller, supra, at 94, 95). A pleading must contain “only enough facts to state a claim to

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relief that is plausible on its face.” Id. at 570. If the “plaintiffs . . . have not nudged their

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claims across the line from conceivable to plausible, their complaint must be dismissed.”

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Id. However, “[a] well-pleaded complaint may proceed even if it strikes a savvy judge

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that actual proof of those facts is improbable, and ‘that a recovery is very remote and

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unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

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A court granting a motion to dismiss a complaint must then decide whether to

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grant leave to amend. Leave to amend should be “freely given” where there is no

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“undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice

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to the opposing party by virtue of allowance of the amendment, [or] futility of the

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amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Capital, LLC v.

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Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to

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be considered when deciding whether to grant leave to amend). Not all of these factors

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merit equal weight. Rather, “the consideration of prejudice to the opposing party . . .

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carries the greatest weight.” Id. (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183,

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185 (9th Cir. 1987)). Dismissal without leave to amend is proper only if it is clear that

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“the complaint could not be saved by any amendment.” Intri-Plex Techs. v. Crest Group,

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Inc., 499 F.3d 1048, 1056 (9th Cir. 2007) (citing In re Daou Sys., Inc., 411 F.3d 1006,

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1013 (9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir.
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1989) (“Leave need not be granted where the amendment of the complaint . . .

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constitutes an exercise in futility . . . .”)).

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ANALYSIS

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In order to state a prima facie case for harassment under FEHA, Plaintiff must

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show, inter alia, that: (1) he was a member of a protected class; 2) he was subjected to

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unwelcome harassment based on his membership in that class; and 3) the harassment

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unreasonably interfered with his work performance by creating an intimidating, hostile, or

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offensive work environment. Thompson v. City of Monrovia, 186 Cal. App. 4th 860, 876

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(2010). To be actionable, harassment must be “sufficiently severe or pervasive to alter

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the conditions of the victim’s employment.” Etter v. Veriflo Corp., 67 Cal. App. 4th 457,

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465 (1998). With respect to the requirement that harassment be pervasive, courts have

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held that recovery cannot be made for “harassment that is occasional, isolated, sporadic,

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or trivial; rather, the employee must show a concerted and repeated pattern of

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harassment of a repeated, routine, or a generalized nature.” Lyle v. Warner Bros.

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Television Prod., 38 Cal. 4th 264, 283 (2006) (citations omitted). In addition, “commonly

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necessary personnel management actions . . . do not come within the meaning of

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harassment. Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55, 64-65 (1996).

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Instead, actionable harassment requires “conduct presumably engaged in for personal

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gratification, because of meanness or bigotry, or for other personal motives.” Id. at 63.

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Harassment, then, does not include conduct simply necessary for the “performance of [a]

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supervisory employee’s job.” McKenna v. Permanente Medical Group, Inc.,

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894 F. Supp. 2d 1258, 1280-81 (E.D. Cal. 2012) (citing Reno v. Baird, 18 Cal. 4th 640,

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646-47 (1998)).

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Here, Plaintiff’s complaint states only that Proctor told him on a single occasion

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that he didn’t want him to return to work unless he could work like he did before being

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injured.4 Significantly, according to the Complaint, that statement was made while

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Plaintiff was on medical leave and consequently by Plaintiff’s own admission did not

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occur while he was actually working. Moreover, Proctor’s purported statement, on its

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face, pertains only to Plaintiff’s ability to work and not to some unrelated issue

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extraneous to his employment. Additionally, as indicated above, Plaintiff’s own

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Complaint makes it clear that he did in fact subsequently return to work in a light duty

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capacity prior to being terminated.

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In assessing whether the joinder of a party is deemed fraudulent and a “sham”
intended only to defeat diversity, courts look to whether the plaintiff fails to state a cause

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of action against the defendant in question, and whether that failure is “obvious

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according to the settled rules of the state.” Hunter v. Philip Morris USA, 582 F.3d 1039,

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1043 (9th Cir. 2009) (citing Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203,

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1206 (9th Cir. 2007)). Where a plaintiff has obviously failed to state any claim under

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such settled law, remand for lack of diversity would be improper. Morris v. Princess

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Cruises, Inc., 236 F.3d 1061, 1067-68 (9th Cir. 2001).

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The defendant bears the burden of showing fraudulent joinder, and simply

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alleging that a plaintiff has not pled sufficient facts to state a claim does not necessarily

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suffice if plaintiff could potentially amend the complaint to allege a viable claim.

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Birkhead v. Parker, 2012 WL 4902695 at *2-3 (N.D. Cal. Oct. 15, 2012). Nonetheless, if

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it is clear under state law that under no circumstance identified by a plaintiff could a

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viable claim be made against the defendant alleged to have been fraudulently joined,

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dismissal can still be appropriate. See Good v. Prudential, 5 F. Supp. 2d 804, 807 (N.D.

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Cal. 1998) (“[T]he defendant must demonstrate that there is no possibility the plaintiff will

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be able to establish a cause of action in State court against the alleged sham

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defendant.”).

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While Wal-Mart is also ostensibly named as a Defendant in Plaintiff’s disability harassment claim,
there are no allegations of harassment against Wal-Mart separate and apart from those alleged against
Proctor as Plaintiff’s manager. Therefore, the viability of Plaintiff’s claim against Wal-Mart necessarily
depends on whether a cognizable claim has been stated against Proctor.

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Although a defendant must show that that there is virtually no chance that plaintiff

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can state a viable claim in order to invoke fraudulent removal, that assessment must still

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be based largely on the allegations of the plaintiff’s complaint. Removability is therefore

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generally determined by the “four corners of the applicable pleadings, not through

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subjective knowledge or a duty to make further inquiry.” Harris v. Bankers Life and Cas.

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Co., 425 F.3d 689, 694 (9th Cir. 2005). Diversity jurisdiction should consequently be

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analyzed at the time the complaint is filed and removal is effectuated. Strotek Corp. v.

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Air Transp., Ass’n. of Am., 300 F.3d 1129, 1131 (9th Cir. 2002); Toth v. Guardian

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Industries Corp., 2012 WL 468244 at * 5 (E.D. Cal. Feb. 13, 2013) (“[T]he weight of

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authority holds that review of the complaint, even in fraudulent joinder cases, is

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constrained to the facts actually alleged therein.”).

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Contending that Proctor told him on a single occasion that he should not return to

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work unless he could work like he did before the injury does not take Plaintiff’s

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allegations beyond the realm of an “isolated” comment insufficient for purposes of

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disability harassment. Instead, as indicated above, actionable conduct in this regard

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must be “sufficiently severe or pervasive to alter the conditions of employment and

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create an abusive work environment.” Fisher v. San Pedro Peninsula Hosp.,

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214 Cal. App. 3d. 590, 609 (1989) (citations omitted). “California courts looks to several

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factors in making this determination under FEHA, including “the frequency of the

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discriminatory conduct; its severity; whether it is physically threatening or humiliating, or

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

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work performance.” Niami v. Fed. Express Print Servs., Inc., 2010 WL 958045 at *6

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(N.D. Cal. Mar. 12, 2010) (citing Miller v. Dept. of Corrections, 36 Cal. 4th 446, 462

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(2005). Here, the single statement made by Proctor simply fails to establish, as it must

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to be actionable, “a concerted pattern” of “repeated” harassment. Lyle v. Warner Bros.,

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38 Cal. 4th at 283.

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This conclusion would not change even were the Court to consider the additional
allegations that Plaintiff claims would bolster his harassment claim against Proctor.
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Plaintiff states he can amend his Complaint to show that Proctor “repeatedly” or on

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“several occasions” made such comments. Those allegations, however, do not save

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Plaintiff’s harassment claim. First, Plaintiff specifically indicates that these comments

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were made while Plaintiff was on leave and therefore did not occur in the workplace

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itself. See Pl.’s Opp. to Mot. to Dism., ECF No. 6, 5:20-21; 7:24-27. Since Plaintiff was

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not even working at the time the comments purportedly occurred, it is difficult to envision

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how they could have created an “abusive work environment” that “altered the conditions”

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of Plaintiff’s employment. Fisher, 214 Cal. App. 3d at 609. Moreover, the fact that

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Plaintiff did ultimately return to work in a light-duty position belies any apparent

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contention that Proctor’s alleged comments while Plaintiff was on medical leave

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fundamentally changed the conditions of his employment.

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Significantly, too, Proctor’s comments about Plaintiff related to his work

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performance in any event, and there is no evidence that Proctor made them, as

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harassment would require, “for personal gratification, because of meanness or bigotry, or

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for other personal motives.” Janken v. GM Hughes Elecs., 46 Cal. App. 4th at 63. While

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an individual employee can be held liable for “harassing behavior that is outside or

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extraneous to his job duties” (Medrano v. Genco Supply Chain Solutions, 2011 WL

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92016 at *4 (E.D. Cal. Jan. 11, 2011)), conduct necessary to a supervisor’s job

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performance cannot, as a matter of law, constitute such harassment. Chau v. EMC

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Corp., 2014 WL 842579 at *3 (N.D. Cal. Feb. 28, 2014). Here, even if Proctor did make

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a comment or comments as Plaintiff has alleged, they would have occurred in the

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context of his supervisory role as relating to Plaintiff’s return to work. There is simply no

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indication they were made for Proctor’s own untoward personal purposes so as to

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constitute actual harassment.5

Absent any such showing, Proctor is not a viable party

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While the Court recognizes that, under the right circumstances, even a single harassing act by a
supervisor may be sufficient to support a viable harassment claim (see, e.g., Dee v. Vintage Petroleum,
Inc., 106 Cal. App. 4th 30, 36 (2003)), the cases allowing a single objectionable remark to qualify in this
regard are clearly distinguishable from the present matter. Dee, for example, involved an unmistakable
ethnic slur directed by a supervisor to an employee under his management. Here, on the other hand, no
such plainly egregious statement is involved.

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to Plaintiff’s harassment claim and may properly be deemed a “sham” defendant to this

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lawsuit. See Mendoza v. Staples, Inc., 2014 WL 6670221 (C.D. Cal. Nov. 24, 2014)

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(Where all allegations of harassment involved personal management issues and did not

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allege facts suggesting the conduct was for personal gratification or out of meanness or

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bigotry, remand was improper.).

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This is not to rule out any conclusion that Proctor’s comments, or Wal-Mart’s

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ultimate decision to terminate Plaintiff shortly after he returned to work on a light-duty

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basis, were ultimately discriminatory. Although discriminatory management decisions

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may ultimately be found actionable on that basis, that does not mean that discriminatory

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acts also necessarily amount to harassment. Harassment, as indicated above, consists

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of conduct outside the scope of a supervisor’s job performance and this distinction

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means that harassment and discrimination are differentially treated under FEHA since

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they involve two distinct wrongs. See Roby v. McKesson Corp., 47 Cal. 4th 686, 707

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(2009).

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For all these reasons, Plaintiff’s Motion to Remand fails. The court finds that

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Proctor’s inclusion in this lawsuit, as a named defendant in the disability harassment

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cause of action, must be disregarded since Proctor is a “sham” defendant. Defendant’s

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Motion to Dismiss, however, is well taken for the same reasons that Plaintiff’s bid for

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remand must be denied. Plaintiff’s only ground for disability harassment, as alleged in

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the Second Cause of Action, rests with Proctor’s allegedly objectionable comment or

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comments about Plaintiff returning to work, which the Court has already concluded

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cannot suffice to state a viable claim. Moreover, because the Court has also determined

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that Proctor is a “sham” defendant, he is also entitled to be dismissed from this action

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under Rule 21, which authorizes the dismissal of an improperly joined party.

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CONCLUSION

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Given all the foregoing, Plaintiff’s Motion for Remand and Attorney’s Fees6 (ECF

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No. 5) is DENIED. Defendants’ Motion to Dismiss (ECF No. 4), however, is GRANTED

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in its entirety as to Plaintiff’s Second Cause of Action and with respect to Defendant

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Proctor’s inclusion in this lawsuit. Because the Court does not believe that the

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Complaint’s shortcomings in that regard can be cured through amendment, no leave to

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amend will be permitted.

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IT IS SO ORDERED.
Dated: June 29, 2016

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Plaintiff’s request for attorney’s fees is based upon the argument that Defendants’ removal was
objectively unreasonable, which the Court has clearly rejected in finding that Proctor was indeed a “sham”
defendant.

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