Broadnax v. Adams & Associates, Inc.

Filing 35

ORDER signed by District Judge Troy L. Nunley on 08/13/18 GRANTING 29 Motion to Dismiss with prejudice. CASE CLOSED (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHEILA BROADNAX,

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Plaintiff,

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No. 2:16-cv-00289-TLN-KJN

v.
ADAMS & ASSOCIATES, INC.,

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS PLAINTIFF’S
FIRST AMENDED COMPLAINT

Defendant.

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This matter is before the Court pursuant to Defendant Adams & Associates, Inc.’s

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(“Defendant”) Motion to Dismiss Plaintiff’s First Amended Complaint. (ECF No. 29.) Plaintiff

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Sheila Broadnax (“Plaintiff”) opposes the motion. (ECF No. 30.) Defendant has filed a reply.

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(ECF No. 32.) For the reasons detailed below, the Court hereby GRANTS Defendant’s Motion to

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Dismiss, (ECF No. 29), with prejudice.

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I.

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Plaintiff was employed as a Residential Advisor for Sacramento Job Corps Center

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(“SJCC”), a career development facility for at-risk young adults. (ECF No. 28 ¶¶ 9–10.) Plaintiff

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is an African American female over 40 years of age. (ECF No. 28 ¶¶ 45, 53, 62.) Plaintiff

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alleges during her 12-year tenure at SJCC she had no disciplinary history and worked “with

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support and praise from her supervisors.” (ECF No. 28 ¶ 11.) Plaintiff alleges she was an active

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member of California Federation of Teachers Union (“CFTU”). (ECF No. 28 ¶ 12.)

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FACTUAL AND PROCEDURAL BACKGROUND

In February 2014, Defendant became the new managing corporation of SJCC. (ECF No.

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28 ¶¶ 13–14.) Defendant evaluated all SJCC employees and rehired some, including Plaintiff

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who was rehired as a Residential Advisor in March 2014. (ECF No. 28 ¶¶ 20–22.) Defendant

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fired Plaintiff in April 2014 for “sleeping on the job, failing to follow directives, and poorly

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performing tasks at work.” (ECF No. 28 ¶¶ 23–25.) Plaintiff alleges Defendant “used a single

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incident where she closed her eyes while entering time on her timecard as grounds to falsely

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accuse her of sleeping at work.” (ECF No. 28 ¶ 28.) Plaintiff alleges she was not provided with

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any progressive discipline or process. (ECF No. 28 ¶ 28.) Plaintiff alleges she “complained

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personally and through her union representation” that the reason for her firing was false and she

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believed she was fired because she is a minority and an “older woman.” (ECF No. 28 ¶¶ 35–36.)

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Plaintiff alleges she saw Defendant give differential discipline to other employees based

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on their age, race, and gender, including termination “while Caucasian, younger, and male

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employees were given either no discipline or were provided only a verbal warning.” (ECF No. 28

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¶ 33.) Plaintiff alleges she was “informed” that “other employees who were similarly situated as

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members of protected classes faced similar treatment and discrimination.” (ECF No. 28 ¶ 34.)

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Defendant then moved for judgment on the pleadings contending that Plaintiff fails to

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state any claim on which relief can be granted. (ECF No. 18 at 7.) The Court granted

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Defendant’s motion as to all claims and granted Plaintiff leave to amend her complaint. (ECF

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No. 27.) Plaintiff amended her complaint, alleging the same seven claims for violations of

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California’s Fair Employment and Housing Act (“FEHA”) and common law. (ECF No. 28.)

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Defendant moves to dismiss for failure to state a claim. (ECF No. 29.)
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II.

STANDARD OF LAW

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

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12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 350 F.3d 729, 732 (9th Cir.

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2001). Federal Rule of Civil Procedure 8(a) requires that a pleading contain “a short and plain

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statement of the claim showing that the pleader is entitled to relief.” On a motion to dismiss, the

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factual allegations of the complaint are assumed to be true. Cruz v. Beto, 405 U.S. 319, 322

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(1972). A court is bound to give plaintiff the benefit of every reasonable inference to be drawn

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from the well-pleaded allegations of the complaint. Retail Clerks Int’l Ass’n v. Schermerhorn,

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373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege “‘specific facts’ beyond those necessary

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to state his claim and the grounds showing entitlement to relief.” Bell Atlantic v. Twombly, 550

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U.S. 544, 570 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2009)). “A claim

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has facial plausibility when the pleaded factual content allows the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

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662, 678–79 (citing Twombly, 550 U.S. at 556).

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Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of

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factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir.

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1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an

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unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A

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pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

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(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”). Additionally, it is inappropriate to assume that the plaintiff “can

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prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that

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have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of

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Carpenters, 459 U.S. 519, 526 (1983).

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Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough

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facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting

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Twombly, 550 U.S. at 570). While the plausibility requirement is not akin to a probability
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requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.”

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Id. at 678. This plausibility inquiry is “a context-specific task that requires the reviewing court to

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draw on its judicial experience and common sense.” Id. at 679.

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In deciding a motion to dismiss, the court may consider only the complaint, any exhibits

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thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201.

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See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v.

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Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998).

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If a complaint fails to state a plausible claim, “[a] district court should grant leave to amend even

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if no request to amend the pleading was made, unless it determines that the pleading could not

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possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.

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2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)); see also

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Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in denying

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leave to amend when amendment would be futile). Although a court should freely give leave to

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amend when justice so requires under Federal Rule of Civil Procedure 15(a)(2), “the court’s

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discretion to deny such leave is ‘particularly broad’ where the plaintiff has previously amended

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its complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir.

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2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).

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III.

ANALYSIS

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Defendant argues Plaintiff failed to allege sufficient facts. (ECF No. 29 at 3.)

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A.

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Plaintiff alleges Defendant discriminated against her due to her age, sex, and race by

Discrimination in Violation of California Government Code § 12940(a)

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wrongfully firing her because she is an African American woman over 40. (ECF No. 28 ¶¶ 45–

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46, 54–55, 63–64.) To state a FEHA discrimination claim, a plaintiff must allege she suffered an

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adverse employment action and the employer acted with a discriminatory motive. Ayala v. Frito

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Lay, Inc., 2017 WL 2833401, at *7 (E.D. Cal. June 30, 2017) (citing Lawler v. Montblanc N. Am.,

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LLC, 704 F.3d 1235, 1242 (9th Cir. 2013)). A plaintiff can demonstrate discriminatory motive by

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showing “other similarly situated employees outside of the protected class were treated more

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favorably.” Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 800 (N.D. Cal. July 14, 2015).
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Plaintiff’s only factual allegations in support of her claim are that she had no disciplinary

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history before Defendant took over SJCC, Defendant interviewed and hired her, then Defendant

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fired her for an incident she disputes while aware she was an African American female over 40.

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(ECF No. 28 ¶¶ 11, 23–28.) Plaintiff’s allegation Defendant terminated her due to her

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membership in various protected classes is a recitation of an element. See Iqbal, 556 U.S. at 678.

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Plaintiff’s allegation Defendant terminated her employment for reasons she disputes is

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insufficient to plausibly suggest Defendant acted because of her age, sex, or race. See Ravel v.

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Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 1086, 1099 (E.D. Cal. 2017) (finding the plaintiff

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did not allege facts rising to a plausible inference of age discrimination, such as being replaced by

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a younger employee, hearing negative comments about age, or her age being point of discussion).

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Plaintiff further alleges that she saw other employees treated differently based on age, ace,

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and gender, (ECF No. 28 ¶ 33), but does not provide facts to support that conclusion nor explain

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if those differences relate to her employment or termination. Plaintiff states she “was informed”

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about “other employees” who were treated in a discriminatory manner, (ECF No. 28 ¶ 34), which

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is not only conclusory, but apparently the conclusion of someone who is not party to this suit.

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Plaintiff’s allegations do not give rise to a plausible inference that Defendant’s proffered

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reason for terminating Plaintiff was pretextual. Achal, 114 F. Supp. 3d at 802. Accordingly, the

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Court GRANTS Defendant’s motion to dismiss Plaintiff’s discrimination claims.

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B.

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Plaintiff alleges Defendant wrongfully terminated her employment in violation of public

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policy based on Plaintiff’s age, sex, and race. (ECF No. 28 ¶ 73.) “The elements of a claim for

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wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2)

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the employer terminated the plaintiff’s employment, (3) the termination was substantially

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motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” Yau v.

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Allen, 229 Cal. App. 4th 144, 154 (2014).

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Wrongful Termination in Violation of Public Policy

As discussed, Plaintiff does not state sufficient allegations to support claims for age, sex,

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and race discrimination, so Plaintiff’s derivative claim for wrongful termination in violation of

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public policy based on age, sex, and race fails. See Tumblin v. USA Waste of California, Inc.,
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2016 WL 3922044, at *8 (C.D. Cal. July 20, 2016). Accordingly, the Court GRANTS

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Defendant’s motion to dismiss Plaintiff’s claim for wrongful termination.

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C.

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Plaintiff alleges Defendant retaliated against her for “such protected activities as reporting

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Retaliation in Violation of California Government Code § 12940(h)

that she felt her termination was discriminatory.” (ECF No. 28 ¶ 82.)
To establish a claim for retaliation in violation of Section 12940(h), a plaintiff must show

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“(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an

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adverse employment action, and (3) a causal link existed between the protected activity and the

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employer’s action.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005); Ayala, 2017

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WL 2833401, at *12. “Protected activity” under Section 12940(h) means an employee “opposed

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any practices forbidden under [FEHA] or . . . filed a complaint, testified, or assisted in any

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proceeding under [FEHA].” CAL. GOV’T CODE § 12940(h); Yanowitz, 36 Cal. 4th at 1042.

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Plaintiff claims that after Defendant fired her, she reported that she believed she had been

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fired for discriminatory reasons. (ECF No. 28 ¶ 82.) Plaintiff has not alleged she engaged in any

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protected activity before Defendant fired her. Plaintiff does not cite any authority to support a

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retaliation claim when the claimed retaliation took place prior to the protected activity.

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Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s retaliation claim.

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D.

Failure to Prevent Discrimination in Violation of California Government Code §
12940(k)

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Plaintiff alleges “Defendant failed to take ‘all reasonable steps necessary’ to prevent its

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employees from engaging in discrimination,” and asserts a claim under California Government

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Code §12940(k). (ECF No. 28 ¶¶ 90–91.) FEHA’s Section 12940(k) does not give private

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litigants a private cause of action for a stand-alone claim for failure to prevent discrimination as

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an independent statutory violation. In the Matter of the Accusation of the Dep’t Fair Empl. &

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Hous. v. Lyddan Law Group (Williams), FEHC Dec. No. 10-04-P, at *12 (Oct. 19, 2010) (holding

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“there cannot be a claim [by a private litigant] for failure to prevent discrimination without a valid

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claim for discrimination”). As discussed above, Plaintiff has not alleged facts sufficient to state a

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claim for discrimination based on her age, sex, or race, so Plaintiff’s derivative claim for failure
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to prevent discrimination fails. Accordingly, the Court GRANTS Defendant’s motion to dismiss

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Plaintiff’s claim for failure to prevent discrimination.

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E.

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Plaintiff alleges Defendant terminated her employment, disputes the reasons for her

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termination, and states Defendant did not give her progressive discipline and process before firing

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her. (ECF No. 28 ¶¶ 99–100.) To state a claim for intentional infliction of emotional distress, a

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plaintiff must show, among other things, “extreme and outrageous conduct by the defendant with

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the intention of causing, or reckless disregard of the probability of causing, emotional distress.”

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Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009). “A simple pleading of personnel management

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activity is insufficient to support a claim of intentional infliction of emotional distress, even if

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improper motivation is alleged.” Janken v. GM Hughes Electrs., 46 Cal. App. 4th 55, 80 (1996).

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“Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather

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conduct essential to the welfare and prosperity of society.” Id.

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Intentional Infliction of Emotional Distress

Plaintiff has not alleged conduct other than making a firing decision. A firing decision is

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an activity California courts have expressly found constitute personnel management activity.

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Janken, 46 Cal. App. 4th at 64–65. Accordingly, the Court GRANTS Defendant’s motion to

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dismiss Plaintiff’s intentional infliction of emotional distress claim.

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IV.

LEAVE TO AMEND

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“A district court may deny a plaintiff leave to amend if it determines that allegations of

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other facts consistent with the challenged pleading could not possibility cure the deficiency, or if

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the plaintiff had several opportunities to amend its complaint and repeatedly failed to cure

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deficiencies.” Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). Although a

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court should freely give leave to amend when justice so requires, “the court’s discretion to deny

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such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint[.]”

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Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting

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Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004).

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Plaintiff has had two opportunities to allege facts sufficient to support her claims and has
not done so. This Court provided detailed analysis in its order on Defendant’s previous motion
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for judgment on the pleadings about the deficiencies in the original complaint for each cause of

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action and granted leave to amend. (ECF No. 27.) Those deficiencies have not been cured and it

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would be futile to allow further opportunities to amend. Accordingly, the Court will not grant

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leave to amend.

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V.

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For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss, (ECF No.

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CONCLUSION

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IT IS SO ORDERED.

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Dated: August 13, 2018

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Troy L. Nunley
United States District Judge

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