Taylor v. Adams & Associates, Inc.

Filing 24

ORDER signed by District Judge Troy L. Nunley on 9/29/2017 GRANTING 18 Motion for Judgment as to all claims with leave to amend within 30 days of the date of this Order. (Washington, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GENESTHER TAYLOR,

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No. 2:16-cv-00311-TLN-KJN

Plaintiff,
v.
ADAMS & ASSOCIATES, INC.,

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ORDER GRANTING DEFENDANT’S
MOTION FOR JUDGMENT ON THE
PLEADINGS

Defendant.

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

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(“Defendant”) Motion for Judgment on the Pleadings. (ECF No. 18.) Plaintiff Genesther Taylor

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(“Plaintiff”) opposes the motion. (ECF No. 19.) Defendant has filed a reply. (ECF No. 20.) For

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the foregoing reasons, the Court hereby GRANTS Defendant’s Motion for Judgment on the

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Pleadings (ECF No. 18).

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff alleges she was hired in 2008 as a Residential Advisor for Sacramento Job Corps

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Center (“SJCC”). (ECF No. 18-1 ¶ 9.) Plaintiff is an African-American woman, over 40 years of

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age, who was diagnosed with epilepsy, diabetes, and fibromyalgia. (ECF No. 18-1 ¶¶ 28, 41, &

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49.) She alleges she was “an active member” of the California Federation of Teachers Union

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(“CFT”) and “served as the organization’s President.” (ECF No. 18-1 ¶ 11.) Plaintiff alleges she

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had no disciplinary history and had support and praise from supervisors. (ECF No. 18-1 ¶ 10.)
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In February 2014, Defendant became the new managing corporation of SJCC. (ECF No.

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18-1 ¶ 12.) Plaintiff alleges Defendant announced it would reorganize several job duties for some

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positions, reduce the number of Residential Advisor positions, create a new Residential

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Coordinator position, and evaluate and interview SJCC employees to continue in their positions.

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(ECF No. 18-1 ¶¶ 13–14.) Plaintiff alleges she “expressed concerns that this process was not

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being properly documented or described to [SJCC] employees.” (ECF No. 18-1 ¶ 15.)

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Plaintiff alleges that on February 25, 2014, she received a phone call from Defendant

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attempting to schedule an interview that day. (ECF No. 18-1 ¶ 16.) Plaintiff alleges Defendant

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interviewed her for approximately ten minutes, during which she “discussed her educational

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background and history with [SJCC] [and informed Defendant] she wanted to maintain her

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position as CFT President.” (ECF No. 18-1 ¶ 19.) Plaintiff alleges she became concerned

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Defendant “was excluding current [SJCC] employees from the interview process.” (ECF No. 18-

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1 ¶ 17.) She alleges she “worked with several other employees in contacting Defendant [] to

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schedule their interviews and make sure they were aware of details regarding the interview

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process.” (ECF No. 18-1 ¶ 18.)

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Plaintiff alleges she received a rejection letter in March 2014, learned other employees

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with “equal or lesser experience were being hired for similar Advisor positions,” and suspected

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Defendant refused to hire her based on her age, race, medical condition, and role in the CFT.

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(ECF No. 18-1 ¶¶ 20–23.) Plaintiff alleges she pursued claims against Defendant “related to her

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perceived retaliation as the President of CFT at [SJCC] and was ultimately reinstated as of

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February 23, 2015.” (ECF No. 18-1 ¶ 24.) Plaintiff alleges she has returned to work but

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“continues to face ongoing discrimination based on her protected status.” (ECF No. 18-1 ¶ 25.)

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On November 25, 2015, Plaintiff filed a complaint in the Superior Court of Sacramento

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County. (ECF No. 18-1 at 4.) Defendant answered the complaint and then removed the case to

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this Court on the basis of diversity jurisdiction. (ECF No. 1-1 at 1, 27–36.) Defendant moved for

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judgment on the pleadings arguing Plaintiff fails to state a claim. (ECF No. 18 at 7.)

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Plaintiff alleges claims for violations of the California Fair Employment and Housing Act
(“FEHA”) and common law, including: (i) age and race discrimination in violation of California
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Government Code § 12940(a); (ii) disability discrimination in violation of California Government

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Code § 12940(a); (iii) failure to hire in violation of public policy; (iv) retaliation in violation of

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California Government Code § 12940(h); (v) failure to prevent discrimination in violation of

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California Government Code §12940(k); (vi) failure to accommodate in violation of California

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Government Code § 12940(m); (vii) failure to engage in the interactive process in violation of

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California Government Code § 12940(n), and; (viii) intentional infliction of emotional distress.

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(ECF No. 18-1 at 7–17.)

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II.

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Federal Rule of Civil Procedure 12(c) provides “[a]fter the pleadings are closed — but

STANDARD OF LAW

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early enough not to delay trial — a party may move for judgment on the pleadings.” Fed. R. Civ.

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P. 12(c). The issue presented by a Rule 12(c) motion is substantially the same as that posed in a

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12(b) motion — whether the factual allegations of the complaint, together with all reasonable

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inferences, state a plausible claim for relief. See Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d

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1047, 1054–1055 (9th Cir. 2011). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 556 (2007)).

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In analyzing a 12(c) motion, the district court “must accept all factual allegations in the

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complaint as true and construe them in the light most favorable to the non-moving party.”

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Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Nevertheless, a court “need not assume

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

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v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). “A judgment on the pleadings is properly

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granted when, taking all the allegations in the non-moving party’s pleadings as true, the moving

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party is entitled to judgment as a matter of law.” Ventress v. Japan Airlines, 603 F.3d 676, 681

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(9th Cir. 2010) (citations omitted).

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A judgment on the pleadings is not appropriate if the Court “goes beyond the pleadings to

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resolve an issue; such a proceeding must properly be treated as a motion for summary judgment.”

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Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989); Fed. R.
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Civ. P. 12(d). A district court may, however, “consider certain materials — documents attached

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to the complaint, documents incorporated by reference in the complaint, or matters of judicial

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notice — without converting the motion to dismiss [or motion for judgment on the pleadings] into

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a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

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“While Rule 12(c) of the Federal Rules of Civil Procedure does not expressly provide for partial

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judgment on the pleadings, neither does it bar such a procedure; it is common to apply Rule 12(c)

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to individual causes of action.” Strigliabotti v. Franklin Res., Inc., 398 F. Supp. 2d 1094, 1097

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(N.D. Cal. 2005) (citing Moran v. Peralta Cmty. Coll. Dist., 825 F. Supp. 891, 893 (N.D. Cal.

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1993)). Courts have the discretion in appropriate cases to grant a Rule 12(c) motion with leave to

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amend, or to simply grant dismissal of the action instead of entry of judgment. See Lonberg v.

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City of Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 2004); Carmen v. S.F. Unified Sch. Dist.,

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982 F. Supp. 1396, 1401 (N.D. Cal. 1997).

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III.

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Defendant argues Plaintiff fails to plead sufficient facts to support any of her claims.

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ANALYSIS

(ECF No. 18 at 9.) The Court will discuss each claim in turn.
A.

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

Plaintiff alleges she was qualified and capable of performing her job duties, and

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Defendants knew Plaintiff was an African-American woman, over 40 years of age, who was

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diagnosed with epilepsy, diabetes, and fibromyalgia. (ECF No. 18-1 ¶¶ 29, 41, & 50.) Defendant

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moves to dismiss Plaintiff’s FEHA claims for discrimination on the basis of age, race, and

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disability, arguing Plaintiff’s pleadings are conclusory and “boilerplate.” (ECF No. 18 at 10.)

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Plaintiff states generally all her claims are sufficiently pleaded and the facts alleged “are

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sufficient to support all of the causes of action.” (ECF No. 19 at 4–6.)

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i.

Age and Race Discrimination

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FEHA prohibits an employer from discriminating against an employee because of age or

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race. CAL. GOV’T CODE § 12940(a). To state a claim for discrimination under FEHA, a plaintiff

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must show: (i) she was a member of a protected class; (ii) she was performing competently in the

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position she held; (iii) she suffered an adverse employment action; and (iv) the employer acted
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with a discriminatory motive. Ayala v. Frito Lay, Inc., No. 116-CV-01705-DAD-SKO, 2017 WL

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2833401, at *7 (E.D. Cal. June 30, 2017) (citing Lawler v. Montblanc N. Am., LLC, 704 F.3d

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1235, 1242 (9th Cir. 2013); Guz v. Bechtel Nat’l., Inc., 24 Cal. 4th 317, 355 (2000)). A plaintiff

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can demonstrate discriminatory motive by showing “other similarly situated employees outside of

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the protected class were treated more favorably, or other circumstances surrounding the adverse

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employment action give rise to an inference of discrimination.” Achal v. Gate Gourmet, Inc., 114

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F. Supp. 3d 781, 800 (N.D. Cal. 2015).

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Plaintiff alleges Defendant knew Plaintiff was a member of protected classes and refused
to rehire her into a Residential Advisor position due to her age and race, but hired others with

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equal or less experience into similar Advisor positions. (ECF No. 18-1 ¶¶ 21, 29–30, & 50–51.)

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Plaintiff’s allegation Defendant acted because of her membership in various protected classes is a

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recitation of an element. See Iqbal, 556 U.S. at 678. Plaintiff has not alleged facts to support a

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reasonable inference Defendant acted because of her age or race. See Ravel v. Hewlett-Packard

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Enter., Inc., 228 F. Supp. 3d 1086, 1099 (E.D. Cal. 2017) (finding the plaintiff did not allege facts

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rising to a plausible inference of age discrimination, such as being replaced by a younger

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employee, overhearing negative comments about age, or her age being point of discussion); cf.

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McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (finding the plaintiff stated a

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case for failure to promote by showing that rather than filling the position by promoting any of

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the interviewees, [the employer] transferred a white manager into the position).

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Plaintiff has not alleged facts sufficient to support the fourth element of her discrimination

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claim, so the Court need not analyze the other elements. Accordingly, the Court GRANTS

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Defendant’s motion for judgment on the pleadings as to Plaintiff’s claim for discrimination based

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on race and color.

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ii.

Disability Discrimination

FEHA prohibits an employer from discriminating against an employee because of the

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employee’s disability. CAL. GOV’T CODE § 12940(a). To state a claim for disability

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discrimination under FEHA, a plaintiff must show she (1) suffered from a disability, or was

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regarded as suffering from a disability; (2) could perform the essential duties of the job with or
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without reasonable accommodations, and (3) was subjected to an adverse employment action

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because of the disability or perceived disability.” Mohsin v. California Dep’t of Water Res., No.

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213CV01236TLNEFB, 2016 WL 4126721, at *4 (E.D. Cal. Aug. 3, 2016) (citing Alsup v. U.S.

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Bancorp, No. 2:14-CV-01515-KJM-DAD, 2015 WL 6163453, at *4 (E.D. Cal. Oct. 2015)).

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Plaintiff alleges Defendant knew she suffered from epilepsy, diabetes, and fibromyalgia,

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and refused to rehire her as a Residential Advisor “due to her medical condition,” knew the

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conditions impacted her life, but she remained able to perform the essential functions of her

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position had Defendant provided her with reasonable accommodation. (ECF No. 18-1 ¶¶ 37, 38,

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41–42.) Plaintiff’s allegations her conditions impacted her life, she was able to perform essential

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job functions with accommodation, and Defendant refused to hire her because of her medical

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condition are recitations of elements. See Iqbal, 556 U.S. at 678. Plaintiff has not alleged facts to

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support a reasonable inference Defendant acted because of her disability. See Achal, 114 F.

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Supp. 3d at 797–98 (finding the plaintiff’s pleading was sufficient to infer pretext where the

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plaintiff alleged the defendant claimed it fired him for causing his own disability, but the

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defendant did not investigate the matter and there was no question as to the plaintiff’s job

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performance during his employment, even after he returned from medical leave).

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

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Plaintiff because of her membership in protected classes. Achal, 114 F. Supp. 3d at 798. Because

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Plaintiff has not alleged facts sufficient to support a plausible inference of a discriminatory

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motive in relation to any of her discrimination claims, the Court need not analyze the other

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elements. Accordingly, the Court GRANTS Defendant’s motion for judgment on the pleadings

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as to Plaintiff’s age, race, and disability discrimination claims.

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B.

Failure to Hire in Violation of Public Policy

Plaintiff alleges Defendant failed to hire her in violation of public policy by rejecting her

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application because of her “protected characteristics, including her union membership.” (ECF

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No. 18-1 ¶ 62.) Defendant argues Plaintiff’s claim related to her union activity is preempted and

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the remainder of her claim is conclusory and fails to allege sufficient facts to state a claim for

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failure to hire related to her age, race, or medical condition. (ECF No. 18 at 11–12.)
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i.

National Labor Relations Act (“NLRA”) Preemption

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In cases which involve either an actual or an arguable violation of either Section 7 or 8 of

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the NLRA, both the states and the federal courts must defer to the “exclusive competence” of the

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National Labor Relations Board (“NLRB”). Commc’ns Workers of Am. v. Beck, 487 U.S. 735,

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742 (1988) (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959)).

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NLRA Section 7 protects employees’ rights to join labor unions, collectively bargain, and engage

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

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Plaintiff’s claim for failure to hire based on Plaintiff’s active union membership, if

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proven, would constitute a violation of the NLRA and is subject to Garmon preemption. Clayton

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v. Pepsi Cola Bottling Grp., Civ. A. No. CV85-5957-WMB, 1987 WL 46230, at *7 n.1 (C.D. Cal.

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Mar. 3, 1987). Plaintiff argues Defendant had multiple illegal reasons for firing her, and Garmon

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preemption should not apply to her entire wrongful termination claim, which includes allegations

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of public policy violations outside NLRB’s jurisdiction. (ECF No. 19 at 8–9) (citing Balog v.

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LRJV, Inc., 204 Cal. App. 3d 1295, 1308–09 (Ct. App. 1988), reh’g denied and opinion modified

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(Sept. 20, 1988) (holding a court retains jurisdiction over wrongful termination claims based on

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mixed motives, if some motives were not even arguably unrelated to unfair labor practices).

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Plaintiff’s claims for failure to hire based on age, race, or medical condition, are not

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arguably related to violations of either Section 7 or 8 of NLRA, which protect union activities.

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The scheme of civil protection set out in FEHA is the type of interest “deeply rooted in local

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feeling and responsibility” NLRA does not deprive the states of the power to act on. See Sears,

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Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S. 180, 196 (1978); Carter

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v. Smith Food King, 765 F.2d 916, 921 n.6 (9th Cir. 1985).

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Accordingly, Plaintiff’s claim for wrongful termination based on union membership is

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preempted by NLRA, but Plaintiff’s claim for wrongful termination in violation of public policy

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regarding Plaintiff’s age, race, or medical condition, is not preempted.

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ii.

Pleading Adequacy of Plaintiff’s Failure to Hire Claim

Defendant argues, to the extent Plaintiff’s failure to hire claim is not preempted, it fails

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because it is premised on deficient discrimination claims. (ECF No. 18 at 11–12.) Plaintiff states

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the facts alleged “are sufficient to support all of the causes of action.” (ECF No. 19 at 6.)

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To state a claim for failure to hire based on disparate treatment, a plaintiff must show (1)

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she belongs to a protected class; (2) she applied for and was qualified for the position she was

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denied; (3) she was rejected despite her qualifications; and (4) the employer filled the position

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with an employee not of the plaintiff’s class, or continued to consider other applicants whose

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qualifications were comparable to the plaintiff’s after rejecting the plaintiff. Dominguez-Curry v.

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Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005).
Plaintiff has not alleged Defendant filled any positions with employees who were not

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members of the same protected class as Plaintiff nor has Plaintiff alleged Defendant continued to

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consider other applicants whose qualifications were comparable to Plaintiff’s after rejecting

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Plaintiff. Because Plaintiff has not alleged facts sufficient to support the fourth element of her

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failure to hire claim, the Court need not analyze the other three elements. Accordingly, the Court

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GRANTS Defendant’s motion for judgment on the pleadings as to Plaintiff’s failure to hire claim.

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C.

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

Plaintiff alleges she engaged in “such protected activities as being an African American

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woman over the age of 40 diagnosed with various medical conditions” and being a representative

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of “other Resident Advisors at [SJCC] as CFT Preseident.” (ECF No. 18-1 ¶¶ 71–72.) Plaintiff

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alleges Defendant terminated her employment because of those alleged protected activities. (ECF

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No. 18-1 ¶¶ 71–72.) Defendant argues Plaintiff failed to show causation between Plaintiff’s

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termination and any protected activity. (ECF No. 18 at 12–13.) Plaintiff states the facts alleged

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“are sufficient to support all of the causes of action.” (ECF No. 19 at 6.)

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To establish a claim for retaliation under FEHA 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. A “protected activity” under Section 12940(h) means an employee

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

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

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Plaintiff does not allege she engaged in any protected activity, such as opposing practices

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forbidden under FEHA, filing a complaint, testifying, or assisting in any proceeding under FEHA.

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Further, any claim for retaliation based on union activities would be preempted by the NLRA and

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subject to the exclusive jurisdiction of NLRB. Because Plaintiff has not alleged facts sufficient to

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support the first element of her retaliation claim, the Court need not analyze the other elements.

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Accordingly, the Court GRANTS Defendant’s motion for judgment on the pleadings as to

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Plaintiff’s retaliation claim.

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D.

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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 “rejected her application based on

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discriminatory motives” even though Defendant “knew of Plaintiff’s protected characteristics and

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also knew Plaintiff planned to continue in her career with [SJCC].” (ECF No. 18-1 ¶¶ 81, 83,

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84.) Defendant argues FEHA’s Section 12940(k) does not give litigants a private cause of action

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for a stand-alone claim for failure to prevent discrimination. (ECF No. 18 at 13–14.) Defendant

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cites the Fair Employment and Housing Commission’s (“FEHC”) decision in In the Matter of the

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Accusation of the Dep’t Fair Empl. & Hous. v. Lyddan Law Group (Williams), FEHC Dec. No.

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10-04-P, at *12 (Oct. 19, 2010) (holding “there cannot be a claim [by a private litigant] for failure

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to prevent discrimination without a valid claim for discrimination”).

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Plaintiff states the facts alleged “are sufficient to support all of the causes of action.” (ECF No.

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19 at 6.) As discussed above, Plaintiff has not alleged facts sufficient to state a claim for

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discrimination based on age, race, or medical condition, so Plaintiff’s derivative claim for failure

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to prevent discrimination fails.

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judgment on the pleadings as to Plaintiff’s failure to prevent discrimination claim.

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(ECF No. 18 at 13.)

Accordingly, the Court GRANTS Defendant’s motion for

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E.

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Failure to Accommodate in Violation of California Government Code §
12940(m)

Plaintiff alleges Defendant knew Plaintiff was “capable of performing her duties at work”

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“despite her medical conditions,” and failed to accommodate her medical condition when

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Defendant “unreasonably refused to hire her.” (ECF No. 18-1 ¶¶ 92–93.) Defendant argues

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Plaintiff does not allege sufficient facts to support this claim, such as whether and how Plaintiff

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could perform essential job functions, what accommodations were necessary, whether she

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requested any accommodation, or that Defendant failed to accommodate her. (ECF No. 18 at 15.)

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Plaintiff states the facts alleged are sufficient. (ECF No. 19 at 6.)

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To state a claim for failure to accommodate, a plaintiff must show: (1) she suffered from a

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disability covered by FEHA; (2) she was otherwise qualified to do her job; and (3) the defendant

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failed to reasonably accommodate her disability. Mohsin, 2016 WL 4126721, at *4 (E.D. Cal.

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Aug. 3, 2016); see also Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 256 (2000). “To face

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liability under section 12940(m), an employer must have been aware of the employee’s

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disability.” Achal, 114 F. Supp. 3d at 799 (citing King v. United Parcel Serv., Inc., 152 Cal. App.

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4th 426, 443 (2007). “An employee cannot demand clairvoyance of his employer.” King, 152

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Cal. App. 4th at 443.

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Plaintiff states Defendant was aware of Plaintiff’s medical conditions. (ECF No. 18-1 ¶

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92.) Plaintiff, however, has not alleged any facts to support her conclusion Defendant had

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knowledge of her medical conditions. Because Plaintiff has not alleged facts sufficient to support

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a plausible inference Defendant was aware of her medical conditions, the Court need not analyze

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the other elements of Plaintiff’s claim. Accordingly, the Court GRANTS Defendant’s motion for

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judgment on the pleadings as to Plaintiff’s failure to accommodate claim.

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F.

Failure to Engage in the Interactive Process in Violation of California
Government Code § 12940(n)

Plaintiff alleges Defendant was aware of Plaintiff’s medical conditions involving epilepsy,

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diabetes, and fibromyalgia, “but failed to engage in a timely, good-faith, interactive process with

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her to determine effective reasonable accommodations for her to fill her previous position as
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Resident Advisor.” (ECF No. 18-1 ¶ 101.) Defendant argues Plaintiff does not allege sufficient

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facts to support her claim, such as with whom she discussed her disability or request for

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accommodation, or the specific accommodation requested. (ECF No. 18 at 15.) Plaintiff states

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the facts alleged “are sufficient to support all of the causes of action.” (ECF No. 19 at 6.)

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“FEHA imposes on employers a mandatory obligation to engage in the interactive process

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once an employee requests an accommodation for his or her disability, or when the employer

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itself recognizes the need for one.” Achal, 114 F. Supp. 3d at 800. “Ordinarily, an employee is

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responsible for requesting accommodation for his or her disability, unless the employer itself

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recognizes that an employee has a need for such accommodation.” Id. at 799 (citing Brown v.

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Lucky Stores, 246 F.3d 1182, 1188 (9th Cir.2001)).

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Plaintiff states Defendant was aware of Plaintiff’s medical conditions involving epilepsy,

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diabetes, and fibromyalgia. (ECF No. 18-1 ¶ 101.) Plaintiff, however, has not alleged any facts

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to support her conclusion Defendant was aware of her medical conditions, her needs, or failed to

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engage in the interactive process. Accordingly, the Court GRANTS Defendant’s motion for

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judgment on the pleadings as to Plaintiff’s failure to engage in the interactive process claim.

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G.

Intentional Infliction of Emotional Distress

Plaintiff alleges Defendant knew of Plaintiff’s protected characteristics, but refused to hire

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Plaintiff in favor of less qualified applicants “with the intent to cause emotional distress or with

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reckless disregard of the probability” of doing so. (ECF No. 18-1 ¶¶ 107–08.) Defendant argues

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Plaintiff’s claim fails as a matter of law because Plaintiff’s allegations with respect to intentional

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infliction of emotional distress relate to personnel management activities, which cannot constitute

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“extreme and outrageous conduct,” a required element of this claim. (ECF No. 18 at 16.)

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To state a claim for intentional infliction of emotional distress, a plaintiff must show,

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among other things, “extreme and outrageous conduct by the defendant with the intention of

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causing, or reckless disregard of the probability of causing, emotional distress.” Hughes v. Pair,

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46 Cal. 4th 1035, 1050 (2009). Extreme and outrageous conduct must “exceed all bounds of that

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usually tolerated in a civilized community.” Id. at 1050–51. “Whether a defendant’s conduct can

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reasonably be found to be [extreme and] outrageous is a question of law that must initially be
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determined by the court.” Berkley v. Dowds, 152 Cal. App. 4th 518, 534 (2007).
“A simple pleading of personnel management activity is insufficient to support a claim of

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intentional infliction of emotional distress, even if improper motivation is alleged.” Janken v.

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GM Hughes Electrs., 46 Cal. App. 4th 55, 80 (1996). “Managing personnel is not outrageous

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conduct beyond the bounds of human decency, but rather conduct essential to the welfare and

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prosperity of society.” Id. Personnel management activity includes, “hiring and firing, job or

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project assignments, office or work station assignment, promotion or demotion, performance

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evaluations, the provision of support, the assignment or non-assignment of supervisory functions,

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deciding who will and who will not attend meetings, deciding who will be laid off.” Id. at 64–65.

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Plaintiff alleges Defendant failed to hire her in favor of less qualified applicants despite

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Defendant’s knowledge of Plaintiff’s “protected characteristics.” (ECF No. 18-1 ¶ 108.) Plaintiff

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has not alleged any facts that are outside Defendant’s employment and supervisory duties. The

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action Plaintiff does allege — making a hiring decision — is an activity California courts have

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expressly found constitutes personnel management activity. Janken, 46 Cal. App. 4th at 64–65.

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Accordingly, the Court GRANTS Defendant’s motion for judgment on the pleadings as to
Plaintiff’s intentional infliction of emotional distress claim.

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IV.

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Courts have the discretion in appropriate cases to grant a Rule 12(c) motion with leave to

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amend, or to simply grant dismissal of the action instead of entry of judgment. See Lonberg, 300

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F. Supp. 2d at 945; Carmen, 982 F. Supp. at 1401. The Court cannot say that the pleading could

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not possibly be cured by the allegation of other facts. Accordingly, the Court GRANTS Plaintiff

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leave to amend the complaint within 30 days of the date of this Order.

LEAVE TO AMEND

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V.

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For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 18) is hereby

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CONCLUSION

GRANTED as to all claims with leave to amend within 30 days of the date of this Order.
IT IS SO ORDERED.
Dated: September 29, 2017

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Troy L. Nunley
United States District Judge