Taylor v. Adams & Associates, Inc.

Filing 35

ORDER signed by District Judge Troy L. Nunley on 8/20/2018 GRANTING 26 Motion to Dismiss with prejudice. The Clerk of the Court is directed to CLOSE the case. CASE CLOSED. (Zignago, K.)

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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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Plaintiff,

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No. 2:16-cv-00311-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. 26.) Plaintiff

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

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(ECF No. 33.) For the reasons discussed below, the Court hereby GRANTS Defendant’s Motion

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to Dismiss, (ECF No. 26), with prejudice.

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I.

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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. 25 ¶ 10.) 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. 25 ¶¶ 47, 60, &

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68.) 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. 25 ¶ 12.) Plaintiff alleges she

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had no disciplinary history and had support and praise from supervisors. (ECF No. 25 ¶ 11.)

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FACTUAL AND PROCEDURAL BACKGROUND

In February 2014, Defendant became the new managing corporation of SJCC. (ECF No.
25 ¶ 3.) 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. 25 ¶¶ 14–15.) Plaintiff alleges she “expressed concerns that this process was not being

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properly documented or described to [SJCC] employees.” (ECF No. 25 ¶ 16.)

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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. 25 ¶ 17.) 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 stated] she wanted to maintain her position as CFT

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President.” (ECF No. 25 ¶ 20.) Plaintiff alleges she was concerned Defendant “was excluding

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current [SJCC] employees from the interview process.” (ECF No. 25 ¶ 18.) She alleges she

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“worked with several other employees in contacting Defendant [] to schedule their interviews and

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make sure they were aware of details regarding the interview process.” (ECF No. 25 ¶ 19.)

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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 age, race, medical condition, and role as union president.

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(ECF No. 25 ¶¶ 30–32.) 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. 25 ¶ 33–34.) Plaintiff alleges she “continues to face ongoing

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discrimination based on her protected status” after her return to work. (ECF No. 25 ¶ 35.)
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Defendant moved for judgment on the pleadings arguing Plaintiff failed to state a claim.

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(ECF No. 18.) The Court granted Defendant’s motion as to all claims and granted Plaintiff leave

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to amend her complaint. (ECF No. 24.) Plaintiff amended her complaint, alleging eight claims

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for violations of California’s Fair Employment and Housing Act (“FEHA”). (ECF No. 25.)

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Defendant moves to dismiss for failure to state a claim. (ECF No. 26.)

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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.

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Defendant argues Plaintiff fails to allege sufficient facts. (ECF No. 26 at 3.)

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ANALYSIS

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Discrimination in Violation of California Government Code § 12940

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Plaintiff alleges Defendant discriminated against her by refusing to hire her due to her age,

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medical conditions, and race, in violation of FEHA. (ECF No. 25 ¶¶ 49, 61, 70.) To state a claim

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for discrimination under FEHA, a plaintiff must allege facts sufficient to show: (i) she was a
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member of a protected class; (ii) she was performing competently in the position she held; (iii)

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she suffered an adverse employment action; and (iv) the employer acted with a discriminatory

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motive. Ayala v. Frito Lay, Inc., 2017 WL 2833401, at *7 (E.D. Cal. June 30, 2017) (citing

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Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir. 2013)). A plaintiff can

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

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protected class were treated more favorably.” Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781,

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800 (N.D. Cal. July 14, 2015).

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Plaintiff alleges she is an African-American woman, over 40 years of age, who has
various medical conditions. (ECF No. 25 ¶¶ 47, 60, & 68.) Plaintiff alleges Defendant

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discriminated against Plaintiff by refusing to hire her due to her age, medical condition, and race.

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(ECF No. 25 ¶ 49, 61, & 70.) Plaintiff alleges “employees with equal or lesser experience were

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being hired for similar Advisor positions,” (ECF No. 25 ¶ 31), but does not allege the employees

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were different ages or races than Plaintiff or did not have disabilities. Plaintiff currently works at

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SJCC and concludes she “continues to face ongoing discrimination based on her protected

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status,” (ECF No. 25 ¶ 35), but she does not allege facts describing that continued discrimination.

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

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

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showing she was treated differently than similarly situated individuals who were not of Plaintiff’s

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age, race, or suffered from medical conditions. See Ravel v. Hewlett-Packard Enter., Inc., 228 F.

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Supp. 3d 1086, 1099 (E.D. Cal. Jan. 11, 2017) (failed to allege plausible inference of age

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discrimination, such as being replaced by a younger employee, negative comments about age, or

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her age being point of discussion); cf. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th

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Cir. 2004) (finding the African-American plaintiff stated a case for failure to promote by showing

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his employer transferred a white manager into a position rather than promoting any of the

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interviewees); cf. Achal, 114 F. Supp. 3d at 797–98 (finding the allegations sufficient to infer

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pretext where the defendant claimed it fired the plaintiff for causing his own disability, but did

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not investigate the matter and there was no question as to the plaintiff’s job performance during

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his employment, even after he returned from medical leave).
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Plaintiff’s allegations are insufficient to support a plausible inference Defendant acted

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because of her age, race, or medical condition. Accordingly, the Court GRANTS Defendant’s

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motion to dismiss Plaintiff’s claims for age, race, and disability discrimination.

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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 age, race, and medical

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condition.” (ECF No. 25 ¶ 79.) To state a claim for failure to hire based on disparate treatment, a

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plaintiff must show the employer filled the position with an employee not of the plaintiff’s class,

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or continued to consider other applicants whose qualifications were comparable to the plaintiff’s

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after rejecting the plaintiff. Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037

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(9th Cir. 2005). Plaintiff has not alleged Defendant filled the Resident Advisor position with

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employees who were not members of the same protected classes as Plaintiff. Plaintiff has not

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alleged Defendant continued to consider other applicants with comparable qualifications after

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

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claims for failure to hire in violation of public policy.

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C.

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

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 alleges Defendant retaliated against her by refusing to hire her for “activities”

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which are not protected activities, alleges she engaged in protected activities but does not allege

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Defendant retaliated against her for those activities, and alleges she believes she faces “continued

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adverse employment actions” as an employee of SJCC but does not allege facts to support her

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statement or to show what the alleged adverse actions entail.
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Plaintiff alleges Defendant “retaliated against Plaintiff by refusing to hire her on account

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of such protected activities as being an African American woman over the age of 40 who had

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been diagnosed with various medical conditions.” (ECF No. 25 ¶ 89.) Plaintiff alleges

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Defendant “discriminated and retaliated against Plaintiff and other similarly situate[d] employees

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based on their age, race, and disability/medical condition.” (ECF No. 25 ¶ 92.) The “activities”

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Plaintiff labels as protected activities, being over a certain age, of a certain race, or having been

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diagnosed with medical conditions, are not protected activities under FEHA. CAL. GOV’T CODE §

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12940(h); Yanowitz, 36 Cal. 4th at 1042.

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Plaintiff alleges she engaged in “protected activity under Title VII including, but not

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limited to, complaining internally and externally about discrimination she and other employees

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experienced at [SJCC] because of her race and because of her association with other minority

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employees who were also bringing claims of discrimination, harassment, and retaliation.” (ECF

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No. 25 ¶ 88.) Plaintiff alleges she “complained through her union representatives and directly to

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Adams’ employees regarding her disparate treatment and the adverse employment actions she felt

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she faced. Plaintiff also complained through an administrative claim with the EEOC which

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issued a right to sue in December 2014.” (ECF No. 25 ¶ 90.) Activities such as filing complaints

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and opposing practices forbidden by FEHA are protected activities under FEHA. CAL. GOV’T

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CODE § 12940(h). Plaintiff, however, does not allege Defendant retaliated against her for these

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activities. Instead, she alleges Defendant retaliated against her because of different activities,

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(ECF No. 25 ¶¶ 89, 92), that, as discussed above, are not protected activities. Further, the

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retaliation Plaintiff claims, failure to hire her in March 2014, (ECF No. 25 ¶ 30), predates the

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only dated protected activity, her EEOC administrative claim in December 2014, (ECF No. 25 ¶

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90). Plaintiff cites no authority permitting a claim for retaliation predating the protected activity.

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Finally, Plaintiff alleges she “has faced continued adverse employment actions since she

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resumed working at [SJCC] because of her protected status and affiliation with other protected

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employees.” (ECF No. 25 ¶ 91.) Plaintiff’s statement “she faces continued adverse employment

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actions” is a recitation of the second element of a claim, requiring that the employer subject the

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employee to adverse employment action. See Iqbal, 556 U.S. at 678. Plaintiff has not alleged
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facts showing Defendant subjected her to adverse employment actions since her return to work.

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The only retaliation she alleges, Defendant’s refusal to hire her in March 2014, predates her

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return to work and so cannot be the “continued adverse employment action.”

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Plaintiff’s statement Defendant acted because of her “protected status and affiliation with

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other protected employees” would be a recitation of the third element that a plaintiff must show a

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causal link between protected activity and the employer’s action, see Iqbal, 556 U.S. at 678, if it

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referred to protected activity required by the first element. Plaintiff, however, refers to “protected

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status” and status, such as being a certain age, race, or having medical conditions, is not protected

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activity under FEHA. See CAL. GOV’T CODE § 12940(h). Plaintiff also alleges Defendant acted

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because of her “affiliation with other protected employees,” but Plaintiff has not alleged facts

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showing what “affiliation” or “association” entails or how it constitutes a protected activity.

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Accordingly, the Court GRANTS Defendant’s motion to dismiss 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. 25 ¶¶ 106, 108–

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09.) FEHA’s § 12940(k) does not give private litigants a private cause of action for a stand-alone

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claim for failure to prevent discrimination as an independent statutory violation. In the Matter of

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the Accusation of the Dep’t Fair Empl. & Hous. v. Lyddan Law Group (Williams), FEHC Dec.

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No. 10-04-P, at *12 (Oct. 19, 2010) (holding there cannot be a claim by a private litigant for

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failure to prevent discrimination without a valid claim for discrimination). As discussed above,

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Plaintiff has not alleged facts sufficient to state a claim for discrimination based on age, race, or

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medical condition, so Plaintiff’s derivative claim for failure to prevent discrimination fails.

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Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s claim for failure to

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prevent discrimination.

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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. 25 ¶¶ 117–18.) “To face liability under

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section 12940(m), an employer must have been aware of the employee’s disability.” Achal, 114

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F. Supp. 3d at 799 (citing King v. United Parcel Serv., Inc., 152 Cal. App. 4th 426, 443 (2007).

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“An employee cannot demand clairvoyance of his employer.” King, 152 Cal. App. 4th at 443.

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Plaintiff states Defendant was aware of Plaintiff’s medical conditions, (ECF No. 25 ¶ 117), but

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has not alleged any facts to support her conclusion that Defendant was aware of her medical

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

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failure to accommodate.

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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. 25 ¶ 126.) “FEHA imposes on employers a mandatory obligation

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to engage in the interactive process once an employee requests an accommodation for his or her

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disability, or when the employer itself recognizes the need for one.” Achal, 114 F. Supp. 3d at

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800. “Ordinarily, an employee is responsible for requesting accommodation for his or her

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disability, unless the employer itself recognizes that an employee has a need for such

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accommodation.” Id. at 799 (citing Brown v. Lucky Stores, 246 F.3d 1182, 1188 (9th Cir. 2001)).

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Plaintiff states Defendant was aware of her medical conditions but has not alleged any

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facts to support her conclusion Defendant was aware of her medical conditions. Plaintiff has not

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alleged she required or requested accommodation. Plaintiff has not alleged facts sufficient to

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support an inference Defendant knew she required accommodation. Zivkovic v. S. Cal. Edison

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Co., 302 F.3d 1080, 1089–90 (9th Cir. 2002) (the plaintiff informed the employer on his
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application that he was hearing impaired and said during the interview he would have done better

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with a sign language interpreter); Joseph v. Target Corp., 2015 WL 351444, at *14 (E.D. Cal.

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Jan. 23, 2015) (the defendant knew the plaintiff had been on medical leave, still experienced

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symptoms of his illness such as memory loss, and was challenged by this in performing his job).

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Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s claim for failure to

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engage in the interactive process.

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IV.

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

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LEAVE TO AMEND

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 did

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not do so. This Court provided detailed analysis in its order on Defendant’s motion for judgment

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on the pleadings about the deficiencies of the original complaint as to each claim and granted

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leave to amend. (ECF No. 24.) Those deficiencies have not been cured and it would be futile to

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allow further opportunities to amend. Accordingly, the Court will not grant 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.
Dated: August 20, 2018

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Troy L. Nunley
United States District Judge

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