Rhodes v. Adams & Associates, Inc.

Filing 25

ORDER granting 19 Motion for Judgment on the Pleadings with leave to amend within 30 days of the date of this Order signed by District Judge Troy L. Nunley on 9/5/17. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS RHODES, 12 13 14 No. 2:16-cv-00494 -TLN-KJN Plaintiff, v. ADAMS & ASSOCIATES, INC., 15 ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS Defendant. 16 17 This matter is before the Court pursuant to Defendant Adams & Associates, Inc.’s 18 (“Defendant”) Motion for Judgment on the Pleadings. (ECF No. 19.) Plaintiff Dennis Rhodes 19 (“Plaintiff”) opposes the motion. (ECF No. 20.) Defendant has filed a reply. (ECF No. 21.) For 20 the reasons detailed below, the Court hereby GRANTS Defendant’s motion for judgment on the 21 pleadings (ECF No. 19). 22 I. FACTUAL AND PROCEDURAL BACKGROUND 23 Plaintiff is an African American male who is over 40 years of age. (ECF No. 19-1 ¶¶ 25, 24 34.) Plaintiff states he has a B.A. in African American studies and has served as a community 25 organizer for a non-profit in the past. (ECF No. 19-1 ¶ 10.) In 2011, Plaintiff was hired as a 26 Residential Advisor for Sacramento Job Corps Center (“SJCC”), a career development facility for 27 at-risk young adults. (ECF No. 19-1 ¶¶ 9–10.) Plaintiff describes his duties as “counseling 28 students” and “maintaining clean and safe living conditions in the dorms.” (ECF No. 19-1 ¶ 11.) 1 1 Plaintiff alleges he was an excellent employee with no disciplinary actions and was an active 2 member of the California Federation of Teachers Union (“CFTU”). (ECF No. 19-1 ¶¶ 12–13.) 3 In February 2014, Defendant became the new managing corporation of SJCC. (ECF No. 4 19-1 ¶ 14.) Plaintiff alleges Defendant announced it planned to reorganize several job duties for 5 some positions, reduce the number of Resident Advisor positions, and create a new position 6 known as a Resident Coordinator. (ECF No. 19-1 ¶ 15.) Plaintiff alleges he submitted an 7 application to Defendant and that Defendant promised to rehire Plaintiff to his Resident Advisor 8 position if he did not have any disciplinary actions in his file. (ECF No. ¶¶ 16–17.) 9 Plaintiff alleges Defendant invited him for a first round interview, during which Plaintiff 10 expressed his interest in either his prior position as a Resident Advisor or a new position as a 11 “CTT Instructor.” (ECF No. 19-1 ¶ 18.) Defendant interviewed Plaintiff again during a second 12 round interview. (ECF No. 19-1 ¶ 18.) Plaintiff alleges he received a rejection letter from 13 Defendant in March 2014, stating he would not be hired for the CTT Instructor position, but with 14 no mention of his prior Resident Advisor position. (ECF No. 19-1 ¶ 19.) Plaintiff alleges 15 “employees with equal or lesser experience were being hired for similar Advisor positions in 16 violation of Job Corps’ collective bargaining agreement with CFTU.” (ECF No. 19-1 ¶ 20.) 17 On December 14, 2015, Plaintiff filed a complaint in the Superior Court of Sacramento 18 County. (ECF No. 19-1 at 4.) Defendant answered in the Superior Court denying each claim and 19 asserting affirmative defenses. (ECF No. 1-1 at 19–24.) On March 9, 2016, Defendant removed 20 this action to this Court on the basis of diversity jurisdiction. (ECF No. 1.) Defendant then 21 moved for judgment on the pleadings contending that Plaintiff fails to state any claim on which 22 relief can be granted. (ECF No. 19 at 7.) 23 Plaintiff alleges violations of California’s Fair Employment and Housing Act (“FEHA”) 24 and common law: (i) age, race, and national origin discrimination in violation of California 25 Government Code § 12940(a); (ii) retaliation in violation of California Government Code § 26 12940(h); (iii) failure to hire in violation of public policy in violation of California Government 27 Code § 12940(k); (iv) failure to prevent discrimination in violation of California Government 28 Code § 12940(k); and (v) intentional infliction of emotional distress. (ECF No. 19-1 at 7–13.) 2 1 II. 2 Federal Rule of Civil Procedure 12(c) provides “[a]fter the pleadings are closed — but STANDARD OF LAW 3 early enough not to delay trial — a party may move for judgment on the pleadings.” Fed. R. Civ. 4 P. 12(c). The issue presented by a Rule 12(c) motion is substantially the same as that posed in a 5 12(b) motion — whether the factual allegations of the complaint, together with all reasonable 6 inferences, state a plausible claim for relief. See Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 7 1047, 1054–1055 (9th Cir. 2011). “A claim has facial plausibility when the plaintiff pleads 8 factual content that allows the court to draw the reasonable inference that the defendant is liable 9 for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. 10 11 Twombly, 550 U.S. 544, 556 (2007)). In analyzing a 12(c) motion, the district court “must accept all factual allegations in the 12 complaint as true and construe them in the light most favorable to the non-moving party.” 13 Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Nevertheless, a court “need not assume 14 the truth of legal conclusions cast in the form of factual allegations.” United States ex rel. Chunie 15 v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). “A judgment on the pleadings is properly 16 granted when, taking all the allegations in the non-moving party’s pleadings as true, the moving 17 party is entitled to judgment as a matter of law.” Ventress v. Japan Airlines, 603 F.3d 676, 681 18 (9th Cir. 2010) (citations omitted). 19 A judgment on the pleadings is not appropriate if the Court “goes beyond the pleadings to 20 resolve an issue; such a proceeding must properly be treated as a motion for summary judgment.” 21 Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989); Fed. R. 22 Civ. P. 12(d). A district court may, however, “consider certain materials — documents attached 23 to the complaint, documents incorporated by reference in the complaint, or matters of judicial 24 notice — without converting the motion to dismiss [or motion for judgment on the pleadings] into 25 a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). 26 “While Rule 12(c) of the Federal Rules of Civil Procedure does not expressly provide for 27 partial judgment on the pleadings, neither does it bar such a procedure; it is common to apply 28 Rule 12(c) to individual causes of action.” Strigliabotti v. Franklin Res., Inc., 398 F. Supp. 2d 3 1 1094, 1097 (N.D. Cal. 2005) (citing Moran v. Peralta Cmty. Coll. Dist., 825 F. Supp. 891, 893 2 (N.D. Cal. 1993)). Courts have the discretion in appropriate cases to grant a Rule 12(c) motion 3 with leave to amend, or to simply grant dismissal of the action instead of entry of judgment. See 4 Lonberg v. City of Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 2004); Carmen v. S.F. Unified 5 Sch. Dist., 982 F. Supp. 1396, 1401 (N.D. Cal. 1997). 6 III. 7 Defendant argues Plaintiff failed to plead sufficient facts to support any of his claims. 8 9 10 ANALYSIS (ECF No. 19 at 7.) The Court will discuss each claim in turn. A. Discrimination in Violation of California Government Code § 12940(a) Defendant moves to dismiss Plaintiff’s FEHA claims for discrimination on the basis of 11 age, race, and national origin, arguing Plaintiff’s pleadings are conclusory and “boilerplate.” 12 (ECF No. 19 at 9–10.) Plaintiff responds his claims are sufficiently stated. (ECF No. 20 at 4–5.) 13 FEHA prohibits an employer from discriminating against an employee because of the 14 employee’s age, sex, or race. CAL. GOV’T CODE § 12940(a). To state a claim for discrimination 15 under FEHA, a plaintiff must allege: (i) he was a member of a protected class; (ii) he was 16 performing competently in the position he held; (iii) he suffered an adverse employment action; 17 and (iv) the employer acted with a discriminatory motive. Ayala v. Frito Lay, Inc., No. 116-CV- 18 01705-DAD-SKO, 2017 WL 2833401, at *7 (E.D. Cal. June 30, 2017) (citing Lawler v. 19 Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir. 2013); Guz v. Bechtel Nat’l., Inc., 24 Cal. 20 4th 317, 355 (2000)). A plaintiff can demonstrate discriminatory motive by showing “other 21 similarly situated employees outside of the protected class were treated more favorably, or other 22 circumstances surrounding the adverse employment action give rise to an inference of 23 discrimination.” Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 800 (N.D. Cal. 2015). 24 Plaintiff alleges Defendant knew he was a qualified, capable, African American, over 40 25 years old. (ECF No. 19-1 ¶¶ 26 & 36.) Plaintiff alleges Defendant failed to hire him despite 26 indicating it would if he had no disciplinary history, but did hire employees with equal or lesser 27 experience for similar positions. (ECF No. 19-1 ¶¶ 12, 17, 19, & 20.) Plaintiff’s allegation 28 Defendant failed to hire him because of his membership in protected classes is a recitation of an 4 1 element. See Iqbal, 556 U.S. at 678. Plaintiff’s allegation Defendant hired other employees with 2 equal or less experience is insufficient to plausibly suggest Defendant failed to hire him because 3 of his age, race, or national origin. See Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 4 1086, 1099 (E.D. Cal. 2017) (finding the plaintiff did not allege facts rising to a plausible 5 inference of age discrimination, such as being replaced by a younger employee, overhearing 6 negative comments about age, or her age being point of discussion). 7 Plaintiff’s allegations do not give rise to a plausible inference that Defendant failed to hire 8 Plaintiff because of his membership in protected classes. Achal, 114 F. Supp. 3d at 802. 9 Because Plaintiff has not alleged facts sufficient to support the fourth element in relation to any of 10 his discrimination claims, the Court need not analyze the other three elements. Accordingly, the 11 Court GRANTS Defendant’s motion for judgment on the pleadings as to Plaintiff’s 12 discrimination claims. 13 B. Retaliation in Violation of California Government Code § 12940(h) 14 Plaintiff alleges he engaged in the protected activities of “being an African American male 15 over the age of 40,” and “an active member of the union representing Resident Advisors.” (ECF 16 No. 19-1 ¶¶ 45–46.) Plaintiff alleges Defendant retaliated against him by refusing to hire him 17 because of those alleged protected activities. (ECF No. 19-1 ¶¶ 45–46.) Defendant argues 18 Plaintiff’s claim is preempted by the National Labor Relations Act (“NLRA”), and Plaintiff failed 19 to show causation between Defendant’s refusal to hire Plaintiff and any protected activity. (ECF 20 No. 19 at 11–12.) 21 i. 22 In cases which involve either an actual or an arguable violation of either Section 7 or 8 of 23 the NLRA, both the states and the federal courts must defer to the “exclusive competence” of the 24 National Labor Relations Board (“NLRB”). Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 25 742 (1988) (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959)). 26 NLRA Section 7 protects employees’ rights to join labor unions, collectively bargain, and engage 27 in other activities for purposes of mutual aid. 29 U.S.C. § 157. NLRA Section 8 prevents 28 employers from engaging in unfair labor practices or interfering with employees’ rights to join National Labor Relations Act (“NLRA”) Preemption 5 1 labor unions and bargain collectively. 29 U.S.C. § 158(a)(1)-(3). Plaintiff’s claim for retaliation 2 based on Plaintiff’s active union membership, if proven, would constitute a violation of the 3 NLRA and is subject to Garmon preemption. Clayton v. Pepsi Cola Bottling Grp., Civ. A. No. 4 CV85-5957-WMB, 1987 WL 46230, at *7 n.1 (C.D. Cal. Mar. 3, 1987). 5 Plaintiff responds Garmon preemption should not apply to his entire wrongful termination 6 claim because Defendant had multiple illegal reasons for wrongfully terminating him (ECF No. 7 20 at 7–8) (citing Balog v. LRJV, Inc., 204 Cal. App. 3d 1295, 1308–09 (Ct. App. 1988), reh’g 8 denied and opinion modified (Sept. 20, 1988) (holding a court retains jurisdiction over wrongful 9 termination claims based on many illegal reasons, if some reason or reasons were not even 10 arguably related to unfair labor practices). Plaintiff’s complaint, however, is based on 11 Defendant’s refusal to hire him not wrongful termination (ECF No. 19-1 ¶ 19). The Court will 12 construe Plaintiff’s response as arguing that Garmon preemption should not apply to his entire 13 retaliation claim for failure to hire. 14 Plaintiff’s claims for wrongful termination based on age, race, and national origin, are not 15 arguably related to violations of either Section 7 or 8 of NLRA, which protect union activities. 16 The scheme of civil protection set out in FEHA is the type of interest “deeply rooted in local 17 feeling and responsibility” NLRA does not deprive the states of the power to act on. See Sears, 18 Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S. 180, 196 (1978); Carter 19 v. Smith Food King, 765 F.2d 916, 921 n.6 (9th Cir. 1985). 20 Accordingly, Plaintiff’s claim for retaliation based on union membership is preempted by 21 NLRA, but Plaintiff’s claims for retaliation for failure to hire based on Plaintiff’s age, race, and 22 national origin are not preempted. Pleading Adequacy of Plaintiff’s Retaliation Claim 23 ii. 24 Defendant argues Plaintiff’s retaliation claims which are not preempted, for failure to hire 25 because of age, race, and national origin, fail because Plaintiff has not alleged he engaged in any 26 protected activity in relation to those claims, a required element. (ECF No. 18 at 12–13.) 27 28 To establish claim for retaliation in violation of Section 12940(h), a plaintiff must show “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an 6 1 adverse employment action, and (3) a causal link existed between the protected activity and the 2 employer’s action.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005); Ayala, 2017 3 WL 2833401, at *12. “Protected activity” under Section 12940(h) means an employee “opposed 4 any practices forbidden under [FEHA] or . . . filed a complaint, testified, or assisted in any 5 proceeding under [FEHA].” CAL. GOV’T CODE § 12940(h); Yanowitz, at 1042. 6 Plaintiff’s has not alleged he engaged in any protected activity under Section 12940(h), 7 such as opposing a practice forbidden under FEHA or filing a complaint. Plaintiff’s claim for 8 retaliation is simply a duplicate of his age, race, and national origin discrimination claims. The 9 only non-preempted “activity” Plaintiff alleges is “being” a member of protected classes under 10 FEHA, which is not included among the activities which qualify as protected activity under 11 Section 12940(h). Because Plaintiff has not alleged facts sufficient to support the first element of 12 his retaliation claims based on age, race, or national origin, the Court need not analyze the other 13 elements. As discussed above, Plaintiff’s claim for retaliation based on union activities is subject 14 to the exclusive jurisdiction of the NLRB. Accordingly, the Court GRANTS Defendant’s motion 15 for judgment on the pleadings as to Plaintiff’s retaliation claim. 16 C. Failure to Hire in Violation of Public Policy 17 Plaintiff alleges Defendant failed to hire him in violation of public policy by rejecting his 18 application because of his “protected characteristics, including his union affiliation.” (ECF No. 19 19-1 ¶ 58.) Defendant argues Plaintiff’s claim related to his union activity is preempted and the 20 remainder of his claim is conclusory and fails to allege sufficient facts to state a claim for failure 21 to hire related to his age, race, or national origin. (ECF No. 19 at 12–13.) 22 To state a claim for failure to hire based on disparate treatment, a plaintiff must show (1) 23 he belongs to a protected class; (2) he applied for and was qualified for the position he was 24 denied; (3) he was rejected despite his qualifications; and (4) the employer filled the position with 25 an employee not of the plaintiff's class, or continued to consider other applicants whose 26 qualifications were comparable to the plaintiff's after rejecting the plaintiff. Dominguez-Curry v. 27 Nevada Transp. Dep't, 424 F.3d 1027, 1037 (9th Cir. 2005). Plaintiff has not alleged Defendant 28 filled any positions with employees who were not members of the same protected class as 7 1 Plaintiff nor has Plaintiff alleged Defendant continued to consider other applicants whose 2 qualifications were comparable to Plaintiff's after rejecting Plaintiff. Because Plaintiff has not 3 alleged facts sufficient to support the fourth element of his failure to hire claim, the Court need 4 not analyze the other three elements. Accordingly, the Court GRANTS Defendant’s motion for 5 judgment on the pleadings as to Plaintiff’s failure to hire claim. 6 D. 7 8 9 Failure to Prevent Discrimination in Violation of California Government Code § 12940(k) Defendant argues FEHA’s Section 12940(k) does not give private litigants a cause of action for a stand-alone claim for failure to prevent discrimination as an independent violation. 10 (ECF No. 19 at 13–14.) Defendant cites the Fair Employment and Housing Commission’s 11 (“FEHC”) decision in In the Matter of the Accusation of the Dep’t Fair Empl. & Hous. v. Lyddan 12 Law Group (Williams), FEHC Dec. No. 10-04-P, at *12 (Oct. 19, 2010) (holding “there cannot be 13 a claim [by a private litigant] for failure to prevent discrimination without a valid claim for 14 discrimination”). (ECF No. 19 at 13.) Plaintiff has not alleged facts sufficient to state a claim for 15 discrimination based on age, race, or national origin, so Plaintiff’s derivative claim of failure to 16 prevent discrimination fails. Accordingly, the Court GRANTS Defendant’s motion for judgment 17 on the pleadings as to Plaintiff’s failure to prevent discrimination claim. 18 E. Intentional Infliction of Emotional Distress 19 Defendant argues Plaintiff’s claim fails as a matter of law because Plaintiff’s allegations 20 with respect to intentional infliction of emotional distress relate to personnel management 21 activities, which do not rise to the level of “extreme and outrageous conduct.” (ECF No. 19 at 22 15.) To state a claim for intentional infliction of emotional distress, a plaintiff must show, among 23 other things, “extreme and outrageous conduct by the defendant with the intention of causing, or 24 reckless disregard of the probability of causing, emotional distress.” Hughes v. Pair, 46 Cal. 4th 25 1035, 1050 (2009). Extreme and outrageous conduct must “exceed all bounds of that usually 26 tolerated in a civilized community.” Id. at 1050–51. “Whether a defendant’s conduct can 27 reasonably be found to be [extreme and] outrageous is a question of law that must initially be 28 determined by the court.” Berkley v. Dowds, 152 Cal. App. 4th 518, 534 (2007). 8 “A simple pleading of personnel management activity is insufficient to support a claim of 1 2 intentional infliction of emotional distress, even if improper motivation is alleged.” Janken v. 3 GM Hughes Electrs., 46 Cal. App. 4th 55, 80 (1996). “Managing personnel is not outrageous 4 conduct beyond the bounds of human decency, but rather conduct essential to the welfare and 5 prosperity of society.” Id. Personnel management activity includes, “hiring and firing, job or 6 project assignments, office or work station assignment, promotion or demotion, performance 7 evaluations, the provision of support, the assignment or non-assignment of supervisory functions, 8 deciding who will and who will not attend meetings, deciding who will be laid off.” Id. at 64–65. 9 Plaintiff alleges Defendant failed to hire him in favor of less qualified applicants despite 10 Defendant’s knowledge of Plaintiff’s “protected characteristics.” (ECF No. 19-1 ¶ 74.) Plaintiff 11 has not alleged any facts that are outside Defendant’s employment and supervisory duties. The 12 action Plaintiff does allege — making a hiring decision — is an activity California courts have 13 expressly found constitute personnel management activity. Janken, 46 Cal. App. 4th at 64–65. Accordingly, the Court GRANTS Defendant’s motion for Judgment on the Pleadings as to 14 15 Plaintiff’s intentional infliction of emotional distress claim. 16 IV. LEAVE TO AMEND 17 Courts have the discretion in appropriate cases to grant a Rule 12(c) motion with leave to 18 amend, or to simply grant dismissal of the action instead of entry of judgment. See Lonberg, 300 19 F. Supp. 2d at 945; Carmen, 982 F. Supp. at 1401. The Court cannot say that the pleading could 20 not possibly be cured by the allegation of other facts. Accordingly, the Court GRANTS Plaintiff 21 leave to amend the complaint within 30 days of the date of this Order. 22 V. 23 For the foregoing reasons, Defendant’s Motion for Judgment on the Pleadings (ECF No. 24 19) is hereby GRANTED as to all claims with leave to amend within 30 days of the date of this 25 Order. 26 27 CONCLUSION IT IS SO ORDERED. Dated: September 5, 2017 28 9 Troy L. Nunley United States District Judge

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