Rhodes v. Adams & Associates, Inc.
Filing
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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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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DENNIS RHODES,
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No. 2:16-cv-00494 -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. 19.) Plaintiff Dennis Rhodes
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(“Plaintiff”) opposes the motion. (ECF No. 20.) Defendant has filed a reply. (ECF No. 21.) For
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the reasons detailed below, the Court hereby GRANTS Defendant’s motion for judgment on the
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pleadings (ECF No. 19).
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I.
FACTUAL AND PROCEDURAL BACKGROUND
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Plaintiff is an African American male who is over 40 years of age. (ECF No. 19-1 ¶¶ 25,
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34.) Plaintiff states he has a B.A. in African American studies and has served as a community
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organizer for a non-profit in the past. (ECF No. 19-1 ¶ 10.) In 2011, Plaintiff was hired as a
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Residential Advisor for Sacramento Job Corps Center (“SJCC”), a career development facility for
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at-risk young adults. (ECF No. 19-1 ¶¶ 9–10.) Plaintiff describes his duties as “counseling
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students” and “maintaining clean and safe living conditions in the dorms.” (ECF No. 19-1 ¶ 11.)
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Plaintiff alleges he was an excellent employee with no disciplinary actions and was an active
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member of the California Federation of Teachers Union (“CFTU”). (ECF No. 19-1 ¶¶ 12–13.)
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In February 2014, Defendant became the new managing corporation of SJCC. (ECF No.
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19-1 ¶ 14.) Plaintiff alleges Defendant announced it planned to reorganize several job duties for
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some positions, reduce the number of Resident Advisor positions, and create a new position
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known as a Resident Coordinator. (ECF No. 19-1 ¶ 15.) Plaintiff alleges he submitted an
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application to Defendant and that Defendant promised to rehire Plaintiff to his Resident Advisor
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position if he did not have any disciplinary actions in his file. (ECF No. ¶¶ 16–17.)
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Plaintiff alleges Defendant invited him for a first round interview, during which Plaintiff
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expressed his interest in either his prior position as a Resident Advisor or a new position as a
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“CTT Instructor.” (ECF No. 19-1 ¶ 18.) Defendant interviewed Plaintiff again during a second
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round interview. (ECF No. 19-1 ¶ 18.) Plaintiff alleges he received a rejection letter from
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Defendant in March 2014, stating he would not be hired for the CTT Instructor position, but with
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no mention of his prior Resident Advisor position. (ECF No. 19-1 ¶ 19.) Plaintiff alleges
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“employees with equal or lesser experience were being hired for similar Advisor positions in
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violation of Job Corps’ collective bargaining agreement with CFTU.” (ECF No. 19-1 ¶ 20.)
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On December 14, 2015, Plaintiff filed a complaint in the Superior Court of Sacramento
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County. (ECF No. 19-1 at 4.) Defendant answered in the Superior Court denying each claim and
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asserting affirmative defenses. (ECF No. 1-1 at 19–24.) On March 9, 2016, Defendant removed
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this action to this Court on the basis of diversity jurisdiction. (ECF No. 1.) Defendant then
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moved for judgment on the pleadings contending that Plaintiff fails to state any claim on which
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relief can be granted. (ECF No. 19 at 7.)
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Plaintiff alleges violations of California’s Fair Employment and Housing Act (“FEHA”)
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and common law: (i) age, race, and national origin discrimination in violation of California
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Government Code § 12940(a); (ii) retaliation in violation of California Government Code §
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12940(h); (iii) failure to hire in violation of public policy in violation of California Government
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Code § 12940(k); (iv) failure to prevent discrimination in violation of California Government
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Code § 12940(k); and (v) intentional infliction of emotional distress. (ECF No. 19-1 at 7–13.)
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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)).
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
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partial judgment on the pleadings, neither does it bar such a procedure; it is common to apply
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Rule 12(c) to individual causes of action.” Strigliabotti v. Franklin Res., Inc., 398 F. Supp. 2d
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1094, 1097 (N.D. Cal. 2005) (citing Moran v. Peralta Cmty. Coll. Dist., 825 F. Supp. 891, 893
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(N.D. Cal. 1993)). Courts have the discretion in appropriate cases to grant a Rule 12(c) motion
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with leave to amend, or to simply grant dismissal of the action instead of entry of judgment. See
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Lonberg v. City of Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 2004); Carmen v. S.F. Unified
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Sch. Dist., 982 F. Supp. 1396, 1401 (N.D. Cal. 1997).
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III.
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Defendant argues Plaintiff failed to plead sufficient facts to support any of his claims.
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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
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age, race, and national origin, arguing Plaintiff’s pleadings are conclusory and “boilerplate.”
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(ECF No. 19 at 9–10.) Plaintiff responds his claims are sufficiently stated. (ECF No. 20 at 4–5.)
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FEHA prohibits an employer from discriminating against an employee because of the
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employee’s age, sex, or race. CAL. GOV’T CODE § 12940(a). To state a claim for discrimination
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under FEHA, a plaintiff must allege: (i) he was a member of a protected class; (ii) he was
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performing competently in the position he held; (iii) he suffered an adverse employment action;
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and (iv) the employer acted with a discriminatory motive. Ayala v. Frito Lay, Inc., No. 116-CV-
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01705-DAD-SKO, 2017 WL 2833401, at *7 (E.D. Cal. June 30, 2017) (citing Lawler v.
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Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir. 2013); Guz v. Bechtel Nat’l., Inc., 24 Cal.
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4th 317, 355 (2000)). A plaintiff can demonstrate discriminatory motive by showing “other
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similarly situated employees outside of the protected class were treated more favorably, or other
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circumstances surrounding the adverse employment action give rise to an inference of
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discrimination.” Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 800 (N.D. Cal. 2015).
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Plaintiff alleges Defendant knew he was a qualified, capable, African American, over 40
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years old. (ECF No. 19-1 ¶¶ 26 & 36.) Plaintiff alleges Defendant failed to hire him despite
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indicating it would if he had no disciplinary history, but did hire employees with equal or lesser
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experience for similar positions. (ECF No. 19-1 ¶¶ 12, 17, 19, & 20.) Plaintiff’s allegation
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Defendant failed to hire him because of his membership in protected classes is a recitation of an
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element. See Iqbal, 556 U.S. at 678. Plaintiff’s allegation Defendant hired other employees with
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equal or less experience is insufficient to plausibly suggest Defendant failed to hire him because
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of his age, race, or national origin. See Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 3d
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1086, 1099 (E.D. Cal. 2017) (finding the plaintiff did not allege facts rising to a plausible
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inference of age discrimination, such as being replaced by a younger employee, overhearing
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negative comments about age, or her age being point of discussion).
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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 his membership in protected classes. Achal, 114 F. Supp. 3d at 802.
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Because Plaintiff has not alleged facts sufficient to support the fourth element in relation to any of
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his discrimination claims, the Court need not analyze the other three elements. Accordingly, the
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Court GRANTS Defendant’s motion for judgment on the pleadings as to Plaintiff’s
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discrimination claims.
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B.
Retaliation in Violation of California Government Code § 12940(h)
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Plaintiff alleges he engaged in the protected activities of “being an African American male
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over the age of 40,” and “an active member of the union representing Resident Advisors.” (ECF
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No. 19-1 ¶¶ 45–46.) Plaintiff alleges Defendant retaliated against him by refusing to hire him
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because of those alleged protected activities. (ECF No. 19-1 ¶¶ 45–46.) Defendant argues
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Plaintiff’s claim is preempted by the National Labor Relations Act (“NLRA”), and Plaintiff failed
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to show causation between Defendant’s refusal to hire Plaintiff and any protected activity. (ECF
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No. 19 at 11–12.)
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i.
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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
National Labor Relations Act (“NLRA”) Preemption
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labor unions and bargain collectively. 29 U.S.C. § 158(a)(1)-(3). Plaintiff’s claim for retaliation
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based on Plaintiff’s active union membership, if proven, would constitute a violation of the
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NLRA and is subject to Garmon preemption. Clayton v. Pepsi Cola Bottling Grp., Civ. A. No.
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CV85-5957-WMB, 1987 WL 46230, at *7 n.1 (C.D. Cal. Mar. 3, 1987).
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Plaintiff responds Garmon preemption should not apply to his entire wrongful termination
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claim because Defendant had multiple illegal reasons for wrongfully terminating him (ECF No.
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denied and opinion modified (Sept. 20, 1988) (holding a court retains jurisdiction over wrongful
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termination claims based on many illegal reasons, if some reason or reasons were not even
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arguably related to unfair labor practices). Plaintiff’s complaint, however, is based on
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Defendant’s refusal to hire him not wrongful termination (ECF No. 19-1 ¶ 19). The Court will
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construe Plaintiff’s response as arguing that Garmon preemption should not apply to his entire
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retaliation claim for failure to hire.
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Plaintiff’s claims for wrongful termination based on age, race, and national origin, 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 retaliation based on union membership is preempted by
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NLRA, but Plaintiff’s claims for retaliation for failure to hire based on Plaintiff’s age, race, and
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national origin are not preempted.
Pleading Adequacy of Plaintiff’s Retaliation Claim
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ii.
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Defendant argues Plaintiff’s retaliation claims which are not preempted, for failure to hire
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because of age, race, and national origin, fail because Plaintiff has not alleged he engaged in any
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protected activity in relation to those claims, a required element. (ECF No. 18 at 12–13.)
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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
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adverse employment action, and (3) a causal link existed between the protected activity and the
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employer’s action.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005); Ayala, 2017
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WL 2833401, at *12. “Protected activity” under Section 12940(h) means an employee “opposed
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any practices forbidden under [FEHA] or . . . filed a complaint, testified, or assisted in any
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proceeding under [FEHA].” CAL. GOV’T CODE § 12940(h); Yanowitz, at 1042.
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Plaintiff’s has not alleged he engaged in any protected activity under Section 12940(h),
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such as opposing a practice forbidden under FEHA or filing a complaint. Plaintiff’s claim for
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retaliation is simply a duplicate of his age, race, and national origin discrimination claims. The
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only non-preempted “activity” Plaintiff alleges is “being” a member of protected classes under
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FEHA, which is not included among the activities which qualify as protected activity under
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Section 12940(h). Because Plaintiff has not alleged facts sufficient to support the first element of
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his retaliation claims based on age, race, or national origin, the Court need not analyze the other
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elements. As discussed above, Plaintiff’s claim for retaliation based on union activities is subject
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to the exclusive jurisdiction of the NLRB. Accordingly, the Court GRANTS Defendant’s motion
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for judgment on the pleadings as to Plaintiff’s retaliation claim.
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C.
Failure to Hire in Violation of Public Policy
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Plaintiff alleges Defendant failed to hire him in violation of public policy by rejecting his
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application because of his “protected characteristics, including his union affiliation.” (ECF No.
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19-1 ¶ 58.) Defendant argues Plaintiff’s claim related to his union activity is preempted and the
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remainder of his claim is conclusory and fails to allege sufficient facts to state a claim for failure
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to hire related to his age, race, or national origin. (ECF No. 19 at 12–13.)
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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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he belongs to a protected class; (2) he applied for and was qualified for the position he was
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denied; (3) he was rejected despite his qualifications; and (4) the employer filled the position with
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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
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filled any positions with employees who were not members of the same protected class as
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Plaintiff nor has Plaintiff alleged Defendant continued to consider other applicants whose
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qualifications were comparable to Plaintiff's after rejecting Plaintiff. Because Plaintiff has not
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alleged facts sufficient to support the fourth element of his failure to hire claim, the Court need
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not analyze the other three elements. Accordingly, the Court GRANTS Defendant’s motion for
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judgment on the pleadings as to Plaintiff’s failure to hire claim.
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D.
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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.
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(ECF No. 19 at 13–14.) Defendant cites the Fair Employment and Housing Commission’s
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(“FEHC”) decision in In the Matter of the Accusation of the Dep’t Fair Empl. & Hous. v. Lyddan
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Law Group (Williams), FEHC Dec. No. 10-04-P, at *12 (Oct. 19, 2010) (holding “there cannot be
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a claim [by a private litigant] for failure to prevent discrimination without a valid claim for
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discrimination”). (ECF No. 19 at 13.) Plaintiff has not alleged facts sufficient to state a claim for
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discrimination based on age, race, or national origin, so Plaintiff’s derivative claim of failure to
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prevent discrimination fails. Accordingly, the Court GRANTS Defendant’s motion for judgment
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on the pleadings as to Plaintiff’s failure to prevent discrimination claim.
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E.
Intentional Infliction of Emotional Distress
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Defendant argues Plaintiff’s claim fails as a matter of law because Plaintiff’s allegations
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with respect to intentional infliction of emotional distress relate to personnel management
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activities, which do not rise to the level of “extreme and outrageous conduct.” (ECF No. 19 at
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15.) To state a claim for intentional infliction of emotional distress, a plaintiff must show, among
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other things, “extreme and outrageous conduct by the defendant with the intention of causing, or
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reckless disregard of the probability of causing, emotional distress.” Hughes v. Pair, 46 Cal. 4th
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1035, 1050 (2009). Extreme and outrageous conduct must “exceed all bounds of that usually
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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).
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“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 him in favor of less qualified applicants despite
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Defendant’s knowledge of Plaintiff’s “protected characteristics.” (ECF No. 19-1 ¶ 74.) 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 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
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Plaintiff’s intentional infliction of emotional distress claim.
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IV.
LEAVE TO AMEND
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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.
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V.
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For the foregoing reasons, Defendant’s Motion for Judgment on the Pleadings (ECF No.
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19) is hereby GRANTED as to all claims with leave to amend within 30 days of the date of this
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Order.
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CONCLUSION
IT IS SO ORDERED.
Dated: September 5, 2017
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Troy L. Nunley
United States District Judge
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