Rhodes v. Adams & Associates, Inc.

Filing 33

ORDER signed by District Judge Troy L. Nunley on 8/13/18 GRANTING with prejudice 28 Motion to Dismiss. (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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Plaintiff,

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No. 2:16-cv-00494-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. 28.) Plaintiff

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Dennis Rhodes (“Plaintiff”) opposes the motion. (ECF No. 29.) Defendant has filed a reply.

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(ECF No. 31.) For the reasons detailed below, the Court hereby GRANTS Defendant’s Motion to

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Dismiss, (ECF No. 28), with prejudice.

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I.

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Plaintiff is an African American male who is over 40 years of age. (ECF No. 27 ¶¶ 44,

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52.) 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. 27 ¶ 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. 27 ¶¶ 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. 27 ¶ 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. 27 ¶¶ 12–13.)

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FACTUAL AND PROCEDURAL BACKGROUND

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

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27 ¶ 3.) 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. 27 ¶ 21.) 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. 27 ¶¶ 22–23.)

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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. 27 ¶ 24.) Defendant interviewed Plaintiff again during a second

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round interview. (ECF No. 27 ¶ 24.) 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. 27 ¶ 26.)

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Plaintiff alleges “employees with equal or lesser experience were being hired for similar

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Advisor positions in violation of Job Corps’ collective bargaining agreement with CFT.” (ECF

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No. 27 ¶ 27.) Plaintiff alleges “he had significantly more experience and qualifications than several

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younger, Caucasian and Hispanic applicants who were hired for positions by Defendant.” (ECF No.

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27 ¶ 29.) Plaintiff alleges Defendant requested applicants provide documentation of employment

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with SJCC, including pay records, and believes Defendant requested these documents to identify

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more senior employees who were paid at a higher pay scale. (ECF No. 27 ¶ 30.)
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Defendant moved for judgment on the pleadings for failure to state a claim. (ECF No. 19

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at 7.) The Court granted Defendant’s motion as to all claims and granted Plaintiff leave to amend

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his complaint. (ECF No. 25.) Plaintiff amended his complaint, alleging the same six claims for

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violations of California’s Fair Employment and Housing Act (“FEHA”) and common law. (ECF

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No. 27 at 7–14.) Defendant moves to dismiss for failure to state a claim. (ECF No. 28.)

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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

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amend even if no request to amend the pleading was made, unless it determines that the pleading

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could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130

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

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

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

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leave to amend when justice so requires under Federal Rule of Civil Procedure 15(a)(2), “the

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

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

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

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III.

ANALYSIS

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Defendant argues Plaintiff fails to allege sufficient facts. (ECF No. 28 at 3.)

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A.

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Plaintiff claims Defendant discriminated against him due to his age, race, and national

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

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origin, by refusing to hire him because he was an African American over 40 years old. (ECF No.

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27 ¶¶ 43–53.) To state a claim for discrimination under FEHA, a plaintiff must allege he suffered
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an adverse employment action and the employer acted with a discriminatory motive. Ayala v.

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

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

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

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more favorably.” Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 800 (N.D. Cal. 2015).
Plaintiff alleges “employees with equal or lesser experience were being hired for similar

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Advisor positions,” (ECF No. 27 ¶ 27), but does not allege those other employees were of

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different races, national origins, or ages. Plaintiff alleges “he had significantly more experience

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and qualifications than several younger, Caucasian and Hispanic applicants who were hired for

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positions by Defendant,” (ECF No. 27 ¶ 29), but does not allege those other applicants were hired

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into the Resident Advisor or CTT Instructor positions for which Plaintiff applied.

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Plaintiff has not alleged he was treated differently than similarly situated individuals. He

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has not alleged similarly situated employees who were not of Plaintiff’s race, national origin, or

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age were treated more favorably. Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 1086,

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1099 (E.D. Cal. 2017) (finding the plaintiff did not allege facts rising to a plausible inference of

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age discrimination, such as being replaced by a younger employee, overhearing negative

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comments about age, or her age being point of discussion); cf. McGinest v. GTE Serv. Corp., 360

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F.3d 1103, 1122 (9th Cir. 2004) (finding African American plaintiff stated a case for failure to

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promote by showing the employer transferred a white manager into a position rather than

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promoting any of the qualified African American interviewees). Plaintiff’s allegations do not

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give rise to an inference that Defendant failed to hire Plaintiff because of his membership in

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protected classes. Achal, 114 F. Supp. 3d at 802. Accordingly, the Court GRANTS Defendant’s

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motion to dismiss as to Plaintiff’s discrimination claims.

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B.

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

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Plaintiff alleges Defendant retaliated against him by refusing to hire him because he

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engaged in protected activities of “being an African American male over the age of 40 and raising

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complaints about discrimination within Defendant’s [] hiring practices.” (ECF No. 27 ¶ 63.)

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To establish claim for retaliation in violation of Section 12940(h), a plaintiff must show

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

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

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

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

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

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

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Plaintiff’s claim for retaliation because of his age and race is a duplication of his age, race,

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and national origin discrimination claims. “Being” a member of protected classes under FEHA is

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not among the activities which qualify as protected activity under Section 12940(h). CAL. GOV’T

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CODE § 12940(h); Yanowitz, 36 Cal. 4th at 1042. Plaintiff claims that after Defendant refused to

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hire him, he and his union representative “raised the question of discriminatory hiring practices.”

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(ECF No. 27 ¶ 32.) Plaintiff has not alleged he engaged in any protected activity before

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Defendant declined to hire him, and he has not cited any authority to support a retaliation claim

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when the claimed retaliation took place prior to the protected activity. Accordingly, the Court

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GRANTS Defendant’s motion to dismiss Plaintiff’s retaliation claim.

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C.

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

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Failure to Hire in Violation of Public Policy

application because of his “aforementioned protected characteristics.” (ECF No. 27 ¶ 73.)

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

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belongs to a protected class and the employer filled the position with an employee not of the

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plaintiff's class, or continued to consider other applicants whose qualifications were comparable

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to the plaintiff's after rejecting the plaintiff. Dominguez-Curry v. Nevada Transp. Dep't, 424 F.3d

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1027, 1037 (9th Cir. 2005). Plaintiff has not alleged Defendant filled any positions with

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employees who were not members of the same protected class as Plaintiff or continued to

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consider applicants with comparable qualifications after rejecting Plaintiff. Accordingly, the

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Court GRANTS Defendant’s motion to dismiss 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)

Plaintiff asserts a claim for failure to prevent discrimination pursuant to Cal. Gov’t Code §

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12940(k). (ECF No. 27 ¶ 80.) FEHA’s Section 12940(k) does not give private litigants a cause

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of action for a stand-alone claim for failure to prevent discrimination as an independent violation.

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In the Matter of the Accusation of the Dep’t Fair Empl. & Hous. v. Lyddan Law Group

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(Williams), FEHC Dec. No. 10-04-P, at *12 (Oct. 19, 2010) (holding “there cannot be a claim [by

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a private litigant] for failure to prevent discrimination without a valid claim for discrimination”).

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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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national origin, so the derivative claim of failure to prevent discrimination fails. Accordingly, the

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Court GRANTS Defendant’s motion to dismiss Plaintiff’s failure to prevent discrimination claim.

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E.

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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). “A simple pleading of personnel management activity is

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

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

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Intentional Infliction of Emotional Distress

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. 27 ¶ 90.) Plaintiff

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has not alleged conduct other than making a hiring decision, and that is an activity California

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courts have expressly found constitute personnel management activity. Janken, 46 Cal. App. 4th

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at 64–65. Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s intentional

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infliction of emotional distress claim.

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IV.

LEAVE TO AMEND

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

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

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the plaintiff had several opportunities to amend its complaint and repeatedly failed to cure
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deficiencies.” Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). Although a

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

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

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

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

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Plaintiff has had two opportunities to allege facts sufficient to support his claims and has

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

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

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granted leave to amend. (ECF No. 25.) Those deficiencies have not been cured and it would be

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

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amend.

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V.

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

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CONCLUSION

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IT IS SO ORDERED.

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Dated: August 13, 2018

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Troy L. Nunley
United States District Judge

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