Aspiras v. Adams & Associates, Inc.

Filing 23

ORDER signed by District Judge Troy L. Nunley on 10/03/17 GRANTING 15 Motion for Judgment on the Pleadings as to all claims with 30 days LEAVE TO AMEND. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROLANDO ASPIRAS,

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No. 2:16-cv-00958-TLN-KJN

Plaintiff,
v.
ADAMS & ASSOCIATES, INC., a
Nevada corporation,

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. 15.) Plaintiff Rolando Aspiras

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(“Plaintiff”) opposes the motion. (ECF No. 17.) Defendant has filed a reply. (ECF No. 18.) For

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the reasons discussed below, the Court hereby GRANTS Defendant’s motion for judgment on the

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pleadings (ECF No. 15).

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff alleges he was hired in 1999 as a Residential Advisor for Sacramento Job Corps

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Center (“SJCC”), a career development facility for at-risk young adults. (ECF No. 15-1 ¶¶ 9–10.)

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Plaintiff states he generally worked the graveyard shift and describers his duties as helping

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students solve problems and maintaining clean and safe living conditions. (ECF No. 15-1 ¶ 11.)

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Plaintiff alleges he had no disciplinary history and worked “with support and praise from his
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supervisors for many years.” (ECF No. 15-1 ¶ 12.) Plaintiff states he is an “Asian American of

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Filipino descent,” who is over 40 years old, and was “an active member of his labor union, the

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California Federation of Teachers Union (“CFT”).” (ECF No. 15-1 ¶¶ 13, 31, 39.)

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

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15-1 ¶ 14.) Plaintiff alleges Defendant announced “it would evaluate and interview [SJCC]

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employees to continue in their positions.” (ECF No. 15-1 ¶ 15.) Plaintiff alleges he interviewed

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and Defendant rehired him as a Residential Advisor in March 2014. (ECF No. 15-1 ¶ 16.)

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Plaintiff alleges Defendant “began to treat him differently than other employees.” (ECF

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No. 15-1 ¶ 17.) Plaintiff alleges “his supervisor, Maria Espinoza (“Espinoza”), targeted him by

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checking on him more frequently than non-minority employees[.]” (ECF No. 15-1 ¶ 18.)

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Plaintiff states he believes she did so “in order to find reasons to fire him.” (ECF No. 15-1 ¶ 18.)

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Plaintiff also alleges Espinoza “harassed him and attempted to incite him to act out by discussing

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religious views with him that she knew were contrary to his beliefs.” (ECF No. 15-1 ¶ 19.)

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Plaintiff alleges Defendant terminated his employment in July 2014, by letter, stating the

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termination was “due to sleeping on the job.” (ECF No. 15-1 ¶ 20.) Plaintiff alleges he never

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slept on the job and believes Defendant “trumped up two minor incidents during which Plaintiff

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was ill or in pain to falsely accuse him of sleeping at work.” (ECF No. 15-1 ¶ 21.) Plaintiff

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alleges Defendant did not give him any warnings before firing him. (ECF No. 15-1 ¶ 22.)

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On February 19, 2016, Plaintiff filed a complaint in the Superior Court of Sacramento

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County. (ECF No. 15-1 at 4.) Defendant answered the complaint and then removed the case to

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this Court on the basis of diversity jurisdiction. (ECF No. 1 at 1; ECF No. 1 at 33–42.)

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Defendant moves for judgment on the pleadings for failure to state a claim. (ECF No. 15 at 7.)

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Plaintiff alleges several claims for violation of the California Fair Employment and

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Housing Act (“FEHA”) and common law: (1) age, race, and national origin discrimination in

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violation of California Government Code § 12940; (2) wrongful termination in violation of public

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policy; (3) retaliation in violation of California Government Code § 12940(h); (4) failure to

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prevent discrimination in violation of public policy; and (5) intentional infliction of emotional

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distress. (ECF No. 15-1 ¶¶ 29–82.)
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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 n.4 (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 Resources, Inc., 398 F. Supp.
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2d 1094, 1097 (N.D. Cal. 2005) (citing Moran v. Peralta Community College Dist., 825 F. Supp.

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891, 893 (N.D. Cal. 1993)). Courts have the discretion in appropriate cases to grant a Rule 12(c)

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motion with leave to amend, or to simply grant dismissal of the action instead of entry of

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judgment. See Lonberg v. City of Riverside, 300 F. Supp. 2d 942, 945 (C.D. Cal. 2004); Carmen

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v. S.F. Unified Sch. Dist., 982 F. Supp. 1396, 1401 (N.D. Cal. 1997).

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III.

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

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(ECF No. 15 at 9.) The Court will address each claim in turn.

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ANALYSIS

A.

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

Plaintiff alleges Defendant discriminated against him because of his age, race and national

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origin. (ECF No. 15-1 ¶¶ 31–32, 39–40.) Defendant argues Plaintiff makes only conclusory

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allegations and does not allege facts sufficient to show grounds for relief or to demonstrate

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Defendant based its decisions on Plaintiff’s protected characteristics. (ECF No. 15 at 9–10.)

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

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17 at 6.)

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

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employee’s age, race, or national origin. CAL. GOV’T CODE § 12940(a). To state a claim for

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discrimination under FEHA, a plaintiff must allege: (i) he was a member of a protected class; (ii)

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he was performing competently in the position he held; (iii) he suffered an adverse employment

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action; and (iv) the employer acted with a discriminatory motive. Ayala v. Frito Lay, Inc., No.

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116-CV-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 he is “over the age of 40,” an “Asian American of Filipino descent” and

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Defendant discriminated against him based on his age, race and national origin. (ECF No. 15-1
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¶¶ 30–32, 39–40.) Plaintiff’s allegations Defendant acted because of his age, race or national

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origin, are recitations of an element. See Iqbal, 556 U.S. at 678.

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In his general factual allegations, Plaintiff also alleges Defendant checked on him “more

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frequently than non-minority employees.” (ECF No 15-1 ¶ 18.) Plaintiff has not linked the term

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“non-minority employees” to his age, race or national origin. The Court is not able to infer those

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employees were outside Plaintiff’s protected classes. Cf. McGinest v. GTE Serv. Corp., 360 F.3d

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

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promote based on race by showing that rather than filling the position by promoting any of the

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

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Plaintiff also alleges Defendant provided a reason for his termination, sleeping on the job

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that did not accurately reflect his performance because he never slept on the job. (ECF No. 15-1

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¶¶ 20–21.) Plaintiff states he believes Defendant “trumped up” two incidents to support the

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accusation, but does not allege any further facts. (ECF No. 15-1 ¶ 21.) Plaintiff supplies a

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conclusion, but does not provide sufficient facts to allow the Court to infer a discriminatory

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motive. Achal, 114 F. Supp. 3d at 804–05 (finding the plaintiff’s pleading was sufficient to infer

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pretext where the plaintiff alleged the defendant claimed it fired him for causing his own

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disability, but the defendant did not conduct any independent investigation before termination).

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Plaintiff further alleges his manager, Espinoza, “attempted to incite him to act out by

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discussing religious views with him that she knew were contrary to his beliefs.” (ECF No. 15-1 ¶

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19.) Plaintiff does not link this allegation to his age, race or national origin. See Ravel v.

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Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 1086, 1099 (E.D. Cal. 2017) (finding plaintiff did

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not allege facts rising to a plausible inference of age discrimination, such as being replaced by a

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younger employee, overhearing negative comments about age, or age being point of discussion).

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Plaintiff does not allege facts sufficient to support a reasonable inference Defendant acted

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because of his age, race or national origin. Plaintiff has not met the fourth element of his

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discrimination claims for age, race and national origin, so the Court need not analyze the other

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

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as to Plaintiff’s claims for discrimination based on age, race and national origin.
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B.

Wrongful Termination in Violation of Public Policy

Plaintiff alleges Defendant wrongfully terminated his employment in violation of public

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policy based on Plaintiff’s age, race, national origin, and union affiliation. (ECF No. 15-1 ¶ 49.)

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Defendant argues Plaintiff’s claim related to his union membership or activity is preempted and

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the remainder of his claim fails because Plaintiff’s wrongful termination claim is based on

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deficient discrimination claims. (ECF No. 15 at 11–13.)

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i.

NLRA Preemption

In cases which involve either an actual or an arguable violation of Sections 7 or 8 of 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 Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959)).

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

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

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employers from engaging in unfair labor practices or interfering with employees’ rights to join

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labor unions and bargain collectively. 29 U.S.C. § 158.

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Plaintiff’s claim for wrongful termination based on Plaintiff’s active union membership, if

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

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

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Cal. Mar. 3, 1987). Plaintiff argues Defendant had multiple illegal reasons for terminating him,

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and Garmon preemption should not apply to his entire wrongful termination claim, which

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includes allegations of public policy violations outside NLRB’s jurisdiction. (ECF No. 17 at 9)

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(citing Balog v. LRJV, Inc., 203 Cal. App. 3d 1295, 1308–09 (Ct. App. 1988), reh’g denied and

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opinion modified (Sept. 20, 1988) (holding a court retains jurisdiction over wrongful termination

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claims based on many illegal reasons, if some reason or reasons were unrelated to unfair labor

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practices).

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Plaintiff’s claim for wrongful termination based on age, race, or national origin, is not

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arguably related to violations of Sections 7 or 8 of NLRA, which protect union activities. The

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scheme of civil protection set out in FEHA is the type of interest “deeply rooted in local feeling
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and responsibility” NLRA does not deprive the states of the power to act on. See Sears, Roebuck

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

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

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

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activity is preempted by NLRA, but Plaintiff’s claim for wrongful termination based on

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Plaintiff’s age, race or national origin is not preempted.

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ii.

Pleading Adequacy of Plaintiff’s Wrongful Termination Claim

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Defendant argues, to the extent Plaintiff’s wrongful termination claim is not preempted, it

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fails because it is premised on deficient discrimination claims. (ECF No. 15 at 12–13.) Plaintiff

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states the facts alleged “are sufficient to support all of the causes of action.” (ECF No. 17 at 6.)
“The elements of a claim for wrongful discharge in violation of public policy are (1) an

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employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the

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termination was substantially motivated by a violation of public policy, and (4) the discharge

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caused the plaintiff harm.” Yau v. Allen, 229 Cal. App. 4th 144, 154 (2014).

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As discussed above, Plaintiff does not state sufficient allegations to support claims for

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age, race or national origin discrimination, therefore Plaintiff’s derivative claim for wrongful

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termination in violation of public policy based on age, race or national origin fails. Alejandro v.

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ST Micro Elecs., Inc., 178 F. Supp. 3d 850, 866 (N.D. Cal. Apr. 8, 2016). Accordingly, the Court

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GRANTS Defendant’s motion for judgment on the pleadings as to Plaintiff’s wrongful termination

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in violation of public policy claim.

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C.

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

Plaintiff alleges Defendant retaliated against him because he engaged in “such protected

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activities as being a dark-skinned Asian American of Filipino descent over the age of 40” and

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“was an active member of the CFT union.” (ECF No. 15-1 ¶¶ 58–59.) Defendant argues Plaintiff

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fails to show causation between Plaintiff’s termination and any protected activity, and any claim

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based on Defendant’s union activity is preempted. (ECF No. 15 at 13.) Plaintiff states the facts

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alleged “are sufficient to support all of the causes of action.” (ECF No. 17 at 6.)

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To establish a claim for retaliation under FEHA Section 12940(h), a plaintiff must show

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

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

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

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

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

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

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

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

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Further, any claim for retaliation based on union membership or activities would be preempted by

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the NLRA and subject to the exclusive jurisdiction of NLRB. Plaintiff has not alleged facts

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sufficient to support the first element of his retaliation claim, so the Court need not analyze the

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

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pleadings as to Plaintiff’s retaliation claim.

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D.

Failure to Prevent Discrimination in Violation of Public Policy1

Plaintiff alleges Defendant violated public policy by “terminating Plaintiff’s employment

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on account of his protected characteristics, including his union affiliation[.]” (ECF No. 15-1 ¶

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

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for a stand-alone claim for failure to prevent discrimination. (ECF No. 15 at 13–15.) Defendant

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

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

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

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to prevent discrimination without a valid claim for discrimination”). (ECF No. 15 at 14.)

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Plaintiff states the facts alleged are sufficient to support his causes of action. (ECF No. 17 at 6.)

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As discussed above, Plaintiff’s claims based on his union membership or activities are

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preempted and Plaintiff has not alleged facts sufficient to state a claim for discrimination based

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The Court notes Plaintiff has not specified that he brings his claim under FEHA § 12940(k), but he states
Defendant was subject to FEHA and titles his claim failure to prevent discrimination in violation of public policy.
(ECF No. 15-1 ¶ 65–66.)

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on age, race or national origin. Plaintiff’s derivative claim for failure to prevent discrimination,

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therefore, fails. Ayala, 2017 WL 2833401 at *8 (finding the plaintiff did not allege sufficient

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facts to support the existence of a discriminatory motive and so had not adequately pled her

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claims for discrimination and failure to prevent discrimination).

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Accordingly, the Court GRANTS Defendant’s motion for judgment on the pleadings as to
Plaintiff’s failure to prevent discrimination in violation of public policy claim.

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E.

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Intentional Infliction of Emotional Distress

Plaintiff alleges Defendant knew of Plaintiff’s protected characteristics, but terminated

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Plaintiff’s employment “with the intent to cause emotional distress or with reckless disregard of

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the probability” of doing so. (ECF No. 15-1 ¶¶ 78–79.) Defendant argues Plaintiff’s claim fails

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because Plaintiff’s allegations relate to personnel management activities, which cannot constitute

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“extreme and outrageous conduct,” a required element of this claim. (ECF No. 15 at 15–16.)

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

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

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

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

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

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reasonably be found to be [extreme and] outrageous is a question of law that must initially be

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determined by the court.” Berkley v. Dowds, 152 Cal. App. 4th 518, 534 (2007).
“A simple pleading of personnel management activity is insufficient to support a claim of

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

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

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

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

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

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

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

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Plaintiff alleges Defendant terminated his employment despite Defendant’s knowledge of

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Plaintiff’s protected characteristics. (ECF No. 15-1 ¶ 79.) Plaintiff has not alleged any facts that

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are outside Defendant’s employment and supervisory duties. The action Plaintiff does allege —

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making a firing decision — is an activity California courts have expressly found constitutes

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

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

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IV.

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 v.

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

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982 F. Supp. 1396, 1401 (N.D. Cal. 1997). The Court cannot say that the pleading could not

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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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15) 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.

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Dated: October 3, 2017

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Troy L. Nunley
United States District Judge

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