Goens v. Adams & Associates, Inc.

Filing 24

ORDER signed by District Judge Troy L. Nunley on 9/8/17, GRANTING defendant's 16 Motion for Judgment on the Pleadings as to all claims with leave to amend within 30 days of the date of this Order. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MAURICE GOENS,

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No. 2:16-cv-00960-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. 16.) Plaintiff Maurice Goens

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

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pleadings (ECF No. 16).

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff is an African American male who practices Islam. (ECF No. 16-1 ¶ 13.)

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Plaintiff alleges in 2008 he was hired as a Recreational Specialist for Sacramento Job Corps

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Center (“SJCC”), a career development facility for at-risk young adults. (ECF No. 16-1 ¶¶ 9–10.)

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Plaintiff states his duties included promoting student involvement in recreational activities and

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educational trips for students. (ECF No. 16-1 ¶ 11.) Plaintiff alleges during his tenure he had no

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disciplinary history, worked “with support and praise from his supervisors,” and received the
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employee of the month award three times. (ECF No. 16-1 ¶ 12.) Plaintiff also alleges he was an

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active member of the California Federation of Teachers Union (“CFTU”). (ECF No. 16-1 ¶ 13.)

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

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16-1 ¶ 14.) Plaintiff alleges Defendant announced it would evaluate and interview all employees,

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and reorganize several job duties for positions. (ECF No. 16-1 ¶¶ 15 & 17.) Plaintiff alleges he

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attended meetings with Defendant and was rehired as a Recreational Specialist. (ECF No. 16-1

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¶¶ 16 & 18.) Plaintiff alleges his employment status went from full-time to part-time “shortly

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after” he informed Defendant he practiced Islam. (ECF No. 16-1 ¶ 18.) Plaintiff also alleges

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Defendant “favored women” and “disfavored” union supporters. (ECF No. 16-1 ¶ 21.) Plaintiff

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alleges his supervisor falsified “claims against employees to reach predetermined outcomes

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regarding employment of minorities and union members.” (ECF No. 16-1 ¶ 21.)

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Defendant terminated Plaintiff’s employment on the final day of his six-month

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probationary period, citing Plaintiff’s “(1) lack of improvement in promoting student involvement

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in recreation; (2) failure to perform assigned duties as discussed with supervisor; (3) and failure to

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successfully pass the 6-month introductory period.” (ECF No. 16-1 ¶ 19.) Plaintiff disputes this

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and alleges that he performed all assigned duties, as well as extra responsibilities, even while

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working part time. (ECF No. 16-1 ¶ 20.)

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On March 23, 2016, Plaintiff filed a complaint in the Superior Court of Sacramento

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County. (ECF No. 16-1 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 36–43.) Defendant moved for

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judgment on the pleadings arguing Plaintiff fails to state a claim. (ECF No. 16.)

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Plaintiff alleges claims for violations of the California Fair Employment and Housing Act

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(“FEHA”) and common law, including: (i) race, religion, and sex discrimination in violation of

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California Government Code § 12940(a); (ii) wrongful termination in violation of public policy;

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(iii) retaliation in violation of California Government Code § 12940(h); (iv) harassment; (v)

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failure to prevent discrimination in violation of California Government Code § 12940(k),” and;

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(vi) intentional infliction of emotional distress. (ECF No. 16-1 at 4–16.)1

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Plaintiff alleges two claims for wrongful termination in violation of public policy. (See ECF No. 16-1 ¶¶

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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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32–42, 74–83.) Plaintiff does not explain this duplication, and the Court will address both as a single claim.

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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. 16 at 7.) The Court will discuss each claim in turn.

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A.

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

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Defendant moves to dismiss Plaintiff’s FEHA claims for discrimination on the basis of

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race, religion, and sex, arguing Plaintiff’s pleadings are conclusory and “boilerplate.” (ECF No.

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16 at 10.) Plaintiff responds his claims are sufficiently stated. (ECF No. 17 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 race, religion, or sex. 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 went from being a full-time employee to only working part-time” and

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that Defendant terminated his employment because he was an African American man who

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practiced Islam, and Defendant knew of his membership in protected classes. (ECF No. 16-1 ¶¶

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26–27.) Plaintiff’s allegation his status was reduced or Defendant terminated him because of his
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membership in protected classes is a recitation of an element. See Iqbal, 556 U.S. at 678.

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Plaintiff’s allegation Defendant reduced his hours or terminated his employment for reasons he

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disputes is insufficient to plausibly suggest Defendant acted because of his race, religion, or sex.

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

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the plaintiff did not allege facts rising to a plausible inference of age discrimination, such as being

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replaced by a younger employee, overhearing negative comments about age, or her age being

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point of discussion); cf. Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d at 801–02 (finding the

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plaintiff pleaded specific non-conclusory facts sufficient to give rise to a plausible inference

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religion was a significant motivating factor in his termination and defendant’s proffered reason

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was pretextual, where the plaintiff alleged the defendant claimed it fired him for benefits fraud

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but never investigated, there was no question as to his job performance during his employment,

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and his supervisor complained about his time off for religious practice and called one of the

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practices of the plaintiff’s Hindu faith “ridiculous”).

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Plaintiff’s allegations do not give rise to a plausible inference that Defendant’s proffered

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reason for terminating Plaintiff was pretextual. Achal, 114 F. Supp. 3d at 802. Because Plaintiff

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has not alleged facts sufficient to support the fourth element in relation to any of his

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discrimination claims, the Court need not analyze the other three elements. Accordingly, the

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Court finds Plaintiff does not adequately state claims for age, sex, or race discrimination pursuant

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to 12940(a) and GRANTS Defendant’s motion for judgment on the pleadings as to Plaintiff’s

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discrimination claims.

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B.

Wrongful Termination in Violation of Public Policy

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Plaintiff alleges Defendant wrongfully terminated his employment in violation of public

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policy based on Plaintiff’s “union affiliation, race, national origin, gender, and religion.” (ECF

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No. 16-1 ¶¶ 35, 77, & 78.) Defendant argues Plaintiff’s claim is preempted by the National Labor

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Relations Act (“NLRA”), fails to allege sufficient facts, or alternatively, fails because Plaintiff’s

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wrongful termination claim is based on deficient discrimination claims. (ECF No. 16 at 12–14.)
National Labor Relations Act (“NLRA”) Preemption

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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

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labor unions and bargain collectively. 29 U.S.C. § 158(a)(1)-(3). Plaintiff’s claim for wrongful

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termination based on Plaintiff’s active union membership, if proven, would constitute a violation

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of the NLRA and is subject to Garmon preemption. Clayton v. Pepsi Cola Bottling Grp., Civ. A.

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No. CV85-5957-WMB, 1987 WL 46230, at *7 n.1 (C.D. Cal. Mar. 3, 1987).
Plaintiff, however, argues Defendant had multiple illegal reasons for terminating him, and

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

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allegations of public policy violations outside NLRB’s jurisdiction. (ECF No. 17 at 8–9) (citing

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Balog v. LRJV, Inc., 204 Cal. App. 3d 1295, 1308–09 (Ct. App. 1988), reh’g denied and opinion

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

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based on many illegal reasons, if some reason or reasons were not even arguably related to unfair

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labor practices). Plaintiff’s claims for wrongful termination based on race, national origin,

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gender, and religion, are not arguably related to violations of either Section 7 or 8 of NLRA,

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which protect union activities. The scheme of civil protection set out in FEHA is the type of

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interest “deeply rooted in local feeling and responsibility” NLRA does not deprive the states of

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the power to act on. See Sears, Roebuck & Co. v. San Diego Cty. Dist. Council of Carpenters,

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436 U.S. 180, 196 (1978); Carter v. Smith 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 is

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preempted by NLRA, but Plaintiff’s claims for wrongful termination in violation of public policy

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regarding Plaintiff’s race, national origin, gender, and religion, are not preempted.

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ii.

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

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Pleading Adequacy of Plaintiff’s Wrongful Termination Claim

fails because it is premised on deficient discrimination claims. (ECF No. 16 at 14.) “The
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elements of a claim for wrongful discharge in violation of public policy are (1) an employer-

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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, Plaintiff does not state sufficient allegations to support claims for race,

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religion, or gender discrimination, so Plaintiff’s derivative claim for wrongful termination in

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violation of public policy based on race, religion, or sex fails. See Tumblin v. USA Waste of

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California, Inc., No. CV 16-2902 DSF-PLAX, 2016 WL 3922044, at *8 (C.D. Cal. 2016).

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Plaintiff asserts this claim is also based on national origin. (ECF No. 16-1 ¶ 78.) This is the only

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portion of the complaint in which Plaintiff alleges discrimination based on his national origin.

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Plaintiff does not allege any facts to support a plausible inference his national origin was a

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motivating factor in his termination and Defendant’s proffered reason for terminating Plaintiff

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was pretextual. Achal, 114 F. Supp. 3d at 802.

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Accordingly, the Court GRANTS Defendant’s motion for judgment on the pleadings as to
this Plaintiff’s wrongful termination claims.

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C.

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

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Plaintiff alleges he engaged in protected activities such as “being a Muslim male and an

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African American” and “a member of the CFT union.” (ECF No. 16-1 ¶¶ 47–48.) Plaintiff

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alleges Defendant terminated his employment because of those alleged protected activities. (ECF

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No. 16-1 ¶¶ 47–48.) Defendant argues Plaintiff failed to show causation between Plaintiff’s

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termination and any protected activity. (ECF No. 16 at 14.)

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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 activities would be preempted by NLRA and

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subject to the exclusive jurisdiction of NLRB. Because Plaintiff has not alleged facts sufficient to

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support the first element of his retaliation claim, the Court need not analyze the other elements.

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Accordingly, the Court GRANTS Defendant’s motion for judgment on the pleadings as to

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Plaintiff’s retaliation claim.

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D.

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Plaintiff alleges Defendant made “false statements in the workplace” regarding his job

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performance and gave him “negative reviews based on knowing misstatements of fact.” (ECF

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No. 16-1 ¶¶ 56–57.) Plaintiff alleges Defendant withheld work hours and other benefits of

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employment and terminated his employment to penalize Plaintiff for his protected status. (ECF

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No. 16-1 ¶¶ 56–57.) Defendant argues Plaintiff’s claim fails as a matter of law because Plaintiff’s

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allegations relate to “conduct arising out of necessary personnel management duties cannot form

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the basis of a harassment claim.” (ECF No. 16 at 15.)

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Harassment

FEHA prohibits an employer or any other person from harassing an employee because of

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the employee’s race, sex, and religion. CAL. GOV’T CODE § 12940(j)(1). To state a claim for

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harassment, a plaintiff must show that: (1) he is a member of a protected group; (2) he was

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subjected to harassment because he is a member of that protected group; and (3) the harassment

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was so severe that it created a hostile work environment. Whitten v. Frontier Commc’ns Corp.,

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No. 2:12-CV-02926-TL, 2015 WL 269435, at *14 (E.D. Cal. Jan. 21, 2015) (citing Lawler v.

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Montblanc N. Am., LLC, 704 F.3d 1235, 1244 (9th Cir. 2013); Aguilar v. Avis Rent A Car Sys.,

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Inc., 21 Cal. 4th 121 (1999)).

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To succeed, “[the p]laintiff must allege the conduct was sufficiently severe or pervasive to

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alter the conditions of the victim’s employment and create an abusive working environment.

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Whitten, 2015 WL 269435, at *14 (citing Ortiz, 973 F.Supp.2d at 1178). The harassment must be

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such that it would have interfered with a reasonable employee’s work performance, seriously

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affected the psychological well-being of a reasonable employee, and did offend the plaintiff. Id.
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(citing Velente–Hook v. E. Plumas Health Care, 368 F.Supp.2d 1084, 1102 (internal citations

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omitted). “[W]hether an environment is sufficiently hostile or abusive must be judged by looking

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at all the circumstances, including the frequency of the discriminatory conduct; its severity;

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whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it

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unreasonably interferes with an employee’s work performance.” Id. at 15 (citing Clark Cnty. Sch.

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Dist. v. Breeden, 532 U.S. 268, 270–71 (2001)).

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“[C]ommonly necessary personnel management actions ... do not come within the

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meaning of harassment.” Roby, 47 Cal. 4th 686, 700 (2009), as modified (Feb. 10, 2010) (quoting

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Reno v. Baird 18 Cal. 4th 640, 646–47 (1998)). The actions include, “hiring and firing, job or

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

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evaluations, the provision of support, the assignment or nonassignment of supervisory functions,

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deciding who will and who will not attend meetings, deciding who will be laid off.” Reno, 18

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Cal. 4th at 646–47. In contrast, harassment “consists of actions outside the scope of job duties

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which are not of a type necessary to business and personnel management.” Id.

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Plaintiff only alleges common necessary personnel actions, such as firing, evaluation, and

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work assignments. Plaintiff has not alleged facts sufficient to support the third element of his

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harassment claim, so the Court need not analyze the other elements. Accordingly, the Court

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GRANTS Defendant’s motion for judgment on the pleadings as to Plaintiff’s harassment claim.

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E.

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 private cause

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

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violation. (ECF No. 16 at 16–17.) Defendant cites the Fair Employment and Housing

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Commission’s (“FEHC”) decision in In the Matter of the Accusation of the Dep’t Fair Empl. &

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Hous. v. Lyddan Law Group (Williams), FEHC Dec. No. 10-04-P, at *12 (Oct. 19, 2010) (holding

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“there cannot be a claim [by a private litigant] for failure to prevent discrimination without a valid

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claim for discrimination”). (ECF No. 19 at 13.) As discussed above, Plaintiff has not alleged

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facts sufficient to state a claim for discrimination based on race, religion, or sex, so Plaintiff’s
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derivative claim of failure to prevent discrimination fails. Accordingly, the Court GRANTS

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Defendant’s motion for judgment on the pleadings as to Plaintiff’s failure to prevent

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discrimination claim.

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F.

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. 16 at

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18.) 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 terminated his employment and discriminated against him in

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making firing decisions despite Defendant’s knowledge of Plaintiff’s “protected characteristics.”

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(ECF No. 16-1 ¶ 86.) Plaintiff has not alleged any facts that are outside Defendant’s employment

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and supervisory duties. The action Plaintiff does allege — making a hiring decision — is an

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activity California courts have expressly found constitute personnel management activity and is

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insufficient to support a claim. 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.

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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.

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V.

LEAVE TO AMEND

CONCLUSION

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For the foregoing reasons, Defendant’s Motion for Judgment on the Pleadings (ECF No.

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16) 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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IT IS SO ORDERED.

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Dated: September 8, 2017

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Troy L. Nunley
United States District Judge

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