Goens v. Adams & Associates, Inc.

Filing 39

ORDER signed by District Judge Troy L. Nunley on 8/13/18 GRANTING 34 Motion to Dismiss with prejudice. (Kaminski, H)

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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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Plaintiff,

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No. 2:16-cv-00960-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. 34.) Plaintiff

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Maurice Goens (“Plaintiff”) opposes the motion. (ECF No. 35.) Defendant has filed a reply.

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(ECF No. 37.) For the foregoing reasons, the Court hereby GRANTS Defendant’s Motion to

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Dismiss, (ECF No. 34), with prejudice.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff is an African American male who practices Islam and an active member of the

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California Federation of Teachers Union (“CFTU”). (ECF No. 33 ¶ 14.) Plaintiff alleges in 2008

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he was hired as a Recreational Specialist for Sacramento Job Corps Center (“SJCC”), a career

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development facility for at-risk young adults. (ECF No. 33 ¶¶ 10–11.) Plaintiff states his duties

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included promoting student involvement in recreational activities and educational trips for

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students. (ECF No. 33 ¶ 12.) Plaintiff alleges during his tenure he had no disciplinary history,

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worked “with support and praise from his supervisors,” and received the employee of the month

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award three times. (ECF No. 33 ¶ 13.)

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

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33 ¶ 15.) Plaintiff alleges Defendant announced it would evaluate and interview all employees,

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and reorganize job duties for positions. (ECF No. 33 ¶¶ 16, 17.) Plaintiff alleges he attended

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meetings with Defendant and was rehired as a Recreational Specialist. (ECF No. 33 ¶¶ 17–19.)

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Plaintiff alleges his employment status went from full-time to part-time “shortly after” he

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informed Defendant he practiced Islam. (ECF No. 33 ¶ 19.) Plaintiff alleges Defendant

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terminated his employment on the final day of his six-month probationary period, citing “(1) lack

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of improvement in promoting student involvement in recreation; (2) failure to perform assigned

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duties as discussed with supervisor; (3) and failure to successfully pass the 6-month introductory

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period.” (ECF No. 33 ¶ 21.) Plaintiff disputes this and alleges that he performed all assigned

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duties, as well as extra responsibilities, even while working part time. (ECF No. 33 ¶ 22.)

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Plaintiff alleges he received no warnings or notice of performance issues. (ECF No. 33 ¶ 28.)

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Plaintiff states Caucasian supervisors and managers treated non-Caucasian employees

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differently than other employees, that non-African American employees were retained despite

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discipline issues, and that other minority employees were terminated without discipline issues or

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“based on false charges.” (ECF No. 33 ¶ 23–25.) Plaintiff states SJCC terminated or disciplined

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racial minorities at “rates far higher” than Caucasian employees, that a manager “falsified claims”

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against employees who were not Plaintiff, and that Caucasian, Christian, and female employees

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“were provided preferential treatment.” (ECF No. 33 ¶ 26, 27, 30.)
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Defendant moved for judgment on the pleadings for failure to state a claim. (ECF No.

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

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his complaint. (ECF No. 24.) 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. 33.) Defendant moves to dismiss for failure to state a claim. (ECF No. 34.)

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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 failed to allege sufficient facts. (ECF No. 34 at 3.)

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A.

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Plaintiff alleges Defendant discriminated against him due to his race, religion, and sex by

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

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wrongfully firing him because he is “an African American man practicing Islam.” (ECF No. 33

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¶¶ 40–42.) Plaintiff states Defendant and a manager at SJCC “singled out non-Caucasian
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employees, including Plaintiff, and treated them differently than Caucasian employees” and “that

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the reasons provided for his termination were pretextual” for discrimination “based on his

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protected characteristics.” (ECF No. 33 ¶¶ 44–45.)

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To state a claim for discrimination under FEHA, a plaintiff must allege sufficient facts to

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show: (i) he was a member of a protected class; (ii) he was performing competently in the

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position he held; (iii) he suffered an adverse employment action; and (iv) the employer acted with

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a discriminatory motive. Ayala v. Frito Lay, Inc., 2017 WL 2833401, at *7 (E.D. Cal. June 30,

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2017) (citing Lawler v. Montblanc N. Am., LLC, 704 F.3d 1235, 1242 (9th Cir. 2013)). A

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plaintiff can demonstrate discriminatory motive by showing “other similarly situated employees

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outside of the protected class were treated more favorably.” Achal v. Gate Gourmet, Inc., 114 F.

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Supp. 3d 781, 800 (N.D. Cal. July 14, 2015).

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Plaintiff’s allegation Defendant reduced his work hours or terminated him because of his

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membership in protected classes, (ECF No. 33 ¶ 41), is a recitation of an element. See Iqbal, 556

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U.S. at 678. Plaintiff’s allegation Defendant reduced his hours or terminated his employment for

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reasons he disputes is insufficient to plausibly suggest Defendant acted because of his race,

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religion, or sex. See Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 1086, 1099 (E.D.

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

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

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about age, or her age being point of discussion); cf. Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d

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at 801–02 (finding the plaintiff pleaded specific non-conclusory facts sufficient to give rise to a

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plausible inference religion was a significant motivating factor in his termination and defendant’s

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proffered reason was pretextual, where the plaintiff alleged his supervisor complained about his

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time off for religious practice and called one of the practices of the plaintiff’s Hindu faith

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“ridiculous,” the defendant claimed it fired him for benefits fraud but never investigated, and

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there was no question as to his job performance during his employment).

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Plaintiff further alleges that he saw other employees treated differently based on race and

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gender, and alleges statistical differences in rates of discipline based on race. (ECF No. 33 ¶¶ 26–

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30.) Plaintiff does not provide facts to support those conclusions nor explain whether and how
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examples, which he has not provided, of differences in treatment between other employees relate

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to his employment, termination, or claims.

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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. Accordingly, the

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Court GRANTS Defendant’s motion to dismiss Plaintiff’s discrimination claims.

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B.

Wrongful Termination in Violation of Public Policy

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

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on account of Plaintiff’s protected characteristics.” (ECF No. 33 ¶ 54.) “The elements of a claim

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for wrongful discharge in violation of public policy are (1) an employer-employee relationship,

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(2) the employer terminated the plaintiff’s employment, (3) the termination was substantially

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motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” Yau v.

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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 sex 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., 2016 WL 3922044, at *8 (C.D. Cal. July 20, 2016). Accordingly, the Court

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GRANTS Defendant’s motion to dismiss Plaintiff’s wrongful termination claim.

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C.

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Plaintiff alleges Defendant retaliated against him by firing him for “such protected

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

activities as being a Muslim male and African American.” (ECF No. 33 ¶ 63.)

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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 Defendant retaliated against him for any protected activity, such

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as opposing practices forbidden under FEHA, filing a complaint, testifying, or assisting in any

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proceeding under FEHA. CAL. GOV’T CODE § 12940(h). The “activities” Plaintiff labels as

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protected activities, being a Muslim male and an African American, are not protected activities

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under FEHA. Id. Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s

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claim for retaliation.

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D.

Harassment

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Plaintiff alleges Defendant harassed him by making “false statements in the workplace”

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regarding his job performance, giving him “negative reviews based on knowing misstatements of

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fact,” and terminating him to “penalize Plaintiff for his protected status.” (ECF No. 33 ¶¶ 70–71.)

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To state a claim for harassment, a plaintiff must show that: (1) he is a member of a

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protected group; (2) he was subjected to harassment because he is a member of that protected

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group; and (3) the harassment was so severe that it created a hostile work environment. Whitten

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v. Frontier Commc’ns Corp., 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)). “[C]ommonly necessary personnel management actions ... do not

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come within the meaning of harassment.” Roby, 47 Cal. 4th 686, 700 (2009), as modified (Feb.

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10, 2010) (quoting Reno v. Baird 18 Cal. 4th 640, 646–47 (1998)). Harassment “consists of

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actions outside the scope of job duties which are not of a type necessary to business and personnel

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management.” Reno, 18 Cal. 4th at 646–47.

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Plaintiff only alleges commonly necessary personnel management actions, such as

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assigning work, evaluating an employee, and making a firing decision, which are not harassment.

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Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s harassment claim.

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E.

Failure to Prevent Discrimination in Violation of California Government Code §
12940(k)

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Plaintiff alleges “Defendant failed to take ‘all reasonable steps necessary’ to prevent its

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employees from engaging in discrimination,” and asserts a claim under California Government

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Code § 12940(k). (ECF No. 33 ¶¶ 79–80.) FEHA’s Section 12940(k) does not give private
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litigants a private cause of action for a stand-alone claim for failure to prevent discrimination as

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an independent statutory violation. 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”). As discussed above, Plaintiff has not alleged facts sufficient to state a

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claim for discrimination based on age, sex, or race, so Plaintiff’s derivative claim for failure to

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prevent discrimination fails. Accordingly, the Court GRANTS Defendant’s motion to dismiss

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Plaintiff’s claim for failure to prevent discrimination.

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F.

Intentional Infliction of Emotional Distress

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. 33 ¶ 90.) To state a claim for intentional infliction of emotional distress, a plaintiff

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must show, among other things, “extreme and outrageous conduct by the defendant with the

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intention of causing, or reckless disregard of the probability of causing, emotional distress.”

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Hughes v. Pair, 46 Cal. 4th 1035, 1050 (2009). “A simple pleading of personnel management

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

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

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“Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather

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conduct essential to the welfare and prosperity of society.” Id.

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Plaintiff has not alleged conduct other than making a firing decision, and that is an activity

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California courts have expressly found constitutes personnel management activity. Janken, 46

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Cal. App. 4th at 64–65. Accordingly, the Court GRANTS Defendant’s motion to dismiss

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Plaintiff’s intentional 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. The 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 complaint as to each claim and granted

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leave to amend. (ECF No. 24.) Those deficiencies have not been cured and it would be futile to

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