Ting v. Adams & Associates, Inc.

Filing 23

ORDER signed by District Judge Troy L. Nunley on 8/7/2018 GRANTING 18 Motion to Dismiss, with prejudice. CASE CLOSED. (York, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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AZARIA TING,

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Plaintiff,

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No. 2:16-cv-01309-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. 18.) Plaintiff

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Azaria Ting (“Plaintiff”) opposes the motion. (ECF No. 19.) Defendant has filed a reply. (ECF

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No. 21.) For the reasons discussed below, the Court hereby GRANTS Defendant’s Motion to

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Dismiss, (ECF No. 18), with prejudice.

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff alleges she was hired in 2012 as a Residential Advisor for Sacramento Job Corps

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Center (“SJCC”). (ECF No. 17 ¶ 9.) Plaintiff states she is “an African-American woman who

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had been diagnosed with a medical condition,” who “represented other Resident Advisors as a

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member of the CFT [California Federation of Teachers Union].” (ECF No. 17 ¶¶ 62–63.)

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In February 2014, Defendant assumed management of SJCC. (ECF No. 17 ¶ 3.) Plaintiff

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alleges Defendant stated it would reorganize several job duties for positions, reduce the number

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of Residential Advisors, and create a Residential Coordinator role. (ECF No. 17 ¶ 19.)

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Plaintiff alleges Defendant interviewed her for a Residential Advisor position for

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“approximately five minutes,” “in a large room full of tables, in the midst of other interviews

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taking place.” (ECF No. 17 ¶ 21.) Plaintiff alleges that during her interview she “disclosed she

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had taken time off work in the past due to a back injury she sustained in a car accident,” “to

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observe Ramadan,” and “to mourn a death in the family.” (ECF No. 17 ¶¶ 24–25.) Plaintiff

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alleges she had a positive interview but she received a rejection letter in March 2014 stating she

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would not be rehired as a Residential Advisor.” (ECF No. 17 ¶¶ 22–23.)
Plaintiff alleges Defendant used her “prior excused absences as a pretense to avoid

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rehiring her.” (ECF No. 17 ¶ 26.) Plaintiff alleges “employees with equal or lesser experience

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were being hired for similar Advisor positions.” (ECF No. 17 ¶ 27.) Plaintiff alleges “she had

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significantly more experience and qualifications than several younger, Caucasian and Hispanic

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applicants who were hired for positions by Defendant.” (ECF No. 17 ¶ 31.)

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Defendant moved to dismiss Plaintiff’s complaint for failure to state a claim. (ECF No.

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

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her complaint. (ECF No. 16.) Plaintiff amended her complaint, alleging the same six claims for

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violations of the Americans with Disabilities Act (42 U.S.C. § 12112) (“ADA”), Title VII of the

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Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq., (“Title VII”), and

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common law. (ECF No. 17 at 6–12.) Defendant moves to dismiss for failure to state a claim

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pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 18.)

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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.

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Defendant argues Plaintiff fails to allege facts sufficient to support any of her claims.

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ANALYSIS

(ECF No. 18 at 3.) Plaintiff opposes the motion. (ECF No. 19.)
A.

Disability Discrimination in Violation of 42 U.S.C. § 12112

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Plaintiff states Defendant discriminated against her by refusing to hire her due to her

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medical condition, back pain. (ECF No. 17 ¶¶ 43–44.) An ADA plaintiff alleging disparate

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treatment must allege facts showing she was treated less favorably than other similarly situated

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

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

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

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being point of discussion); cf. McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)
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(finding African American plaintiff stated a case for failure to promote by showing the employer

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transferred a white manager into a position rather than promoting any of the interviewees).

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Plaintiff states Defendant used her “prior excused absences as a pretense to avoid rehiring

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her,” (ECF No. 17 ¶ 26), but does not allege facts to support an inference Defendant acted

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because of any disability. Plaintiff alleges “employees with equal or lesser experience were being

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hired for similar Advisor positions,” (ECF No. 17 ¶ 27), but does not allege those other

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employees did not have disabilities. Plaintiff alleges “she had significantly more experience and

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

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by Defendant,” (ECF No. 17 ¶ 31), but does not allege they were hired into the Resident Advisor

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position for which Plaintiff applied. Plaintiff has not alleged she was treated differently than

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similarly situated individuals. She has not alleged similarly situated employees who did not

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suffer from medical conditions were treated more favorably. Achal v. Gate Gourmet, Inc., 114 F.

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Supp. 3d 781, 800 (N.D. Cal. 2015). Accordingly, the Court GRANTS Defendant’s motion to

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dismiss Plaintiff’s claim for disability discrimination.

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B.

Race and Color Discrimination in Violation of 42 U.S.C. § 2000e–2

Plaintiff alleges she is an African American and Defendant discriminated against her by

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refusing to rehire Plaintiff due to her race. (ECF No. 17 ¶¶ 52–53.) A plaintiff in a disparate

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treatment case must show by either direct or circumstantial evidence that “the motive to

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discriminate was one of the employer’s motives.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S.

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Ct. 2517, 2523 (2013). A plaintiff may establish a case for disparate treatment by, among other

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ways, showing “similarly situated individuals outside [the] protected class were treated more

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favorably.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010).

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Plaintiff’s allegation Defendant acted because of her membership in a protected class is a

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recitation of an element. See Iqbal, 556 U.S. at 678. Plaintiff has not alleged facts to support a

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reasonable inference Defendant acted because of her race or color or that persons of a different

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race or color than Plaintiff were treated more favorably. Ravel, 228 F. Supp. 3d at 1099;

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McGinest, 360 F.3d at 1122. Accordingly, the Court GRANTS Defendant’s motion to dismiss

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Plaintiff’s claim for discrimination based on race and color.
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Retaliation

Plaintiff alleges Defendant retaliated “by refusing to hire her on account of such protected

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activities as being an African-American … with a medical condition,” and “because she

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represented other Resident Advisors as a member of the CFT.” (ECF No. 17 at ¶¶ 62–63.)

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Plaintiff’s statement that she is an African-American woman with a medical condition,

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does not allege that she engaged in any protected activity, such as opposing practices forbidden

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by Title VII or the ADA, making a charge, testifying, assisting, or participating in a related

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investigation, proceeding, or hearing. 42 U.S.C. § 2000e–3(a); 42 U.S.C. § 12203(a); Coons v.

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Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 887 (9th Cir. 2004). Plaintiff has not provided any

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authority for her proposition that being a member of a protected class is a protected activity.
Plaintiff brings her claims pursuant to Title VII and the ADA, (ECF No. 17 ¶ 60), but

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neither on its face protects union membership or being a representative of other union members.

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42 U.S.C. § 2000e–3(a); 42 U.S.C. § 12203(a). Plaintiff has not cited authority for the

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proposition that being a member of a union or being a representative of other members is a

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protected activity under either Title VII or the ADA. Accordingly, the Court GRANTS

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

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D.

Failure to Hire in Violation of Public Policy

Plaintiff alleges Defendant failed to hire her in violation of public policy because of

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“Plaintiff’s protected characteristics, including her race and medical condition.” (ECF No. 1 ¶¶

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72–73) (citing 42 U.S.C. § 2000e–2(a)). To state a claim for failure to hire based on disparate

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treatment, a plaintiff must show the employer filled the position with an employee not of the

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plaintiff’s class, or continued to consider applicants of comparable qualifications after rejecting

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the plaintiff. Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005).

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Plaintiff has not alleged Defendant filled the Resident Advisor positions with employees

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who were not members of the same protected class as Plaintiff. Plaintiff has not alleged

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Defendant continued to consider other applicants whose qualifications were comparable to

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Plaintiff’s after rejecting Plaintiff for that position. Accordingly, the Court GRANTS

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Defendant’s motion to dismiss Plaintiff’s claim for failure to hire in violation of public policy.
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Failure to Accommodate in Violation of 42 U.S.C. § 12112

Plaintiff alleges Defendant was aware of, and failed to accommodate, her medical
condition when Defendant “unreasonably refused to hire her.” (ECF No. 17 ¶¶ 81–83.)
To state a claim for failure to accommodate under the ADA, a plaintiff must allege facts

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that show she suffered an adverse employment action because of the disability. Allen v. Pac.

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Bell, 348 F.3d 1113, 1114 (9th Cir. 2003) (citing Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243,

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1246 (9th Cir. 1999)). Plaintiff does not allege facts showing how she was limited by her

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condition or able to perform the essential job functions, that she required accommodation, how

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Defendant knew she required accommodation, whether she requested accommodation, and

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whether Defendant denied the request or otherwise failed to accommodate her. Steiner v. Verizon

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Wireless, No. 2:13-CV-1457-JAM-KJN, 2014 WL 202741, at *5 (E.D. Cal. Jan. 17, 2014)

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(granting the defendant’s motion to dismiss the plaintiff’s ADA claim for failure to accommodate

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where the plaintiff alleged her employment was terminated because of her disability but did not

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plead facts to support each required element, such as whether, when, and what accommodations

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she needed and requested, and whether and why the requests were denied). Accordingly, the

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Court GRANTS Defendant’s motion to dismiss Plaintiff’s claim for failure to accommodate.

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F.

Failure to Engage in the Interactive Process in Violation of 42 U.S.C. §
12112

Plaintiff alleges Defendant was “aware of Plaintiff’s medical conditions involving her

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back pain but failed to engage in a timely, good-faith, interactive process with her to determine

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effective reasonable accommodations for her to fill her previous position as Resident Advisor.”

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(ECF No. 17 ¶ 92.) “Once an employer becomes aware of the need for accommodation, that

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employer has a mandatory obligation under the ADA to engage in an interactive process with the

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employee to identify and implement appropriate reasonable accommodations.” Humphrey v.

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Mem’l Hosps. Ass’n., 239 F.3d 1128, 1137 (9th Cir. 2001).

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Plaintiff has not alleged she requested accommodation. Plaintiff has not alleged facts

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sufficient to support an inference Defendant was aware Plaintiff required accommodation. Cf.

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Joseph v. Target Corp., 2015 WL 351444, at *14 (E.D. Cal. Jan. 23, 2015) (the defendant knew
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the plaintiff had been on medical leave, knew he experienced symptoms such as memory loss,

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and knew he was challenged in performing his job); cf. Zivkovic v. S. Cal. Edison Co., 302 F.3d

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1080, 1089–90 (9th Cir. 2002) informed the employer he was hearing impaired and stated he

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would have done better with a sign language interpreter). Accordingly, the Court GRANTS

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Defendant’s motion to dismiss Plaintiff’s claim for failure to engage in the interactive process.

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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 her claims and has

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

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dismiss about the deficiencies in the original complaint for each cause of action and granted leave

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to amend. (ECF No. 16.) Those deficiencies have not been cured and it would be futile to allow

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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 7, 2018

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Troy L. Nunley
United States District Judge
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