Cousins Kamara v. Adams & Associates, Inc.

Filing 16

ORDER signed by District Judge Troy L. Nunley on 9/29/2017 GRANTING-IN-PART and DENYING-IN-PART 7 Motion to Dismiss. Plaintiff is GRANTED leave to amend within 30 days of this order. (Donati, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHANNON COUSINS KAMARA

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No. 2:16-cv-02300-TLN-KJN

Plaintiff,
v.
ADAMS & ASSOCIATES, INC.,

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ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO DISMISS FOR FAILURE TO
STATE A CLAIM

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. (ECF No. 7.) Plaintiff Shannon Cousins Kamara (“Plaintiff”)

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opposes the motion. (ECF No. 12.) Defendant has filed a reply. (ECF No. 13.) For the reasons

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discussed below, the Court hereby GRANTS in part and DENIES in part Defendant’s Motion to

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Dismiss (ECF No. 7).

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I.

FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff alleges she was hired in 2010 as a Residential Advisor for Sacramento Job Corps

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Center (“SJCC”). (ECF No. 1 ¶ 9.) Plaintiff states she is an African-American woman and a

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member of her labor union, the California Federation of Teachers Union. (ECF No. 1 ¶¶ 11, 22.)

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In 2014, Defendant became the managing corporation of SJCC. (ECF No. 1 ¶ 3.)

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

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number of Residential Advisors, and create a Residential Coordinator role. (ECF No. 1 ¶ 12.)
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Plaintiff alleges she applied “to continue in her position as Residential Advisor,” believed

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she had excellent qualifications, but she received a rejection letter in March 2014 stating she “was

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no longer going to be employed by [SJCC].” (ECF No. 1 ¶¶ 13–14.) Plaintiff alleges she

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“observed employees who were of different racial backgrounds, but who had less experience or

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personnel issues, were allowed to continue in their positions.” (ECF No. 1 ¶ 14.) Plaintiff alleges

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she observed that the “majority of Residential Advisors who were targeted by [Defendant] for

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separation from their employment were minorities” and believed Defendant refused to hire her

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“based on her protected status based on race.” (ECF No. 1 ¶ 15.)
Plaintiff alleges she “pursued claims against Defendant [] related to her retaliation as a

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member of the union.” (ECF No. 1 ¶ 16.) Plaintiff alleges the National Labor Relations Board

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ordered Defendant to reinstate her and she began working at SJCC again in early 2016. (ECF No.

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1 ¶ 17.) Plaintiff alleges she “continues to deal with hostility and distrust in the workplace” and

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“is facing ongoing discrimination based on her protected status.” (ECF No. 1 ¶¶ 18–19.)

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Plaintiff alleges claims for violations of the Americans with Disabilities Act (42 U.S.C. §

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12112) (“ADA”), Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. §

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2000e et seq., (“Title VII”), and common law, including: (i) race and color discrimination in

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violation of Title VII § 2000e-2; (ii) retaliation; (iii) failure to hire in violation of public policy;

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and (iv) intentional infliction of emotional distress. (ECF No. 1 at 4–8.) Defendant moves to

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dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 7 at

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2 & 7.)

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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. 7 at 7.) The Court will discuss each of Plaintiff’s claims in turn.
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Race and Color Discrimination in Violation of 42 U.S.C. § 2000e–2

Plaintiff alleges Defendant discriminated against her by refusing to hire Plaintiff to

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continue as a Residential Advisor at SJCC due to her race. (ECF No. 1 ¶ 24.) Defendant moves

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to dismiss, arguing Plaintiff’s pleadings offer only suspicions and conclusory allegations and do

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not include sufficient factual allegations. (ECF No. 7 at 9–10.) Plaintiff states generally the facts

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alleged “are sufficient to support all of the causes of action.” (ECF No. 12 at 4.)

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Title VII forbids an employer from discriminating based on an “individual’s race, color,

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religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a). A plaintiff in a disparate treatment

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

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one of the employer’s motives.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523

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(2013); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004). A plaintiff may

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establish a case for disparate treatment by showing she: (1) was a member of a protected class; (2)

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was qualified for the position and performing the job satisfactorily; (3) experienced an adverse

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employment action; and (4) that “similarly situated individuals outside [the] protected class were

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treated more favorably, or other circumstances surrounding the adverse employment action give

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rise to an inference of discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th
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Cir. 2010) (quoting Peterson v. Hewlett–Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)).
Plaintiff alleges she is an African-American woman, and Defendant knew this and refused

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to rehire her as a Residential Advisor “due to her race.” (ECF No. 1 ¶¶ 23, 24.) Plaintiff’s

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allegation Defendant acted because of her membership in a protected class is a recitation of an

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element. See Iqbal, 556 U.S. at 678. In her general factual allegations, however, Plaintiff also

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alleges she “observed employees who were of different racial backgrounds, but who had less

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experience or personnel issues, were allowed to continue in their positions.” (ECF No. 1 ¶ 14.)

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Plaintiff adequately alleges she was a member of a protected class. Plaintiff alleges she

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was hired by Defendant’s predecessor for the role of Residential Advisor and she was praised by

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her supervisors and had no write-ups, warnings, or disciplinary history, during the years she

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performed that role. The Court can infer she was qualified for the job of Residential Advisor and

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had performed the job satisfactorily. Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 797–98

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(N.D. Cal. 2015). Plaintiff alleges Defendant terminated her employment, did not re-hire her in

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March 2014, and she was not reinstated until early 2016. Plaintiff sufficiently alleges an adverse

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employment action. Ardalan v. McHugh, 2014 WL 3846062, at *8 (N.D. Cal. Aug. 4, 2014).

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Finally, Plaintiff alleges a personal observation that Defendant rejected her application

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and hired employees as Residential Advisors who were not members of Plaintiff’s protected

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class, were less experienced than Plaintiff, and had personnel issues Plaintiff did not. (ECF No. 1

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¶ 14.) Plaintiff’s allegations employees not in her protected class received more favorable

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treatment than Plaintiff, although those employees were less experienced and had personnel

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issues she did not, give rise to the suggestion of discriminatory motive in Defendant’s hiring

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decision. McGinest, 360 F.3d at 1122 (finding the plaintiff, an African-American man, stated a

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case for failure to promote by showing he was a member of a protected class, was qualified for

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the position and applied for it, and that rather than filling the position by promoting any of the

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interviewees, the employer transferred a white manager into the position); see also .Achal, 114 F.

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Supp. 3d at 801–02 (describing the plaintiff’s complaint as thin but including incidents that gave

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rise, for purposes of a motion to dismiss, to the plausible inference of discriminatory motive and

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were “sufficiently detailed to give notice to [the defendant] of the nature of [the plaintiff’s claim]”
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and “a fair opportunity to defend against it”); cf. Ravel v. Hewlett-Packard Enter., Inc., 228 F.

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Supp. 3d 1086, 1099 (E.D. Cal. 2017) (finding the plaintiff did not allege facts rising to a

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plausible inference of age discrimination, such as being replaced by a younger employee,

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overhearing negative comments about age, or her age being discussed).

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Here, Plaintiff makes non-conclusory, factual allegations that go beyond reciting the

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elements and that, taken as true, state grounds showing she is plausibly entitled to relief.

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Accordingly, the Court DENIES Defendant’s motion to dismiss Plaintiff’s claim for

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discrimination based on race and color.

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B.

Retaliation

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

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such protected activities as being an African-American woman.” (ECF No. 1 at ¶ 33.) Defendant

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argues Plaintiff fails to allege facts showing she engaged in a protected activity or Defendant’s

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decision not to rehire her was connected to protected activity. (ECF No. 7 at 10–11.) Plaintiff

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states the facts alleged “are sufficient to support all of the causes of action.” (ECF No. 12 at 4.)

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Title VII and the ADA forbid an employer from retaliating against an employee because

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she opposed any practice they make unlawful, or because she “made a charge, testified, assisted,

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or participated in any manner in an investigation, proceeding, or hearing under this [provision].”

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42 U.S.C. § 2000e–3(a); 42 U.S.C. § 12203(a). To state a claim for retaliation under either, a

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plaintiff must show: “(1) involvement in a protected activity, (2) an adverse employment action

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and (3) a causal link between the two.” Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879,

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887 (9th Cir. 2004) (quoting Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir. 2003));

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Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196–97 (9th Cir. 2003), opinion

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amended on denial of reh’g, No. 00-35999, 2003 WL 21027351 (9th Cir. May 8, 2003).

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Plaintiff’s statement that she is an African-American woman does not allege that she

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engaged in any protected activity, such as opposing practices forbidden by Title VII or the ADA,

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making a charge, testifying, assisting, or participating in a related investigation, proceeding, or

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hearing. Plaintiff has not provided any citation to authority for her proposition that being a

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member of a protected class is a protected activity.
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Because Plaintiff has not alleged facts sufficient to support the first element of her

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retaliation claim, the Court need not analyze the other elements. Accordingly, the Court

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

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C.

Failure to Hire in Violation of Public Policy

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

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“Plaintiff’s protected characteristics, including her union membership.” (ECF No. 1 ¶ 46.)

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Defendant argues Plaintiff fails to allege facts to state a claim for failure to hire related to her race

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or color, and her claim related to her union membership is preempted. (ECF No. 7 at 11–12.)

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i.

Failure to Hire Due to Race and Color

Title VII makes it an unlawful employment practice for an employer to refuse to hire an

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individual because of her “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a).

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To state a claim for failure to hire based on disparate treatment, a plaintiff must show (1) she

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belongs to a protected class; (2) she applied for and was qualified for the position she was denied;

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(3) she was rejected despite her qualifications; and (4) the employer filled the position with an

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employee not of the plaintiff’s class, or continued to consider other applicants whose

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qualifications were comparable to the plaintiff’s after rejecting the plaintiff. Dominguez-Curry v.

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Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005).

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Defendant argues Plaintiff’s factual allegations in this claim, that Defendant rejected

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Plaintiff’s application on account of her protected characteristics, (ECF No. 1 ¶ 46), are

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conclusory and insufficient. (ECF No. 7 at 11.) As discussed above, however, Plaintiff states a

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claim under Title VII for discrimination based Defendant’s failure to hire her, as Plaintiff alleges

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Defendant filled the Residential Advisor positions with employees not of Plaintiff’s protected

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class who had personnel issues and were less experienced than Plaintiff. Accordingly, the Court

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DENIES Defendant’s motion to dismiss as to Plaintiff’s claim for Defendant’s failure to hire

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based on her race or color.

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ii.

Failure to Hire Based on Union Membership

Defendant argues Plaintiff’s claim for retaliation based on her union membership or
activity, if proven, would constitute a violation of either Section 7 or 8 of the NLRA, and be
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subject to the jurisdiction of the National Labor Relations Board, rather than the federal courts.

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(ECF No. 7 at 11–12) (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244–45

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(1959)). Plaintiff brings her claim pursuant to Title VII, however, which forbids discrimination

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by employers based on race, color, religion, sex, or national origin, but does not on its face

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protect union membership. 42 U.S.C. § 2000e–2. Plaintiff has not cited authority for her

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proposition that union membership is a protected activity under Title VII. Without additional

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factual allegations or legal authority from Plaintiff showing that union membership is a protected

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activity under Title VII, the Court cannot assess whether preemption applies. Plaintiff does not

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meet the first element of a claim for failure to hire based on union membership, so the Court need

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not analyze the other three elements. Accordingly, the Court GRANTS Defendant’s motion to

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dismiss Plaintiff’s claim for failure to hire in based on union membership.

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D.

Intentional Infliction of Emotional Distress

Plaintiff alleges Defendant knew of Plaintiff’s protected characteristics, but refused to hire

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Plaintiff in favor of less qualified applicants “with the intent to cause emotional distress or with

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reckless disregard of the probability” of doing so. (ECF No. 1 ¶¶ 52–53.) Defendant argues

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Plaintiff’s claim fails as a matter of law because Plaintiff’s allegations with respect to intentional

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infliction of emotional distress relate to personnel management activities, which cannot constitute

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“extreme and outrageous conduct,” a required element of this claim. (ECF No. 7 at 13.)

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

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

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

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

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usually tolerated in a civilized community.” Id. at 1050–51.

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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 failed to hire her in favor of less qualified applicants despite

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Defendant’s knowledge of Plaintiff’s “protected characteristics.” (ECF No. 1 ¶ 53.) Plaintiff has

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not alleged any facts that are outside Defendant’s employment and supervisory duties. The action

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Plaintiff does allege — making a hiring decision — is an activity California courts have expressly

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

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Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s claim for
intentional infliction of emotional distress.

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IV.

LEAVE TO AMEND

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“A district court should grant leave to amend even if no request to amend the pleading

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was made, unless it determines that the pleading could not possibly be cured by the allegation of

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other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff has not previously

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amended its complaint and the Court cannot say that the pleading could not possibly be cured by

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the allegation of other facts. Accordingly, the Court GRANTS Plaintiff leave to amend the

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complaint within 30 days of the date of this Order.

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V.

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Accordingly, for the reasons detailed above, IT IS HEREBY ORDERED that:

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1. The Court DENIES Defendant’s motion to dismiss Plaintiff’s claim for discrimination

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CONCLUSION

based on race and color;

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2. The Court GRANTS Defendant’s motion to dismiss Plaintiff’s claim for retaliation;

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3. The Court DENIES Defendant’s motion to dismiss as to Plaintiff’s claim for

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Defendant’s failure to hire based on her race or color;
4. The Court GRANTS Defendant’s motion to dismiss Plaintiff’s claim for failure to hire
in based on union membership;
5. The Court GRANTS Defendant’s motion to dismiss Plaintiff’s claim for intentional
infliction of emotional distress; and
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6. Plaintiff is GRANTED leave to amend within thirty (30) days of this Order.

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IT IS SO ORDERED.

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Dated: September 29, 2017

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Troy L. Nunley
United States District Judge

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