Cousins Kamara v. Adams & Associates, Inc.

Filing 27

ORDER signed by District Judge Troy L. Nunley on 10/04/18 GRANTING Defendant's 18 Motion to Dismiss Plaintiff's claim for retaliation without leave to amend. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHANNON COUSINS KAMARA

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Plaintiff,

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

v.
ADAMS & ASSOCIATES, INC.,

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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS PLAINTIFF’S
CLAIM FOR RETALIATION

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 Claim for Retaliation. (ECF No. 18.) Plaintiff

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Shannon Cousins Kamara (“Plaintiff”) opposes the motion. (ECF No. 22.) Defendant has filed a

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reply. (ECF No. 25.) For the reasons discussed below, the Court hereby GRANTS Defendant’s

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Motion to Dismiss Plaintiff’s Claim for Retaliation, (ECF No. 18), without leave to amend.

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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. 17 ¶ 9.) Plaintiff states she is an African-American woman and a

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member of the California Federation of Teachers Union. (ECF No. 17 ¶¶ 11, 26.)

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In 2014, Defendant became the managing corporation of SJCC. (ECF No. 17 ¶ 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. 17 ¶ 12.)

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Plaintiff alleges she applied “to continue in her position as Residential Advisor,” believed
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. 17 ¶¶ 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. 17 ¶ 14.) Plaintiff

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

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for 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. 17 ¶ 15.)

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Plaintiff alleges she “pursued claims against Defendant [] related to her retaliation as a

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member of the union.” (ECF No. 17 ¶ 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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17 ¶ 17.) Plaintiff alleges she “continues to deal with hostility and distrust in the workplace” and

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Defendant has “discriminated against her in the application of discipline and providing the

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opportunity for shifts, advancement, and other material aspects.” (ECF No. 17 ¶ 21.) Plaintiff

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alleges she “believes she is facing ongoing discrimination, harassment, and retaliation…based on

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her protected status and association with other protected employees.”

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(ECF No. 17 ¶¶ 22.)

Plaintiff asserts three claims for violations of the Americans with Disabilities Act (42

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

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amended, 42 U.S.C. § 2000e et seq., (“Title VII”): (i) race and color discrimination in violation of

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Title VII § 2000e-2; (ii) retaliation; (iii) failure to hire in violation of public policy. (ECF No. 17

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at 4–8.) Defendant moves to dismiss Plaintiff’s claim for retaliation. (ECF No. 18 at 2.)
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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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Plaintiff asserts a claim for retaliation based on Defendant’s decision not to hire her.

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(ECF No. 17 ¶ 38.) Title VII and the ADA forbid an employer from retaliating against an

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employee because she opposes an unlawful practice, “made a charge, testified, assisted, or

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participated in any manner in an investigation, proceeding, or hearing under this [provision].” 42

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U.S.C. § 2000e–3(a); 42 U.S.C. § 12203(a). To state a claim for retaliation under either statute, 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 alleges she engaged in activity such as, “complaining internally and externally

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about the discrimination she and other employees experienced at Sacramento Job Corps because

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of her race and because of her association with other minority employees who were also bringing

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claims of discrimination, harassment, and retaliation.” (ECF No. 17 ¶ 37.) Plaintiff alleges she

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“complained through her union representatives and directly to Adams’ employees regarding her

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disparate treatment and the adverse employment actions she felt she faced. Plaintiff also

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complained through an administrative claim with the EEOC which issued a right to sue in March

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2015.” (ECF No. 17 ¶ 39.) Plaintiff has adequately alleged she engaged in protected activated.

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Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 650 (4th Cir. 2002) (“It is undisputed that

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Thompson engaged in protected activity when he filed his internal discrimination complaints.).
Plaintiff alleges she engaged in this protected activity after Defendant allegedly retaliated

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against her by refusing to hire her and informed her of its decision in March 2014. (ECF No.

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¶¶13–18) (filing her EEOC complaint, complaining internally after she was re-hired). Plaintiff

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cites no authority permitting a claim for retaliation where the plaintiff alleges the retaliation

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predated the protected activity. Plaintiff has not shown a causal link that the adverse employment

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action she alleges—refusal to hire—was the result of the protected activity.

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Moreover, Plaintiff does not allege Defendant retaliated against her for these protected

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activities. Rather, Plaintiff alleges Defendant retaliated against her for a different reason, because

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of her protected status of “being an African American women.” (ECF No. 17 ¶ 38) (“Defendant[]

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retaliated against Plaintiff by refusing to hire her on account of such protected activities as being

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an African American woman.”). Plaintiff also alleges Defendant “discriminated and retaliated

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against Plaintiff and other similarly situated employees based on their status as racial minorities.”

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(ECF No. 17 at ¶ 41.) Further, Plaintiff alleges “she has faced continued adverse employment

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actions since she resumed working at Sacramento Job Corps because of her protected status and

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affiliation with other protected employees.” (ECF No. 17 at ¶ 40.)

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Being a member of a protected class is not a “protected activity” for the purpose of a

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retaliation claim under Title VII or the ADA, which define protected activity as having “made a

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charge, testified, assisted, or participated in any manner in an investigation, proceeding.” 42
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U.S.C. § 2000e–3(a); 42 U.S.C. § 12203(a). Plaintiff’s allegations she suffered adverse

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employment actions for “being an African American women,” or based on her status as a racial

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minority, or because of her membership in a protected class, assert claims for discrimination.

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Plaintiff has not alleged facts sufficient to support her retaliation claim. Accordingly, the
Court grants Defendant’s motion to dismiss Plaintiff’s claim for retaliation.

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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) (internal

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citation omitted). Although a court should freely give leave to amend when justice so requires,

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“the 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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Plaintiff has had two opportunities to allege facts sufficient to support her claim and has

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

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dismiss about the deficiencies of the original complaint and granted leave to amend. (ECF No.

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16.) Those deficiencies have not been cured and it would be futile to allow further opportunities

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to amend. Accordingly, the Court will not grant leave to amend this claim.

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V.

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For the foregoing reasons, the Court hereby GRANTS Defendant’s motion to dismiss

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CONCLUSION

Plaintiff’s claim for retaliation, (ECF No. 17), without leave to amend.
IT IS SO ORDERED.

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Dated: October 4, 2018

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Troy L. Nunley
United States District Judge
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