Bess v. Adams & Associates, Inc.
Filing
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ORDER signed by District Judge Troy L. Nunley on 12/4/17 ORDERING the Defendant's Motion to Dismiss (ECF No. 4 ) is hereby GRANTED as to all claims with leave to amend within 30 days of the date of this Order. (Becknal, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KEVIN BESS
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Plaintiff,
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No. 2:17-cv-00173-TLN-KJN
v.
ADAMS & ASSOCIATES, INC.,
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ORDER GRANTING WITH LEAVE TO
AMEND 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. 4.) Plaintiff Kevin Bess (“Plaintiff”) opposes the
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motion. (ECF No. 9.) Defendant has filed a reply. (ECF No. 10.) For the reasons discussed
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below, the Court hereby GRANTS Defendant’s Motion to Dismiss (ECF No. 4).
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I.
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Plaintiff alleges he was employed by Sacramento Job Corps Center (“SJCC”) from May
FACTUAL AND PROCEDURAL BACKGROUND
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1994 until March 26, 2015 as a Career Transition and Safety Officer. (ECF No. 1 ¶¶ 1, 9.)
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Plaintiff alleges he worked in this capacity for multiple managing corporations of SJCC,
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including Horizon’s Youth Services and Defendant when it began managing SJCC in 2014. (ECF
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No. 1 ¶ 3, 9, 12.) Plaintiff states he is an African-American, over age 50, who was also a member
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of his labor union, the California Federation of Teachers Union (“CFT”). (ECF No. 1 ¶¶ 11.)
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Plaintiff alleges he had no disciplinary history and worked “with the support and praise of
his supervisors.” (ECF No. 1 ¶ 10.) Plaintiff also alleges he “received a rating of excellent and
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exceeds expectations in all categories” on his last evaluation. (ECF No. 1 ¶ 10.) Plaintiff alleges
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he received many awards including “the Center Directors Award, employee of the month
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numerous times, employee of the quarter, and was second runner up for employee of the year”
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and that he “was nominated for employee of the month in January 2015.” (ECF No. 1 ¶ 10.)
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Plaintiff alleges Defendant terminated his employment on March 26, 2015, while he was
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on medical leave. (ECF No. 1 ¶ 13.) Plaintiff alleges Defendant’s stated reasons for terminating
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him were two documentation errors, both of which were made by people other than Plaintiff.
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(ECF No. 1 ¶ 14, 16–17.) Plaintiff alleges that both errors were corrected, one in the presence of
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Kelly McGillis (“McGillis”), a higher-level employee of Defendant. (ECF No. 1 ¶¶ 15, 18.)
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Regarding the first error, Plaintiff alleges Defendant claimed “there was documentation of
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fraudulent former enrollee placement verification, when in fact the employer had mistakenly
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attached the wrong business card to the verification form.” (ECF No. 1 ¶ 14.) Plaintiff further
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alleges that when McGillis asked him about this verification, “Plaintiff called the employer while
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in [McGillis’] presence, handled the mix up, and then went back out to the employer to receive
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the verification form with the correct business card attached.” (ECF No. 1 ¶ 15.) Plaintiff alleges
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“[t]here was no fraud, only a simple mix up with the documents.” (ECF No. 1 ¶ 15.)
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Regarding the second error, Plaintiff alleges Defendant claimed the Department of Labor
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(“DOL”) disqualified a high number of Plaintiff’s placements. (ECF No. 1 ¶ 16.) Plaintiff
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alleges, however, both McGillis and Plaintiff’s supervisor approved the placements. (ECF No. 1
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¶ 16.) Further, Plaintiff alleges DOL disqualified the placements because the employer who hired
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the placements allowed his business license to expire. (ECF No. 1 ¶ 16.) Plaintiff alleges he
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“notified the employer of this problem and the employer renewed his license and held a valid
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business license at the time of Plaintiff’s termination.” (ECF No. 1 ¶ 16.)
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Plaintiff alleges he suspects Defendant’s stated reasons for terminating him were pretext
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for discrimination based on Plaintiff’s age, race, and union affiliation. (ECF No. 1 ¶ 19.)
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Plaintiff filed suit in this Court on the basis of diversity jurisdiction, alleging violations of the
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California Fair Employment and Housing Act (“FEHA”) and common law, including: (i) age and
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race discrimination in violation of California Government Code § 12940(a); (ii) wrongful
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termination in violation of public policy; (iii) retaliation in violation of California Government
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Code § 12940(h); (iv) failure to prevent discrimination; and (v) intentional infliction of emotional
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distress. (ECF No. 1 at 4–10.) Defendant moves to dismiss for failure to state a claim pursuant to
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Rule 12(b)(6). (ECF No. 4.)
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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 plead sufficient facts to support any of his claims.
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ANALYSIS
(ECF No. 4 at 2, 4.) The Court will discuss each claim in turn.
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A.
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Plaintiff alleges he was an African-American, over the age of 40, who was qualified and
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Discrimination in Violation of California Government Code § 12940(a)
capable of performing his job duties. (ECF No. 1 ¶¶ 22–23, 30–31.) Defendant moves to dismiss
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Plaintiff’s FEHA claims for discrimination based on his age and race, arguing Plaintiff’s
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pleadings are conclusory and “offer only suspicions” and “formulaic recitation of the required
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elements” rather than facts sufficient to support his claims. (ECF No. 4 at 5–6.) Plaintiff states
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the factual allegations in his complaint are sufficient to support his claims. (ECF No. 9 at 5–6.)
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FEHA prohibits an employer from discriminating against an employee because of age or
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race. CAL. GOV’T CODE § 12940(a). To state a claim for discrimination under FEHA, a plaintiff
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must 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., No. 116-CV-01705-DAD-SKO, 2017 WL
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2833401, at *7 (E.D. Cal. June 30, 2017) (citing Lawler v. Montblanc N. Am., LLC, 704 F.3d
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1235, 1242 (9th Cir. 2013); Guz v. Bechtel Nat’l., Inc., 24 Cal. 4th 317, 355 (2000)). “A plaintiff
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need not plead facts constituting all the elements of a prima facie case of employment
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discrimination case in order to survive a Rule 12(b)(6) motion to dismiss,” however, courts
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analyze those elements when deciding whether the plaintiff alleges sufficient facts to state a
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plausible claim. Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 796–97 (N.D. Cal. 2015).
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A plaintiff can demonstrate the employer acted with a discriminatory motive by direct or
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circumstantial evidence. Achal, 114 F. Supp. 3d at 801 (citing Godwin v. Hunt Wesson, Inc., 150
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F.3d 1217, 1221–22 (9th Cir. 1998). A plaintiff may show “other similarly situated employees
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outside of the protected class were treated more favorably, or other circumstances surrounding the
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adverse employment action give rise to an inference of discrimination.” Id. at 800.
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Circumstantial evidence of discrimination “tends to show that the employer’s proffered motives
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were not the actual motives because they are inconsistent or otherwise not believable.” Id. at 801.
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“Generally in cases involving affirmative adverse employment actions, pretext may be
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demonstrated by showing the proffered reason had no basis in fact, the proffered reason did not
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actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.”
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Soria v. Univision Radio L.A., Inc., 5 Cal. App. 5th 570, 594 (2016), rev. den. (Mar. 1, 2017)
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(internal quotation marks omitted). “Pretext may [] be inferred from the timing of the company’s
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termination decision, by the identity of the person making the decision, and by the terminated
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employee’s job performance before the termination.” Id. (internal quotation marks omitted).
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“However, simply showing the employer was lying, without some evidence of discriminatory
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motive, is not enough to infer discriminatory animus. ‘The pertinent [FEHA] statutes do not
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prohibit lying, they prohibit discrimination.’” Id. (quoting Guz, 24 Cal. 4th at 361).
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Plaintiff alleges Defendant discriminated against him by terminating his employment due
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to his age and race and cited two errors made by others as pretext for his discriminatory
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termination. (ECF No. 1 ¶¶ 19, 23, 31.) One way a plaintiff may demonstrate pretext is by
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showing the reason proffered by the defendant had no basis in fact. Soria, 5 Cal. App. 5th at 594.
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The court in Achal found the plaintiff’s pleading was sufficient to infer pretext where the plaintiff
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alleged the defendant claimed it fired him for disability fraud for causing the accident which lead
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to his disability, but the defendant never investigated whether he caused the accident and there
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was no question as to the plaintiff’s satisfactory job performance. Achal, 114 F. Supp. 3d at 797–
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98. Here, Plaintiff alleges facts showing Defendant stated it terminated him based on two errors
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related to client placements, but hiring employers made both errors not Plaintiff. (ECF No. 1 ¶¶
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14–18.) Plaintiff also alleges facts showing Defendant knew this — in one case the issue was
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sorted with McGillis in the room, and in the other the employer renewed his business license —
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yet Defendant cited the errors as its reason for terminating Plaintiff. (ECF No. 1 ¶¶ 14–18.)
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Unlike Achal, Plaintiff alleges Defendant did investigate the errors, and through the investigation
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Defendant learned Plaintiff was not at fault, yet still used the errors as reasons for terminating
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him. Drawing all inferences in his favor, Plaintiff’s factual allegations are sufficient, for the
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purposes of this motion, to give rise to the plausible inference Defendant’s reason was pretext.
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A plaintiff alleging discrimination under FEHA must show the employer acted with a
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discriminatory motive. Ayala, 2017 WL 2833401, at *7. “[S]imply showing the employer was
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lying, without some evidence of discriminatory motive, is not enough to infer discriminatory
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animus.” Soria, 5 Cal. App. 5th at 594. Although Plaintiff speculates Defendant terminated him
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because of his age and race, Plaintiff has not alleged any facts connecting his age or race to
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Defendant’s decision. Plaintiff’s allegation Defendant acted because of his age and race is a
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recitation of an element. See Iqbal, 556 U.S. at 678. Plaintiff has not alleged Defendant treated
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differently other employees who were different ages or races than Plaintiff. Cf. McGinest v. GTE
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Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (finding the plaintiff stated a case for failure to
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promote by showing that rather than filling the position by promoting any interviewees, [the
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employer] transferred a white manager into the position). Plaintiff has not alleged Defendant
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made negative comments about his age or race or replaced him with an employee who was a
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different race or younger. See Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 1086, 1099
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(E.D. 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). Plaintiff’s allegations do not give rise to a
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plausible inference Defendant acted because of his age or race. Achal, 114 F. Supp. 3d at 798.
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Because Plaintiff has not alleged facts sufficient to support a plausible inference of
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discriminatory motive in relation to his age or race discrimination claims, the Court need not
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analyze the other elements. Accordingly, the Court GRANTS Defendant’s motion to dismiss
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Plaintiff’s discrimination claims based on age and race.
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B.
Wrongful Termination in Violation of Public Policy
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Plaintiff alleges Defendant wrongfully terminated him in violation of public policy “on
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account of his age, race, and union affiliation.” (ECF No. 1 ¶ 40.) Defendant argues Plaintiff’s
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claim related to his union membership is preempted and the remainder of his claim is conclusory
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and premised on a deficient discrimination claim. (ECF No. 4 at 7–8.)
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i.
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In cases which involve either an actual or an arguable violation of either Section 7 or 8 of
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the NLRA, both the states and the federal courts must defer to the “exclusive competence” of the
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National Labor Relations Board (“NLRB”). Commc’ns Workers of Am. v. Beck, 487 U.S. 735,
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742 (1988) (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959)).
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NLRA Section 7 protects employees’ rights to join labor unions, collectively bargain, and engage
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in other activities for purposes of mutual aid. 29 U.S.C. § 157. NLRA Section 8 prevents
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employers from engaging in unfair labor practices or interfering with employees’ rights to join
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labor unions and bargain collectively. 29 U.S.C. § 158(a)(1)-(3).
National Labor Relations Act (“NLRA”) Preemption
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Plaintiff’s claim for wrongful termination based on Plaintiff’s active union membership, if
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proven, would constitute a violation of the NLRA and is subject to Garmon preemption. Clayton
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v. Pepsi Cola Bottling Grp., Civ. A. No. CV85-5957-WMB, 1987 WL 46230, at *7 n.1 (C.D. Cal.
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Mar. 3, 1987). Plaintiff argues Defendant had mixed motives for firing him, and Garmon
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preemption should not apply to his entire wrongful termination claim, which includes allegations
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of public policy violations outside NLRB’s jurisdiction. (ECF No. 9 at 7–8) (citing Balog v.
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LRJV, Inc., 204 Cal. App. 3d 1295, 1308–09 (Ct. App. 1988), reh’g denied and opinion modified
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(Sept. 20, 1988) (holding a court retains jurisdiction over wrongful termination claims based on
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mixed motives, if some motives were not even arguably unrelated to unfair labor practices).
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Plaintiff’s claims for failure to hire based on age or race are not arguably related to
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violations of either Section 7 or 8 of NLRA, which protect union activities. The scheme of civil
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protection set out in FEHA is the type of interest “deeply rooted in local feeling and
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responsibility” that NLRA does not deprive the states of the power to act on. See Sears, Roebuck
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& Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S. 180, 196 (1978); Carter v. Smith
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Food King, 765 F.2d 916, 921 n.6 (9th Cir. 1985).
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Accordingly, Plaintiff’s claim for wrongful termination based on union membership is
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preempted by NLRA, but Plaintiff’s claim for wrongful termination in violation of public policy
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based on Plaintiff’s age or race is not preempted.
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ii.
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Defendant argues, to the extent Plaintiff’s failure to hire claim is not preempted, it fails
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because it is premised on deficient discrimination claims. (ECF No. 4 at 8.) Plaintiff states he
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has pled sufficient facts throughout his complaint to show the reasons given for his termination
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were pretext and the termination was based on his protected characteristics. (ECF No. 9 at 6.)
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“The elements of a claim for wrongful discharge in violation of public policy are (1) an
Pleading Adequacy of Plaintiff’s Wrongful Termination
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employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the
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termination was substantially motivated by a violation of public policy, and (4) the discharge
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caused the plaintiff harm.” Yau v. Allen, 229 Cal. App. 4th 144, 154 (2014).
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As discussed, Plaintiff does not state sufficient allegations to support claims for age or
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race discrimination, therefore Plaintiff’s derivative claim for wrongful termination in violation of
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public policy based on age or race discrimination fails. See Tumblin v. USA Waste of California,
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Inc., No. CV 16-2902 DSF-PLAX, 2016 WL 3922044, at *8 (C.D. Cal. 2016). Accordingly, the
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Court GRANTS Defendant’s motion to dismiss Plaintiff’s wrongful termination claim.
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C.
Retaliation in Violation of California Government Code § 12940(h)
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Plaintiff alleges he engaged in “such protected activities as being an African American
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over the age of 40” and being “an active member of the CFT union.” (ECF No. 1 ¶¶ 49–50.)
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Plaintiff alleges Defendant terminated his employment because of those alleged protected
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activities. (ECF No. 1 ¶¶ 49–50.) Defendant argues Plaintiff failed to show causation between
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Plaintiff’s termination and any protected activity. (ECF No. 4 at 8–9.) Plaintiff states the facts
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alleged throughout “provide sufficient detail to support” this cause of action. (ECF No. 9 at 9.)
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To establish a claim for retaliation under FEHA Section 12940(h), a plaintiff must show
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“(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an
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adverse employment action, and (3) a causal link existed between the protected activity and the
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employer’s action.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005); Ayala, 2017
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WL 2833401, at *12. A “protected activity” under Section 12940(h) means an employee
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“opposed any practices forbidden under [FEHA] or . . . filed a complaint, testified, or assisted in
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any proceeding under [FEHA].” CAL. GOV’T CODE § 12940(h); Yanowitz, 36 Cal. 4th at 1042.
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Plaintiff does not allege he engaged in any protected activity, such as opposing practices
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forbidden under FEHA, filing a complaint, testifying, or assisting in any proceeding under FEHA.
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Further, any claim for retaliation based on union activities would be preempted by the NLRA and
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subject to the exclusive jurisdiction of NLRB. Because Plaintiff has not alleged facts sufficient to
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support the first element of his retaliation claim, the Court need not analyze the other elements.
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Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s retaliation claim.
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D.
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Plaintiff alleges Defendant violated public policy by “terminating Plaintiff’s employment
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Failure to Prevent Discrimination
on account of his protected characteristics, including his union affiliation.” (ECF No. 1 ¶ 62.)
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Defendant argues FEHA’s Section 12940(k) does not give litigants a private cause of action for a
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stand-alone claim for failure to prevent discrimination. (ECF No. 4 at 9–11.) Defendant cites the
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Fair Employment and Housing Commission’s (“FEHC”) decision in In the Matter of the
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Accusation of the Dep’t Fair Empl. & Hous. v. Lyddan Law Group (Williams), FEHC Dec. No.
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10-04-P, at *12 (Oct. 19, 2010) (holding “there cannot be a claim [by a private litigant] for failure
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to prevent discrimination without a valid claim for discrimination”). (ECF No. 4 at 10.) Plaintiff
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states FEHA gives private litigants a cause of action for failure to prevent discrimination, though
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Plaintiff does not address Defendant’s argument regarding stand-alone claims. (ECF No. 9 at 10.)
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As discussed above, Plaintiff has not alleged facts sufficient to state a claim for
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discrimination based on age or race, so Plaintiff’s derivative claim for failure to prevent
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discrimination fails. Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1318 (2015), as
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modified on denial of reh’g (Mar. 24, 2015), review denied (June 17, 2015) (“There cannot be a
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claim for failure to take reasonable steps necessary to prevent sex discrimination under section
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12940, subdivision (k) if actionable sex discrimination has not been found.”). Accordingly, the
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Court GRANTS Defendant’s motion to dismiss Plaintiff’s failure to prevent discrimination claim.
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E.
Intentional Infliction of Emotional Distress
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Plaintiff alleges Defendant knew of Plaintiff’s protected characteristics but wrongfully
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terminated Plaintiff “with the intent to cause emotional distress or with reckless disregard of the
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probability” of doing so. (ECF No. 1 ¶¶ 69–70.) Defendant argues Plaintiff’s claim fails as a
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matter of law because Plaintiff’s allegations with respect to intentional infliction of emotional
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distress relate to personnel management activities, which cannot constitute “extreme and
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outrageous conduct,” a required element of this claim. (ECF No. 4 at 11-12.) Plaintiff argues
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Defendant based Plaintiff’s termination on errors “which were resolved with minor paperwork,”
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prior to Plaintiff’s termination, and this constitutes “outrageous” conduct. (ECF No. 9 at 11.)
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Defendant replies Plaintiff cited no legal authority for this position and had not provided facts to
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support the precedent he does cite. (ECF No. 10 at 9.)
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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. “Whether a defendant’s conduct can
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reasonably be found to be outrageous is a question of law that must initially be determined by the
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court.” Berkley v. Dowds, 152 Cal. App. 4th 518, 534 (2007).
“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 wrongfully terminated him despite Defendant’s knowledge of
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Plaintiff’s “protected characteristics.” (ECF No. 1 ¶ 70.) Plaintiff has not alleged any facts
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outside Defendant’s employment and supervisory duties. The action Plaintiff does allege —
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making a firing decision — is an activity California courts have expressly found constitutes
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personnel management activity. Janken, 46 Cal. App. 4th at 64–65.
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Plaintiff alleges Defendant relied on performance errors to fire Plaintiff even though those
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errors were made by other people who gave incorrect information to Plaintiff or were corrected
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with minor paperwork corrections prior to Plaintiff’s termination. (ECF No. 1 ¶ 17; ECF No. 9 at
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11.) Plaintiff argues Defendant’s conduct of basing Plaintiff’s termination on inaccurate
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information or errors that were resolved quickly constitutes “behavior in the workplace which
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may be considered ‘outrageous.’” (ECF No. 9 at 11.) Plaintiff, however, does not cite any legal
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authority for his argument.
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Plaintiff cites Cole v. Fair Oaks Fire Prot. Dist., 43 Cal. 3d 148, 155 (1987), stating
workplace behavior may be “outrageous” if “a defendant (1) abuses a relation or position which
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gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries
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through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts
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are likely to result in illness through mental distress.” (ECF No. 9 at 11) (citing id. at n.7). As
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Defendant notes, Plaintiff does not allege Defendant abused a relation or position of power over
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Plaintiff, does not allege Defendant knew Plaintiff was susceptible to injury through mental
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distress or even that he was susceptible to that injury, and does not allege Defendant acted
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intentionally or unreasonably with the recognition that Defendant’s acts were likely to result in
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illness through mental distress. (ECF No. 10 at 9.) Plaintiff does not allege facts to support his
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argument Defendant’s conduct constituted “outrageous” behavior under the standard in Cole.
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Plaintiff has not alleged any facts outside the employment and supervisory duties which
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cannot constitute extreme and outrageous conduct. Accordingly, the Court GRANTS
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Defendant’s motion to dismiss Plaintiff’s intentional infliction of emotional distress claim.
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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 his 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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For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 4) is hereby
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GRANTED as to all claims with leave to amend within 30 days of the date of this Order
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CONCLUSION
IT IS SO ORDERED.
Dated: December 4, 2017
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Troy L. Nunley
United States District Judge
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