Bess v. Adams & Associates, Inc.

Filing 13

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN BESS 12 Plaintiff, 13 14 No. 2:17-cv-00173-TLN-KJN v. ADAMS & ASSOCIATES, INC., 15 ORDER GRANTING WITH LEAVE TO AMEND DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Defendant. 16 This matter is before the Court pursuant to Defendant Adams & Associates, Inc.’s 17 18 (“Defendant”) Motion to Dismiss. (ECF No. 4.) Plaintiff Kevin Bess (“Plaintiff”) opposes the 19 motion. (ECF No. 9.) Defendant has filed a reply. (ECF No. 10.) For the reasons discussed 20 below, the Court hereby GRANTS Defendant’s Motion to Dismiss (ECF No. 4). 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 1 I. 2 Plaintiff alleges he was employed by Sacramento Job Corps Center (“SJCC”) from May FACTUAL AND PROCEDURAL BACKGROUND 3 1994 until March 26, 2015 as a Career Transition and Safety Officer. (ECF No. 1 ¶¶ 1, 9.) 4 Plaintiff alleges he worked in this capacity for multiple managing corporations of SJCC, 5 including Horizon’s Youth Services and Defendant when it began managing SJCC in 2014. (ECF 6 No. 1 ¶ 3, 9, 12.) Plaintiff states he is an African-American, over age 50, who was also a member 7 of his labor union, the California Federation of Teachers Union (“CFT”). (ECF No. 1 ¶¶ 11.) 8 9 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 10 exceeds expectations in all categories” on his last evaluation. (ECF No. 1 ¶ 10.) Plaintiff alleges 11 he received many awards including “the Center Directors Award, employee of the month 12 numerous times, employee of the quarter, and was second runner up for employee of the year” 13 and that he “was nominated for employee of the month in January 2015.” (ECF No. 1 ¶ 10.) 14 Plaintiff alleges Defendant terminated his employment on March 26, 2015, while he was 15 on medical leave. (ECF No. 1 ¶ 13.) Plaintiff alleges Defendant’s stated reasons for terminating 16 him were two documentation errors, both of which were made by people other than Plaintiff. 17 (ECF No. 1 ¶ 14, 16–17.) Plaintiff alleges that both errors were corrected, one in the presence of 18 Kelly McGillis (“McGillis”), a higher-level employee of Defendant. (ECF No. 1 ¶¶ 15, 18.) 19 Regarding the first error, Plaintiff alleges Defendant claimed “there was documentation of 20 fraudulent former enrollee placement verification, when in fact the employer had mistakenly 21 attached the wrong business card to the verification form.” (ECF No. 1 ¶ 14.) Plaintiff further 22 alleges that when McGillis asked him about this verification, “Plaintiff called the employer while 23 in [McGillis’] presence, handled the mix up, and then went back out to the employer to receive 24 the verification form with the correct business card attached.” (ECF No. 1 ¶ 15.) Plaintiff alleges 25 “[t]here was no fraud, only a simple mix up with the documents.” (ECF No. 1 ¶ 15.) 26 Regarding the second error, Plaintiff alleges Defendant claimed the Department of Labor 27 (“DOL”) disqualified a high number of Plaintiff’s placements. (ECF No. 1 ¶ 16.) Plaintiff 28 alleges, however, both McGillis and Plaintiff’s supervisor approved the placements. (ECF No. 1 2 1 ¶ 16.) Further, Plaintiff alleges DOL disqualified the placements because the employer who hired 2 the placements allowed his business license to expire. (ECF No. 1 ¶ 16.) Plaintiff alleges he 3 “notified the employer of this problem and the employer renewed his license and held a valid 4 business license at the time of Plaintiff’s termination.” (ECF No. 1 ¶ 16.) 5 Plaintiff alleges he suspects Defendant’s stated reasons for terminating him were pretext 6 for discrimination based on Plaintiff’s age, race, and union affiliation. (ECF No. 1 ¶ 19.) 7 Plaintiff filed suit in this Court on the basis of diversity jurisdiction, alleging violations of the 8 California Fair Employment and Housing Act (“FEHA”) and common law, including: (i) age and 9 race discrimination in violation of California Government Code § 12940(a); (ii) wrongful 10 termination in violation of public policy; (iii) retaliation in violation of California Government 11 Code § 12940(h); (iv) failure to prevent discrimination; and (v) intentional infliction of emotional 12 distress. (ECF No. 1 at 4–10.) Defendant moves to dismiss for failure to state a claim pursuant to 13 Rule 12(b)(6). (ECF No. 4.) 14 II. STANDARD OF LAW 15 A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 16 12(b)(6) tests the legal sufficiency of a complaint. Navarro v. Block, 350 F.3d 729, 732 (9th Cir. 17 2001). Federal Rule of Civil Procedure 8(a) requires that a pleading contain “a short and plain 18 statement of the claim showing that the pleader is entitled to relief.” On a motion to dismiss, the 19 factual allegations of the complaint are assumed to be true. Cruz v. Beto, 405 U.S. 319, 322 20 (1972). A court is bound to give plaintiff the benefit of every reasonable inference to be drawn 21 from the well-pleaded allegations of the complaint. Retail Clerks Int’l Ass’n v. Schermerhorn, 22 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege “‘specific facts’ beyond those necessary 23 to state his claim and the grounds showing entitlement to relief.” Bell Atlantic v. Twombly, 550 24 U.S. 544, 570 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2009)). “A claim 25 has facial plausibility when the pleaded factual content allows the court to draw the reasonable 26 inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 27 662, 678–79 (citing Twombly, 550 U.S. at 556). 28 /// 3 1 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 2 factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 3 1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an 4 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 5 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 6 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 7 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 8 statements, do not suffice.”). Additionally, it is inappropriate to assume that the plaintiff “can 9 prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that 10 have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 11 Carpenters, 459 U.S. 519, 526 (1983). 12 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 13 facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting 14 Twombly, 550 U.S. at 570). While the plausibility requirement is not akin to a probability 15 requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.” 16 Id. at 678. This plausibility inquiry is “a context-specific task that requires the reviewing court to 17 draw on its judicial experience and common sense.” Id. at 679. 18 In deciding a motion to dismiss, the court may consider only the complaint, any exhibits 19 thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. 20 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. 21 Consumers Union of United States, Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 22 If a complaint fails to state a plausible claim, “[a] district court should grant leave to 23 amend even if no request to amend the pleading was made, unless it determines that the pleading 24 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 25 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)); see 26 also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 27 denying leave to amend when amendment would be futile). Although a court should freely give 28 leave to amend when justice so requires under Federal Rule of Civil Procedure 15(a)(2), “the 4 1 court’s discretion to deny such leave is ‘particularly broad’ where the plaintiff has previously 2 amended its complaint[.]” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 3 (9th Cir. 2013) (quoting Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004). 4 III. 5 Defendant argues Plaintiff fails to plead sufficient facts to support any of his claims. 6 ANALYSIS (ECF No. 4 at 2, 4.) The Court will discuss each claim in turn. 7 A. 8 Plaintiff alleges he was an African-American, over the age of 40, who was qualified and 9 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 10 Plaintiff’s FEHA claims for discrimination based on his age and race, arguing Plaintiff’s 11 pleadings are conclusory and “offer only suspicions” and “formulaic recitation of the required 12 elements” rather than facts sufficient to support his claims. (ECF No. 4 at 5–6.) Plaintiff states 13 the factual allegations in his complaint are sufficient to support his claims. (ECF No. 9 at 5–6.) 14 FEHA prohibits an employer from discriminating against an employee because of age or 15 race. CAL. GOV’T CODE § 12940(a). To state a claim for discrimination under FEHA, a plaintiff 16 must show: (i) he was a member of a protected class; (ii) he was performing competently in the 17 position he held; (iii) he suffered an adverse employment action; and (iv) the employer acted with 18 a discriminatory motive. Ayala v. Frito Lay, Inc., No. 116-CV-01705-DAD-SKO, 2017 WL 19 2833401, at *7 (E.D. Cal. June 30, 2017) (citing Lawler v. Montblanc N. Am., LLC, 704 F.3d 20 1235, 1242 (9th Cir. 2013); Guz v. Bechtel Nat’l., Inc., 24 Cal. 4th 317, 355 (2000)). “A plaintiff 21 need not plead facts constituting all the elements of a prima facie case of employment 22 discrimination case in order to survive a Rule 12(b)(6) motion to dismiss,” however, courts 23 analyze those elements when deciding whether the plaintiff alleges sufficient facts to state a 24 plausible claim. Achal v. Gate Gourmet, Inc., 114 F. Supp. 3d 781, 796–97 (N.D. Cal. 2015). 25 A plaintiff can demonstrate the employer acted with a discriminatory motive by direct or 26 circumstantial evidence. Achal, 114 F. Supp. 3d at 801 (citing Godwin v. Hunt Wesson, Inc., 150 27 F.3d 1217, 1221–22 (9th Cir. 1998). A plaintiff may show “other similarly situated employees 28 outside of the protected class were treated more favorably, or other circumstances surrounding the 5 1 adverse employment action give rise to an inference of discrimination.” Id. at 800. 2 Circumstantial evidence of discrimination “tends to show that the employer’s proffered motives 3 were not the actual motives because they are inconsistent or otherwise not believable.” Id. at 801. 4 “Generally in cases involving affirmative adverse employment actions, pretext may be 5 demonstrated by showing the proffered reason had no basis in fact, the proffered reason did not 6 actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” 7 Soria v. Univision Radio L.A., Inc., 5 Cal. App. 5th 570, 594 (2016), rev. den. (Mar. 1, 2017) 8 (internal quotation marks omitted). “Pretext may [] be inferred from the timing of the company’s 9 termination decision, by the identity of the person making the decision, and by the terminated 10 employee’s job performance before the termination.” Id. (internal quotation marks omitted). 11 “However, simply showing the employer was lying, without some evidence of discriminatory 12 motive, is not enough to infer discriminatory animus. ‘The pertinent [FEHA] statutes do not 13 prohibit lying, they prohibit discrimination.’” Id. (quoting Guz, 24 Cal. 4th at 361). 14 Plaintiff alleges Defendant discriminated against him by terminating his employment due 15 to his age and race and cited two errors made by others as pretext for his discriminatory 16 termination. (ECF No. 1 ¶¶ 19, 23, 31.) One way a plaintiff may demonstrate pretext is by 17 showing the reason proffered by the defendant had no basis in fact. Soria, 5 Cal. App. 5th at 594. 18 The court in Achal found the plaintiff’s pleading was sufficient to infer pretext where the plaintiff 19 alleged the defendant claimed it fired him for disability fraud for causing the accident which lead 20 to his disability, but the defendant never investigated whether he caused the accident and there 21 was no question as to the plaintiff’s satisfactory job performance. Achal, 114 F. Supp. 3d at 797– 22 98. Here, Plaintiff alleges facts showing Defendant stated it terminated him based on two errors 23 related to client placements, but hiring employers made both errors not Plaintiff. (ECF No. 1 ¶¶ 24 14–18.) Plaintiff also alleges facts showing Defendant knew this — in one case the issue was 25 sorted with McGillis in the room, and in the other the employer renewed his business license — 26 yet Defendant cited the errors as its reason for terminating Plaintiff. (ECF No. 1 ¶¶ 14–18.) 27 Unlike Achal, Plaintiff alleges Defendant did investigate the errors, and through the investigation 28 Defendant learned Plaintiff was not at fault, yet still used the errors as reasons for terminating 6 1 him. Drawing all inferences in his favor, Plaintiff’s factual allegations are sufficient, for the 2 purposes of this motion, to give rise to the plausible inference Defendant’s reason was pretext. 3 A plaintiff alleging discrimination under FEHA must show the employer acted with a 4 discriminatory motive. Ayala, 2017 WL 2833401, at *7. “[S]imply showing the employer was 5 lying, without some evidence of discriminatory motive, is not enough to infer discriminatory 6 animus.” Soria, 5 Cal. App. 5th at 594. Although Plaintiff speculates Defendant terminated him 7 because of his age and race, Plaintiff has not alleged any facts connecting his age or race to 8 Defendant’s decision. Plaintiff’s allegation Defendant acted because of his age and race is a 9 recitation of an element. See Iqbal, 556 U.S. at 678. Plaintiff has not alleged Defendant treated 10 differently other employees who were different ages or races than Plaintiff. Cf. McGinest v. GTE 11 Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004) (finding the plaintiff stated a case for failure to 12 promote by showing that rather than filling the position by promoting any interviewees, [the 13 employer] transferred a white manager into the position). Plaintiff has not alleged Defendant 14 made negative comments about his age or race or replaced him with an employee who was a 15 different race or younger. See Ravel v. Hewlett-Packard Enter., Inc., 228 F. Supp. 3d 1086, 1099 16 (E.D. Cal. 2017) (finding the plaintiff did not allege facts rising to a plausible inference of age 17 discrimination, such as being replaced by a younger employee, overhearing negative comments 18 about age, or her age being point of discussion). Plaintiff’s allegations do not give rise to a 19 plausible inference Defendant acted because of his age or race. Achal, 114 F. Supp. 3d at 798. 20 Because Plaintiff has not alleged facts sufficient to support a plausible inference of 21 discriminatory motive in relation to his age or race discrimination claims, the Court need not 22 analyze the other elements. Accordingly, the Court GRANTS Defendant’s motion to dismiss 23 Plaintiff’s discrimination claims based on age and race. 24 B. Wrongful Termination in Violation of Public Policy 25 Plaintiff alleges Defendant wrongfully terminated him in violation of public policy “on 26 account of his age, race, and union affiliation.” (ECF No. 1 ¶ 40.) Defendant argues Plaintiff’s 27 claim related to his union membership is preempted and the remainder of his claim is conclusory 28 and premised on a deficient discrimination claim. (ECF No. 4 at 7–8.) 7 1 i. 2 In cases which involve either an actual or an arguable violation of either Section 7 or 8 of 3 the NLRA, both the states and the federal courts must defer to the “exclusive competence” of the 4 National Labor Relations Board (“NLRB”). Commc’ns Workers of Am. v. Beck, 487 U.S. 735, 5 742 (1988) (citing San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959)). 6 NLRA Section 7 protects employees’ rights to join labor unions, collectively bargain, and engage 7 in other activities for purposes of mutual aid. 29 U.S.C. § 157. NLRA Section 8 prevents 8 employers from engaging in unfair labor practices or interfering with employees’ rights to join 9 labor unions and bargain collectively. 29 U.S.C. § 158(a)(1)-(3). National Labor Relations Act (“NLRA”) Preemption 10 Plaintiff’s claim for wrongful termination based on Plaintiff’s active union membership, if 11 proven, would constitute a violation of the NLRA and is subject to Garmon preemption. Clayton 12 v. Pepsi Cola Bottling Grp., Civ. A. No. CV85-5957-WMB, 1987 WL 46230, at *7 n.1 (C.D. Cal. 13 Mar. 3, 1987). Plaintiff argues Defendant had mixed motives for firing him, and Garmon 14 preemption should not apply to his entire wrongful termination claim, which includes allegations 15 of public policy violations outside NLRB’s jurisdiction. (ECF No. 9 at 7–8) (citing Balog v. 16 LRJV, Inc., 204 Cal. App. 3d 1295, 1308–09 (Ct. App. 1988), reh’g denied and opinion modified 17 (Sept. 20, 1988) (holding a court retains jurisdiction over wrongful termination claims based on 18 mixed motives, if some motives were not even arguably unrelated to unfair labor practices). 19 Plaintiff’s claims for failure to hire based on age or race are not arguably related to 20 violations of either Section 7 or 8 of NLRA, which protect union activities. The scheme of civil 21 protection set out in FEHA is the type of interest “deeply rooted in local feeling and 22 responsibility” that NLRA does not deprive the states of the power to act on. See Sears, Roebuck 23 & Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S. 180, 196 (1978); Carter v. Smith 24 Food King, 765 F.2d 916, 921 n.6 (9th Cir. 1985). 25 Accordingly, Plaintiff’s claim for wrongful termination based on union membership is 26 preempted by NLRA, but Plaintiff’s claim for wrongful termination in violation of public policy 27 based on Plaintiff’s age or race is not preempted. 28 /// 8 1 ii. 2 Defendant argues, to the extent Plaintiff’s failure to hire claim is not preempted, it fails 3 because it is premised on deficient discrimination claims. (ECF No. 4 at 8.) Plaintiff states he 4 has pled sufficient facts throughout his complaint to show the reasons given for his termination 5 were pretext and the termination was based on his protected characteristics. (ECF No. 9 at 6.) 6 “The elements of a claim for wrongful discharge in violation of public policy are (1) an Pleading Adequacy of Plaintiff’s Wrongful Termination 7 employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the 8 termination was substantially motivated by a violation of public policy, and (4) the discharge 9 caused the plaintiff harm.” Yau v. Allen, 229 Cal. App. 4th 144, 154 (2014). 10 As discussed, Plaintiff does not state sufficient allegations to support claims for age or 11 race discrimination, therefore Plaintiff’s derivative claim for wrongful termination in violation of 12 public policy based on age or race discrimination fails. See Tumblin v. USA Waste of California, 13 Inc., No. CV 16-2902 DSF-PLAX, 2016 WL 3922044, at *8 (C.D. Cal. 2016). Accordingly, the 14 Court GRANTS Defendant’s motion to dismiss Plaintiff’s wrongful termination claim. 15 C. Retaliation in Violation of California Government Code § 12940(h) 16 Plaintiff alleges he engaged in “such protected activities as being an African American 17 over the age of 40” and being “an active member of the CFT union.” (ECF No. 1 ¶¶ 49–50.) 18 Plaintiff alleges Defendant terminated his employment because of those alleged protected 19 activities. (ECF No. 1 ¶¶ 49–50.) Defendant argues Plaintiff failed to show causation between 20 Plaintiff’s termination and any protected activity. (ECF No. 4 at 8–9.) Plaintiff states the facts 21 alleged throughout “provide sufficient detail to support” this cause of action. (ECF No. 9 at 9.) 22 To establish a claim for retaliation under FEHA Section 12940(h), a plaintiff must show 23 “(1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an 24 adverse employment action, and (3) a causal link existed between the protected activity and the 25 employer’s action.” Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028, 1042 (2005); Ayala, 2017 26 WL 2833401, at *12. A “protected activity” under Section 12940(h) means an employee 27 “opposed any practices forbidden under [FEHA] or . . . filed a complaint, testified, or assisted in 28 any proceeding under [FEHA].” CAL. GOV’T CODE § 12940(h); Yanowitz, 36 Cal. 4th at 1042. 9 1 Plaintiff does not allege he engaged in any protected activity, such as opposing practices 2 forbidden under FEHA, filing a complaint, testifying, or assisting in any proceeding under FEHA. 3 Further, any claim for retaliation based on union activities would be preempted by the NLRA and 4 subject to the exclusive jurisdiction of NLRB. Because Plaintiff has not alleged facts sufficient to 5 support the first element of his retaliation claim, the Court need not analyze the other elements. 6 Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s retaliation claim. 7 D. 8 Plaintiff alleges Defendant violated public policy by “terminating Plaintiff’s employment 9 Failure to Prevent Discrimination on account of his protected characteristics, including his union affiliation.” (ECF No. 1 ¶ 62.) 10 Defendant argues FEHA’s Section 12940(k) does not give litigants a private cause of action for a 11 stand-alone claim for failure to prevent discrimination. (ECF No. 4 at 9–11.) Defendant cites the 12 Fair Employment and Housing Commission’s (“FEHC”) decision in In the Matter of the 13 Accusation of the Dep’t Fair Empl. & Hous. v. Lyddan Law Group (Williams), FEHC Dec. No. 14 10-04-P, at *12 (Oct. 19, 2010) (holding “there cannot be a claim [by a private litigant] for failure 15 to prevent discrimination without a valid claim for discrimination”). (ECF No. 4 at 10.) Plaintiff 16 states FEHA gives private litigants a cause of action for failure to prevent discrimination, though 17 Plaintiff does not address Defendant’s argument regarding stand-alone claims. (ECF No. 9 at 10.) 18 As discussed above, Plaintiff has not alleged facts sufficient to state a claim for 19 discrimination based on age or race, so Plaintiff’s derivative claim for failure to prevent 20 discrimination fails. Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1318 (2015), as 21 modified on denial of reh’g (Mar. 24, 2015), review denied (June 17, 2015) (“There cannot be a 22 claim for failure to take reasonable steps necessary to prevent sex discrimination under section 23 12940, subdivision (k) if actionable sex discrimination has not been found.”). Accordingly, the 24 Court GRANTS Defendant’s motion to dismiss Plaintiff’s failure to prevent discrimination claim. 25 E. Intentional Infliction of Emotional Distress 26 Plaintiff alleges Defendant knew of Plaintiff’s protected characteristics but wrongfully 27 terminated Plaintiff “with the intent to cause emotional distress or with reckless disregard of the 28 probability” of doing so. (ECF No. 1 ¶¶ 69–70.) Defendant argues Plaintiff’s claim fails as a 10 1 matter of law because Plaintiff’s allegations with respect to intentional infliction of emotional 2 distress relate to personnel management activities, which cannot constitute “extreme and 3 outrageous conduct,” a required element of this claim. (ECF No. 4 at 11-12.) Plaintiff argues 4 Defendant based Plaintiff’s termination on errors “which were resolved with minor paperwork,” 5 prior to Plaintiff’s termination, and this constitutes “outrageous” conduct. (ECF No. 9 at 11.) 6 Defendant replies Plaintiff cited no legal authority for this position and had not provided facts to 7 support the precedent he does cite. (ECF No. 10 at 9.) 8 To state a claim for intentional infliction of emotional distress, a plaintiff must show, 9 among other things, “extreme and outrageous conduct by the defendant with the intention of 10 causing, or reckless disregard of the probability of causing, emotional distress.” Hughes v. Pair, 11 46 Cal. 4th 1035, 1050 (2009). Extreme and outrageous conduct must “exceed all bounds of that 12 usually tolerated in a civilized community.” Id. at 1050–51. “Whether a defendant’s conduct can 13 reasonably be found to be outrageous is a question of law that must initially be determined by the 14 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 15 16 intentional infliction of emotional distress, even if improper motivation is alleged.” Janken v. 17 GM Hughes Electrs., 46 Cal. App. 4th 55, 80 (1996). “Managing personnel is not outrageous 18 conduct beyond the bounds of human decency, but rather conduct essential to the welfare and 19 prosperity of society.” Id. Personnel management activity includes, “hiring and firing, job or 20 project assignments, office or work station assignment, promotion or demotion, performance 21 evaluations, the provision of support, the assignment or non-assignment of supervisory functions, 22 deciding who will and who will not attend meetings, deciding who will be laid off.” Id. at 64–65. 23 Plaintiff alleges Defendant wrongfully terminated him despite Defendant’s knowledge of 24 Plaintiff’s “protected characteristics.” (ECF No. 1 ¶ 70.) Plaintiff has not alleged any facts 25 outside Defendant’s employment and supervisory duties. The action Plaintiff does allege — 26 making a firing decision — is an activity California courts have expressly found constitutes 27 personnel management activity. Janken, 46 Cal. App. 4th at 64–65. 28 /// 11 1 Plaintiff alleges Defendant relied on performance errors to fire Plaintiff even though those 2 errors were made by other people who gave incorrect information to Plaintiff or were corrected 3 with minor paperwork corrections prior to Plaintiff’s termination. (ECF No. 1 ¶ 17; ECF No. 9 at 4 11.) Plaintiff argues Defendant’s conduct of basing Plaintiff’s termination on inaccurate 5 information or errors that were resolved quickly constitutes “behavior in the workplace which 6 may be considered ‘outrageous.’” (ECF No. 9 at 11.) Plaintiff, however, does not cite any legal 7 authority for his argument. 8 9 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 10 gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries 11 through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts 12 are likely to result in illness through mental distress.” (ECF No. 9 at 11) (citing id. at n.7). As 13 Defendant notes, Plaintiff does not allege Defendant abused a relation or position of power over 14 Plaintiff, does not allege Defendant knew Plaintiff was susceptible to injury through mental 15 distress or even that he was susceptible to that injury, and does not allege Defendant acted 16 intentionally or unreasonably with the recognition that Defendant’s acts were likely to result in 17 illness through mental distress. (ECF No. 10 at 9.) Plaintiff does not allege facts to support his 18 argument Defendant’s conduct constituted “outrageous” behavior under the standard in Cole. 19 Plaintiff has not alleged any facts outside the employment and supervisory duties which 20 cannot constitute extreme and outrageous conduct. Accordingly, the Court GRANTS 21 Defendant’s motion to dismiss Plaintiff’s intentional infliction of emotional distress claim. 22 IV. LEAVE TO AMEND 23 “[A] district court should grant leave to amend even if no request to amend the pleading 24 was made, unless it determines that the pleading could not possibly be cured by the allegation of 25 other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). Plaintiff has not previously 26 amended his complaint and the Court cannot say that the pleading could not possibly be cured by 27 the allegation of other facts. Accordingly, the Court GRANTS Plaintiff leave to amend the 28 complaint within 30 days of the date of this Order. 12 1 V. 2 For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 4) is hereby 3 GRANTED as to all claims with leave to amend within 30 days of the date of this Order 4 5 CONCLUSION IT IS SO ORDERED. Dated: December 4, 2017 6 7 8 9 Troy L. Nunley United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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