Brown v. Family Radio Inc. et al

Filing 42

Order by Hon. Vince Chhabria granting 30 Motion to Dismiss. (Filed on 5/30/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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LIZZIE E. BROWN,

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Case No. 13-cv-05305-VC

Plaintiff,
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v.

ORDER GRANTING MOTION TO
DISMISS

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FAMILY STATIONS, INC.,

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Re: Dkt. No. 30

Defendant.
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In her Second Amended Complaint, Plaintiff Lizzie Brown claims that Defendant Family

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United States District Court
Northern District of California

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Stations, Inc. fired her because of her age, race, and/or religion in violation of Title VII of the

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Civil Rights Act of 1964, the Age Discrimination and Employment Act of 1967 ("ADEA"), and

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California's Fair Employment and Housing Act ("FEHA"). (Docket No. 28). Brown alleges that

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despite her outstanding work performance, Family Stations terminated her because she has a

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pension, which Brown contends was used as a proxy for her age. She also alleges Family Stations

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terminated her because she is African-American and because she is not a member of the

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Fellowship Church. Family Stations moves to dismiss, arguing that Brown has failed to allege

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sufficient facts to state a plausible claim.1 (Docket No. 30). The motion is GRANTED.
DISCUSSION

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The only factual basis Brown alleges for her race discrimination claim is that there were

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non African-American employees whose households receive pension income who were not laid

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off. (See Compl. ¶¶ 27, 32). A plaintiff may support an inference of race discrimination by

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alleging that "similarly situated individuals" of another race were treated more favorably. See

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Hawn v. Executive Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010). Brown, however, has

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alleged no facts that would demonstrate that the employees who were not discharged were

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Initially, Family Stations also argued that Brown's religious discrimination claim must be
dismissed for failure to exhaust administrative remedies. (Mot. to Dismiss 7). Family Stations
has withdrawn this argument. (Reply 6-7).

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similarly situated to her. She has not alleged, for example, that they held a similar job or engaged

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in similar conduct, or that they were similar to her in any other material way. See Vasquez v. Cnty.

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of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003). She fails, therefore, to allege a plausible race

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discrimination claim. See Hawn, 615 F.3d at 1156-57; cf. Hilber v. Int'l Lining Tech., No. C 12-

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00003 LB, 2012 WL 1831558, at *3 (N.D. Cal. May 18, 2012) (dismissing a race discrimination

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claim where the plaintiff failed to allege "that he had a similar job or responsibilities . . . or that he

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possessed similar training and experience" to employees he alleged were treated more favorably

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than him).
Brown's claim of religious discrimination fails for the same reason. This claim relies

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primarily on allegations that employees who were members of the "Fellowship Church" were

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United States District Court
Northern District of California

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spared termination. (See, e.g., Compl. ¶ 26). But the complaint contains no allegations about

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whether these employees were similarly situated to Brown. Brown does allege that during the

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meeting at which she was informed that she was being laid off, she "was led to belief [sic] that," in

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addition to her pension, "the other reason for her termination was that she did not attend the

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Fellowship Church." (Compl. ¶ 23 (internal quotation marks omitted)). But she does not provide

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any allegations regarding the factual basis for that belief. Without "further factual enhancement,"

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Brown's complaint does not "permit the [C]ourt to infer more than the mere possibility of

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misconduct." See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (internal quotation marks

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omitted).

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With respect to her age discrimination claim, Brown alleges that during the meeting at

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which she was informed of her termination, "the reason given . . . was that she had a pension."

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(Compl. ¶ 22). Although neither the ADEA nor the FEHA prohibits discrimination based on

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pension status itself, where an employer "targets employees with a particular pension status on the

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assumption that these employees are likely to be older," the employer discriminates on the basis of

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age. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 612 (1993). Here, however, Brown has

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alleged no facts that would indicate that Family Stations relied on pension status as "a proxy for

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age," id. at 613. Furthermore, Brown alleges that other employees receiving pensions were not

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laid off, (Compl. ¶¶ 26-27, 30), which undercuts the allegation that Family Stations used pension
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status as a proxy for age. Brown has therefore not pleaded a plausible age discrimination claim.

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At the May 29, 2014 motion hearing, Brown's counsel could not identify any allegation that could

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be added to the complaint to make this claim plausible. It is therefore dismissed with prejudice.

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DeSoto v. Yellow Freight Sys., 957 F.2d 655, 658 (9th Cir. 1992) ("A district court does not err in

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denying leave to amend where the amendment would be futile.").
CONCLUSION

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For the reasons explained above, the Second Amended Complaint is DISMISSED. Brown

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is given leave to amend her race and religious discrimination claims. Her age discrimination claim

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is dismissed with prejudice. If she wishes to do so, Brown must file an amended complaint within

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30 days of this Order. Otherwise, this case will be dismissed with prejudice.

United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: May 30, 2014
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VINCE CHHABRIA
United States District Judge

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