Raul R. Haro v. Therm-X of California, Inc.

Filing 34

Order by Judge Joseph C. Spero granting in part and denying in part 21 Motion to Dismiss. (jcslc2S, COURT STAFF) (Filed on 8/28/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RAUL R HARO,

Case No. 15-cv-02123-JCS

Plaintiff,
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v.
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THERM-X OF CALIFORNIA, INC.,
Defendant.

Re: Dkt. No. 21

United States District Court
Northern District of California

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ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS FIRST AMENDED
COMPLAINT

I.

INTRODUCTION
Defendant Therm-X of California, Inc. (―Therm-X‖) moves to dismiss this employment

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discrimination action brought by Plaintiff Raul Haro, a former Therm-X employee, under Title VII

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of the Civil Rights Act of 1964 and under California‘s Fair Employment and Housing Act

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(―FEHA‖). Haro alleges that Therm-X subjected him to a hostile work environment, discipline,

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and termination on account of his race and/or national origin as a Hispanic person born in Mexico,

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and in retaliation for his complaining about discriminatory harassment. The Court held a hearing

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on August 28, 2015. For the reasons stated below, Therm-X‘s Motions is GRANTED IN PART,

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only as to Haro‘s discrimination claims to the extent that they are based on unspecified

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―discipline,‖ but is otherwise DENIED.1 Based on Haro‘s counsel‘s representation at the August

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28 hearing that Haro does not intend to pursue a claim based on discipline as an adverse

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employment action, the Court does not grant leave to amend.

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The parties have consented to the jurisdiction of the undersigned magistrate judge for all
purposes pursuant to 28 U.S.C. § 636(c).

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II.

BACKGROUND
A.

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Allegations of the First Amended Complaint2

Haro is Hispanic and was born in Mexico. 1st Am. Compl. (―FAC,‖ dkt. 14) ¶ 3. In

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January of 2014, he was hired by Therm-X as a lathe operator, and at all times performed his job
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satisfactorily. Id. ¶¶ 3–4. He was nevertheless treated differently from other employees, and ―was

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disciplined for performance infractions for which non-Hispanic, non-Mexican born employees
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received no discipline.‖ Id. ¶ 5. His coworkers continuously and severely harassed him,

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physically and verbally, because of his race and/or national origin. Id. ¶ 6. One coworker
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physically assaulted him. Id. Haro‘s ―supervisor witnessed some of the harassment, participated

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in some of the harassment, supported the harassers, and failed to take any steps to stop the
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harassment.‖ Id. ¶ 7. On May 9, 2014, Haro complained of harassment, but his supervisor denied
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Northern District of California

that any harassment occurred. Id. ¶¶ 8–9.
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―After he complained, [Haro] was subjected to retaliatory discipline, up to and including
termination of his employment on August 14, 2014.‖ Id. ¶ 10. Therm-X initially told Haro that he

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was being laid off, but later submitted documents to the Equal Employment Opportunity
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Commission (―EEOC‖) indicating that Therm-X had terminated Haro for cause. Id. ¶ 11.

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Haro filed an administrative complaint with the EEOC and the California Department of
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Fair Employment and Housing (―DFEH‖) on or about February 9, 2015. Id. ¶ 13. He checked
boxes indicating that he complained of discrimination based on race, national origin, sex, and age,3

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as well as retaliation. Id. Ex.1. That administrative complaint includes the following factual
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allegations:
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On May 8, 2014, I told Respondent [Therm-X] that a coworker had
physically attacked me and had created a hostile work environment.
My coworkers, Brian and Charley, frequently made derogatory
jokes and comments to me regarding sex, my national origin, and
the races of other individuals. Thom [(Haro‘s supervisor)] witnessed
the incident, but did not intervene or attempt to discipline my
coworkers. I am unaware of any remedial action taken upon my
complaint.

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Haro‘s factual allegations are generally taken as true for the purpose of the present Motion to
Dismiss.
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Haro has not pursued sex or age discrimination claims in this action. See generally Compl.
(dkt. 1); FAC.
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I was subjected to disparate treatment. For example, after my
complaint, I was disciplined for performance, however employees
outside of my protected class are not disciplined for similar or worse
infractions/. [sic]

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I was terminated on August 14, 2014. The stated reason for my
termination was that I was ―laid off,‖ however that explanation
contradicts the unemployment paperwork submitted to me.

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Id. Haro received right-to-sue letters from the EEOC and DFEH, each dated March 3, 2015. Id.
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Exs. 2, 3.

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The First Amended Complaint includes eight claims: (1) discrimination in violation of
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Title VII; (2) harassment and creation of a hostile work environment in violation of Title VII; (3)
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retaliation in violation of Title VII; (4) discrimination in violation of FEHA, Cal. Gov‘t Code

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§ 12940(a); (5) harassment and creation of a hostile work environment in violation of FEHA, Cal.

United States District Court
Northern District of California

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Gov‘t Code § 12940(j); (6) retaliation in violation of FEHA, Cal. Gov‘t Code § 12940(h); (7)
failure to prevent discrimination and harassment in violation of FEHA, Cal. Gov‘t Code

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§ 12940(k); and (8) termination in violation of public policy under California law. FAC ¶¶ 18–25.

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Haro seeks injunctive relief, actual and punitive damages, costs of suit, prejudgment interest, and
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attorneys‘ fees. Id. at 4 (prayer for relief).

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B.

Procedural History and Parties’ Arguments

After receiving his right-to-sue letters, Haro filed his initial Complaint in this Court on
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May 11, 2015. See Compl. Therm-X moved to dismiss on July 10, 2015, see dkt. 12, and Haro
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filed his First Amended Complaint pursuant to Rule 15(a)(1)(B) of the Federal Rules of Civil
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Procedure, see FAC. The Court denied Therm-X‘s first Motion to Dismiss as moot on July 14,

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2015. Dkt. 18.
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On July 21, 2015, Therm-X moved to dismiss the First Amended Complaint. See
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generally Mot. (dkt. 21). Therm-X argues that Haro has failed to include sufficient factual
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allegations under the pleading standard described by the Supreme Court in Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Id. at 5–6. Although
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Therm-X concedes that the Court will consider the exhibits to the First Amended Complaint in
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evaluating its sufficiency, it argues that even taking into account the brief factual summary in the
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administrative complaint, Haro has not pled sufficient facts—as opposed to legal conclusions—to

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satisfy each element of a prima facie case for any of his claims. See id. at 6–9. Haro responds that

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his First Amended Complaint satisfies the Ninth Circuit‘s pleading standard for employment

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discrimination claims as set forth in Sheppard v. David Evans & Associates, 694 F.3d 1045 (9th

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Cir. 2012). See generally Opp‘n (dkt. 28).

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III.

ANALYSIS

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A.

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A complaint may be dismissed for failure to state a claim on which relief can be granted

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Legal Standard

under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(b)(6). ―The
purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the

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Northern District of California

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complaint.‖ N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). Generally, a

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plaintiff‘s burden at the pleading stage is relatively light. Rule 8(a) of the Federal Rules of Civil

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Procedure states that ―[a] pleading which sets forth a claim for relief . . . shall contain . . . a short

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and plain statement of the claim showing that the pleader is entitled to relief.‖ Fed. R. Civ. P.

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8(a).

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In ruling on a motion to dismiss under Rule 12(b)(6), the court analyzes the complaint and

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takes ―all allegations of material fact as true and construe[s] them in the light most favorable to the

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non-moving party.‖ Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

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Dismissal may be based on a lack of a cognizable legal theory or on the absence of facts that

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would support a valid theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

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1990). A complaint must ―contain either direct or inferential allegations respecting all the material

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elements necessary to sustain recovery under some viable legal theory.‖ Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 562 (2007) (citing Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101,

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1106 (7th Cir. 1984)). ―A pleading that offers ‗labels and conclusions‘ or ‗a formulaic recitation

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of the elements of a cause of action will not do.‘‖ Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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(quoting Twombly, 550 U.S. at 555). ―Nor does a complaint suffice if it tenders ‗naked

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assertion[s]‘ devoid of ‗further factual enhancement.‘‖ Id. (quoting Twombly, 550 U.S. at 557).

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Rather, the claim must be ―‗plausible on its face,‘‖ meaning that the plaintiff must plead sufficient
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factual allegations to ―allow[] the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.‖ Id. (quoting Twombly, 550 U.S. at 570).

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B.

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Haro‘s first and fourth claims are for unlawful discrimination based on race and/or national

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Discrimination Claims

origin in violation of Title VII and FEHA, respectively. FAC ¶¶ 18, 21.
Under Title VII, it is ―an unlawful employment practice for an employer . . . to discharge

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any individual, or otherwise to discriminate against any individual with respect to his

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compensation, terms, conditions, or privileges of employment, because of such individual‘s race,

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color, religion, sex, or national origin.‖ 42 U.S.C. § 2000e–2(a). Similarly, under FEHA, an
employer may not ―because of the race [or] national origin . . . of any person, . . . discharge the

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Northern District of California

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person from employment or . . . discriminate against the person in compensation or in terms,

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conditions, or privileges of employment.‖ Cal. Gov‘t Code § 12940(a). ―Because of the similarity

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between state and federal employment discrimination laws, California courts look to pertinent

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federal precedent when applying [California anti-discrimination] statutes.‖ Guz v. Bechtel Nat’l,

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Inc., 24 Cal. 4th 317, 354 (2000). The Court therefore analyzes Haro‘s Title VII and FEHA

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discrimination claims together.

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A plaintiff must generally present ―actions taken by the employer from which one can

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infer, if such actions remain unexplained, that it is more likely than not that such action was based

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upon race or another impermissible criterion.‖ Bodett v. CoxCom, Inc., 366 F.3d 736, 743 (9th

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Cir. 2004) (quoting Gay v. Waiters’ Union, 694 F.2d 531, 538 (9th Cir. 1982)). Discrimination

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need not be the only reason for the termination. ―It suffices instead to show that the motive to

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discriminate was one of the employer‘s motives, even if the employer also had other, lawful

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motives that were causative in the employer‘s decision.‖ Univ. of Tex. Sw. Med. Ctr. v.

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Nassar, 133 S. Ct. 2517, 2523 (2013).

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A plaintiff may rely either on direct evidence that his termination or other adverse

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employment action was racially motivated, or on circumstantial evidence by showing that: (1) he

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is a member of a protected class; (2) he was qualified for his position and performed adequately;

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(3) he experienced adverse employment action; and (4) similarly situated individuals not in his
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protected class were treated more favorably, or other circumstances give rise to an inference of

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discrimination. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010).

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Although a plaintiff does not necessarily need to plead each of these elements specifically in his

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complaint, Shepard, 694 F.3d at 1050 n.2, they nevertheless ―help to determine whether Plaintiff

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has set forth a plausible claim,‖ see Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir.

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2012). In cases ―where a plaintiff pleads a plausible prima facie case of discrimination, the

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plaintiff‘s complaint will be sufficient to survive a motion to dismiss.‖ Sheppard, 694 F.3d at

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1050 n.2.
In Sheppard, an age discrimination case on which Haro relies heavily, the Ninth Circuit

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held that the plaintiff‘s complaint pled a plausible prima facie case based on allegations that (1)

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she was ―over the age of forty‖; (2) ―her performance was satisfactory or better‖ and ―[s]he

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received consistently good performance reviews‖; (3) she ―was involuntarily terminated from her

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position‖; and (4) each of her ―younger comparators kept their jobs.‖ Id. at 1048 (reciting the

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complaint verbatim); see also id. at 1049−50 (holding these allegations sufficient).

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1. Protected Class
There is no dispute that Haro adequately pleads the first element, that he is member of a
protected class based on his Hispanic ethnicity and Mexican national origin. See FAC ¶ 3.
2. Adequate Performance
The second element is a closer call, as Haro‘s allegation that he ―performed his job

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satisfactorily,‖ FAC ¶ 4, could be considered merely ―a formulaic recitation of [an] element[] of

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[his] cause of action,‖ and therefore insufficient. See Ashcroft, 556 U.S. at 678 (quoting Twombly,

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550 U.S. at 555). Moreover, Haro includes less factual detail than the plaintiff in Sheppard, who

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alleged that she ―received consistently good performance reviews.‖ Sheppard, 694 F.3d at 1048.

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On the other hand, in some employment contexts—for example, if an employer does not conduct

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performance reviews—there might be little if anything more that a plaintiff can allege on this

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point. Although it is somewhat conclusory, the Court finds this allegation sufficient.

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3. Adverse Employment Action and Discriminatory Causation
The third and fourth elements, adverse employment action and causation, are inherently
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intertwined, because for each purported adverse action, the plaintiff must show both that it is

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sufficiently consequential to be actionable and that it was based on discrimination. Haro‘s

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Opposition identifies two forms of adverse employment action: discipline and termination. See

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Opp‘n at 1; FAC ¶¶ 5, 10.4
With respect to the former, the First Amended Complaint includes no allegations as to

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what sort of discipline Haro experienced. Although the Ninth Circuit defines adverse employment

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actions ―broadly,‖ see Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir. 2001),

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―[n]ot every employment decision amounts to an adverse employment action,‖ Brooks v. City of

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San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) (quoting Stroher v. S. Cal. Permanente Med. Grp.,

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79 F.3d 859, 869 (9th Cir. 1996)) (considering a Title VII retaliation claim). In order to support a

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discrimination claim, an employer‘s action must be ―one that ‗materially affect[s] the

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compensation, terms, conditions, or privileges of . . . employment.‘‖ Davis v. Team Elec. Co., 520

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F.3d 1080, 1089 (9th Cir. 2008) (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1126 (9th

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Cir. 2000)) (alterations in original). Without any description of the alleged discipline in this case,

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the Court cannot determine whether it plausibly rises to the level of ―materially affect[ing]‖ Haro‘s

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employment. See id. Accordingly, Haro‘s discrimination claims are DISMISSED to the extent

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that they are based on Therm-X‘s alleged discriminatory discipline. Haro‘s counsel stated at the

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August 28 hearing that Haro does not intend to pursue a claim based on discipline as an adverse

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employment action.
Termination, on the other hand, is specifically identified as an actionable adverse

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employment action under both Title VII and FEHA. See 42 U.S.C. § 2000e–2(a); Cal. Gov‘t Code

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§ 12940(a). The question here is whether Haro has adequately alleged that he was terminated on

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account of his race or national origin. Unlike his allegations regarding discipline, and unlike the

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complaint in Sheppard, Haro does not allege that his non-Hispanic or non-Mexican-born

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coworkers retained their jobs when he was terminated. See FAC ¶ 10; Sheppard, 694 F.3d at

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Severe and pervasive harassment can also constitute an adverse employment action, and
Haro‘s Opposition identifies harassment as a basis for his discrimination claim. See Opp‘n at 1.
Because Haro‘s First Amended Complaint includes separate claims for discriminatory harassment,
this Order addresses that theory separately below.
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1048−50. The Court notes, however, that discrimination need not be the sole motive for

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termination to support a claim, see Nassar, 133 S. Ct. at 2523, and that dismissing this claim

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would serve little purpose where the circumstances of and motives behind Haro‘s termination will

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be at issue in this case regardless, in the context of his retaliation claim discussed below. Viewed

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in the context of the complaint as a whole—including allegations that Haro experienced discipline

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when employees outside his protected classes did not, that he was subject to discriminatory

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harassment by and with the knowledge of his supervisor, and that Therm-X gave conflicting

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explanations of his termination, see FAC ¶¶ 5, 7, 11—the Court finds it plausible to infer that his

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termination was based on his race or national origin, and declines to dismiss this claim.
C.

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Haro‘s second and fifth claims assert that Therm-X subjected him to a hostile work

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environment in violation of Title VII and FEHA, based on discriminatory harassment. FAC ¶¶ 19,

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23. ―[Discriminatory] harassment so ‗severe or pervasive‘ as to ‗alter the conditions of [the

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victim‘s] employment and create an abusive working environment‘ violates Title VII.‖ Faragher

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v. City of Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor Sav. Bank, FSB v. Vinson, 477

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U.S. 57, 67 (1986)). ―Workplace conduct is not measured in isolation; instead, whether an

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environment is sufficiently hostile or abusive must be judged by looking at all the circumstances,

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including the frequency of the discriminatory conduct; its severity; whether it is physically

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threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes

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with an employee‘s work performance.‖ Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270−71

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(2001) (per curiam) (citations and internal quotation marks omitted).

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Harassment Claims

The ―standards for judging hostility are sufficiently demanding to ensure that Title VII

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does not become a ‗general civility code.‘‖ Faragher, 524 U.S. at 788 (citation omitted). Rather,

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―conduct must be extreme to amount to a change in the terms and conditions of employment.‖ Id.

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Although a workplace need not be ―so heavily polluted with discrimination as to destroy

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completely the emotional and psychological stability of minority group workers‖ to be actionable,

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―[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work

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environment—an environment that a reasonable person would find hostile or abusive—is beyond
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Title VII‘s purview.‖ Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation and internal

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quotation marks omitted). ―Repeated derogatory or humiliating statements, however, can

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constitute a hostile work environment.‖ Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000).

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―To hold her employer liable for [discriminatory] harassment under Title VII, [a plaintiff]
must show that she reasonably feared she would be subject to such misconduct in the future

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because the [employer] encouraged or tolerated [the] harassment.‖ Brooks v. City of San Mateo,

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229 F.3d 917, 924 (9th Cir. 2000). The standards for a hostile work environment claim under

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FEHA are substantially similar to the standards under Title VII. See id. at 923−27 (holding that

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―we need only assess [the plaintiff‘s] claim under federal law because Title VII and FEHA operate

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under the same guiding principles‖ and analyzing the plaintiffs state and federal harassment claims

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Northern District of California

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together).

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Here, the harassment allegations of Haro‘s First Amended Complaint itself are fairly

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conclusory. See FAC ¶ 6 (―Plaintiff‘s coworkers harassed him because of his race and/or national

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origin, both physically and verbally. The harassment was continuous, severe, pervasive, and

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abusive. In one incident Plaintiff was physically assaulted by a coworker.‖). The administrative

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complaint attached as Exhibit 1, however, includes further factual allegations, including that

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Haro‘s ―coworkers, Brian and Charley, frequently made derogatory jokes and comments to [Haro]

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regarding . . . [Haro‘s] national origin, and the races of other individuals.‖ Id. Ex. 1. Both the

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First Amended Complaint and the administrative complaint allege that Haro‘s supervisor was

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aware of the harassment, failed to intervene, ―participated in some of the harassment,‖ and denied

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that it occurred after Haro complained. See id. ¶¶ 7−9 & Ex. 1.

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Therm-X argues that Haro‘s allegations are insufficient because Haro fails to ―state what

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offensive words were purportedly said or actions purportedly taken, by whom, or when,‖ and

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―[w]ithout these basic facts, [Haro] cannot state a claim for relief that is plausible on its face.‖

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Reply (dkt. 31) at 4; see also Mot. at 7. Therm-X cites no authority for the proposition that a

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discriminatory harassment complaint must include such details, and appears to confuse Rule 8(a)‘s

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requirement of a ―short and plaint statement of the claim‖ with the heightened pleading standard

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of Rule 9(b), which is not applicable here. See Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir.
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1993) (holding that in fraud cases, the heightened Rule 9(b) standard requires ―such facts as the

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times, dates, places, benefits received, and other details of the alleged fraudulent activity‖).

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―Repeated derogatory or humiliating statements . . . can constitute a hostile work
environment.‖ Ray, 217 F.3d at 1245. Taking into account Exhibit 1 of his First Amended

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Complaint, Haro presents non-conclusory allegations that he experienced exactly such harassment

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on account of his national origin. See FAC ¶ 6 & Ex. 1. He also alleges that he complained about

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the harassment and that his supervisor—who participated in some of the harassment and failed to

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discipline the harassers—denied that it occurred, id. ¶¶ 7−10 & Ex. 1, which is adequate to support

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an inference that Haro ―reasonably feared [he] would be subject to such misconduct in the future

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because the [employer] encouraged or tolerated [the] harassment.‖ See Brooks, 229 F.3d at 924.

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The Court finds these allegations sufficient. To the extent that Therm-X disputes the severity or

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pervasiveness of the alleged harassment, such issues are better addressed as questions of fact.

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Therm-X‘s Motion is therefore DENIED with respect to Haro‘s harassment claims.

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D.

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Haro‘s third and sixth claims allege unlawful retaliatory termination under Title VII and

Retaliation Claims

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FEHA. Those statutes prohibit an employer from ―discriminat[ing] against any of his employees

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. . . because [the employee] has opposed any practice made an unlawful employment practice . . . ,

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or because he has made a charge, testified, assisted, or participated in any manner in an

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investigation, proceeding, or hearing.‖ 42 U.S.C. § 2000e-3(a); see also Cal. Gov‘t Code

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§ 12940(h). In general, employers‘ ―unlawful employment practices‖ under the anti-

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discrimination laws encompass discrimination and harassment based on ―race, color, religion, sex,

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or national origin.‖ See 42 U.S.C. § 2000e-2(a); see also Cal. Gov‘t Code § 12940(a), (j).

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―To succeed on a retaliation claim, [a plaintiff] must first establish a prima facie case [by]

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demonstrat[ing] (1) that she was engaging in a protected activity, (2) that she suffered an adverse

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employment decision, and (3) that there was a causal link between her activity and the

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employment decision.‖ Trent v. Valley Elec. Ass’n, Inc., 41 F.3d 524, 526 (9th Cir. 1994) (citing

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EEOC v. Hacienda Hotel, 881 F.2d 1504, 1513−14 (9th Cir. 1989)). The Ninth Circuit has long

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held that ―a plaintiff does not need to prove that the employment practice at issue was in fact
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unlawful under Title VII,‖ but instead ―must only show that she had a ‗reasonable belief‘ that the

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employment practice she protested was prohibited under Title VII.‖ Id. Filing a complaint with

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an internal human resources department ―that a supervisor has violated Title VII may constitute

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protected activity for which the employer cannot lawfully retaliate.‖ EEOC v. Go Daddy

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Software, Inc., 581 F.3d 951, 963 (9th Cir. 2009). As for the causation element, ―Title VII

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retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged

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employment action.‖ Nassar, 133 S. Ct. at 2528 (2013). The standard for a retaliation claim

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under FEHA is substantially similar. See Yanowitz v. L’Oreal USA, Inc., 36 Cal. 4th 1028,

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1042−43 (2005) (setting forth the same three-element test and holding that an employee‘s

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Northern District of California

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reasonable belief that he or she engaged in protected activity is sufficient).
Haro asserts that he engaged in protected activity by complaining about discriminatory

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harassment, and that Therm-X terminated him as a result of that activity approximately three

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months later. See FAC ¶¶ 8, 10; Opp‘n at 2−3. Therm-X argues that the First Amended

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Complaint does not include sufficient allegations of a causal link between Therm-X‘s alleged

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retaliatory animus and Haro‘s termination. See Mot. at 8; Reply at 5. The Ninth Circuit has ―held

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that causation may be established based on the timing of the relevant actions. Specifically, when

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adverse employment decisions are taken within a reasonable period of time after complaints of

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discrimination have been made, retaliatory intent may be inferred.‖ Passantino v. Johnson &

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Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000). ―[E]vidence based on timing

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can be sufficient to let the issue go to the jury, even in the face of alternative reasons proffered by

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the defendant.‖ Id. At the pleading stage, Haro‘s allegations that he was terminated reasonably

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soon after complaining about harassment, FAC ¶¶ 8, 10, that he ―performed his job satisfactorily,‖

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id. ¶ 4, and that Therm-X offered conflicting explanations of the termination, id. ¶ 11, are

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sufficient to support a plausible inference that he was terminated in retaliation for his complaint.

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Therm-X‘s Motion is therefore DENIED as to these claims.

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E.

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Haro‘s seventh claim asserts that Therm-X failed to take reasonable steps to prevent

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Failure to Prevent Discrimination

harassment and discrimination. FAC ¶ 24. Under FEHA, it is unlawful ―[f]or an employer . . . to
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fail to take all reasonable steps necessary to prevent discrimination and harassment . . . from

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occurring.‖ Cal. Gov‘t Code § 12940(k). A plaintiff seeking to recover on a failure-to-prevent-

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discrimination claim under FEHA must show that ―1) plaintiff was subjected to discrimination,

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harassment or retaliation; 2) defendant failed to take all reasonable steps to prevent discrimination,

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harassment or retaliation; and 3) this failure caused plaintiff to suffer injury, damage, loss or

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harm.‖ Adetuyi v. City & Cty. of San Francisco, 63 F. Supp. 3d 1073, 1092−93 (N.D. Cal. 2014).

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The employer‘s duty to prevent harassment and discrimination is affirmative and mandatory.

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Northrup Grumman Corp. v. Workers’ Comp. Appeals Bd., 103 Cal. App. 4th 1021, 1035 (2002).

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The causation element of a section 12940(k) claim requires an employee show that the
discriminatory conduct was a ―substantial factor‖ in causing his harm. CACI No. 2527; Alamo v.

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United States District Court
Northern District of California

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Practice Mgmt. Info. Corp., 219 Cal. App. 4th 466, 480 (2013). Termination from employment is

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an injury sufficient to support recovery under a section 12940(k) failure to prevent discrimination

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claim. See Cal. Fair Emp’t & Housing Comm’n v. Gemini Aluminum Corp., 122 Cal. App. 4th

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1004, 1025 (2004).

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Therm-X initially argues in its Motion that Haro has failed to adequately allege both the

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first element (discrimination) and the second element (failure to take reasonable steps), but only

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pursues in its Reply the argument that Haro has not adequately alleged discrimination, harassment,

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or retaliation. Mot. at 8; Reply at 5. As discussed above, the Court finds that Haro‘s First

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Amended Complaint adequately states a claim under each of those theories. To whatever extent

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Therm-X may still pursue its argument as to the second element, the Court finds Haro‘s

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allegations that his supervisor was aware of and participated in the harassment, and that he faced

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retaliation after complaining about harassment, sufficient at the pleading stage to support a

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plausible inference that Therm-X failed to take reasonable steps to prevent harassment,

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discrimination, and retaliation. Therm-X‘s Motion is therefore DENIED as to this claim.

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F.

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Haro‘s final claim is for termination in violation of public policy under California law.

Termination in Violation of Public Policy

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―[F]or a policy to support a wrongful discharge claim, it must be: (1) delineated in either

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constitutional or statutory provisions; (2) ‗public‘ in the sense that it ‗inures to the benefit of the
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public‘ rather than serving merely the interests of the individual; (3) well established at the time of

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the discharge; and (4) substantial and fundamental.‖ Stevenson v. Superior Court, 16 Cal. 4th 880,

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894 (1997). Therm-X concedes in its Motion that termination in violation of FEHA supports such

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a claim, see Mot. at 9 (citing Stevenson, 16 Cal. 4th at 895), and does not address this claim at all

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in its Reply. Because, as discussed above, the Court holds that Haro adequately states claims for

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discriminatory and retaliatory termination under FEHA, Therm-X‘s Motion is DENIED as to this

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claim as well.

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IV.

CONCLUSION
The Court finds Haro‘s allegations sufficient as to most of his claims. Therm-X‘s Motion

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to Dismiss is GRANTED only as to Haro‘s discrimination claims and only to the extent that those

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United States District Court
Northern District of California

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claims are based on vague allegations of ―discipline.‖ The Motion is DENIED as to the remainder

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of Haro‘s First Amended Complaint, including Haro‘s discrimination claims based on termination.

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Based on Haro‘s counsel‘s representation at the August 28 hearing that he does not intend to

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pursue a discrimination claim based on discipline, the Court does not grant leave to amend.

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IT IS SO ORDERED.
Dated: August 28, 2015
______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

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