Brown v. Family Radio Inc. et al

Filing 26

ORDER by Judge Hamilton granting 20 Motion for Leave to File Motion for Reconsideration; ORDER granting reconsideration. (pjhlc1, COURT STAFF) (Filed on 2/28/2014) (Additional attachment(s) added on 2/28/2014: # 1 Certificate/Proof of Service) (nahS, COURT STAFF).

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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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For the Northern District of California

United States District Court

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Plaintiff,
v.

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FAMILY RADIO, INC., et al.,

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No. C 13-5305 PJH
ORDER GRANTING MOTION FOR
LEAVE TO FILE MOTION FOR
RECONSIDERATION

Defendants.
_______________________________/

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Before the court is the motion of pro se plaintiff Lizzie E. Brown for leave to file a

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motion for reconsideration of a portion of the court's January 16, 2014 order granting

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defendants' motion to dismiss. Defendants filed a statement of non-opposition to the

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motion. The motion is GRANTED, as follows, and the court construes the arguments made

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in the motion as those supporting the request for reconsideration.

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Plaintiff is a 76-year-old African-American woman, who was formerly employed by

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defendant Family Radio, Inc. ("Family Radio") and was laid off on September 20, 2012. On

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October 8, 2013, plaintiff filed the present action in Alameda County Superior Court,

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alleging age discrimination in violation of Title VII of the 1964 Civil Rights Act ("Title VII"),

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42 U.S.C. § 2000e-5 (which the court interpreted as a claim under the ADEA), and race

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and religious discrimination, also under Title VII. She also alleged claims of breach of

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contract and breach of the implied covenant, and unlawful termination in violation of public

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policy. Named as defendants were Family Radio, its former head Harold Camping (now

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deceased) and its manager Tom Evans.
Plaintiff did not attach the right-to-sue letters to the complaint, and did not clarify that

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she had filed charges with both DFEH and the EEOC, and did not assert any state-law

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discrimination claims. On November 11, 2013, defendants removed the case to this court,

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and on November 21, 2013, filed a motion to dismiss.

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In ruling on the motion, the court dismissed the claims against Mr. Camping and Mr.

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Evans, with prejudice, dismissed the contract claims with prejudice, and dismissed the

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discrimination claims with leave to amend. The court noted, however, that the ADEA

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authorizes a claim for age discrimination only where age is the but-for cause of the alleged
discrimination. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009). Thus, the

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For the Northern District of California

United States District Court

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court ruled that plaintiff would be required to allege either that she was terminated based on

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her age, or that she was terminated based on her race and/or religion, and that whichever

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she alleged, she would also be required to plead facts sufficient to state a plausible claim

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that she was discriminated against by Family Stations. The court also ordered that any

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amended complaint must have the right-to-sue notice(s) attached. The court set a deadline

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of February 12, 2014 for plaintiff to file the amended complaint.

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On February 6, 2013, plaintiff filed the present motion, arguing that reconsideration

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is warranted because Gross's application is limited to a plaintiff's burden of persuasion, and

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does not preclude a plaintiff from pleading alternative or inconsistent theories (both the

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ADEA and Title VII as a basis for the discrimination claim(s).

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In support, plaintiff cited Brazill v. California Northstate Coll. of Pharmacy, LLC, 904

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F.Supp. 2d 1047 (E.D. Cal. 2012), a decision holding that Gross's application is limited to a

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plaintiff's burden of persuasion and does not preclude a plaintiff from pleading alternate

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theories for an adverse employment action. See id. at 1051-52 (citing Fagan v. U.S.

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Carpet Installation, Inc., 770 F.Supp. 2d 490, 495 (E.D.N.Y. 2011) (after Gross a plaintiff is

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not required to plead that age discrimination is the “but for” cause of his termination); Prisco

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v. Methodist Hosp., 2011 WL 1288678, at *3-4 (E.D. Pa. Apr. 4, 2011); (Gross does not

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prevent a plaintiff from asserting multiple discrimination claims in the same action); Ries v.
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Winona Cnty., 2010 WL 3515722, at *10 (D. Minn. July 28, 2010) (Gross “was not a case

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involving the sufficiency of an ADEA complaint” and does not preclude plaintiffs bringing

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ADEA claims from pleading alternate theories of relief); Cartee v. Wilbur Smith Assocs.,

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Inc., 2010 WL 1052082, at *3-4 (D.S.C. Mar. 22, 2010) (Gross is not applicable to a

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judgment on the pleadings)). On February 11, 2014, defendants filed a statement of non-

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opposition to the motion.

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Plaintiff filed a first amended complaint ("FAC") on February 20, 2014, asserting that

discrimination on the basis of religion. She also asserts that she filed a charge with DFEH

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on September 26, 2012, alleging discrimination on the basis of race; that the DFEH charge

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For the Northern District of California

she filed a charge of discrimination with the EEOC on September 19, 2012, alleging

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United States District Court

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was cross-filed with the EEOC on October 9, 2012; and that she received a right-to-sue

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letter from DFEH dated November 15, 2012, and a right-to-sue letter from the EEOC dated

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August 8, 2013. She does not say whether she filed an administrative charge alleging

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discrimination on the basis of age.

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While it is true that the decisions cited by plaintiff do hold that a plaintiff may plead

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age discrimination under the ADEA "in the alternative," the matter appears less settled than

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plaintiff's motion suggests. Other courts have held that a plaintiff alleging a violation of the

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ADEA must allege that age was the "but-for" cause of the adverse action. See, e.g., Jeter

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v. Hozhoni Found., 2013 WL 4431096 at *3 (D. Ariz. Aug. 16, 2013).

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More significantly, numerous courts have acknowledged that the federal rules allow

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pleading "in the alternative," but have also concluded that while it may not be necessary

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that a plaintiff alleging discrimination under the ADEA plead but-for causation as such, it is

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necessary that the plaintiff allege sufficient facts to make plausible the conclusion that "but

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for" his/her age, the plaintiff would still be employed. See, e.g., Lewis v. Detroit Public

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Schools, 2013 WL 5785781 at *12-14 (E.D. Mich. Sept. 23, 2013); (citing Smith v. CH2M

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Hill, 521 Fed. Appx. 773, 774-75, 2013 WL 2450833 at *1 (11th Cir. June 5, 2013) (in

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alleging that his termination was "substantially motivated" by age, the plaintiff had not

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"allege[d] sufficient facts" to allow the court to "reasonably infer that [his employers]
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violated the but-for standard set forth in the ADEA"); Payne v. Malemathew, 2011 WL

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3043920, at *2 (S.D.N.Y. July 22, 2011) (under Gross, a plaintiff “need not plead but-for

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causation, but an ADEA complaint must contain sufficient facts to make plausible the

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conclusion that but for his age, [p]laintiff would still be employed”); Goodridge v. Siemens

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Energy, Inc., 276 F.R.D. 540, 542 (N.D. Ala. 2011) (“after Gross (and Twombly and Iqbal),

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a plaintiff who brings a claim under the ADEA must allege facts sufficient to support a

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reasonable inference that age was the ‘but for’ cause of the adverse employment action

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challenged under that claim"); Roginsky v. County of Suffolk, N.Y., 729 F.Supp. 2d 561,

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568-69 (E.D.N.Y. 2010) (what is required after Gross is that "the complaint contain
sufficient facts to make plausible the conclusion that 'but for' his age [p]laintiff would still be

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For the Northern District of California

United States District Court

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employed)).

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Accordingly, the court GRANTS the motion for reconsideration to this extent:

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Paragraph 4 of the January 16, 2014 order (Order at 2:7-16) is DELETED, and the

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following paragraph is inserted in its place:

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The claims of discrimination on the basis of age, race, and religion are
DISMISSED for failure to allege facts sufficient to state a claim. The
dismissal is with leave to amend. The ADEA authorizes a claim for age
discrimination only where age is the but-for cause of the alleged
discrimination. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
Accordingly, if plaintiff alleges a claim of age discrimination under the ADEA,
she must plead facts that are sufficient to state a plausible claim that but-for
the alleged age discrimination, she would still be employed by Family Radio.
Whether she alleges discrimination based on age, race, or religion, she must
plead facts sufficient to state a plausible claim that she was discriminated
against by her employer Family Stations.

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In addition, if plaintiff opts to file a second amended complaint that includes a claim

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of age discrimination, she must allege facts showing that she filed an administrative charge

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of discrimination based on age, and must attach copies of the administrative charges that

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she describes in the FAC. "No civil action may be commenced by an individual under [the

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ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the

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[EEOC].” 29 U.S.C. § 626(d); see also Sommatino v. United States, 255 F.3d 704, 709

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(9th Cir. 2001) ("substantial compliance with the presentment of discrimination complaints

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to an appropriate administrative agency is a jurisdictional prerequisite); Sanchez v. Pacific
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Powder Co., 147 F.3d 1097, 1099 (9th Cir. 1998) (“[t]he ADEA requires a person to file a

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charge with the EEOC before initiating a civil action for age discrimination”).

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No later than April 2, 2014, plaintiff shall either file a second amended complaint, or
advise the court that she wishes to proceed on the first amended complaint.

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IT IS SO ORDERED.

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Dated: February 28, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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