Banawis-Olila v. World Courier Ground, Inc. et al

Filing 38

Order by Hon. Phyllis J. Hamilton granting 35 Motion to Partially Dismiss Plaintiff's First Amended Complaint and Vacating Hearing.(pjhlc2S, COURT STAFF) (Filed on 7/29/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OBIE BANAWIS-OLILA,

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v.
WORLD COURIER GROUND, INC., et
al.,
Defendants.

United States District Court
Northern District of California

Case No. 16-cv-00982-PJH

Plaintiff,

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ORDER GRANTING PARTIAL
DISMISSAL OF PLAINTIFF’S FIRST
AMENDED COMPLAINT AND
VACATING HEARING
Re: Dkt. No. 35

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Before the court is Defendant World Carrier Ground, Inc.’s (“WCG”) motion to

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partially dismiss plaintiff Obie Banawis-Olila’s First Amended Complaint (“FAC”). See

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Dkt. 35. The matter is fully briefed and suitable for decision without oral argument.

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Accordingly, the hearing set for August 10, 2016 is VACATED. Having read the parties’

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papers and carefully considered their arguments and the relevant legal authority, and

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good cause appearing, the court hereby GRANTS the motion, with leave to amend the

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complaint, for the following reasons.

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BACKGROUND

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This is an employment dispute, based on violations of the California Labor Code,

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that was removed from state court on the basis of diversity. Plaintiff Obie Banawis-Olila

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worked as a dispatcher for defendant WCG from 1998 until her resignation in September

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2015. FAC ¶ 1 (Dkt. 32). Banawis-Olila asserts 6 causes of action against WCG: (1)

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violation of the California Equal Pay Act, Labor Code § 1197.5; (2) failure to provide rest

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periods, in violation of Labor Code § 226.7 and the applicable Industrial Welfare

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Commission (“IWC”) wage orders; (3) failure to provide duty-free meal periods, in

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violation of Labor Code § 226.7 and applicable IWC wage orders; (4) failure to pay

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overtime compensation, in violation of Labor Code § 1198 and applicable IWC wage

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orders; (5) unfair competition, in violation of California Business & Professions Code

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§ 17200; and (6) failure to pay “waiting time penalties” required by Labor Code § 203 and

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owed as a result of the failure to pay overtime and provide rest periods. FAC ¶¶ 6–36.
Only the California Equal Pay Act claim (“the EPA claim”) is at issue in the instant

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motion. The basis for Banawis-Olila’s EPA claim is her allegation that WCG “intentionally

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and willfully pa[id] plaintiff, a female, $17 per hour to work as a dispatcher while

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defendants paid a relatively newly hired dispatcher, Robert Pool (male), $26 per hour in

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the same establishment for equal work.” FAC ¶ 7.
On May 23, 2016, the court entered an order granting defendants’ prior motion to

United States District Court
Northern District of California

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dismiss the original complaint. See Dkt. 25 (“the May 23 Order”). The court dismissed all

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claims against former defendant Amerisourcebergen Corporation (“ABC”), the EPA claim,

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a constructive discharge claim, and a number of claims based on gender discrimination.

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Id. at 13. Leave to amend was granted only with respect to the EPA claim, the discharge

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claim, and the claims against ABC. On June 16, 2014, Banawis-Olila filed an amended

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complaint and reasserted her EPA claim. Dkt. 32. WCG now brings a motion to dismiss

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the EPA claim, arguing that the FAC “neglects to cure the deficiencies” identified by the

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court in its May 23 Order.
LEGAL STANDARD

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the

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legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d

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1191, 1199–1200 (9th Cir. 2003). To survive a motion to dismiss for failure to state a

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claim, a complaint generally must satisfy only the minimal notice pleading requirements

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of Federal Rule of Civil Procedure 8, which requires that a complaint include a “short and

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

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8(a)(2).

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A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the

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plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to

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support a cognizable legal theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir.

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2013). While the court is to accept as true all the factual allegations in the complaint,

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legally conclusory statements, not supported by actual factual allegations, need not be

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accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); see also In re Gilead Scis.

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Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
The allegations in the complaint “must be enough to raise a right to relief above

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the speculative level,” and a motion to dismiss should be granted if the complaint does

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not proffer enough facts to state a claim for relief that is plausible on its face. Bell Atl.

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United States District Court
Northern District of California

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Corp. v. Twombly, 550 U.S. 544, 555, 558–59 (2007) (citations and quotations omitted).

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Iqbal, 556 U.S. at 678 (citation omitted). “[W]here the well-pleaded facts do not

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permit the court to infer more than the mere possibility of misconduct, the complaint has

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alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’” Id. at 679.

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When dismissal is warranted, it is generally without prejudice, unless it is clear that

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the complaint cannot be saved by any amendment. Sparling v. Daou, 411 F.3d 1006,

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1013 (9th Cir. 2005). “Leave to amend may also be denied for repeated failure to cure

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deficiencies by previous amendment.” Abagninin v. AMVAC Chem. Corp., 545 F.3d 733,

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742 (9th Cir. 2008).

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ANALYSIS

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The court’s May 23 Order dismissed the EPA claim because plaintiff “has not

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alleged facts sufficient to state a plausible claim that the work was ‘equal.’” Dkt. 25 at 6.

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Plaintiff’s original complaint offered only a conclusory allegation that the work performed

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by Banawis-Olila and Pool was “the same or substantially similar.” Under the applicable

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version of the EPA, however, plaintiff was required to allege facts showing the positions

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were (i) “in the same establishment”; (ii) on jobs requiring “equal skill, effort, and
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responsibility”; and (iii) “performed under similar working conditions.” Cal. Lab. Code

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§ 1197.5 (former version, effective through Dec. 30, 2015). The court granted Banawis-

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Olila “leave to amend, to allege facts showing that the work plaintiff performed was equal

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to the work the male dispatcher performed, and that the work was on jobs that required

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‘equal skill, effort and responsibility,’ which was performed under similar working

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conditions.” Dkt. 25 at 6 (emphasis added).

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The entirety of Plaintiff’s EPA allegations in the FAC are as follows:

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Defendants willfully violated California’s Equal Pay Act by
intentionally and willfully paying plaintiff, a female, $17 per hour to
work as a dispatcher while defendants paid a relatively newly hired
dispatcher, Robert Pool (male), $26 per hour in the same
establishment for equal work on jobs the performance of which
requires equal skill, effort and responsibility and which are performed
under similar working conditions.
Plaintiff’s and Mr. Pool’s
dispatching jobs were the same; the only difference was that plaintiff
and Mr. Pool worked on different shifts; defendants were motivated
by plaintiff’s gender to pay her less than Mr. Pool because they
thought they could get away with paying a female less than a male.
Said conduct violates California Labor Code section 1197.5 and
constitutes a willful violation of California’s Equal Pay Act.

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United States District Court
Northern District of California

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FAC ¶ 7 (material added by amendment underlined).
Plaintiff’s amended complaint adds only a sentence and a half of new material

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regarding the EPA claim. The first addition is a conclusory allegation parroting the

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statutory language. The second new sentence contains two new allegations: (1)

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“Plaintiff’s and Mr. Pool’s dispatching jobs were the same”; and (2) “the only difference

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was that plaintiff and Mr. Pool worked on different shifts.”

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The bare assertion that the two jobs are “the same” is simply a legal conclusion

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not entitled to a presumption of truth. Iqbal, 556 U.S. at 664. Although the plaintiff has

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alleged that “the only difference between the jobs was that plaintiff and Mr. Pool worked

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on different shifts,” FAC ¶ 7, the allegation that there was little “difference” in the position

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is scarcely less conclusory than the allegation that the jobs were “the same.”

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The FAC does not contain sufficient specific, factual allegations comparing the
“skill, effort, and responsibility” required for the two positions. As a result, the
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amendments to the EPA claim do not satisfy the court’s directive in its May 23 order and

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the pleading standards established in Twombly and Iqbal. Compare Suzuki v. State

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Univ. of N.Y. Coll. at Old Westbury, No. 08-CV-4569 TCP, 2013 WL 2898135, at *4

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(E.D.N.Y. June 13, 2013) (“Bald allegations that male employees were paid more than

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female employees, however, will not survive a motion to dismiss” when “a plaintiff failed

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to allege how his or her position and the comparison position were substantially similar”);

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Werner v. Advance Newhouse P’ship, LLC, No. 1:13-CV-01259-LJO, 2013 WL 4487475,

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at *5 (E.D. Cal. Aug. 19, 2013) (“However, that the male employees were ‘similarly

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situated’ is a legal conclusion. Consequently, this allegation is not entitled to the
assumption of truth without factual support.”) (citation omitted). The additional factual

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United States District Court
Northern District of California

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details offered in plaintiff’s opposition to the motion to dismiss cannot be considered

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when those facts were not alleged in the FAC.
CONCLUSION

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The hearing set for August 10, 2016 is VACATED. For the foregoing reasons,
defendant’s motion to dismiss the EPA claim is GRANTED.
However, the court will provide plaintiff leave to amend the complaint. The court

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warns, however, that it will not be enough to simply add that both Pool and Banawis-

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Olila’s positions required communicating with customers and drivers. While that is one

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relevant factor, any amended complaint must provide sufficient facts comparing the “skill,

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effort, and responsibility” and the “working conditions” of the two positions, as required by

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the applicable version of the California Equal Pay Act. The plaintiff is further warned that

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this is her last chance; the court will not provide leave to amend the EPA claim for a third

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time. Any amended complaint must be filed by August 26, 2016.

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IT IS SO ORDERED.
Dated: July 29, 2016

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__________________________________
PHYLLIS J. HAMILTON
United States District Judge
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