Lenk v. Monolithic Power Systems, Inc.

Filing 87

ORDER GRANTING MOTION TO DISMISS THE THIRD AMENDED COMPLAINT. Re: Dkt. No. 82 . Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 3/31/2016)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
10

KENNETH LAWRENCE LENK,
Plaintiff,

United States District Court
Northern District of California

11
v.

12
13
14

MONOLITHIC POWER SYSTEMS,
INC.,

Case No.15-cv-01148 NC
ORDER GRANTING MOTION TO
DISMISS THE THIRD AMENDED
COMPLAINT
Re: Dkt. No. 82

Defendant.
15
Plaintiff Kenneth Lenk sues his former employer, Monolithic Power Systems, for

16
17

wrongful “constructive” termination. Lenk was employed by MPS for about one year

18

before he left. During that year, Lenk alleges that MPS did not pay him a 25% bonus that

19

he was owed, and forced Lenk to end his employment using a variety of unlawful tactics.

20

The Court previously dismissed Lenk’s federal causes of action and seven state law

21

causes of action without leave to amend, but permitted Lenk to amend two state law causes

22

of action. Dkt. Nos. 70, 80. Now, the Court considers MPS’ motion to dismiss Lenk’s

23

third amended complaint, alleging the two remaining state law claims. The Court finds

24

that Lenk has failed to state a claim for wrongful constructive termination, and that Lenk

25

did not relocate as required for his California Labor Code § 970 claim. The Court

26

GRANTS the motion to dismiss without leave to amend.

27

//

28
Case No. 15-cv-01148 NC

1

I.

2

LEGAL STANDARD
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

3

sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On a

4

motion to dismiss, all allegations of material fact are taken as true and construed in the

5

light most favorable to the non-movant. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-

6

38 (9th Cir. 1996). The Court, however, need not accept as true “allegations that are

7

merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re

8

Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need

9

not allege detailed factual allegations, it must contain sufficient factual matter, accepted as
true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

11
United States District Court
Northern District of California

10

550 U.S. 544, 570 (2007). A claim is facially plausible when it “allows the court to draw

12

the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

13

v. Iqbal, 556 U.S. 662, 678 (2009).

14

II.

15
16

DISCUSSION
A.

Wrongful Constructive Termination In Violation of Public Policy,
California Labor Code § 2802(a)

Lenk alleges that MPS failed to reimburse him for expenses, which caused him
17
embarrassment and forced him to resign. This cause of action requires the Court to
18
analyze three separate components: (1) constructive discharge; (2) in violation of public
19
policy; and (3) California Labor Code § 132A.
20
21
22

“Constructive discharge occurs when the employer’s conduct effectively forces an
employee to resign. Although the employee may say, ‘I quit,’ the employment relationship
is actually severed involuntarily by the employer’s acts, against the employee’s will. As a

23
result, a constructive discharge is legally regarded as a firing rather than a resignation.”
24
Turner v. Anheuser-Busch, Inc, 7 Cal. 4th 1238, 1245-46 (1994). Constructive discharge
25
is not a cause of action, but can be attached to a tort or contract claim, transforming an
26

employee’s resignation into a termination for purposes of that tort or contract claim. Id. at

27
1251. To plead constructive termination, an employee must allege that the employer either
28
Case No.15-cv-01148 NC

2

1

intentionally created or knowingly permitted working conditions that were so intolerable

2

or aggravated at the time of the employee’s resignation that a reasonable employer would

3

realize that a reasonable person in the employee’s position would be compelled to resign.

4

Id. “The mere existence of illegal conduct in a workplace does not, without more, render

5

employment conditions intolerable to a reasonable employee.” Id. at 1254. The Supreme

6

Court in Turner cautioned that there should be a causal link between the employer’s

7

wrongful and illegal actions and plaintiff’s resignation. Finally, the Court noted that

8

constructive discharge requires a “continuous pattern of harassment.” Id. at 1255.

9

Here, Lenk alleges that “reporting of his expense reimbursement issue to HR lead to
the hostile environment and constructive discharge actions performed by his manager

11
United States District Court
Northern District of California

10

Sciammas and/or the company.” TAC ¶ 70. However, Lenk also alleges that “Given the

12

complaint about the California Labor Code violation, MPS HR’s Wei promptly resolved

13

some of the expense reimbursement issue by issuing a check the same day as a partial

14

payment of the outstanding expenses.” TAC ¶ 35.

15

Lenk’s own allegations demonstrate that there was no pattern and practice of

16

harassment at MPS sufficient to convert Lenk’s resignation into an unlawful discharge.

17

Lenk’s other allegations that MPS created a hostile work environment by reducing his

18

work and providing insufficient support are not related to his Labor Code claim. This

19

claim is DISMISSED.

20

B.

California Labor Code § 970

21

California Labor Code § 970 provides that “No person, or agent or officer thereof,

22

directly or indirectly, shall influence, persuade, or engage any person to change from one

23

place to another in this State or from any place outside to any place within the State, or

24

from any place within the State to any place outside, for the purpose of working in any

25

branch of labor, through or by means of knowingly false representations, whether spoken,

26

written, or advertised in printed form, concerning either:

27

(a) The kind, character, or existence of such work;

28

(b) The length of time such work will last, or the compensation therefor;
Case No.15-cv-01148 NC

3

1

(c) The sanitary or housing conditions relating to or surrounding the work;

2

(d) The existence or nonexistence of any strike, lockout, or other labor dispute

3

affecting it and pending between the proposed employer and the persons then or last

4

engaged in the performance of the labor for which the employee is sought.”

5

This section “requires the employee to demonstrate that his or her employer made

6

‘knowingly false representations’ concerning the nature, duration or conditions of

7

employment.” Eisenberg v. Alameda Newspapers, 74 Cal. App. 4th 1359, 1392 (1999).

8

“Moreover, under the statute an employee must establish that the employer induced him or

9

her to relocate or change addresses.” Id. Allegations of fraud or misrepresentation require
a heightened pleading standard. Fed. R. Civ. P. 9(b). “The complaint must specify such

11
United States District Court
Northern District of California

10

facts as the times, dates, places, benefits received, and other details of the alleged

12

fraudulent activity.” Neubronner v. Milken, 6 F.3d 666, 672 (9th Cir. 1993) (citations

13

omitted).

14

Here, Lenk does not allege that he relocated for the work, but rather that MPS

15

relocated farther away from his house. TAC ¶¶ 100-102. Lenk alleges that he assessed

16

whether to move, but decided not to move until his daughter finished high school. TAC ¶

17

101. Thus, Lenk cannot meet the threshold requirement to allege a claim under California

18

Labor Code § 970. This claim is DISMISSED.

19

C.

Leave to Amend

20

Generally, a Court must grant leave to amend freely. Fed. R. Civ. P. 15(a).

21

However, in granting leave to amend, the Court considers: (1) undue delay; (2) bad faith;

22

(3) prejudice to the opponent; and/or (4) futility of the proposed amendment. Loehr v.

23

Ventura County Community College District, 743 F.2d 1310, 1319 (9th Cir. 1984) (citing

24

Foman v. Davis, 371 U.S. 178, 182 (1962)). In Lockheed Martin Corp. v. Network

25

Solutions, Inc., the Ninth Circuit determined that the district court properly denied leave to

26

amend because the plaintiff’s “legal basis for a cause of action is tenuous, [so] futility

27

supports the refusal to grant leave to amend.” 194 F.3d 980, 986 (9th Cir. 1999)(citing

28

Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)).
Case No.15-cv-01148 NC

4

In addition, a court may also consider whether the plaintiff has previously amended

1
2

his complaint. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 n.3 (9th Cir. 1987).

3

“Where a court has already provided the plaintiff one or more opportunities to amend her

4

complaint, its discretion over further amendments is particularly broad.” Dauth v.

5

Convenience Retailers, LLC, 13-cv-047 MEJ, 2013 WL 4225587, at *2 (N.D. Cal. July 31,

6

2013).

7

Here, Lenk has filed three complaints, several oppositions to motions to dismiss,
and attached voluminous additional documentation with his complaints and motions. The

9

Court finds amendment of these claims would be futile because Lenk has no further facts

10

that could remedy the deficiencies outlined above, and Lenk has had several opportunities

11
United States District Court
Northern District of California

8

to amend his complaint. Thus, the Court dismisses the claims without leave to amend.

12

III. CONCLUSION

13
14
15

The Court GRANTS MPS’s motion to dismiss Lenk’s remaining claims without
leave to amend.
IT IS SO ORDERED.

16
17

Dated: March 31, 2016

_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

18
19
20
21
22
23
24
25
26
27
28
Case No.15-cv-01148 NC

5