Marc Olin Levy v. Primerica, Inc.

Filing 14

ORDER by Magistrate Judge Howard R. Lloyd granting 9 defendant's motion to dismiss without leave to amend. The clerk shall enter judgment and close this file. (hrllc2, COURT STAFF) (Filed on 4/28/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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MARC OLIN LEVY,

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Case No. 5:16-cv-01254-HRL

Plaintiff,

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v.

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PRIMERICA, INC.,

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Defendant.

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ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS WITHOUT
LEAVE TO AMEND
Re: Dkt. No. 9

Pro se plaintiff Marc Olin Levy sues for alleged employment discrimination. He says that

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he interviewed for a position with defendant Primerica, Inc. (Primerica), but was not hired because

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he has a criminal record. He seeks $2 billion in damages, claiming that “Primerica discriminated

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against me in employment with their company, due to my criminal background” and that the

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decision not to hire him “is illegal as to California state employment law and EEOC law . . ..”

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(Dkt. 1, ECF p. 7). Levy filed his complaint in state court, and defendant removed the matter here,

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asserting diversity jurisdiction under 28 U.S.C. § 1332.

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This is not the first time that Levy has sued for alleged employment discrimination based

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on various reasons, including his criminal record. Indeed, the court’s records1 reveal that, in the

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past two years, the present action is the third employment lawsuit Levy has filed concerning his

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The court may take judicial notice of its records on its own. Fed. R. Evid. 201(c)(1).

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criminal record.2 The prior actions were dismissed with prejudice because having a criminal

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record is not a protected class under either federal or state employment discrimination law, and

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there was no indication that Levy had exhausted his administrative remedies---a necessary

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prerequisite to filing suit. See Case No. 5:14-cv-04073 EJD Levy v. State Farm, Dkt. 27 and 5:15-

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cv-05962 HRL Levy v. New York Life Ins. Co., Dkt. 22.3
Pursuant to Fed. R. Civ. P. 12(b)(6), Primerica now moves to dismiss the instant action on

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the ground that the instant complaint suffers from the very same defects as the ones filed in Levy’s

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earlier suits. Plaintiff opposes the motion. All parties have expressly consented that all

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proceedings in this matter may be heard and finally adjudicated by the undersigned. 28 U.S.C. §
636(c); Fed. R. Civ. P. 73. The matter is deemed suitable for determination without oral

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United States District Court
Northern District of California

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argument, and the May 3, 2016 hearing is vacated. Civ. L.R. 7-1(b). Upon consideration of the

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moving and responding papers, this court grants Primerica’s motion without leave to amend.
LEGAL STANDARD

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A motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) tests

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the legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.

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2001). Dismissal is appropriate where there is no cognizable legal theory or an absence of

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sufficient facts alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police

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Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In such a motion, all material allegations in the

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complaint must be taken as true and construed in the light most favorable to the claimant. Id.

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However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

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Plaintiff has also filed other employment lawsuits, claiming he was not hired because he did not
have a college degree, see Case No. 5:14-cv-04116-EJD Levy v. Northwestern Mutual Life; and
because he was in debt, see Case No. 3:12-cv-01298-LB Levy v. Mass Mutual and Case No. 3:15cv-06136-EDL Levy v. Massachusetts Mutual Life Ins. Co. All of these actions have been
dismissed, either on the merits or for failure to prosecute.
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The complaint filed in Case No. 5:15-cv-05962 HRL Levy v. New York Life Ins. Co. was a
virtually identical copy of an earlier one Levy filed in this court in 2011. See Case No. 3:11-cv06617 JCS Levy v. New York Life Ins. Co. (2011 Action). The judge presiding over the 2011
Action dismissed the complaint because plaintiff failed to identify any “legal authority that a
company’s decision not to hire an individual on the basis of his past criminal record is actionable,
under either state or federal law.” (Case No. 3:11-cv-06617, Dkt. 6). The case subsequently was
closed when plaintiff failed to amend his complaint by the court-ordered deadline.
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statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Moreover, “the court

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is not required to accept legal conclusions cast in the form of factual allegations if those

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conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness

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Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

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Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the

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claim showing that the pleader is entitled to relief.” This means that the “[f]actual allegations

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must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations omitted)

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However, only plausible claims for relief will survive a motion to dismiss. Iqbal, 129 S.Ct. at
1950. A claim is plausible if its factual content permits the court to draw a reasonable inference

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United States District Court
Northern District of California

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that the defendant is liable for the alleged misconduct. Id. A plaintiff does not have to provide

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detailed facts, but the pleading must include “more than an unadorned, the-defendant-unlawfully-

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harmed-me accusation.” Id. at 1949.

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Documents appended to the complaint or which properly are the subject of judicial notice

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may be considered along with the complaint when deciding a Fed. R. Civ. P. 12(b)(6) motion. See

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Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990);

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MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).

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While leave to amend generally is granted liberally, the court has discretion to dismiss a

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claim without leave to amend if amendment would be futile. Rivera v. BAC Home Loans

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Servicing, L.P., 756 F. Supp.2d 1193, 1997 (N.D. Cal. 2010) (citing Dumas v. Kipp, 90 F.3d 386,

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393 (9th Cir. 1996)).

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DISCUSSION
Primerica argues that dismissal is appropriate because the complaint fails to show that

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plaintiff belongs to a protected class and because plaintiff has not alleged that he exhausted his

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administrative remedies. In his opposition, Levy asserts that he went to the EEOC concerning this

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case and that the EEOC “agreed with me that my civil rights have been violated under Title XII of

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the Civil Rights Act of 1964, in that, I too am a member of a protected class, in that my minor

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criminal background should not bar me from employment.” (Dkt. 12).4 He further claims that the

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EEOC gave him the “right to sue” Primerica and “is currently investigating them in regards to this

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case, this specific charge.” (Id.).
None of these assertions are in the complaint. And even if they were, as a matter of law,

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Levy still fails to state a cognizable claim for employment discrimination under either Title VII of

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the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§2000e, et seq., or California’s Fair

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Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12940, et seq.
To establish a claim under either statute, Levy must show that he belongs to a protected

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class. See generally Adetuyi v. City & Cnty. of San Francisco, 63 F. Supp.3d 1073, 1083 (N.D.
Cal. 2014) (citing Chuang v. Univ. of Cal. Davis Bd. of Tr., 225 F.3d 1115, 1123 (9th Cir. 2000));

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United States District Court
Northern District of California

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Slatkin v. Univ. of Redlands, 88 Cal. App.4th 1147, 1158 (2001). As plaintiff has already been

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told by more than one judge of this court: having a criminal record is not a protected class under

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either statutory scheme. See 42 U.S.C. § 2000e-2 (prohibiting employment discrimination based

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on an “individual’s race, color, religion, sex, or national origin”); Cal. Gov’t Code § 12940(a)

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(prohibiting employment discrimination based on “the race, religious creed, color, national origin,

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ancestry, physical disability, mental disability, medical condition, genetic information, marital

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status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and

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veteran status of any person . . ..”). Other courts have so held. See, e.g., Manley v. Invesco, 555

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Fed. Appx. 344, 348 (5th Cir. 2014) (“Persons with criminal records are not a protected class

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under Title VII”); Gray v. The Outsource Group, No. 4:13cv2537 TCM, 2015 WL 1006308 at *5

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(Mar. 5, 2015) (same); Morgan v. Flex Tec, No. 5:12-cv-191 (MTT), 2012 WL 5398401 at *2

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(M.D. Ga., Nov. 5, 2012) (same). Moreover, the fact that Levy reportedly received a “right to

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sue” notice does not signify that he has a valid claim for employment discrimination. The EEOC

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is obliged to issue such notices even when it dismisses a charge. See 42 U.S.C. § 2000e-5(f)(1).
For these reasons, Levy fails to state an actionable claim for relief, and Primerica’s motion

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Inasmuch as plaintiff is alleging employment discrimination, the court assumes that he meant to
reference Title VII of the Civil Rights Act of 1964.
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to dismiss is granted. As discussed, plaintiff continues to sue for alleged employment

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discrimination based on his criminal record, in apparent disregard of the orders of more than one

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judge of this court telling him that his criminal record cannot form the basis for such claims. That

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behavior indicates that plaintiff cannot allege any facts even suggesting that he could plead a

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plausible claim for relief and that amendment would be futile. Accordingly, Levy’s complaint is

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dismissed with prejudice.

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ORDER

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Based on the foregoing, defendant’s motion to dismiss is GRANTED and plaintiff’s

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complaint is DISMISSED WITH PREJUDICE. The clerk shall enter judgment and close this file.
SO ORDERED.

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United States District Court
Northern District of California

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Dated: April 28, 2016

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HOWARD R. LLOYD
United States Magistrate Judge

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5:16-cv-01254-HRL Notice has been electronically mailed to:

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Ian Rowe Ross

[e-mail], [e-mail]

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Lisa M. Bertain

[e-mail], [e-mail]

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5:16-cv-01254-HRL Notice sent by U.S. Mail to:

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Marc Olin Levy
18225 Hale Avenue
Morgan Hill, CA 95037

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United States District Court
Northern District of California

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