Dickerson et al v. Cal Waste Solutions et al, No. 3:2008cv03773 - Document 173 (N.D. Cal. 2009)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR PARTIAL JUDGMENT ON THE PLEADINGS AND VACATING HEARING by Judge Alsup (re 152 and 155 Motions for Judgment on the Pleadings). (whalc1, COURT STAFF) (Filed on 9/8/2009)
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Dickerson et al v. Cal Waste Solutions et al Doc. 173 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 11 For the Northern District of California United States District Court 10 REGINALD DICKERSON, LLOYD HALL, BRANDON REED AND HARRISON BROWN, 12 13 14 15 16 17 No. C 08-03773 WHA Plaintiffs, v. CAL WASTE SOLUTIONS, JIMMY DUONG, RUTH LUI, OSCAR RAMIREZ, STAN BEALE, RICH GROGAN, and DOES 1–50, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR PARTIAL JUDGMENT ON THE PLEADINGS AND VACATING HEARING Defendants. / 18 INTRODUCTION 19 20 21 22 In this action for race and sex discrimination and sexual harassment, defendants move for partial judgment on the pleadings for the following claims: 1. Plaintiff Reginald Dickerson’s claim for hostile work environment 23 based on sexual harassment under both Article 1, Section 8 of the California 24 Constitution and 42 U.S.C. 1981 against all defendants; 25 26 27 28 2. Plaintiff Dickerson’s claim for hostile work environment and all plaintiffs’ claims for retaliation under 42 U.S.C. 1983 against all defendants; 3. All plaintiffs’ claims for retaliation under 42 U.S.C. 1981 against defendants Oscar Ramirez, Jimmy Duong, Ruth Liu, Stan Beale, and Rich Grogan; Dockets.Justia.com 1 2 3 4 5 For the Northern District of California All plaintiffs’ claims for conspiracy to discriminate based on sex under 42 U.S.C. 1985 against all defendants; 5. Plaintiffs Dickerson and Harrison Brown’s claims for defamation against defendants CWS, Ramirez, Beale, and Grogan; and 6. Plaintiffs Brandon Reed and Lloyd Hall’s claims for emotional 6 distress against all defendants. 7 For the following reasons, partial judgment on the pleadings is GRANTED in part and 8 United States District Court 4. DENIED in part. 9 STATEMENT 10 The following facts are not in dispute. Plaintiff Harrison Brown was a truck driver 11 for California Waste Solutions, Inc., until August 11, 2008, when he was terminated. 12 Plaintiff Brandon Reed was a truck driver for CWS from June 16, 2007, until his termination on 13 January 3, 2008. Plaintiff Lloyd Hall was a truck driver for CWS but resigned on February 27, 14 2008. Plaintiff Reginald Dickerson began employment with CWS on September 14, 2000, as a 15 truck driver, and is still employed there. 16 One of Dickerson’s supervisors was defendant Jimmy Duong. Sometime in 17 September 2007, defendant Oscar Ramirez became plaintiff Dickerson’s supervisor. 18 Defendants Ruth Liu, Stan Beale, and Rich Grogan were also managerial employees at CWS 19 during the period of time when the alleged harassment and discrimination occurred. 20 The parties disagree on many of the facts surrounding the allegations. All plaintiffs 21 allege that during their time at CWS they were subjected to various racial slurs and epithets. 22 They claim that they were called names such as “black ass,” “nigger,” and “black cry baby” by 23 defendant Ramirez. All plaintiffs claim that defendants Duong, Beale, Liu, and Grogan 24 generally condoned, supported, and knowingly failed to remedy the inappropriate behavior of 25 defendant Ramirez. Plaintiffs also state that their overtime was severely altered because of 26 discrimination by defendants. 27 28 Plaintiff Dickerson claims that defendants failed to intervene in an appropriate manner after defendant Ramirez made unwanted sexual advances toward him. These alleged advances 2 1 included unwanted physical contact and sexually and racially offensive words that subjected him 2 to ridicule. Defendants contend that defendant Ramirez’s sexual advances were not offensive to 3 plaintiff Dickerson because both parties were engaging in a mutual joke. 4 Plaintiff Reed argues that he was terminated because he became friendly with the other 5 African American drivers, because he was black, and because he witnessed defendant Ramirez 6 make sexual advances towards plaintiff Dickerson. Defendants reply that plaintiff Reed was 7 terminated at the end of his probation because he “did not cut it.” For the Northern District of California United States District Court 8 Plaintiff Brown claims that his treatment and subsequent termination was retaliatory due 9 to the complaints he filed regarding defendants’ inappropriate behavior. Defendants reply that 10 plaintiff Brown was terminated because he violated a condition of his employment by having a 11 suspended license, while plaintiff Brown claims his license was not suspended while with CWS. 12 Plaintiff Hall argues that he was treated differently from the non-black drivers, was 13 subjected to racially charged statements, and was retaliated against for complaining of racial and 14 sexual harassment and discriminatory treatment by defendants. Plaintiff Hall further claims that 15 his resignation from CWS was a constructive discharge after he experienced personal and health 16 problems resulting from defendants’ failure to address his complaints about the discriminatory 17 treatment. 18 On October 1, 2008, defendants filed a motion to dismiss pursuant to FRCP 12(b)(6), or, 19 in the alternative, to compel arbitration pursuant to FRCP 12(b) (Dkt. No. 35). This motion 20 sought dismissal of all ten of plaintiffs’ claims on the following grounds: 21 22 23 24 25 1. Plaintiffs failed to exhaust their administrative remedies under the Fair Employment and Housing Act; 2. Plaintiffs’ state-law claims were pre-empted by Section 301 of the Labor Management Relations Act; and 3. Plaintiffs failed to state legally cognizable claims for sexual 26 harassment, hostile work environment, and sexual battery because all three claims 27 required interpretation of the collective bargaining agreement. 28 3 1 An order dated November 25, 2008, requested that plaintiffs show cause as to why the entire 2 case should not be stayed pending exhaustion of all possible claims grievable under the 3 collective bargaining agreement,1 and granted in part and denied in part defendants’ motion to 4 dismiss (Dkt. No. 50). This order dismissed plaintiffs’ claims for hostile work environment and 5 retaliation brought under the FEHA. In addition, plaintiffs’ claims for breach of contract and 6 breach of the covenant of good faith and fair dealing were recharacterized as “Section 301 7 claims” and stayed, pending arbitration (id. at 8). On December 11, 2008, defendants filed a motion for partial summary judgment and for 8 9 grounds: 1. 11 For the Northern District of California United States District Court 10 judgment on the pleadings seeking to dismiss several of plaintiffs’ claims on the following Plaintiff Brown was properly, not wrongfully, terminated by 12 defendants CWS and Duong because he had a suspended license, therefore his 13 claims for retaliation and violation of public policy based on wrongful 14 termination also failed; 2. 15 Plaintiff Reed was not wrongfully terminated by defendant Duong because a supervisor cannot be held liable for the tort of wrongful discharge; and 16 3. 17 Plaintiff Dickerson could not state a claim for defamation against 18 defendants Beale and Grogan because he failed to show that defendants had the 19 requisite intent for defamation (Dkt. No. 57). 20 An order was issued on April 30, 2009, denying defendants’ motion for partial summary 21 judgment or for judgment on the pleadings on all grounds (Dkt. No. 92). On July 27, 2009, and August 3, 2009, defendants filed the present motions for partial 22 23 judgment on the pleadings. These two motions are substantially the same. The only notable 24 difference is that the July 27 motion only addresses plaintiffs’ allegations against defendant 25 Ramirez (“Motion One”), while the August 3 motion addresses plaintiffs’ allegations against 26 defendants CWS, Duong, Liu, Beale, and Grogan (“Motion Two”). 27 28 1 Plaintiffs satisfied this requirement, and an order dated January 21, 2009, denied defendants’ motion to stay the entire action. 4 1 On August 13, 2009, plaintiffs filed an opposition to defendants’ motion regarding 2 defendant Ramirez (“Opp. One”). On August 19, 2009, Charles O. Thompson filed a notice of 3 appearance as lead attorney on behalf of defendant Ramirez (Dkt. No. 166). On August 20, 4 2009, defendants filed a reply to plaintiffs’ opposition regarding defendant Ramirez (“Reply”), 5 and plaintiffs filed an opposition to defendants’ motion regarding defendants CWS, Duong, Liu, 6 Beale, and Grogan (“Opp. Two”). On August 27, 2009, after the Court granted permission, 7 plaintiffs filed a supplemental opposition to defendants’ motion regarding defendants CWS, 8 Duong, Liu, Beale, and Grogan (“Suppl. Opp.”). On September 4, 2009, defendant Ramirez 9 filed a supplemental reply to plaintiffs’ supplemental opposition. ANALYSIS 11 For the Northern District of California United States District Court 10 A motion for judgment on the pleadings under FRCP 12(c) may be granted only “when 12 the moving party clearly establishes on the face of the pleadings that no material issue of fact 13 remains to be resolved and that it is entitled to judgment as a matter of law.” Hal Roach Studios, 14 Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). We may not go beyond 15 the pleadings to resolve any disputed issues when determining the outcome of the motion. 16 Moreover, “[a]ll allegations of fact by the party opposing the motion are accepted as true, and 17 are construed in the light most favorable to that party.” General Conference Corp. of Seventh- 18 Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228, 230 (9th Cir. 19 1989).2 1. 20 PLAINTIFFS’ PROCEDURAL OBJECTIONS. A. 21 Objection Under FRCP 11. Plaintiffs first object that defendants’ motions should be denied under FRCP 11 because 22 23 Charles O. Thompson, signatory to Motion One, was not defendant Ramirez’s attorney of record 24 at the time the motions were filed. This objection is frivolous. Mr. Thompson is now one of 25 defendant Ramirez’s attorneys of record (Dkt No. 166), and Rule 11(a) provides that the prompt 26 27 28 2 Unless otherwise indicated, all internal quotations and citations within quoted text in this order have been omitted. 5 1 correction of such an error avoids dismissal of the motion. Plaintiffs’ Rule 11 objection is 2 overruled.3 B. 3 Plaintiffs also object that defendants’ motions should be denied under FRCP 12(g) For the Northern District of California 4 United States District Court Objection Under FRCP 12(g). 5 because defendants have already made prior motions for judgment on the pleadings and similar 6 motions. But plaintiffs ignore an exception to Rule 12(g)(2), which states: “Except as provided 7 in Rule 12(h)(2) . . . a party that makes a motion under this rule must not make another motion 8 under this rule raising a defense or objection that was available to the party but omitted from its 9 earlier motion.” FRCP 12(g)(2) (emphasis added). Rule 12(h)(2) allows motions for judgment 10 on the pleadings to be brought under Rule 12(c) any time “[a]fter the pleadings are closed — 11 but early enough not to delay trial.” FRCP 12(c). Plaintiffs claim that the motions violate the order dated April 30, 2009, which denied 12 13 defendants’ motion for partial summary judgment or for judgment on the pleadings and stated 14 that the time for hearing motions relating to the sufficiency of the pleadings had expired 15 (Dkt. No. 92 at 7–8). Although this order agrees that the repeated use of motions to test the 16 sufficiency of the pleadings is generally undesirable, and that defendants have bombarded the 17 docket with such motions, this order finds the present motions beneficial to the resolution of this 18 case. Courts have the discretion to allow additional motions to challenge the sufficiency of the 19 pleadings, despite Rule 12(g), when such motions are “‘not filed for the purpose of delay and 20 [when] adjudication of the instant motion will narrow the scope of th[e] matter, greatly 21 expediting resolution of the case.’” Stoffels v. SBC Communications, Inc., 430 F. Supp. 2d 642, 22 (W.D. Tex. 2006) (quoting Donnelli v. Peters Securities Co., No. 02 C 0691, 2002 U.S. Dist. 23 LEXIS 16305, at *4 (D. Ill. Aug. 28, 2002)). This justification applies to both motions presently 24 at issue, and this order refuses to dismiss either motion on the ground that the April 30 order 25 stated that the time period for hearing such motions had expired. 26 27 28 3 Even if this order were to find otherwise, which it does not, plaintiffs have failed to explain why this objection would warrant dismissal of Motion Two, which was not signed or filed by Charles O. Thompson. 6 1 Plaintiffs contend that defendants’ current motions were not made sufficiently early to 2 avoid delaying trial. But the present motions narrow the scope of the claims that will be at issue 3 at trial, thereby expediting, rather than delaying, resolution of this case. As a result, they will be 4 entertained. Also, the case management order of October 2, 2008, listed the deadline for filing 5 dispositive motions as August 6, 2009 (Dkt. No. 41), therefore such motions should not be 6 wholly unexpected. 7 8 2. DICKERSON’S SEXUAL HARASSMENT CLAIMS AGAINST ALL DEFENDANTS. A. Dickerson’s Claim for Hostile Work Environment Due to Sexual Harassment Under the California Constitution. 9 Plaintiffs claim that their sex discrimination claims can be brought under Article 1, 10 operative pleading, nor subsequent filings stated a claim for sexual harassment under Article 1, For the Northern District of California United States District Court Section 8 of the California Constitution. But neither plaintiffs’ First Amended Complaint, the 11 12 Section 8 of the California Constitution. The First Amended Complaint mentioned the 13 California Constitution only as follows: 14 15 16 60. It was not until Plaintiffs sought out assistance from someone other than defendants or the Union, to protect their rights guaranteed by the State of California and Federal Constitution and statutory laws that Defendant CWS began an investigation of the discrimination and sexual harassment claims of Plaintiffs. 17 * * * 18 19 71. Plaintiff’s [sic] rights to be free from discrimination in employment are fundamental rights derived from the Federal and California State Constitution and statutory laws. 20 * * * 21 23 73. At all times mentioned and described in this complaint, Defendants agreed to, conspired to and overtly acted to deprive Plaintiffs of their rights guaranteed by the Federal and the State of California Constitutions, 42 U.S.C. §1981 and §1985. 24 After filing the first amended complaint on September 11, 2008, it is not until plaintiffs’ current 25 opposition of August 13, 2009 that suddenly plaintiffs explain in great detail that their sexual 26 harassment claims are cognizable under Article 1, Section 8 of the California Constitution 27 (Opp. One 5–9). 22 28 7 1 We have read all of the filings, and there is no mention of Article 1, Section 8 of the 2 California Constitution until plaintiffs’ present oppositions. Normally, answers to 3 interrogatories are not filed with the Court. Plaintiffs have failed to bring to the Court’s attention 4 any interrogatory or other omission where plaintiffs cured the shortfall. This was the time for 5 plaintiffs to bring such an omission to the Court’s attention, and plaintiffs failed to do so. For the Northern District of California United States District Court 6 The Court must evaluate a motion for judgment on the pleadings by considering only the 7 face of the pleadings. See Hal Roach Studios, 896 F.2d at 1550. Likewise, the Supreme Court 8 in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), held that notice pleading under FRCP 9 8(a)(2) “requires only a short and plain statement of the claim showing that the pleader is entitled 10 to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon 11 which it rests.” Id. at 555. See also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009). Plaintiffs’ 12 claims under the California Constitution in the First Amended Complaint do not even meet the 13 minimal requirements of Twombly. Plaintiffs cannot now enlarge prior vague references to the 14 California Constitution to construct specific detailed claims of the type now raised for the first 15 time. Plaintiffs have failed to state a material issue of fact against any defendant regarding 16 hostile work environment based on sexual harassment under Article 1, Section 8 of the 17 California Constitution on the face of the pleadings. Partial judgment on the pleadings on this 18 ground as to all defendants is granted.4 19 B. 20 21 Dickerson’s Claim for Hostile Work Environment Due to Sexual Harassment Under 42 U.S.C. 1981. In their oppositions of August 13 and August 20, plaintiffs admit that 42 U.S.C. 1981 22 authorizes claims only for racial discrimination, not sexual harassment (Opp. One 5, Opp. Two 23 5). Nevertheless, plaintiffs argue that the issues of race and sex are entangled in this case, and 24 therefore a claim for sex discrimination should be allowed under Section 1981. But the 25 4 26 27 28 Although plaintiffs’ opposition to defendant Ramirez’s motion briefly mentions California Civil Code 1708.5 and sexual battery (Opp. One 5, 8), this order finds it unnecessary to address these matters for two reasons. First, plaintiffs’ first amended complaint only cites Section 1708.5 to support plaintiff Dickerson’s ninth claim against defendant Ramirez for sexual battery, not to support any plaintiffs’ sexual harassment claims (First Amd. Compl. ¶ 106). Second, defendant Ramirez’s motion does not seek to dismiss plaintiff Dickerson’s ninth claim against defendant Ramirez for sexual battery (Motion One 3, Motion Two 3). Thus, plaintiffs’ Section 1708.5 claims are not implicated by this ruling. 8 1 Ninth Circuit does not interpret Section 1981 in this manner. Instead, it holds that while 2 Section 1981 authorizes a claim for individuals discriminated against on account of their race, 3 Section 1981 does not provide a claim based on sex discrimination or sexual harassment — not 4 even when the sexual harassment or discrimination is allegedly intertwined with racial 5 discrimination. Jones v. Bechtel, 788 F.2d 571, 574 (9th Cir. 1986). In sum, it is impossible for 6 plaintiff Dickerson to allege a material issue of fact regarding a claim for sexual harassment 7 under Section 1981 because Section 1981 does not support such claims as a matter of law. 8 Partial judgment on the pleadings on this ground as to all defendants is granted.5 9 3. For the Northern District of California United States District Court 10 DICKERSON, HALL, REED, AND BROWN’S CLAIMS FOR HOSTILE WORK ENVIRONMENT AND RETALIATION UNDER 42 U.S.C. 1983 AGAINST ALL DEFENDANTS. 11 Defendants seek dismissal of plaintiffs Dickerson, Hall, Reed, and Brown’s 12 claims under 42 U.S.C. 1983 on the ground that Section 1983 requires state action. 13 Indeed, Section 1983 provides a claim only if a defendant deprives a plaintiff of a right 14 secured by the Constitution or the laws of the United States while acting under color of state 15 law. Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000). The requirement of action 16 “under color of state law” in Section 1983 is analogous to the “state action” requirement in the 17 United States Constitution. Ibid. 18 CWS is not a state actor. Rather, both parties acknowledge that CWS is a private 19 company that contracts with the City of Oakland to collect and dispose of recyclable materials 20 (Opp. One 12, Reply Br. 5–7). As a general rule, “a State normally can be held responsible for 21 a private decision only when it has exercised coercive power or has provided such significant 22 encouragement, either overt or covert, that the choice must in law be deemed to be that of the 23 State.” Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982). Plaintiffs suggest that the acts of CWS should be treated as state action because CWS is 24 25 both funded and heavily regulated by the City of Oakland. But the United States Supreme Court 26 has held that “detailed regulation of and substantial funding for private actors are not sufficient 27 28 5 This order notes, however, that defendants do not dispute plaintiffs’ claims for hostile work environment based on racial discrimination under Section 1981. 9 For the Northern District of California United States District Court 1 to transform the party’s conduct into state action.” Jensen, 222 F.3d at 575 (citing Blum v. 2 Yaretsky, 457 U.S. 991, 1011 (1982)). Plaintiffs also claim that CWS’ contractual relationship 3 or franchise agreement with the City of Oakland should be sufficient to show state action. 4 But the Ninth Circuit holds that contracting with a state entity also does not, by itself, transform 5 conduct into state action. Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1538 (9th Cir. 1992). 6 Plaintiffs have likewise failed to show that the City of Oakland had any connection to the 7 adverse employment actions allegedly taken by defendants. A private entity can only be said to 8 have acted under color of state law if it “jointly engaged with state officials in the prohibited 9 action.” Dennis v. Sparks, 449 U.S. 24, 28 n.4 (1980) (emphasis added).6 Plaintiffs have not 10 alleged that state officials participated in or condoned any discriminatory or harassing conduct 11 perpetrated by defendants. Rather such behavior was tangential to the defendants’ sanctioned 12 job duties. 13 Plaintiffs claim that defendants should be found to have acted under color of state law 14 because CWS, as collector and disposer of recyclable materials, performed a public “health 15 and safety function.”7 The Supreme Court has stated that private activity only becomes a public 16 function if the “function performed has been traditionally the exclusive prerogative of the State.” 17 Rendell-Baker, 457 U.S. at 842 (emphasis present in original). Moreover, the scope of the 18 public function doctrine is narrowly defined, as “[w]hile many functions have been traditionally 19 performed by governments, very few have been ‘exclusively reserved to the State.’” 20 Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978). 21 Although no decisions address the specific facts at issue in this case, the collection and 22 disposal of recyclable materials is not a function that has been traditionally exclusively 23 performed by the state. Activities that generally fall under the public function exception include 24 6 25 26 27 28 Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), cited by plaintiffs (Opp. Two 7), likewise holds that defendants can be sued under Section 1983 individually and in their official capacity only when the “[p]rivate persons [were] jointly engaged with state officials in the prohibited action.” Lugar, 457 U.S. at 941. 7 Plaintiffs cite Monell v. Department of Social Services, 436 U.S. 658, 690 (1978), to support this claim. But Monell did not address the public function exception to the state action doctrine. Instead, Monell held that a municipality could only be sued for the actions of its employees under Section 1983 so long as the challenged conduct was the product of the employee carrying out official governmental policy. Id. at 692. As stated, this was not the situation in the present case. 10 For the Northern District of California United States District Court 1 when “private actors hold elections, govern a town, or serve as an international peacekeeping 2 force.” Brunette v. Humane Society, 294 F.3d 1205, 1214 (9th Cir. 2002). On the other hand, in 3 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350–1 (1974), the Supreme Court held that 4 the supplying of services by a privately owned and operated utility company subject to extensive 5 state regulation did not constitute state action. In a footnote, Jackson categorized the following 6 types of companies as not performing a traditionally exclusively state prerogative: “companies 7 engaged in providing gas, power, or water; all common carriers, pipeline companies, telephone 8 and telegraph companies, sewage collection and disposal companies; and corporations affiliated 9 with any company engaging in such activities.” Id. at 351 n.7. Jackson reasoned that classifying 10 all businesses “affected with the public interest” as state actors would transform almost every 11 single business into a state actor. Id. at 354. Collection and disposal of recyclable materials 12 more readily falls into the latter category of functions than the former, and defendants were not 13 engaged in a function that has been traditionally exclusively performed by the state. 14 Finally, plaintiffs claim that there was state action because defendants were performing 15 state obligations delegated by the City of Oakland. Plaintiffs cite West v. Atkins, 487 U.S. 42 16 (1988), to support this theory. West held that a physician who treated a prison inmate’s injuries 17 had acted under color of state law because the state had delegated to him the state's constitutional 18 obligation to provide medical care to prisoners. Id. at 54–7. West is distinguishable. The City 19 of Oakland did not delegate a constitutional obligation to defendants to perform. Rather, 20 defendant CWS sought out the contractual relationship with the City for financial reasons. 21 Indeed, West even acknowledged that: 22 23 24 25 26 27 28 Where the issue is whether a private party is engaged in activity that constitutes state action, it may be relevant that the challenged activity turned on judgments controlled by professional standards, where those standards are not established by the State. The Court has held that “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S., at 1004 (decisions of physicians and administrators of privately owned and operated nursing home to transfer Medicaid patients not state action); Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982) (discharge decisions of privately owned and operated school not state action). In both Blum and Rendell-Baker, the fact that the private entities received state 11 1 funding and were subject to state regulation did not, without more, convert thier [sic] conduct into state action. See Blum v. Yaretsky, 457 U.S., at 1004; Rendell-Baker v. Kohn, 457 U.S., at 840–843. The Court suggested that the private party’s challenged decisions could satisfy the state-action requirement if they were made on the basis of some rule of decision for which the State is responsible. The Court found, however, that the decisions were based on independent professional judgments and were not subject to state direction. Thus, the requisite “nexus” to the State was absent. 2 3 4 5 6 Id. at 52 n.10 (emphasis present in original). In the present case, supervisors of a private 7 employer allegedly decided to harass and discriminate against employees. It cannot fairly be 8 said that the City of Oakland was responsible for or directed this alleged discrimination and 9 harassment. As a result, there was no “nexus” to the state, and the exception presented in West applies.8 On the face of the pleadings, plaintiffs Dickerson, Hall, Reed, and Brown have failed 11 For the Northern District of California United States District Court 10 12 to allege a material issue of fact under Section 1983 because recovery under Section 1983 13 requires state action as a matter of law. Partial judgment on the pleadings on this ground as to 14 all defendants is granted. 4. 15 16 17 DICKERSON, HALL, REED, AND BROWN’S CLAIMS FOR RETALIATION UNDER 42 U.S.C. 1981 AGAINST DEFENDANTS RAMIREZ, DUONG, LIU, BEALE, AND GROGAN. Supervisors cannot be held accountable for claims of retaliation under 42 U.S.C. 1981. 18 Section 1981 claims are analyzed under the same legal principles as those used in Title VII 19 cases. Fonseca v. Sysco Food Services of Arizona, Inc., 374 F.3d 840, 850 (9th Cir. 2004). The 20 Ninth Circuit has “long held that Title VII does not provide a separate claim against supervisors 21 or co-workers.” Craig v. M&O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir. 2007). Plaintiffs cite several decisions in an attempt to prove that supervisors in fact can be held 22 23 individually liable under Section 1981. These decisions do not support plaintiffs’ claim. 24 25 26 27 28 8 Plaintiffs cite Brunette, 294 F.3d 1205, in support of their delegation claim. But Brunette does not address delegation of state obligations. Instead, the portions of Brunette that plaintiffs cite, but do not explain, state that a “symbiotic relationship” between the private and state actor can be sufficient to constitute state action. Id. at 1213. In Brunette, the Ninth Circuit found no symbiotic relationship when “[w]ith or without the [private actor], the [state actor], funded by the State, would continue to execute its mission.” Id. at 1214. Plaintiffs do not explain why the City of Oakland and defendants have a symbiotic relationship, and it is certainly not the case that the City of Oakland would be unable to function without its contract with CWS. No symbiotic relationship exists here. 12 1 Plaintiffs first misquote Jones v. Lodge at Torrey Pines Partnership, 42 Cal. 4th 1158, 1168 n.4 2 (2008), wherein the court actually refused to express an opinion regarding whether supervisors 3 can be held individually liable for retaliation. Plaintiffs then improperly cite CBOCS West, 4 Inc. v. Humphries, 128 S. Ct. 1951, 1958 (2008), which held that Section 1981 prohibits 5 retaliation by an employer but did not address whether a supervisor could be individually liable 6 for such retaliation. Finally, plaintiffs reference a handful of decisions from the Fourth Circuit 7 that authorize the imposition of liability against individual supervisors for retaliation in a limited 8 circumstance. But Fourth Circuit cases cannot change the Ninth Circuit’s settled rule, namely 9 that supervisors cannot be held individually liable for their participation in retaliation against employees under Section 1981. 11 For the Northern District of California United States District Court 10 12 Partial judgment on the pleadings on this ground as to supervisors Ramirez, Duong, Liu, Beale, and Grogan is granted.9 13 5. 14 15 DICKERSON, HALL, REED, AND BROWN’S CLAIMS FOR CONSPIRACY TO DISCRIMINATE BASED ON SEX UNDER 42 U.S.C. 1985 AGAINST ALL DEFENDANTS. Defendants contend that plaintiffs have failed to state sufficient facts to support a claim 16 for discrimination based on sex under 42 U.S.C. 1985(3). Defendants recite the rule in the Ninth 17 Circuit that: 18 [S]ection 1985(3) is extended beyond race only when the class in question can show that there has been a governmental determination that its members require and warrant special federal assistance in protecting their civil rights. More specifically, we require either that the courts have designated the class in question a suspect or quasi-suspect classification requiring more exacting scrutiny or that Congress has indicated through legislation that the class required special protection. 19 20 21 22 Sever, 978 F.2d at 1536. But defendants cite no decisions stating that discrimination based on 23 sex does not require “more exacting scrutiny” by the courts. To the contrary, both the Supreme 24 Court and the Ninth Circuit have held that classifications based on gender require a heightened 25 level of scrutiny. See Craig v. Boren, 429 U.S. 190, 197–98 (1976); Scott v. Pasedena Unified 26 27 9 28 This order does not address plaintiffs’ claims that defendant CWS is vicariously liable as a company for the acts of its supervisors and employees (Opp. Two 8) because defendants’ present motions do not dispute plaintiffs’ claims for retaliation under Section 1981 against defendant CWS. 13 For the Northern District of California United States District Court 1 School District, 306 F.3d 646, 663 (9th Cir. 2002). These courts have also held that “[i]t is 2 possible to use § 1985(3) to attack conspiracies against a class defined by sex.” Padway v. 3 Palches, 665 F.2d 965, 969 (9th Cir. 1982). See also Great American Federal Savings & Loan 4 Ass’n v. Novotny, 442 U.S. 366, 389 n.6 (1979) (White, J., dissenting) (“It is clear that sex 5 discrimination may be sufficiently invidious to come within the prohibition of § 1985(3)”). 6 This order does not determine whether plaintiffs have in fact proven that defendants 7 engaged in a conspiracy to discriminate against plaintiffs based on their sex. But that is not the 8 Court’s role on a motion for judgment on the pleadings. Plaintiffs Dickerson, Hall, Reed, and 9 Brown have alleged a material issue of fact regarding conspiracy to discriminate based on sex 10 under Section 1985. Partial judgment on the pleadings on this ground as to all defendants is 11 denied.10 12 6. DICKERSON AND BROWN’S CLAIMS FOR DEFAMATION AGAINST DEFENDANTS CWS, RAMIREZ, BEALE, AND GROGAN. 13 Plaintiffs Dickerson and Brown allege that defendant CWS, through its agents 14 (defendants Ramirez, Beale, and Grogan), defamed plaintiffs by using racial slurs, falsely 15 accusing them of committing a crime, and falsifying events. Defendants argue that these were 16 mere statements of opinion, not false statements of fact, and thus are not actionable as 17 defamation. Plaintiffs counter that these were not opinions, but actionable statements of fact 18 that were defamatory. 19 Although defendants cite a handful of interesting and potentially relevant decisions, 20 defendants misunderstand the Court’s role and the plaintiffs’ burden on a motion for judgment 21 on the pleadings. On this claim, plaintiffs have raised issues of fact that, if proved, would result 22 in plaintiffs’ recovery, and defendants have countered with responses that, if proved, would 23 defeat plaintiffs’ recovery. Plaintiffs are correct that it is not the Court’s proper role on a motion 24 for judgment on the pleadings to determine whether the plaintiffs have proven a claim for 25 defamation (Opp. One 10–11, Opp. Two 9). Partial judgment on the pleadings on this ground as 26 to defendants CWS, Ramirez, Beale, and Grogan is denied. 27 28 10 Defendants do not dispute plaintiffs’ claims for conspiracy to discriminate based on race under Section 1985(3). 14 1 7. REED AND HALL’S CLAIMS FOR EMOTIONAL DISTRESS AGAINST ALL DEFENDANTS. 2 Defendants claim that since plaintiffs Reed and Hall have pled failed causes of action for 3 retaliation against all defendants, their emotional distress claims against all defendants must 4 likewise fail. This order agrees that if the plaintiffs do not have a viable retaliation claim, then 5 they cannot have a viable emotional distress claim based on the failed retaliation claim. But 6 even if all of plaintiffs Reed and Hall’s retaliation claims fail, they may still prevail on their 7 emotional distress claims that arise from their causes of action for hostile work environment 8 based on racial discrimination (see First Amd. Compl. ¶ 108). Plaintiffs have alleged sufficient 9 issues of material fact regarding emotional distress against all defendants on the face of the 10 CONCLUSION For the Northern District of California United States District Court pleadings. Partial judgment on the pleadings on this ground as to all defendants is denied. 11 12 For the above reasons, partial judgment on the pleadings is GRANTED IN PART AND 13 DENIED IN PART. In sum, after the dismissals in this order, plaintiffs’ currently outstanding 14 claims are as follows: 15 1. Plaintiff Dickerson’s claim for hostile work environment based on 16 racial harassment and race discrimination under 42 U.S.C. 1981 against all 17 defendants; 18 2. All plaintiffs’ claims for retaliation under 42 U.S.C. 1981 against 19 defendant CWS; 20 3. All plaintiffs’ claims for conspiracy to discriminate based on race 21 and sex under 42 U.S.C. 1985(3) against all defendants; 22 4. All plaintiffs’ claims for violation of public policy against 23 defendant CWS; 24 5. Plaintiff Hall’s claim for constructive termination against 25 defendants CWS, Jimmy Duong, and Does 1–50; 26 6. Plaintiffs Reed and Brown’s claims for unlawful termination 27 against defendants CWS, Duong, and Does 1–50; 28 15 1 2 3 4 For the Northern District of California United States District Court 5 7. Plaintiffs Dickerson and Brown’s claim for defamation against defendants CWS, Ramirez, Beal and Grogan; 8. Plaintiff Dickerson’s claim for sexual battery under California Civil Code 1708.5 against defendant Ramirez; and 9. All plaintiffs’ claims for emotional distress based on the 6 outstanding claims listed above against all defendants 7 As stated, an order dated November 25, 2008, stayed two claims pending in favor of 8 arbitration under Section 301. The Court is in the dark on the current status of these claims. 9 By FRIDAY, SEPTEMBER 11, 2009, AT NOON, both sides shall advise the Court of the status of 10 those claims and whether the trial date now set for October 13, 2009, should be postponed until 11 the completion of arbitration. 12 The hearing set for September 17, 2009, at 8:00 a.m. is hereby VACATED. 13 14 IT IS SO ORDERED. 15 16 Dated: September 4, 2009. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 16
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