Beronia v. Southwest Airlines Co., No. 3:2022cv06699 - Document 32 (N.D. Cal. 2024)

Court Description: Order GRANTING 6 Motion to Dismiss with leave to amend. Signed by Judge Araceli Martinez-Olguin on March 19, 2024. (amolc3, COURT STAFF) (Filed on 3/19/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DONNA BERONIA, 7 Plaintiff, 8 ORDER GRANTING MOTION TO DISMISS v. 9 SOUTHWEST AIRLINES CO., 10 Re: Dkt. No. 6 Defendant. 11 United States District Court Northern District of California Case No. 22-cv-06699-AMO 12 This is an employment case. Before the Court is Defendant Southwest Airlines Co.’s 13 14 (“Southwest”) motion to dismiss. The matter is fully briefed and suitable for decision without oral 15 argument. See Civil L.R. 7-6. Having read the parties’ papers and carefully considered their 16 arguments and the relevant legal authority, the Court hereby GRANTS Southwest’s Motion for 17 the following reasons. BACKGROUND 18 Southwest employed Plaintiff Donna Beronia as an Operations Agent for Southwest at San 19 20 Jose Mineta Airport from August 24, 2015, until her termination on April 1, 2020. Compl. (ECF 21 1) ¶¶ 7, 18.1 On August 3, 2018, a co-worker assaulted Beronia at a company picnic in Gilroy, 22 California. Compl. ¶ 8. Southwest suspended Beronia without pay following the assault for 23 “fighting in the workplace,” but Southwest reinstated her a month later after she filed a grievance 24 through her union. Compl. ¶¶ 9-10. In the months that followed, Beronia received several 25 reprimands and disciplinary actions for her work, which led to her termination. Compl. ¶ 11-15. 26 27 28 1 To properly assess the motions to dismiss, the Court accepts as true and draws from the allegations in the Complaint. See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 1 Beronia again filed a grievance through her union, which led to her reinstatement. Compl. ¶ 16. 2 Upon reinstatement, Beronia received further reprimands and disciplinary actions. Compl. ¶¶ 16- 3 17. On March 11, 2020, Southwest randomly drug tested Beronia, which is required under 4 5 federal rules and regulations applicable to airline employees working in safety-sensitive positions. 6 Compl. ¶ 18; 49 U.S.C. § 45102(a); 49 C.F.R. part 40 and 14 C.F.R. part 120. Southwest 7 terminated her after the test results came back positive for cocaine. Compl. ¶ 18. Beronia initiated this lawsuit against Southwest in the Superior Court of the State of 8 United States District Court Northern District of California 9 California for the County of Santa Clara on October 1, 2020, but she did not serve the complaint 10 on Southwest until September 29, 2022. See ECF 1. Southwest removed the case to the U.S. 11 District Court on October 31, 2022. Beronia advances the following causes of action in the 12 Complaint: (1) wrongful termination in violation of public policy, (2) negligent infliction of 13 emotional distress, (3) intentional infliction of emotional distress, and (4) retaliation for engaging 14 in protected activity. DISCUSSION 15 Southwest moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss the Complaint 16 17 for failure to state a claim. After setting forth the legal standard for its consideration of such a 18 motion, the Court considers the sufficiency of the pleading regarding each of Beronia’s causes of 19 action. 20 A. 21 Legal Standard A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal 22 sufficiency of the claims alleged in the complaint. Ileto v. Glock, 349 F.3d 1191, 1199-1200 (9th 23 Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that a complaint include a 24 “short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. 25 P. 8(a)(2), a complaint may be dismissed under Rule 12(b)(6) if the plaintiff fails to state a 26 cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. 27 Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). 28 While the court is to accept as true all the factual allegations in the complaint, legally 2 1 conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft 2 v. Iqbal, 556 U.S. 662, 678-79 (2009). The complaint must proffer sufficient facts to state a claim 3 for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 558-59 4 (2007) (citations and quotations omitted). A claim is facially plausible when the “plaintiff pleads 5 factual content that allows the court to draw the reasonable inference that the defendant is liable 6 for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted). “[W]here the well-pleaded 7 facts do not permit the court to infer more than the mere possibility of misconduct, the complaint 8 has alleged – but it has not ‘show[n]’ – that the pleader is entitled to relief.” Id. at 679. 9 B. United States District Court Northern District of California 10 Analysis Beronia alleges four causes of action against Southwest: (1) wrongful termination in 11 violation of public policy; (2) negligent infliction of emotional distress (“NIED”); (3) intentional 12 infliction of emotional distress (“IIED”); and (4) retaliation. The Court analyzes the sufficiency of 13 Beronia’s claims in turn. 14 1. Wrongful Termination in Violation of Public Policy 15 To establish a claim for wrongful termination in violation of public policy, a plaintiff must 16 show: (1) an employer-employee relationship; (2) she was terminated (or suffered some other 17 adverse action); (3) the termination violated a public policy (a “nexus” exists between the 18 termination and the employee’s protected activity); (4) the termination was the legal cause of the 19 plaintiff’s damages; and (5) the nature and extent of the damages. Holmes v. General Dynamics 20 Corp., 17 Cal. App. 4th 1418, 1426 (1993). 21 illegal activities “unaccompanied by citations to specific statutes or constitutional provisions” do 22 not support wrongful termination claims. Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 1257 23 (1994). Such charges are insufficient because they put the defendant and the court “in the position 24 of having to guess at the nature of the public policies involved, if any.” Id. at 1257; Esberg v. 25 Union Oil Co., 28 Cal. 4th 262, 271 (2002) (concluding that employers must have adequate notice 26 of the conduct that will subject them to tort liability for wrongful discharge). It is the plaintiff’s 27 burden to provide the specific statutes and regulations on which the wrongful termination claim is 28 based. Green v. Ralee Eng. Co., 19 Cal. 4th 66, 84 (1998). California courts have held that vague charges of 3 United States District Court Northern District of California 1 Beronia contends that Southwest terminated her in “violation of various fundamental 2 public policies underlying both state and federal law” including “Article 1, Section 8 of the 3 California Constitution.” Compl. ¶ 20. This section of the California Constitution holds that “a 4 person may not be disqualified from entering or pursuing a business, profession, vocation, or 5 employment because of sex, race, creed, color, or national or ethnic origin.” Cal. Const. Art. 1, 6 § 8; see also Phillips v. St. Mary Regional Medical Center, 96 Cal. App. 4th 218 (2002). The 7 Complaint, however, contains no factual allegations to suggest that the decision to terminate 8 Plaintiff was motivated by her membership in any protected class. Beronia has failed to allege 9 that she was subjected to racist or sexist comments or conduct by anyone at Southwest. Because 10 Beronia’s allegations are insufficient to invoke the California Constitution, and because there is no 11 other statutory basis asserted, the Court finds Beronia’s claim too vague to state a claim for 12 wrongful termination in violation of public policy. However, because Beronia presents several 13 policy grounds under which she intends to proceed if granted leave to amend, the Court will grant 14 leave to amend. In any amended complaint, Beronia shall specify all the legal bases underlying 15 this claim. 16 2. Negligent Infliction of Emotional Distress 17 “The law of negligent infliction of emotional distress in California is typically analyzed . . . 18 by reference to two ‘theories’ of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” 19 Burgess v. Superior Court, 2 Cal. 4th 1064, 1071 (1992). “The distinction between the 20 ‘bystander’ and ‘direct victim’ cases is found in the source of the duty owed by the defendant to 21 the plaintiff.” Id. at 1272. “Bystander” cases are those in which the plaintiff’s claim of emotional 22 distress “is premised upon a defendant’s violation of a duty not to negligently cause emotional 23 distress to people who observe conduct which causes harm to another.” Id. “‘Direct victim’ cases 24 are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an 25 injury to someone else, but rather is based upon the violation of a duty owed directly to the 26 plaintiff.” Ragland v. U.S. Bank Nat’l Assn., 209 Cal. App. 4th 182, 205 (2012) (citation and 27 internal quotation marks omitted). 28 Beronia does not specify the theory under which she brings her claim for NIED, but the 4 1 argument presented in her opposition brief suggests that she proceeds under a direct victim theory 2 for tortious conduct done to her. See Opp. Br. at 5-6. “In its decisions addressing the direct 3 victim theory, the California Supreme Court has emphasized that there is no independent tort of 4 negligent infliction of emotional distress.” Gu v. BMW of N. Am., LLC, 132 Cal. App. 4th 195, 5 204 (2005) (quotations omitted, collecting cases). Instead, “the tort is negligence, a cause of 6 action in which duty to the plaintiff is an essential element.” Id. (quoting Potter v. Firestone Tire 7 & Rubber Co., 6 Cal. 4th 965, 984 (1993)). 8 United States District Court Northern District of California 9 “[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the 10 defendant’s breach of some other legal duty and the emotional distress is proximately caused by 11 that breach of duty.” Doe v. Gangland Prods., Inc., 730 F.3d 946, 961 (9th Cir. 2013) (quoting 12 Potter, 6 Cal. 4th at 985). Courts have rejected NIED claims resulting from employment 13 terminations because “an employer’s supervisory conduct is inherently intentional,” not negligent. 14 Semore v. Pool, 217 Cal. App. 3d 1087, 1105 (1990). Courts reason that an employer’s 15 supervisory conduct, including terminations, are intentional decisions that do not support an NIED 16 claim. Edwards v. United States Fid. & Guaranty Co., 848 F. Supp. 1460, 1466 (N.D. Cal. 1994); 17 see also Semore, 217 Cal. App. 3d at 1105. 18 Here, Beronia fails to allege negligence because she only complains of intentional 19 supervisory conduct, including warnings issued to her and consideration of her grievances. 20 Beronia’s termination cannot support a claim for negligence because Southwest intentionally 21 terminated her following her failed drug test, which Beronia does not dispute. Compl. ¶ 18. 22 Further, Beronia fails to identify the duty owed to her by Southwest and accordingly fails to allege 23 negligent conduct on the part of Southwest. 24 Beronia argues that she states a claim for both IIED and NIED but fails to acknowledge the 25 distinct pleading standards for the two claims. See Opp. Br. at 8-9 (citing Onelum v. Best Buy 26 Stores L.P., 948 F. Supp. 2d 1048, 1050 (C.D. Cal. 2013)). Beronia’s reliance on Onelum fails, 27 moreover, because that case did not involve a claim for NIED or negligence. Onelum only 28 involved a claim for IIED, and therefore does not support the sufficiency of her pleading for 5 1 2 3. 3 Southwest challenges Beronia’s cause of action for intentional infliction of emotional Intentional Infliction of Emotional Distress 4 distress on two bases: (a) the insufficiency of Beronia’s pleading and (b) the California Worker’s 5 Compensation Exclusivity bar for damages arising from the employment relationship. The Court 6 addresses these two grounds for dismissal of the claim in turn. 7 8 United States District Court Northern District of California NIED. In sum, the Court must dismiss Beronia’s cause of action for NIED. a. Sufficiency of Pleading IIED To state a prima facie claim for IIED, a plaintiff must allege the following elements: 9 “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless 10 disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or 11 extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the 12 defendant’s outrageous conduct.” Christensen v. Superior Ct., 54 Cal. 3d 868, 903 (1991). The 13 first element requires a significant showing: “[a] defendant’s conduct is ‘outrageous’ when it is so 14 extreme as to exceed all bounds of that usually tolerated in a civilized community.” Hughes v. 15 Pair, 46 Cal. 4th 1035, 1050-51 (2009) (quotation marks and citation omitted). A plaintiff must 16 plausibly allege that the defendant’s conduct was intended to inflict injury or that the defendant 17 engaged in the conduct with the realization injury would result. Id. at 1051. Claims of IIED based 18 on employment-based conduct often falls short of this standard; for example, firing an employee 19 by itself does not constitute “outrageous” conduct, even if the firing was without cause. Buscemi 20 v. McDonnell Douglas Corp., 736 F.2d 1348, 1352 (9th Cir. 1984). Likewise, discipline and 21 criticism that are a normal part of the employment relationship do not constitute “outrageous 22 conduct, even if intentional and malicious.” Lawler v. Montblanc North America, LLC, 704 F.3d 23 1235, 1245-46 (9th Cir. 2013). 24 Here, Beronia’s allegations consist solely of complaints regarding personnel decisions, 25 which are insufficient to support the first element of her prima facie case, extreme and outrageous 26 conduct by Southwest. Compl. ¶¶ 9-17; Janken v. GM Hughes Elec., 46 Cal. App. 4th 55, 64-65 27 (1996) (“commonly necessary personnel management actions” do not rise to the level of “extreme 28 and outrageous” as a matter of law). Further, Southwest’s termination of Beronia for testing 6 1 positive for cocaine complied with federal regulations applicable to her position. 49 C.F.R. part 2 40; 14 C.F.R. part 120. Beronia does not and cannot establish that her termination for cause in 3 accordance with federal regulations constituted outrageous conduct. Given the absence of any 4 facts showing outrageous conduct by Southwest, the Court must also dismiss Beronia’s cause of 5 action for IIED. United States District Court Northern District of California 6 Beronia argues that the California Supreme Court’s opinion in Alcorn v. Anbro 7 Engineering, Inc., 2 Cal. 3d 493 (1970), supports her claim for IIED. Not so. The Alcorn court 8 held that a reasonable finder of fact could find extreme and outrageous conduct where the 9 plaintiff’s supervisor yelled at him using racial slurs immediately before terminating him. Id. at 10 496-97. In contrast to such overt discrimination, Beronia complains of a 2018 physical assault by 11 a co-worker at an offsite event that is attenuated from her ultimate termination by multiple 12 terminations and re-hirings in the intervening years. Compl. ¶¶ 9-17. Such conduct by Southwest 13 does not reach the level of extreme and outrageous. 14 15 b. California Worker’s Compensation Exclusivity Bar Beyond the insufficiency of Beronia’s factual allegations, her IIED claim is also barred by 16 California’s Worker’s Compensation Exclusivity. California Labor Code section 3600(a) makes 17 the worker’s compensation system the sole remedy “for any injury sustained by . . . employees 18 arising out of and in the course of the employment.” Courts have found, based on this sole 19 remedy, that a plaintiff cannot bring a common law IIED claim for “ordinary employer conduct 20 that intentionally, knowingly or recklessly harms an employee.” Fermino v. Fedco, Inc., 7 Cal. 21 4th 701, 714 (1994). “That limitation does not apply, however, when the ‘injury is a result of 22 conduct, whether in the form of discharge or otherwise, not seen as reasonably coming within the 23 compensation bargain.’” Kovatch v. Cal. Cas. Mgmt. Co., 65 Cal. App. 4th 1256, 1277 (1998). 24 Said differently, California courts have held that that the Worker’s Compensation Act bars IIED 25 claims except where the employer’s conduct contravenes fundamental public policy or where the 26 employer’s conduct falls outside the normal risks of the employment relationship. Light v. Dep’t 27 of Parks & Recreation, 14 Cal. App. 5th 75, 97 (2017); see also Livitsanos v. Superior Court, 2 28 Cal. 4th 744, 754-55 (1992) (if “the employer’s conduct neither contravenes fundamental public 7 United States District Court Northern District of California 1 policy nor exceeds the inherent risks of the employment,” it is not actionable in a civil suit). 2 First, as discussed above, Beronia fails to identify how Southwest’s conduct contravenes 3 fundamental public policy. Southwest’s termination of Beronia following her positive drug test 4 generally comports with public policy because the termination resulted from the airline’s 5 compliance with federal regulations. See 49 C.F.R. part 40; 14 C.F.R. part 120. While she 6 contends in her opposition brief that Southwest engaged in discriminatory conduct, which would 7 contravene public policy, Beronia does not identify any instance in which Southwest treated her 8 differently based on her membership in a protected class. See Compl. ¶ 20; cf. Light, 14 Cal. App. 9 5th at 97 (discussing how discriminatory practices fall outside worker’s compensation 10 exclusivity). For the same reasons that Beronia cannot state a claim for wrongful termination in 11 violation of public policy, discussed above, she cannot establish that her IIED claim falls within 12 the public policy exception to the exclusivity requirements of the worker’s compensation scheme. 13 Second, Beronia has not alleged conduct on the part of Southwest that falls outside the 14 normal bounds of employment. “Emotional distress caused by misconduct in employment 15 relations involving, for example, promotions, demotions, criticism of work practices, negotiations 16 as to grievances, is a normal part of the employment environment.” Light, 14 Cal. App. 5th at 98 17 (quotation marks and citation omitted). Beronia complains about Southwest’s criticism of her job 18 performance, discipline for purported errors, and treatment of her grievances, but these fall within 19 the normal bounds of the employment relationship. Compl. ¶¶ 10-18. On this basis as well, 20 Beronia fails to establish that her IIED claim falls within an exception to the exclusivity 21 requirements of the worker’s compensation scheme. 22 In sum, Beronia’s IIED claim must be dismissed because the allegations of Southwest’s 23 conduct between 2018 and 2020 constitute personnel management actions that fall well short of 24 the standard for extreme and outrageous conduct. Further, Beronia’s IIED claim must be 25 dismissed because it is barred by the exclusive remedy provisions of California’s worker’s 26 compensation scheme. 27 4. Retaliation 28 Beronia alleges that Southwest retaliated against her for engaging in her union’s grievance 8 United States District Court Northern District of California 1 process and for discussing union rights with her co-workers, but she does not specify the legal 2 basis for her retaliation claim in her Complaint. Compl. ¶¶ 35-39 (describing Beronia’s fourth 3 cause of action of “retaliation for engaging in protected activity” without reference to a statutory 4 or common law basis for such a claim). Beronia then argues in opposition to Southwest’s Motion 5 that her claim for retaliation relies on the policy embedded in California’s Fair Employment and 6 Housing Act (“FEHA”). See Opp. Br. at 12 (citing Cal. Govt. Code § 12940 et seq.). In so 7 arguing, Beronia improperly seeks to amend the Complaint through her opposition brief. See 8 Diamond S.J. Enter., Inc. v. City of San Jose, 395 F. Supp. 3d 1202, 1231 (N.D. Cal. 2019) (“the 9 complaint may not be amended by briefs in opposition to a motion to dismiss.”). Nonetheless, 10 because Beronia is entitled to a liberal construction of her pleadings, the Court examines her 11 retaliation claim as if brought under FEHA.2. Construed as a FEHA retaliation claim, Beronia’s claim fails for lack of administrative 12 13 exhaustion. Beronia fails to allege any facts showing that she filed a timely charge and received a 14 right-to-sue notice from the Department of Fair Employment and Housing or the U.S. Equal 15 Employment Opportunity Commission for her retaliation claim before initiating this lawsuit. See 16 Holland v. Union Pac. R.R. Co., 154 Cal. App. 4th 940, 945 (2007); Jasch v. Potter, 302 F.3d 17 1092, 1094 (9th Cir. 2002). Indeed, Beronia acknowledges that she did not administratively 18 exhaust her retaliation claim – her opposition brief concedes that she does not intend to proceed 19 with retaliation as a separate cause of action. Opp. Br. at 11-13. She argues instead that 20 Southwest violated the public policy embedded in FEHA’s retaliation provision, and it is the 21 violation of this policy that gives rise to her claim for wrongful termination in violation of public 22 policy. Id. While Beronia may be correct that she need not exhaust administrative remedies for 23 retaliation if she proceeds on a cause of action for wrongful termination in violation of public 24 25 26 27 28 Beronia’s Complaint additionally suggests without clearly stating that she intends to pursue a claim for retaliation under the National Labor Relations Act (“NLRA”) based on her union-based activity. Compl. ¶¶ 35-36. Employees seeking to vindicate their collective bargaining rights in federal court must bring a hybrid action alleging that the employer breached the agreement and that the union breached its duty of fair representation, and such action must be filed within six months of the conclusion of the contractual grievance process. See Farr v. Pac. Gas & Elec. Co., No. 21-CV-08099-JSW, 2022 WL 1188866, at *3 (N.D. Cal. Apr. 21, 2022). Given the facts pleaded and the parties involved, Beronia may not pursue a claim for retaliation under the NLRA. 9 2 1 policy, Stevenson v. Superior Ct., 16 Cal. 4th 880, 904-05 (1997), she cannot state a claim for 2 retaliation under FEHA without administrative exhaustion. The Court must therefore dismiss the 3 retaliation claim with prejudice. CONCLUSION 4 5 For the foregoing reasons, the Court GRANTS Southwest’s motion to dismiss the 6 Complaint. Beronia may file an amended complaint within 30 days from the date of this order. 7 Beronia may not amend her retaliation cause of action, as it is DISMISSED WITH PREJUDICE. 8 No new claims or parties may added without consent of Defendant or leave of court. 9 10 IT IS SO ORDERED. Dated: March 19, 2024 United States District Court Northern District of California 11 12 ARACELI MARTÍNEZ-OLGUÍN United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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