Mayfield v. County of Merced et al, No. 1:2013cv01619 - Document 69 (E.D. Cal. 2014)
Court Description: MEMORANDUM DECISION and ORDER re: Defendant County of Merced's Motion to Dismiss 54 , signed by District Judge Lawrence J. O'Neill on 11/10/14. County of Merced terminated. (Verduzco, M)
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1 UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF CALIFORNIA 3 4 ANGELA D. MAYFIELD, Plaintiff, 5 MEMORANDUM DECISION AND ORDER RE: DEFENDANT COUNTY OF MERCED’S MOTION TO DISMISS (Doc. 54) v. 6 7 1:13-cv-01619 LJO BAM COUNTY OF MERCED, et al., Defendants. 8 9 10 I. PRELIMINARY STATEMENT TO PARTIES AND COUNSEL 11 Judges in the Eastern District of California carry the heaviest caseloads in the nation, and this 12 Court is unable to devote inordinate time and resources to individual cases and matters. Given the 13 shortage of district judges and staff, this Court addresses only the arguments, evidence, and matters 14 necessary to reach the decision in this order. The parties and counsel are encouraged to contact the 15 offices of United States Senators Feinstein and Boxer to address this Court’s inability to accommodate 16 the parties and this action. The parties are required to reconsider consent to conduct all further 17 proceedings before a Magistrate Judge, whose schedules are far more realistic and accommodating to 18 parties than that of U.S. District Judge Lawrence J. O'Neill, who must prioritize criminal and older civil 19 cases. 20 Civil trials set before Judge O'Neill trail until he becomes available and are subject to suspension 21 mid-trial to accommodate criminal matters. Civil trials are no longer reset to a later date if Judge O'Neill 22 is unavailable on the original date set for trial. Moreover, this Court's Fresno Division randomly and 23 without advance notice reassigns civil actions to U.S. District Judges throughout the nation to serve as 24 visiting judges. In the absence of Magistrate Judge consent, this action is subject to reassignment to a 25 U.S. District Judge from outside the Eastern District of California. 26 1 1 II. INTRODUCTION 2 Plaintiff Angela D. Mayfield began working as a contracted criminal defense attorney at the 3 Law Office of Morse & Pfeiff, dba Merced Defense Associates (“MDA”) in 2005. First Amended 4 Complaint (“FAC”), Doc. 67, ¶¶ 8, 10. Ms. Mayfield’s position was to provide services to indigent 5 criminal defendants under MDA’s contract with the County of Merced (“the County”). Id. at ¶ 8. 6 MDA terminated its contract with Ms. Mayfield on October 11, 2012. Id. at ¶¶ 10, 14. Plaintiff filed a 7 pro se suit against MDA, her supervisors at MDA, Cindy Morse, and Thomas Pfeiff (collectively 8 “Lawyer Defendants”) and the County, alleging claims of race and sex discrimination and retaliation, 9 under various state and federal civil rights statutes. Now before the Court is the County’s Motion to 10 Dismiss the FAC under Rule 12(b)(6).1 The Court deemed the matter suitable for decision without oral 11 argument pursuant to Local Rule 230(g). 12 III. PROCEDURAL HISTORY 13 Plaintiff initiated this action on October 8, 2013. Doc. 1. In her original complaint, Plaintiff 14 asserted fifteen causes of action against the County, Lawyer Defendants, and MDA. Id. Five of these 15 claims, which arose under the California Government Tort Claims Act and common law tort theories, 16 were dismissed with prejudice, in accordance with findings and recommendation issued by Magistrate 17 Judge Barbara A. McAuliffe. Doc. No. 50. The other nine claims, which alleged violations under federal 18 civil rights acts and California’s Fair Employment and Housing Act (“FEHA”), Equal Pay Act (“EPA”), 19 and California Labor Code § 1197.5, were dismissed with leave to amend as to the County. Id. Plaintiff 20 filed her FAC on August 8, 20142 alleging the following seven causes of action against the County: (1) 21 race and sex discrimination under Title VII of the federal 1964 Civil Rights Act (“Title VII”), (2) race 22 and sex discrimination under FEHA, (3) failure to prevent discrimination under FEHA, (4) retaliation 23 under Title VII and FEHA, (5) retaliation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 24 25 1 2 Lawyer Defendants and MDA filed a separate motion to dismiss, Doc. No. 55, which is addressed in a separate order. The FAC was refiled on October 24, 2014 to correct a filing error, pursuant to the Court’s Minute Order, Doc. 66. 26 2 1 206, and Cal. Lab. Code (“CLC”) § 1197.5, (6) violation of the Equal Protection Clause of the 2 Fourteenth Amendment under 42 U.S.C. § 1983, and (7) race discrimination and retaliation under 42 3 U.S.C. § 1981. Plaintiff’s Eighth and Ninth Causes of Action, for wrongful discharge and failure to 4 reimburse, are alleged against MDA only. The County moves to dismiss the remaining claims against it, 5 all of which were previously dismissed with leave to amend, on the basis that Plaintiff has failed to 6 allege additional facts to support cognizable claims against the County. Memorandum of Points and 7 Authorities in Support of Defendant County of Merced’s Motion to Dismiss (“County Mem.”), Doc. No. 8 54-1, at 3. 9 10 IV. FACTUAL BACKGROUND Plaintiff began work for MDA in February of 2005. FAC ¶ 10. Plaintiff alleges that she became 11 dissatisfied with her caseload and the compensation she received from MDA and made multiple 12 complaints to MDA regarding those issues. Id. at ¶¶ 21, 26. During her tenure with MDA, Plaintiff 13 discovered that her Caucasian male coworkers received higher overall compensation and higher starting 14 pay than she was offered. Id. at ¶ 22. Plaintiff also alleges that on September 7, 2012, while she and Mr. 15 Pfeiff were both in court, Plaintiff told a judge that she could not accept an additional case because her 16 caseload was too large and that she was addressing the issues with MDA. Id. at ¶ 33. 17 On September 10, 2012, MDA notified Plaintiff that it was terminating her contract “without 18 cause.” Id. at ¶ 34. After receiving notice of the termination, Plaintiff met with County executive officer 19 Angelo Lamas to discuss her termination. Id. at ¶ 35. During their discussion, Mr. Lamas advised 20 Plaintiff regarding the rate the County paid for indigent defense attorneys. Id. After meeting with Mr. 21 Lamas, Plaintiff alleges that she realized that the County provided enough funding to pay her more and 22 to provide additional attorneys. Id. at ¶ 36. 23 Plaintiff filed a charge of discrimination under the FEHA and received a right-to-sue letter on 24 April 30, 2013. Id. at ¶ 3. She filed a complaint with the United States Equal Employment Opportunity 25 Commission (“EEOC”) and received a right-to-sue letter on September 4, 2013. Id. Plaintiff alleges that 26 3 1 Defendant discriminated against her through its agent MDA based on her race and sex by failing to 2 assign her a caseload comparable to that of her white colleagues. Id. at ¶ 41. Further, Plaintiff alleges 3 that she performed the same job duties as her white male coworkers, yet she was paid a lower wage for 4 such work based on her race and sex. Id. at ¶ 42. 5 V. STANDARD OF DECISION 6 A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the 7 allegations set forth in the complaint. “Like a battlefield surgeon sorting the hopeful from the hopeless, a 8 motion to dismiss invokes a form of legal triage, a paring of viable claims from those doomed by law.” 9 Iacampo v. Hasbro, Inc., 929 F. Supp. 562, 567 (D.R.I. 1996). A 12(b)(6) dismissal is proper where 10 there is either a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a 11 cognizable legal theory.” Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In 12 considering a motion to dismiss for failure to state a claim, the court generally accepts as true the 13 allegations in the complaint, construes the pleading in the light most favorable to the party opposing the 14 motion, and resolves all doubts in the pleader’s favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 15 (9th Cir. 2008). To survive a 12(b)(6) motion to dismiss, the plaintiff must allege “enough facts to state a claim 16 17 to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).3 “A claim 18 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 19 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 20 662, 678 (2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for 21 more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 22 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops 23 24 25 3 Plaintiff’s reliance on Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993), for the premise that a complaint must only include “a short and plain statement of the claim showing that the pleader is entitled to relief” is outdated. The current pleading standard was altered by the Supreme Court’s decision in Twombly, as discussed above. See 550 U.S. at 584 (Stevens, J., dissenting.). 26 4 1 short of the line between possibility and plausibility for entitlement to relief.’” Id. (quoting Twombly, 2 550 U.S. at 557). 3 To the extent that the pleadings can be cured by the allegation of additional facts, the plaintiff 4 should be afforded leave to amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 5 F.2d 242, 247 (9th Cir. 1990) (citations omitted). 6 7 VI. ANALYSIS A. Whether Plaintiff Has Asserted Viable Claims Under Title VII, the FLSA or the FEHA 8 Five of the seven claims Plaintiff brings against the County are premised upon the allegation that 9 Plaintiff was an “employee” of the County of Merced. Claims one through four are all brought under 10 Title VII, or FEHA, both of “which predicate potential . . . liability on the status of the defendant as an 11 ‘employer.’” Kelly v. Methodist Hosp. of S. Cal., 22 Cal. 4th 1108, 1116 (2000) (quoting Cal. Gov’t 12 Code § 12926); 42 U.S.C.A. § 2000e(b).4 Claim five, violation of the EPA also may only be brought 13 against an employer. Northwest Airlines v. Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77, 92 14 (1981) (the EPA is “expressly directed against employers; Congress intended in these statutes to regulate 15 their conduct for the benefit of employees.” Likewise, as to her sixth cause of action, the FLSA and 16 CLC claims only apply to employees. See 29 U.S.C. § 206(d)(1) (prohibiting sex discrimination in the 17 payment of wages “to employees”); Cal. Lab. Code §1197.5 (providing cause of action for unfair wages 18 against employers). Thus, to prevail on her employment discrimination and retaliation claims under Title 19 VII, FEHA, the FLSA, and the CLC, Ms. Mayfield must plausibly allege that she was an “employee” of 20 the County of Merced. 21 Judge McAuliffe provided a thorough analysis of this issue in her Findings and 22 23 4 24 25 The Court notes that claims under FEHA are often analogous to claims under Title VII and generally are analyzed similarly. See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 922-23 (9th Cir. 2000); see also Clark v. Claremont University Center, 6 Cal. App. 4th 639, 662 (1992) (“Although [FEHA and Title VII] differ in some particulars, their objectives are identical, and California courts have relied upon federal law to interpret analogous provisions of [FEHA].”) (internal quotation marks and citation omitted). 26 5 1 Recommendations (“F&Rs”) as to the County’s Motion to Dismiss Plaintiff’s initial complaint, Doc. 2 No. 43 at 12-16. This Court agreed with the F&Rs’ conclusion that the initial complaint failed to allege 3 sufficient facts to indicate that Plaintiff had an actual, implied, or joint-employment relationship with the 4 County, based on the contracts that existed between MDA and the County and between MDA and 5 Plaintiff. Doc. 50. Plaintiff attempts to remedy these deficiencies by highlighting additional provisions 6 in the contract between the County and MDA (the “Services Contract”). FAC ¶ 13. These provisions 7 require MDA to, for example, provide office and bilingual services to its contract attorneys, ensure that 8 attorneys working under the contract maintain separate offices from one another, and comply with labor 9 laws and fair employment practices. Id. 10 1. 11 The Supreme Court created a list of factors federal courts use in determining whether a plaintiff Direct Employment 12 is an employee (as oppose to an independent contractor) under Title VII in Nationwide Mutual 13 Insurance Co. v. Darden, 503 U.S. 318, 323 (1992). Under Darden, the primary inquiry to determine 14 whether a plaintiff is an employee is “the [defendant’s] right to control the manner and means by which 15 the [plaintiff’s work] is accomplished.” Id. Some factors relevant to this inquiry are: 16 the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. 17 18 19 20 Id. at 323-24. 21 Likewise, under California law, “[t]he principal test of an employment relationship is whether 22 the person to whom service is rendered has the right to control the “manner and means” of 23 accomplishing the result desired.” S. G. Borello & Sons, Inc. v. Dep’t of Indus. Relations, 48 Cal. 3d 24 341, 350 (1989). In addition, “California courts consider a number of additional factors, including: the 25 right of the principal to discharge at will, without cause . . . whether the work is usually done under the 26 6 1 direction of the principal . . . and whether the parties believe they are creating an employer-employee 2 relationship.” Juarez v. Jani-King of Cal., Inc., 273 F.R.D. 571, 581 (N.D. Cal. 2011). For example, in 3 Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748, 755 (9th Cir. 1979), the Ninth Circuit found 4 a plausible employment relationship between a berry farm and sublicensed strawberry growers. Critical 5 factors identified by the Driscoll Court were allegations that the berry farm could fire a grower, 6 provided significant guidance and oversight over their operations (including determining the quantity 7 and variety of plants grown by each grower), and might ultimately determine how much they were paid. 8 Id. 9 As discussed in the F&R’s, Plaintiff’s original complaint failed to allege sufficient facts to show 10 a possible employer-employee relationship necessary under Title VII, FEHA, or California law. F&R’s 11 at 15. The additional contract provisions identified by Plaintiff do not go any further in establishing that 12 the County had any direct control over Plaintiff. While they mandate certain standards that must be met 13 by attorneys working under the contract, the Contract is clear that MDA is solely responsible for the 14 work produced on MDA’s behalf. Ex. E. § 2(G). (“ATTORNEY [MDA] agrees that it is solely 15 responsible to COUNTY for the performance of any Contract Attorney or subcontractor whether 16 approved by County or not.”). Further, MDA is solely responsible for developing written policies to 17 govern contract attorneys, id. at § 2(J), for ensuring that contracting attorneys are qualified, id. at § 18 2(M); § 5; and, ultimately for providing “high quality” legal representation to indigent defendants, id. at 19 § 5. Unlike the Plaintiffs in Driscoll, Plaintiff does not allege that the County had the ability to hire or 20 fire her, determine her caseload or decide how much she was paid, or provided any day to day guidance 21 or control over her work. While the County provided a bulk amount of work and money to MDA, 22 Plaintiff does not allege that the County had any authority to decide how the work or the money was to 23 be allocated among the attorneys working for MDA. Thus, Plaintiff does not plausibly allege that the 24 County directly employed her under either federal or California law. 25 26 7 1 2. 2 The Ninth Circuit also recognizes that an employer may be indirectly liable under Title VII as 3 well. Anderson v. Pac. Mar. Ass'n, 336 F.3d 924, 930 (9th Cir. 2003). This occurs “where a defendant 4 subject to Title VII interferes with an individual's employment opportunities with another employer.” Id. 5 (quoting Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir.1980)). Liability in these 6 cases, however, is limited to instances “where the indirect employer was the entity performing the 7 discriminatory act.” Id. at 931. For example, the Ninth Circuit found that California’s requirement, 8 formulation, and administration of a licensing examination for public school teachers constituted an 9 “interference” with the teachers’ right to work. Ass'n of Mexican-Am. Educators v. State of California Indirect Liability 10 (“AMAE”), 231 F.3d 572, 582 (9th Cir. 2000) (en banc). Plaintiffs in AMAE claimed that the licensing 11 examination had a discriminatory impact that subjected the state to liability under Title VII. Id. The 12 circumstances of this case are unlike those in AMAE. While Plaintiff alleges that the County dictated 13 some general workplace parameters, these conditions are not the basis for her Title VII action. In other 14 words, she does not claim that the standards agreed to in the Services Contract (i.e. that attorneys 15 maintain separate offices or comply with ethical guidelines) interfered with her ability to work for 16 MDA. Thus, there is no basis for Plaintiff’s claim that the County is indirectly liable under Title VII. 17 3. 18 The County may also be liable if it and MDA are an “integrated enterprise.” Kang v. U. Lim Am., Joint Employment/Integrated Enterprise 19 Inc., 296 F.3d 810, 815 (9th Cir. 2002). In the Ninth Circuit, courts apply the following factors in this 20 determination: “(1) interrelation of operations; (2) common management; (3) centralized control of labor 21 relations; and (4) common ownership or financial control.” Id. Plaintiff does not allege any facts that 22 would suggest that MDA and the County’s operations are interrelated, have common management, 23 centralized labor relations or are commonly owned or financially controlled. Thus, she does not 24 plausibly allege that MDA and the County are an “integrated enterprise.” 25 4. Whether MDA Acted as the County’s Agent 26 8 1 Plaintiff also argues that even if no direct or indirect employment relationship can be established 2 between her and the County, the County should still be liable because MDA acted as the County’s agent. 3 FAC ¶¶ 13-14; Opposition at 16-17. The County argues that Plaintiff did not allege any facts that would 4 support a finding that an agency relationship existed. County Mem. at 9-11. 5 In evaluating whether an “agency relationship” exists for Title VII purposes, the Ninth Circuit 6 has looked to whether any “traditional indicia of an agency relationship” are present. Childs v. Local 18, 7 Int'l Bhd. of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir. 1983). These factors include “consent by the 8 alleged agent that another shall act on his behalf, and control of the alleged agent by the principal.” Id. 9 (internal quotations omitted). Additionally, the Ninth Circuit has considered whether an entity 10 “affirmatively, actively” participated in the discriminatory of its alleged agent. Morgan v. Safeway 11 Stores, Inc., 884 F.2d 1211, 1214 (9th Cir. 1989) (“To establish employer responsibility for the 12 discriminatory programs of third parties, the employer must be more than a broker, or other 13 intermediary, that simply enables its employees to enter into arrangements with third parties; the 14 employer must affirmatively, actively participate in the third-party program.”). 15 Under California law, “[a]n agent is one who represents another, called the principal, in dealings 16 with third persons.” Cal. Civ. Code § 2295. Principals are liable for the tortious acts of their agents 17 committed within the scope of the agency. Holley v. Crank, 400 F.3d 667, 673 (9th Cir. 2005). To 18 establish an agency relationship, a plaintiff must allege: 19 20 21 22 (1) An agent or apparent agent holds a power to alter the legal relations between the principal and third persons and between the principal and himself; (2) an agent is a fiduciary with respect to matters within the scope of the agency; and (3) a principal has the right to control the conduct of the agent with respect to matters entrusted to him. 23 Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp., 148 Cal. App. 4th 937, 964 24 (2007), as modified on denial of reh'g (Apr. 17, 2007) (internal citations omitted). “An agency is either 25 actual or ostensible.” Cal. Civ. Code § 2298. An “ostensible agency” relationship is formed when the 26 9 1 principal “intentionally, or by want of ordinary care, causes a third person to believe another to be his 2 agent who is not really employed by him. Garlock, 148 Cal. App. 4th at 965. 3 Plaintiff has not alleged that the County gave authority to MDA or the Lawyer Defendants to 4 enter into an employment contract with Plaintiff or any other contracted attorney on its behalf. The 5 Services Contract reflects that MDA is responsible for providing legal services to the County, and that 6 these services must meet certain standards. Ex. E. § 2(A) (“All attorneys providing services under this 7 Agreement, including Contract Attorneys, shall at all times each be an Attorney at Law admitted to 8 practice in the State of California.”). However, the Contract is clear that MDA is solely responsible for 9 the work produced on MDA’s behalf, id. at § 2(G) (“ATTORNEY [MDA] agrees that it is solely 10 responsible to COUNTY for the performance of any Contract Attorney or subcontractor whether 11 approved by County or not.”) and that the Services Contract is not intended to expose the County to 12 obligations to third parties, id. at § 22 (“COUNTY shall not be obligated or liable to any party other than 13 [MDA].”). Further, MDA is solely responsible for developing written policies to govern contract 14 attorneys, id. at § 2(J), for ensuring that contracting attorneys are qualified, id. at§§ 2(M) & 5; and, 15 ultimately for providing “high quality” legal representation to indigent defendants, id. at § 5. Moreover, 16 the Contract makes clear that MDA is “solely responsible” for complying with employment laws and 17 taxes with regards to MDA’s employees or subcontractors as “no employer-employee relationship is 18 created” between County and MDA. Id. at § 13. There is simply no basis under federal or California 19 case law for reading the Contract as giving MDA the authority to engage in relationships with third 20 parties, such as Plaintiff, on the County’s behalf. 21 Nor does the Plaintiff allege that the County actually controlled MDA’s actions as its principal. 22 Rather, Plaintiff alleges that Mr. Pfeiff allocated the docket assigned by the County, FAC ¶ 29, that 23 MDA operated under a “flat fee payment system,” FAC ¶ 30, and that MDA “chose to spend the money 24 in a way that enriched themselves and they did so in a discriminatory manner.” FAC ¶ 36. In her 25 Opposition, Plaintiff claims that MDA had sole authority to hire, fire, set compensation, and determine 26 10 1 case assignments. Opposition at 13. She argues that these facts “establish” that the Lawyer Defendants 2 “were not reviewed by others- they had the sole power and authority to make any and all decisions 3 regarding the actions alleged in Plaintiff’s FAC.” Id. (emphasis added). Moreover, in the claim letter 4 filed on her behalf, Plaintiff describes the County as “ignoring its obligations to monitor and/or 5 supervise” the provisions of the Services Contract with MDA and that it its “total ignorance as to 6 attorney hours spent on cases indicates that it had no concern about the adequacy of compensation to 7 Ms. Mayfield.” Exhibit I at 111. Claims that the County was “totally ignorant” of and “had no concern 8 for” Plaintiff’s caseload and rate of pay are wholly inconsistent with claims that the County controlled 9 her working conditions or that the County “affirmatively, actively” participated in any alleged 10 discriminatory conduct. Morgan, 884 F.2d at 1214. 11 Finally, Plaintiff does not claim that MDA caused her to believe that she had entered into an 12 employment contract with the County. Thus, she does not plausibly allege that MDA ostensibly acted as 13 the County’s agent when MDA entered into its employment contract with her. 14 For the reasons discussed above, this Court GRANTS WITHOUT LEAVE TO AMEND the 15 County’s Motion to Dismiss Causes of Action One through Five as to the County. Plaintiff has been 16 given ample guidance and opportunity to address these issues already; further opportunity to amend is 17 not warranted. 18 B. Whether Plaintiff Has Asserted a Viable Claim Under 42 U.S.C. § 1983 19 In her sixth cause of action, Plaintiff alleges that the County deprived Plaintiff of her civil rights 20 when the Lawyer Defendants “adopted an official policy and custom as County’s official policy making 21 officials to treat African-American female attorneys working as contract public defenders for Merced 22 County differently and less preferable than similarly situated Caucasian male attorneys . . .” FAC ¶ 53. 23 The County first argues that this claim is duplicative of Plaintiff’s Title VII claim and must be 24 dismissed. County Mem. at 15. This argument has no merit. Defendants cite to Roberts v. Coll. of the 25 Desert, 870 F.2d 1411, 1415 (9th Cir. 1988), for the premise that “[a] claim for deprivation of civil 26 11 1 rights is not available under Section 1983 if plaintiff claims a direct violation of statutory rights under 2 Title VII.” County Mem. at 15. This is the opposite of the Ninth Circuit’s holding. The Ninth Circuit 3 actually held that “Title VII does not preempt an action under section 1983 for a violation of the 4 fourteenth amendment.” 870 F.2d at 1415 (emphasis added). However, Roberts also holds that a Section 5 1983 claim cannot proceed parallel to a Title VII claim if the Section 1983 claim is premised entirely on 6 a violation of Title VII itself. Id. (recognizing that Section 1983 lawsuits “cannot be invoked when the 7 only right violated is the Title VII right to be free of discrimination in employment.”). Since Plaintiff’s 8 claim is that Defendants’ conduct amounted to a violation of her right to equal protection under the 9 Fourteenth Amendment, FAC ¶¶ 53-54, it cannot be dismissed on this basis. 10 The County also argues that Plaintiff fails to state a viable Section 1983 claim because it does 11 not assert that the County had a policy, custom or practice of discrimination or that the County could be 12 liable for any allegedly discriminatory practices of MDA or the Lawyer Defendants. County Mem. at 15. 13 Municipalities and local governments can be liable for damages under Section 1983 when 14 “action pursuant to official municipal policy of some nature cause[s] a constitutional tort.” Monell v. 15 Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691, (1978). Local governments are not liable, 16 however, for simply employing a tortfeasor. Id. at 694-95 (“Instead, it is when execution of a 17 government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may 18 fairly be said to represent official policy, inflicts the injury that the government as an entity is 19 responsible under § 1983.”). 20 A government entity may be liable under Section 1983 claim if a policy, practice, or custom of 21 the entity can be shown to be a moving force behind a violation of constitutional rights.” Dougherty v. 22 City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). Details of these policies need to be alleged with 23 enough specificity to raise them beyond a “formulaic recitation of a cause of action's elements.” Id. They 24 must “contain sufficient allegations of underlying facts to give fair notice and to enable the opposing 25 party to defend itself effectively” and “plausibly suggest an entitlement to relief.” AE ex rel. Hernandez 26 12 1 v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). The Ninth Circuit has recognized four distinct ways5 to demonstrate a municipal policy or 2 3 custom: (1) “[W]hen execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury. .” (2) where “the constitutional tort was the result of a longstanding practice or custom which constitutes the standard operating procedure’ of the local government entity . . .” (3) by showing that “the tortfeasor was an official whose acts fairly represent official policy such that the challenged act constituted an official policy . . .” or (4) by showing that “an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.” 4 5 6 7 8 9 10 Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008) (internal quotation marks and citations omitted). 11 Liability under the first prong arises through the adoption of a formal policy, defined as “a deliberate 12 choice to follow a course of action ... made from among various alternatives by the official or officials 13 responsible for establishing final policy with respect to the subject matter in question.” Oviatt By & 14 Through Waugh v. Pearce, 954 F.2d 1470, 1477 (9th Cir. 1992) (citing Pembaur v. City of Cincinnati, 15 475 U.S. 469, 483-484 (1986)). Plaintiff does not allege facts suggesting the County has adopted such a 16 policy, thus she has not presented a claim under the first prong. 17 A plaintiff can claim liability under the second prong by alleging that a “longstanding practice or 18 custom” has evolved, but this requires a showing of more than “isolated or sporadic incidents.” Hunter 19 v. Cnty. of Sacramento, 652 F.3d 1225, 1233 (9th Cir. 2011). Rather, “the custom must be so ‘persistent 20 and widespread’ that it constitutes a ‘permanent and well settled city policy.’” Id. The line between 21 “isolated or sporadic incidents” and “persistent and widespread conduct” is not clearly delineated, 22 although where more than a few incidents are alleged, the determination appears to require a fully 23 developed factual record. Compare Davis v. City of Ellensburg, 869 F.2d 1230, 1233–34 (9th Cir.1989) 24 25 5 Many cases combine the first two prongs. See, e.g. Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). The 26 Court follows the example laid out in Price for simplicity. 13 1 (single incident of excessive force inadequate to establish liability); Meehan v. County of Los Angeles, 2 856 F.2d 102, 107 (9th Cir.1988) (two incidents insufficient) with Menotti v. City of Seattle, 409 F.3d 3 1113, 1147 (9th Cir.2005) (triable issue of fact existed as to whether Seattle had an unconstitutional 4 policy or custom of suppressing certain political speech based on the testimony of several individuals 5 that their entry to a particular area was permitted by police only after they removed offending buttons 6 and stickers, coupled with the testimony of the officer in charge that the City would not permit 7 “demonstrations” in the area). 8 9 Here Plaintiff alleges that Defendants had a “longstanding pattern and practice of discriminating against African-American female attorneys.” FAC ¶ 53. However, the only factual allegation put forth 10 as to the County is its “failure to investigate and correct such discriminatory treatment and constitutional 11 violations in the face of evidence that established numerous contract violations and discrimination on the 12 part of their agent, MDA.” Id. As to this, Plaintiff describes that she only contacted the County 13 regarding her situation with MDA “after learning of her termination.” FAC ¶ 35. She claims that 14 inaction on the part of County Executive Angelo Lamas, FAC ¶ 35, and Chief Deputy County Counsel 15 Michael Calabrese, FAC ¶ 37, amounted to a policy of “deliberate indifference.” Yet, she does not 16 explain how such indifference could plausibly be the “moving force” behind the allegedly 17 discriminatory conditions that already occurred. Nor has she otherwise demonstrated that that the 18 County’s alleged indifference to her complaint was anything other than an isolated incident. Thus she 19 has not alleged liability under the second prong of Monell. 20 Liability under the third prong relates to the Supreme Court’s holding “that municipal liability 21 may be imposed for a single decision by municipal policymakers under appropriate circumstances.” 22 Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986) (“[T]he power to establish policy is no more 23 the exclusive province of the legislature at the local level than at the state or national level.”). This 24 liability only attaches “where the decisionmaker possesses final authority to establish municipal policy 25 with respect to the action ordered” and a “deliberate choice to follow a course of action is made from 26 14 1 among various alternatives by the official or officials responsible for establishing final policy with 2 respect to the subject matter in question.” Id. at 481, 483 (emphasis added).“[W]here action is directed 3 by those who establish governmental policy, the municipality is equally responsible whether that action 4 is to be taken only once or to be taken repeatedly.” Id. at 481. Plaintiff does not allege that a County 5 policymaker’s isolated decision violated her constitutional rights; thus she does not present a claim 6 under the third Monell prong. 7 The fourth prong reflects the fact that policymakers may delegate their authority to another 8 official. Liability may arise “if a particular decision by a subordinate was cast in the form of a policy 9 statement and expressly approved by the supervising policymaker ... [or] if a series of decisions by a 10 subordinate official manifested a ‘custom or usage’ of which the supervisor must have been aware.” 11 Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992) (quoting City of St. Louis v. Praprotnik, 485 12 U.S. 112, 126 (1988)). However, a policymaker must “approve a subordinate's decision and the basis for 13 it before the policymaker will be deemed to have ratified the subordinate's discretionary decision.” Id. 14 (emphasis in original). 15 Plaintiff claims that the County is liable under this prong because the Lawyer Defendants 16 “adopted an official policy and custom as County’s official policy making officials to treat African17 American female attorneys working as contract public defenders for Merced County differently and less 18 preferable than similarly situated Caucasian male attorneys. . . .” FAC ¶ 53. However, she does not 19 identify how this policy might be attributed to the County. Neither of the Lawyer Defendants are alleged 20 to be subordinates of any supervising County policy maker. Rather, Plaintiff claims that the Lawyer 21 Defendants themselves are the “official policy making officials.” Id. However, no facts are asserted that 22 would support such a conclusion. For example, Plaintiff does not claim that either of the Lawyer 23 Defendants are elected or appointed county officials. As discussed in the F&Rs, “the fact that the private 24 entities received state funding and were subject to state regulation d[oes] not, without more, convert 25 thier [sic] conduct into state action.” West v. Atkins, 487 U.S. 42, 52 n.10 (1988). As discussed above, 26 15 1 Plaintiff’s FAC highlights additional provisions in the contract between the County and MDA. FAC ¶ 2 13. Plaintiff does not, however, identify a contractual provision, or allege any other factual or legal basis 3 for her claim that the County somehow delegated policy-making authority to MDA or the Lawyer 4 Defendants. Therefore, this Court GRANTS WITHOUT LEAVE TO AMEND the County’s Motion to 5 6 Dismiss Plaintiff’s Sixth Cause of Action, as to the County. Plaintiff has had sufficient opportunity to 7 allege facts that would support a viable Monell claim; further opportunity would be futile. 8 C. 9 Whether Plaintiff Has a Viable Claim Under 42 U.S.C. § 1981 Plaintiff’s Seventh Cause of Action alleges that the County violated her contractual rights under 10 42 U.S.C. § 1981 because it is liable for her retaliatory termination. FAC at¶ 55. The County argues that 11 this claim should be dismissed against it because Plaintiff had no contractual relationship with the 12 County. Opposition at 17. This claim was dismissed from Plaintiff’s original Complaint on this basis. 13 See Doc. No. 43 at 20. 14 Any claim brought under Section 1981 must initially identify an impaired “contractual 15 relationship,” under which the plaintiff has rights. Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476 16 (2006). Plaintiff’s FAC asserts rights associated with her employment contract with MDA. FAC at ¶ 55 17 (“Defendants retaliatory termination of Plaintiff’s employment and discrimination in the making, 18 performing and enjoyment of all benefits, terms and conditions of the contractual relationship based on 19 race violated 42 U.S.C. § 1981.”). As discussed above, neither the FAC nor Plaintiff’s Opposition 20 provide a credible basis for the theory that the County assumed any responsibilities under the 21 employment contract. 22 Plaintiff’s Opposition also asserts that Plaintiff has rights as a third-party beneficiary of Services 23 Contract between the County and MDA. Opposition at 14 (asserting that Plaintiff had “rights under” the 24 Services Contract because it “prohibited MDA from violating any and all fair employment and labor 25 laws.”). This is alleged in the “Introduction” to the FAC on page 2. (“Plaintiff asserts she has ‘rights 26 16 1 under the contract’ because performance under the contract required the services of several attorneys 2 and the contract required MDA to obey and comply with all labor and employment laws.”) 3 Federal courts have recognized situations in which third parties were intended beneficiaries 4 under Section 1981. See Macedonia Church v. Lancaster Hotel Limited P’ship, 270 F.R.D. 107, 115 (D. 5 Conn. 2010) (church members are third party beneficiaries of church attempt to book group lodging); 6 Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 436 (4th Cir.2006) (refusal to allow daughter to 7 purchase hair color addition to gift package purchased for her mother); Olzman v. Lake Hills Swim Club, 8 Inc., 495 F.2d 1333, 1339 (2d Cir.1974) (payment of fee conferred third party beneficiary status on 9 invited guests to swim club); Jones v. Local 520, Inter. Union of Operating Engineers, 603 F.2d 664, 10 665 (7th Cir. 1979) (preferential hiring plan); see also Restatement (Second) of Contracts § 302(1) 11 (1981) (A beneficiary is “an intended beneficiary if recognition of a right to performance in the 12 beneficiary is appropriate to effectuate the intention of the parties.”). 13 In determining whether a party is a third-party beneficiary to a contract for the purposes of a 14 Section 1981 claim, courts look to the law of the forum state. See Jackson v. California, No. 1:13-CV15 01055-LJO, 2014 WL 3778263, at *10 (E.D. Cal. July 30, 2014) report and recommendation adopted, 16 No. 1:13-CV-01055-LJO-SAB, 2014 WL 4192802 (E.D. Cal. Aug. 20, 2014). Under California law, 17 standing to sue as a third-party beneficiary to a government contract depends on the intent of the parties 18 as manifested by the contract and the circumstances surrounding its formation. Zigas v. Superior Court, 19 120 Cal. App. 3d 827, 837 (1981). Where a party seeks damages, California courts look to whether the 20 contract in question suggests an intention to confer that right to the third party. Serv. Employees Inter. 21 Union, Local 99 v. Options--A Child Care & Human Servs. Agency, 200 Cal. App. 4th 869, 881 (2011). 22 Where a contract “manifests no intent that the defendants pay damages to compensate plaintiffs or other 23 members of the public for their nonperformance” plaintiffs do not have standing to bring claims as a 24 matter of law. Martinez v. Socoma Companies, Inc., 11 Cal. 3d 394, 402 (1974). 25 Here, the Service Contract’s provisions for indemnification and independent contracting indicate 26 17 1 a governmental purpose to exclude the direct rights against the County claimed here. See Ex. E, §§ 12- 2 13. Moreover, the plain language of the Contract is sufficient to show that to the extent that Plaintiff 3 may benefit from the contract, such benefit was incidental to the rights and duties afforded to the parties. 4 For example, the preamble to the contract describes that it is “in the interest of justice, efficiency and the 5 benefit of indigent defendants that County contracts with private counsel to render the usual and 6 customary legal services of a public defender when the Public Defender is unable to provide 7 representation to indigent defendants because of a conflict of interest or other reasons.” Similarly, 8 Section 2(E) of the Contract provides that MDA “shall provide a sufficient number of attorneys, 9 presently estimated to be eight (8) to ten (10).” While it might incidentally benefit Plaintiff for MDA to 10 be well-staffed, clearly the intended beneficiaries of this obligation are MDA and the County in light of 11 their stated “mutual objective to achieve a legal defense system that provides indigent defense services 12 for up to six (6) levels of conflict in a case.” Id. Thus, Plaintiff’s claim that she was an intended 13 beneficiary of MDA’s agreement to comply with labor laws is contradicted by the plain language of the 14 Services Contract. 15 Therefore, this Court GRANTS WITHOUT LEAVE TO AMEND the County’s Motion to 16 Dismiss Plaintiff’s Seventh Cause of Action, as to the County. Plaintiff has had sufficient opportunity to 17 allege facts that would support a viable Section 1981 claim; further leave to amend is not warranted. 18 VII. CONCLUSION AND ORDER 19 For the reasons discussed, above the Court GRANTS WITHOUT LEAVE TO AMEND 20 Defendant County of Merced’s Motion to Dismiss the County FROM ALL CLAIMS IN THIS 21 ACTION. 22 IT IS SO ORDERED. 23 24 Dated: /s/ Lawrence J. O’Neill November 10, 2014 UNITED STATES DISTRICT JUDGE 25 26 18
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