Pruitt v. Genentech, Inc., No. 2:2017cv00822 - Document 18 (E.D. Cal. 2017)

Court Description: ORDER granting in part and denying in part 4 Motion to Dismiss and Motion to Strike signed by District Judge John A. Mendez on 8/23/17. (Kaminski, H)

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Pruitt v. Genentech, Inc. Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY PRUITT, 12 15 2:17-cv-00822-JAM-AC Plaintiff, v. 13 14 No. GENENTECH, INC., a Delaware Corporation; and DOES 1-10, inclusive, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT GENENTECH’S MOTION TO DISMISS & MOTION TO STRIKE Defendants. 16 Plaintiff Timothy Pruitt brings a number of state and 17 18 federal claims against Genentech, Inc., (“Genentech”) and DOES 1- 19 10 (collectively, “Defendants”). 20 two of those claims, moves to strike Pruitt’s injunctive relief 21 request, and moves to strike all DOE defendants. 22 4. 23 everything else. 24 below, the Court GRANTS in part and DENIES in part Genentech’s 25 motion. 1 26 1 27 28 Genentech now moves to dismiss Mot., ECF No. Pruitt concedes striking DOE defendants, but opposes Opp’n, ECF No. 12. For reasons explained This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for July 11, 2017. In deciding this motion, the Court takes as true all well-pleaded facts in the operative complaint. 1 1 2 I. BACKGROUND Pruitt sues Defendants for allegedly violating several state 3 and federal employment laws. 4 (attached to Notice of Removal as Ex. A). 5 of action. 6 Housing Act (“FEHA”) violations, including disability 7 discrimination (claim one), race discrimination (claim two), and 8 retaliation (claim three). See id. at 9-10. 9 California whistleblower claim (claim four). See generally Compl., ECF No. 1 He brings ten causes The first three concern various Fair Employment and Pruitt also brings a See id. at 11. He 10 sues Defendants for two California Family Rights Act (“CFRA”) 11 violations—interference (claim five) and retaliation (claim six). 12 See id. at 11-12. 13 Defendants for Federal and Medical Leave Act (“FMLA”) 14 interference (claim seven) and retaliation (claim eight). 15 id. at 12-13. 16 of public policy (claim nine). 17 Pruitt sues for defamation (claim ten). 18 Pruitt also brings federal claims, suing See Pruitt sues for wrongful termination in violation See id. at 13. And, finally, See id. at 13-14. Now before the Court is Genentech’s motion to dismiss 19 Pruitt’s whistleblower and defamation claims, to strike Pruitt’s 20 injunctive relief request, and to strike references and 21 allegations concerning DOE defendants. 22 II. See generally Mot. OPINION 23 A. Whistleblower Claim 24 Pruitt’s whistleblower claim against Genentech alleges 25 Genentech retaliated against him for alerting human resources 26 (“HR”) about Genentech employees’ discriminatory conduct— 27 specifically, that his supervisors Dan Williams and Steve Graeff 28 discriminated against him. See id. ¶¶ 11, 13, 24. 2 1 Genentech moves to dismiss this claim for two reasons. 2 First, to the extent Pruitt’s claim arises from any failure to 3 promote him, Genentech contends this is time barred. 4 ECF No. 14, at 1-3. 5 from his termination, Genentech argues Pruitt fails to state a 6 claim. 7 arguing that the limitations period is 3 years, making his 8 whistleblower claim timely. 9 10 Second, to the extent Pruitt’s claim arises See Mot. at 3-4 1. See Reply, Pruitt opposes Genentech’s motion, See Opp’n at 6. Statute of Limitations A plaintiff must file his Labor Code § 1102.5 claim within 11 one year of the retaliatory act. 12 LLC, No. CV 16-5241 DMG (ASx), 2017 WL 1130165, at *4 (C.D. Cal. 13 Mar. 16, 2017) (citing Wilden v. Cty. of Yuba, No. 2:11-cv- 14 02246-JAM-GGH, 2012 WL 12526820 (E.D. Cal. Mar. 1, 2012). 15 Because Pruitt seeks civil penalties, see Compl. at 14, the one- 16 year statute of limitations applies, as this is an “action upon 17 a statute for a penalty,” Cal. Civ. Proc. Code § 340(a). 18 also Cal. Lab. Code § 1102.5(f). 19 his whistleblower claim—failure to promote and termination. 20 Compl. ¶ 56. 21 period. 22 See Delgado v. MillerCoors See Pruitt alleges two bases for See Each must fall within the one-year limitations As to the failure-to-promote basis for Pruitt’s 23 whistleblower claim, it is time barred. 24 Genentech failed to promote him in December 2015, see id. ¶¶ 20, 25 56, so he had until December 2016 to bring this claim. 26 waited until March 10, 2017 to file suit, see id. at 1, more 27 than one year after the alleged retaliatory act, rendering the 28 claim time barred, see Delgado, 2017 WL 1130165 at *4. 3 Pruitt alleges But he 1 To the extent Pruitt’s whistleblower claim arises from his 2 termination, it falls within the limitations period. 3 terminated Pruitt on July 27, 2016, see Compl. ¶¶ 27, 56, so he 4 had until July 27, 2017 to file this claim. 5 10, 2017. 6 allegations supporting this claim—conversations Pruitt had with 7 HR—are too remote because they occurred several years before 8 Pruitt filed this suit. 9 this argument, for the statute of limitations runs from the time See generally Compl. Genentech He did so on March Yet Genentech maintains the See Mot. at 4, n.1. The Court rejects 10 of the alleged retaliatory act—not from the alleged protected 11 activity. 12 termination on July 27, 2016 is the operative date. 13 See Delgado, 2017 WL 1130165 at *5. Pruitt’s In sum, to the extent Pruitt’s whistleblower claim derives 14 from any failure to promote, the Court finds it is time barred 15 and dismisses it with prejudice. 16 basis for Pruitt’s whistleblower claim, the Court finds it is 17 timely. 18 19 2. But, as to the termination Stating a California Whistleblower Claim While Genentech’s statute of limitations argument fails in 20 part, Genentech contends that this claim should still be 21 dismissed because Pruitt has not sufficiently stated a 22 whistleblower claim. 23 engaged in a protected activity, (2) [his] employer subjected 24 [him] to an adverse employment action, and (3) there is a causal 25 link between the two.” 26 05469-SI, 2017 WL 713322, at *11 (N.D. Cal. Feb. 23, 2017). 27 Genentech contends Pruitt’s claim is impermissibly vague. 28 Mot. at 3-4. To do that, Pruitt “must show (1) [he] Derby v. City of Pittsburg, No. 16-cv- See Pruitt maintains his claim is sufficiently pled. 4 1 See Opp’n at 4-6. 2 Pruitt. 3 4 As discussed below, the Court agrees with a. Protected Activity “To constitute a protected activity pursuant to section 5 1102.5, a disclosure must be ‘to a person with authority over 6 the employee or another employee who has the authority to 7 investigate, discover, or correct the violation or 8 noncompliance.’” 9 MDD, 2017 WL 1354787, at *9 (S.D. Cal. Apr. 12, 2017). Smiley v. Hologic, Inc., No. 16-cv-158-WQHHR 10 representatives are persons of authority. 11 Inst., No. 15-cv-05457-LHK, 2016 WL 3965167, at *4 (N.D. Cal. 12 July 24, 2016) (concluding plaintiff engaged in protected 13 activity when she told HR personnel “she was not being paid for 14 her medical assistance work, in violation of Cal. Labor Code 15 section 1194”). 16 See Evenfe v. Esalen Genentech says the basis for Pruitt’s whistleblower claim 17 is unclear, highlighting Pruitt’s failure to specify “who, when, 18 and what he allegedly ‘disclosed’ to an individual covered by 19 section 1102.5.” 20 informed HR about being discriminated against and this violated 21 federal and state law. 22 See Mot. at 4. Pruitt disagrees, arguing he See Opp’n at 5. The Court agrees with Pruitt, but for slightly different 23 reasons. He identifies several federal and state anti- 24 discrimination and medical leave laws he claims Genentech 25 violated. 26 (FMLA). 27 whistleblower claim. 28 Genentech’s human resources representative . . . that he felt See Compl. ¶¶ 33-53 (FEHA), 60-73 (CFRA), 74-86 Pruitt also delineates the factual basis for his See, e.g., Compl. ¶ 11 (“Pruitt told 5 1 Mr. Williams was holding him to a different standard based on 2 his race.”); ¶ 13 (“Pruitt expressed his concern to human 3 resources that the performance review was in retaliation for his 4 prior [race] discrimination complaint against Mr. Williams.”); 5 ¶ 24 (“In early June 2016, Mr. Pruitt complained to human 6 resources that he was being discriminated against. 7 the Senior Manager of Employee Relations that Mr. Graeff 8 subjected his work to more scrutiny and held him to a higher 9 standard than his white coworkers.”). [He] told These allegations show 10 Pruitt told HR about alleged FEHA race discrimination and 11 retaliation violations. 12 In his opposition to this motion, Pruitt attempts to add 13 additional legal bases for his whistleblower claim. 14 at 5 (citing Title VII, CFRA, and FMLA). 15 appear in his complaint, which mentions only FEHA discrimination 16 and retaliation violations; it says nothing about Pruitt 17 informing HR about Genentech’s alleged medical leave violations. 18 Pruitt cannot now, in his opposition brief, add more legal bases 19 for his whistleblower claim. 20 CV F 10-1628 LJO SMS, 2011 WL 284971, at *18 (E.D. Cal. Jan. 26, 21 2011) (“[A] complaint is judged based on its allegations, not 22 new facts or claims raised in [a Rule 12(b)(6)] opposition.”). 23 In short, the Court finds Pruitt engaged in protected See Opp’n None of these bases See Arres v. City of Fresno, No. 24 activity, but only as to the alleged FEHA race discrimination 25 and retaliation violations Pruitt reported to HR. 26 VII, CFRA, and FMLA violations Pruitt listed in his opposition 27 brief cannot comprise the legal basis for his whistleblower 28 claim. The Title See Thomsen v. Sacramento Metro. Fire Dist., No. 2:09– 6 1 CV–01108 FCD/EFB, 2009 WL 8741960, at *16 (E.D. Cal. Oct. 20, 2 2009). 3 4 b. Adverse Action Pruitt sufficiently alleges an adverse action. He says 5 Genentech terminated him, see Compl. ¶¶ 27, 56, and termination 6 is an adverse employment action, see Ferretti v. Pfizer Inc., 7 No. 11-CV-04486, 2013 WL 140088, at *10 (N.D. Cal. Jan. 10, 8 2013). 9 10 c. Causal Link That leaves the third and final element of a whistleblower 11 claim: A causal link between protected activity and adverse 12 action. 13 Pruitt cannot establish this connection because years passed 14 between his 2012 reports to HR and his 2016 termination. 15 Reply at 2 n.2. 16 before Genentech terminated him, so he has alleged a sufficient 17 causal connection. 18 See Derby, 2017 WL 713322 at *11. Genentech contends See Pruitt emphasizes he spoke to HR one month See Opp’n at 5. The law supports Pruitt’s position. “The causal link may 19 be established by an inference derived from circumstantial 20 evidence, ‘such as the employer’s knowledge that the [employee] 21 engaged in protected activities and the proximity in time 22 between the protected action and allegedly retaliatory 23 employment decision.’” 24 has done just that. 25 Pruitt, he, once again, told HR his managers were discriminating 26 against him. 27 Arkens does not alter this Court’s conclusion: There, the court 28 held that 14 months’ time between protected activity and an Smiley, 2017 WL 1354787 at *8. Pruitt One month before Genentech terminated See Compl. ¶¶ 24, 27. 7 Genentech’s reliance on 1 adverse action was too remote to establish a causal link, Arkens 2 v. Cty. of Sutter, Civ. No. 2:16-951 WBS KJN, 2016 WL 5847036, 3 at *16 (E.D. Cal. Oct. 6, 2016); here, only one month passed, 4 see Compl. ¶¶ 24, 27. 5 is too remote. 6 Genentech cites no case showing one month Equally important, Genentech was well aware of Pruitt’s 7 reports to HR. See, e.g., Compl. ¶ 12 (after receiving reports 8 from Pruitt that he was being racially discriminated against, an 9 “[HR] employee directed [Dan] Williams to amend the performance 10 counseling document”). 11 “[e]ssential to a causal link is evidence that the employer was 12 aware that the plaintiff had engaged in the protected activity.” 13 Smiley, 2017 WL 1354787 at *8. 14 the meeting when Graeff terminated Pruitt. 15 See also Ferretti, 2013 WL 140088 at *10 (“[I]t is sufficient 16 that at least one of the persons responsible for making each 17 adverse employment decision [knew] Plaintiff had engaged in 18 protected activity.”). 19 This solidifies Pruitt’s position, for Additionally, Williams attended See Compl. ¶ 27. In sum, Pruitt sufficiently alleges protected activity, 20 adverse action, and causation, putting Genentech on notice of 21 the whistleblower claim against it. 22 Genentech’s motion to dismiss Pruitt’s § 1102.5 whistleblower 23 claim, however, this claim arises only from Pruitt’s termination 24 (and not any alleged failure to promote) and only the alleged 25 FEHA violations reported to HR—race discrimination and 26 retaliation—comprise the basis for this claim. The Court therefore denies 27 B. 28 Pruitt also sues Genentech for defamation, contending Defamation Claim 8 1 Genentech defamed him by saying he stole a sandwich. 2 at 8-9, 13-14. 3 Pruitt fails to meet defamation’s heightened pleading standard. 4 See Mot. at 5-6. 5 “substance of” the allegation and has done that. 6 9. 7 See Compl. Genentech moves to dismiss this claim, arguing Pruitt asserts he need only pled the See Opp’n at To state a defamation claim, a plaintiff must show the 8 defendant made a false and unprivileged publication to a third 9 person that had a tendency to injure the plaintiff with respect 10 to his occupation, office, profession, trade, or business. 11 Williams v. Salvation Army, No. 2:14–cv–06138–ODW(PJWx), 2014 WL 12 6879936, at *2 (C.D. Cal. Dec. 4, 2014) (citing Cal. Civ. Code 13 §§ 44-47). 14 must be specifically identified, and the plaintiff must plead 15 the substance of the statement.’” 16 Elevator Corp., No. C-05-3539 EMC, 2006 WL 680553, at *5 (N.D. 17 Cal. Mar. 14, 2006) (citation omitted). 18 complaint must reference “the speakers of the defamatory 19 communications, the recipients, the timing, or the context in 20 which they were made, sufficient to provide [the defendant] 21 notice of the issues” to prepare a defense. 22 680553 at *6 (citing Okun v. Superior Court (Maple Properties), 23 29 Cal. 3d 442 (1981)). 24 See “Under California law, the ‘defamatory statement Jones v. Thyssenkrupp This means the See Jones, 2006 WL Pruitt’s complaint lacks the requisite specificity. For 25 starters, the factual basis for his defamation claim is unclear. 26 Pruitt cites two contexts in which Genentech allegedly made the 27 defamatory comment: During a meeting with Graeff and Williams, 28 see Compl. ¶ 26, and at some unknown time by some unidentified 9 1 employee to some other unidentified employees some time before 2 Genentech terminated him, see id. ¶ 29. 3 confusion as to which context Pruitt’s defamation claim is 4 grounded upon, his complaint contains other fatal defects. 5 instance, Pruitt makes conclusory allegations. 6 (“Defendant made this statement maliciously, out of hatred or 7 ill will toward Plaintiff . . . . This statement was a 8 substantial factor in causing harm to Plaintiff’s trade, 9 profession, occupation, and/or reputation.”). Notwithstanding the For See id. ¶¶ 94-95 Conclusory 10 allegations do not satisfy defamation’s heightened pleading 11 standard. 12 13 14 15 16 17 18 19 20 See Williams, 2014 WL 6879936 at *2. Moreover, Pruitt’s use of the phrase “on information and belief” raises a red flag: Where, as here, some of the allegations are qualified with the phrase and others are not, a reasonable inference arises that it is intended as caveat, to provide additional protection should plaintiff be unable to prove any of the factual allegations. It thus creates a further inference that plaintiff likely lacks knowledge of underlying facts to support the assertion, and is instead engaging in speculation to an undue degree. 21 Delphix v. Actifo, Inc., No. C 13–4613 RS, 2014 WL 4628490, at 22 *2 (N.D. Cal. Mar. 19, 2014) (patent infringement action). 23 Pruitt uses this phrase for his defamation claim, see Compl. 24 ¶ 29, but not for any other claim. 25 “[o]n information and belief . . . Defendant told several of its 26 employees that it terminated Mr. Pruitt for stealing,” raises 27 questions: Who made the statement? Who heard it? 28 Indeed, the key allegation, When? Additionally a conditional privilege presumptively applies 10 1 to this claim. 2 common interest in preserving morale and job efficiency, an 3 employer’s statements regarding the reasons for termination of 4 another employee generally are privileged.” 5 6879936 at *3 (citation omitted). 6 privilege, a plaintiff must specifically allege malice,” meaning 7 he “must allege detailed facts showing defendant’s ill will 8 towards him.” 9 so. “Because an employer and its employees have a Williams, 2014 WL “To defeat this conditional Jones, 2006 WL 680553 at *6. Pruitt has not done Instead, he merely alleges “Defendant told several of its 10 employees that it terminated Mr. Pruitt for stealing,” Compl. 11 ¶ 29, and adds the conclusory allegation that “Defendant made 12 this statement maliciously, out of hatred or ill will toward 13 [him],” Id. ¶ 94. 14 This does not suffice. In short, Pruitt fails to provide Genentech adequate 15 “notice of the issues” to prepare a defense, and so fails to 16 state a claim. 17 why defamation, a “historically unfavored” action, has a “more 18 stringent” pleading standard. 19 is not convinced there are no set of facts upon which Pruitt 20 could state a defamation claim and, so, dismisses it with leave 21 to amend. 22 2001). Jones, 2006 WL 680553 at *6. See id. This illustrates Nevertheless, the Court See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 23 C. Injunctive Relief 24 Pruitt seeks injunctive relief, Compl. at 14, but Genentech 25 asks this Court to strike the request, contending that Pruitt 26 lacks Article III standing to make it, see Mot. at 6. 27 believes a recent California Supreme Court case gives him the 28 requisite standing. Pruitt See Opp’n at 10 (citing Harris v. City of 11 1 Santa Monica, 56 Cal. 4th 203 (2013)). 2 bring a claim for relief, a plaintiff must show that [he] has 3 (1) suffered an injury that (2) was caused by the defendant and 4 (3) is likely to be redressed by the relief [he] seeks.” 5 v. Nevada Dep’t of Human Res., 471 F.3d 1033, 1036-37 (9th Cir. 6 2006). 7 redressability prong. 8 9 “To have standing to Walsh The parties dispute whether Pruitt has met the The Court concludes Pruitt has not. The Ninth Circuit makes clear a former employee lacks standing to seek injunctive 10 relief when the complaint says nothing about the plaintiff’s 11 intent to return to work. 12 Gate Gourmet, Inc., 114 F. Supp. 3d 781, 818 (N.D. Cal. 2015) 13 (“[A] former employee lacks standing to seek injunctive relief 14 on an employment discrimination claim—at least where he or she 15 is not seeking reinstatement—because the former employee ‘would 16 not likely benefit’ from any such relief.”) (citing Walsh, 471 17 F.3d at 1037). 18 See id. at 1037. See also Achal v. Pruitt, however, argues that this Court should not read 19 Walsh so broadly. 20 case here, arguing that Walsh is limited to ADA claims, whereas 21 this case concerns FEHA claims, and so is more analogous to 22 Harris. 23 He attempts to distinguish Walsh from the See Opp’n at 10. Pruitt is mistaken. Harris simply says “a court may grant 24 injunctive relief where appropriate to stop discriminatory 25 practices.” 26 that FEHA allows a court to order injunctive relief does not 27 alter the standing analysis.” 28 This makes sense, for the Ninth Circuit in Walsh “held that a Id. at 234 (citation omitted). But “[t]he fact Achal, 114 F. Supp. 3d at 818. 12 1 former employee lacks standing to seek injunctive relief on an 2 employment discrimination claim, see id. (emphasis added), which 3 encompasses both ADA and FEHA claims, as both are employment 4 discrimination claims. 5 Article III standing, Pruitt’s distinction between ADA and FEHA 6 claims is a distinction without a difference. 7 therefore strikes Pruitt’s injunctive relief request. Stated another way, for purposes of 8 D. 9 Pruitt also sues DOE defendants. The Court DOE Defendants See Compl. at 1. 10 Genentech asks this Court to strike “references and allegations 11 related to Doe defendants.” 12 oppose. 13 defendants, dismissing them without prejudice. See Opp’n at 11. See Mot. at 6. 14 Pruitt does not The Court therefore strikes these III. ORDER 15 For the reasons set forth above, the Court GRANTS in part 16 and DENIES in part Genentech’s motion to dismiss and motion to 17 strike. 18 If Pruitt elects to amend his complaint, he shall file his 19 first amended complaint within twenty days from the date of this 20 Order. 21 amended complaint. 22 twenty days thereafter. 23 No new causes of action may be included in the first Genentech’s responsive pleading is due within But if Pruitt elects not to amend his complaint, Genentech 24 shall file its answer to the complaint within thirty days from 25 the date of this Order, and the case will proceed on the 26 following remaining claims: 27 1. FEHA disability discrimination (claim one); 28 2. FEHA race discrimination (claim two); 13 1 3. FEHA retaliation (claim three); 2 4. § 1102.5 whistleblower claim, limited to Pruitt’s 3 termination after complaining to HR about Genentech’s alleged 4 FEHA race discrimination and retaliation violations (claim four); 5 5. CFRA interference (claim five); 6 6. CFRA retaliation (claim six); 7 7. FMLA interference (claim seven); 8 8. FMLA retaliation (claim eight); and 9 9. Wrongful termination in violation of public policy 10 (claim nine). 11 12 IT IS SO ORDERED. Dated: August 23, 2017 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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