Duane v. IXL Learning, Inc. et al, No. 3:2017cv00078 - Document 47 (N.D. Cal. 2017)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS by Judge William Alsup [granting in part and denying in part 37 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 5/12/2017)
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Duane v. IXL Learning, Inc. et al Doc. 47 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 ADRIAN SCOTT DUANE, 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 Plaintiff, No. C 17-00078 WHA v. IXL LEARNING, INC., and PAUL MISHKIN, Defendants. ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS / INTRODUCTION In this wrongful termination action, defendants move to dismiss all claims against them. For the reasons discussed below, the motion is GRANTED IN PART AND DENIED IN PART. STATEMENT The following facts are taken from the complaint. Plaintiff Adrian Duane worked for 21 defendant IXL Learning, Inc., from June 2013 to January 2015. In January 2014, Duane sought 22 and obtained permission from his supervisor to work outside the office and with “irregular 23 hours.” With this flexible work schedule, Duane often worked from 7 a.m. to 3:30 p.m. or 24 11 a.m. to 7:30 p.m. (Amd. Compl. ¶¶ 8–12, 16, 52–59). 25 In July 2014, Duane informed his supervisor that he would periodically miss work for 26 weekly pre-operative appointments for his phalloplasty surgery and that he would be out for six 27 to eight weeks following the day of his surgery. Duane’s supervisor informed Duane that he 28 could work remotely on the days that he had pre-operative appointments. Duane took a leave of Dockets.Justia.com 1 absence from his IXL employment from October 2014 to December 2014 to undergo and 2 recover from the surgery (id. ¶¶ 17–18, 25, 38). 3 In mid-December 2014, Duane e-mailed his supervisor to request to work half-days in 4 the office and half-days at home upon his return to work due to the effects of a “surgical 5 complication” (id. ¶ 27). Duane’s supervisor responded that he would “prefer that [Duane] be 6 in the office” when working because he is “more productive” there (id. ¶ 28). Upon Duane’s 7 return to work, his supervisor also informed him that he must be in the office at fixed hours 8 every day and report to his supervisor twice per week via e-mail and another two times per 9 week in person. Duane alleges that these accommodations were “very strict by the standards of other employees at IXL, nearly all of whom work flexible hours and from home, with few 11 For the Northern District of California United States District Court 10 checkups or restrictions” (id. ¶¶ 27, 32, 37–39). Duane then posted an anonymous review of IXL on the Glassdoor website. This review 12 13 14 15 16 stated: If you’re not family-oriented white or Asian straight or mainstream gay person with 1.7 kids who really likes softball — then you’ll likely find yourself on the outside. Treatment in the workplace, in terms of who gets flexible hours, interesting projects, praise, promotions, and a big yearly raise, is different and seems to run right along these characteristics. 17 (id. ¶ 40). Shortly thereafter, Duane told his supervisor that he felt discriminated against by IXL 18 after he returned from surgery. The supervisor subsequently informed Mishkin of Duane’s 19 complaints (id. ¶¶ 43, 47). 20 Mishkin met with Duane to discuss Duane’s concerns that IXL discriminated against 21 him on the “basis of his disability” (id. ¶ 52). Duane informed Mishkin that he felt discriminated 22 against because IXL refused his request for accommodations following his surgery. Mishkin 23 then handed Duane a printout of Duane’s Glassdoor review and demanded evidence proving 24 the statements in the review. Duane responded, “I’m queer and I stick out” (id. ¶¶ 48, 53–55). 25 After leaving the meeting with Mishkin, Duane realized that “Mishkin had intended to terminate 26 him before their meeting had started” because the items in his desk were already removed and 27 Human Resources had already prepared discharge papers for him (id. ¶ 59). According to IXL, 28 2 1 Mishkin terminated Duane because his anonymous Glassdoor review demonstrated poor 2 judgment and poor ethics (id. ¶ 57). 3 In July 2015, the National Labor Relations Board filed a complaint on behalf of Duane 4 against IXL, based on the charges filed by Duane with the NLRB, alleging that IXL violated 5 Section 8(a) (Dkt. No. 25-2 at 2). Section 8(a) provides that an employer cannot “restrain 6 or coerce employees” from exercising their rights under NLRA Section 7 “to engage in . . . 7 concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 8 In April 2016, the ALJ held that Duane’s actions did not amount to protected concerted activity 9 under the NLRA. Duane’s review on Glassdoor was instead found to be “individual gripes posted to hurt [IXL’s] ability to recruit prospective employees” that constituted a “reckless and 11 For the Northern District of California United States District Court 10 impetuous reaction to [IXL’s] hesitation to immediately accepting Duane’s regular fifty percent 12 remote work privilege” (Dkt. No. 25-3 at 31). The NLRB adopted the ALJ’s order in June 2016, 13 dismissing Duane’s complaint (Dkt. No. 25-4 at 2).* 14 In January 2017, Duane filed this lawsuit asserting two claims: (1) that IXL violated the 15 Family Medical Leave Act by terminating Duane’s employment because he took FMLA leave 16 for his surgery and (2) that Mishkin and IXL wrongfully terminated his employment in violation 17 of public policy expressed in California Code Section 232.5(a) (Dkt. No. 1). 18 In March 2017, Duane filed an amended complaint to add references to the FMLA, the 19 ADA, FEHA, Title VII, and the CFRA in his wrongful termination in violation of public policy 20 claim (Dkt. No. 30). Defendants now jointly move to dismiss all claims against them (Dkt. 21 No. 37). This order follows full briefing and oral argument. ANALYSIS 22 23 1. RETALIATION CLAIM UNDER THE FAMILY AND MEDICAL LEAVE ACT. 24 Duane’s first claim alleges that IXL violated the FMLA by considering his FMLA leave 25 as a negative factor in terminating his employment. The FMLA creates two interrelated 26 substantive rights: (1) the employee has a right to use a certain amount of leave for protected 27 28 * Defendants’ request for judicial notice of the existence of the NLRB decision is unopposed and GRANTED. 3 1 reasons and (2) the employee has a right to return to his or her job or an equivalent job after 2 using protected leave. Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1122 (9th Cir. 2001) 3 (citing 29 U.S.C. 2612(a), 2614(a)). The FMLA does not “entitle any restored employee to . . . 4 any right, benefit, or position of employment other than any right, benefit, or position to which 5 the employee would have been entitled had the employee not taken the leave.” 29 U.S.C. 6 2614(a)(3)(B). 7 Complaints alleging that adverse employment actions were taken against employees 8 because they used FMLA leave are construed as claims of interference with rights guaranteed by 9 the statute. Bachelder, 259 F.3d at 1124. To establish a claim for FMLA interference, Duane must allege that (1) he took FMLA-protected leave, (2) he suffered adverse employment actions, 11 For the Northern District of California United States District Court 10 and (3) the adverse actions were causally related to his FMLA leave. See id. at 1125. Here, 12 there is no dispute that Duane took leave protected under the FMLA and that he suffered an 13 adverse employment action. The parties, however, disagree whether Duane is able to plausibly 14 allege that his termination was causally related to his FMLA leave. 15 IXL argues that this instant action is similar to Simms v. DNC Parks & Resorts at 16 Tenaya, Inc., No. 1:13-CV-2075 SMS, 2015 WL 1956441, at *4 (E.D. Cal. Apr. 29, 2015) 17 (Judge Sandra Snyder), in which the plaintiff’s allegation that “two of his co-workers with 18 similar positions complained that they were not able to perform office work and had to work 19 harder because of accommodations being made for [the plaintiff]” was insufficient to plausibly 20 allege an FMLA interference claim. 21 In contrast, here, Duane has alleged facts sufficient to state a claim for interference of the 22 FMLA given the proximity between his return from leave and his termination. A close temporal 23 proximity between a return from FMLA-protected leave and termination supports an inference of 24 unlawful interference. See Xin Liu v. Amway Corp., 347 F.3d 1125, 1137 (9th Cir. 2003). In his 25 complaint, Duane alleges that he was terminated only eight days after his return from FMLA 26 leave (Amd. Compl. ¶¶ 68–71). At the pleading stage, the temporal proximity between Duane’s 27 return from FMLA leave and termination is enough to support a plausible inference that IXL 28 violated the FMLA. 4 1 IXL also argues that Duane’s FMLA claim should be dismissed because it contradicts the 2 decision by the ALJ which stated that Duane was “terminated because he made angry, impulsive, 3 and false claim[s] of discrimination against [IXL] in his Glassdoor review” (Dkt. No. 25-3 at 4 37). On a Rule 12(b)(6) motion, a district court may take judicial notice of another court’s 5 opinion, “for the existence of the opinion, which is not subject to reasonable dispute over its 6 authenticity,” but “not for the truth of the facts recited therein.” Lee v. City of Los Angeles, 250 7 F.3d 668, 690 (9th Cir. 2001) (overruled on other grounds); see also Smith v. Ortiz, 234 F. App’x 8 698, 698 (9th Cir. 2007) (finding that the district court did not abuse its discretion in refusing to 9 take judicial notice of a finding of the Superior Court). This order takes judicial notice of the existence of the ALJ’s determination, but refuses to take judicial notice of the ALJ’s finding that 11 For the Northern District of California United States District Court 10 Duane’s termination was motivated only by his Glassdoor review. Duane’s termination could 12 have been motivated by multiple reasons. The motion to dismiss in regards to Duane’s FMLA 13 claim is therefore DENIED. 14 2. WRONGFUL TERMINATION CLAIM AGAINST IXL. 15 Duane also claims that IXL wrongfully terminated him in violation of public policy. 16 Under California law, employment is at-will unless the parties contract otherwise. Cal. Lab. 17 Code § 2922. California courts, however, have held that an employer will be liable if it 18 terminates an employee in violation of public policy. See Xin Liu, 347 F.3d at 1137 (citing 19 Stevenson v. Superior Court, 16 Cal. 4th 880 (1997)). Our court of appeals has held that an 20 employment discharge in “violation of the FMLA . . . must constitute a violation of public 21 policy.” Id. at 1138. Given that Duane has plausibly alleged a claim for the violation of the 22 FMLA, his claim for wrongful termination in violation of public policy against IXL is also 23 sufficiently pled and survives dismissal. The motion to dismiss Duane’s second claim against 24 IXL and Mishkin is therefore DENIED. 25 Because Duane has plausibly alleged a claim for wrongful termination in violation of 26 public policy in reference to the FMLA, this order need not address Duane’s reference to the 27 public policies expressed in California Labor Code Section 232.5(a), the ADA, the CFRA, 28 FEHA, and Title VII. Nonetheless, this order addresses IXL’s argument that Sections 7 and 8 of 5 1 the NLRA preempt California Labor Code Section 232.5(a) — as this was a contentious point in 2 the parties’ briefing and at oral argument. 3 “When an activity is arguably subject to [Section] 7 or [Section] 8 of the [NLRA], the 4 States as well as the federal courts must defer to the exclusive competence of the National Labor 5 Relations Board.” San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959). 6 Section 8 states that an employer may not interfere with, restrain, or coerce employees in the 7 exercise of the rights guaranteed in Section 7 to engage in concerted activities for the purpose 8 of collective bargaining or other mutual aid or protection. California Labor Code Section 232.5, 9 however, states that no employer may “require, as a condition of employment, that an employee 11 For the Northern District of California United States District Court 10 refrain from disclosing information about the employer’s working conditions.” IXL cites Luke v. Collotype Labels USA, Inc., 159 Cal. App. 4th 1463, 1474 (2008), 12 in support of its proposition that California Labor Code Section 232.5 is preempted by the 13 NLRA statutes. In Luke, the plaintiff advised his co-workers to keep records of problems they 14 encountered and to express these concerns to management. Id. at 1471. The plaintiff claimed 15 he was then wrongfully terminated in violation of public policy set forth in California Labor 16 Code Section 232.5 for providing “support and ideas to other employees who complained about 17 working conditions.” Ibid. Luke held that the plaintiff’s alleged conduct constituted “concerted 18 activity” protected under Sections 7 and 8 of the NLRA and his claim for wrongful termination 19 under California Labor Code Section 232.5 was therefore preempted by the NLRA and within 20 the exclusive jurisdiction of the NLRB. Ibid. 21 In contrast, here, Duane’s alleged conduct does not constitute concerted activity under 22 Sections 7 and 8 of the NLRA. Duane merely alleges that he was terminated because 23 he informed his supervisor that IXL’s refusal to grant him work accommodations was 24 discriminatory. Duane does not allege that he was terminated because he encouraged his 25 co-workers to complain about discrimination at IXL or that he complained about the alleged 26 discriminatory work environment on behalf of any other employees. Accordingly, Duane’s 27 claim based on California Labor Code Section 232.5 is not preempted by Sections 7 and 8 of 28 the NLRA. 6 1 3. WRONGFUL TERMINATION CLAIM AGAINST MISHKIN. 2 Duane also claims Mishkin is individually liable for Duane’s wrongful termination. 3 But a claim for wrongful termination in violation of public policy can only be brought against an 4 employer. Miklosy v. Regents of the Univ. of Cal., 44 Cal. 4th 876, 900 (2008). An individual 5 who is not an employer cannot commit the tort of wrongful discharge in violation of public 6 policy — “rather, he can only be the agent by which the employer commits that tort.” Ibid. 7 Duane states in his opposition brief that Mishkin is “the founder and CEO of IXL; 8 clearly an agent of IXL; and . . . responsible for the decision to terminate [Duane]’s 9 employment” (Dkt. No. 39 at 16). Because Mishkin is only an agent of IXL, and not Duane’s employer, Mishkin cannot be held personally liable for Duane’s wrongful termination in 11 For the Northern District of California United States District Court 10 violation of public policy. See Kim v. Konad USA Distribution, Inc., 226 Cal. App. 4th 1336, 12 1351–52 (2014) (finding that the plaintiff could not hold the defendant — a chief executive 13 officer and owner of the company that employed the plaintiff — individually liable for the 14 plaintiff’s wrongful termination because the defendant was not an employer). The motion to 15 dismiss Duane’s claim against Mishkin is therefore GRANTED. 16 CONCLUSION 17 For the foregoing reasons, defendants’ motion to dismiss is GRANTED IN PART AND 18 DENIED IN PART. 19 20 IT IS SO ORDERED. 21 22 Dated: May 12, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 7
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