Hall v. Apartment Investment and Management Company, No. 4:2008cv03447 - Document 182 (N.D. Cal. 2011)

Court Description: ORDER GRANTING PLAINTIFFS 167 MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF AND DECLARATIONS, GRANTING IN PART AND DENYING IN PART AIMCO DEFENDANTS 131 MOTION FOR SUMMARY JUDGMENT, AND GRANTING FORTNEY & WEYGANDT, INC.S 130 MOTION FOR SUMMARY JUDGMENT. Case Management Statement due by 3/11/2011. Further Case Management Conference set for 3/15/2011 02:00 PM. Signed by Judge Claudia Wilken on 2/18/2011. (ndr, COURT STAFF) (Filed on 2/18/2011)
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Hall v. Apartment Investment and Management Company Doc. 182 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 No. C 08-03447 CW 4 GREGORY HALL, et al., 5 Plaintiffs, 6 7 8 v. APARTMENT INVESTMENT AND MANAGEMENT COMPANY, et al., Defendants. 9 / United States District Court For the Northern District of California 10 11 12 13 14 ORDER GRANTING PLAINTIFFS’ MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF AND DECLARATIONS, GRANTING IN PART AND DENYING IN PART AIMCO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, AND GRANTING FORTNEY & WEYGANDT, INC.’S MOTION FOR SUMMARY JUDGMENT (Docket Nos. 130, 131 and 167) 15 16 Defendants Apartment Investment and Management Company; AIMCO 17 Capital, Inc.; All Hallows Preservation, L.P.; Bayview 18 Preservation, L.P.; La Salle Preservation, L.P.; and Shoreview 19 Preservation, L.P. (collectively, AIMCO) and Defendant Fortney & 20 Weygandt, Inc. (F&W) move for summary judgment on the claims 21 brought against them. 22 Chilton, Douglas Givens, Quincy Mouton and Richard Rankin 23 (collectively, Plaintiffs) currently assert claims against AIMCO 24 and F&W; they oppose the motions.1 Only Plaintiffs Gregory Hall, Charles The motions were heard on 25 26 27 28 1 At the time AIMCO’s and F&W’s motions were filed, Plaintiffs Fausto Aguilar, Gonzalo Aguilar, and Terry Mackey also had claims against AIMCO and F&W. Thereafter, these claims were dismissed pursuant to stipulation. Further, Plaintiffs’ papers offer alternate spellings of Richard Rankin’s last name. Compare 4th Am. Dockets.Justia.com 1 January 20, 2011. 2 supplemental brief and declarations in light of oral argument. 3 Having considered oral argument and the papers submitted by the 4 parties,2 the Court GRANTS Plaintiffs’ motion for leave to file a 5 supplemental brief and declarations, GRANTS in part AIMCO’s motion 6 for summary judgment and DENIES it in part and GRANTS F&W’s motion 7 for summary judgment. Thereafter, Plaintiffs moved for leave to file a 8 9 BACKGROUND This action arises from the alleged unlawful labor and United States District Court For the Northern District of California 10 employment practices of entities involved in the rehabilitation of 11 four apartment communities in the Bayview-Hunter’s Point 12 neighborhood of San Francisco, California. 13 Hunter’s Point Project spanned from 2007 through late 2008. 14 Hallows Preservation, L.P.; Bayview Preservation, L.P.; La Salle 15 Preservation, L.P.; and Shoreview Preservation, L.P. owned the 16 apartment communities involved in the Project. 17 Investment and Management Company was involved in a “joint venture” 18 with these limited partnerships and provided staff that represented 19 them on the Project. 20 Maloy Decl. ¶¶ 4-5 and 8. 21 contractor for the project. 22 23 Construction on the All Apartment Aguilar Decl., Ex. 206, Maloy Depo. 17:5-7; AIMCO retained F&W to be the general Hiring and employment at the Project were governed, in part, by “Borrower-City Agreements” between AIMCO and the City and County 24 25 26 Compl. (4AC) ¶ 62 with Rankins Supp. Decl. in Light of Oral Argument. The Court uses the spelling in Plaintiffs’ 4AC. 2 27 AIMCO and F&W cite unpublished decisions by California state courts, in violation of Civil L.R. 3-4(e). 28 2 of San Francisco. 2 agreements arose from a voluntary settlement of a lawsuit against 3 AIMCO, in which the City alleged that AIMCO did not timely respond 4 to notices of violations at the four apartment communities, 5 violated state and local building codes, “maintained the Properties 6 as a public nuisance” and engaged in unfair business practices. 7 Aguilar Decl., Ex. 209, at AIMCO000001. 8 AIMCO promised, among other things, not to discriminate based on 9 various protected statuses, to pay a minimum of $10.77 per hour to 10 United States District Court For the Northern District of California 1 all employees performing work on the Project, and to offer health 11 benefits. 12 require F&W to 13 14 15 See generally Johnson Decl., Ex. 7. Johnson Decl., Ex. 7, §§ 3-6. These Under these agreements, AIMCO also agreed to participate in, and include in subcontracts a provision that all of its subcontractors participate in, the City’s First Source hiring and training program with a goal that 50% of the individuals hired be residents of San Francisco, and with a first preference for residents of the Bayview Hunters Point Project Area . . . . 16 Id. § 8(a). The First Source Hiring Agreement, which F&W signed, 17 specifically provided, 18 19 20 21 22 In the event that Contractor Subcontracts a portion of the work under this Contract, Contractor shall determine how many, if any, of the Entry Level Positions are to be employed by its Subcontractor(s), provided, however, that Contractor shall retain the primary responsibility for meeting the requirements imposed under this Agreement. Contractor shall ensure that this Agreement is incorporated into and made applicable to such Subcontract. 23 Id., Annex A. To ensure that it complied with its hiring 24 obligations to the City, AIMCO retained Laura Luster, who, in turn, 25 subcontracted with John Scott. Luster testified that AIMCO hired 26 her to engage in “EEO monitoring,” which she explained entailed 27 28 3 1 tracking and reporting “the number of San Francisco residents and 2 complex residents that were hired . . . as part of the construction 3 skill trades labor force for” the Project. 4 Luster Depo. 45:2-7. 5 with AIMCO. 6 day services to AIMCO for the project,” which included “identifying 7 local contractors who could come in and continue to do work on the 8 AIMCO project” and assisting existing contractors “to identify 9 local workforce to participate on the project.” United States District Court For the Northern District of California 10 Aguilar Decl., Ex. 234, As part of her duties, Luster filed reports Scott testified that his role was to “provide day-to- Aguilar Decl., Ex. 217, Scott Depo. 34:14-24. 11 F&W did not perform any of the construction on the Project. 12 Instead, it engaged several subcontractors, including IMR 13 Contractor Corporation. 14 and siding work. 15 Bay Building Services, Inc. (BBS). 16 and F&W do not dispute, that IMR and BBS effectively operated as a 17 single entity. 18 this to be true and collectively refers to both entities as IMR. 19 Plaintiffs were employed by IMR. 20 F&W contracted with IMR to perform roofing IMR, in turn, subcontracted the siding work to Plaintiffs maintain, and AIMCO For the purposes of this motion, the Court assumes IMR’s employment practices attracted scrutiny by community 21 activists, local residents and IMR employees from the “start of the 22 job.” 23 particular, IMR was accused of preferring Latinos to African 24 American workers. 25 comprised entirely of either Latino or African American workers. 26 AIMCO and F&W were aware of this practice and “encouraged” IMR to 27 “integrate their work crews,” but IMR “resisted these efforts.” 28 Aguilar Decl., Ex. 206, Maloy Depo. 101:23-102:8. In Further, IMR maintained segregated work crews, 4 Maloy Decl. ¶ 19; Fortney Decl. ¶ 23. 2 AIMCO’s Senior Directors of Construction, Scott suggested that F&W 3 “needs to accept the responsibility to have [IMR] make this simple 4 change in its workforce” and that AIMCO needed to “convince Fortney 5 to get the message across to IMR.” 6 Depo. Ex. 23. 7 principal, claimed that African American workers were less 8 productive than Latino workers. 9 1, 2007 email from Hornstein stating that “our experience with 10 United States District Court For the Northern District of California 1 resident carpenters that we have kept on to do siding, is that 11 those resident crews are operating at 25% of the productivity of 12 our core siders”). 13 In a July 26, 2007 email to Aguilar Decl., Ex. 216, Scott AIMCO was also aware that Marshall Hornstein, BBS’s See Aguilar Decl., Ex. 255 (Aug. On or about August 14, 2007, IMR laid off Hall, Chilton and 14 Givens. 15 saw him, after his layoff, speaking with Rick Ingram, one of 16 AIMCO’s Senior Directors of Construction, they invited him back to 17 work. 18 stating, 19 20 21 22 23 24 Hall suggested at his deposition that, after IMR employees On August 15, Hornstein wrote Ingram about the layoff, These men were laid off as of Tues night 8/14/07. Their checks and layoff notices along with the attached letters were taken to the Union Hall last evening for their pickup this morning the 15th. They showed up onsite and Fortney directed my men to put them to work on the Garlington windows. I beleive [sic] you may have been involved in this direction. Aguilar Decl., Ex. 229. In or about late August, 2007, Hall and Chilton attended a 25 meeting at AIMCO’s offices that was convened to discuss Hornstein’s 26 concerns and IMR’s employment practices. 27 Maloy, and Ingram and representatives of F&W and IMR were in 28 5 The meeting was led by 1 attendance. 2 comments, Maloy stated that the matter would be resolved through 3 comparing the productivity of a work crew comprised of Latinos with 4 one comprised of African Americans. 5 confirmed that Maloy proposed this comparison. 6 he believed that “what Don was asking for was that if, in fact, the 7 . . . remarks that Marshall had made were not valid, that he 8 expected to see more resident workers.” 9 Ingram Depo. 230:18-21. Hall testified that, in response to Hornstein’s At his deposition, Ingram Ingram stated that Aguilar Decl., Ex. 214, The comparison, which Plaintiffs term a United States District Court For the Northern District of California 10 “siding contest,” took place in or about late August, 2007.3 11 Hornstein testified that, although the work of an African American 12 work crew was observed, there was no direct comparison between the 13 work of that crew and a crew consisting of Latinos. 14 Ex. 205, Hornstein Depo. 203:23-204:11. Aguilar Decl., 15 16 3 27 Plaintiffs concede that there is no direct evidence as to when the contest took place. Plaintiffs and AIMCO and F&W, however, agree that the contest took place at around the time of the meeting purportedly run by Maloy. See, e.g., Pls.’ Supp. Br. 2 (citing portions of depositions discussing the date of the meeting); AIMCO & F&W’s Response to Pls.’ Supp Br. 3 n.5 (citing the same). Chilton testified that the meeting took place in late August, 2007. Johnson Decl., Ex. 70, Chilton Depo. 18:10-11. Givens suggested that the meeting occurred in August, 2007. Id., Ex. 71, Givens Depo. 11:5-7. And Hall, who had initially stated that the meeting occurred a month before he was laid off, answered finally that the meeting took place two months before November 9, 2007. Id., Ex. 33, Hall Depo. 65:22. Plaintiffs insist that the “late August date is not possible given the certified payroll produced by the Defendants.” Pls.’ Supp. Reply 6 n.2. This contradicts their representation at the hearing in which they unequivocally stated that the contest took place at “the end of August.” Tr. of Jan. 20, 2011 Hrg. 54:25. Further, this argument is not consistent with Plaintiffs’ challenge to the accuracy of the payroll records in this action. Finally, Plaintiffs maintain that IMR recalled Hall from a layoff in mid-August, 2007, which suggests that he could have participated in such a contest at the end of that month. 28 6 17 18 19 20 21 22 23 24 25 26 1 Thereafter, IMR informed AIMCO that it would not hire “local 2 residents” unless AIMCO paid a surcharge; IMR apparently believed 3 that the surcharge was necessary “because [it was] losing money 4 with the productivity [it] had.” 5 Depo. 148:15-18. 6 payment of the surcharge “to use local residents on site.” 7 Decl., Ex. 204, Fortney Depo. Ex. 35. 8 surcharge, which Maloy characterized to be “additional compensation 9 because of the perceived lack of production by the local labor Aguilar Decl., Ex. 206, Maloy In November, 2007, F&W lobbied AIMCO to approve Aguilar AIMCO approved of the United States District Court For the Northern District of California 10 force.” 11 to F&W, Maloy noted that, in the future, he expected “to see local 12 residents” performing work because this was “one of the conditions 13 of the approval.” 14 Aguilar Decl., Ex. 204, Fortney Depo. Ex. 36. In an email Id. In early 2008, AIMCO ordered the cessation of work at the 15 Project and consulted with F&W regarding IMR’s contract. 16 also met with IMR on at least two occasions to address its 17 employment practices. 18 from the Project. 19 AIMCO In or about April, 2008, IMR was terminated This lawsuit was initiated in San Francisco County Superior 20 Court on December 14, 2007, with AIMCO, F&W, IMR and BBS named as 21 Defendants. 22 the action to federal court. 23 Plaintiffs, either in part or in full, have been dismissed with 24 prejudice.4 IMR, with the consent of the other Defendants, removed Since then, the claims of several 25 4 26 27 28 Although not apparently subject stipulations, the claims of Randy Keys issue in this case. The parties’ most dismissing claims does not list him as 7 to any of the parties’ no longer appear to be at recent stipulation a Plaintiff. Further, AIMCO 1 On April 22, 2010, the Clerk entered default against BBS. 2 Default judgment has not been sought against BBS, which, according 3 to Plaintiffs, is “apparently defunct.” 4 Opp’n 15. The current motions concern only Plaintiffs’ claims against 5 AIMCO and F&W. 6 join the arguments asserted in each other’s briefs. 7 moved for summary judgment. Although they filed separate briefs, AIMCO and F&W 8 9 IMR has not LEGAL STANDARD Summary judgment is properly granted when no genuine and United States District Court For the Northern District of California 10 disputed issues of material fact remain, and when, viewing the 11 evidence most favorably to the non-moving party, the movant is 12 clearly entitled to prevail as a matter of law. 13 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 14 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 15 1987). 16 Fed. R. Civ. P. The moving party bears the burden of showing that there is no 17 material factual dispute. 18 the opposing party's evidence, if supported by affidavits or other 19 evidentiary material. 20 F.2d at 1289. 21 favor of the party against whom summary judgment is sought. 22 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 23 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 24 1551, 1558 (9th Cir. 1991). 25 Therefore, the court must regard as true Celotex, 477 U.S. at 324; Eisenberg, 815 The court must draw all reasonable inferences in Material facts which would preclude entry of summary judgment 26 27 28 does not mention his claims in its motion for summary judgment. See AIMCO Mot. for Summ. J. at 1. 8 1 are those which, under applicable substantive law, may affect the 2 outcome of the case. 3 are material. 4 (1986). 5 The substantive law will identify which facts Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 Where the moving party does not bear the burden of proof on an 6 issue at trial, the moving party may discharge its burden of 7 production by either of two methods: 8 9 United States District Court For the Northern District of California 10 The moving party may produce evidence negating an essential element of the nonmoving party’s case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. 11 Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 12 1099, 1106 (9th Cir. 2000). 13 If the moving party discharges its burden by showing an 14 absence of evidence to support an essential element of a claim or 15 defense, it is not required to produce evidence showing the absence 16 of a material fact on such issues, or to support its motion with 17 evidence negating the non-moving party’s claim. Id.; see also 18 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 885 (1990); Bhan v. 19 NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). If the 20 moving party shows an absence of evidence to support the non-moving 21 party’s case, the burden then shifts to the non-moving party to 22 produce “specific evidence, through affidavits or admissible 23 discovery material, to show that the dispute exists.” Bhan, 929 24 F.2d at 1409. 25 If the moving party discharges its burden by negating an 26 essential element of the non-moving party’s claim or defense, it 27 28 9 1 must produce affirmative evidence of such negation. 2 F.3d at 1105. 3 burden then shifts to the non-moving party to produce specific 4 evidence to show that a dispute of material fact exists. 5 Nissan, 210 If the moving party produces such evidence, the Id. If the moving party does not meet its initial burden of 6 production by either method, the non-moving party is under no 7 obligation to offer any evidence in support of its opposition. 8 This is true even though the non-moving party bears the ultimate 9 burden of persuasion at trial. United States District Court For the Northern District of California 10 Id. Id. at 1107. DISCUSSION 11 Plaintiffs do not contend that AIMCO or F&W were their direct 12 employers. 13 F&W based on two theories. 14 and F&W could be held liable on their claims for retaliation under 15 the Labor Code, discrimination under the FEHA, and wrongful 16 termination, because AIMCO and F&W were their indirect, or joint, 17 employers. 18 held liable as aiders and abettors for IMR’s FEHA violations. 19 AIMCO and F&W assert that Plaintiffs fail to create a genuine issue 20 of material fact with respect to either of these theories of 21 liability. 22 to exhaust their administrative remedies with respect to their 23 aiding and abetting claim. 24 I. 25 Instead, Plaintiffs seek liability against AIMCO and First, Plaintiffs maintain that AIMCO Second, Plaintiffs assert that AIMCO and F&W can be In addition, AIMCO and F&W argue that Plaintiffs failed Liability as Joint Employers Generally, employees may bring claims for retaliation under 26 the California Labor Code, discrimination under the FEHA, and 27 wrongful termination only against their employers. 28 10 See Cal. Lab. 1 Code § 1102.5(c); Reno v. Baird, 18 Cal. 4th 640, 644 (1998) 2 (FEHA); Milosky v. Regents of Univ. of Cal., 44 Cal. 4th 876, 900 3 (2008) (wrongful termination). 4 circumstances, an individual or entity can be held liable for such 5 claims as an indirect, or joint, employer.5 6 116 Cal. App. 4th 114, 123 (2004) (noting that the FEHA requires 7 “‘some connection with an employment relationship,’ although the 8 connection ‘need not necessarily be direct’”) (citation omitted). 9 There “‘is no magic formula for determining whether an However, under certain See Vernon v. State, United States District Court For the Northern District of California 10 organization is a joint employer.’” 11 Rively v. Vietnam Veterans of Am., 135 F. Supp. 2d 462, 470 (D. 12 Del. 2001)). 13 the standard, under the FEHA,6 used to determine whether an 14 individual or entity could be considered an employee’s joint 15 employer. 16 heavily on federal court decisions interpreting Title VII, noting 17 that the objectives and wording of that law “‘are similar to those 18 of the FEHA.’” 19 Richards v. CH2M Hill, Inc., 26 Cal. 4th 798, 812 (2001)). 20 observing that various tests have been adopted by other courts,7 Id. at 124-25 (quoting Choe- In Vernon, a California court of appeal considered To interpret the term “employer,” the state court relied Vernon, 116 Cal. App. 4th at 125 n.6 (quoting After 21 5 22 23 Vernon uses the terms “indirect” and “joint” interchangeably. For clarity, the Court hereinafter refers to these employers as “joint employers.” 6 24 25 AIMCO and F&W do not argue that Plaintiffs’ Labor Code and wrongful termination claims are subject to a different analysis. 7 27 Vernon noted that “courts have ‘wrestled with the appropriate test to be applied’ to determine whether a defendant is an employer for purposes of an action for discriminatory employment practices.” 116 Cal. App. 4th at 125 n.7. It identified four tests adopted by other courts: (1) “the traditional common law test 28 11 26 1 the Vernon court concluded that common among each of them was a 2 “totality of the circumstances” analysis of “the nature of the work 3 relationship of the parties, with emphasis upon the extent to which 4 the defendant controls the plaintiff’s performance of employment 5 duties.” 6 Utah Dep’t of Corr., 79 F.3d 1024, 1028 (10th Cir. 1996)); see also 7 Bradley v. Cal. Dep’t of Corr. & Rehab., 158 Cal. App. 4th 1612, 8 1626 (2008). 9 “myriad facts surrounding the employment relationship in question.” Vernon, 116 Cal. App. 4th at 124 (citing Lambertsen v. This analysis requires a careful inquiry into the United States District Court For the Northern District of California 10 Vernon, 116 Cal. App. 4th at 125 (citation and internal quotation 11 marks omitted). 12 In evaluating the relationship between an employee and a 13 putative joint employer, courts may take several factors into 14 account, including the 15 16 17 18 19 20 21 22 23 payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant’s discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant’s regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff’s employment. Id. at 125 (citations omitted). Although none of these factors is 24 25 26 27 28 of ‘agency;’” (2) “the ‘interference test,’ which examines the authority of the defendant to affirmatively interfere with or adversely affect the plaintiff’s access to employment opportunities;” (3) “the ‘economic realities’ test;” and (4) “the ‘hybrid test,’ which combines elements of the other tests.” Id. (citations omitted). 12 decisive, “‘the extent of the defendant’s right to control the 2 means and manner of the workers’ performance is the most 3 important.’” 4 1540, 1546 (S.D. Ala. 1995)). 5 or entity who extends a certain degree of control over the 6 plaintiff.’” 7 Supp. at 1545). 8 employer must have asserted “‘significant’” control over the 9 employee plaintiff and there must be “‘sufficient indicia of an 10 United States District Court For the Northern District of California 1 interrelationship . . . to justify the belief on the part of an 11 aggrieved employee that the [alleged co-employer] is jointly 12 responsible for the acts of the immediate employer.’” 13 Cal. App. 4th at 126 (quoting Choe-Rively, 135 F. Supp. 2d at 470) 14 (alterations by Vernon court). 15 Id. (quoting Lee v. Mobile Cnty. Comm’n, 954 F. Supp. An “‘employer must be an individual Vernon, 116 Cal. App. 4th at 126 (quoting Lee, 954 F. The individual or entity alleged to be a joint Vernon, 116 Here, it is undisputed that AIMCO and F&W did not pay 16 Plaintiffs’ wages; although not dispositive, this “is at least 17 strong evidence that an employment relationship did not exist.” 18 Vernon, 116 Cal. App. 4th at 127 (citation omitted). 19 Plaintiffs do not offer evidence that AIMCO and F&W controlled the 20 manner or means of the performance of their jobs, or that AIMCO and 21 F&W could “discipline, promote, transfer, or terminate” them. 22 The record shows that AIMCO and F&W did not set Plaintiffs’ 23 schedules, nor did they specify Plaintiffs’ daily responsibilities. 24 Further, Id. Plaintiffs instead focus on the amount of control AIMCO and 25 F&W had over IMR. 26 AIMCO’s and F&W’s authority over IMR, F&W’s subcontractor, did not 27 transform them into Plaintiffs’ joint employers. 28 Considering the totality of the circumstances, 13 Plaintiffs point 1 to AIMCO’s requirement that F&W comply with the hiring obligations 2 imposed by AIMCO’s settlement with the City and the fact that F&W, 3 in turn, obliged IMR to comply with the City’s First Source Hiring 4 Agreement. 5 that their subcontractors complied with their obligations to the 6 City. 7 subcontractor to comply with government regulations, which, on its 8 own, does not trigger joint employer liability. 9 France, 356 F.3d 942, 951 (9th Cir. 2004). However, AIMCO and F&W’s conduct was aimed at ensuring This is no different from a contractor requiring a See Moreau v. Air It is immaterial that United States District Court For the Northern District of California 10 AIMCO voluntarily undertook these obligations pursuant to its 11 settlement with the City or that it monitored compliance with them. 12 Any business choosing to operate in a jurisdiction must comply with 13 various regulations; that the business requires its subcontractors 14 also to follow these regulations does not render it a joint 15 employer. Id. 16 Plaintiffs also note that AIMCO and F&W agreed that fifteen 17 employees would be hired and that AIMCO and F&W played a role in 18 recalling Hall, Chilton and Givens from two layoffs. 19 evidence on which Plaintiffs rely with respect to the hiring of the 20 fifteen individuals does not suggest that AIMCO and F&W exercised 21 the general authority to hire and fire employees like them. 22 that AIMCO and F&W officials may have, on two occasions, directed 23 IMR to provide Hall, Chilton and Givens with work does not suggest 24 that AIMCO and F&W managed Plaintiffs’ employment. 25 incidents, under the circumstances of the Bayview-Hunter’s Point 26 work site, do not support a finding that AIMCO and F&W had 27 significant control over Plaintiffs. 28 14 However, the Also, These three 1 Plaintiffs next point to the meeting led by Maloy to discuss 2 IMR’s employment practices, and analogize their case to Graves v. 3 Lowery, 117 F.3d 723 (3d Cir. 1997). 4 Graves, the court found significant to the joint employer analysis 5 the fact that the plaintiffs were subject to the defendant county’s 6 sexual harassment complaint policy. 7 policy, the plaintiffs were to file complaints with the county, 8 which would then conduct an investigation and offer counselling 9 services. Id. at 728-29. This analogy is inapt. Id. at 728-29. In Under the These factual allegations, along with United States District Court For the Northern District of California 10 allegations that the plaintiffs “were told that they were County 11 employees, that the County investigated their allegation of sexual 12 harassment, that they were subject to termination and/or 13 reinstatement by the County and that two of them were hired by the 14 County,” suggested that the county was their co-employer. 15 729. 16 established a labor relations complaint procedure, nor does the 17 record show that AIMCO or F&W subjected Plaintiffs to other 18 personnel policies. 19 Id. at Here, Plaintiffs do not offer any evidence that AIMCO or F&W Plaintiffs also cite AIMCO’s decision to close the Project in 20 January, 2008 and the subsequent termination of IMR’s contract. 21 This conduct, however, is not probative of whether AIMCO and F&W’s 22 exercised substantial control over the manner and means of 23 Plaintiffs’ performance of their jobs. 24 suspend work on its property or to discharge a subcontractor does 25 not, absent other factors, render the owner a joint employer of the 26 subcontractor’s employees working on the property. 27 Workers Union v. Pub. Serv. Co. of Ind., Inc., 771 F.2d 1071, 1075 28 15 An owner’s ability to See Sheetmetal 1 2 (7th Cir. 1985). Finally, Plaintiffs rely on Sibley Memorial Hospital v. 3 Wilson, 488 F.2d 1338 (D.C. Cir. 1973), and Association of Mexican- 4 American Educators v. California (AMAE), 231 F.3d 572 (9th Cir. 5 2000), to argue that AIMCO and F&W interfered with their employment 6 opportunities and, therefore, could be held liable as joint 7 employers. 8 or AMAE. 9 the plaintiff, it fell within the purview of Title VII because it This case, however, is not analogous to either Sibley In Sibley, although the defendant hospital did not employ United States District Court For the Northern District of California 10 controlled access to a job market. 11 relying on Sibley, the Ninth Circuit reasoned that California was 12 susceptible to Title VII liability because it required teachers to 13 pass a basic skills examination that school districts would use to 14 make hiring decisions, which “interfered” with the plaintiffs’ 15 employment opportunities. 16 later summarized Sibley and its progeny to apply to “instances 17 where the indirect employer was the entity performing the 18 discriminatory act.” 19 924, 931 (9th Cir. 2003). 20 AIMCO and F&W performed discriminatory acts that limited 21 Plaintiffs’ access to the job market. 488 F.2d at 1341. 231 F.3d at 581-82. In AMAE, The Ninth Circuit Anderson v. Pac. Maritime Ass’n, 336 F.3d Here, the record does not suggest that 22 Plaintiffs do not create a genuine issue of material fact with 23 respect to whether AIMCO and F&W exercised substantial control over 24 them so that AIMCO and F&W could be considered joint employers for 25 the purposes of liability on their FEHA claims. 26 Court summarily adjudicates that AIMCO and F&W cannot be held 27 liable on Plaintiffs’ claims on a joint employer theory of 28 16 Accordingly, the 1 liability. 2 II. 3 Liability as Aiders and Abettors Under the FEHA, it is unlawful for “any person to aid, abet, 4 incite, compel, or coerce the doing of any of the acts forbidden 5 under this part, or to attempt to do so.” 6 § 12940(i). 7 evidence of acts by two separate persons: (1) the aider and abettor 8 and (2) the person committing the prohibited act. 9 Baird, 18 Cal. 4th 640, 655-56 (1998) (discussing Janken v. GM United States District Court For the Northern District of California 10 Cal. Gov’t Code To prevail under this section, plaintiffs must offer See Reno v. Hughes Elecs., 46 Cal. App. 4th 55, 77-78 (1996)).8 11 Because the FEHA does not define aiding or abetting, 12 California courts have adopted the common law definition. 13 e.g., Vernon, 116 Cal. App. 4th at 131; Fiol v. Doellstedt, 50 Cal. 14 App. 4th 1318, 1325 (1996). 15 held liable for a FEHA violation if the party 16 17 18 See, Under this definition, a party may be (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person 19 Fiol, 50 Cal. App. 4th at 1325-26. Knowledge that a FEHA violation 20 “is being committed and the failure to prevent it does not 21 constitute aiding and abetting.” Id. at 1326. A “mere failure to 22 act does not constitute the giving of ‘substantial assistance or 23 24 8 27 Plaintiffs complain that AIMCO and F&W are requiring them to satisfy an evidentiary burden concerning IMR’s alleged FEHA violations, which Plaintiffs argue are not at issue in AIMCO’s and F&W’s motions. Plaintiffs’ objection is not well taken. To prevail on their section 12940(i) claims, they have the burden to show both aiding and abetting conduct and a substantive violation of the FEHA. 28 17 25 26 1 encouragement’ to the tortfeasor.” Id. 2 Plaintiffs argue primarily that AIMCO and F&W substantially 3 assisted IMR by not terminating IMR’s contract and continuing to 4 provide it with materials, space and access to the Project 5 location. 6 impose liability based on AIMCO and F&W’s failure to prevent IMR’s 7 violations. 8 cannot be based on a failure to prevent a FEHA violation. 9 this contention does not link particular acts of assistance or However, this argument suggests that Plaintiffs seek to As noted above, liability under section 12940(i) Further, United States District Court For the Northern District of California 10 encouragement to alleged FEHA violations. 11 (stating that “substantial assistance” must be given to the other 12 “to so act”); Alch v. Superior Court, 122 Cal. App. 4th 339, 390 13 (2004) (discussing particular acts undertaken by aider and abettor 14 directed at giving substantial assistance to violator’s 15 discriminatory scheme). 16 See, e.g., id. at 1325 The only act Plaintiffs identify that could be reasonably 17 interpreted to have encouraged FEHA violations is Maloy’s 18 suggestion that Hornstein compare the productivity of a work crew 19 comprised of Latinos with one comprised of African Americans. 20 noted above, Maloy worked for AIMCO; Plaintiffs offer no evidence 21 that F&W contributed to Maloy’s suggestion. 22 have led to the so-called siding contest. 23 direct evidence that this contest encouraged IMR to subject them to 24 adverse employment actions based on impermissible grounds. 25 Instead, Plaintiffs seek to demonstrate causation through temporal 26 27 28 18 As Maloy’s suggestion may Plaintiffs do not offer 1 2 proximity.9 The siding contest took place sometime in or about late 3 August, 2007. 4 off on or about November 9, 2007. 5 layoffs were based on the results of the allegedly race-based 6 siding contest, which took place no more than three months earlier 7 and was encouraged by AIMCO’s Maloy. 8 workforce from forty-nine employees for the week ending November 6, 9 2007 to six and then three employees for the weeks ending November Hall, Chilton, Givens, Mouton and Rankin were laid A jury could infer that these That IMR may have reduced its United States District Court For the Northern District of California 10 13 and 20, 2007 respectively weakens, but does not negate, this 11 causal inference as a matter of law. 12 evidence as to the racial make-up of IMR’s workforce at that time 13 or the reasons for the workforce reduction. 14 IMR laid off Hall, Chilton, Givens, Mouton and Rankin on multiple 15 occasions does not mean that their November, 2007 layoffs were for 16 permissible reasons. 17 Rankin were recalled approximately two-and-a-half weeks thereafter 18 does not extinguish all liability; these Plaintiffs could seek 19 damages attributable to those two-and-a-half they did not work, if 20 their layoffs resulted from FEHA violations. 21 22 The record contains no Further, evidence that Finally, that Chilton, Givens, Mouton and Plaintiffs also contend that the siding contest led IMR to assign Chilton, Givens, Mouton and Rankin to change order work 23 24 25 26 27 28 9 The use of temporal proximity to satisfy the causal element of a prima facie case is generally seen in cases involving retaliation. See, e.g., Villiarimo v. Aloha Isl. Air, Inc., 281 F.3d 1054, 1064-65 (9th Cir. 2002). Although this case focuses on race-based disparate treatment, Plaintiffs’ theory is that the socalled contest, a particular event, caused them to suffer adverse employment actions based on their race. 19 1 after they were recalled from their layoffs. 2 according to Plaintiffs, required less than full-time work on an 3 intermittent basis. 4 constituted a FEHA violation on IMR’s part, Plaintiffs offer no 5 evidence that they were encouraged by Maloy’s suggestion. 6 recall of these Plaintiffs from their layoffs severs whatever 7 causal link may exist between IMR’s conduct and the August, 2007 8 meeting. 9 email, which could be read to suggest that, because of the siding Change orders, Although these alleged reassignments may have The Indeed, Plaintiffs proffer Scott’s November 6, 2007 United States District Court For the Northern District of California 10 contest, AIMCO had the option of paying the surcharge sought by IMR 11 or agreeing to IMR’s termination of Hall’s siding crew; the email 12 does not suggest that, because of the contest, Plaintiffs were to 13 be assigned to change order work. 14 Plaintiffs suggest that AIMCO’s agreement to pay the surcharge 15 caused them to be reassigned to change order work. 16 Plaintiffs’ opposition belies this argument by stating that the 17 “30% mark-up was charged across the board for African Americans 18 irrespective of the type of work involved.” 19 Aguilar Decl., Ex. 242, M. Avila Depo. 325:21-326:14). 20 the testimony Plaintiffs cite in their opposition suggests that 21 IMR’s African American employees performed work other than change 22 order work during the period the surcharge was paid. 23 In their supplemental brief, However, Opp’n 24 (citing Moreover, AIMCO asserts that Plaintiffs’ section 12940(i) claims fail 24 because they did not exhaust their administrative remedies. 25 However, Plaintiffs’ administrative complaints described incidents 26 that would have led to the discovery of AIMCO’s alleged aiding and 27 abetting conduct; thus, Plaintiffs exhausted their administrative 28 20 1 remedies. 2 381 (1996). 3 Soldinger v. Nw. Airlines, Inc., 51 Cal. App. 4th 345, Accordingly, the Court grants F&W’s motion for summary judgment with respect to Plaintiffs’ FEHA claims under section 5 12940(i). 6 and abetted any particular FEHA violations, nor does the record 7 suggest that F&W played a role in Maloy’s suggestion. 8 AIMCO’s motion for summary judgment is denied to the extent that it 9 concerns Plaintiffs’ section 12940(i) claims; there is a genuine 10 United States District Court For the Northern District of California 4 issue of material fact with respect to whether Maloy’s suggestion 11 encouraged IMR to lay Plaintiffs off in November, 2007. 12 other respects, AIMCO’s motion for summary judgment on Plaintiffs’ 13 section 12940(i) claims is granted. Plaintiffs offer no evidence of acts by F&W that aided 14 15 However, In all CONCLUSION For the foregoing reasons, the Court GRANTS Plaintiffs’ motion 16 for leave to file a supplemental brief (Docket No. 167), GRANTS in 17 part AIMCO’s motion for summary judgment and DENIES it in part 18 (Docket No. 131) and GRANTS F&W’s motion for summary judgment 19 (Docket No. 130). 20 with respect to Plaintiffs’ FEHA claims under section 12940(i) to 21 the extent they are based on Maloy’s suggestion at the August, 2007 22 meeting. 23 granted. 24 AIMCO’s motion for summary judgment is denied In all other respects, AIMCO’s and F&W’s motions are The Court did not rely on any evidence to which the parties 25 objected. 26 overruled as moot. 27 28 To the extent that it did, those objections are A settlement conference will be held before Magistrate Judge 21 1 Donna Ryu on March 7, 2011 at 11:00 a.m. 2 set for April 12, 2011. 3 A pretrial conference is The Court is unavailable for trial from May 9 until May 20, 4 2011, and thus a twenty-day trial cannot begin as scheduled on 5 April 25, 2011. 6 7 settlement conference, they should discuss the trial length 7 estimate in light of this order, and the possibility of 8 bifurcation. 9 2011, assuming two days of jury deliberation. If the parties are unable to settle at their March The Court could begin an eight-day trial on April 25, A twenty-day trial United States District Court For the Northern District of California 10 could tentatively begin on May 23, 2011, subject to a tentatively 11 set criminal trial. 12 would be August 22, 2011. 13 unable to agree on a trial plan, a further case management 14 conference will be held on March 15, 2011 at 2:00 p.m., with a 15 joint case management statement due March 11, 2011. 16 The next available date for a twenty-day trial If the parties are unable to settle and IT IS SO ORDERED. 17 18 Dated: 2/18/2011 CLAUDIA WILKEN United States District Judge 19 20 21 22 23 24 25 26 27 28 22