Foreman et al v. Clear Channel Outdoor, Inc., No. 4:2010cv03853 - Document 22 (N.D. Cal. 2010)

Court Description: ORDER Granting 18 MOTION to Dismiss. Case Management Statement due by 2/8/2011. Case Management Conference set for 2/15/2011 02:00 PM. Signed by Judge Claudia Wilken on 12/7/2010. (ndr, COURT STAFF) (Filed on 12/7/2010)
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Foreman et al v. Clear Channel Outdoor, Inc. Doc. 22 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 No. C 10-03853 CW 7 MARK FOREMAN, et al., 8 Plaintiffs, 9 United States District Court For the Northern District of California 10 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (Docket No. 18) v. CLEAR CHANNEL OUTDOOR, INC., 11 Defendant. / 12 13 14 Plaintiffs Mark Foreman, et al., plead ten claims against 15 their former employer, Defendant Clear Channel Outdoor, Inc. 16 Defendant moves to dismiss Plaintiffs’ action. 17 Defendant’s motion as to only four of their claims. 18 taken under submission on the papers. 19 submitted by the parties, the Court GRANTS Defendant’s motion and 20 GRANTS leave to amend. The motion was Having considered the papers BACKGROUND 21 22 Plaintiffs oppose Plaintiffs, who are African-American, are former employees of 23 Defendant. Their allegations focus solely on the actions of an 24 unnamed “Hispanic supervisor,” who they aver had the goal of 25 replacing “all of the African American employees in his department 26 with Hispanic and/or non-African American employees.” 27 Compl. (1AC) ¶ 14. 28 (1) imposed “different and more onerous policies” on African- First Am. In particular, they allege that the supervisor 1 American employees; (2) did not permit African-American employees 2 “to take Defendant’s trucks home at the end of the day,” even 3 though he allowed Hispanic employees to do so; and (3) conducted 4 “surreptitious surveillance” on African-American employees “to 5 secure any colorable reason to terminate their employment so that 6 he could replace them with Hispanic and/or non-African American 7 employees,” but did not conduct such observations of Hispanic 8 employees. 9 terminated based on the unnamed supervisor’s surveillance, which United States District Court For the Northern District of California 10 11 Id. Plaintiffs claim that their employment was they allege to be “race-based.” Id. Plaintiffs aver that the proffered reason for their discharge 12 was that they took breaks that violated Defendant’s policies and 13 procedures. 14 approved of their breaks. 15 discharged, the unnamed supervisor replaced them with “Hispanic 16 and/or non-African American employees.” 17 They allege, however, that a previous supervisor had Plaintiffs plead that, after they were Id. Defendant moved to dismiss Plaintiffs’ original complaint on 18 August 30, 2010. 19 this motion consisted only of a caption page. 20 However, Plaintiffs filed with the Magistrate Judge to whom this 21 case was initially assigned a brief opposition that contained a 22 single paragraph, in which they sought leave to amend. 23 did not respond substantively to Defendant’s motion. 24 The public version of Plaintiffs’ opposition to (Docket No. 14.) Plaintiffs On October 1, 2010, the Court granted Defendant’s motion to 25 dismiss, noting that Plaintiffs apparently had conceded that they 26 failed to state any of their claims. 27 leave to amend to cure the pleading deficiencies identified in 28 2 The Court afforded Plaintiffs 1 Defendant’s motion. 2 2010.1 Plaintiffs filed their 1AC on October 14, Plaintiffs’ 1AC contains ten claims: (1) harassment in 4 violation of FEHA; (2) “discrimination in violation of FEHA;” (3) 5 retaliation in violation of FEHA; (4) “wrongful discharge from 6 harassment and discrimination;” (5) wrongful discharge in violation 7 of public policy; (6) negligence; (7) “intentional or reckless or 8 negligent infliction of severe emotional distress;” (8) breach of 9 contract; (9) breach of the implied covenant of good faith and fair 10 United States District Court For the Northern District of California 3 dealing; (10) “fraud and deceit (promise made without intention to 11 perform).” 12 13 LEGAL STANDARD A complaint must contain a “short and plain statement of the 14 claim showing that the pleader is entitled to relief.” 15 Civ. P. 8(a). 16 claim is appropriate only when the complaint does not give the 17 defendant fair notice of a legally cognizable claim and the grounds 18 on which it rests. 19 (2007). 20 state a claim, the court will take all material allegations as true 21 and construe them in the light most favorable to the plaintiff. 22 Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). 23 However, this principle is inapplicable to legal conclusions; 24 “threadbare recitals of the elements of a cause of action, 25 supported by mere conclusory statements,” are not taken as true. Fed. R. Dismissal under Rule 12(b)(6) for failure to state a Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 In considering whether the complaint is sufficient to 26 1 27 28 Plaintiffs’ 1AC does not contain numbered lines, in violation of Civil L.R. 3-4(c)(1). 3 NL 1 Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949-50 (2009) 2 (citing Twombly, 550 U.S. at 555). 3 DISCUSSION 4 Plaintiffs oppose Defendant’s motion only as to their first, second, fourth and fifth causes of action. 6 grants Defendant’s motion as to Plaintiffs’ claims for retaliation 7 in violation of FEHA, negligence, “intentional or reckless or 8 negligent infliction of severe emotional distress,” breach of 9 contract, breach of the implied covenant of good faith and fair 10 United States District Court For the Northern District of California 5 dealing and “fraud and deceit (promise made without intention to 11 perform).” 12 pleadings in support of these claims and now relinquish them in 13 light of Defendant’s second motion to dismiss, these claims are 14 dismissed without leave to amend. 15 I. 16 Consequently, the Court Because Plaintiffs had an opportunity to amend their Race-Based Harassment To state a claim for race-based harassment under FEHA, a 17 plaintiff must plead: 18 or physical conduct of a racial nature; (2) that the conduct was 19 unwelcome; and (3) that the conduct was sufficiently severe or 20 pervasive to alter the conditions of the plaintiff’s employment and 21 create an abusive work environment. 22 Sys., Inc., 21 Cal. 4th 121, 129-31 (1999); Etter v. Veriflo Corp., 23 67 Cal. App. 457, 463-65 (1998). 24 isolated, sporadic, or trivial” does not constitute actionable 25 harassment. 26 27 28 (1) that he or she was subjected to verbal See Aguilar v. Avis Rent A Car Conduct that is “occasional, Aguilar, 21 Cal. 4th at 131 (citation omitted). Plaintiffs’ allegations do not support a claim for race-based harassment. Their pleadings provide no indication as to the 4 1 frequency or the intensity of the conduct and do not suggest that 2 the alleged harassment was sufficiently severe or pervasive. 3 do Plaintiffs allege facts to suggest that the conditions of their 4 employment were changed by their supervisor’s decision to permit 5 other employees to take vehicles home or to monitor them during 6 their workday. 7 Nor Indeed, these acts appear related to their claim for 8 discrimination. 9 appear in separate provisions and define distinct wrongs.” Under FEHA, “the terms ‘discriminate’ and ‘harass’ Roby v. United States District Court For the Northern District of California 10 McKesson Corp., 47 Cal. 4th 686, 705 (2009) (citations omitted). 11 Discrimination under FEHA pertains to “explicit changes in the 12 ‘terms, conditions, or privileges of employment.’” 13 (quoting Cal. Gov’t Code § 12940(a) and emphasis omitted). 14 contrast, harassment under FEHA concerns “focuses on situations in 15 which the social environment of the workplace becomes intolerable 16 because the harassment (whether verbal, physical, or visual) 17 communicates an offensive message to the harassed employee.” 18 47 Cal. 4th at 706 (emphasis in original); see also Cal. Code Regs. 19 tit. 2, § 7287.6(b)(1). 20 physical or visual race-based harassment by their supervisor. 21 Id. at 706 In Roby, Plaintiffs do not identify any verbal, In its first motion to dismiss, Defendant asserted that 22 Plaintiffs had failed to allege facts suggesting that they were 23 subjected to sufficiently severe and pervasive conduct. 24 granted Plaintiffs leave to amend, and they failed to cure this 25 deficiency. 26 27 28 The Court Accordingly, Plaintiffs’ claim for race-based harassment in violation of FEHA is dismissed without leave to amend. 5 1 2 II. Race Discrimination To state a claim for discrimination under FEHA, a plaintiff 3 must allege: “(1) he was a member of a protected class, 4 (2) he . . . was performing competently in the position he held, 5 (3) he suffered an adverse employment action, such as termination, 6 . . . and (4) some other circumstance suggests discriminatory 7 motive.” 8 (citation omitted). 9 Guz v. Bechtel Nat’l Inc., 24 Cal. 4th 317, 355 (2000) An adverse employment action is one that “materially affects United States District Court For the Northern District of California 10 the terms, conditions, or privileges of employment.” 11 Lodge at Torrey Pines P’ship, 42 Cal. 4th 1158, 1168 (2008) 12 (citation and internal quotation marks omitted). 13 merely contrary to the employee’s interests or not to the 14 employee’s liking is insufficient.” 15 Dep’t, 150 Cal. App. 4th 350, 357 (2007) (citation and internal 16 quotation marks omitted). 17 . . . actions had a detrimental and substantial effect on the 18 plaintiff’s employment.” 19 marks omitted). 20 Jones v. “A change that is Malais v. L.A. City Fire “The plaintiff must show the employer’s Id. (citation and internal quotation Plaintiffs’ allegations satisfy the first, third and fourth 21 elements of a FEHA discrimination claim: they allege membership in 22 a protected class, that they were terminated and facts to suggest a 23 discriminatory motive. 24 permit non-African-American employees to drive Defendant’s vehicles 25 to their homes and the supervisor’s alleged secret observations of 26 Plaintiffs, however, do not constitute cognizable adverse 27 employment actions. 28 Their supervisor’s alleged decision to Even if proved, these acts would not have 6 1 detrimentally and substantially impacted Plaintiffs’ employment. 2 These allegations of disparate treatment, although not sufficient 3 to demonstrate adverse actions, may support an inference of 4 discriminatory motive, along with Plaintiffs’ claim that they were 5 replaced with individuals outside of their protected class. 6 Plaintiffs’ discrimination claim fails, however, because they 7 do not plead that they competently performed their jobs. 8 did not explicitly raise this deficiency in its first motion to 9 dismiss. United States District Court For the Northern District of California 10 Defendant Defendant argues that Plaintiffs cannot state a discrimination 11 claim because they admitted that the reason they were terminated 12 was that they took breaks in violation of its policies, which it 13 maintains was a legitimate reason. 14 reason was pretext for race discrimination because, in the past, 15 they had permission from their previous supervisor to take their 16 breaks. 17 would not constitute race discrimination. 18 that employees of other races were suspected of, but not 19 investigated for, taking improper breaks or that such employees 20 were allowed to continue to take breaks that violated Defendant’s 21 policies. 22 discrimination unless, despite their competent performance 23 notwithstanding their breaks, they were disciplined for a reason 24 for which comparable employees of other races were not. 25 Plaintiffs respond that this However, even if such approval had been withdrawn, this Plaintiffs do not plead In other words, Plaintiffs could not have suffered race Accordingly, Plaintiffs’ discrimination claim is dismissed 26 with leave to amend to plead that they competently performed their 27 jobs and that comparable employees of other races were not 28 7 1 disciplined for taking breaks that violated Defendant’s policies. 2 Plaintiffs may not base their discrimination claim on allegations 3 that Defendant took adverse employment actions against them by 4 precluding them from driving its vehicles to their homes and by 5 observing them secretly. 6 to take their trucks home but denied similarly situated Plaintiffs’ 7 requests to do so also, or secretly observed Plaintiffs but did not 8 secretly observe similarly situated Hispanic employees, these 9 allegations may support an inference of discriminatory intent. United States District Court For the Northern District of California 10 If Defendant allowed Hispanic employees III. Wrongful Discharge “Resulting From Harassment and Discrimination” 11 To support this cause of action, Plaintiffs allege race-based 12 harassment and race, sex and age discrimination. They also claim 13 that their discharge violated public policy. 14 To the extent that this claim is based on race-based 15 harassment, it fails for the same reasons that Plaintiffs’ FEHA 16 harassment claim fails. Plaintiffs explain that their claim that 17 Defendant discriminated against them on the basis of sex or age was 18 included in error. Finally, this claim duplicates Plaintiffs’ 19 fifth cause of action to the extent it is based on their 20 allegations that unlawful discrimination caused them to be 21 discharged and that this violated public policy. Because 22 Plaintiffs do not argue that the two claims differ materially, the 23 Court dismisses this claim in lieu of their fifth cause of action. 24 For the foregoing reasons, this claim is dismissed without 25 leave to amend. 26 IV. Wrongful Discharge in Violation of Public Policy 27 28 8 1 Under California law, an employee may maintain a tort cause of 2 action against his or her employer when the employer’s discharge of 3 the employee contravenes fundamental public policy. Foley v. 4 Interactive Data Corp., 47 Cal. 3d 654, 666 (1988). Such claims 5 are often referred to as Tameny claims, after the decision in 6 Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 176-177 (1980). 7 A claim for wrongful termination in violation of public policy must 8 be based on a fundamental policy established by a constitutional, 9 statutory or regulatory provision. United States District Court For the Northern District of California 10 Green v. Ralee Eng’g Co., 19 Cal. 4th 66, 76, 90 (1998). 11 Plaintiffs’ Tameny claim would be cognizable if they could 12 successfully plead their claim for race discrimination under FEHA. 13 As explained above, their FEHA race discrimination claim fails 14 because they have not plead that they competently performed their 15 jobs. 16 truthfully, they will state a cognizable Tameny claim. 17 is dismissed with leave to amend Accordingly, so long as they can allege this fact 18 19 This claim CONCLUSION For the foregoing reasons, the Court GRANTS Defendant’s 20 motion. 21 harassment, retaliation in violation of FEHA, “wrongful discharge 22 from harassment and discrimination,” negligence, “intentional or 23 reckless or negligent infliction of severe emotional distress,” 24 breach of contract, breach of the implied covenant of good faith 25 and fair dealing and “fraud and deceit (promise made without 26 intention to perform)” are dismissed without leave to amend. 27 Plaintiffs’ FEHA race discrimination claim is dismissed with leave 28 (Docket No. 18.) Plaintiffs’ claims for race-based 9 1 to amend to plead that they competently performed their jobs and 2 that comparable employees of other races were not disciplined for 3 the conduct that led to their discharge. 4 truthfully do so, their Tameny claim will be cognizable. 5 So long as Plaintiffs Plaintiffs shall file their amended complaint within seven 6 days of the date of this Order. 7 amended pleading conforms to Civil L.R. 3-4. 8 deficiencies identified above, Defendant shall answer within 9 fourteen days of the date Plaintiffs file their amended complaint. They shall ensure that their If they cure the United States District Court For the Northern District of California 10 Alternatively, Defendant may file a motion to dismiss. 11 Defendant does so, Plaintiffs’ opposition shall be due fourteen 12 days after the motion is filed. 13 be due seven days after that. 14 submission on the papers. 15 16 17 If Defendant’s reply, if any, shall The motion will be taken under The case management conference, currently set for December 21, 2010, is continued to February 15, 2011 at 2:00 p.m. IT IS SO ORDERED. 18 19 Dated: 12/7/2010 CLAUDIA WILKEN United States District Judge 20 21 22 23 24 25 26 27 28 10