Washington v. Certainteed Gypsum, Inc, No. 2:2010cv00204 - Document 21 (D. Nev. 2010)

Court Description: ORDER Granting 9 Defendant's Motion to Dismiss. The complaint is DISMISSED with leave to amend. IT IS FURTHER ORDERED that 9 Defendant's Motion for a More Definite Statement is DENIED as moot. Signed by Judge Gloria M. Navarro on 9/7/10. (Copies have been distributed pursuant to the NEF - EDS)
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Washington v. Certainteed Gypsum, Inc Doc. 21 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 ETHEL WASHINGTON, 5 Plaintiff, vs. 6 7 CERTAINTEED GYPSUM, INC., 8 Defendant. 9 ) ) ) ) ) ) ) ) ) Case No.: 2:10-cv-00204-GMN-LRL ORDER 10 This Title VII/ADEA case arises out of alleged race, gender, and age 11 discrimination and subsequent retaliation. Pending before the Court is Defendant’s 12 Motion to Dismiss and, in the alternative, Motion for a More Definite Statement (ECF 13 No. 9). For the reasons given herein, the Court GRANTS the motion in part, dismissing 14 the Complaint with leave to amend. 15 I. FACTS AND PROCEDURAL HISTORY 16 Plaintiff Ethel Washington is a fifty-five, sixty-seven, or sixty-eight year-old 17 African-American woman who has worked for Defendant Certainteed Gypsum, Inc. 18 (“Certainteed”) since 1986. (See Compl. 1:22, 1:27, 3, ECF No. 1.) 1 Plaintiff alleges that 19 in July 2008 a position as a Production Manager became vacant, and, on or about July 15, 20 2008, she interviewed two younger, white males for the position. (Id. at 4 ¶¶ 3–4.) 21 Plaintiff applied for the position herself, but although the company Vice President had 22 23 24 25 1 The first page of the Complaint indicates that Plaintiff was “born in 1942,” which would make her sixty-seven or sixty-eight years old during calendar year 2010. However, the third page of the Complaint, which consists of an amendment to Plaintiff’s Charge of Discrimination to the Nevada Equal Rights Commission, indicates that Plaintiff was born on December 10, 1954, which would make her fifty-five years old as of the date of this order. In the body of the Charge of Discrimination, dated April 21, 2009, Plaintiff alleges that she is fifty-four years old, which is consistent with a December 10, 1954 date of birth. (See Compl. at 4, ECF No. 1.) It is worth noting that the amendment to the Charge of Discrimination is actually dated April 21, 2008, but this is almost certainly an inadvertent error, as the body of the amendment includes references to events in December 2008 and February 2009. Page 1 of 9 Dockets.Justia.com 1 instructed Glen Abraham, the Plant Manager, to interview Plaintiff for the position, he 2 did not do so. (Id. at 4 ¶ 4.) Mr. Abraham allegedly told Plaintiff that filling the position 3 was “political.” (Id.) On or about November 18, 2008, James Turba, one of the younger, 4 white males Plaintiff had interviewed, was selected to fill the position. (Id. at 4 ¶ 5.) 5 On December 22, 2008, Plaintiff filed the Charge of Discrimination (“COD”) with 6 the Nevada Equal Rights Commission (“NERC”), alleging race and gender 7 discrimination in violation of Title VII of the Civil Rights Act of 1964 and age 8 discrimination in violation of the Age Discrimination in Employment Act of 1967 9 (“ADEA”), as well as under parallel state laws. (See id. at 3–4.) On April 21, 2009, 10 Plaintiff filed an amendment to the COD, alleging retaliation in the form of a negative 11 performance review and a “write-up,” in violation of Title VII. (See id. at 3.) On January 12 28, 2010, the Equal Employment Opportunity Commission (“EEOC”) mailed Plaintiff 13 the Right to Sue Letter (“RTS”) on EEOC Charge No. 34B-2009-00407, which 14 corresponds to the COD and amendment thereto. (See id. at 3–5.) Plaintiff filed the 15 Complaint in this Court within ninety days, alleging the same violations of law to which 16 the RTS corresponds. Defendant has moved to dismiss or for a more definite statement. 17 II. LEGAL STANDARDS 18 A. 19 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 20 of the claim showing that the pleader is entitled to relief” in order to “give the defendant 21 fair notice of what the . . . claim is and the grounds upon which it rests.” Conley v. 22 Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that 23 a court dismiss a cause of action that fails to state a claim upon which relief can be 24 granted. See N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir. 1983). 25 When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, Rule 12(b)(6) Page 2 of 9 1 dismissal is appropriate only when the complaint does not give the defendant fair notice 2 of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. 3 Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient 4 to state a claim, a court takes all material allegations as true and construes them in the 5 light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th 6 Cir. 1986). The court, however, is not required to accept as true allegations that are 7 merely conclusory, unwarranted deductions of fact or unreasonable inferences. See 8 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 9 “Generally, a district court may not consider any material beyond the pleadings in 10 ruling on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as 11 part of the complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. 12 v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). 13 Similarly, “documents whose contents are alleged in a complaint and whose authenticity 14 no party questions, but which are not physically attached to the pleading, may be 15 considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion 16 to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 17 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of 18 “matters of public record.” Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th 19 Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, 20 the motion to dismiss is converted into a motion for summary judgment. See Arpin v. 21 Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). 22 If the court grants a motion to dismiss, it must then decide whether to grant leave 23 to amend. The court should “freely give” leave to amend when there is no “undue delay, 24 bad faith[,] dilatory motive on the part of the movant . . . undue prejudice to the opposing 25 party by virtue of . . . the amendment, [or] futility of the amendment . . . .” Fed. R. Civ. P. Page 3 of 9 1 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only 2 denied when it is clear that the deficiencies of the complaint cannot be cured by 3 amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). 4 B. 5 Rule 12(e) permits a court to strike a pleading if it “is so vague or ambiguous that Rule 12(e) 6 a party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e); see McHenry v. 7 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996) (affirming dismissal of a complaint that was 8 “argumentative, prolix, replete with redundancy, and largely irrelevant”). 9 III. 10 ANALYSIS Defendant argues that the Complaint is generally insufficient because the 11 allegations therein are vague and ambiguous, fail to put Defendant on notice of the claims 12 against it, and fail to allege each of the several causes of action apparently intended to be 13 pled under separate paragraphs, as required by Fed. R. Civ. P. 10(b). Without deciding 14 whether such a technical deficiency requires dismissal when the Complaint is 15 substantively sufficient to put a defendant on notice of the claims against it, the Court 16 urges Plaintiff to remedy this in the event that she decides to file an amended complaint. 17 However, although it could be more artfully drafted, the Complaint easily puts Defendant 18 on notice of race discrimination, gender discrimination, and retaliation claims under Title 19 VII and an age discrimination claim under ADEA. 20 Defendant also argues in reply that “Plaintiff . . . does not cite to a single case in 21 support of her theory that attaching a Charge of Discrimination to a pleading is sufficient 22 to satisfy minimum pleading standards.” (Reply 2:10–12, ECF No. 17.) The Court can 23 oblige Defendant. The Ninth Circuit has held that “[a] court is aided in its determination 24 by the attachment of several documents to [a] plaintiff’s complaint. [A] court is not 25 limited by the mere allegations contained in the complaint . . . . These documents, as part Page 4 of 9 1 of the complaint, are properly a part of the court’s review as to whether plaintiff can 2 prove any set of facts in support of its claim . . . .” Amfac Mortgage Corp. v. Ariz. Mall of 3 Tempe, Inc., 583 F.2d 426, 429–30 (9th Cir. 1978) (citing Tenopir v. State Farm Mut. 4 Co., 403 F.2d 533 (9th Cir. 1968) (considering an insurance policy attached to a 5 complaint in a motion to dismiss for failure to state a claim)) (footnote omitted). 6 Not only is it appropriate to consider attached documents, in a Title VII case it is 7 more efficient, and practically necessary. When a plaintiff attaches the charge of 8 discrimination and right to sue letter to her Title VII complaint, it makes it much easier 9 for a district court to assure itself of its jurisdiction over the Title VII claims, because 10 jurisdiction only exists for ninety days after a plaintiff receives a right to sue letter, see 42 11 U.S.C. § 2000e-5(f)(1), and the scope of the district court’s jurisdiction is circumscribed 12 by the complaint(s) levied in the charge of discrimination that the EEOC has had an 13 opportunity to review, Vasquez v. County of L.A., 349 F.3d 634, 644 (9th Cir. 2003) 14 (citing 42 U.S.C. § 2000e-5(b); B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099–1100 15 (9th Cir. 2002)) (footnotes omitted). A federal court must dismiss a case for lack of 16 jurisdiction if the proponent of federal jurisdiction does not carry its burden of proving it. 17 See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Failing to 18 attach these documents to a Title VII complaint often causes doubt over the district 19 court’s jurisdiction in such cases. Plaintiff has in fact made this Court’s pre-trial tasks 20 much easier by attaching these documents, and Title VII plaintiffs should be encouraged 21 to attach such documents and incorporate them into their complaints. 22 23 24 25 A. The Title VII Claims 1. Race and Gender Discrimination The Ninth Circuit recently laid out the framework for examining a Title VII discrimination claim at the summary judgment stage: Page 5 of 9 1 2 3 4 5 6 7 8 9 The Supreme Court’s landmark case regarding employment discrimination claims brought under Title VII, McDonnell Douglas v. Green, sets forth a proof framework with two distinct components: (1) how a plaintiff may establish a prima facie case of discrimination absent direct evidence, and (2) a burden-shifting regime once the prima facie case has been established. 411 U.S. 792, 802–04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). In the summary judgment context, the plaintiff bears the initial burden to establish a prima facie case of disparate treatment. Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1123 (9th Cir. 2000). If the plaintiff succeeds in showing a prima facie case, the burden then shifts to the defendant to articulate a “legitimate, nondiscriminatory reason” for its employment decision. Id. at 1123–24. Should the defendant carry its burden, the burden then shifts back to the plaintiff to raise a triable issue of fact that the defendant’s proffered reason was a pretext for unlawful discrimination. Id. at 1124. Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007). 10 Defendant has not moved for summary judgment, but rather for dismissal under 11 Rule 12(b)(6). Therefore, at this stage Plaintiff need only have made out a prima facie 12 case. To make out a prima facie case in the failure-to-promote context, the Ninth Circuit 13 “requires the employee to show: ‘(1) she belongs to a protected class, (2) she was 14 performing according to her employer’s legitimate expectations, (3) she suffered an 15 adverse employment action, and (4) other employees with qualifications similar to her 16 own were treated more favorably.’” Id. (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 17 1217, 1220 (9th Cir. 1998)). 18 First, Plaintiff alleges that she is an African-American female. (Compl. 1:22, ECF 19 No. 1.) Second, she alleges she met the performance requirements of her position and 20 that she in fact performed the duties of the applied-for position “on a routine basis” when 21 the former Production Manager was absent and 75% of his duties even when he was 22 present. (Id. at 4 ¶ 3.) Third, she alleges that she was denied promotion to Production 23 Manager. (Id. at 4 ¶ 5.) Fourth, she alleges that the person who was selected for the 24 position, Mr. Turba, was of a different race and sex. (Id.) Plaintiff does not allege in even 25 a conclusory fashion, however, that Mr. Turba’s qualifications were similar to or less Page 6 of 9 1 impressive than her own. The fourth element of a race or gender discrimination claim is 2 therefore not sufficiently alleged. Because this deficiency could be remedied, the Court 3 dismisses the Title VII discrimination claims with leave to amend. 4 5 2. Retaliation The same burden-shifting regime applies in retaliation cases. Hernandez v. 6 Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). “To establish a prima facie 7 case for a retaliation claim under Title VII, [a plaintiff] must show: (1) that he engaged in 8 a protected activity, (2) that he suffered an adverse employment action, and (3) that there 9 is a causal link between the two.” Hernandez, 343 F.3d at 1113 (citing Steiner v. 10 11 Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994)). First, Plaintiff alleges that she filed a complaint with NERC on April 21, 2009. 12 (Compl. 4, ECF No. 1.) There is no dispute that this was protected activity. Second, she 13 alleges that she received a negative performance review from an unidentified supervisor 14 in February 2009, and that Mr. Turba gave her a “write-up” on February 19, 2009 that 15 was otherwise unwarranted. (See id. at 3.) Third, she alleges causation, but does not 16 allege any facts making it plausible. Plaintiff need not attempt to prove a Defendant’s 17 subjective state of mind, but to allow an inference of retaliation she must plead facts that 18 show the person(s) responsible for the adverse employment action(s) knew about the 19 protected activity. Plaintiff has not pled such facts. 20 In Hernandez, the Ninth Circuit reversed a district court that ruled that a Title VII 21 claimant had failed to make out the causation element of a prima facie case. 343 F.3d at 22 1113. The Ninth Circuit pointed out that the defendant company in that case had 23 conceded that Hernandez’s supervisor, Mr. Pray, knew that Hernandez’s allegations of 24 harassment had been brought to the attention of Ms. Lasher, the human resources 25 manager, and that Lasher had confronted Pray with the allegations. Id. at 1110, 1113. Page 7 of 9 1 The Ninth Circuit rejected the defendant’s claim that Pray had no knowledge that it was 2 Hernandez who had reported the alleged harassment, because it was conceded that Pray 3 knew someone had made a complaint, and Pray could have known or suspected that it 4 was Hernandez. Id. at 1113–14. The court ruled that summary judgment was not 5 appropriate under these facts. Id. 6 Here, unlike in Hernandez, there is no allegation at all from which to infer 7 causation. There is no explicit allegation that any managers at Certainteed knew of 8 Washington’s complaint to the NERC before her negative performance review and write- 9 up. Also, Messrs. Turba and Abraham are not alleged to have known of Plaintiff’s 10 internal complaint to the Vice President about not having been promoted. Because this 11 deficiency could be remedied, the Court dismisses the Title VII retaliation claim with 12 leave to amend. 13 B. 14 An ADEA plaintiff can establish a prima facie case by alleging that she was “(1) The ADEA Claim 15 at least forty years old, (2) performing [her] job satisfactorily, (3) discharged, and (4) 16 either replaced by substantially younger employees with equal or inferior qualifications 17 or discharged under circumstances otherwise giving rise to an inference of age 18 discrimination.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) 19 (citation and internal quotation marks omitted). 20 First, Plaintiff has alleged that she is at least forty years old, as required under 29 21 U.S.C. § 631(a). Second, as discussed, supra, she has alleged that she was satisfying the 22 performance requirements of her position. Third, she has alleged that she was passed up 23 for promotion. Although Diaz involved discharge claims, ADEA applies to promotions, 24 as well. See Ahlmeyer v. Nev. Sys. of Higher Educ., 555 F.3d 1051, 1059 (9th Cir. 2009). 25 Fourth, she alleges that the promotion went to a younger employee, Mr. Turba. Page 8 of 9 1 However, she does not allege the qualifications of Mr. Turba, as required by the fourth 2 element. Neither does she allege facts indicating that Mr. Turba was “substantially” 3 younger. She does not allege his age at all. Because this deficiency could be remedied, 4 the Court dismisses the ADEA claim with leave to amend. 5 CONCLUSION 6 IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss is GRANTED, 7 and the Complaint is hereby dismissed with leave to amend. Defendant’s Motion for a 8 More Definite Statement is consequently DENIED as moot. 9 DATED this 7th day of September, 2010. 10 11 12 13 ________________________________ Gloria M. Navarro United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 Page 9 of 9