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McKinney v. Apollo Group

April 3, 2009

CHAD MCKINNEY, AN INDIVIDUAL, PLAINTIFF,
v.
APOLLO GROUP, INC., A CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hayes, Judge

ORDER

The matter before the Court is the Amended Motion to Dismiss (Doc. # 122).

Background

On December 19, 2007, Plaintiff initiated this action by filing a complaint (Doc. # 1). The complaint alleged the following causes of action: (1) retaliation, in violation of the False Claims Act, 31 U.S.C. section 3730(h) (the "FCA"), (2) retaliation, in violation of Title VII of the 1964 Civil Rights Act ("Title VII"), (3) wrongful termination, (4) false imprisonment, (5) intentional infliction of emotional distress, (6) defamation, and (7) equal pay. On July 23, 2008, the Court issued an Order dismissing the complaint (the "July 23 Order") (Doc. # 87). The Court concluded that the complaint failed to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Court granted Plaintiff leave to amend.

On January 12, 2009, Plaintiff filed the First Amended Complaint ("FAC"), which is the operative pleading in this case (Doc. # 119). The FAC alleges that on August 7, 2006, Plaintiff was hired as an enrollment counselor for Defendant University of Phoenix ("Phoenix"). The FAC alleges that Plaintiff was told the job was a salary position, and that "there was no mention to the Plaintiff that his salary would decrease if the Plaintiff did not meet quotas for new students enrolled into the university." FAC, ¶ 8. The FAC alleges that "[a]fter two months of employment, the Plaintiff alleges to have discovered that his salary was based on enrollment quotas." Id., ¶ 10. The FAC alleges that Defendants Mechelle Bonilla ("Bonilla"), Carlyn Lindsten ("Lindsten"), and Kyan Flynn ("Flynn"), employees of the University of Phoenix, "entered Plaintiff into various contests that [Plaintiff] believes encouraged sales quotas." Id., ¶ 11. The FAC alleges that "[a]fter the Plaintiff discovered that the Higher Education Act prohibits enrollment counselors from using incentives and bonuses to enroll individuals into the university, he vocalized this concern to his first direct supervisor, Barbara Keramati" ("Keramati"). Id., ¶ 12. The FAC alleges that despite Plaintiff's concerns, "Keramati informed Plaintiff that his tuition reimbursement would be revoked if he failed to meet the 'goal' of enrolling at least four students per month." Id., ¶ 13.

The FAC alleges that on December 19, 2006, Plaintiff was informed that his job performance was exceptional. The FAC alleges, however, that "[o]n a multitude of occasions from the end of February 2007 until the Plaintiff was terminated, [Plaintiff] believes that he received multiple harassing emails from" Lindsten, which "threatened reduction in pay if enrollment quotas were not met, questioned the level of dedication demonstrated by the Plaintiff, and asked the Plaintiff if he was truly serious about his career with the company." Id., ¶ 15. The FAC alleges that "Plaintiff perceived these communications initiated by Lindsten to be condescending, threatening, and harassing in nature." Id.

The FAC alleges that employees were required to participate in mandatory "blitzes" whereby "Lindsten would ring a repeating siren throughout the entire building." Id. The FAC alleges that "[d]uring this time, employees were led to believe that they were not allowed to leave their cubicle." Id. The FAC alleges that blitzes occurred three times a day.

The FAC alleges that in late February 2007 or early March 2007, Lindsten transferred Plaintiff from the Kearny Mesa campus to the downtown San Diego campus. The FAC alleges that "[t]he transfer occurred soon after the Plaintiff vocally repeated his concerns to Lindsten, regarding the legality of the quota system being used by Apollo's San Diego Enrollment Department." Id., ¶ 17. The FAC alleges that Bonilla "told the Plaintiff to sign a 'Discussion Memo' that stated his performance fell below expectations of appointments seen, applications taken, and students whom started class," and which stated that "failure to improve your performances may result in further disciplinary action up to and including termination." Id., ¶ 19. The FAC alleges that thereafter, "[m]any of Plaintiff's applicants were subsequently transferred to other San Diego staff to enroll into school;" that "Plaintiff's 'lead base' (number of students in his data base available for contact) was reduced drastically by Bonilla;" and that Plaintiff's "work schedule was changed, without consultation, by Lindsten." Id., ¶¶ 21-22.

The FAC alleges that Lindsten and Bonilla "stated on multiple occasions that they had made [potential students] cry on the telephone, and that 'it was our job to do the same.'" Id., ¶ 22. The FAC alleges that this behavior "was perceived by the Plaintiff to be harassing, and conducted in a condescending, demanding, and braggart manner," and that the behavior also "cause[d] potential students emotional distress." Id. The FAC alleges that Plaintiff complained to Defendants "that he believed the employment practices mandated by the company forced Enrollment Counselors to enroll students who were not qualified or ready to go to school, or to deceive students into enrolling into the University of Phoenix." Id.

The FAC alleges that "Plaintiff feels that [] retaliatory acts were taken against him by the company, and its associates, for voicing concerns about the San Diego Enrollment Department using quotas for enrolling students into school." Id., ¶ 24. The FAC alleges that "Bonilla and Flynn asked the Plaintiff to sign documents that he felt were untrue relating to his performance as an enrollment counselor," and that "Plaintiff's salary was reduced from $37,000 to $35,000 in May . . . because he did not 'meet goal' in May." Id., ¶¶ 23-24.

The FAC alleges that on June 11, 2007, Plaintiff submitted evidence to human resources which Plaintiff believes "supported his claim that the San Diego office was using harassment, intimidation, and discrimination to get the plaintiff to quit employment, or accept the sales quota system." Id., ¶ 25. The FAC alleges that Defendants "continued to create a hostile work environment for [Plaintiff] even after he had demanded to [human resources] that the Defendants cease and desist what he felt were threatening, harassing, and retaliatory actions." Id., ¶ 28. The FAC alleges that Defendants represented that Plaintiff's complaints would be examined and resolved, but continued to postpone the date on which Plaintiff's complaints would be resolved. The FAC alleges that "Plaintiff believes [Defendants] were playing games with him, and willfully allowing for further discrimination and harassment to occur against the Plaintiff in an effort to force [Plaintiff] to resign from the company." Id., ¶ 38.

The FAC alleges that in June 2007, Plaintiff "was reprimanded by Bonilla for his attire (flip flops, jeans, and a t-shirt) on a casual Friday." Id., ¶ 30. The FAC alleges that "Plaintiff believes that this action was discriminatory, retaliatory, and harassing" because three female employees "had all worn the same attire (as well as tank tops) and were previously unpunished." Id.

The FAC alleges that "Plaintiff was extremely stressed out over the situation," and communicated his stress to Defendants." Id., ¶ 34. The FAC alleges that Plaintiff's stress increased daily, and that Plaintiff "began grinding his teeth, vomiting, and experiencing severe stomach pains as a result of the harassment and stress that he claims to have endured at the hand of the Defendants." Id., ¶ 35.

The FAC alleges that Plaintiff was unable to work due to his stress, and "was forced to suffer another day at home without pay." Id., ¶ 38. The FAC alleges that on June 12, 2007, Plaintiff received a telephone call while at home whereby Plaintiff was informed that he could take a leave of absence from work. The FAC alleges that, having heard nothing regarding the resolution of his complaint and evidence submitted to human resources, that Plaintiff decided to take the leave of absence. The FAC alleges that on July 13, 2007, "Plaintiff notified Alcorn and Bonilla via email that he would take a 10 day non-paid vacation in order to provide them enough time to rectify the situation," and "provided his personal email account, should they need to contact." Id., ¶ 43. The FAC alleges that while Plaintiff was on leave of absence, three overnight Federal Express packages were left at Plaintiff's residence. The FAC alleges that the first package contained a letter stating that Plaintiff needed to return to work no later than July 19, 2007; the second package contained a letter stating that the "Company has chosen to separate your employment effective July 19th, 2007" on grounds that Plaintiff failed to report to work at the designated date and time; and the third package contained a letter stating that "Apollo Group, Inc. has reviewed your concerns and we find no evidence to support any findings of the San Diego Enrollment Department violating Company policies or procedures as outlined by your allegations." Id., ¶¶ 45-48.

The FAC alleges the following causes of action: (1) retaliation in violation of the FCA; (2) retaliation in violation of Title VII; (3) wrongful termination; (4) false imprisonment; (5) intentional infliction of emotional distress; (6) defamation; and (7) violation of the Equal Pay Act ("EPA"). In support of the cause of action for retaliation in violation of the FCA, the FAC alleges that "Plaintiff was retaliated against, and discharged from Apollo, for bringing his concerns regarding the legal and ethical practices of the company to the attention" of Defendants. Id., ¶ 49. In support of the cause of action for retaliation in violation of Title VII, the FAC alleges that Defendants discriminated against Plaintiff based on his dress, even though he was dressed no less professional than his female co-workers; and that Plaintiff "had heard from several other company employees that . . . a manager of the Finance Department, was discriminated against" because he was male. Id., ¶ 50. In support of the cause of action for wrongful termination, the FAC alleges that Defendants wrongfully terminated Plaintiff "in an attempt to silence and quash the Plaintiff's opposition to what he believed were unlawful practices by Apollo and its employees in violation of public policy." Id., ¶ 51. In support of the cause of action for false imprisonment, the FAC alleges that Defendants "used threats and the show of apparent authority to falsely imprison the Plaintiff to his office cubicle," and that "Plaintiff was not allowed to leave his desk to get water, use the restroom, or exit the room for multiple periods of time, often exceeding beyond the duration of thirty minutes." Id., ¶ 52. In support of the cause of action for intentional infliction of emotional distress, the FAC alleges that Plaintiff "suffered severe and extreme emotional distress as a result of Defendants' outrageous and extreme conduct." Id., ¶ 53. In support of the cause of action for defamation, the FAC alleges that "Plaintiff suffered defamation when Bonilla attacked his personal character, in private, as well as in front of other employees at Apollo;" when Bonilla and Flynn "demanded that he sign documents published as statements of fact that he felt were untrue relating to his professional performance and character;" when Plaintiff "was told in an initial telephone conversation with Alcorn that the stress and harassment he received was his 'fault;'" and when "the company allowed its associates . . . under the auspices of its authority, to continually violate his rights as an employee of Apollo." Id., ¶ 54. In support of the cause of action for violation of the EPA, the FAC alleges that Defendants "discriminated against the Plaintiff on the basis of his status as a member of a protected class by paying him lower wages." Id., ¶ 55.

On January 29, 2009, Defendants filed the Amended Motion to Dismiss ("Motion to Dismiss"). On February 17, 2009, Plaintiff filed a Response in Opposition to the Motion to Dismiss (Doc. # 122). On February 23, 2009, Defendants filed a Reply (Doc. # 123).

Standard of Review

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the pleadings. See De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). A complaint may be dismissed for failure to state a claim under Rule 12(b)(6) where the factual allegations do not raise the right to relief above the speculative level. See Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1965 (2007). Conversely, a complaint may not be dismissed for failure to state a claim where the allegations plausibly show that the pleader is entitled to relief. See id. (citing Fed R. Civ. P. 8(a)(2)). In ruling on a motion pursuant to Rule 12(b)(6), a court must construe the pleadings in the light most favorable to the plaintiff, and must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn therefrom. See Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003); see also Chang v. Chen, 80 F.3d 1293 (9th Cir. 1996). "Courts have a duty to construe pro se pleadings liberally, including pro se motions as well as complaints." Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003).

Rule 8 of the Federal Rules of Civil Procedure requires a complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." FED R. CIV. P. 8(a)(2). While the Federal Rules adopt a flexible pleading policy, every complaint must, at a minimum, "give the defendant fair notice of what the . . . claim is and the grounds upon ...


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