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McCullough v. Lennar Corp.

November 10, 2009

GARRY MCCULLOUGH, PLAINTIFF,
v.
LENNAR CORPORATION, A CORPORATION, AND DOES 1 THROUGH 100, INCLUSIVE, DEFENDANT.



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

ORDER

The matter before the Court is the Motion to Dismiss the Complaint Or, in the Alternative, Motion to Strike First Amended Complaint ("Motion to Dismiss"), filed by Defendant, Lennar Corporation ("Lennar"). (Doc. # 11).

I. Background

On June 30, 2009, Plaintiff initiated this action by filing a Complaint in the San Diego County Superior Court, seeking to recover damages against his former employer, Lennar. (Doc. # 1, Ex. B).

On August 20, 2009, Lennar removed the action to this Court. (Doc. # 1). Lennar alleges that this Court has diversity jurisdiction because there is complete diversity between the parties (Plaintiff is a California citizen and Lennar is a Delaware corporation with a principal place of business in Florida) and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a).

On September 14, 2009, Plaintiff filed a First Amended Complaint. (Doc. # 8).

A. Allegations of the First Amended Complaint

In May of 2004, Plaintiff was hired by Lennar, a corporation engaged in the business of home construction. Plaintiff's job title was "Area Manager," and he was hired to work on Lennar's residential housing development projects. (Doc. # 8 ¶ 4). Plaintiff's job was "to see to it that the projects were constructed as required by the contracts up to the completion of the housing pads." Id. "Lennar agreed to pay [Plaintiff] compensation comprised of a base annual salary of $95,000.00 plus a 25% performance incentive (this performance incentive was referred to within the company as a 'bonus' although it was not discretionary). If [Plaintiff] achieved his performance goals then the 25% performance incentive was earned and payable." Id. Plaintiff agreed to leave his then-current employment (where he "earned over $95,000.00 per year") and accept the Lennar employment because, with the 25% performance incentive, he would earn more money. Id. "Without the performance incentive, [Plaintiff] would have earned less than at his prior job and would not have accepted employment with Lennar." Id. "[Plaintiff] was paid as Lennar had agreed he would be paid, his base $95K per year plus the 25% performance compensation until Lennar fired [Plaintiff]." (Doc. # 8 ¶ 7). "[Plaintiff] was very good at his job and received numerous accolades from his superiors including acknowledgments that he had saved the company millions of dollars. [Plaintiff] at all times performed his job satisfactorily." Id.

"On or about May 16, 2008, Lennar department Vice President, Mike Farley..., removed [Plaintiff] from his job. [Plaintiff]'s job was given to his assistant, Jaime Hernandez. Mr. Hernandez was far less qualified to the job if he was qualified at all." (Doc. # 8 ¶ 8). At the time he was terminated, Plaintiff was 53 years old and "suffered from congestive heart failure and diabetes." (Doc. # 8 ¶ 10). "Hernandez was approximately 20 years younger [than Plaintiff] and had no disabilities." (Doc. # 8 ¶ 8). "[Plaintiff] protested his termination and inquired how could Lennar keep Hernandez and let [Plaintiff] go. Mr. Farley responded: "We have to. He is half the price and half your age." (Doc. # 8 ¶ 9).

"Farley told [Plaintiff] that they were laying off a lot of people in the department, but only [Plaintiff] was actually terminated.... The actual and verifiable reason for [Plaintiff]'s termination were his age and medical condition.... The stated reasons for his termination are nothing but pretextual." (Doc. # 8 ¶ 10). "Lennar failed and refused to pay [Plaintiff] his earned performance incentive compensation at the time he was terminated or at any time since. All other Lennar employees in [Plaintiff]'s department were paid their performance incentives. At the time he was fired, the other employees showed [Plaintiff] their bonus checks." (Doc. # 8 ¶ 11).

The First Amended Complaint alleges five causes of action: (1) "discrimination in violation of [California] Government Code § 12940 (age and disability)" (Doc. # 8 at 4); (2) wrongful termination in violation of public policy; (3) failure to pay overtime compensation; (4) unfair competition; and (5) unjust enrichment.

B. Motion to Dismiss

On September 28, 2009, Lennar filed the Motion to Dismiss the First Amended Complaint. (Doc. # 11). Lennar moves for the dismissal of all claims, except Plaintiff's age discrimination claim in the First Cause of Action. On October 19, 2009, Plaintiff filed an opposition to the Motion to ...


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