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Moreno v. American Association of Retired Persons

May 24, 2010



This matter is before the court on defendant AARP's*fn1 motion to dismiss plaintiff Michael Moreno's ("Moreno") complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6). Plaintiff opposes the motion. For the reasons set forth below,*fn2 defendant's motion is DENIED.


Plaintiff Moreno is a Latino and Native American. (Pl.'s First Am. Complaint ("Compl."), Ex. B to Notice of Removal, filed Feb. 25, 2010, ¶ 6.) He is fluent in Spanish, and identifies as both a Latino and a Native American. (Compl. ¶ 6.) Defendant AARP is a non-profit membership organization for people who are 50-years-old or older. (Compl. ¶ 2.) AARP is organized into geographic regions and further broken down into separate state divisions. (Compl. ¶ 7.) AARP-CA is the largest state division, with approximately 25 employees. (Compl. ¶ 7.)

In February 2003, Moreno was recruited by Lupe de la Cruz ("de la Cruz"), who was then AARP-CA's Manager for Advocacy, for a position with AARP-CA as a Legislative Representative. In May 2003, Moreno was hired as the Associate State Director for Advocacy for AARP-CA. (Compl. ¶ 15.) He reported directly to de la Cruz and worked in the Sacramento office. (Compl. ¶ 15.) In April 2004, Moreno received the highest performance rating available, 125 points, and received a monetary bonus in recognition of his exceptional performance.

Sometime in 2004, de la Cruz and a female subordinate employee had a romantic affair. (Compl. ¶ 19.) After both of their spouses learned of the affair, Tom Porter ("Porter"), State Director of AARP-CA, was contacted by the Associate State Director in the California AARP office, the female employee's husband, and de la Cruz's wife, demanding that either the female employee or de la Cruz be fired. (Compl. ¶ 21.) Porter directed Moreno to tell de la Cruz to stop the relationship because Moreno "was Lupe's friend." (Compl. ¶ 22.) When Moreno refused to do so, Porter told Moreno, "I won't forget this, you'll pay for it." (Compl. ¶ 22.)

In February 2005, de la Cruz resigned from his position. However, prior to his resignation, de la Cruz completed Moreno's performance review for 2004, rating him as 125. Moreno was told he would be receiving the same bonus amount as the previous year. (Compl. ¶ 23.)

After de la Cruz's resignation, Porter became Moreno's direct supervisor. (Compl. ¶ 24.) Porter made a downward adjustment rating to the performance rating de la Cruz had given Moreno, reducing him to a score of 100. (Compl. ¶ 25.) Porter also reduced the bonus Moreno was to receive. (Compl. ¶ 25.) Plaintiff alleges that Porter's reduction of the performance rating and bonus was in retaliation for Moreno's refusal to tell de la Cruz to terminate the relationship with the female employee. (Compl. ¶ 25.)

In early 2005, following de la Cruz's resignation, the position of Advocacy Manager of the AARP-CA was open. (Compl. ¶ 26.) AARP hired Casey Young ("Young"), a Caucasian male who had previously worked with Porter when they were both employed by the State of California. (Compl. ¶ 28.)

In or around the same time period, Moreno decided to apply for a vacant Regional Director position in the Southwest region. (Compl. ¶ 29.) When Moreno informed Porter that he planned to apply for this position, Porter told Moreno that he could not vouch for Moreno's managerial skills. (Compl. ¶ 30.) Plaintiff alleges that Porter's refusal to support Moreno's application for the position was in retaliation for Moreno's conduct regarding de la Cruz and because Moreno is a Latino and/or Native American. (Compl. ¶ 30.)

After Moreno applied for the job and forwarded a reference letter from Senator John McCain, for whom plaintiff had previously worked, AARP's National Director, Leland White ("White") directed his aide to call Moreno. (Compl. ¶ 33.) White's aide told Moreno that he would be interviewed for the Regional Director position for which he had applied. However, a Caucasian woman, who had previously been AARP Tennessee's State Director, was appointed. (Compl. ¶ 33.) A few weeks later, White offered to transfer Moreno to Tennessee, where he would serve as Interim State Director of Tennessee, and Moreno agreed. (Compl. ¶ 34.) Subsequently, White offered Moreno a position as Interim State Director of Mississippi, which Moreno agreed to take on a temporary basis with the understanding that he would be commuting between Mississippi and California. (Compl. ¶ 35.) Moreno began this position in May 2005. (Compl. ¶ 35.)

In late 2005, Moreno was promoted to Associate Regional Director for the Southwest region. He served in that capacity until January 2006. (Compl. ¶ 37.)

In January 2006, Moreno requested from White a transfer to a management position in California. (Compl. ¶ 38.) Moreno was restored to his position as a Legislative Representative, a non-managerial position, where he would be supervised by Young. (Compl. ¶ 38.) Young was told by Porter to keep Moreno "in line." (Compl. ¶ 39.) Throughout the time that Moreno reported to Young, he was treated less favorably than non-Latino and non-Native American employees who reported to Young. (Compl. ¶ 40.)

Specifically, Young "kept tabs" on Moreno's whereabouts and insisted the Moreno justify all job-related travel before going on trips when he did not require this of other employees who reported to him. (Compl. ¶ 40.) Further, after Moreno returned to California, Porter treated him in a demeaning and discriminatory fashion, including rolling his eyes, making condescending comments, and discounting Moreno's contributions. (Compl. ¶ 41.)

Plaintiff further alleges that beginning in 2006, Porter and Young engaged in a campaign to discredit Moreno with his co-workers and members of the California Legislature. (Compl. ¶ 42.) This campaign included, but was not limited to, assigning Moreno to projects where he was denied the authority and/or the resources to complete the project; requiring Moreno to submit letters he prepared for the Legislature to Porter and Young for review and signature before the letters could go to legislators; and denying Moreno the opportunity to strengthen his presences and relationships with legislators in Sacramento. (Compl. ¶ 42.) However, Porter and Young consistently allowed Moreno's similarly situated colleague in Southern California, Ernie Powell, to lobby ...

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