The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER ON DEFENDANT'S MOTION TO DISMISS
This case is once again before the Court on Corrections Corporation of America's motion to dismiss. The Court previously dismissed Mitchell's complaint because it was a run-on commentary of grievances that, at best, gave rise "to a reasonable inference that her work environment at CCA was extremely unpleasant." That, of course, is not only insufficient to state a claim upon which legal relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, but it also violates the requirement of Rule 8 that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added).
Mitchell filed an amended complaint on March 1, 2010, and CCA again moved to dismiss just ten days later. On April 16, 2010, Mitchell voluntarily dismissed three of her seven claims. The claims that remain are for (1) wrongful termination in violation of public policy, (2) employment discrimination based on retaliation, (3) intentional infliction of emotional distress (IIED), and (4) negligent infliction of emotional distress (NIED). CCA doesn't address the wrongful termination claim in its motion to dismiss, so the Court presumes it is prepared to answer as to that claim. The Court will address the retaliation and emotional distress claims in sequence.
The same legal standard that the Court applied to Mitchell's original complaint will apply to her amended complaint.
A rule 12(b)(6) motion to dismiss for failure to state a claim challenges the legal sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In considering such a motion, the Court accepts all allegations of material fact as true and construes them in the light most favorable to the non-moving party. Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). A complaint's factual allegations needn't be detailed, but they must be sufficient to "raise a right to relief above the speculative level...." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[S]ome threshold of plausibility must be crossed at the outset" before a case can go forward. Id. at 558 (internal quotations omitted). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
While a court must draw all reasonable inferences in the plaintiff's favor, it need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotations omitted). In fact, no legal conclusions need to be accepted as true. Ashcroft, 129 S.Ct. at 1949. A complaint doesn't suffice "if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. That includes a mere formulaic recitation of the elements of a cause of action; this will not do either. Bell Atlantic Corp., 550 U.S. at 555.
Mitchell's fifth claim is for "Employment Discrimination Based on Retaliation" under the California Fair Employment and Housing Act, Cal. Gov. Code § 12940(h). As stated, the claim is a little perplexing. An allegation of discrimination typically suggests that similarly situated individuals are treated differently on the basis of some personal characteristic - race, religion, disability, age, and the like - but Mitchell doesn't allege that she was retaliated against while others who could or should have been were not. Rather, she maintains she complained about improper and illegal business practices, and about harassment "by her male supervisors," and suffered "retaliatory employment actions" as a result. (FAC ¶¶ 63--64.) That's just a straightforward retaliation claim.
Section 12940(h) of the California Government Code, upon which Mitchell's claim is based, makes it unlawful for an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." Cal. Gov. Code § 12940(h). What practices does section 12940 forbid? For Mitchell's purposes, the relevant subsection is probably subsection (a), which makes it unlawful for an employer because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person... to bar or to discharge the person from employment... or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
Cal. Gov. Code § 12940(a). Mitchell says she complained about "improper and illegal business practices," but those aren't within the purview of section 12940, and so section 12940(h) can't give rise to a retaliation claim for speaking out about them. But Mitchell also says she complained about "being harassed by her male supervisors," and such harassment may be covered by section 12940(a) insofar as it forbids sex-based discrimination in the conditions of employment. Opposing such discrimination would be a protected activity under section 12940(h), meaning it could not be the basis of an adverse employment action by CCA.
A few problems with Mitchell's claim remain. First, the mere fact that Mitchell was allegedly harassed by male supervisors is unavailing; that says nothing about the nature of the harassment, or more importantly, its motivation. It isn't harassment by male supervisors that section 12940(a) targets, but discrimination on the basis of sex in employment decisions and conditions. If all Mitchell has to say is that she was harassed by male supervisors, she can't maintain a claim of retaliation under section 12940. Likewise, Mitchell's allegation, on information and belief, that "Defendants, and each of them, were motivated to discriminate against her because of her gender (female)," is insufficient to save the claim. (See FAC ¶ 31.) Ashcroft, 129 S.Ct. at 1949.
Second, Mitchell's complaint is unclear as to whether she complained about allegedly unsavory practices at CCA and was then harassed in retaliation on the basis of her sex (in which case there's no section 12940(h) violation), or whether she was harassed on the basis of her sex, complained about that, and was then terminated (in which case there may be a section 12940(h) violation). For example, in paragraph 10 of her complaint, Mitchell lists several "possibly illegal business [sic] being perpetuated at CCA San Diego," and then, in paragraph 11, she says she "complained to her management about the improper and possibly illegal business practices, with limited and in most cases, no success." As the Court has already noted, section 12940(a) isn't concerned with improper business practices, and section 12940(h) doesn't imply a cause of action for complaining about them. In paragraph 12 of the complaint, Mitchell alleges,
When she continued her efforts to do her job as HR Manager through insistence upon proper business practices and adherence to CCA policies and procedures, Plaintiff became the subject of continual and pervasive discrimination and ...