The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER RE DEFENDANT‟S MOTION TO DISMISS COMPLAINT (DOC. 7)
Plaintiff Anita Washington ("Plaintiff") proceeds with this action for damages against CCA of Tennessee, LLC ("CCA") (incorrectly sued as California City Correction Center) and John Guzman.
On November 5, 2011, CCA filed a Motion to Dismiss the Complaint. Doc. 7. Plaintiff filed an Opposition on January 11, 2011 (Doc. 10), one day late.
This action arises from alleged racial discrimination and retaliation engaged in by CCA, Plaintiff‟s former employer, and Mr. Guzman, CCA‟s Chief of Security and Plaintiff‟s former supervisor at CCA.
On August 21, 2000, Plaintiff began her employment with CCA as a Correction Officer. Doc. 1, Ex.1 ¶ 1. Plaintiff was promoted to Sergeant in 2001. Id. The Complaint alleges that: in 2004, Mr. Guzman communicated his dislike of Plaintiff because of her race and was "continuously abusive" to Plaintiff (Doc. 1, Ex.1 ¶ 8); Mr. Guzman told Plaintiff to find another job after Plaintiff complained to Mr. Guzman about racial harassment (Id. ); Mr. Guzman told Plaintiff that her co-workers were complaining about working with Plaintiff and turned the transport staff against Plaintiff (Id. at ¶¶ 8-9); Mr. Guzman removed Plaintiff from airlift trips and put Plaintiff in charge of medical runs, scheduling and paperwork as a set up to terminate Plaintiff‟s employment (Id. at ¶ 9); Plaintiff was demoted to Corrections Officer (Id. at ¶ 10); Plaintiff was subjected to retaliation in the form of false accusations of an inappropriate relationship with an inmate (Id. ); and Plaintiff was terminated because of the false allegations motivated by racial discrimination and retaliation (Id .).
On or about January 27, 2009, Plaintiff filed a Charge of Discrimination with the California Department of Fair Employment and Housing ("DFEH") based on retaliation. Id. at ¶ 11. On or about January 29, 2009, DFEH issued Plaintiff a Notice of Right to Sue. Id. at ¶ 12. On August 31, 2009, Plaintiff filed an action in state court. Doc. 1, Ex. 1. On October 29, 2010, CCA removed the action to federal court based on diversity of citizenship between the parties. Doc. 1.
To survive a Rule 12(b)(6) motion to dismiss, a "complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face.‟" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007)). A complaint does not need detailed factual allegations, but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
In deciding a motion to dismiss, the court should assume the veracity of "well-pleaded factual allegations," but is "not bound to accept as true a legal conclusion couched as a factual allegation." Iqbal, 127 S.Ct. at 1950. "Labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. "‟Naked assertion[s]‟ devoid of "further factual enhancement‟" are also insufficient. Iqbal, 127 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Instead, the complaint must contain enough facts to state a claim to relief that is "plausible on its face." Twombly, 550 U.S. at 570.
A claim has facial plausibility when the complaint‟s factual content allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct. Iqbal, 127 S.Ct. at 1949. "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. (quoting Twombly, 550 U.S. at 556). "A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and "that a recovery is very remote and unlikely.‟" Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974)).
The Ninth Circuit summarizes the governing standard as follows: "In sum, for a complaint to survive a motion to dismiss, the non-conclusory "factual content‟ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)(quotations omitted).
If a district court considers evidence outside the pleadings, a Rule 12(b)(6) motion to dismiss must be converted to a Rule 56 motion for summary judgment, and the nonmoving party must be given an opportunity to respond. U.S. v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). "A court may, however, consider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion to dismiss into a motion for summary judgment." Id. at 908.
A. First Cause of Action: Violation of Cal. Gov‟t Code § 12940 CCA moves to dismiss Plaintiff‟s first cause of action for violation of the Fair Employment and Housing Act ("FEHA"), Cal. Gov‟t Code § 12940. CCA contends that the first cause of action fails because the Complaint does not allege discriminatory intent or specific facts that CCA took any personnel action based on Plaintiff‟s protected classification.
It is recognized that "direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially." Scotch v. Art Inst. Of Cal.-Orange Cnty., Inc. , 173 Cal.App.4th 986, 1004, 93 Cal.Rptr.3d 338 (2009). As a result, California applies the McDonnell Douglas test, a three-stage burden-shifting test established by the United States Supreme Court, to claims of discrimination based on a theory of disparate treatment. Id. ; Guz v. Bechtel Nat., Inc ., 24 Cal.4th 317, 354, 8 P.3d 1089 (2000). "By successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained." Id .
The first step of the McDonnell Douglas test places the initial burden on the plaintiff to establish a prima facie case of discrimination. Id . A prima facie case of employment discrimination under FEHA requires the plaintiff to show that:
"(1) the plaintiff was a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position held, (3) the plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests a discriminatory motive." Scotch , 173th Cal.App.4 at 1004. If the plaintiff establishes a prima facie case, there is a presumption of discrimination, and the burden shifts to the employer to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of material fact the employer took its actions for a legitimate, nondiscriminatory reason. Guz , 24 Cal.4th at 355-356. If the employer meets that burden, the presumption of discrimination disappears, and the plaintiff must challenge the employer's proffered reasons as pretexts for discrimination or offer other evidence of a discriminatory motive. Id.
Under the first step of the McDonnell Douglas test, Plaintiff need only establish a prima facie case of discrimination. As to prong 1, CCA asserts that the Complaint fails to specify Plaintiff‟s race. The Complaint alleges that "Defendants discriminated and retaliated against [Plaintiff] because of her race and for complaining about race discrimination during the course of her employment." Doc. 1, Ex. 1 ¶ 7. The Opposition clarifies that Plaintiff‟s race is "Black." Doc. 10, 5:13. These allegations sufficiently allege that Plaintiff is a member of a protected class because of her race. However, the Plaintiff will be granted leave to amend the Complaint to allege her protected class with more specificity. As to prong 2, the Complaint alleges that "[d]uring the course of her employment with Defendant, Plaintiff performed each and every condition and covenant required on her part to be performed pursuant to said employment agreement." Doc. 1, Ex. 1 ¶ 5. As to prong 3, the Complaint alleges that Plaintiff was removed from airlift trips and put in charge of medical runs, scheduling and paperwork; demoted to Corrections Officer; and terminated. As to prong 4, the Complaint sufficiently alleges other circumstances that suggest a discriminatory intent and discriminatory action, including that Mr. Guzman communicated his dislike of Plaintiff because of her race and was continuously abusive to Plaintiff and that Plaintiff complained to Mr. Guzman about his racial discrimination towards her. Accepted as true, the Complaint sufficiently alleges a claim for relief for discrimination under the FEHA.
CCA‟s motion to dismiss Plaintiff‟s first cause of action is DENIED. Plaintiff is GRANTED LEAVE TO AMEND the first cause of action.
B. Second Cause of Action: Discharge in Violation of Public Policy (Cal. Gov‟t Code § 12920)
CCA moves to dismiss Plaintiff‟s second cause of action for discharge in violation of public policy. CCA contends that the second cause of action is superfluous to the first cause of action under FEHA and that Plaintiff cannot concurrently file a statutory claim and a common law claim predicated on the same violations. This contention is belied by express legal authority.
Section 12993(a) of the California Government Code provides: The provisions of this part shall be construed liberally for the accomplishment of the purposes of this part. Nothing contained in this part shall be deemed to repeal any of the provisions of the Civil Rights Law or of any other law of this state relating to discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, unless those provisions provide less protection to the enumerated classes of persons covered under this part.
Cal. Gov‟t Code § 12993(a). In Rojo v. Kliger , 52 Cal.3d 65, 82, 276 Cal.Rptr. 130 (1990), the California Supreme Court held that "FEHA does not displace any causes of action and remedies that are otherwise available to plaintiffs." "The FEHA was meant to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give employees the maximum opportunity to vindicate their civil rights against discrimination." Id. at 74-75 (quoting State Pers. Bd. v. Fair Emp‟t & Hous. Comm‟n ., 39 Cal.3d 422, 431 (1985)). The Rojo court further held that a plaintiff may pursue relief under FEHA and common law either sequentially or simultaneously:
We conclude, therefore, that although an employee must exhaust the FEHA administrative remedy before bringing suit on a cause of action under the act or seeking the relief provided therein, exhaustion is not required before filing a civil action for damages alleging non-statutory causes of action. An employee, of course, may elect to waive the statutory cause of action and remedies, and proceed directly to court on the common law claims; alternatively, the employee may pursue both the administrative and the judicial avenues, either sequentially or simultaneously, in the latter case amending his or her complaint to join the FEHA cause of action once the Department has issued the right-tosue letter.
Rojo , 52 Cal.3d at 88 (internal citations omitted).
CCA‟s motion to dismiss Plaintiff‟s second cause of ...