ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS‟ MOTION TO DISMISS AND MOTION TO STRIKE
This matter is before the Court on Defendants‟ Jeff Ray ("Ray"), Sue Segura ("Segura") and Board of Trustees of Plumas County Office of Education/Plumas County Unified School District ("the District") Motion to Dismiss the Plaintiffs‟ Jerald Clinton Eaglesmith ("J.C."), Ramona Eaglesmith ("Ramona"), Eileen Cox ("Cox") and Bruce Barnes ("Barnes") First Amended Complaint ("FAC") (Doc. # 28) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiffs oppose the motion to dismiss.*fn1 For the reasons set forth below, Defendants‟ motion is 2 GRANTED in part, and DENIED in part.
Defendants also bring a Motion to Strike (Doc. #31) certain 4 allegations from the FAC, which Plaintiffs oppose (Doc. #42). For 5 the reasons set forth below, the motion to strike is DENIED. 6 7
I. FACTUAL AND PROCEDURAL BACKGROUND
J.C. is an employee of the District, who works as a teacher 9 and previously worked as the coach for the Quincy High School basketball team. J.C. alleges that he was subjected to discrimination, harassment and retaliation by Defendants in violation of Title VII, FEHA and Section 1983, based on his membership in a protected class. J.C. is Native American. His wife Ramona, who is Native American and African American, is not an employee of the District but alleges that Defendants violated her rights under sections 1981 and 1983, by interfering with her provision of dance lessons to members of the school cheerleading team. Cox and Barnes are employees of the District, who allege retaliation in violation of Title VII and FEHA, for communicating their support of J.C. and Ramona.
The FAC brings a number of allegations against Defendants. The FAC alleges that Defendants singled out J.C. for harassment after he and Ramona did a presentation in 2006 at the school, discussing the Native American perspective on Thanksgiving. J.C. alleges that Defendants interfered with his coaching, ostracized him, questioned his spiritual beliefs, referred to him in derogatory terms in front of his colleagues, gave him an 2 "unsatisfactory" performance evaluation, and refused to rehire him 3 as the basketball coach for the 2010-2011 school year. The FAC 4 further alleges that Cox and Barnes were threatened with discipline 5 and forced out of some of the positions they held at the school, 6 for communicating support of J.C. and Ramona. 7 8
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep‟t, 901 F.2d 696, 699 (9th Cir. 1990).
Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a).
"Absent prejudice, or a strong showing of any [other relevant] 2 factor, there exists a presumption under Rule 15(a) in favor of 3 granting leave to amend." Eminence Capital, L.L.C. v. Aspeon, 4 Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "Dismissal with 5 prejudice and without leave to amend is not appropriate unless it 6 is clear . . . that the complaint could not be saved by amendment." 7
1. Discriminatory Employment Practices
The first claim for relief alleges that J.C., Cox and Barnes were subject to adverse and discriminatory employment practices committed against them by the District, in violation of Title VII, 42 U.S.C. § 2000e and e(2), and FEHA, Cal. Gov. Code § 12940(a). JC alleges that he was discriminated against based on his race, national origin and religion, and his opposition to the District‟s alleged unlawful employment practices, under Title VII, 42 U.S.C. § 2000e(2). Cox and Barnes allege discrimination based on their protected status as non-minorities perceived to be assisting and associating with J.C., under Title VII, 42 U.S.C. § 2000(e) et seq. and Cal. Gov. Code § 12940. The Motion to Dismiss does not seek to dismiss J.C.‟s allegations in the first claim for relief, but does seek to dismiss the allegations of discrimination by Cox and Barnes.
Title VII of the Civil Rights Act of 1964 makes it "an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual‟s race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII claims follow a burden shifting 2 framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972). 3
However, an employment discrimination complaint need not contain 4 specific facts establishing a prima facie case, but instead must 5 contain only a short and plain statement of the claim showing that 6 the pleader is entitled to relief. Morgan v. Napolitano, 2010 WL 7 3749260, * 5 (E.D. Cal. Sept. 23, 2010) (citing Swierkiewicz v. 8 Sorema N.A., 534 U.S. 506, 508 (2002). Twombly explicitly did not 9 overturn Swierkiewicz‟s holding. Id.,citing Twombly, 550 U.S. at 569-70.
FEHA prohibits employers from discriminating against an employee because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age or sexual orientation. Cal. Gov. Code § 12940(a). Claims of discrimination under FEHA and Title VII may be assessed under the same standards, because Title VII and FEHA operate under the same guiding principles. Kohler v. Inter-Tel Technologies, 244 F.3d 1167, 1172-73 (9th Cir. 2001) (citations omitted). "Although the wording of Title VII differs in some particulars from the wording of FEHA, the antidiscriminatory objectives and overriding policy purposes of the two acts are identical." Id. "Because FEHA is modeled on Title VII, California courts often rely upon federal interpretations of Title VII when analyzing analogous provisions of FEHA." Solano v. Regents of University of CA, 2005 WL 1984473, *4 (E.D. Cal. Aug. 15, 2005) (citations omitted). Accordingly, federal courts may analyze a plaintiff‟s federal and state claims under federal law. See e.g. Id.; Nagar v. Foundation Health Systems, Inc., 57 Fed. Appx. 304, 306 (9th Cir. 2003). 2
FEHA expressly provides a cause of action for unlawful 3 discrimination based on association with someone in a protected 4 class. Kap-Cheong v. Korea Express, USA, Inc., 2003 WL 946103, *3 5 (N.D. Cal. Feb. 12, 2003) (citing Cal. Gov. Code 12926(m)). Title 6 VII, unlike, FEHA, does not specifically delineate a cause of 7 action for unlawful discrimination based on association. 8
"Nonetheless, many federal courts have construed Title VII to 9 protect individuals who are the victims of discriminatory animus towards third parties with whom the individual associates." Id. at *4.
The FAC alleges that the District discriminated against CoX and Barnes by taking adverse employment actions against them (including eliminating work space, disciplinary investigations, false accusations, forced resignation or removal from certain paid positions) and depriving them of rights under the Equal Protection Clause. Cox and Barnes allege that the District perceived them as "assisting and associating" with J.C. and that they "communicated their support of J.C." to defendant Segura. They do not allege that they are members of a protected class, but the Court may infer from the allegations that they are stating a discrimination claim based on association.
The District argues that Cox and Barnes have not stated a claim for discrimination under Title VII or FEHA because they fail to plead that they are members of a protected class, and fail to plead facts showing that they assisted or associated with J.C. Moreover, the District argues that the FAC does not allege any special relationship, or even acquaintance relationship, between Cox and Barnes and J.C. that would form the basis of a claim for 2 discrimination on the basis of association. 3
While courts have found that a plaintiff who is not a member 4 of a protected class may state a claim for discrimination under 5 FEHA or Title VII, "there must be some association, actual or 6 perceived, in order to fall within the protection of Title VII or 7 FEHA. In each of the above Title VII cases, there existed some 8 type of relationship-personal, familial, or otherwise-between the 9 plaintiff and the person whom the plaintiff claims was the target of the employer‟s discriminatory animus." Kap-Cheong, 2003 WL 946103 at *4 (citing cases, each of which involve relationships such as parent-child and husband-wife). However, even a friendship or acquaintance relationship is sufficient to state a claim for association discrimination under FEHA. See Setencich v. American Red Cross, 2008 WL 449862, *4-7 (N.D. Cal. Feb. 15, 2008).
Here, Cox and Barnes allege that they communicated their support for J.C., and were perceived as supporting him. Defendants are correct that the FAC lacks allegations of a special relationship to J.C. and lacks allegations of how Cox and Barnes communicated their support for J.C. However, taking the allegations of support for J.C. in the FAC as true, and drawing all reasonable inferences, as this Court is required to do at this stage in the pleadings, it can be inferred that as J.C.‟s co-workers Cox and Barnes at a minimum had an acquaintance relationship with him. Accordingly, the motion to dismiss the first claim for relief is DENIED.
The second claim for relief alleges that the District retaliated against J.C., Cox and Barns, in violation of FEHA and 2 Title VII. Again, the District does not seek to dismiss the 3 allegations of retaliation brought by J.C., but does seek to 4 dismiss the allegations of retaliation brought by Cox and Barnes. 5
The District raises the same arguments against the claim for 6 retaliation as it does against the claim for discrimination 7 discussed above. Likewise, Cox and Barnes also offer the same 8 arguments in support of their claim for retaliation as in support 9 of their claim for discrimination.
Cox and Barnes allege that the District‟s supervisory employees, including defendants Segura and Ray, unlawfully retaliated against them by taking actions that adversely and materially affected the terms and conditions of their employment. Cox and Barnes allege that they were retaliated against because they opposed the supervisors‟ unlawful employment practices and were perceived as assisting and associating with J.C. and Ramona. They argue that because J.C. was making complaints about discrimination, and communicating his opposition to what he alleged were adverse actions taken against him because of his race and religion, communication of their support for J.C. and the subsequent adverse consequences constitutes a plausible claim for retaliation.
The District argues that the FAC is insufficient because it merely states that Cox and Barnes "communicated" their support for J.C., but does not plead facts showing that Cox and Barnes actively engaged in opposing alleged unlawful employment practices or otherwise put the District on notice of its alleged unlawful practices.
FEHA makes it unlawful for an employer to discharge, expel or 2 otherwise discriminate against any person because the person has 3 opposed any practices forbidden by FEHA or has filed a complaint, 4 testified or assisted in any proceeding. See Cal. Gov. Code 5 § 12940(h). Additionally, "when an employee protests the actions 6 of a supervisor such opposition is also protected activity." Trent 7 v. Valley Elec. Ass‟n, 41 F.3d 524, 526 (9th Cir. 1994). An 8 employment action qualifies as adverse "if it is reasonably likely 9 to deter employees from engaging in protected activity." Ray v. Henderson, 217 F.3d 1243 (9th Cir. 2000).
In Yanowitz v. L‟Oreal USA, Inc., 36 Cal.4th 1028 (2005) the court explained that FEHA protects an employee against unlawful discrimination with respect not only to ultimate employment actions such as termination or demotion, but also to the entire spectrum of employment actions that are reasonably likely to materially affect an employee‟s job performance or opportunity for advancement in his or her career. See Id. at 1053-54. Further, "there is no requirement that an employer‟s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging injuries." Id. at 1055. In determining whether a plaintiff has suffered an adverse employment action, "it is appropriate to consider plaintiff‟s allegations collectively under the totality-of-the circumstances approach." Id. at 1052 n. 11.
Here, the FAC has alleged that J.C. made complaints and actively opposed the District‟s actions against him, and suffered retaliation for his actions. The FAC further alleges that Cox and Barnes supported J.C. and communicated this support to Segura and Ray, resulting in retaliatory acts against them. Whether Cox‟ and Barnes‟ particular manner of communicating support constituted a 2 protected activity is a factual issue that the Court will not 3 consider in ruling on a motion to dismiss. Taking the allegations 4 of the FAC as true, as the Court must at ...