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Mimi Perez-Falcon v. Synagro West

December 23, 2011

MIMI PEREZ-FALCON
PLAINTIFF,
v.
SYNAGRO WEST, LLC; AND DOES 1 THROUGH 10, INCLUSIVE
DEFENDANTS.



ORDER RE: MOTION TO DISMISS

(Docs. 6-6-1)

I. INTRODUCTION

Defendant Synagro West, LLC has filed a motion to dismiss the third and fourth causes of action in the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For reasons discussed below, the motion shall be denied.

II. FACTS AND PROCEDURAL BACKGROUND

On September 27, 2011, plaintiff Mimi Perez-Falcon (hereinafter referred to as "Plaintiff") filed her complaint against defendants Synagro West, LLC (hereinafter referred to as "Defendant") and Does 1 through 10, inclusive, asserting four causes of action for (1) wrongful termination in violation of the anti-retaliation provisions of the California Fair Employment and Housing Act (FEHA, Cal. Gov. Code, § 12900 et seq.), (2) "wrongful termination in violation of public policy - retaliation for complaining about sexual harassment," (3) "wrongful termination in violation of public policy relating to complaints about solid waste disposal and violations of permits, statutes and regulations" and (4) violation of California Labor Code § 201. In the complaint, Plaintiff alleged as follows:

"5. Plaintiff was employed by defendant since June 2008. In September 2010, Plaintiff began working as a compliance coordinator at defendant's plant in Taft, CA. The plant is involved in recycling human waste/biosolids. [¶] 6. Plaintiff worked as a Compliance Coordinator for defendant. Her job duties included ensuring that its facilities were in compliance with all regulatory requirements and permit conditions." Plaintiff further alleged:

"7. Shortly before Plaintiff's termination, on May 13th and May 17th, 2011, Plaintiff complained to management, including Vice President of Human Resources Jackie Linton about sexual harassment at the Taft, CA plant where Plaintiff worked. This complaint included statements made about Plaintiff by male workers of a sexual nature, and also that the management had allowed an environment of sexual harassment to exist at the Taft, CA plant where plaintiff worked. [¶] . . . [¶] 8. The reaction Plaintiff received from Linton and others was negative and was clearly an angry reaction to Plaintiff's complaint."

Plaintiff further alleged:

"9. On May 24, 2011, Plaintiff received a letter dated May 23, 2011 and signed by Linton terminating her employment with defendant. The reason given was 'inability to perform the duties of your position.' The allegation in the May 23, 2011 correspondence that plaintiff had shown an 'inability to perform the duties of her position' was incorrect and untrue as Plaintiff had received good reviews while employed with defendant, Plaintiff never received a reprimand (verbal or written) while employed with defendant, and Plaintiff performed her job as expected. In addition, Plaintiff's undergraduate degree in environmental engineering and masters degree in environmental engineering qualified her for the position. [¶] 10. Plaintiff timely filed an action with the Department of Fair Employment and Housing and received a right to sue letter from said agency. This action is timely filed pursuant to said right to sue letter."

On November 3, 2011, Defendant filed a motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss the third and fourth causes of action in the complaint for "wrongful termination in violation of public policy relating to complaints about solid waste disposal and violations of permits, statutes and regulations" and violation of California Labor Code § 201, respectively. On November 29, 2011, Plaintiff filed her opposition to Defendant's motion to dismiss. On December 12, 2011, Defendant filed its reply to Plaintiff's opposition.

III. LEGAL STANDARD

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). Where the plaintiff fails to allege "enough facts to state a claim to relief that is plausible on its face," the complaint may be dismissed for failure to allege facts sufficient to state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); see Fed. R. Civ. P. 12(b)(6). "A claim has facial plausibility," and thus survives a motion to dismiss, "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009). On a Rule 12(b)(6) motion to dismiss, the court accepts all material facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). However, the court is not required to accept conclusory allegations, allegations contradicted by exhibits attached to the complaint or matters properly subject to judicial notice, unwarranted deductions of fact or unreasonable inferences. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . the complaint could not be saved by amendment." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

IV. DISCUSSION

1. Plaintiff's third cause of action ("wrongful termination in violation of public policy relating to complaints about solid waste disposal and violations of permits, statutes and regulations") -- Plaintiff's third cause of action is for wrongful termination in violation of public policy. In California, claims of wrongful termination in violation of public policy were first recognized in Tameny v. Atlantic Richfield Co., 27 Cal.3d 167, 164 Cal.Rptr. 839, 610 P.2d 1330 (1980) and are known as Tameny claims. In that case, the California Supreme Court observed: "[W]hen an employer's discharge of an employee violates fundamental principles of public policy, the discharged employee may maintain a tort action and recover damages traditionally available in such actions." Id. at 170. To successfully assert a Tameny claim, a plaintiff must allege (1) he or she engaged in a protected activity, (2) the defendant subjected the plaintiff to an adverse employment action and (3) a causal connection existed between the protected activity and the adverse employment action. Loggins v. Kaiser Permanente Intern., 151 Cal.App.4th 1102, 1109, 60 Cal.Rptr.3d 45 (2007) (citing Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028, 1042, 32 Cal.Rptr.3d 436, 116 P.3d 1123 (2005)). Having reviewed the complaint, the Court finds Plaintiff has alleged facts sufficient to state a claim upon which relief may be granted. Plaintiff alleges she was terminated for her internal reporting of a suspected failure to comply with various unspecified air quality and solid waste disposal statutes and regulations at Defendant's Taft, California, plant. California courts have consistently recognized Tameny claims where, similar to here, an employee alleges he or she was terminated in retaliation for reporting to his or her employer or to a government agency reasonably suspected illegal conduct by the employer or other employees "that harms the public as well as the employer." Collier v. Superior Court, 228 Cal.App.3d 1117, 1119, 279 Cal.Rptr. 453 (1991); see, e.g., Casella v. Southwest Dealer Services, ...


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