The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER RE : DEFENDANTS‟ MOTION TO DISMISS COMPLAINT (DOCS. 8, 11)
Defendants Guardian Industries Corporation ("Guardian") and Ashley Kirkland ("Mr. Kirkland") bring motions to dismiss Plaintiff Christine Toth‟s ("Ms. Toth") Complaint. Plaintiff‟s Complaint alleges four causes of action: (1) Retaliation in violation of California Labor Code § 1102.5 against Guardian; (2) Unlawful Discrimination in Violation of Cal. Labor Code § 12900, et seq. against Guardian; (3) Wrongful Termination in Violation of Public Policy against Guardian; and (4) Defamation against all Defendants.
Guardian moves to dismiss stating that Plaintiff has not properly alleged any claim against it. Mr. Kirkland moves to dismiss alleging that, per the Court‟s order denying remand, he is a fraudulently joined defendant.
Plaintiff filed her Complaint in California state court on November 22, 2011. ECF No. 1., Ex. 4. Defendants filed a notice of removal on December 30, 2011. ECF. No. 1.
Plaintiff filed a motion for remand January 6, 2012. ECF. No. 16. Guardian filed an opposition on January 25, 2012. ECF. No. 23. Plaintiff replied 1 on February 2, 2012. ECF. No. 26.
Plaintiff‟s Motion to Remand was denied on February 13, 2012. ECF. No. 29.
On January 6, 2012 both Guardian and Kirkland filed motions to dismiss. ECF. No. 8, 11.
The decision on the motion to dismiss was stayed pending the Court‟s decision on remand. Once remand was denied, Plaintiff filed an opposition to both Mr. Kirkland‟s and Guardian‟s motions to dismiss. ECF. No. 31, 32. Mr. Kirkland and Guardian replied on March 12, 2012. ECF. No. 33, 34.
According to the Complaint, Plaintiff is an "adult homosexual female" and was employed by Guardian from December 2000 through her termination on November 12, 2010. Compl. ¶ 10, 15. Mr. Kirkland was Plant Manager at Guardian in Fresno County. Id. at ¶ 3, 6.
Plaintiff began working for Guardian as a Human Resources Generalist at its plant in Carleton, Michigan. Id. at ¶ 10. Plaintiff was promoted to Human Resources Manager at its plant in Kingsburg, California. Id. She performed her duties satisfactorily throughout her employment and received satisfactory performance evaluations and several salary increases. Id.
In September 2010, Mr. Kirkland told Plaintiff that he believed that two exempt employees at the plant were dating. Id. at ¶ 11. Mr. Kirkland told Plaintiff to fire both employees, then changed his mind and told Plaintiff to "get rid of" only the female exempt employee because the male employee was more valuable. Id. Mr. Kirkland told Plaintiff to make the female employee‟s life so miserable that she would quit. Id. Plaintiff informed Mr. Kirkland that Guardian had no policy against employees dating and that to terminate an employee for this would be unlawful. Id. She refused to fire the female employee or take any action that would cause her to quit. Id.
Mr. Kirkland became upset with Plaintiff and began to shun her. Id. at ¶ 12. Plaintiff attempted to contact Guardian‟s corporate attorney about Mr. Kirkland‟s demand, but had to leave a message. Id. at ¶ 13. Plaintiff then contacted Guardian‟s corporate Human Resources Director, Krissy Janz, to tell her about Mr. Kirkland‟s demand and express her concern about retaliation. Id. Ms. Janz told Plaintiff that she did not need to talk to the corporate attorney and that she would visit Kingsburg to investigate. Id. Mr. Kirkland learned that Plaintiff had consulted with Ms. Janz and was furious. Id. at ¶ 14. He "launched into a rant" in which he threatened to terminate her several times. Id. Mr. Kirkland told Plaintiff that Bruce Cummings, Guardian‟s
Vice President of Human Resources, "doesn‟t even like [her] anymore." Id. Plaintiff explains that she is a lesbian in a longtime relationship with a Guardian employee who works at the Reedley facility. Id. at ¶ 15. Plaintiff believes that this is common knowledge to Guardian management. Id. In the past, Mr. Cummings asked Plaintiff if they planned to have children and if so, which partner would give birth to the child. Id. Mr. Cummings reacted negatively to the possibility that Plaintiff might become pregnant. Id. Plaintiff alleges that Mr. Cummings instructed the Plant Manager at Reedley to terminate Plaintiff‟s partner because of their relationship. Id. However, Plaintiff does not allege that any termination occurred.
On or about November 2, 2010, Ms. Janz met with Plaintiff and told her that she was not the right person to work with Mr. Kirkland. Id. at ¶ 16. Ms. Janz offered to transfer to a plant in Indiana or a severance package. Id. Plaintiff was unable to relocate and was terminated effective November 12, 2010. Id. Plaintiff believes that Guardian terminated her because she refused to engage in unlawful activity and because of her sexual orientation. Id. Plaintiff believes that Mr.
Cummings participated in, and approved, the decision to terminate her. Id. Plaintiff filed a complaint with the California Department of Fair Employment and Housing ("DFEH complaint") and received a right to sue letter in November 2011. Id. at ¶18.
A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding whether to grant a motion to dismiss, the court "accept[s] all factual allegations of the complaint as true and draw[s] all reasonable inferences" in the light most favorable to the nonmoving party.
Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir. 2002). To survive a 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 (2007)).
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. The plausibility standard "is not akin to a "probability requirement,‟ but it asks for more than a sheer possibility that defendant has acted unlawfully. Where a complaint pleads facts that are "merely consistent with‟ a defendant‟s liability, it "stops short of the line between possibility and plausibility of entitlement to relief.‟" Id. (citing Twombly, 550 U.S. 556-57).
Nevertheless, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While the standard does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S. Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").
In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See, Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988).
Defamation Claim Against Mr. Kirkland In Light of the Court‟s Order Denying Remand.
On January 6, 2012, Plaintiff filed a motion for remand. ECF No. 16. Plaintiff asserted the case had been wrongfully removed in violation of 28 USCA §1441(b)(2) because Mr. Kirkland is "a citizen of the State [of California] in which the action is brought." ECF. No. 17. Guardian opposed, alleging that Mr. Kirkland was a "fraudulently joined" and/or "sham" defendant because the Complaint failed to state a claim against the California-resident Defendant. ECF No. 23.
Following full briefing and a hearing, the Court denied Plaintiff‟s Motion to Remand, finding that Plaintiff‟s allegations were insufficient to state a defamation claim against Mr. Kirkland under either California or federal pleading standards. ECF No. 29 at 5. The Court further found that Plaintiff was unable to allege any additional facts which could be added through amendment that would constitute a claim against Mr. Kirkland. ECF No. 29 at 7, n. 2. In Plaintiff‟s Opposition to Mr. Kirkland‟s Motion to Dismiss, she attempts to re-argue the identical issue previously ruled on by the Court‟s Order Denying Plaintiff‟s Motion to Remand. "[A] court should not reopen issues decided in earlier stages of the same litigation,"
Agostini v. Felton, 521 U.S. 203, 236 (1997), particularly in the instance where no new argument, law, facts, or evidence is presented to demonstrate that some injustice has occurred. See e.g., Mayweathers v. Terhune, 136 F. Supp. 2d 1152, 1154(E.D. Cal. 2001). Accordingly, Plaintiff‟s defamation claim against Mr. Kirkland is DISMISSED WITHOUT PREJUDICE, and Mr. Kirkland is DISMISSED from this action. Plaintiff‟s First Claim: Violation of California Labor Code § 1102.5 Against Guardian.
Exhaustion of Administrative Remedies.
The parties dispute whether exhaustion of administrative remedies is necessary prior to bringing a § 1102.5 claim. Plaintiff‟s argument relies chiefly on Creighton v. City of Livingston, 2009 WL 3246825, No. CV-F-08-1507 OWW/SMS (E.D. Cal. Oct. 7, 2009) (Creighton II) and Lloyd v. County of Los Angeles, 172 Cal. App. 4th 320 (Cal. App. 2nd Dist. 2009), both of which found that "[e]xhaustion of administrative remedies before the Labor Commissioner before filing ...