The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO DISMISS; GRANTING LEAVE TO AMEND
Pursuant to Fed.R.Civ.P. 12(b)(6), Defendants Sun Community Federal Credit Union ("SCFCU"), Harold Walk ("Walk"), and Dale Johnson ("Johnson") move to dismiss all claims alleged in the First Amended Complaint ("FAC") of Plaintiff Garry C. Stoklas ("Plaintiff" or "Stoklas"). Plaintiff opposes the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court grants the motion to dismiss the federal age discrimination claim and grants Plaintiff 15 days leave to amend from the date of entry of this order.
On October 13, 2011, Plaintiff commenced this federal question action by alleging a single claim for violation of the Age Discrimination in Employment Act (ADEA"), 29 U.S.C. §621I et seq., and supplemental jurisdiction over the state law claims. (Ct. Dkt. 1). In January 1997, Plaintiff, currently a 62-year-old Caucasian male, was employed by SCFCU as a part-time courier and part-time accountant equaling one full-time position. (FAC ¶11). He was paid hourly with full benefits. In June 1998 Plaintiff transferred to the real estate loan department as a loan processor. Id.
After obtaining an insurance license and securities registration, on June 1, 2001, Plaintiff became the registered representative of financial services for SCFCU. (FAC ¶13). At this point in time, Plaintiff was a salaried employee with full benefits. Through 2004 Plaintiff "had been a one-man department." In 2005, Plaintiff met with the then recently appointment CEO, Defendant Walk, to discuss marketing needs and administrative assistance. While Walk showed initial interest, the plan languished. (FAC ¶17).
At a manager's planning retreat in August 2010, Walk made a comment that Plaintiff "would not continue with the celebratory activities at private clubs with the 'younger folks.'" (FAC ¶22). Plaintiff alleges that his age was the subject of comments on several different occasions where he and another employee were referred to as the "old ones." (FAC ¶23). At the planning retreat, the subject of Plaintiff's retirement was raised as well as the need for greater marketing for Plaintiff's department. (FAC ¶25).
In December 2010, Plaintiff met with the newly appointed CFO, Defendant Johnson, to discuss his department's operations. In February 2011, SCFCU informed Plaintiff that it was considereing a new broker dealer for the financial services provided by Plaintiff's department. In a conference call with the proposed new broker dealer, LPL Financial ("LPL"), LPL represented that "their registered representatives were independent contractors registered through LPL." (FAC ¶31). ¶
On April 2, 2011, Plaintiff received an email from Johnson requesting first- quarter revenue information for the alleged purpose of determining whether Plaintiff had earned a quarterly bonus. Upon receipt of the information, Johnson informed Plaintiff that he failed to meet the goal of $30,000 in gross revenues (he collected $29,200 in gross revenues). (FAC ¶34). Johnson then informed Plaintiff that he intended to go ahead and change broker dealers to CUFN/LPL. (FAC ¶33).
On May 17, 2011, "Johnson informed [Plaintiff] that he was being terminated immediately. Contrary to the facts, Johnson stated Plaintiff was not performing, that Plaintiff was 'costing the credit union money,' and his position (department) was being outsourced." (FAC ¶35).
Johnson informed Plaintiff that he would be offered an independent
contractor position and
"that the credit union would provide marketing support. Based on
experience, Plaintiff knew SCFCU would not provide any support." (FAC
¶36). Plaintiff was offered an independent contractor position with
Credit Union Financial Network ("CUFN") and provided with three days
to sign the agreement. (FAC ¶39). On May 19, 2011, Plaintiff refused
to sign the proposed Separation Agreement or the Independent
Representative Agreement. (FAC ¶41). Plaintiff alleges that SCFCU
never changed broker dealers "which proves that all along SCFCU
plotted to terminate Plaintiff due to his age rather than a legitimate
business decision." (FAC ¶42).
Based upon the above generally described conduct, Plaintiff alleges eight causes of action for: (1) age discrimination in violation of ADEA and FEHA, (2) wrongful termination in violation of public policy, (3) breach of contract, (4) breach of the implied covenant of good faith and fair dealing; (5) negligent supervision, (6) harassment based upon age in violation of Cal. Gov. Code §12940(j)(1), (7) harassment based upon age in violation of Cal. Gov. Code §12940(j)(3), and (8) intentional infliction of emotional distress.
Defendants move to dismiss the federal ADEA claim and the state law claims. Plaintiff opposes all motions.