The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING MOTION TO DISMISS FIRST AMENDED COMPLAINT (Doc. 14)
Defendants BNSF Railway Company ("BNSF") and Ben Sheets ("Sheets") (collectively "Defendants") filed the instant motion to dismiss the First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on March 29, 2012. The matter was heard on May 11, 2012, before the Honorable Dennis L. Beck, United States Magistrate Judge. Attorney Melissa Greenidge appeared telephonically on behalf of Defendants. Attorney John Furstenthal appeared telephonically on behalf of Plaintiffs Jose A. Garza, Eric Finley and Jerry Harris ("Plaintiffs").
Plaintiffs filed this action against Defendants on January 5, 2012. Plaintiffs assert claims of employment discrimination on the basis of actual or perceived race and ethnicity, along with retaliation and common law tort claims.
On February 7, 2012, Defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The primary basis of Defendants' motion was that the complaint plead conclusory statements rather than factual allegations.
On March 1, 2012, Plaintiffs filed a First Amended Complaint ("FAC"), along with an opposition to the motion to dismiss. The FAC added several paragraphs of general statements of fact concerning the allegations of harassment, discrimination and retaliation.
These added allegations included:
Defendant Sheets called racial minorities, including the races to which Plainitffs [sic] belonged, "Pumpernickles" because of the color of their skin. He used this term so as not to arouse suspicion of the minorities he was singling out. Sheets and other members of management, and non-management employees, used the term regularly, including but not limited to times on the internal radio communication system used by the railroad. They would use the term to signify which employees should be treated negatively. Sheets and other management and non-management employees ratified the use of the term by others. Complaints were brought to management's attention regarding the use of the term and nothing was done to correct the problem. Defendant Sheets further confused African American employees with one another, for which he issued apology letters. Sheets and other management and non-management employees, when discussing President Obama, indicated that they would not want to report to an African American boss, and/or that they do not approve of African Americans being in a position of power. Such discussions indicate a discriminatory mindset by Defendant Sheets and by Defendant BNSF. FAC ¶ 13.
Sheets and other management employees would treat racial minorities, including Plaintiffs, differently because of their race. For example, Mr. Sheets and other management employees would avoid eye contact. They would yell, curse, and raise their voice. These actions were aimed at racial minorities, including Plaintiffs, and not at Caucasians. FAC ¶ 14.
Additionally, Sheets and other management employees would selectively penalize or punish racial minorities and favor Caucasian employees.
For example, Sheets and other management employees would bring "investigations" against racial minorities and not against Caucasians, resulting in greater discipline for racial minorities, including the Plaintiffs in this case.
Further, Sheets and other management employees would set up racial minorities, including Plaintiffs, and not Caucasians, to fail. For example, Sheets and other management employees would conduct more "testing" of racial minorities including the Plaintiffs in this case than Caucasians. This practice would result in a false pretense for bad treatment of racial minorities. The racial minorities, including Plaintiffs, would be punished more, receive less pay, and get worse jobs as a result of this differential treatment. At times, management would indicate to racial minorities, including Plaintiffs, that "I got you" or similar words, illustrating their desire to set them up to fail. FAC ¶ 16.
Additionally, management indicated that negative treatment was the result of the complaints made about negative treatment because of and comments made about the Plaintiffs' races. Additionally, the negative treatment, including excessive punishment and investigations, has continued or gotten worse as a result of internal complaints, bringing the DFEH charges, and this lawsuit. FAC ¶ 17.
Additional details are described above. Sheets and other management and BNSF acted in discriminatory ways as they treated racial minorities worse than Caucasians, resulting in less pay, worse working conditions, worse jobs, and additional punishments. FAC ¶ 28.
On March 15, 2012, the Court permitted Plaintiffs to file the FAC and denied the motion to dismiss as moot. However, the Court also dismissed with prejudice the second cause of action against Defendant Sheets, finding that an individual defendant cannot be liable for retaliation under Title VII and California Government Code § 12940(h).
On March 29, 2012, Defendants filed their Rule 12(b)(6) motion to dismiss the FAC. On April 23, 2012, Plaintiffs opposed the motion, and Defendants replied on May 4, 2012.
FACTUAL ALLEGATIONS IN THE FAC
This race and ethnicity discrimination action is brought by Plaintiffs Jose Garza, a Mexican American male, Plaintiff Eric Finley, an African American male who now resides in Texas, and Plaintiff Jerry Harris an African American male. Plaintiffs name their employer BNSF and their supervisor/manager Ben Sheets as defendants.
Plaintiffs allege that Defendant Sheets verbally harassed them on a continuing basis until his departure in 2011 by referring to racial minorities as "Pumpernickles." Sheets and other management team members allegedly used the term on the internal radio communication system to signify which employees should be treated negatively. Complaints regarding the term were reported, but nothing was done to correct the problem. FAC ¶13.
Plaintiffs further allege that Defendant Sheets confused African American employees with one another for which he issued apology letters. Further, Sheets and other employees, when discussing President Obama, reportedly stated that they would not want to report to an African American boss and/or that they did not approve of African Americans being in a position of power. FAC ¶13.
Plaintiffs also allege that Defendant Sheets made inappropriate comments related to their races. Sheets and other management employees allegedly treated racial minorities, including Plaintiffs, differently because of their race, such as avoiding eye ...