The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO DISMISS; DENYING LEAVE TO AMEND; DECLINING TO
EXERCISE SUPPLEMENTAL JURISDICTION OVER STATE LAW CLAIMS; DISMISSING
STATE LAW CLAIMS WITHOUT PREJUDICE
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 Second Amended Complaint ("SAC") of Plaintiff Garry C. Stoklas ("Plaintiff" or "Stoklas"). Plaintiff did not file an opposition to the motion. Rather, Plaintiff moved, without filing a memorandum of points and authorities, for leave to file a Third Amended Complaint ("TAC"). 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, denies the motion to amend as futile, and declines to exercise supplemental jurisdiction over the state law claims. The Clerk of Court is instructed to close the file.
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 numerous state laws 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.*fn1
(TAC ¶13). 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. (TAC ¶14). At this point in time, Plaintiff was a salaried employee with full benefits. 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. (TAC ¶18).
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.'" (TAC ¶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." (TAC ¶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. (TAC ¶24).
In December 2010, Plaintiff met with the newly appointed CFO, Defendant Johnson, to discuss his department's operations. At this meeting, Plaintiff informed Johnson that he would retire within a few years. (TAC ¶26). In February 2011, Plaintiff was informed that his goals for the first quarter were to (1) produce $120,000 in departmental revenue and (2) change broker dealers in the second quarter. (TAC ¶26). Plaintiff was also informed that SCFCU would provide marketing support. Plaintiff allegedly "knew this was also a lie." (TAC ¶28). In March 2011 Plaintiff suffered a detached retina requiring surgery and constant medical attention. (TAC ¶32).
On April 25, 2011 Plaintiff provided to Johnson the revenue report for the first quarter. The revenue generated by Plaintiff was 97% of the targeted goal. Johnson informed Plaintiff that he was "going forward with the broker dealer change." (TAC ¶34). Plaintiff sought to further discuss the issue with Johnson but he was ignored. (TAC ¶35). Around this same time, Plaintiff alleges that CEO Walk asked him "if he was still retiring when Plaintiff repeatedly had said he was." Id.
On May 17, 2011 Plaintiff met with CFO Johnson. At that meeting, Plaintiff was informed that he was being terminated. (TAC ¶37). Plaintiff was instructed to sign a Separation Agreement along with several other documents. Plaintiff declined to sign the Separation Agreement and SCFCU did not provide Plaintiff with his final check. On May 19, 2011 Plaintiff signed all the documents, except the Separation Agreement, and he received his final check. (TAC ¶41). Plaintiff alleges that he has "always been an excellent employee with no performance issue" and therefore concludes "it could only be his age that was motivating Plaintiff's termination." (TAC ¶42).
In the FAC, Plaintiff alleged that SCFCU had offered Plaintiff an independent contractor position with the new financial services company. Johnson informed Plaintiff that he would be offered an independent contractor position and "that the credit union would provide marketing support. Plaintiff was offered an independent contractor position with Credit Union Financial Network ("CUFN") and provided with three days to sign the agreement. (FAC ¶39). 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 the motion and moves for leave to file the TAC.