The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER GRANTING MOTION TO DISMISS SECOND AMENDED COMPLAINT (Doc. 27)
Defendants BNSF Railway Company ("BNSF") and Ben Sheets ("Sheets") (collectively "Defendants") filed the instant motion to dismiss the Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on July 16, 2012. The matter was heard on August 24, 2012, before the Honorable Dennis L. Beck, United States Magistrate Judge. Attorney Thomas Cregger appeared telephonically on behalf of Defendants BNSF and Sheets. Attorney John Furstenthal appeared telephonically on behalf of Plaintiffs Jose A. Garza, Eric Finley and Jerry Harris ("Plaintiffs").
Plaintiffs filed this action on January 5, 2012. Plaintiffs assert claims of harassment and employment discrimination on the basis of actual or perceived race and ethnicity, along with claims of retaliation and intentional infliction of emotional distress.
On February 7, 2012, Defendants filed a motion to dismiss the original complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.
On March 1, 2012, Plaintiffs filed a First Amended Complaint ("FAC"), along with an opposition to the motion to dismiss. On March 15, 2012, the Court issued an order permitting Plaintiffs to file the FAC and denying the motion to dismiss as moot. However, the Court dismissed with prejudice Plaintiffs' retaliation cause of action against Sheets, finding that an individual defendant cannot be liable for retaliation under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., or the California Fair Employment and Housing Act ("FEHA"), Government Code § 12900 et seq.
On March 29, 2012, Defendants filed a motion to dismiss the FAC. On June 11, 2012, the Court granted the motion. By its order, the Court dismissed with prejudice Plaintiffs' claims for discrimination under Title VII and FEHA against Sheets and for harassment under Title VII against Sheets. The Court also granted Plaintiffs leave to amend the following claims: (1) harassment under Title VII and FEHA against BNSF; (2) harassment under FEHA against Sheets; (3) retaliation against BNSF; (4) failure to prevent harassment against BNSF; and (5) intentional infliction of emotional distress.
Plaintiffs filed their Second Amended Complaint ("SAC") on July 2, 2012. Defendants filed the present motion to dismiss on July 16, 2012. Plaintiffs opposed the motion and Defendants replied.
FACTUAL ALLEGATIONS IN THE SAC
This race and ethnicity discrimination action is brought by Plaintiff 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 Sheets verbally harassed them on a continuing basis until his departure in 2011 by referring to racial minorities as "Pumpernickels." Sheets used this term over the radio on July 5, 2009, regarding an African American employee named Will Thomas to alert workers to the presence of at least one African American worker. This practice followed a discussion of the term with non-management employees, including Neal Jensen. Plaintiffs allege that "someone told Mr. Sheets to use the term, or about its definition." SAC ¶ 13. Sheets and other management team members allegedly used the term on the internal radio communication system to signify which employees should be treated negatively. Manager Darrell Kitchen received notice that the word "pumpernickel" was being used as a code word for African Americans and other employees of color, but did not report the problem. SAC ¶ 13.
In 2009, Plaintiff Harris complained to managers Darrell Kitchen and Brad Welte about poor treatment because of his race. Kitchen and Welte "failed to stop the poor treatment of African American or Mexican American employees." SAC ¶ 13.
At "diversity counsel" meetings, employees complained to management about Sheets' racial discrimination and harassment, but noting was done. Plaintiffs state that "[d]etails about the time and locations of those complaints are uncertain at this point." SAC ¶ 13.
Plaintiffs further allege that Defendant Sheets confused African American employees with one another for which he issued apology letters in July 2009 to Plaintiff Harris and employee Will Thomas. Plaintiffs allege that "Sheets could not tell one African American worker from another because of his discriminatory animus." SAC ¶ 13. 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. SAC ¶13. Plaintiffs contend that employees Lance Peak and Neal Jensen made these comments at an unknown time on BNSF property. Plaintiffs further allege that Lance Peak indicated that BNSF would approve of his being a member of the Ku Klux Klan, but it is uncertain what other employees or managers were present. SAC ¶ 13.
Plaintiffs allege that 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 contact, yelling, cursing and raising their voices. SAC ¶ 14. Management, including Sheets, would direct shuttle drivers to provide more favorable treatment to Caucasian employees at the expense of racial minorities. Contract shuttle driver Crystal Thomas witnessed better treatment of Caucasian workers, as they got better drop off and pick up locations. Plaintiffs allege that this activity "involved at least Gary (last name unknown) at the Calwa yard." SAC ¶ 14.
Plaintiffs claim that because of the harassment they had to miss work and take less favorable jobs. Sheets and other management employees allegedly penalized or punished racial minorities and favored Caucasian employees, such as bringing "investigations" against racial minorities resulting in greater discipline for racial minorities, including Plaintiffs. Sheets and other management employees also would conduct more "testing" of racial minorities, including Plaintiffs. Such practice resulted "in a false pretense for bad treatment of racial minorities," including more punishment, less pay and worse jobs. Management would say "I got you" or similar words to minorities, including Plaintiffs. SAC ¶ 16.
Plaintiffs contends that BNSF failed to take corrective action to prevent and to stop the racial harassment. Management reportedly indicated that negative treatment was a result of complaints made about negative treatment. The negative treatment continued and worsened as a result of internal complaints, Department of Fair Employment and Housing ("DFEH") charges and this action. SAC ¶ 17.
Plaintiff Garza reportedly applied for a management job as trainmaster in early 2012. He interviewed for the job, and despite being qualified, was turned down by manager Mark Kirshinger. Manager Kitchen told him that he had done a good job with the application and interview. SAC ¶ 17.
In early 2012, Plaintiffs Garza and Harris were punished for going through a "red block" and given 30 days of discipline. Plaintiffs allege that they would not have been given the discipline by management had they not been minorities. Plaintiff Garza further alleges that the unfair discipline and his race "played a role in managers turning him down for the job of trainmaster in early 2012." SAC ¶ 17.
In 2010 or 2011, Plaintiff Finley claims that he was given excessive discipline for violation of a "form B." He missed approximately one week of pay, was "put on a 'restricted license,' and was placed on probation for one year. Sheets reportedly stated that he was after Finley. The actions allegedly were race based because other Caucasian workers in a similar circumstance were given lesser or no discipline. SAC ¶ 17.
Plaintiffs Garza and Harris allege lost wages from discipline. Plaintiff Garza also alleges lost wages from the refused promotion to trainmaster and "potentially other subsequent management jobs." SAC ¶ 17.
At some unknown time, Sheets brought discipline against Plaintiff Garza "for nothing while letting slide the infractions of Caucasian co-workers Dave Pettus and Tom Bones." Sheets reportedly told Plaintiff Garza, "'I got you,' indicating his plan to find something for which to punish Mr. Garza, as a result of his discriminatory intent." Sheets previously told Plaintiff Garza that "I got you" for failing to line a derail, which wasroutinely left unlined by all ...