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Priscilla Fountain v. Dsw Shoe Warehouse

October 18, 2012


The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court


Pending before the Court is Defendant DSW Shoe Warehouse, Inc.'s motion to dismiss the complaint (Doc. 4). For the reasons set forth herein, the Court GRANTS IN PART and DENIES IN PART Defendant's motion.


This is the second action before this Court between the same parties arising out of the same operative facts. The first action was captioned Fountain v. DSW Shoe Warehouse, Inc., et al., No. 10cv01318 (S.D. Cal.). In both actions, Plaintiff alleged the following:

Defendant DSW Shoe Warehouse Inc. ("Defendant" or "DSW") employed Plaintiff Priscilla A. Fountain, an African-American female, from June 2002 until June 23, 2009, in a managerial capacity. In 2007, DSW's district manager promised Plaintiff, a high-performing employee, that she would become the manager of DSW's store in La Jolla (the "La Jolla Store") in 2008. (Compl. ¶ 13.) However, in May 2008, Plaintiff was passed over for the job, and DSW management instead gave the job to a Caucasian female with less industry experience. (Id. ¶ 15.) In September 2008, the Regional Manager assigned Plaintiff to work at the La Jolla Store as "Merchandise Manager," a position under the less qualified Caucasian store manager. (Id. ¶ 16.) Plaintiff confronted the Regional Manager and "complained that she was being discriminated against yet no action was taken on her complaint." (Id.)

Also in September 2008, a human resources manager at DSW informed Plaintiff that DSW "was probably violating the anti-discrimination laws by changing its company image to conform to a 'certain look' for [its] employees[,]" and Plaintiff observed "that DSW was promoting Caucasians over more qualified minority employees." (Id. ¶ 17.)

Beginning in September 2008, Plaintiff worked under the Caucasian store manager at the La Jolla Store. (Id. ¶ 18-19.) During this period, Plaintiff observed, personally experienced, and reported unspecified "discriminatory employment practices and policies against herself and other African-American employees and Hispanic employees . . . . by the Caucasian store manager[,]" and reported this discrimination to DSW management. (Id. ¶ 18.) The Caucasian store manager retaliated against Plaintiff for making these complaints "by falsely criticizing and disciplining plaintiff and interfering with her ability to perform her duties as Merchandise Manager." (Id.)

In February 2009, Plaintiff was demoted to assistant manager, with a decrease in pay, despite the availability of a merchandise manager position at a nearby store-all allegedly on account of her race. (Id. ¶ 19.)

In April 2009, Plaintiff heard from a third party that the Caucasian store manager had "openly referred to [her] as 'that fucking black bitch.'" (Id. ¶ 20.) At this point, Plaintiff "reported to the district manager that she felt she was being singled out and subject to illegal harassment, discrimination and retaliation. At no time did DSW conduct any meaningful investigation into plaintiff's complaints or take action to prevent further unlawful actions against plaintiff." (Id.)

On June 23, 2009, the Caucasian store manager called Plaintiff into her office and "falsely accused plaintiff of repeated company policy violations." (Id. ¶ 22.) Specifically, the she accused plaintiff of permitting an employee to leave without emptying the trash, failing to inspect an employee's bag, and locking the store door too early. Plaintiff disproved all these accusations by showing security video recordings to the store manager. (Id.) On that same day, Plaintiff ended her employment relationship with DSW. (Id. ¶ 23)

On June 22, 2010, Plaintiff filed a complaint with the California Department of Fair Employment and Housing, alleging termination, harassment, failure to prevent discrimination or retaliation, retaliation, and failure to take action. (RJN Ex. 5.)


Under Fed. R. Civ. P. 8(a)(2), the plaintiff is required only to set forth a "short and plain statement" of the claim showing that the plaintiff is entitled to relief and giving the defendant fair notice of what the claim is and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47 (1957). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should be granted only where the plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).

When reviewing a motion to dismiss, the allegations of material fact in the plaintiff's complaint are taken as true and construed in the light most favorable to the plaintiff. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Although detailed factual allegations are not required, factual allegations "must be enough to raise a right to relief above the speculative level." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). "A plaintiff's obligation to prove the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of ...

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