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Crisostomo v. Akima Facilities Management, LLC

United States District Court, N.D. California

February 19, 2014





Plaintiff Daniel Crisostomo brings this wrongful termination action against Defendant Akima Facilities Management, LLC. (Dkt. No. 1, Ex. A ("Complaint").) As presently framed, the gravamen of Plaintiff's Complaint is that Defendant unlawfully fired him from his position as an electrician at a U.S. Department of Agriculture facility in Albany, California, after Plaintiff reported to a workplace supervisor that two co-workers had stolen copper pipe from the facility. ( Id. ¶¶ 8-10.) Thereafter, Plaintiff allegedly was subjected to a variety of harassing behaviors by his supervisor and others. ( Id. ¶¶ 11-23.) The alleged harassment allegedly caused Plaintiff to suffer from "stress symptoms" consisting of a stutter and "heart, lung, and stomach symptoms." ( Id. ¶ 19.) These symptoms allegedly prompted Plaintiff to file a workers' compensation claim. ( Id. ¶ 21.) Plaintiff further alleges that Defendant failed to comply with a written request to provide Plaintiff with a copy of his employment records. ( Id. ¶ 22.) Defendant ultimately terminated Plaintiff from his position, allegedly "to harass and retaliate against [Plaintiff] in response to [Plaintiff's] report of theft...." ( Id. ¶ 23.) Plaintiff filed a Complaint of Discrimination with California's Department of Fair Employment and Housing ("DFEH") and received a right-to-sue letter. ( Id. ¶ 25; Compl., Ex. A ("DFEH Complaint").) Plaintiff thereafter filed this lawsuit in California state court. Defendant, a Colorado LLC whose members are Alaska citizens, removed the case to this Court on diversity grounds. (Dkt. No. 1 ¶¶ 8-24.)[1]

Plaintiff's Complaint asserts four causes of action arising under California law: (1) work environment harassment in violation of California's Fair Employment and Housing Act ("FEHA"), California Government Code section 12940(j); (2) retaliation in violation of FEHA, California Government Code section 12940(h); (3) retaliation in violation of California Labor Code section 6310; and (4) a request for injunctive relief and penalty under California Labor Code section 226. On November 12, 2013, Defendant filed a motion to dismiss all four claims with prejudice. (Dkt. No. 7 ("Motion").) The Motion is fully briefed. (Dkt. Nos. 12 ("Opp'n"), 17 ("Reply").)

Having given the pleadings and briefs in this action full consideration, for the reasons set forth below the Court GRANTS Defendant's Motion to the extent it seeks dismissal of Plaintiff's first, second, and third claims, but DENIES the Motion insofar as it seeks dismissal of Plaintiff's fourth claim, or dismissal of any claim with prejudice.[2] Plaintiff has LEAVE TO AMEND his Complaint.



Defendant argues that Plaintiff's first and second claims, which assert violations of FEHA, fail because reporting workplace theft is not a protected activity under California Government Code section 12940, subsections (h) and (j). (Mot. at 6-7.) Plaintiff tacitly concedes this point in his Opposition by reframing the cause of the alleged harassment, switching from the report of workplace theft that he stressed in both his DFEH Compliant and his Complaint before this Court, to his filing of a worker's compensation claim. (Opp'n at 5-6.) Accordingly, the Court GRANTS Defendant's Motion with respect to Claims 1 and 2. Even without Plaintiff's concession, the Complaint as presently framed fails to meet federal pleading standards concerning Plaintiff's apparently revised theory, as it emphasizes that the alleged wrongful termination occurred as a result of Plaintiff's report of theft. See Starr v. Baca, 633 F.3d 1191, 1204 (9th Cir. 2011) (complaint must be "sufficiently detailed to give fair notice to the opposing party of the nature of the claim").

Defendant offers three reasons to dismiss Plaintiff's FEHA claims with prejudice, none of which persuade. First, Defendant suggests that amendment would be futile because "workers' compensation retaliation cases cannot be heard in court." (Reply at 3.) The sole case Defendant cites for this proposition, however, states merely that California Labor Code section 132a, which prohibits retaliation against injured workers, bars common-law tort claims-not, as Defendant implies, all workers' compensation retaliation claims. Dutra v. Mercy Med. Ctr. Mt. Shasta, 209 Cal.App.4th 750, 756 (2012). Hence, Defendant's cited authority fails to carry its burden of persuasion. Second, Defendant invokes California's "sham pleading" doctrine to argue that Plaintiff impermissibly seeks to evade dismissal by having omitted relevant allegations from his Complaint. (Reply at 3-4.) Assuming arguendo that a California state pleading doctrine has any applicability in this Federal court, Defendant fails to show what allegations Plaintiff omitted. While it is true that Plaintiff's Complaint identifies his report of workplace theft as the cause of the harassment, Plaintiff's Complaint and DFEH Complaint both include Plaintiff's worker's compensation claim. Contrary to Defendant's characterization, neither the Complaint in this Court nor Plaintiff's DFEH Complaint omitted his worker's compensation claim. Finally, Defendant argues that Plaintiff cannot amend his Complaint because it, as well as the DFEH Complaint, stressed that the basis of the alleged harassment was Plaintiff's report of workplace theft; Defendant suggests that amendment to identify a different basis for membership in a class protected by FEHA would overstep the authorization to sue provided by DFEH. ( See Reply at 3; see also Mot. at 7-8 (arguing that failure to assert membership in a class protected by FEHA results in a failure to exhaust administrative remedies).) The Court disagrees. The DFEH's right-to-sue letter indicated that it had been issued because Plaintiff requested an immediate right-to-sue letter because he wished to proceed in court. The DFEH granted him the right to sue on that basis, and did not specifically limit the scope of Plaintiff's lawsuit to only the legal theory articulated in the DFEH Complaint. (Compl., Ex. A, at A1.) Defendant proffers no authority that would preclude Plaintiff from amending his Complaint in these circumstances, especially in view of the "extremely liberality" with which Federal courts must give leave to amend. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003).

Defendant's Motion with respect to Claims 1 and 2 is GRANTED IN PART AND DENIED IN PART. Claims 1 and 2 are DISMISSED, and Plaintiff has LEAVE TO AMEND consistent with his representations to the Court and the guidance in this Order.


Plaintiff's third claim asserts unlawful retaliation in violation of California Labor Code section 6310. That code section provides, in pertinent part:

Any employee who is discharged... by his or her employer because the employee has made a bona fide oral or written complaint to... his or her employer... of unsafe working conditions, or work practices, in his or her employment or place of employment... shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer.

Cal. Lab. Code § 6310(b) (emphasis supplied). Plaintiff argues that the allegations of his Complaint are "consistent with reports of unsafe working conditions or work practice" because "Plaintiff initially told a safety supervisor that co-workers were stealing material from the place of employment; these co-workers were friends of another supervisor; [and] ...

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