United States District Court, E.D. California
For Jose Cervantes, an Individual, Jorge Montes, an Individual, Plaintiffs: Kirby Fernando Canon, LEAD ATTORNEY, The Diaz Law Firm, Fresno, CA; Maria G. Diaz, LEAD ATTORNEY, Diaz Law Firm, Fresno, CA; Nathan Goldberg, LEAD ATTORNEY, Allred, Maroko & Goldberg, Los Angeles, CA.
For Cemex, Inc., a Corporation, Defendant: Dorothy S. Liu, LEAD ATTORNEY, Hanson Bridgett LLP, San Francisco, CA; David Alexander Abella, Hanson Bridgett, LLP, San Francisco, CA.
ORDER ON MOTION FOR JUDGMENT ON THE PLEADINGS AND MOTION FOR SUMMARY JUDGMENT (Docs. 57, 67)
Lawrence J. O'Neill, UNITED STATES DISTRICT JUDGE.
Plaintiffs Jose Cervantes and Jorge Montes (collectively, " Plaintiffs") bring this action for discrimination and harassment in violation of 42 U.S.C. § 2000e, et seq . (" Title VII") and California's Fair Employment and Housing Act, Cal. Gov. Code § 12940, et seq., (" FEHA") as well as for failure to prevent discrimination and retaliation in violation of FEHA § 12940(k) and unlawful workplace language policy in violation of FEHA § 12951 against Defendant Cemex, Inc. (" Cemex"). Before the Court are Plaintiffs' motion for judgment on the pleadings and request to strike as to Cemex's affirmative defenses and Defendant Cemex's motion for summary judgment of Plaintiffs Cervantes and Montes' complaint. For the reasons discussed below, the Court GRANTS in part Plaintiffs' request to strike Cemex's affirmative defenses, DENIES in part Plaintiffs' motion for judgment on the pleadings, GRANTS in part Cemex's motion for summary adjudication as to Plaintiffs' claims, and DECLINES to exercise supplemental jurisdiction over and DISMISSES without prejudice the remaining state law claims.
A. Facts Alleged in First Amended Complaint
Plaintiffs are both of Hispanic descent and were employed by Cemex. Cervantes speaks English and Spanish. Montes speaks Spanish and limited English.
Cervantes began employment at Cemex on or around July 6, 2006 as a mixer driver. Cervantes alleges that he was told by Cemex to speak only English at work, including on the company radio, and that he was disciplined for speaking Spanish in violation of Cemex's policy. In or around March 2010, Cervantes alleged that he was told by Cemex Human Resources Manager James Hamilton (" Hamilton") that Cervantes would be suspended if he continued to speak Spanish at work. Plant Manager Alan Light (" Light") witnessed Hamilton's statement to Cervantes. Cervantes also alleges that he was forced to sign a letter stating that he would be terminated for further incidents. On or about October 11, 2012, Light suspended Cervantes for not completing a post-trip inspection of his vehicle. Cervantes alleges that non-Latino drivers have not been suspended for failing to complete post trip inspections.
Montes began employment at Cemex on or around May 2008 as a mixer driver. In or about 2010, Montes was told that he could only speak English at work as part of a new policy at Cemex. Montes alleges that, in or about 2010, Cemex Area Manager Keith Stogdell (" Stogdell") forced Montes to read English out loud at meetings, telling his co-workers not to help him, and laughing at him because of his difficulty in pronouncing English words. On November 27, 2012, Light suspended Montes for failing to report a problem with a tire in his vehicle. Montes alleges that he in fact reported the tire problem to the mechanic who is responsible for fixing it.
Cervantes and Montes each filed charges of national origin discrimination and harassment with the Equal Employment Opportunity Commission (" EEOC"). On or around April 4, 2012, the EEOC issued a letters of determination to Cervantes and to Montes. Each letter stated that the EEOC's investigation supports a finding that there is reasonable cause to believe the charging party was subjected to unwelcome harassment and different terms and conditions of employment based on his national origin. On or around August 31, 2012, the EEOC issued to Plaintiffs notice of right to sue following conciliation failure and the EEOC's decision not to bring suit based on Plaintiffs' charges.
B. Procedural History
On or about May 24, 2010, Cervantes filed a charge of discrimination alleging national origin discrimination against Cemex with the EEOC, and the charge was filed simultaneously with California's Department of Fair Employment and Housing (" DFEH"). Cervantes received right-to-sue letters from the DFEH on or about May 26, 2010 and from the EEOC on or about August 31, 2012.
On or about August 16, 2010, Montes filed a charge alleging national origin discrimination against Cemex with the EEOC that was also filed simultaneously with the DFEH. Montes received right-to-sue letters from the DFEH on or about August 18, 2010 and from the EEOC on or about August 31, 2012.
On or about November 27, 2012, Cervantes and Montes each filed a charge of discrimination and retaliation with the DFEH. Cervantes and Montes each received a right-to-sue letter from the DFEH dated November 27, 2012.
Plaintiffs brought this action in this Court on November 28, 2012. (Doc. 2). Plaintiffs filed the operative first amended complaint (" complaint") on July 26, 2013. (Doc. 27). Cemex filed an answer on August 15, 2013. (Doc. 28).
Plaintiffs filed the instant motion for judgment on the pleadings and request to strike on August 18, 2014. Cemex filed an opposition on September 16, 2014. (Doc. 69). Plaintiffs filed a reply on September 23, 2014. (Doc. 75).
Cemex filed the instant motion for summary judgment as to Plaintiffs' complaint on August 18, 2014. (Doc. 57). Plaintiffs filed an opposition on October 3, 2014. (Doc. 79). Cemex filed a reply on October 24, 2014. (Doc. 97).
Motion for Judgment on the Pleadings
A. Legal Standard
" A district court will render a 'judgment on the pleadings when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law.'" Enron Oil Trading & Transp. Co. v. Walbrook Ins. Co., Ltd., 132 F.3d 526, 529 (9th Cir. 1997) (quoting George v. Pacific-CSC Work Furlough, 91 F.3d 1227, 1229 (9th Cir. 1996); Yanez v. United States, 63 F.3d 870, 872 (9th Cir. 1995)). " All allegations of fact by the party opposing the motion are accepted as true." McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988) (quoting Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir. 1984)). Uncontested allegations to which the other party had an opportunity to respond are taken as true. Flora v. Home Fed'l Sav. & Loan Ass'n, 685 F.2d 209, 211 (7th Cir.1982). " Generally, district courts have been unwilling to grant a Rule 12(c) dismissal 'unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.'" Doleman, 727 F.2d at 1482 (quoting C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1368, at 690 (1969)).
Plaintiffs seek judgment on the pleadings as to eleven of the affirmative defenses Cemex asserts in its answer and requests this Court to strike each such defense as insufficient.
1. Third Affirmative Defense
In its third affirmative defense, Cemex asserts that " Defendant's conduct about which Plaintiffs complain was a fair and reasonable exercise of managerial discretion undertaken for a fair and honest reason and regulated by good faith under the circumstances." (Doc. 28 p. 11');"> 28 p. 11). Cemex also denies virtually every material allegation of fact in Plaintiffs' complaint upon which Plaintiffs base their claims. See generally, Doc. 28. Further, Cemex alleges that it had a non-discriminatory reason for suspending each Plaintiff. (Doc. 28 ¶ ¶ 15, 19). Therefore, accepting as true every allegation of fact by Cemex, Plaintiffs have not " clearly establishe[d] that no material issue of fact remains to be resolved and that [they] is entitled to judgment as a matter of law." Doleman, 727 F.2d at 1482 (internal quotation and citation omitted).
Plaintiffs argue that, because this is not a true affirmative defense, it is improper as a matter of law and asks this Court to strike the defense. " Affirmative defenses plead matters extraneous to the plaintiff's prima facie case, which deny plaintiff's right to recover, even if the allegations of the complaint are true." Fed. Deposit Ins. Corp. v. Main Hurdman, 655 F.Supp. 259, 262 (E.D. Cal. 1987) (citing Gomez v. Toledo, 446 U.S. 635, 640-41, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980)). " A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense." Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002)(citing Flav-O-Rich v. Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir. 1988)). As discussed further in the summary judgment analysis of Plaintiffs' claims, infra, a prima facie case in claims for hostile work environment, disparate treatment, retaliation, and failure to prevent discrimination do not involve evidence as to the employer's fair exercise of managerial discretion.
Further, even if a defense raised in the answer is improperly labeled as an affirmative defense, the Court need not strike it. Under Rule 12(f), a court may in its discretion " strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). " Motions to strike are not favored and 'should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation.'" In re New Century, 588 F.Supp.2d 1206, 1220 (C.D. Cal. 2008) (quoting Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D. Cal. 1991)). Unless the defenses seeking to be stricken are shown to be such, or to be insufficiently pled under Fed.R.Civ.P. 8, the Court will simply consider them not as affirmative defenses, but as general denials or objections. See, In re Washington Mut., Inc. Sec., Derivative & ERISA Litig., No. 08-MD-1919 MJP, 2011 WL 1158387, at *2 (W.D. Wash. Mar. 25, 2011).
Accordingly, Plaintiffs' motion for judgment on the pleadings and request to strike as to Defendants' third affirmative defense is DENIED.
2. Sixth Affirmative Defense
In its sixth affirmative defense, Cemex asserts that " Defendant would have made the same employment decisions concerning Plaintiffs absent any discriminatory or retaliatory motive." (Doc. 28 p. 11');"> 28 p. 11). As discussed above, Cemex denies virtually all material allegations of fact in Plaintiffs' amended complaint, and further asserts that it suspended each plaintiff for non-discriminatory reasons. (Doc. 28). Therefore, accepting all of Cemex's factual allegations as true, Plaintiffs fail to clearly establish that there are no material issues of fact and that they are entitled to judgment as a matter of law. Doleman, 727 F.2d at 1482.
Plaintiffs further fail to show the Cemex's defense of no discriminatory or retaliatory motive " could have no possible bearing on the subject matter of the litigation, " or that it fails to meet Rule 8's notice pleading requirements. In re New Century, 588 F.Supp.2d at 1220 (internal quotation and citation omitted); Fed.R.Civ.P. 8.
Accordingly, Plaintiffs' motion for judgment on the pleadings and request to strike as to Defendants' sixth affirmative defense is DENIED.
3. Seventh Affirmative Defense
In its seventh affirmative defense, Cemex asserts that " Defendant's actions about which Plaintiffs complain were justified by legitimate non-discriminatory reasons and were not taken under pretext." (Doc. 28 pp. 11-12). Cemex denies virtually all material allegations of fact in Plaintiffs' amended complaint, and further asserts that it took disciplinary action against each plaintiff for non-discriminatory reasons. (Doc. 28). Specifically, Cemex alleges that it suspended Cervantes for the non-discriminatory reason that Cervantes failed to perform a post-trip inspection of his vehicle, and that it suspected Montes for the non-discriminatory reason that Montes failed to report a problem with his vehicle. (Doc. 28 ¶ ¶ 15, 19). Therefore, accepting all of Cemex's factual allegations as true, Plaintiffs fail to clearly establish that there are no material issues of fact and that they are entitled to judgment as a matter of law. Doleman, 727 F.2d at 1482.
Further, as discussed infra, evidence of non-discriminatory reasons for employment decisions and pretext is not a part of a prima facie case in any of Plaintiffs' claims. Rather, such evidence would be part of Cemex's rebuttal of Plaintiffs' prima facie case.
Plaintiffs also fail to show the Cemex's defense of legitimate non-discriminatory reasons for employment decisions and no pretext is irrelevant to the subject matter of this litigation or insufficiently pled. In re New Century, 588 F.Supp.2d at 1220; Fed.R.Civ.P. 8.
Accordingly, Plaintiffs' motion for judgment on the pleadings and request to strike as to Defendants' seventh affirmative defense is DENIED.
4. Eighth Affirmative Defense
In its eighth affirmative defense, Cemex alleges " on information and belief that Plaintiffs failed to make reasonable efforts to mitigate their damages, if any." (Doc. 28 p. 12');"> 28 p. 12). However, Cemex provides no factual support for this defense and no guidance as to the basis for the defense. '" The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.'" Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1023 (9th Cir. 2010) (quoting Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979)). Although Cemex's pleading need not be supported by detailed factual allegations, it must at least give notice of the " grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Here, Cemex's answer gives Plaintiffs no notice as to the grounds upon which is rests its failure to mitigate defense.
While Plaintiffs do not clearly establish that no material issues of fact remain, Cemex fails to sufficiently plead its failure to mitigate defense. Doleman, 727 F.2d at 1482; Fed.R.Civ.P. 8, 12(f). Accordingly, the Court STRIKES Cemex's eighth affirmative defense.
5. Ninth Affirmative Defense
In its ninth affirmative defense, Cemex asserts that " some of the damages alleged herein are barred by the exclusive remedial provisions of California's Workers' Compensation statute, California Labor Code Section 3600, et seq." (Doc. 28 p. 12');"> 28 p. 12). However, Cemex's answer provides no notice to Plaintiffs as to which damages are allegedly precluded and the grounds for their preclusion. Conley, 355 U.S. at 47.
While Plaintiffs do not clearly establish that no material issues of fact remain, Cemex fails to sufficiently plead its Cal. Lab. Code damages preclusion defense. Doleman, 727 F.2d at 1482; Fed.R.Civ.P. 8, 12(f). ...