Dillihant v. Center for Human Development

          ORDER GRANTING DEFENDANT CONTRA COSTA COUNTY'S MOTION TO DISMISS RE: DKT. NOS. 14, 19, 21

          JACQUELINE SCOTT CORLEY UNITED STATES MAGISTRATE JUDGE

         Plaintiff Henry Dillihant III ("Plaintiff") makes various civil claims against Defendants Contra Costa County (the "County") and the Center for Human Development arising out of his employment termination. Now pending before the Court is the County's Motion to Dismiss Plaintiff's FAC. (Dkt. No. 14.) The County seeks dismissal of four of Plaintiff's causes of actions with prejudice, arguing that they cannot be rectified by adding additional allegations. Having considered the parties' written submissions, and, having had the benefit of oral argument on June 30, 2016, the Court GRANTS the County's Motion, but with leave to amend except for the "Paid Family Leave" claim which is dismissed with prejudice.^[1]

         FACTUAL & PROCEDURAL BACKGROUND

         I. Complaint Allegations

         Plaintiff is a resident of Contra Costa County and was jointly employed by the Center for Human Development and the County.^[2] (FAC ¶¶ 3, 6.) Plaintiff was employed for approximately six months, from on or around July 2014 to on or around January 2015. (Id. ¶ 6.) Plaintiff worked as an independent contractor for the County as a health conductor for the County's Health Services Department. (Id.) The County is a public entity. (Id. ¶ 5.)

         Throughout his employment, Plaintiff's direct supervisor, Ms. Mashama, repeatedly made inappropriate and discriminatory comments to Plaintiff. (Id. ¶ 8.) Ms. Mashama's comments referenced her concerns that Plaintiff would possibly make mistakes, disappear, or fail because of his race and gender. (Id.) Plaintiff and his wife were expecting a child in February 2015; after his wife experienced some complications he requested time off. (Id. ¶ 9.) Both the County and the Center for Human Development denied his request for leave. (Id.) When Plaintiff nonetheless took time off to assist his wife, the County marked him absent without official leave. (Id.) After his child was born, he again requested time off, but this request was also denied and met with hostility. (Id. ¶ 10.) Further, both the County and the Center for Human Development gave Plaintiff false information regarding his right to take time off. (Id.) Shortly thereafter, Plaintiff was terminated by the County and the Center for Human Development. (Id. ¶ 12).

         On his final day with the County, Plaintiff was "accosted" by the County's deputies and "paraded through the halls in open view . . . with his hands behind his back as if he were under arrest." (Id. ¶ 13.) The County deputies searched both his person and possessions without a warrant or his permission and treated Plaintiff in a hostile manner, with their weapons drawn or in plain sight, making it known to Plaintiff that he was not free to leave. (Id. ¶¶ 13-14.) While he was "under arrest, " the County deputies searched his vehicle and, in doing so, they caused extensive damage to it and the property inside. (Id. ¶ 15.) Specifically, the County deputies poured laundry detergent over Plaintiff's belongings inside the vehicle, including his bible, which deeply offended him as he is a pastor. (Id.) Plaintiff incurred a substantial car repair bill because of the County deputies' actions. (Id.) The County seized Plaintiff's personal property from his desk and vehicle and refused to return it. (Id. ¶ 16.) Additionally, the Center for Human Development refused to give Plaintiff a reason for his termination or access to his personnel file, although Plaintiff believes that it was based on his request for time off and for seeking information on taking leave. (Id. ¶¶ 18, 21.)

         II. Procedural Background

         Plaintiff exhausted his administrative remedies with the Department of Fair Employment and Housing ("DFEH") prior to filing this action against the County and the Center for Human Development. (Dkt. No. 1; FAC ¶ 19.) After this action was filed, Plaintiff amended his DFEH complaint to state a claim for associational discrimination, and thereafter filed the now operative FAC. (FAC ¶ 19.)

         Plaintiff brings eight causes of action in the FAC: (1) violations of the Unemployment Insurance Code § 1237 and Labor Code § 98.6 against both Defendants for discrimination/retaliation of Paid Family Leave; (2) discrimination based on race and gender in violation of the Fair Employment and Housing Act ("FEHA") against both Defendants; (3) discrimination based on disability in violation of FEHA against both Defendants; (4) wrongful termination in violation of public policy against the Center for Human Development; (5) violation of California Labor Code § 1198.5 against the Center for Human Development; (6) violation of 42 U.S.C. § 1983 against the County (for civil rights violations by the County deputies); (7) intentional infliction of emotional distress ("IIED") against both Defendants; and (8) conversion against the County. Plaintiff seeks damages and injunctive relief.

         The County now moves the Court to Dismiss Plaintiff's FAC pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 14.) The Center for Human Development answered the FAC and did not move to dismiss. (Dkt. No. 15.)

         DISCUSSION

         The County moves to dismiss four of the six causes of action Plaintiff alleges against it; that is, all but the race, gender, and disability discrimination claims. The County contends that Plaintiff's first cause of action for discrimination/retaliation for "paid family leave" fails to state a claim for relief because Plaintiff does not qualify as an employee under either the federal Family and Medical Leave Act or California's Family Rights Act. The County next insists that Plaintiff has not adequately pled Monell liability in the sixth cause of action. Finally, the County urges that Plaintiff has failed to state a claim for either IIED in his seventh cause of action because he does not allege facts demonstrating "extreme and outrageous conduct" or for conversion in his eighth cause of action because the FAC does not allege facts to show that Plaintiff owned, or had a right to possess, any particular item of personal property.

         A. Plaintiff's Discrimination and Retaliation in "Paid ...